United States Court of Appeals
For the Eighth Circuit
United States of America
lllllllllllllllllllllPlaintiff - Appellee
lllllllllllllllllllllDefendant - Appellant
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
Submitted: January 11, 2021
Filed: March 4, 2021
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
Aaron Walton pleaded guilty to distribution of more than five grams of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The
district court1 determined that Walton qualified as a career offender under § 4B1.1 of
the U.S. Sentencing Guidelines and sentenced him to 151 months’ imprisonment, the
bottom of the advisory guidelines sentencing range. We affirm.
Walton contends that he does not qualify as a career offender because he does
not have at least two prior felony convictions that meet § 4B1.2(b)’s definition of
“controlled substance offense.” Walton’s prior felony convictions involved the
“delivery” or “distribution” of controlled substances, both of which are defined to
include attempt.2 Walton maintains that the text of § 4B1.2(b) excludes such inchoate
offenses. He recognizes that Application Note 1 to § 4B1.2 defines “controlled
substance offense” to include “the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses,” but argues that the Sentencing Commission
exceeded its authority by expanding the definition in the commentary to include
offenses not listed in the guideline itself.
In United States v. Mendoza-Figueroa, our en banc court concluded that
Application Note 1 was “a reasonable interpretation of the career offender guidelines
that [was] well within the Sentencing Commission’s statutory authority.”
65 F.3d 691
, 694 (8th Cir. 1995) (en banc). Accordingly, we “must enforce Note 1 in
accordance with its terms.”
Id. at 693;
see United States v. Merritt,
934 F.3d 809
(8th Cir. 2019) (concluding that Mendoza-Figueroa foreclosed the argument that the
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
Walton has been convicted of possession of marijuana with purpose to deliver
in violation of Ark. Code Ann. § 5-64-436 and possession of ecstasy and marijuana
with purpose to deliver in violation of Ark. Code Ann. §§ 5-64-424 and 5-64-436.
id. § 5-64-101(6) (defining
“deliver” to include “attempted transfer”). He also
has been convicted of distribution or possession with intent to distribute marijuana
in violation of Kan. Stat. Ann. § 21-5705. See
id. § 21-5701(d) (defining
to include “attempted transfer”).
defendant’s drug conspiracy conviction did not satisfy § 4B1.2(b)’s definition of
“controlled substance offense”); United States v. Bailey,
677 F.3d 816
, 818 (8th Cir.
2012) (per curiam) (same). We are bound by Mendoza-Figueroa, and thus Walton’s
argument is foreclosed.3 Accord United States v. Lange,
862 F.3d 1290
(11th Cir. 2017); United States v. Chavez,
660 F.3d 1215
, 1226–28 (10th Cir. 2011);
United States v. Piper,
35 F.3d 611
, 617 (1st Cir. 1994).
Walton next argues that the totality of the circumstances supported a downward
variance from the guidelines sentencing range. Walton contends that the district court
failed to give adequate weight to the mitigating factors of Walton’s youth, his
troubled upbringing, his lack of parental guidance, and his substance addiction. The
record reveals that the district court gave due consideration to those factors, however,
weighing them against Walton’s lack of respect for the law, his likelihood to
recidivate, and the need for the sentence to protect the public and deter Walton from
committing further crimes. We conclude that the district court did not abuse its
discretion in imposing a sentence at the bottom of the advisory guidelines range. See
Gall v. United States,
552 U.S. 38
, 51 (2007) (appellate court reviews a defendant’s
sentence under an abuse-of-discretion standard and may apply a presumption of
reasonableness to a sentence within the advisory guidelines range); see also United
States v. King,
898 F.3d 797
, 810 (8th Cir. 2018) (“The district court’s decision not
to weigh mitigating factors as heavily as [the defendant] would have preferred does
not justify reversal.” (cleaned up)). The sentence is not substantively unreasonable.
The judgment is affirmed.
We have recognized that the D.C. Circuit and the Sixth Circuit have reached
a contrary conclusion, see United States v. Jefferson,
975 F.3d 700
, 708 (8th Cir.
2020), petition for cert. filed (U.S. Dec. 31, 2020) (No. 20-6745), and that the
Sentencing Commission has published a proposed amendment that would resolve the
disagreement among the circuits, see United States v. McWilliams, 807 F. App’x 589,
590 (8th Cir.) (per curiam), cert. denied,
141 S. Ct. 572