                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0153n.06

                                                    No. 12-3352
                                                                                                           FILED
                                UNITED STATES COURT OF APPEALS                                         Feb 12, 2013
                                     FOR THE SIXTH CIRCUIT                                     DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

v.                                                               ON APPEAL FROM THE UNITED
                                                                 STATES DISTRICT COURT FOR THE
SCOTT A. CONZELMANN,                                             NORTHERN DISTRICT OF OHIO

         Defendant-Appellant.

                                                         /



BEFORE:           CLAY, COOK, and ROTH,* Circuit Judges.

         CLAY, Circuit Judge. Defendant Scott Conzelmann pleaded guilty to distribution of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The district court applied the Career

Offender provision of the Sentencing Guidelines, U.S.S.G. § 4B1.1, and sentenced Defendant to 188

months in prison. Defendant now appeals his sentence, claiming that the government did not present

sufficient evidence that his past convictions constituted drug offenses within the meaning of the

Sentencing Guidelines. For the following reasons, we AFFIRM the judgment of the district court.

                                              BACKGROUND

         On May 5, 2010, law enforcement agents from the Drug Enforcement Agency (“DEA”) and

the Euclid, Ohio Police Department (“EPD”) purchased cocaine from Defendant, as part of a



         *
           The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals for the Third Circuit,
sitting by designation.
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controlled buy. They repeated the transaction again on June 15, 2010. Both purchases were for

$5,300 and involved about 4.5 ounces of cocaine. Defendant was indicted on February 1, 2011, and

arrested within the week. The indictment charged Defendant with two counts of distribution of

cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). The government filed notice on

December 2, 2011, pursuant to 21 U.S.C. § 851, that Defendant was subject to enhanced penalties

if he pleaded guilty to either of the charges in the indictment, because of his previous convictions

for felony drug charges.

       On December 6, 2011, Defendant pleaded guilty to both counts in the indictment without a

written plea agreement. The Probation Office submitted its presentence investigation report ("PSR")

on March 5, 2012. The report recommended that the court apply a criminal history category of VI,

and a final adjusted base level of 31. It also recommended that the court sentence Defendant as a

career offender under U.S.S.G. § 4B1.1. The suggested guidelines range was therefore 188–235

months’ imprisonment. Defendant objected to the application of the career-criminal rule and filed

a sentencing memorandum on March 5, 2012. He claimed that his prior drug convictions did not

support the application of the rule, because they were either part of the same scheme or would not

constitute felonies under federal law.

       The district court found that even if one accepted Defendant’s argument that two of his prior

convictions constituted a common scheme, and should be counted as one conviction for the purposes

of designating him as a career offender, the third conviction could not be considered part of that

scheme, and accordingly, the designation, based on two prior convictions, was proper. On March




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12, 2012, the district court sentenced Defendant to 188 months’ imprisonment, in addition to a term

of supervised release. Defendant now appeals.

                                          DISCUSSION

       As a general rule, this Court reviews a district court’s application of the Sentencing

Guidelines de novo and its findings of fact for clear error. United States v. Hunt, 487 F.3d 347, 350

(6th Cir. 2007). However, “in light of the fact-bound nature of the legal decision” as to the

consolidation of prior convictions, the Supreme Court has instructed courts of appeal to examine the

district court’s decision deferentially for the purposes of reviewing a designation of a defendant as

a career offender. Buford v. United States, 532 U.S. 59, 64–66 (2001). While there has been some

controversy in this circuit as to the breadth of the holding in Buford, this Court has consistently

applied this deferential standard of review to determinations under U.S.S.G. § 4B1.1. See, e.g.,

United States v. Horn, 355 F.3d 610, 612–13 (6th Cir. 2004).

       Under U.S.S.G. § 4B1.1, a defendant may be labeled as a career offender. A defendant

labeled as such is automatically sentenced as having a criminal history category of VI, and may be

given a higher base offense level. See U.S.S.G. § 4B1.1(b). The rule states that:

       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.

Id. at (a). There is no question that Defendant was over eighteen years old when he committed the

crime underlying the conviction here, nor does Defendant suggest that the offense is not a controlled

substance offense. Instead, he argues that the prior offenses do not constitute drug offenses.


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       The Sentencing Guidelines define a “controlled substance offense” as “an offense . . . 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. As Defendant

notes, the Sixth Circuit uses a categorical approach to determining whether a crime constitutes a

controlled substance offense within the meaning of the Sentencing Guidelines. This means that

“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.” United States v.

Galloway, 439 F.3d 320, 322 (6th Cir. 2006); Shepard v. United States, 544 U.S. 13, 19–20 (2005).

       Defendant’s first prior conviction was for trafficking in drugs in violation of Ohio Rev. Code

§ 2925.03, which states that “(A) No person shall knowingly do any of the following: (1) Sell or

offer to sell a controlled substance . . . .” The second conviction1 was for the manufacture of drugs,

in violation of Ohio Rev. Code § 2925.04, which states that “(A) No person shall knowingly

cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of

a controlled substance.” In other words, these two crimes were textbook examples of controlled

substance offenses within the meaning of the Sentencing Guidelines.

       Because the prior offenses are patently and obviously drug offenses, Defendant does not

attempt to argue that these do not constitute drug offenses, but instead argues that the government

did not do enough to prove that they were drug offenses. This argument is unavailing. Defendant


       1
        While Defendant has multiple convictions for controlled substance offenses, several of them
constituted a single scheme or plan, and accordingly, do not count as separate offenses for the
purposes of U.S.S.G. § 4B1.1.

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conceded that he was convicted of all of the prior crimes, and during sentencing, defense counsel

stipulated two prior convictions under Ohio Rev. Code § 2925.04. At sentencing, Defendant

attempted to cite United States v. Jimenez, 605 F.3d 415, 420–21 (6th Cir. 2010), abrogated on other

grounds by Tapia v. United States, --- U.S. ---, 131 S. Ct. 2382 (2011), for the proposition that the

government must produce the actual charging documents or plea agreements or other documentation

to substantiate the prior convictions. But that case holds that when the issue is the fact of the

convictions, not the nature of the those convictions, then that sort of documentation is unnecessary

(though it may be helpful). Id. at 421. In the instant case, Defendant has produced no claim that the

information in the December 2 notice or the PSR was false, and because under the categorical

approach, the nature of the crimes is determined by reference to statute, rather than by the actual

conduct, the other forms of documentation are irrelevant. Accordingly, there is simply no question

of law to address in this instance. The district court was entitled to label Defendant as a career

offender, and there was no reversible error in doing so.

                                         CONCLUSION

       For the foregoing reasons, the judgment of the District Court is AFFIRMED.




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