United States v. Smith, No. 19-3236 (6th Cir. 2020)
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Smith was indicted for knowingly and intentionally distributing a mixture of heroin, fentanyl, and carfentanil, 21 U.S.C. 841(a)(1) and (b)(1)(C). The government filed a notice that Smith was subject to an increased statutory maximum sentence under section 841(b)(1)(C) due to a prior state felony drug-trafficking offense. Pleading guilty, Smith waived his right to appeal the conviction and sentence save for five enumerated circumstances, including the right to appeal the determination that he was a career offender. The PSR indicated that Smith was a career offender based upon one prior state felony drug trafficking conviction and a state felony conviction for five counts of aggravated robbery. Smith argued that the First Step Act rendered his section 841(b)(1)(C) statutory enhancement invalid and that his state convictions were no longer predicate offenses for determining career-offender status. Smith asked to withdraw his guilty plea, citing the First Step Act and his contention that his state aggravated-robbery conviction was not a crime of violence.
The district court rejected Smith’s request to withdraw his plea and imposed a within-Guidelines 150-month sentence. The Sixth Circuit affirmed. Arguments regarding the First Step Act’s application to section 841(b)(1)(C) were not among the five issues Smith preserved for appeal. Employing the categorical approach, Smith’s violation of Ohio Revised Code 2925.03(A)(2) is a controlled substance offense under the Sentencing Guidelines.
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