United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2302
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Michael Anthony Garrett

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                            Submitted: February 16, 2018
                               Filed: August 2, 2018
                                  ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Shortly after midnight on December 28, 2014, Michael Garrett drove a minivan
into the parking lot of the Grand Slam convenience store in Kansas City, Missouri.
About 45 minutes later, off-duty Police Officer Michael Hamlett approached the van,
found Garrett sleeping, and called for police assistance after attempting to wake him.
Officer Douglas Davidson arrived, entered the van through an unlocked door, and
found a handgun lying on the floorboard. Garrett was arrested for being a felon in
possession of a firearm; search of the vehicle uncovered a mason jar with five plastic
baggies containing a total of ten grams of marijuana and a black digital scale with
green residue on it. After a three-day trial, a jury convicted Garrett of being a felon
in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2), possession with
intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and possession
of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).
The district court1 sentenced Garrett to 240 months imprisonment. Garrett appeals
his conviction and sentence. We affirm.

                    I. A Theory-of-Defense Instruction Issue.

       At trial, Garrett admitted that he possessed the marijuana and scale but argued
to the jury that the government failed to prove that he possessed the marijuana with
intent to distribute and knowingly possessed the gun in furtherance of a drug
trafficking crime. Garrett based this defense primarily on the following evidence:

       Officers Hamlett and Davidson testified that Garrett remained parked at a
Grand Slam gas pump for forty minutes, was dazed and confused when awakened,
and appeared intoxicated to Hamlett. The dash-cam video from Davidson’s vehicle
showed Garrett collapsing after exiting the minivan. The officers called for an
ambulance (Garrett refused medical treatment when it arrived). The paddy wagon
video showed him drifting in and out of sleep after being arrested and losing
consciousness while attempting to exit that vehicle. A pharmacist testified that
Garrett had current prescriptions for OxyCodone, Xanax, and Codeine. A detention
center employee testified that, after his arrest, Garrett had a second degree burn on
his thigh that correlated with a hole found in his pants and a burn mark found on the



      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

                                         -2-
seat of the minivan where he had been sleeping. The inference suggested was that
Garrett smoked a “blunt” sold by Grand Slam that he laced with marijuana.

      Before the final instructions conference, Garrett proposed the following theory-
of-defense instruction:

       One of the issues in this case is whether the defendant was intoxicated
       due to taking a drug or drugs at the time the acts charged in the
       Indictment were committed. Being under the influence of a drug, even
       one taken for medical purposes, provides a legal excuse for the
       commission of a crime if the effect of the drug negates the mental state
       required by the charged offense. Evidence that the defendant acted
       while under the influence of drugs may be considered by you, together
       with all the other evidence, in determining whether or not he did in fact
       have an intent to distribute marijuana and an intent to possess a firearm
       in furtherance of possession of marijuana with intent to distribute.

Initially inclined to give the proposed instruction, the district court heard argument
after the close of evidence and declined to give it, concluding that “a reasonable
person would not conclude that the evidence supports the defendant’s position so as
to warrant the giving of the intoxication instruction.” On appeal, Garrett argues the
district court erred in refusing to give his requested instruction because it was an
accurate statement of the law amply supported by the evidence at trial.2

       It is well established “that a criminal defendant is entitled to a theory of defense
instruction if a timely request is made, the evidence supports the proffered instruction,
and the instruction correctly states the law.” United States v. Robertson, 

, 747 (8th Cir. 2013); see Mathews v. United States, 

, 63 (1988). The


      2
       Garrett argues the district court violated his “due process right to present a
defense.” But this is not a constitutional issue. See United States v. Christy, 

, 770 (8th Cir. 2011).

                                           -3-
word “defense” in this context includes evidence that negates an affirmative element
of the government’s case, such as the mens rea element of the charged 

. It is widely accepted by this court and others that “[a] defendant charged
with a specific intent crime is entitled to an intoxication instruction when the
evidence would support a finding that [the defendant] was in fact intoxicated and that
as a result there was a reasonable doubt that he lacked specific intent.” United States
v. Kenyon, 

, 1070 (8th Cir. 2007) (quotation omitted).3 To warrant an
instruction, there must be “some evidence” that Garrett “was drunk enough to
completely lack the capacity to form the requisite intent.” 

States
v. Nacotee, 

, 1076 (7th Cir. 1998); see 

(“incapable of entertaining” the specific intent required). We conclude the district
court did not err in refusing to give the proposed instruction for three reasons.

       1. The proposed instruction did not correctly state the law. First, the
instruction told the jury that Garrett lacked specific intent to distribute if he was
intoxicated at the time of arrest. In physical or sexual assault cases such as Kenyon,
when the intoxication defense most commonly arises, there need only be some
evidence that defendant was sufficiently drunk or high when he committed the
assault. See United States v. Fay, 

, 377-78 (8th Cir. 1981) (error not to
give intoxication instruction when evidence defendant intoxicated at the time of the
assault may have negated intent to do bodily harm). But to prove possession with

      3
       The limitation of this defense to specific intent crimes has rather ancient roots.
See Stenzel v. United States, 

, 163 (8th Cir. 1919). The limitation has
generated substantial litigation as to whether a crime required proof of specific intent,
see 

, and whether at least some “general intent” crimes
should also be subject to an intoxication defense. We need not enter this thicket
because it is both obvious and undisputed in this case that the offenses in question,
possession with intent to distribute marijuana (Count Two) and possession of a
firearm in furtherance of a drug trafficking crime (Count Three) are crimes requiring
proof of the requisite specific intent. See United States v. Jackson, 

,
1291-92 (10th Cir. 2000).

                                          -4-
intent to distribute drugs that have not yet been distributed, the government can prove
the requisite specific intent at any time after the defendant acquired possession until
his arrest possessing the unsold drugs. An intoxication defense instruction that does
not explain this to the jury does not accurately state the law. Second, instructing the
jury that it may consider “that the defendant acted while under the influence of drugs”
is not an accurate statement of the intoxication defense -- that defendant completely
lacked the capacity to form the requisite intent.

        2. The district court concluded there was only speculative evidence that
Garrett was intoxicated or under the influence of prescription medications or
marijuana at the time of his arrest. We agree. See United States v. Phelps, 

, 1056 (8th Cir. 1999) (intoxication instruction that “is based on mere
speculation” properly refused). Moreover, there was a total lack of evidence negating
Garrett’s specific intent to distribute when he acquired possession of the marijuana,
packaged it in distribution-sized baggies, and set out with the marijuana baggies and
a firearm on a drive that ended at the Grand Slam gas pump. Garrett did not testify
at trial, and there was no other evidence as to how the marijuana and firearm came to
be in the minivan with Garrett. No amount of evidence of intoxication at the time of
arrest would negate the existence of intent to distribute marijuana and to facilitate
that drug trafficking crime with a firearm when steps reflecting that specific intent
had been taken previously. See 

(habitual crack use does
not negate possession with intent to distribute even if defendant was under the
influence during some transactions).

        3. “Even where the court declines to give an instruction on a theory of defense
that is supported by the evidence, there is no error if the instructions as a whole, by
adequately setting forth the law, afford counsel an opportunity to argue the defense
theory and reasonably ensure that the jury appropriately considers it.” 

. Here, after ruling that it would not give the proposed intoxication
instruction, the district court stated:

                                         -5-
      It’s the Court’s ruling that the defense can argue within the parameters
      of the law and the instruction that any proper inference or evidence of
      intoxication or drug use, whether prescribed or not, may be considered
      by the jury . . . during their determination whether or not the defendant
      did, in fact, have the requisite knowledge and intent.

The court then instructed the jury, without objection, as to the knowledge and intent
elements of all three offenses, and defense counsel argued at length that Garrett’s
prescription medications and marijuana use prevented him from knowingly
possessing the firearm, or intending either to distribute marijuana or to facilitate a
drug trafficking crime. As in Christy, there was no error.

                              II. Two Fair Trial Issues.

        A. A Brady Issue. At trial, Detective Kris Rutherford testified that a warrant
search of Garrett’s residence in December 2013 uncovered mason jars, 872 ecstasy
pills in plastic bags, marijuana, and a digital scale with marijuana residue. Police
Officer Dylan Passinese testified that, during the warrant search, he observed mason
jars, plastic bags, and marijuana and was present at an interview when Garrett made
a statement about buying a large quantity of pills from an Asian male. The district
court admitted this evidence under Rule 404(b) to show Garrett’s knowledge and
intent to distribute marijuana, instructing the jury it could only be considered for that
purpose. After trial, the government produced lab reports showing that some of the
pills were a mixture of cocaine and caffeine and some were a mixture of
methamphetamine and caffeine, but none contained the Schedule 1 controlled
substance commonly known as ecstasy, methylenedioxymethamphetamine (MDMA).
Garrett moved for a new trial, arguing the prosecution had suppressed evidence in
violation of Brady v. Maryland, 

, 87 (1963). The district court denied a
new trial, concluding the lab reports were not material.




                                          -6-
       To establish a claim under Brady, Garrett must establish that (1) the
government suppressed evidence; (2) the evidence was favorable to him; and (3) the
evidence was material to the outcome of the trial. Masten v. United States, 

, 1146 (8th Cir. 2014). For evidence to be material, there must be a “reasonable
probability that had it been disclosed, the result of the proceeding would have been
different.” United States v. Robinson, 

, 996 (8th Cir. 2016).

       Garrett argues that lab reports showing the pills were a mixture of various
substances would show his ignorance of their contents, negating the inference of
knowledge and corroborating the defense that he was a habitual user, not a drug
dealer. The district court concluded that the report may have had some impeachment
value but would not have affected the purpose for which the Rule 404(b) evidence
was admitted, to show that Garrett had knowledge and intent to distribute illegal
substances. We agree. The 404(b) evidence that Garrett engaged in drug distribution
before the 2013 search warrant was executed was strong, regardless of the identity of
the pills or Garrett’s knowledge of their identity. There was no abuse of discretion
in denying a new trial because there was no reasonable probability that the result of
the proceeding would have been different had the lab reports been produced.

       B. Closing Argument Prosecutorial Misconduct. Garrett objected to seven
of the prosecutor’s remarks during closing argument. The district court sustained
four objections and repeatedly instructed the jury that arguments by lawyers are not
evidence. Garrett nonetheless argues the prosecutor “undermined [his] right to a fair
trial” by repeatedly misstating the evidence and in one remark misrepresenting his
theory of defense.

       Garrett unsuccessfully objected to two of the prosecutor’s statements relating
to Officer Passinese’s testimony regarding the 2013 warrant search interview:
“Regarding [Garrett’s] intent [at the time of arrest], that same man has admitted in the
past to be engaged in narcotics trafficking,” and “Then we have the defendant’s

                                          -7-
admission that he made to Officer Passinese. I’m not going to mince words. The
defendant’s a drug dealer.” Garrett objected to both, “That’s not the evidence.” The
district court ruled, “The jury will remember the evidence.” The third remark to
which objection was not sustained was the prosecution’s statement that, “[u]nder
defendant’s theory, the defendant was so under the influence of drugs, so seriously
intoxicated . . . that he did not know that there was a gun right next to him; that he did
not know about the multiple bags of marijuana sitting on the passenger side
floorboard.” Garrett argues this was a misstatement of his theory of defense, which
was that Garrett had no intent to distribute, not that he had no knowledge of the
marijuana. The court overruled this objection, which in our view was completely
without merit, explaining “the jury [will] recall the evidence it’s heard during the
trial.”

       “The district court has broad discretion in controlling closing arguments, and
we will not reverse absent an abuse of discretion. To obtain a reversal . . . the
defendant must show that (1) the prosecutor’s remarks or conduct were improper, and
(2) the remarks or conduct prejudicially affected the defendant’s substantial rights so
as to deprive him of a fair trial.” United States v. Mullins, 

, 757 (8th
Cir. 2006). We conclude the district court did not abuse its discretion because (i) the
remarks were related to the evidence and not “likely to inflame bias in the jury,” 

(ii) the remarks were not so prejudicial as to deprive Garrett of a fair trial; (iii)
the district court’s instruction that closing arguments are not evidence “serve[d] to
alleviate any risk of prejudicial impact,” United States v. Eagle, 

, 806
(8th Cir. 2008); and (iv) we agree with the district court that the evidence of Garrett’s
guilt was overwhelming. See 

.

                               III. A Sentencing Issue.

      Garrett argues that the district court erred by sentencing him as a career
offender under the Sentencing Guidelines because he does not have “at least two prior

                                            -8-
felony convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). We review this issue de novo. United States v. Harrison, 

, 425 (8th Cir. 2015).

      At sentencing, the district court found that Garrett is a career offender because
he has two prior felony convictions that were crimes of violence under § 4B1.1, a
Missouri conviction for first degree domestic assault and a Kansas conviction for
attempted aggravated assault of a law enforcement officer. This resulted in an
advisory guidelines range of 360 months to life imprisonment. The district court
varied downward and sentenced Garrett to 240 months imprisonment. The court
explained:

      although the court . . . found [Garrett] to be a career offender[, t]he court
      did vary downward and not utilize th[e] advisory guidelines in that
      respect. If it was inappropriate for the court to apply the career offender
      guideline provisions, it wouldn’t impact the sentence imposed today.
      The sentence is imposed based on this particular defendant, this
      particular offense, and his history and the factors under 18 U.S.C.
      § 3553.

        On appeal, Garrett argues the district court erred because he does not have two
predicate crime-of-violence convictions. First, he argues the Missouri conviction for
first degree domestic assault does not count under the rule of lenity as applied in King
v. United States, 

(8th Cir. 2010): two of his six prior sentences cannot
be counted in calculating his Criminal History Category under § 4A1.1(c); an offense
must be counted separately under § 4A1.1 to be counted under § 4B1.1,
see § 4B1.2(c); and therefore the rule of lenity requires that the two crimes of
violence not be counted under § 4A1.1 and § 

. The district
court rejected this argument because it would lead to an absurd result -- a more
lenient sentence because Garrett has a greater criminal history. That reasoning is



                                          -9-
consistent with this court’s prior interpretation of the rule of lenity as applied in King.
See Donnell v. United States, 

, 820 (8th Cir. 2014).

       Second, Garrett argues that the Kansas attempted aggravated assault on an
officer conviction does not count because the offense is not categorically limited to
the generic definition of an attempt crime: we often look to the Model Penal Code
in defining offenses enumerated in the Guidelines. See, e.g., United States v.
Kosmes, 

, 977 (8th Cir. 2015). The Model Penal Code defines an
attempt as requiring “a substantial step” towards completion of the offense, whereas
under Kansas law, attempt is more broadly defined as requiring only “an overt act
toward the perpetration of the crime.” The government responds that the definition
of attempt in the Kansas statute when Garrett committed the assault offense “fit[s]
easily” within the definition of criminal attempt in the Model Penal Code, comparing
K.S.A. 2006 Supp. 21-3301(a), with Uniform Model Penal Code § 5.01.

       Even if the district court erred in concluding that Garrett’s two prior offenses
were crimes of violence that qualify Garrett as a career offender, we conclude any
error was harmless. When the “district court’s detailed explanation for the sentence
imposed makes clear that the judge based the sentence he or she selected on factors
independent of the Guidelines, the error may be harmless.” United States v. McGee,

, 737 (8th Cir. 2018). This rule applies when the district court varies
from the challenged advisory guideline sentence, makes clear it has considered the
18 U.S.C. § 3553 sentencing factors, and states that it would apply the same sentence
regardless of the advisory range. See 

United States v. McGrew, 

, 282 (8th Cir 2017); United States v. Dace, 

, 1069 (8th Cir. 2016).

       Garrett argues the district court’s “terse and entirely generic statement,”
without announcing an alternative guideline calculation, is insufficient to establish
that its career offender guidelines error was harmless. We disagree. The court
explicitly stated that it “found [Garrett] to be a career offender [but did] not utilize

                                           -10-
th[e] advisory guidelines in that respect.” It acknowledged that Garrett’s “compelling
and interesting arguments . . . brought out many aspects of [Garrett’s] past that [the
court found] relevant for fashioning this sentence.” And it engaged counsel in
extensive discussion regarding the circumstances of the present offense, the
circumstances of Garrett’s prior offenses, and the § 3553 factors. In these
circumstances, any error in determining that Garrett is a career offender was harmless.

      The judgment of the district court is affirmed.
                     ______________________________




                                         -11-