Drug-Related Act Done With Knowledge That Drugs Are Intended for Sale Is §2L1.2 "Drug Trafficking Offense"

United States v. Fuentes-Oyervides, No. 07-41007 (5th Cir. Aug. 13, 2008) (per curiam) (Higginbotham, Stewart, Southwick)

Consider Ohio Rev. Code Ann. § 2925.03(A)(2), which "provides that no person shall knowingly '[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.'" Is it a "drug trafficking offense" for purposes of the 12- and 16-level enhancements under guideline §2L1.2?

Fuentes argued that it's not, because some of the acts prohibited by the statute (preparing drugs for shipment, and shipping and transporting drugs) aren't listed in §2L1.2's DTO definition. He also argued "that a state conviction would not meet the alternative possession-with-intent clause of" the DTO definition because of different mens rea requirements: "the state statute only requires 1) knowledge or negligence, 2) as to another’s intent[,]" whereas §2L1.2 "requires that the offender actually intend to manufacture or distribute."

The court disagreed. It sided with a Tenth Circuit opinion holding that the Ohio statute need not be evaluated under the DTO definition's possession-with-intent prong because "an individual who prepares for shipment, ships, transports, delivers, prepares for distribution, or distributes a controlled substance while he knows or should know that the substance is intended for sale, commits an act of distribution under the Guidelines." In so holding, the court distinguished a couple of earlier Fifth Circuit decisions involving other state statutes:

• United States v. Garza-Lopez. Held that California "transportation, sale, etc." isn't categorically a DTO because it includes transportation of drugs for personal use. Distinguishable because "the Ohio statute here does not criminalize mere personal use possession; it requires a level of understanding that the drugs are for sale or resale."
• United States v. Lopez-Salas. Held that "a state’s presumption of intent to distribute – based upon the statute’s requirement that a large amount of drugs be transported – was not sufficient evidence of criminal intent to distribute for purposes of the Guidelines’ 'drug trafficking offense' adjustment." Distinguishable because the Ohio "statute at issue here explicitly includes a mens rea requirement concerning distribution."