United States v. Baker ( 2023 )

Appellate Case: 23-3105 Document: 010110962489 Date Filed: 12/04/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2023
_______________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3105
(D.C. No. 6:12-CR-10076-JWB-1)
DEXTER DEWAYNE BAKER, (D. Kan.)
Defendant - Appellant.
_______________________________________
ORDER AND JUDGMENT *
_______________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
_______________________________________
This appeal involves a motion to reduce a sentence. The district court
denied the motion, and the defendant (Mr. Dexter Baker) appeals.
The appeal grows out a conviction to possess cocaine base with
intent to distribute. For this conviction, the district court imposed a
sentence of 200 months’ imprisonment.
*
Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 23-3105 Document: 010110962489 Date Filed: 12/04/2023 Page: 2
Mr. Baker sought a sentence reduction, arguing that
 if he were sentenced today, the Department of Justice would
have charged him differently and the different charges would
have led to a lower guideline range and
 a sentence reduction was appropriate based on his rehabilitative
efforts while in prison.
Mr. Baker argues on appeal that the district court failed to address these
arguments. We disagree.
First, Mr. Baker argues that the district court failed to address his
reliance on the Department of Justice’s current charging practices.
According to Mr. Baker, the court conflated this argument about charging
practices with a separate argument about proposed legislation.
The court didn’t conflate the two arguments. The court rejected
Mr. Baker’s argument involving the proposed legislation on the ground that
the legislation hadn’t been enacted yet. R., Doc. 105-1, at 6–7. But the
court recognized that Mr. Baker was separately relying on the Department
of Justice’s policies:
Defendant’s argument is similarly speculative that an offender
committing a similar offense today would be charged differently
and would face a lower guideline range because of current
DOJ/United States Attorney policies. The court cannot speculate
about how Defendant might have otherwise been charged, but it
is clear from the record that the sentencing judge believed, based
on Defendant’s record, that a sentence higher than that called for
by the guidelines was warranted.
Id. at 7.
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Appellate Case: 23-3105 Document: 010110962489 Date Filed: 12/04/2023 Page: 3
Mr. Baker also complains that the district court ignored his evidence.
That evidence involved a statement by the government that it wouldn’t
object to a codefendant’s downward variance given the inequity in the
guidelines for offenses involving powder cocaine and cocaine base. United
States v. Banks, No. 13-40060-DDC-1, Sent. Tr. at 32 (D. Kan. Nov. 30,
2021) (Doc. 1544). 1 But the district court had no need to separately address
this evidence. The court presumably recognized, as we do, that the
Department of Justice has sometimes supported sentence reductions based
on the disparity between guideline ranges for crimes involving powder
cocaine and cocaine base. But the court reasoned that it didn’t know
whether the Department of Justice’s current charging practices would have
lowered Mr. Baker’s guideline range. And Mr. Baker doesn’t challenge this
reasoning.
Second, Mr. Baker argues that the district court overlooked his claim
involving rehabilitative efforts while in prison. But the court did address
this claim. The court acknowledged that Mr. Baker’s “submissions indicate
. . . commendable efforts to engage in programs designed to promote
rehabilitation.” Id. at 9. But the court concluded that these rehabilitative
1
Mr. Baker cites a brief by defendant Thompson, which had in turn
cited the sentencing transcript for defendant Banks. United States v.
Thompson, No. 13-40060-DDC-10, Supp. to Mot. to Reduce Sent. Under 18
U.S.C. § 3582(c)(1)(A) at 7 n.17 (D. Kan. Feb. 14, 2022) (Doc. 1554).
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Appellate Case: 23-3105 Document: 010110962489 Date Filed: 12/04/2023 Page: 4
efforts didn’t outweigh Mr. Baker’s criminal history, including theft, two
convictions for resisting arrest, aggravated battery, multiple driving
offenses, speeding, hit and run, multiple drug offenses, and two forgery
offenses. Id. at 9.
Because the district court addressed these issues and Mr. Baker
doesn’t challenge the court’s reasoning, we affirm the denial of a sentence
reduction. 2
Entered for the Court
Robert E. Bacharach
Circuit Judge
2
Mr. Baker also seeks leave to proceed in forma pauperis. We grant
leave because Mr. Baker cannot afford to prepay the filing fee.
4