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United States v. Palos

United States District Court, N.D. Ohio, Eastern Division

November 21, 2019

ANTHONY R. PALOS, Defendant.


          Benita Y. Pearson United States District Judge


         Defendant 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


         Defendant raises three objections to the presentence report. For the reasons provided below, these objections are overruled.


         First, 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.

         Havis 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.

         Like Havis, the defendant in the instant case pled guilty to being a felon-in-possession. USSG § 2K2.1 dictates the calculation for that offense.[1] 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.

         Without 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 finds otherwise.

         After 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).

         In 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).

         The 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.[2] 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.

         Defendant 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 ...

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