from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00130-RM-1)
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.
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.
BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
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.
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
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.
STANDARD OF REVIEW
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).
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.
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).
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.
The district court erred in classifying McKibbon's
Colorado conviction as a "controlled substance
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 ...