U.S. v. Montanez

• Decision Date: 23 March 2006
• Docket Number: No. 04-4543.,04-4543.
• Citation: 442 F.3d 485
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis A. MONTANEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

442 F.3d 485

UNITED STATES of America, Plaintiff-Appellee, v. Luis A. MONTANEZ, Defendant-Appellant.

No. 04-4543.

United States Court of Appeals, Sixth Circuit.

Argued: March 15, 2006.

Decided and Filed: March 23, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Philip J. Korey, Cleveland, Ohio, for Appellant. Lori A. Hendrickson, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

ON BRIEF:

Philip J. Korey, Cleveland, Ohio, for Appellant. Lori A. Hendrickson, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MARTIN and CLAY, Circuit Judges, SARGUS, District Judge.^*

MARTIN, Circuit Judge.

The defendant, Luis Montanez, was charged in a one-count indictment for possession of an unspecified amount of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a). Montanez pled guilty and was sentenced to 130 months imprisonment, the minimum sentence under the Federal Sentencing Guidelines, based on the district court's conclusion that Montanez qualified as a career offender. See U.S.S.G. § 4B1.1. Montanez objected to the Guideline sentence based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court denied the objection, but stated that if the Guidelines were not mandatory, it would sentence Montanez to 60 months instead of the 130 months mandated by the Guidelines. On appeal, Montanez argues that he is entitled to be resentenced based upon United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the government concedes that Montanez is entitled to resentencing under this Court's decision in United States v. Barnett, 398 F.3d 516, 526 (6th Cir.2005). Montanez also argues that his predicate convictions in Ohio state court do not qualify as "controlled substance offense[s]" under section 4B1.1, and therefore he is not a career offender under the now-advisory Guidelines. In support of his claim, Montanez cites to allegedly conflicting unpublished dispositions from this Circuit on whether convictions under former Ohio Revised Code § 2925.03 qualify as controlled substance offenses, and therefore enhancing predicate offenses, under the Guidelines. We use the categorical approach and hold that Montanez's convictions under Ohio Revised Code § 2925.03(6) and (9) do not qualify as "controlled substance offense[s]" under section 4B1.1. We therefore VACATE Montanez's sentence and REMAND for resentencing.

I.

The question before us is whether Montanez's two drug-related convictions under former Ohio Revised Code § 2925.03(A)(6) and (9) constitute predicate offenses for career offender status. Citing this Court's unpublished disposition in Gibbs v. United States, 3 Fed.Appx. 404 (2001), the district court determined that both of Montanez's state court convictions qualified as predicate controlled substance offenses. We review legal conclusions regarding the application of Guideline provisions de novo. United States v. Foreman, 436 F.3d 638, 640 (6th Cir.2006) (citing United States v. Gregory, 315 F.3d 637, 642 (6th Cir.2003)).

Starting at the beginning, section 4B1.1 of the Guidelines states:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The term "controlled substance offense" is defined by the Guidelines as:

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). Thus, under the Guidelines, simple possession—that is, possession without the proof beyond a reasonable doubt of the requisite intent to "manufacture, import, export, distribute, or dispense"—is not a controlled substance offense. See United States v. Hernandez, 218 F.3d 272, 278 (3d Cir.2000); United States v. Neal, 27 F.3d 90, 92 (4th Cir. 1994); United States v. Casarez-Bravo, 181 F.3d 1074, 1077-78 (9th Cir.1999); United States v. Kissick, 69 F.3d 1048, 1053-54 (10th Cir.1995) (collecting cases); United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir.1992).

Former Ohio Revised Code § 2925.03, titled "Drug Trafficking Offenses" provided, with respect to subsection (6) and (9), at the time of Montanez's convictions that:

(A) no person shall knowingly do any of the following:

(6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount;

(9) Possess a controlled substance in an amount equal to or exceeding one hundred times the bulk amount;¹ Thus, Montanez argues that because his offenses involve only the knowing possession of drugs, and do not have, as an element of the crime, proof of "intent to manufacture, import, export, distribute, or dispense," U.S.S.G. § 4B1.1, then his convictions cannot qualify as controlled substance offenses under the Guidelines.

A.

In addressing Montanez's claim, we take a categorical approach. Foreman, 436 F.3d at 641 (citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1259, 161 L.Ed.2d 205 (2005)); see also United States v. Galloway, ___ F.3d ___, 439 F.3d 320, 2006 WL 453003, at *2 (6th Cir. Feb.27, 2006) (citing United States v. Martin, 378 F.3d 578, 581 (6th Cir.2004)); United States v. Butler, 207 F.3d 839, 842-43 (6th Cir.2000); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) ("The prior convictions requirement of the Guidelines' career offender provision is to be interpreted strictly."). Under the categorical approach, "it is not only impermissible, but pointless, for the court to look through to the defendant's actual criminal conduct." Butler, 207 F.3d at 843. This approach "avoids the subsequent evidentiary enquiries into the factual basis for the earlier conviction." Shepard, 125 S.Ct. at 1259. "Generally speaking, only the fact of the prior conviction and the statutory definition of the predicate offense are used to determine whether a prior conviction is a controlled substance offense." Galloway, 439 F.3d 320, 2006 WL 453003, at *2 (citations omitted). If, however, the categorical approach fails to be determinative, a sentencing court may look to the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented," Shepard, 125 S.Ct. at 1257, in order to determine whether the prior crime qualifies as a controlled substance offense. See also Galloway, 439 F.3d 320, 2006 WL 453003, at *3 (noting that although Shepard applied to review under the Armed Career Criminal Act, it "[b]y extension" applies to review under Guideline section 4B1.1).

B.

As Montanez points out, there are conflicting unpublished dispositions on this issue in our Circuit, as well as one case from the Ninth Circuit. We address each case in turn.

In Gibbs, upon which the Government relies, this Court addressed whether a conviction under former Ohio Revised Code § 2925.03(A)(4)² was properly classified as a controlled substance offense under Guideline section 4B1.1. Based on the language of section (A)(4), the defendant argued that he was convicted only of "simple possession" and that his conviction could not therefore qualify as a controlled substance offense under the Guidelines. In rejecting the defendant's argument, this Court noted that simple possession constitutes a violation of Ohio Revised Code § 2925.11, which is titled "Drug Possession Offenses." Gibbs, 3 Fed.Appx. at 406. The defendant in Gibbs, like Montanez here, was convicted, not under section 2925.11, but rather under section 2925.03, which is titled "Drug Trafficking Offenses." Id. This Court also noted that the Ohio courts have concluded that section 2925.03 "relates to illicit drug trafficking, while § 2925.11 is aimed at users and not at sellers." Id. (citing State v. Goodnight, 52 Ohio App.2d 333, 370 N.E.2d 486, 488 (1977)). Finally, this Court noted that a defendant charged under section 2925.03 has a valid affirmative defense of "personal use," and if proven, the defendant cannot be convicted under section 2925.03. Id.³

A year later, a different panel of this Court addressed the claim in a slightly different manner under the categorical approach in another unpublished disposition. See United States v. Wright, 43 Fed.Appx. 848 (6th Cir.2002). In Wright, the defendant had a prior conviction for a violation of Ohio Revised Code § 2925.03(2) (1989), which stated: "(A) No person shall knowingly... [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe such drug is intended for sale or resale by the offender or another." This Court took the categorical approach and noted that "[r]esort to the statute under which the defendant was convicted will not resolve the question of whether the conviction should be counted under U.S.S.G. § 4B1.1 where the statute punishes conduct that is both qualifying and non-qualifying." Wright, 43 Fed.Appx. at 852 (citing United States v. Arnold, 58 F.3d 1117, 1122 (6th Cir.1995)). Reviewing section 2925.03(A)(2), the Court concluded that the statute punished qualifying and non-qualifying conduct, and therefore, the categorical approach did not provide a determinative answer. Id. The Court quickly turned to the indictment, and there found that the defendant was specifically charged with knowingly preparing for shipment, transport, or...