United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER 
C. CHAMBERS, CHIEF JUDGE.
Antoine Rushin appeared before the Court for a sentencing
hearing on February 21, 2016. At the hearing Rushin objected
to the Probation Officer's determination that an Ohio
conviction for drug trafficking constituted a qualifying
predicate offense on which to base a career offender
determination according to the Sentencing Guidelines. At the
hearing the Court overruled Rushin's objection but
reserved final judgment until it could prepare a written
order presenting in more detail the Court's reasoning.
For the following reasons Rushin's objection is
OVERRULED and the application of the career
offender enhancement is proper.
order to be found a career offender under the Sentencing
Guidelines a defendant must be “at least eighteen . . .
at the time the defendant committed the instant offense; the
instant offense is a . . . controlled substance offense; and
the defendant has at least two prior felony convictions of .
. . a controlled substance offense.” U.S. Sentencing
Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n
2016). A controlled substance offense is defined as “an
offense . . . 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. § 4B1.2. This is also
known as the “generic offense.”
recent decision by the Supreme Court, Mathis v. United
States, 136 S.Ct. 2243 (2016), the Court clarified the
process a sentencing court should use to differentiate
between qualifying and non-qualifying predicate offenses for
the purposes of designating a defendant a career offender.
Generally a sentencing court applies what is known as the
“categorical approach.” Id. at 2248.
That approach requires the sentencing court to look only at
the fact that the defendant was convicted of a prior offense
and “whether the elements of the crime of conviction
sufficiently match the elements of the generic [controlled
substance offense], while ignoring the particular facts of
the case.” Id. But, if a prior conviction
under a statute that by its elements alone criminalizes more
conduct than that criminalized by the generic offense, then
the conviction does not qualify as a predicate offense under
the Sentencing Guidelines. See id.; United
States v. Dozier, ___ F.3d___, No. 15-4532, 2017 WL
395098, at *2 (4th Cir. Jan 30, 2017).
statute is of a more complicated (“divisible”)
nature and lists elements in the alternative and thereby
defines multiple crimes, the categorical approach is altered
to allow a sentencing court to review certain documents that
might help the court determine for which crime the defendant
was convicted and thus determine if that crime is a
qualifying predicate offense. Mathis, 136 S.Ct. at
2249 (citing Shepard v. United States, 544 U.S. 13,
26 (2005)). This approach is generally referred to as the
“modified categorical approach.” Id.
“Under that approach, a sentencing court looks to a
limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine
what crime, with what elements a defendant was
convicted.” Id. (citing Taylor v. United
States, 495 U.S. 575, 602 (1990)). A sentencing court
may not employ the modified categorical approach where rather
than enumerate alternative elements to a crime, the statute
“specifies diverse means of satisfying a single element
of a single crime.” Id.
where a statute is found to be “divisible” the
sentencing court has no more authority to look to the
“underlying brute facts or means” of the prior
conviction that it would have had the statute been
indivisible. Id. at 2251 (citing Richardson v.
United States, 526 U.S. 813, 817 (1999)). The modified
categorical approach only permits a court to determine the
crime for which a defendant was convicted and what the
elements of that crime are. Id. The Guidelines
“cares not a whit” about the facts of the
conviction and whether they, taken by themselves, could be a
qualifying offense. Id. (citing Taylor, 495
U.S. at 599-602). The part of the divisible statute under
which the defendant was convicted must, by its elements, meet
the generic offense. Id.
3, 2011, Rushin pled guilty to a violation of Ohio Revised
Code § 2925.03(A). The statute states:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance . . .
(2) Prepare for shipment, ship, transport, deliver, prepare
for distribution, or distribute a controlled substance . . .,
when the offender knows or has a reasonable cause to believe
that the controlled substance . . . is intended for sale or
resale by the offender or another person.
Ohio Rev. Code Ann. § 2925.03(A). Ohio defines
“distribute” as “to deal in, ship,
transport, or deliver but does not include administering or