United States v. Montanez

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0107p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 04-4543
v.
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LUIS A. MONTANEZ, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00138—Kathleen McDonald O’Malley, District Judge.
Argued: March 15, 2006
Decided and Filed: March 23, 2006
Before: MARTIN and CLAY, Circuit Judges, SARGUS, District Judge.*
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COUNSEL
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.
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OPINION
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BOYCE F. MARTIN, JR., 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 (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 (2005), and the government concedes that Montanez is entitled to resentencing under this
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.
1
No. 04-4543 United States v. Montanez Page 2
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. O’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;
No. 04-4543 United States v. Montanez Page 3
(9) Possess a controlled substance in an1 amount equal to or exceeding
one hundred times the bulk amount;
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, 125 S. Ct. 1254, 1259 (2005)); see also United States v. Galloway,
— F.3d — , 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, 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, 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).
1
The remaining sections of the statute states as follows:
(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount;
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a
controlled substance, when the offender knows or has reasonable cause to believe the
controlled substance is intended for sale or resale by the offender or another;
(3) Cultivate, manufacture, or otherwise engage in any part of the production of a controlled
substance;
(4) Possess a controlled substance in an amount equal to or exceeded the bulk amount, but in an
amount less than three times that amount;
(5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk
amount, but in an amount less than three times that amount;
....
(7) Sell or offer to sell 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;
(8) Provide money or other items of value to another person with the purpose that the recipient
of the money or items of value would use them to obtain controlled substances for the
purpose of selling or offering to sell the controlled substances in amounts exceeding a bulk
amount or for the purpose of violating division (A)(3) of this section;
....
(10) Sell or offer to sell a controlled substance in an amount equal to or exceeding one hundred
times the bulk amount . . .
No. 04-4543 United States v. Montanez Page 4
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, 370 N.E.2d 486, 488 (Ohio Ct. App. 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 delivery, which left “little doubt” that the defendant’s conviction was for
a controlled substance offense. Id. at 852-53. Thus, Wright differs from Gibbs in that in Wright,
the Court looked specifically to the elements of section 2925.03(A)(2) and found that the statute
criminalized qualifying and non-qualifying conduct, while the Court in Gibbs looked to section
2925.03 as a whole, without regard to the specific statutory crime at issue.
Then in United States v. Franks, 98 Fed. Appx. 483, 487-88 (6th Cir. 2004), the Court
addressed a defendant’s claim that his sentence was improperly enhanced based on his conviction
under Ohio Revised Code § 2925.11. The Court noted that section 2925.11, titled “Drug Possession
Offenses” reads, “No person shall knowingly obtain, possess, or use a controlled substance.” Ohio
Rev. Code § 2925.11(a) (West 2004). Reading the statute, the Court determined that it “does not
include an element of manufacture, import, export, distribution, or dispensing,” and therefore, the
2
Section (A)(4) criminalizes the knowing “[p]ossess[ion] [of] a controlled substance in an amount equal to or
exceeding the bulk amount, but in an amount less than three times that amount.”
3
The Gibbs panel did not explain the significance of the “personal use” defense. We can only speculate that
the Gibbs panel believed that the presence of the personal use defense indicated sub silentio that there existed an intent
to distribute requirement in the statute.
No. 04-4543 United States v. Montanez Page 5
conviction could not qualify as a controlled substance offense. Franks, 98 Fed. Appx. at 488 (citing
U.S.S.G. § 4B1.2(b)). The Court cited Gibbs for the proposition that section 2925.11 is a simple
possession offense aimed as users and not sellers of drugs. Gibbs, 3 Fed. Appx. at 406.
Later, in United States v. Coteat, 133 Fed. Appx. 177 (6th Cir. 2005), this Court addressed
the same subsection at issue in Gibbs and reached the same conclusion. Citing Gibbs (but ignoring
Wright), the Court emphasized that Ohio prohibits drug possession in section 2925.11 and that a
personal-use defense is available under section 2925.03. Coteat, 133 Fed. Appx. at 179. The Court
rejected the argument that it was improper to look beyond the “express language” in (A)(4),
explaining that “Gibbs employed classic statutory construction principles — consistent with the
categorical approach — to adduce the statute’s meaning, considering both its explicit language, and
implications from the statutory structure to conclude that (A)(4) contemplated trafficking, not simple
possession.” Id.
Finally, we also note that one defendant, previously convicted under Ohio Revised Code
§ 2925.03(A)(4), managed to find his way to California and was convicted there for possession with
intent to distribute cocaine. United States v. Foster, No. 93-50402, 1994 WL 201201 (9th Cir.
May 23, 1994) (unpublished table disposition). Thus, the Ninth Circuit has also weighed in on
whether convictions under Ohio Revised Code § 2925.03(A)(4) qualify as controlled substance
offenses under the Guidelines. The court noted that section 2925.03(A)(4) provided that “No person
shall knowingly . . . [p]ossess a controlled substance in an amount equal to or exceeding the bulk
amount but in an amount far less than three times that amount[.]” Foster, 1994 WL 201201, at *1.
The defendant argued that because the statutory definition did not contain an element of intent to
distribute, his conviction could not qualify as a controlled substance offense under the Guidelines.
The Ninth Circuit held that:
ORC § 2925.03(A)(4) falls short of the federal definition of a controlled substance
offense. It does not require the State to prove an intent to distribute. See USSG
§ 4B1.2(2). In the absence of such proof, Foster’s conviction under ORC
§ 2925.03(A)(4) may not be counted for purposes of career offender sentence
enhancement under USSG § 4B1.1.
Id. (footnote omitted). The Court further rejected the Government’s argument that the Ohio
legislature merely substituted the element of bulk amount for the element of intent to sell; an
argument which was accepted by the Ohio courts in Goodnight, 370 N.E.2d at 493. According to
the Ninth Circuit, however, “[w]hile this wording may suit Ohio’s purposes, it does not comport
with the requirement that, for purposes of federal sentencing law, criminal intent to distribute must
be proven and not merely implied.” Foster, 1994 WL 201201, at *1 n.2.
II.
After reviewing Gibbs, Wright, and Coteat, we believe that Gibbs and Coteat were wrongly
decided, and we find ourselves in agreement with the Ninth Circuit’s unpublished disposition in
Foster and our disposition in Wright. We do so by employing the categorical approach and looking
to the statutory language for the two convictions at issue here — Ohio Revised Code
§ 2925.03(A)(6) and Ohio Revised Code § 2925.03(A)(9). Montanez was convicted under two
statutes that stated: “No person shall knowingly . . . [p]ossess 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,” Ohio Revised Code § 2925.03(A)(6), and also “No person shall knowingly . . . [p]ossess
a controlled substance in an amount equal to or exceeding one hundred times the bulk amount,”
Ohio Revised Code § 2925.03(A)(9). It is abundantly clear from the plain language of the statutes
of conviction that each contains only the element of “possession” and does not contain the element
of “intent to distribute.” Therefore our inquiry under Shepard is at an end. See Foster, 1994 WL
No. 04-4543 United States v. Montanez Page 6
201201, at *1 n.2 (“[F]or purposes of federal sentencing law, criminal intent to distribute must be
proven and not merely implied.”). Because of past conflicting unpublished dispositions, however,
we address the errors contained in those decisions.
In Gibbs, we focused on the title of Ohio’s statutory section, “Drug Trafficking Offenses,”
as well as the fact that Ohio criminalized so-called “simple possession” in another section of its
statutory scheme. Gibbs, 3 Fed. Appx. at 406. We likewise found it persuasive that Ohio courts had
determined that the section was aimed at sellers and not users. Id. How a state titles its statutory
provisions, however, is not determinative of what actual statute a defendant was convicted under for
federal sentencing purposes. Moreover, none of our past dispositions accounted for the fact that the
Ohio legislature has specifically stated that: “Title, Chapter, and section headings and marginal
General Code section numbers do not constitute any part of the law as contained in the ‘Revised
Code.’” Ohio Rev. Code § 1.01. See also Warner v. Zent, 997 F.2d 116, 133 (6th Cir. 1993) (“Such
headings, however, do not constitute any part of Ohio law. Resort to a title in construing a statute
is unnecessary and improper.”). The fact that the statutory section at issue is titled “Drug
Trafficking Offenses” is simply irrelevant and the Gibbs panel erred by concluding otherwise. The
determinative issue, however, is the elements that make up the prior state crime of conviction.
Shepard, 125 S. Ct. at 1259 (noting that “the categorical approach . . . refers to predicate offenses
in terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of crimes”). For federal
sentencing purposes, a sentencing court looks to the elements of the prior offense to determine
whether it qualifies under the Guidelines. See generally id.; Martin, 378 F.3d at 581 (looking to
statutory definition of the crime); United States v. Bass, 315 F.3d 561, 565 (6th Cir. 2002) (“[W]hen
it is not clear from the elements of the offense alone whether the crime [qualified for enhancement
under the Guidelines], the sentencing court may review the indictment for the specific conduct
charged.”) (emphasis added); United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001)
(applying categorical approach in determining whether an offense has as an element “the use,
attempted use, or threatened use of physical force”).4
Additionally, the fact that Ohio punishes other drug possession, without the bulk quantity
requirement, in another section of its statutory scheme does not change the elements of the
underlying offenses under which Montanez was convicted. Conversely, if one or more subsections
of Ohio Revised Code 2925.11 contained an element of possession with intent, the Government
surely would not argue that the defendant’s sentence could not be enhanced because the definition
of the statutory section, “Drug Possession Offenses,” controlled the inquiry. Furthermore, as
discussed above, any reliance on statutory titles in this case is simply unavailing. See Ohio Rev.
Code § 1.01. It is the elements of the crimes that matter.
Gibbs also found it relevant that the Ohio legislature aimed section 2925.03 at sellers, not
users, see Goodnight, 370 N.E.2d at 493, but we do not conduct an inquiry into whom, as a class,
the legislature wished to target, but rather those whose conduct falls within the elements of the
criminalized offense.5 See, eg., Foster, 1994 WL 201201, at *1 n.2 (“While this wording may suit
Ohio’s purposes, it does not comport with the requirement that, for purposes of federal sentencing
law, criminal intent to distribute must be proven and not merely implied.”).
4
We also reject Gibbs’s implied suggestion that the availability of an affirmative defense of personal use
somehow reads an intent to distribute element into the crime. A defendant’s failure to prevail on an affirmative defense
does not suffice to create an additional element of the crime that is neither charged nor proven beyond a reasonable doubt
to the jury.
5
We note that the legislature arguably hit its target with sections (A)(1), (2), (3), (5), (7), (8), and (10). With
regard to sections (A)(4), (6), and (9), however, the legislature criminalized only possession in a bulk amount. Ohio Rev.
Code § 2925.03.
No. 04-4543 United States v. Montanez Page 7
In Coteat, we essentially cited and relied entirely on Gibbs for our conclusion. Coteat, 133
Fed. Appx. at 179 (citing no other cases but Gibbs). Having rejected Gibbs as a proper disposition,
we likewise reject Coteat’s holding and disagree with its conclusion that “implications from the
statutory structure,” id., can trump the clear and explicit elements of the offense. We do believe that
the statutory structure can, at times, be informative; but where the elements of the offense are clear,
we need look no further.
With respect to Wright, we agree that the defendant there was charged with a subsection
where the categorical approach is not determinative. 43 Fed. Appx. at 852-53. The defendant’s
prior conviction in Wright was pursuant to section (A)(2), which stated: “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.” Thus, this precise definition criminalized qualifying and non-
qualifying conduct. The Court appropriately, therefore, looked to the indictment and found that the
defendant was charged with preparing drugs for distribution intended for sale. Id. at 853. By
looking to the indictment when the categorical approach proved equivocal, the Court was able to
determine that the defendant’s conduct — and the elements within section (A)(2) for which he was
convicted under — qualified as a controlled substance offense under the Guidelines.
Perhaps even more relevant and supportive of our conclusion, although none of the prior
decisions mentioned this fact, is that under Ohio Revised Code § 2925.03, sections (A)(6) and (A)(7)
are identical, except that (A)(6) criminalizes the “possess[ion] [of] a controlled substance” in a bulk
amount, and (A)(7) criminalizes “sell[ing] or offer[ing] to sell a controlled substance” in a bulk
amount. The exact same can be said for sections (A)(9) and (A)(10). Thus, had Ohio wished to
convict Montanez of something more than possession it needed only charge him with (A)(7) instead
of (A)(6) and (A)(10) instead of (A)(9). Convictions under either of these alternative provisions,
which criminalize the sale as opposed to simple possession, would likely have qualified under
U.S.S.G. § 4B1.1 as a controlled substance offense. Ohio did not so charge, and for federal
sentencing purposes, we cannot allow 6the United States to rewrite the statutory elements of Ohio
Revised Code § 2925.03(A)(6) and (9). For federal sentencing Guideline purposes, we will simply
not read into an offense an element that is not in the prior statute of conviction, nor admitted to by
the defendant, nor found beyond a reasonable doubt by a jury. Neither of the defendant’s prior
convictions contained an element of intent to distribute that would allow his current sentence to be
enhanced under § 4B1.1.
III.
In conclusion, we hold that convictions under former Ohio Revised Code § 2925.03(6) and
(9) do not qualify as “controlled substance offenses” under U.S.S.G. § 4B1.1. The district court
erred by concluding otherwise. We therefore VACATE Montanez’s sentence and REMAND for
resentencing. On remand, the district court must “impose a sentence sufficient, but not greater than
necessary, to comply with the purposes” of 18 U.S.C. § 3553(a). See also United States v.
Richardson, 437 F.3d 550, 553-54 (6th Cir. 2006) (“We emphasize the obligation of the district
court in each case to communicate clearly its rationale for imposing the specific sentence. Where
a defendant raises a particular argument in seeking a lower sentence, the record must reflect both
that the district judge considered the defendant’s argument and that the judge explained the basis
for [accepting or] rejecting it.”); Foreman, 436 F.3d at 644 n.1 (“It is worth noting that a district
court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose
‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section
6
We also note that, even if the categorical approach were not determinative, and we were required to turn to
the indictment and other permissible documents, the conclusion would be the same. The indictment in each of
Montanez’s convictions charged him only with possessory offenses.
No. 04-4543 United States v. Montanez Page 8
3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court
has accomplished its task.”); United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005)
(reaffirming that “we as an appellate court must still have the articulation of the reasons the district
court reached the sentence ultimately imposed”); United States v. Webb, 403 F.3d 373, 383 (6th Cir.
2005) (“Post-Booker we continue to expect district judges to provide a reasoned explanation for their
sentencing decisions in order to facilitate appellate review.”).