United States v. McKibbon

• Decision Date: 28 December 2017
• Docket Number: No. 16-1493,16-1493
• Citation: 878 F.3d 967
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Alan MCKIBBON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

878 F.3d 967

UNITED STATES of America, Plaintiff-Appellee,

v.Gary Alan MCKIBBON, Defendant-Appellant.

No. 16-1493

United States Court of Appeals, Tenth Circuit.

Filed December 28, 2017

Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant Gary Alan McKibbon.

J. Bishop Grewell, Assistant U.S. Attorney (Robert C. Troyer, U.S. Attorney, and Robert Mark Russel, Assistant U.S. Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee United States of America.

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, we conclude both that the district court plainly erred in treating Defendant Gary McKibbon's prior Colorado drug distribution conviction as a "controlled substance offense" under U.S.S.G. § 4B1.2(b), and that that error warrants resentencing.

BACKGROUND

McKibbon pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In calculating his sentence for that offense under the 2016 sentencing guidelines, the district court consulted U.S.S.G. § 2K2.1, which provided for a base offense level of twenty if McKibbon had a prior "controlled substance offense" as defined by U.S.S.G. § 4B1.2(b) and its application note 1. See U.S.S.G. § 2K2.1(a)(4)(A) & app. n.13. The court, without objection, deemed McKibbon's 2014 Colorado conviction under Colo. Rev. Stat. § 18-18-405(1)(a) for distribution of a Schedule I or II controlled substance to be such a "controlled substance offense." Using a base offense level of twenty, then, the sentencing court calculated McKibbon's total offense level to be twenty-one which, combined with his criminal history category IV, resulted in an advisory guideline range of fifty-seven to seventy-one months in prison. The district court imposed a within-range sentence of sixty-six months.

On appeal, McKibbon argues for the first time that his prior 2014 Colorado conviction does not qualify as a "controlled substance offense." We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) to consider his appeal.¹

STANDARD OF REVIEW

Because McKibbon did not object at sentencing to classifying his prior Colorado conviction as a "controlled substance offense," we review for plain error. See Fed. R. Crim. P. 52(b) ; see also United States v. Taylor, 843 F.3d 1215, 1219 (10th Cir. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 1608, 197 L.Ed.2d 732 (2017). To obtain relief, then, McKibbon "must establish (1) the existence of ‘an error that has not been intentionally relinquished or abandoned,’ (2) ‘the error must be plain—that is to say, clear or obvious,’ and (3) ‘the error ... [must] have affected the defendant's substantial rights.’ " Taylor, 843 F.3d at 1220 (quoting Molina-Martinez v. United States, ––– U.S. ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) ). " ‘Once these three conditions have been met,’ we must ‘exercise [our] discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " Id. (quoting Molina-Martinez, 136 S.Ct. at 1343 ).

LEGAL DISCUSSION

Colorado Revised Statute § 18-18-405(1)(a) makes it

unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.

Relevant to the statute's proscription against selling a controlled substance, Colorado defines "[s]ale" to "mean[ ] a barter, an exchange, or a gift, or an offer therefor." Id. § 18-18-403(1) (emphasis added); see also id. § 18-18-102(33) (emphasis added).

The federal sentencing guidelines, in turn, define a "controlled substance offense" to mean

the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). This definition

include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

Id. § 4B1.2, app. n.1.

I. The district court erred in classifying McKibbon's Colorado conviction as a "controlled substance offense"

We apply a categorical/modified categorical analysis to determine whether McKibbon's prior Colorado conviction qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2(b). See United States v. Madkins, 866 F.3d 1136, 1143-44 (10th Cir. 2017). In doing so, our focus is on "the elements of the statute of conviction and ‘not [on] the particular facts underlying that conviction.’ " United States v. O'Connor, 874 F.3d 1147, 1151 (10th Cir. 2017) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ) (alteration omitted).

A. Colo. Rev. Stat. § 18-18-405(1)(a) criminalizes a broader range of conduct than U.S.S.G. § 4B1.2(b) encompasses

Comparing "the scope of the conduct covered by the elements of" an offense under Colo. Rev. Stat. § 18-18-405(1)(a) with § 4B1.2(b)'s definition of a "controlled substance offense," O'Connor, 874 F.3d at 1151, we conclude the state statute criminalizes a broader range of conduct than that included in § 4B1.2(b). Specifically, the state statute criminalizes all offers to sell a controlled substance, while U.S.S.G. § 4B1.2(b) does not encompass mere offers to sell a controlled substance.

Colorado Revised Statute § 18-18-405(1)(a), in pertinent part, makes it "unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell or distribute, a controlled substance." Critically and relevant to the state statute's proscription against selling a controlled substance, Colorado defines "[s]ale" to "mean[ ] a barter, an exchange, or a gift, or an offer therefor." Id. § 18-18-403(1) (emphasis added); see also id. § 18-18-102(33) (emphasis added).

However, the sentencing guidelines' definition of a "controlled substance offense" in § 4B1.2(b) does not expressly include offering to sell. See Madkins, 866 F.3d at 1145. Instead, § 4B1.2(b) defines a "controlled substance offense" to include only "the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense," U.S.S.G. § 4B1.2(b). "[F]or purposes of this definition, ‘distribute’ means ‘to deliver ... a controlled substance or listed chemical.’ " Madkins, 866 F.3d at 1144 (quoting 21 U.S.C. § 802(11) ).

This court reached a similar conclusion in Madkins, holding that U.S.S.G. § 4B1.2(b)'s definition of a "controlled substance offense" did not encompass a conviction under a Kansas law that made it a crime to offer to sell a controlled substance. 866 F.3d at 1143-48.²

Other circuits have reached similar conclusions about other state statutes criminalizing offers to sell drugs. See United States v. Hinkle, 832 F.3d 569, 571-72 & 571 n.8 (5th Cir. 2016) (concluding Texas statutes that made it unlawful to offer to sell a controlled substance criminalized a broader range of conduct than U.S.S.G. § 4B1.2(b) encompasses, citing earlier Fifth Circuit cases); United States v. Savage, 542 F.3d 959, 964-66 (2d Cir. 2008) (reaching the same conclusion regarding Connecticut statute that made it unlawful to offer to sell a controlled substance).

Although a "controlled substance offense" under § 4B1.2(b) includes attempts to distribute controlled substances, in Madkins we considered and rejected the argument that such attempts would necessarily encompass a state offense involving an "offer to sell" a controlled substance:

[W]e note that at first glance, it seems as though an offer for sale would fit squarely within the definition in the Guidelines, since the commentary to § 4B1.2 clarifies that a controlled substance offense includes an attempt to commit such an offense. But a closer look reveals that the two are not a categorical match. We have previously explained that in our circuit, "an attempt to commit a crime requires the intent to commit the crime and overt acts in furtherance of that intent." SeeUnited States v. Taylor, 413 F.3d 1146, 1155 (10th Cir. 2005) (emphasis added). And because a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than a conviction for an attempt to sell.

For example, as several other circuits have noted, "[a]n offer to sell can be fraudulent, such as when one offers to sell the Brooklyn Bridge. In such a circumstance, the offer to sell is fraudulent in the sense that the person offering the bridge or the drug does not have the intent to distribute or sell the item." Savage, 542 F.3d at 965 [ (2d Cir.) ] (citing United States v. Palacios-Quinonez, 431 F.3d 471, 476 (5th Cir. 2005) ). To be sure, courts have relied on this reasoning in distinguishing between a conviction for possession of a controlled substance with intent to sell or deliver, and a conviction for sale or delivery of a controlled substance without the possession element. But the argument applies with equal force in the context of the distinction between an offer and an attempt.

Since the former does not necessarily involve the intent to sell or distribute that is required for the latter, a conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than

...