United States v. Babcock, 40 F.4th 1172

Zachary Babcock pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)), waiving direct appeal except for claims of ineffective assistance of counsel (IAC).
The PSR applied USSG §2K2.1(a)(4)(A) based on prior Utah convictions for "agree, consent, offer, or arrange to distribute" a controlled substance, raising his base offense level and resulting in a 70-month sentence.
USSG §4B1.2(b) defines a "controlled-substance offense," and application note 1 states that aiding, conspiring, and attempting such offenses are included.
Tenth Circuit precedents (Madkins; McKibbon) held that statutes criminalizing mere offers to sell—if they do not require intent to actually distribute—may be broader than the guideline definition; the categorical approach governs the inquiry.
Babcock argued his trial counsel was ineffective for not (1) arguing the Utah offer statute does not categorically constitute an attempt (and thus is not a controlled-substance offense) and (2) challenging the Sentencing Commission’s authority to include attempts via commentary rather than by amending the guideline text.
The district court denied §2255 relief; the Tenth Circuit granted a COA on the two IAC issues and affirmed, holding counsel’s omissions were not objectively unreasonable given Utah law and controlling precedent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not arguing that Utah's offer-to-distribute statute is not an "attempt" and so not a controlled-substance offense under USSG §4B1.2(b)	Utah’s statute does not require a bona fide intent or ability to complete the sale, so it criminalizes conduct broader than an attempt and cannot categorically qualify	Utah courts construe the statute to require knowledge/intent and conduct equivalent to a substantial step (overt act), so it fits the guideline’s attempt definition	Counsel not deficient: Utah caselaw (e.g., Hester/Harrison) reasonably supports that the statute requires intent/substantial step, so an objection would likely fail
Whether counsel was ineffective for failing to challenge the Sentencing Commission’s use of commentary to treat attempts as controlled-substance offenses	Commission exceeded authority by expanding the guideline via commentary rather than amending the text; counsel should have objected	Tenth Circuit precedent (Chavez) and Stinson make authoritative commentary permissible absent a clear inconsistency; no contrary circuit precedent existed at sentencing	Counsel not deficient: Chavez and Stinson supported the commentary’s authority at the time, so the objection was not a plainly meritorious claim

United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017) (held Kansas offer-to-sell statute did not categorically qualify absent an intent-to-sell element)
United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017) (similar holding as to Colorado law)
United States v. Chavez, 660 F.3d 1215 (10th Cir. 2011) (upheld §4B1.2 commentary treating attempts as controlled-substance offenses)
Stinson v. United States, 508 U.S. 36 (1993) (guideline commentary is authoritative unless inconsistent with statute or guideline)
Strickland v. Washington, 466 U.S. 668 (1984) (governs ineffective-assistance two-part test)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (categorical approach requires a realistic probability state courts would apply statute to nongeneric conduct)
United States v. Savage, 542 F.3d 959 (2d Cir. 2008) (an offer to sell can be fraudulent and lack intent to distribute)
United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) (New York law required a bona fide intent to sell; conviction fit the guideline)