Sixth Circuit Holds that Ohio Felony Drug Trafficking is a "Controlled Substance Offense."

Like every other circuit, the Sixth Circuit has produced a lengthy scroll of published cases dealing with predicate offenses under the First Step Act and the Guidelines' career offender provision. The Court's opinion in United States v. Smith continues that trend. 

Smith pleaded guilty before the district court to distributing a controlled substance in violation  of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Due to his prior felony drug trafficking conviction under Ohio law, Smith faced an increased statutory maximum under § 841(b)(1)(C). Finding that Smith was subject to both the increased statutory maximum and an enhanced sentence under the Guidelines as a career offender, the Court sentenced him 150 months imprisonment.

On appeal, Smith argued that his prior felony drug trafficking conviction was not a "serious drug felony" under § 841, as amended by the First Step Act. Additionally, he argued the same conviction was not a predicate offense under the Guidelines' career offender provision. 

Before Smith could go any further, however, he had to clear that common bugaboo for all criminal appellate attorneys: an appellate waiver contained in his plea agreement. Unfortunately for Smith, the Court held his waiver was valid and that his claims on appeal fell within it.

Although the Court could have stopped with Smith's appellate waiver, it went further to address his First Step Act and career offender arguments. First, it held that the issue was not whether Smith's Ohio drug trafficking conviction was a "serious drug felony" but rather whether it was a "controlled substance" offense, since the First Step Act did not modify 841(b)(1)(C) -- the section at issue in that case.

Turning its attention to whether Smith's Ohio drug trafficking conviction under ORC § 2925.03(A)(2) met the definition of a "controlled substance offense" under the Guidelines, the Court first determined it was not divisible since it listed alternative means of committing the same offense. Using the categorical approach, the Court then concluded ORC § 2925.03(A)(2) was categorically a "controlled substance offense" under the Guidelines. Each of the statute's three elements, the Court concluded, fell within the categorical definition. The Court thus affirmed Smith's sentence.