United States District Court, N.D. Ohio, Eastern Division
Y. Pearson United States District Judge
pled guilty to a single-count indictment charging him with
being a Felon in Possession of a Firearm and/or Ammunition,
in violation of 18 U.S.C. § 922(g)(1). ECF
No. 1. Defendant posed three objections to the advisory
guidelines range suggested in the presentence report. ECF No.
19 at Page ID #: 128, ¶ 57 [Sealed]. Subsequently, both
sides briefed the objections. ECF Nos. 21,
22, 23. The Court heard argument at the sentencing
hearing. Below, the Court further explains why it imposed a
63-month term of incarceration with three years of supervised
release at sentencing
raises three objections to the presentence report. For the
reasons provided below, these objections are overruled.
Defendant objects to his base-level offense of 24. He argues
it should be 20. He concedes that USSG § 2K2.1
is the appropriate guidelines section, but complains that
application of the higher base offense level is contrary to
the Sixth Circuit's recent en banc ruling in United
States v. Havis, 927 F.3d 382 (6th Cir. 2019) because
his 2010 controlled substance offense was an attempt crime.
regards a Tennessee statute and the application of the career
offender guidelines. In its en banc review, the Sixth Circuit
applied the categorical approach and determined the
“least of the acts criminalized by the
elements” of that Tennessee statute was an attempt
crime. Id. at 384-85 (emphasis in original). By
comparison, that court also observed that none of the crimes
detailed in the actual text of USSG § 4B1.2(b)
(which defines controlled substance offenses) are attempt
crimes. Specifically, it acknowledged that attempt crimes are
not mentioned in that guidelines section until Application
Note 1 of the Commentary. See id. at PageID #:
386-87 (discussing USSG § 4B1.2, comment.
(n.1).). Thus, the Sixth Circuit concluded that an
attempt crime is not a “controlled substance
offense.” Id. In response to the
Government's motion for reconsideration of the en banc
ruling, Judge Sutton penned a concurring opinion that
confirmed that enhancement under § 4B1.2(b) is
still appropriate, however, when a defendant has committed a
completed controlled substance offense.
Havis, the defendant in the instant case pled guilty to being
a felon-in-possession. USSG § 2K2.1 dictates
the calculation for that offense. Subsection §
2K2.1(a)(2) prescribes a base offense level of 24 when
the defendant has committed the instant offense after
sustaining two felony convictions of either a crime of
violence or a controlled substance offense. Of his two
qualifying priors, Defendant focuses on one: a 2010
conviction for trafficking in cocaine (F4) in violation of
Ohio Revised Code § 2925.03(A)(1). ECF No.
21 at PageID #: 144. Defendant avers that while he pled
guilty to O.R.C. § 2925.03(A)(1), which
criminalizes the “[s]ell or offer to sell a controlled
substance, ” the “offer to sell” language
is indicia of an attempt crime. Therefore, his 2010
conviction for trafficking in cocaine is not a
“controlled substance offense” under USSG
§4B1.2(b) and, per Havis, cannot justify
an enhancement of his base offense level. ECF No. 21 at
PageID #: 148.
question, the Havis Court found that an attempt
offense does not constitute a “controlled substance
offense” pursuant to Section 4B1.2(b). Id. at
384. Moreover, the Sixth Circuit declared that the
Sentencing Commission's addition of “attempt
crimes” through of the Guidelines' Commentary
“deserves no deference” because attempted
offenses are not included in the Guidelines' actual text.
Id. at 386-87. Against this backdrop, Defendant asks
the Court to find that, in light of Havis, Ohio
Revised Code § 2925.03(A)(1) encompasses an
“attempt” to sell and therefore cannot be deemed
a “controlled substance offense” under §
4B1.2(b). ECF No. 21 at PageID #: 21. The Court
review of the established record and applicable law, the
Court finds that conviction under Ohio's §
2925.03(A)(1) is distinct from the Tennessee criminal
statute at issue in Havis. The distinction between
the two statutes turns on “statutory definitions and a
technical, but important, difference between completed
offenses and attempted offenses.” United States v.
Havis, 929 F.3d 317 (6th Cir. 2019) (denying en banc
reconsideration) (Sutton, J., concurring).
Judge Sutton's concurring opinion, he clarified that
Havis invalidated only incomplete, or
attempt offenses, which depend on the legal, term-of-art
definition of attempt liability for the commission of a
crime. Id. at 319. He made clear that
Havis, however, does not reach completed offenses.
“When a person commits (and is convicted of) a
completed crime under state or federal law that fits
within the guidelines' definition of a controlled
substance offense, he faces a higher base offense
level.” Id. (emphasis added).
Tennessee statute at issue in Havis, explicitly
prohibited a person from knowingly delivering a controlled
substance with “delivery” defined by related
statute as “the actual, constructive, or
attempted transfer from one person to another of a
controlled substance.” Havis, 927 F.3d at 384
(emphasis in original). Ohio Revised Code §
2925.03(A)(1), on the other hand, provides that no
person should knowingly “sell or offer to sell” a
controlled substance or a controlled substance analog.”
Attempt is not mentioned. Importantly, Ohio has a freestanding
statute, Ohio Revised Code § 2923.02, that
addresses attempt crimes. That parallel to 21 U.S.C.
§ 846 makes obvious that the State of Ohio knows
how to distinguish attempt crimes from completed crimes and
Defendant was not charged with an attempt offense.
also relies on United States v. Evans,699 F.3d 858
(6th Cir. 2012) to assert that § 2925.03(A)(1)
encompasses an “attempt” offense. Defendant's
reliance on Evans is unavailing. In recent Sixth
Circuit decisions, the Sixth Circuit has vacated
defendants' sentences and ordered remand for
re-sentencing “in light of Havis.”
See e.g. United States v. Powell,781 Fed.Appx. 487
(6th Cir. July 22, 2019); United States v. Garrett,722 Fed.Appx. 311 (6th Cir. June 11, 2019); United States
v. Solomon, Case No. 18-3058, Document 48 (6th Cir. Nov.
4, 2019). With the Sixth Circuit having “abrogat[ed]
Evans” it is apparent that Evans has
been called into doubt and is no longer controlling ...