                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0581n.06

                                           No. 17-3230

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Oct 17, 2017
UNITED STATES OF AMERICA,                               )                    DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE SOUTHERN DISTRICT OF
EULIS ELLSWORTH ALLEN,                                  )   OHIO
                                                        )
       Defendant-Appellant.                             )
                                                        )
                                                        )


       BEFORE: COLE, Chief Judge; ROGERS and GRIFFIN, Circuit Judges.

       PER CURIAM. Eulis Ellsworth Allen appeals his enhanced sentence as a career offender

under the sentencing guidelines. As set forth below, we affirm Allen’s sentence.

       Allen pleaded guilty to conspiracy to possess with intent to distribute 100 grams or more

of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i) and 846. The presentence report

classified Allen as a career offender based on his prior felony convictions for controlled

substance offenses: (1) his 1996 Ohio convictions for aggravated trafficking and (2) his 2006

federal conviction for distributing five grams or more of cocaine base. Application of the career-

offender enhancement increased Allen’s adjusted offense level from 26 to 37 and his criminal

history category from III to VI. After a three-level reduction for acceptance of responsibility, the

resulting guidelines range was 262 to 327 months of imprisonment. Allen objected to the career-

offender enhancement, arguing that his Ohio convictions for aggravated trafficking do not

qualify as controlled substance offenses. The district court overruled Allen’s objection and
No. 17-3230
United States v. Allen

applied the career-offender enhancement. The district court granted the government’s motion for

a four-level downward departure, resulting in a guidelines range of 168 to 210 months. After

considering the sentencing factors under 18 U.S.C. § 3553(a), the district court sentenced Allen

to 168 months of imprisonment followed by five years of supervised release.

       In this timely appeal, Allen contends that the district court erred in finding that his 1996

Ohio convictions for aggravated trafficking constitute controlled substance offenses and that the

district court’s erroneous application of the career-offender enhancement resulted in a

procedurally unreasonable sentence. We review de novo the district court’s legal determination

that Allen’s prior convictions qualify as controlled substance offenses for career-offender

purposes. United States v. Evans, 699 F.3d 858, 862 (6th Cir. 2012). “When conducting this de

novo review, this court applies a ‘categorical’ approach, ‘looking to the statutory definition of the

offense and not the particular facts underlying the conviction.’” Id. (quoting United States v.

McMurray, 653 F.3d 367, 372 (6th Cir. 2011)).

       A defendant qualifies as a career offender if, among other requirements, the defendant

has at least two prior felony convictions for a controlled substance offense. USSG § 4B1.1(a).

The sentencing guidelines define “controlled substance offense” 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) with intent to manufacture,
       import, export, distribute, or dispense.

USSG § 4B1.2(b). A controlled substance offense includes attempting to commit such an

offense. USSG § 4B1.2, comment. (n.1).

       Pursuant to Ohio Revised Code § 2925.03(A)(1), the statute under which Allen was

convicted, “[n]o person shall knowingly . . . [s]ell or offer to sell a controlled substance.” Allen


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United States v. Allen

contends that, at the time of his convictions, Ohio appellate courts had upheld trafficking

convictions based on factual scenarios involving a fraudulent “offer to sell” drugs—an offer

made for the purpose of taking the buyer’s money and not providing drugs in return—thereby

“criminaliz[ing] a broader swath of conduct” than the definition of controlled substance offense

under the sentencing guidelines. Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). This

court rejected Allen’s argument in United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012),

relying on the Supreme Court of Ohio’s decision in State v. Cabrales, 886 N.E.2d 181 (2008). In

Cabrales, the Supreme Court of Ohio clarified that Ohio Revised Code § 2925.03(A)(1) requires

an intent to sell a controlled substance. Cabrales, 886 N.E.2d at 188. Because Ohio Revised

Code § 2925.03(A)(1), “as interpreted by the Supreme Court of Ohio, does not encompass

fraudulent offers to sell,” this court held that a conviction “for an offer to sell is properly

considered an attempt to transfer a controlled substance, which is a ‘controlled substance

offense’ under the Guidelines.” Evans, 699 F.3d at 867. Accordingly, this court concluded that

a conviction under Ohio Revised Code § 2925.03(A)(1) categorically qualifies as a controlled

substance offense under USSG § 4B1.2(b). Id. at 868. We are bound by that holding. See

United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015) (“[A] later panel of the court cannot

overrule the published decision of a prior panel . . . in the absence of en banc review or an

intervening opinion on point by the Supreme Court.”).

       Allen’s arguments that Evans is not binding are unavailing.        Allen argues that his

aggravated trafficking convictions predated the Cabrales decision. The trafficking conviction at

issue in Evans also predated the Cabrales decision. Evans, 699 F.3d at 861. Allen asserts that

the defendant in Evans apparently did not raise this temporal argument; regardless, the issue was

“a necessary precursor to the panel’s decision” that the defendant’s 2004 trafficking conviction


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United States v. Allen

categorically qualified as a controlled substance offense. United States v. Wynn, 579 F.3d 567,

577 (6th Cir. 2009). Allen further contends that the Ohio appellate courts had consistently

upheld trafficking convictions for fraudulent “offers to sell” up until the Cabrales decision and

that courts assessing a prior state conviction must “consult the law that applied at the time of that

conviction.” McNeill v. United States, 563 U.S. 816, 820 (2011). Where, as here, the statutory

language did not change, the Supreme Court of Ohio’s interpretation of Ohio Revised Code

§ 2925.03(A)(1) “is an authoritative statement of what the statute meant before as well as after

the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc.,

511 U.S. 298, 312-13 (1994).       Although “federal courts should look to intermediate state

appellate court decisions in determining what is the least conduct criminalized under a state’s

statute . . . , when the state supreme court has defined what this conduct is, the buck stops there.”

United States v. Southers, 866 F.3d 364, 369 (6th Cir. 2017).

       Because Allen’s aggravated trafficking convictions under Ohio Revised Code

§ 2925.03(A)(1) categorically qualify as controlled substance offenses, the district court properly

applied the career-offender enhancement. Accordingly, we AFFIRM Allen’s sentence.




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