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United States v. McKibbon

United States Court of Appeals, Tenth Circuit

December 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GARY ALAN MCKIBBON, Defendant-Appellant.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00130-RM-1)

          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, 137 S.Ct. 1608 (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, 136 S.Ct. 1338, 1343 (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.'" UnitedStates v. O'Connor, 874 F.3d 1147, 1151 ...


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