Opinion
No. 19-2389
07-29-2020
United States of America Plaintiff - Appellee v. Preston Baxter Defendant - Appellant
Appeal from United States District Court for the Western District of Arkansas - Fayetteville [Unpublished] Before KELLY, WOLLMAN, and STRAS, Circuit Judges. PER CURIAM.
Preston Baxter, who pleaded guilty to conspiring to distribute a controlled substance, 21 U.S.C. §§ 841(a)(1), 846, appeals his classification as a career offender and the district court's refusal to give him a minor-role reduction. We affirm.
The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.
Baxter's primary argument is that he cannot be a career offender because his "instant offense of conviction"—conspiracy to distribute a controlled substance—is not a "controlled substance offense." U.S.S.G. § 4B1.1(a). A "controlled substance offense" includes "distribution," id. § 4B1.2(b), and the commentary makes clear that it covers conspiracies too, id. § 4B1.2, cmt. n.1. We are once again asked to disregard the commentary, and bound by circuit precedent, we once more decline to do so. E.g., United States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Mendoza-Figueroa, 65 F.3d 691, 693 (8th Cir. 1995) (en banc).
As a career offender, Baxter cannot prevail on his argument that he should have received a minor-role adjustment either. See U.S.S.G. § 3B1.2. As we have previously explained, "[t]he offense level reductions . . . for a mitigating role in the offense simply do not apply in the career offender context." United States v. Beltran, 122 F.3d 1156, 1160 (8th Cir. 1997).
The government failed to raise this point. Even so, there is no doubt that this straightforward rule applies, and "we may affirm on any ground supported by the record." United States v. Garrido, 995 F.2d 808, 813 (8th Cir. 1993); see Brown v. St. Louis Police Dep't, 691 F.2d 393, 396-97 (8th Cir. 1982) (discussing our discretion to "affirm on any ground supported by the record even if the issue was not pleaded, tried, or otherwise referred to in the proceedings below").
We accordingly affirm the judgment of the district court.