United States of America v. Marcus Broadway

United States Court of Appeals
For the Eighth Circuit
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No. 19-2979
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United States of America
Plaintiff - Appellee
v.
Marcus Broadway
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: April 15, 2020
Filed: August 5, 2020
[Unpublished]
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Marcus Broadway, who received 100 months in prison for distributing
methamphetamine, see 21 U.S.C. § 841(a)(1), appeals his sentence on two grounds.
The first is that the district court1 should not have sentenced him as a career offender.
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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See U.S.S.G. § 4B1.1(a). The second is that he did not deserve an enhancement for
possessing a dangerous weapon. See id. § 2D1.1(b)(1). Neither argument entitles
him to relief.
The first issue turns on whether Broadway’s prior convictions of delivery of
cocaine and attempted delivery of cocaine qualify as “controlled substance
offense[s]” under the Sentencing Guidelines. U.S.S.G. § 4B1.1(a); see Ark. Code
Ann. § 5-64-401(a)(1)(A)(i) (Supp. 2005); id. § 5-64-422(a) (Supp. 2011). A
“controlled substance offense” includes “distribution,” U.S.S.G. § 4B1.2(b), which
can be accomplished through “deliver[y],” Ark. Code Ann. § 5-64-101(9); see id.
§ 5-64-101(6). The commentary extends the reach of section 4B1.2(b) to attempted
distribution, even though the provision itself lists only completed acts. U.S.S.G.
§ 4B1.2, cmt. n.1. Since 1995, we have deferred to the commentary, not out of its
fidelity to the Guidelines text, but rather because it is not a “plainly erroneous
reading” of it. United States v. Mendoza-Figueroa, 65 F.3d 691, 693 (8th Cir. 1995)
(en banc); accord, e.g., United States v. Garcia, 946 F.3d 413, 417 (8th Cir. 2019);
United States v. Reid, 887 F.3d 434, 437 (8th Cir. 2018); see also Stinson v. United
States, 508 U.S. 36, 44–45 (1993) (giving deference to the Guidelines commentary
under Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), because it is
analogous to an agency’s interpretation of its own regulation).2 For this reason, both
of Broadway’s convictions count as “controlled substance offense[s].”
Broadway’s challenge to the two-level dangerous-weapon enhancement fares
no better.3 See U.S.S.G. § 2D1.1(b)(1). Broadway was arrested in his girlfriend’s
2 We are not in a position to overrule Mendoza-Figueroa, as Broadway urges
us to do, even if there have been some major developments since 1995. See Kisor
v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (emphasizing that Auer/Seminole Rock
deference is triggered only by “genuine[] ambigu[ity]”); United States v. Booker,
543 U.S. 220, 259–61 (2005) (making the Sentencing Guidelines advisory).
3 Due to Broadway’s career-offender status, the enhancement did not affect his
Guidelines range. See U.S.S.G. § 4B1.1(b)(3). This fact does not make his
challenge moot, however, because of the potential impact on his eligibility for early

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apartment, where law enforcement found a gun that he acknowledged possessing.
The only dispute is whether the gun was “connected with the offense.” Id. § 2D1.1,
cmt. n.11(A).
The bar is not high. See United States v. Anderson, 618 F.3d 873, 882 (8th
Cir. 2010) (describing it as “very low”). Unless it is “clearly improbable that the
weapon was connected with the offense,” including any relevant conduct, the
enhancement applies. U.S.S.G. § 2D1.1, cmt. n.11(A); see United States v. Ault,
446 F.3d 821, 824 (8th Cir. 2006). Along with the gun, officers recovered over
$2,000 in cash, plastic baggies, and 54.5 grams of marijuana in the apartment. The
presence of these items allowed the district court to “infer[] that a gun near the
vicinity of drug activity [was] somehow connected to it.” United States v. Peroceski,
520 F.3d 886, 889 (8th Cir. 2008). In light of this evidence, the enhancement stands.
See United States v. Torres, 409 F.3d 1000, 1003 (8th Cir. 2005) (applying clear-
error review).
We accordingly affirm the judgment of the district court.
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release. 28 C.F.R. § 550.55(b)(5)(ii); see United States v. Torres, 409 F.3d 1000,
1002–03 (8th Cir. 2005).

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