United States v. Montanez
201201, at *1 n.2 (“[F]or purposes of federal sentencing law, criminal intent to distribute must be
proven and not merely implied.”). Because of past conflicting unpublished dispositions, however,
we address the errors contained in those decisions.
In Gibbs, we focused on the title of Ohio’s statutory section, “Drug Trafficking Offenses,”
as well as the fact that Ohio criminalized so-called “simple possession” in another section of its
statutory scheme. Gibbs, 3 Fed. Appx. at 406. We likewise found it persuasive that Ohio courts had
determined that the section was aimed at sellers and not users. Id. How a state titles its statutory
provisions, however, is not determinative of what actual statute a defendant was convicted under for
federal sentencing purposes. Moreover, none of our past dispositions accounted for the fact that the
Ohio legislature has specifically stated that: “Title, Chapter, and section headings and marginal
General Code section numbers do not constitute any part of the law as contained in the ‘Revised
Code.’” Ohio Rev. Code § 1.01. See also Warner v. Zent, 997 F.2d 116, 133 (6th Cir. 1993) (“Such
headings, however, do not constitute any part of Ohio law. Resort to a title in construing a statute
is unnecessary and improper.”). The fact that the statutory section at issue is titled “Drug
Trafficking Offenses” is simply irrelevant and the Gibbs panel erred by concluding otherwise. The
determinative issue, however, is the elements that make up the prior state crime of conviction.
Shepard, 125 S. Ct. at 1259 (noting that “the categorical approach . . . refers to predicate offenses
in terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of crimes”). For federal
sentencing purposes, a sentencing court looks to the elements of the prior offense to determine
whether it qualifies under the Guidelines. See generally id.; Martin, 378 F.3d at 581 (looking to
statutory definition of the crime); United States v. Bass, 315 F.3d 561, 565 (6th Cir. 2002) (“[W]hen
it is not clear from the elements of the offense alone whether the crime [qualified for enhancement
under the Guidelines], the sentencing court may review the indictment for the specific conduct
charged.”) (emphasis added); United States v. Champion, 248 F.3d 502, 505 (6th Cir. 2001)
(applying categorical approach in determining whether an offense has as an element “the use,
attempted use, or threatened use of physical force”).
Additionally, the fact that Ohio punishes other drug possession, without the bulk quantity
requirement, in another section of its statutory scheme does not change the elements of the
underlying offenses under which Montanez was convicted. Conversely, if one or more subsections
of Ohio Revised Code 2925.11 contained an element of possession with intent, the Government
surely would not argue that the defendant’s sentence could not be enhanced because the definition
of the statutory section, “Drug Possession Offenses,” controlled the inquiry. Furthermore, as
discussed above, any reliance on statutory titles in this case is simply unavailing. See Ohio Rev.
Code § 1.01. It is the elements of the crimes that matter.
Gibbs also found it relevant that the Ohio legislature aimed section 2925.03 at sellers, not
users, see Goodnight, 370 N.E.2d at 493, but we do not conduct an inquiry into whom, as a class,
the legislature wished to target, but rather those whose conduct falls within the elements of the
See, eg., Foster, 1994 WL 201201, at *1 n.2 (“While this wording may suit
Ohio’s purposes, it does not comport with the requirement that, for purposes of federal sentencing
law, criminal intent to distribute must be proven and not merely implied.”).
We also reject Gibbs’s implied suggestion that the availability of an affirmative defense of personal use
somehow reads an intent to distribute element into the crime. A defendant’s failure to prevail on an affirmative defense
does not suffice to create an additional element of the crime that is neither charged nor proven beyond a reasonable doubt
to the jury.
We note that the legislature arguably hit its target with sections (A)(1), (2), (3), (5), (7), (8), and (10). With
regard to sections (A)(4), (6), and (9), however, the legislature criminalized only possession in a bulk amount. Ohio Rev.
Code § 2925.03.