NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0581n.06
No. 17-3230 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. EULIS ELLSWORTH ALLEN, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: COLE, Chief Judge; ROGE RS and GRIFFIN, Circuit Judges. PER CURIAM. Eulis Ellsworth Allen appeal s his enhanced sentence as a career offender under the sentencing guidelines. As set fo rth 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 fel ony convictions for controlled substance offenses: (1) his 1996 Ohio convictions for aggravated trafficking and (2) his 2006 federal conviction for distributing fi ve grams or more of cocaine ba se. Application of the careeroffender 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 ofimprisonment. Allen objected to the careeroffender enhancement, arguing that his Ohio c onvictions for aggravat ed trafficking do not qualify as controlled substance offenses. Th e district court overrule d Allen’s objection andNo. 17-3230 United States v. Allen

- 2 - applied the career-offender enhancement. The dist rict 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 factor s under 18 U.S.C. § 3553(a), the district court sentenced Allen to 168 months of imprisonment followed by five years of supe rvised release. In this timely appeal, Allen contends that th e district court erred in finding that his 1996 Ohio convictions for aggravated trafficking cons titute controlled substance offenses and that the district court’s erroneous a pplication of the career-offende r enhancement resulted in a procedurally unreasonable sentence. We review de novo the district cour t’s legal determination that Allen’s prior convictions qualify as cont rolled 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 ‘cat egorical’ 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 fe lony convictions for a controlled subs tance offense. USSG § 4B1.1(a). The sentencing guidelines define “co ntrolled substance offense” as an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manu facture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit su bstance) 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.” AllenNo. 17-3230 United States v. Allen

- 3 - contends that, at the time of his convictions, Ohio appellate courts had upheld trafficking convictions based on factual scen arios involving a fraudulent “offer to sell” drugs—an offer made for the purpose of taking the buyer’s mone y 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 Cour t 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 S upreme Court of Ohio, does not encompass fraudulent offers to sell,” this court held that a c onviction “for an offe r 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 Ci r. 2015) (“[A] later pane l of the co urt cannot overrule the published decision of a prior panel . . . in the absenc e of en banc review or an intervening opinion on point by the Supreme Court.”). Allen’s arguments that Evans is not binding are unavai ling. 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 tempor al argument; regardless, the issue was “a necessary precursor to the panel’s decision” that the defendant’s 2004 trafficking convictionNo. 17-3230 United States v. Allen

- 4 - 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 c ourts had consistently upheld trafficking convictions for fra udulent “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 wh at the statute meant be fore 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 c ourts should look to intermediate state appellate court decisions in dete rmining what is the least conduc t criminalized under a state’s statute . . . , when the state supr eme 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 offens es, the district court properly applied the career-offender enha ncement. Accordingly, we AFFIRM Allen’s sentence.