Summary
using the modified categorical approach to determine that Ohio Rev. Code § 2925.03 was a "controlled substance offense" despite not including a mens rea comparable to the federal offense
Summary of this case from United States v. SheffeyOpinion
No. 07-10127.
Submitted January 15, 2008.
Filed January 24, 2008.
Christina Brown, Esq., USLV — Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Rene L. Valladares, Esq., FPDNV — Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, District Judge Presiding. D.C. No. CR-05-00041-RLH.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Miles appeals from his sentence of eighty-seven months imprisonment and three years supervised release. He challenges the district court's determination that his two previous felony convictions under Ohio Revised Code § 2925.03 qualified as controlled substance offenses under section 4B 1.2(b) of the United States Sentencing Guidelines (Guidelines). We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
The district court properly considered Miles's plea transcripts to determine which section of the Ohio Revised Code § 2925.03 formed the basis for his convictions. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The district court then correctly held that his convictions under section (A)(2) of the statute qualified categorically as controlled substance offenses under the Guidelines.
The "reasonable cause to believe" language from the Ohio statute only relates to the defendant's knowledge of a third-party's intent to sell (not the case here), and does not impermissibly lower the standard of intent necessary for conviction to ship, transport, deliver, etc. Similarly, the fact that the statute criminalizes mere "transport" and "preparation" does not cause the statute to fall outside the Guidelines definition. A defendant could only be convicted for these actions if he also knew or had reason to know that the controlled substances were intended for sale, which distinguishes this case from United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc).