Havis Strikes Again: Ohio Convictions for Offering to Sell Drugs are not Career Offender Predicates

 

The District Court enhanced Pierre Alston's sentence as a career offender pursuant to USSG § 4B1.1 based on his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. It did so, however, without addressing whether such convictions qualified as predicate offenses after United States v. Havis and United States v. Cavazos.

Although the parties did not discuss Havis during sentencing, the Government conceded that, under Havis and Cavazos, the Ohio convictions did not qualify as predicate offenses. In a brief published opinion, the Sixth Circuit agreed and remanded Mr. Alston's case for a resentencing.

Perhaps more interesting than the Court's brief analysis was its note that, while the Government conceded Cavazos prevented the enhancement, it argued Havis and Cavazos were wrongly decided and that the  Government had preserved the issue for en banc review. If anything, this statement signifies the Government's continuing efforts to have the Court chip away at Havis.