United States v. Dennis Smith, 960 F.3d 883

Dennis Smith pled guilty to distributing a mixture of heroin, fentanyl, and carfentanil in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
The government filed notice that Smith faced an increased statutory maximum under § 841(b)(1)(C) based on a prior state felony drug‑trafficking conviction.
In his Rule 11 plea agreement Smith waived most appeal rights but reserved the right to appeal career‑offender status (and certain other narrow categories).
The PSR designated Smith a career offender based on prior convictions for Ohio felony drug trafficking (Ohio Rev. Code § 2925.03(A)(2)) and aggravated robbery; Smith objected, invoking the First Step Act and arguing the prior convictions were not Guideline predicates.
The district court denied Smith’s motion to withdraw his plea, rejected his First Step Act and career‑offender arguments, and sentenced him to 150 months (within the agreed Guideline range). Smith appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith preserved a First Step Act challenge to the § 841(b)(1)(C) enhancement	Smith: First Step Act eliminates his § 841(b)(1)(C) enhancement	Gov’t: Smith waived appeal rights in plea agreement; even on merits First Step Act does not change § 841(b)(1)(C)	Appeal waived; merits in any event foreclosed by Sixth Circuit precedent (Wiseman)
Whether Ohio Rev. Code § 2925.03(A)(2) is a "controlled substance offense" under U.S.S.G. § 4B1.2(b) (divisibility/categorical approach)	Smith: statute’s "know or have reasonable cause to believe" language and alternatives may put it outside § 4B1.2(b)	Gov’t: statute is indivisible and describes possession with intent to distribute or distribution — both match § 4B1.2(b)	§ 2925.03(A)(2) is indivisible and qualifies as a predicate controlled‑substance offense under § 4B1.2(b)
Whether the statute’s use of "prepare" is an excluded attempt‑type offense after Havis	Smith: "prepare" reaches mere preparation/attempt, and Havis excludes attempt offenses from § 4B1.2(b)	Gov’t: "prepare" in § 2925.03(A)(2) means preparing to ship/distribute (at least possession with intent) and Ohio courts so interpret it	Havis does not change result; "prepare" as used in § 2925.03(A)(2) criminalizes conduct equivalent to possession with intent or distribution and remains a predicate

United States v. Wiseman, 932 F.3d 411 (6th Cir.) (First Step Act did not alter § 841(b)(1)(C))
United States v. Havis, 927 F.3d 382 (6th Cir.) (Guidelines § 4B1.2(b) does not include attempt offenses)
Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical and modified categorical approaches; divisibility analysis)
Descamps v. United States, 570 U.S. 254 (2013) (limits on using Shepard documents under modified categorical approach)
Shepard v. United States, 544 U.S. 13 (2005) (identifies documents usable to determine which statutory alternative supported conviction)
United States v. Cavazos, 950 F.3d 329 (6th Cir.) (application of Mathis/Descamps in Sixth Circuit)
United States v. Calderon, 388 F.3d 197 (6th Cir.) (validity of appellate‑waiver in plea agreement)
Sykes v. Anderson, 625 F.3d 294 (6th Cir.) (published panel precedent controls unless overruled en banc or by Supreme Court)