                             NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 09a0388n.06
                                                                                                     FILED
                                                  No. 08-3299                                    May 29, 2009
                                                                                           LEONARD GREEN, Clerk
                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
         Plaintiff/Appellee,                             )
                                                         )
v.                                                       )   ON APPEAL FROM THE UNITED
                                                         )   STATES DISTRICT COURT FOR THE
ALBERT ROBINSON,                                         )   NORTHERN DISTRICT OF OHIO
                                                         )
         Defendant/Appellant.                            )
                                                         )   OPINION
                                                         )


         Before: GILMAN and MCKEAGUE, Circuit Judges; and GRAHAM, District Judge.*

         RONALD LEE GILMAN, Circuit Judge. Albert Robinson pled guilty to three counts of

possessing drugs with the intent to distribute them and to one count of being a felon in possession

of a firearm. After finding that two earlier state-court drug convictions made Robinson a career

offender pursuant to § 4B1.1 of the United States Sentencing Guidelines, the district court sentenced

him to 168 months of imprisonment. Robinson now challenges his sentence, arguing that the

government did not meet its burden of demonstrating that his prior convictions satisfy the career-

offender requirements. For the reasons set forth below, we AFFIRM the judgment of the district

court.


                                             I. BACKGROUND


         *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 08-3299
United States v. Robinson

       In March 2007, Robinson was charged with two counts of possessing with the intent to

distribute five grams or more of crack cocaine and one count of possessing with the intent to

distribute an unspecified amount of powder cocaine, all in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1). He was also charged with one count of possessing a firearm after having been convicted of

a felony, in violation of 18 U.S.C. § 922(g)(1). After unsuccessfully moving to exclude the evidence

against him, Robinson pled guilty to all four charges. He did not enter a plea agreement with the

government before pleading guilty.

       Because Robinson had been convicted in Ohio state court of drug offenses in 1990 and 1991,

the government argued at his sentencing hearing that he was a “career offender” as that term is

defined in U.S.S.G. § 4B1.1(a). Robinson filed a motion to challenge his designation as a career

offender, contending that the charging documents in his 1990 and 1991 state convictions do not

definitively establish that those convictions qualify as “controlled substance offense[s]” under

U.S.S.G. § 4B1.2(b). The district court rejected Robinson’s argument and, pursuant to U.S.S.G.

§ 4B1.1(b), set Robinson’s offense level at 37 and his criminal history category at VI.

       Robinson’s offense level was then reduced by three levels for accepting responsibility for his

crimes, pursuant to U.S.S.G. § 3E1.1, and by two levels for providing substantial assistance to the

government, under U.S.S.G. § 5K1.1. These reductions led to a final advisory Guidelines range of

210 to 262 months of imprisonment. Rather than accept that range, Robinson argued that the factors

listed in 18 U.S.C. § 3553(a) supported a downward variance. The district court agreed and

sentenced Robinson to 168 months of imprisonment. Robinson now appeals his sentence. His sole



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argument is that the district court erred in applying the career-offender designation to him, and he

requests that he be resentenced without that designation.


                                           II. ANALYSIS

        We apply the de novo standard of review to the district court’s determination that Robinson

is a career offender. See Mallett v. United States, 334 F.3d 491, 500 (6th Cir. 2003). A career

offender is defined as a defendant who: (1) “was at least eighteen years old at the time [of] the instant

offense of conviction,” (2) is being sentenced for “a felony that is either a crime of violence or a

controlled substance offense,” and (3) “has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).

        Robinson’s challenge to his designation as a career offender relates only to the third prong

of the definition. According to the government, Robinson’s prior state-court convictions of drug

crimes in 1990 and 1991 were “controlled substance offenses[s]” as defined in U.S.S.G. § 4B1.2(b).

Pursuant to that section of the Guidelines, “[t]he term ‘controlled substance offense’ means an

offense . . . punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the

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

dispense.” Id.

        The “categorical approach” is used to determine whether a prior conviction is a controlled-

substance offense under § 4B1.2(b). United States v. Galloway, 439 F.3d 320, 323 (6th Cir. 2006)

(extending Shepard v. United States, 544 U.S. 13, 19-20 (2005)), which applied the categorical


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United States v. Robinson

approach in the context of the Armed Career Criminal Act, to the analysis of prior convictions in

career-offender determinations). Under the categorical approach, “[g]enerally speaking, 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.” Galloway, 439 F.3d at 322. Where

“the categorical approach fails to be determinative, a sentencing court may look to the ‘charging

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

trial judge to which the defendant assented.’” United States v. Montanez, 442 F.3d 485, 498 (6th Cir.

2006) (quoting Shepard, 544 U.S. at 16).

       Both of Robinson’s relevant prior convictions were based on his violation of Ohio Rev. Code

§ 2925.03(A). At the time of Robinson’s Ohio convictions, that section provided that “[n]o person

shall knowingly do any of the following[,]” and went on to list 10 distinct drug offenses involving

possession and sale of controlled substances, among other acts. Id. The journal entries evidencing

Robinson’s convictions in the Cuyahoga County Court of Common Pleas identify the statute of

conviction only as “O.R.C. 2925.03,” without specifying a subsection. As Robinson correctly

pointed out to the district court and again on appeal, at least 2 of the 10 subsections of Ohio Rev.

Code § 2925.03(A) do not qualify as “controlled substance offenses” within the meaning of U.S.S.G.

§ 4B1.2(b). Montanez, 442 F.3d at 490-92. The two subsections in question—§ 2925.03(A)(6) and

(9)—are not “controlled substance offenses” because they involve only simple possession of drugs

without their “manufacture, import, export, distribution, or dispensing” or intent to perform any of

those acts. Id.



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United States v. Robinson

       Following the categorical approach, the district court thus looked beyond the statute of

conviction to the charging documents in the two prior drug cases. Neither indictment specified by

number the subsection of § 2925.03(A) that Robinson was accused of—and later pled guilty

to—violating. Instead, both indictments stated that Robinson “did knowingly prepare for shipment,

ship, transport, deliver, prepare for distribution or distribute a controlled substance . . . knowing or

having reasonable cause to believe such drug was intended for sale or resale by the offender or

another.” As the district court correctly noted, the indictments essentially track the language of one

particular subsection of § 2925.03(A). Subsection (2) of that statute reads as follows:

       No person shall knowingly do any of the following:
       ...

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

Id.

       The government argues that this language in the indictments conclusively establishes that

Robinson was convicted of a controlled-substance offense. We agree. 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. Wright, 43 F. App’x 848, 852-53 (6th Cir. 2002) (concluding that Ohio Rev. Code

§ 2925.03(A)(2) describes the “possession of a controlled substance with intent to distribute it,” and

therefore is a U.S.S.G. § 4B1.2(b) controlled-substance offense); United States v. Karam, 496 F.3d

1157, 1167-68 (10th Cir. 2007) (reaching the same conclusion about Ohio Rev. Code

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United States v. Robinson

§ 2925.03(A)(2)). Where the charging document closely tracks the statutory language of the relevant

subsection, the fact that the subsection is not also identified by its number does not create any

reasonable doubt about which subsection has been charged.

        Robinson next argues that the district court erred by looking beyond the charging documents

in his two prior Ohio drug cases and accepting “factual assertions and even opinions of the probation

officer and the Assistant United States Attorney in determining the nature of the state court

convictions.” His argument is based on language in the journal entry that evidences his 1991 drug

conviction, one of the two that supported his career-offender designation. That document states:

“Count One is amended deleting the furthermore clause[.]” Robinson argues that this language

raises the possibility that the charge against him might have been amended to employ one of the non-

qualifying subsections of § 2925.03(A).

        The record refutes Robinson’s argument. Robinson’s 1991 indictment was comprised of two

clauses: first, a clause charging him with violating § 2925.03(A)(2) (using the language of that

subsection but not its number), and second, a clause beginning with “furthermore” that described

Robinson’s 1990 conviction. The district court concluded that the 1991 journal entry’s deletion of

the “furthermore clause” could not have been an amendment of the subsection charged against

Robinson, but rather a deletion of the clause that described the prior conviction. At sentencing, the

district court stated that Robinson’s conduct “was under 2925.03[A](2). We can tell that even

though that section is not mentioned, and . . . [t]here’s nothing to indicate at all that any of that was

changed . . . .”



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United States v. Robinson

       Although Robinson correctly points out that the district court engaged in a brief colloquy

with the probation officer and counsel for the government while examining the documents, the

sentencing transcript conclusively establishes that the court did not look beyond the charging

documents in order to reach its ruling. We thus find no error in the district court’s conclusion that

Robinson was convicted of two prior controlled-substance offenses in the Ohio state court. He was

therefore appropriately sentenced as a career offender.


                                      III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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