United States of America v. Antawon Antonio Baker

United States Court of Appeals
For the Eighth Circuit
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No. 23-3776
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United States of America
Plaintiff - Appellee
v.
Antawon Antonio Baker
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: October 25, 2024
Filed: December 16, 2024
[Unpublished]
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Before GRUENDER, BENTON, and KOBES, Circuit Judges.
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PER CURIAM.
A jury found Antawon Baker guilty of conspiracy to distribute controlled
substances, see 21 U.S.C. § 846, and possession with intent to distribute controlled
substances, see id. §§ 841(a)(1) and 841(b)(1)(B). The district court1 sentenced him
1 The Honorable Daniel M. Traynor, United States District Judge for the
District of North Dakota.

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to 120 months’ and 60 months’ imprisonment, respectively, to run consecutively.
Baker now appeals, arguing the district court erred in denying his motion for a
Franks hearing and his motion for judgment of acquittal. He also contends the
district court erred in applying an aggravating-role enhancement to his sentencing
guidelines range. Addressing each of these arguments in turn, we affirm.
As part of an investigation into fentanyl-trafficking in Bismarck, North
Dakota, a confidential source (“CS”) working with law enforcement made a
controlled buy of fentanyl pills from Baker’s co-defendant Micah Blaine at the
Candlewood Suites hotel in Bismarck on May 23, 2022. Two other men—later
identified as co-defendants John Richmond and Terry Rogers—accompanied
Blaine. After the controlled buy, Bureau of Indian Affairs Special Agent (“SA”)
Brent Lipponen conducted a follow-up investigation at the hotel, where he observed
the two men from the buy standing outside. The hotel clerk informed SA Lipponen
there was “a lot of traffic and suspicious activity” associated with adjoining Rooms
317 and 319, and that the two men standing outside were the persons who rented
those rooms. Room 317 was booked under Baker’s name. SA Lipponen submitted
a search warrant application for the rooms, which was issued by a state court judge
and executed later that day. There officers encountered Baker and three co-
defendants and seized multiple controlled substances, including over 1,400 fentanyl
pills. Baker and his co-defendants were charged with conspiracy to distribute
controlled substances and possession with intent to distribute controlled substances.
A jury found Baker guilty on both counts.
We first consider whether the district court abused its discretion when it
denied Baker’s motion for a Franks hearing. See United States v. Walker, 68 F.4th
387, 391 (8th Cir. 2023). To be entitled to a Franks hearing, a movant must make a
substantial preliminary showing that the affiant intentionally or recklessly included
a false statement in the warrant affidavit that was necessary for a finding of probable
cause. Franks v. Delaware, 438 U.S. 154, 155-156 (1978); United States v. Hansen,
27 F.4th 634, 637 (8th Cir. 2022). An incorrect statement of fact is not false if “the
information put forth is believed or appropriately accepted by the affiant as true.”

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Franks, 438 U.S. at 165. And negligence or an innocent mistake on the part of the
affiant are insufficient to show reckless or deliberate falsehood warranting a Franks
hearing. Id. at 171.
Baker argues that he is entitled to a Franks hearing because SA Lipponen
incorrectly identified Baker as one of the two men accompanying Blaine during the
controlled buy. SA Lipponen stated that one of these men “appeared to be Baker.”
But SA Lipponen only discovered the misidentification after the search was
conducted, and under these circumstances, “the [misidentification] put forth” in the
affidavit “[was] believed or appropriately accepted by [SA Lipponen] as true.” Id.
at 165. Not only were there reasonable physical similarities between Baker and the
man SA Lipponen mistook for Baker, but the hotel clerk also corroborated SA
Lipponen’s belief that the individual was Baker. She told him that the two men
standing outside the hotel (the same two who had accompanied Blaine during the
controlled buy) were renting Rooms 317 and 319, and the hotel records indicated
that Baker rented Room 317. Such an “innocent mistake” on SA Lipponen’s part
“[does] not suffice to demonstrate reckless or deliberate falsehood” warranting a
Franks hearing. See United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008).
Accordingly, the district court acted within its discretion when it determined that
Baker failed to make a substantial showing that SA Lipponen included false
information in his warrant application with reckless disregard for the truth.
Even without the statement misidentifying Baker, the affidavit contained
sufficient information to support probable cause. See id. at 817. We pay great
deference to the lower court’s determination of probable cause and draw inferences
from the totality of the circumstances to discern whether the judge issuing the
warrant had a “substantial basis for concluding that probable cause existed.” United
States v. Daigle, 947 F.3d 1076, 1081 (8th Cir. 2020) (internal citation omitted).
Here, the affidavit established there was a controlled purchase of fentanyl pills by
the CS through Blaine from two individuals at the hotel. The hotel clerk stated that
there was a lot of traffic and odd activity in Rooms 317 and 319, hotel records
showed Room 317 was booked under Baker’s name, and the affidavit included

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information regarding Baker’s criminal history—that history involved possession of
controlled substances and connections to and activity with L.G., a known drug
dealer. See United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (holding that
inclusion of prior drug conviction in the affidavit with information indicating illegal
activity was sufficient to support probable cause for a search warrant). We discern
no abuse of discretion in the district court’s determination that, even omitting the
misidentification, SA Lipponen’s affidavit still provided more than enough evidence
to establish probable cause for the search warrant. Therefore, the district court did
not abuse its discretion in denying Baker’s motion for a Franks hearing.
Next, we consider whether the district court erred in denying Baker’s motion
for judgment of acquittal. We review de novo the denial of a motion for judgment
of acquittal based on the sufficiency of the evidence, and “examine the evidence in
the light most favorable to the verdict.” United States v. Druger, 920 F.3d 567, 569
(8th Cir. 2019). We will uphold a conviction if any rational jury could have found
the elements satisfied beyond a reasonable doubt. United States v. Cunningham, 114
F.4th 671, 675 (8th Cir. 2024).
To prove conspiracy to distribute a controlled substance, the Government
must show that (1) there was a conspiracy to distribute the controlled substances; (2)
Baker knew of the conspiracy; and (3) Baker intentionally joined the conspiracy.
See United States v. Sherman, 81 F.4th 800, 807 (8th Cir. 2023). Here, the
Government produced sufficient evidence for a reasonable juror to conclude that
each element was satisfied. Co-defendant Lorenzo White testified that Baker told
him to come to Bismarck with co-defendant John Richmond to sell fentanyl pills,
which they did. White explained that at the hotel where co-defendants and Baker
stayed, Baker and Richmond would handle customer inquiries for fentanyl pills and
then either Baker or Richmond would decide whose pills were sold. Blaine also
testified that he initially purchased fentanyl pills from Baker before Baker directed
him to Richmond to purchase the drugs. Together, there was sufficient evidence for
a jury to find Baker intentionally joined in an agreement or understanding between
the parties to distribute fentanyl pills.

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To prove possession with intent to distribute fentanyl, the Government must
show Baker “(1) knowingly possessed a controlled substance and (2) intended to
distribute some or all of it.” See United States v. Thompson, 686 F.3d 575, 583 (8th
Cir. 2012). “Possession can be actual or constructive, and ‘an individual has
constructive possession of contraband if he has…dominion over the premises in
which the contraband is concealed.’” Id. (internal citation omitted).
White’s testimony and the presence of the pills in Baker’s hotel room
demonstrate Baker had control over the pills and knew they were present. See United
States v. Williams, 39 F.4th 1034, 1045 (8th Cir. 2022) (“Constructive possession
exists where a defendant has ‘knowledge of presence, plus control over the thing.’”)
(internal citation omitted) (emphasis in original). Additionally, Baker was present
when large quantities of fentanyl pills as well as small amounts of cocaine, cocaine
base, and methamphetamine were found in both rooms. Baker’s intent to distribute
is evidenced by White’s testimony that Baker told him to come sell pills in Bismarck,
and that Baker took calls from customers and directed which pills were sold.
Accordingly, the evidence was sufficient to support Baker’s conviction for both
charges, and the court did not err in denying Baker’s motion for judgment of
acquittal.
Finally, Baker argues the district court improperly applied a two-level
sentencing guidelines enhancement for being a manager or supervisor of criminal
activity. See U.S.S.G. § 3B1.1(c); id. at cmt. n.2 (“To qualify for an adjustment
under this section, the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.”). “The government bears the burden
of proving by a preponderance of the evidence that the aggravating role enhancement
is warranted.” United States v. Gaines, 639 F.3d 423, 427 (8th Cir. 2011). We
review the district court’s factual findings, including its determination of Baker’s
role in the offense, for clear error. See id. at 428. We review its application of the
guidelines to the facts de novo. Id.

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We conclude the district court did not clearly err in finding that Baker played
a managerial or supervisory role in the fentanyl operation. The district court found
that Baker recruited White into the conspiracy based on White’s testimony that he
was following Baker’s instruction when he traveled to Bismarck with Richmond to
sell fentanyl pills. See United States v. Payton, 636 F.3d 1027, 1048 (8th Cir. 2011)
(control includes activities such as recruiting others to assist in the distribution
conduct). The court likewise found Baker recruited Richmond into the conspiracy,
citing Blaine’s testimony that he originally bought fentanyl from Baker, but Baker
later directed Blaine to purchase fentanyl from Richmond. See United States v. Hull,
646 F.3d 583, 587 (8th Cir. 2011) (upholding enhancement under § 3B1.1(c) where
defendant instructed witness to buy cocaine from his wife while defendant was
unavailable due to his incarceration).
The record also supports the district court’s finding that Baker directed the
activities of the other conspirators while they were distributing fentanyl pills from
the hotel. White testified that calls and messages came in to either Baker or
Richmond and the two of them directed their conspirators which pills to distribute.
These facts are sufficient to establish that Baker acted as manager and supervisor of
criminal activity. Finding no clear error, we affirm the district court’s application of
the aggravating-role enhancement.
For the foregoing reasons, we affirm the judgment of the district court.
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