United States v. Alston, No. 19-3884 (6th Cir. 2020)
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Alston received a sentencing enhancement under U.S.S.G. 4B1.1 for his prior convictions under Ohio Revised Code 2925.03(A)(1), which criminalizes offers to sell drugs. Alston’s initial Guidelines range was 188-235 months. The parties jointly requested a two-level variance that would reduce his range to 151-188 months. The district court sentenced Alston to 169 months’ imprisonment.
The Sixth Circuit reversed and remanded the sentence. Since 2019, the Sixth Circuit has held that attempt crimes such as offers to sell do not qualify for the 4B1.1 career-offender enhancement. The district court appears to have applied the career-offender enhancement to Alston based on his prior drug-trafficking convictions under Ohio law prohibiting persons from “[s]ell[ing] or offer[ing] to sell a controlled substance or a controlled substance analog.” Statutes that criminalize offers to sell controlled substances are too broad to categorically qualify as predicate controlled substance offenses under 4B1.2.
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RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0316p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, > v. PIERRE C. ALSTON, Defendant-Appellant. No. 19-3884 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00751-1—Sara E. Lioi, District Judge. Decided and Filed: September 28, 2020 Before: BATCHELDER, MOORE, and ROGERS, Circuit Judges. _________________ COUNSEL ON BRIEF: Clare E. Freeman, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Rebecca C. Lutzko, Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. _________________ OPINION _________________ KAREN NELSON MOORE, Circuit Judge. Pierre Alston received a sentencing enhancement under U.S.S.G. § 4B1.1 for his prior convictions under Ohio Revised Code § 2925.03(A)(1), which criminalizes offers to sell drugs. Since United States v. Havis, 927 F.3d 382 (en banc), rehearing denied, 929 F.3d 317 (6th Cir. 2019), we have held that attempt crimes such as offers to sell do not qualify for the § 4B1.1 career-offender enhancement, United States No. 19-3884 United States v. Alston v. Cavazos, 950 F.3d 329 (6th Cir. 2020). Page 2 While conceding that Cavazos forecloses the enhancement here, the Government argues that our Havis jurisprudence—Cavazos in particular—is wrong. We accept the Government’s concession, and we consider its arguments preserved for a potential petition for en banc rehearing.1 Alston was indicted for six counts of controlled-substance offenses. R. 12 (Superseding Indictment) (Page ID #35). On April 18, 2019, Alston pleaded guilty to the first five counts. R. 44 (Plea Hr’g Tr. at 4) (Page ID #287). At sentencing, the district court calculated Alston’s base offense level to be 16. R. 32 (Sent’g Hr’g Tr. at 8) (Page ID #195). With the § 4B1.1 careeroffender enhancement, which Alston did not challenge, Alston’s offense level became 34. Id. Alston received a two-level reduction for acceptance of responsibility and then an additional one-level reduction for acceptance of responsibility upon a motion from the Government, so that Alston’s total offense level was 31. Id. His criminal history was Category VI. Id. at 9 (Page ID #196). Altogether, Alston’s initial Guidelines range was 188 to 235 months. Id. However, the parties jointly requested a two-level variance that would reduce his range to 151 to 188 months, and the district court agreed. Id. at 9, 26 (Page ID #196, 213). The district court ultimately sentenced Alston to 169 months’ imprisonment. Id. at 27 (Page ID #214); R. 27 (Judgment at 2) (Page ID #173). Alston timely appealed. Under-plain error review, Alston’s prior drug offenses do not qualify as predicate offenses for the § 4B1.1 career-offender enhancement, a point which the Government concedes.2 To qualify for the § 4B1.1 career-offender enhancement, a defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” § 4B1.1(a). “Controlled substance offense” is defined in § 4B1.2 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) 1Neither Alston nor the Government makes any argument regarding application of the categorical or modified categorical approaches. 2Alston was sentenced after our decision in Havis, but no mention was made of Havis at sentencing. Cavazos was decided after Alston was sentenced and while this appeal was pending. No. 19-3884 United States v. Alston Page 3 with intent to manufacture, import, export, distribute, or dispense.” § 4B1.2(b). The district court appears to have applied the career-offender enhancement to Alston based on his prior drugtrafficking convictions under Ohio Revised Code § 2925.03(A)(1).3 Section 2925.03(A)(1) prohibits persons from “[s]ell[ing] or offer[ing] to sell a controlled substance or a controlled substance analog.” We recently held in Cavazos that “statutes that criminalize offers to sell controlled substances are too broad to categorically qualify as predicate ‘controlled substance offenses’” under § 4B1.2. Cavazos, 950 F.3d at 337. Therefore, Alston’s convictions under § 2925.03(A)(1) do not qualify for the career-offender enhancement. In light of Havis and Cavazos, we REVERSE the district court’s sentence of Alston to 169 months’ imprisonment and REMAND for resentencing.4 3Although the Presentence Report notes that Alston has multiple qualifying career offender offenses, Alston contends that the “prior drug convictions were the crux of the supposed career-offender status” because the other violent offenses cannot count as two separate offenses. (Br. for Def.-Appellant Pierre Alston at 7 (citing U.S.S.G. § 4A1.2(a)(2))). While this may be true—and the government appears to concede as much (Br. of Pl.Appellee at 4)—we do not address whether or not the district court may find alternative grounds for a careeroffender enhancement. 4As sentence. a result, we need not address Alston’s arguments challenging the substantive reasonableness of his
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