                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0417n.06

                                       Case No. 19-3632

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                 Jul 20, 2020
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA                             )
                                                     )
       Plaintiff-Appellee,
                                                     )        ON APPEAL FROM THE
                                                     )        UNITED STATES DISTRICT
v.
                                                     )        COURT FOR THE NORTHERN
                                                     )        DISTRICT OF OHIO
ZIAIRE DUFFY,
                                                     )
       Defendant-Appellant.                          )                  OPINION
                                                     )


BEFORE: MOORE, CLAY, and MURPHY, Circuit Judges.

       CLAY, Circuit Judge. In 2019, Defendant Ziaire Duffy pleaded guilty to seven drug

distribution charges, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and one count of being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He was

subsequently sentenced to 270 months’ imprisonment. Duffy now appeals his sentence, contending

that the district court wrongly classified him as a career offender and miscalculated his offense

level under the sentencing guidelines. Because the district court made neither of the alleged

sentencing errors, we AFFIRM the judgment.


                                       BACKGROUND

       In September 2018, Ziaire Duffy was indicted in federal court for several drug offenses.

He was charged with possession with intent to distribute cocaine, heroin, fentanyl, and fentanyl
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analogue, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)–(C), and 18 U.S.C. § 2. He was also

charged with being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).

       In February 2019, Duffy pleaded guilty to all counts without a plea agreement. Based upon

the pre-sentence report (PSR), the district court found that Duffy was a career offender. Duffy’s

counsel did not object to this finding. The district court also found that Duffy had a criminal history

category of VI. The court calculated his base offense level to be 37 and his final offense level to

be 34, after a three point reduction for acceptance of responsibility, which yielded a guidelines

range of 262 to 327 months’ imprisonment. It then imposed a sentence of 270 months’

imprisonment. This timely appeal followed.


                                           DISCUSSION

      I.      Career Offender Classification

           Section 4B1.1(a) of the United States Sentencing Guidelines provides that a defendant is

a career offender if: (1) he was at least eighteen years old when he 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 for

either a crime of violence or a controlled substance offense. Duffy claims that the district court

erroneously counted two of his prior Ohio convictions for trafficking cocaine as predicate

controlled substance offenses and therefore he is not a career offender.

       When properly preserved, the issue of “[w]hether a prior conviction counts as a predicate

offense under the Guidelines is a question of law subject to de novo review.” United States v.

Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam). In this case, Duffy’s counsel did

not object to Duffy’s career offender classification at sentencing. Nevertheless, Duffy’s claim was

properly preserved for two reasons. First, the district court failed to meet its obligation under

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United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004), to ask defense counsel whether there

were any objections to Duffy’s sentence. Instead, the district court expressly asked only the

government for objections. See United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006) (holding

that “[a] district court can satisfy the requirements of the Bostic rule only by clearly asking for

objections to the sentence that have not been previously raised”). Second, Duffy himself objected

to his career offender classification at sentencing. He argued that under Havis one of his

convictions was not a predicate offense. The court replied that it “will overrule the objection” and

told Duffy “[y]ou can appeal it if you wish.” R. 34, Sent. Hr’g Tr., PageID # 218–19. Thus, we

will review this claim de novo.

       When determining whether a state offense qualifies as a controlled substance offense, we

apply the categorical approach and compare the elements of the state offense to the elements of a

controlled substance offense as defined in the guidelines. See, e.g., United States v. Woodruff, 735

F.3d 445, 449–50 (6th Cir. 2013). If the elements of the state offense are encompassed by the

guidelines definition, then the state offense is a valid predicate offense that we may consider in

determining whether a defendant should be classified as a career offender. See id. (comparing the

elements of Tennessee facilitation to the guidelines definition of controlled substance offenses and

finding facilitation not to be a predicate offense).

       Pursuant to the guidelines, a “[c]ontrolled substance offense” includes any federal or state

felony offense that prohibits the manufacture, import, export, distribution, or dispensing of a

controlled substance, or possession with intent to manufacture, import, export, distribute or

dispense a controlled substance. U.S.S.G. § 4B1.2(b). An application note to this provision

clarifies that “‘controlled substance offense’ include[s] the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses.” Id. at cmt. n.1.



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       According to the PSR, Duffy was convicted of cocaine trafficking in Ohio court in 2013

and 2014. The PSR does not, however, cite which Ohio laws Duffy violated. Regardless, the parties

agree that he was convicted under Ohio Rev. Code § 2925.03(A). Duffy’s state court indictments

and guilty pleas confirm this. That state statute provides that no individual shall knowingly:

               (1) Sell or offer to sell a controlled substance or a controlled
               substance analog;

               (2) Prepare for shipment, ship, transport, deliver, prepare for
               distribution, or distribute a controlled substance or a controlled
               substance analog, when the offender knows or has reasonable cause
               to believe that the controlled substance or a controlled substance
               analog is intended for sale or resale by the offender or another
               person.

Ohio Rev. Code § 2925.03(A).

       Duffy claims that his Ohio convictions are not predicate offenses because of this Court’s

recent decision in United States v. Havis. In that case, we observed that only an application note

to § 4B1.2, rather than the text of the guidelines itself, indicates that attempt crimes are

encompassed by the provision. 927 F.3d at 386. And application notes bind this Court only to the

extent they are consistent with the text of the related guideline. Id. We thus concluded that attempt

crimes do not qualify as controlled substance offenses because “[t]he text of § 4B1.2(b) controls,

and it makes clear that attempt crimes do not qualify as controlled substance offenses.” Id. at 387.

       Applying Havis to this case, Duffy says, requires us to reject his Ohio convictions as

predicate offenses. This is because Ohio Rev. Code § 2925.03(A)(1) encompasses attempt offenses

(i.e., an “offer to sell a controlled substance”), and under the categorical approach we are to look

at “‘the least of th[e] acts’ criminalized” by the statute at issue. Moncrieffe v. Holder, 569 U.S.

184, 191 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). And, Duffy

continues, because “the least of the acts criminalized” by § 2925.03 are attempts, neither of his



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state convictions are valid predicate offenses. Appellant’s Br. at 18; see United States v. Powell,

781 F. App’x 487, 489–90 (6th Cir. 2019) (finding that defendant’s conviction under Ohio Rev.

Code § 2925.03(A)(1) does not qualify as a controlled substance offense in light of Havis).

       However, if a statute identifies multiple crimes with different elements, then it is divisible

and courts apply the “modified categorical approach” to ascertain whether the record of the prior

conviction establishes that the defendant committed a predicate offense. See United States v. Smith,

960 F.3d 883, 887 (6th Cir. 2020). Indeed, the government argues that Havis is inapplicable to

Duffy’s case for this very reason. It says that § 2925.03 is divisible and the provision of the statute

that Duffy actually violated—that is, § 2925.03(A)(2)—is a categorical controlled substance

offense.

       We have previously held that that Ohio Rev. Code § 2925.03 is divisible. United States v.

Wright, 43 F. App’x 848, 852 (6th Cir. 2002) (explaining that “[s]ection 2925.03 includes both

qualifying and non-qualifying crimes” for predicate offense purposes under U.S.S.G. § 4B1.2(b)).

We further held that because a violation of § 2925.03(A)(2) requires “possession of a controlled

substance with intent to distribute it,” it is a categorical predicate offense under U.S.S.G.

§ 4B1.2(b). Id. at 853; see also United States v. Robinson, 333 F. App’x 33, 36 (6th Cir. 2009)

(“Because § 2925.03(A)(2) includes an element of ‘manufacture, import, export, distribution, or

dispensing,’ or intent to do those things, that subsection of the Ohio statute falls within the ambit

of U.S.S.G. § 4B1.2(b)”); United States v. Karam, 496 F.3d 1157, 1168 (10th Cir. 2007) (holding

that a defendant cannot violate § 2925.03(A)(2) “without engaging in conduct which meets the

definition of a controlled substance offense under USSG § 4B1.2(b)”).

       As for whether Havis has cast doubt on these cases, we made clear in both Wright and

Robinson that a conviction under § 2925.03(A)(2) requires actual possession by a defendant with



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the intent to distribute a controlled substance. Nothing in that provision suggests that it, unlike

§ 2925.03(A)(1), encompasses attempt crimes. And to remove any remaining uncertainty

regarding this conclusion, we recently affirmed Wright in a published opinion and held that “[Ohio

Rev. Code] § 2925.03(A)(2) falls safely within the Guideline’s contours.” Smith, 960 F.3d at 889.

       After determining that a statute is divisible and contains a provision that qualifies as a

predicate offense, we must ascertain whether the defendant was convicted of that provision. Id. at

887. To do so, we may review “documents such as indictments and jury instructions . . . to

determine which particular offense the defendant was convicted of and, in turn, whether that

offense qualifies under § 4B1.2(b).” Id. (citations omitted). The documents we can review are

known as Shepard documents. See Shepard v. United States, 544 U.S. 13, 16 (2005) (identifying

the reviewable documents as generally including only “the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented”). In the present case, Duffy’s Shepard-approved

state court documents clarify that both his 2013 and 2014 convictions involved charges for

trafficking drugs in violation of § 2925.03(A)(2). Duffy was indicted for these crimes and pleaded

guilty to each one. Therefore, he was convicted of at least two controlled substance offenses prior

to his instant offense and he was properly classified as a career offender.

       Duffy’s only response to this conclusion is that because the district court did not have the

state court indictments and guilty pleas before it when it classified Duffy as a career offender, the

court erroneously ruled that convictions under the more general § 2925.03 categorically qualify as

predicate offenses. Indeed, it appears that the court relied on the PSR, which did not specify under

which subsection of § 2925.03 Duffy was convicted. And as was previously discussed, we held in

Havis that a conviction under a statute like § 2925.03(A)(1) is not a predicate offense because it



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encompasses mere attempts. However, the government has filed a motion in this Court asking us

to take judicial notice of Duffy’s state court indictments and guilty pleas in his 2013 and 2014

convictions to verify that he was convicted under § 2925.03(A)(2). We granted a similar motion

in United States v. Ferguson, 681 F.3d 826, 833 (6th Cir. 2012), where we held that a district

court’s erroneous use of a PSR to determine a defendant’s eligibility for a sentence enhancement

“does not affect his substantial rights if such a determination has independent support in sources

approved by Shepard.” This Court further observed that “[t]his independent support may be

derived from judicially noticeable facts established by Shepard documents submitted for the first

time on appeal.” Id. at 834.1 Moreover, “[t]he court may judicially notice a fact that is not subject

to reasonable dispute because it . . . can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also Ferguson, 681 F.3d at

834 (finding that judicial records meet the standard for judicial notice). We therefore grant the

government’s motion to take judicial notice of the relevant state court documents and find that

Duffy was properly classified as a career offender.

     II.      Base Offense Level

           Duffy also challenges the district court’s computation of his base offense level. The district

court relied on the PSR’s finding that Duffy’s base offense level was 37 because the maximum

term of imprisonment for Count 3—possession with intent to distribute a controlled substance in




       1
          Admittedly, we were reviewing the district court’s sentence in Ferguson for plain error.
Nevertheless, to the degree the district court erred in the present case by relying on the PSR rather than
Duffy’s state court indictments and plea agreements, because the applicable Shepard documents validate
the district court’s decision, this error was harmless. See United States v. Susany, 893 F.3d 364, 368 (6th
Cir. 2018) (“Sentencing errors are harmless where this court is convinced that the ‘error at sentencing did
not cause the defendant to receive a more severe sentence’ than would have existed without the error.”)
(quoting United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014)).
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violation of 21 U.S.C. § 841—was life and Duffy had a criminal history category of VI. See

U.S.S.G. § 4B1.1(b)(1).

       The government concedes that we review the district court’s decision for an abuse of

discretion because, as noted in the preceding section, the court did not ask Duffy if he had any

objections pursuant to Bostic. A district court commits reversible procedural error if it improperly

calculates a defendant’s guidelines range. See, e.g., United States v. Martinez, 588 F.3d 301, 324

(6th Cir. 2009).

       Count 3 of Duffy’s indictment charged him with possession with intent to distribute

“approximately 150.6 grams of a mixture or substance containing a detectable amount of fentanyl,

a Schedule II controlled substance, and cyclopropyl fentanyl, a Schedule I controlled substance,

and a fentanyl analogue.” R. 1, Indictment, PageID # 2. This was a violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). The latter provision provides the penalty for the offense: a defendant

faces a maximum term of life imprisonment if their offense involved “400 grams or more of a

mixture or substance containing a detectable amount of [fentanyl] or 100 grams or more of a

mixture or substance containing a detectable amount of any analogue of [fentanyl].” 21 U.S.C.

§ 841(b)(1)(A)(vi).

       Duffy argues that the record does not establish that he possessed a sufficient quantity of

fentanyl or a fentanyl analogue to meet the minimum quantity requirement to trigger the possibility

of a life sentence. He claims that because the indictment does not identify what proportion of the

substance Duffy possessed was fentanyl and what proportion was a fentanyl analogue, he has not

clearly met either of the statutory thresholds for a life sentence.

       This argument misconstrues the plain language of the statute. All § 841(b)(1)(A)(vi)

requires is that the defendant possess a substance of a certain weight containing a “detectable



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amount” of fentanyl or a fentanyl analogue. The minimum weight requirements refer to the weight

of the substance, not the weight of the drugs mixed therein. See United States v. Harris, 774 F.

App’x 937, 941 (6th Cir. 2019) (“Congress itself specifically determined that punishments for

possession or distribution of fentanyl should be based not on the weight of fentanyl alone, but

rather upon the weight of any ‘mixture or substance containing a detectable amount of

[fentanyl].’” (quoting 21 U.S.C. § 841(b)(1)(A)(vi))). Duffy pleaded guilty to Count 3, which

alleged that he possessed 150.6 grams of a substance containing a detectable amount of a fentanyl

analogue. Therefore, he has met the requirements of § 841(b)(1)(A)(vi), regardless of how much

fentanyl analogue there actually was in the substance. The district court did not err in applying the

plain terms of this provision to find that Duffy had a base offense level of 37 and to calculate his

guidelines range accordingly.


                                         CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.




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