United States v. Dantana Tanksley
2017 U.S. App. LEXIS 913
| 5th Cir. | 2017Background
- Tanksley pleaded guilty in 2015 to being a felon in possession of a firearm (18 U.S.C. § 922(g)); at sentencing the district court applied a Guidelines § 4B1.1 enhancement based on a prior Texas conviction under Tex. Health & Safety Code § 481.112(a) for possession with intent to deliver.
- At sentencing and on initial appeal Tanksley conceded his objection was foreclosed by Fifth Circuit precedent in United States v. Ford; this court granted summary affirmance in 2016.
- After the Supreme Court decided Mathis v. United States and this Court decided United States v. Hinkle, Tanksley moved for panel rehearing, arguing Mathis undermined Ford.
- Ford had held that § 481.112(a) is divisible so the modified categorical approach could be used to identify a conviction for possession with intent to deliver, which the court treated as a qualifying "controlled substance offense" under the Guidelines.
- The panel concluded Mathis, reinforced by Texas precedent (Lopez v. State), shows § 481.112(a) is indivisible (the listed items are means, not alternative elements), so the modified categorical approach is improper and Ford is effectively overruled.
- Because the Guidelines enhancement may have affected sentencing and the government failed to show the error was harmless, the court vacated Tanksley’s sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 481.112(a) is divisible such that the modified categorical approach may be used to identify a conviction for "possession with intent to deliver" | Tanksley: Mathis shows § 481.112(a) is indivisible; the statute lists alternative means, not alternative elements | Government/Ford: § 481.112(a) is divisible; courts can use the modified categorical approach to isolate possession-with-intent convictions | Held: § 481.112(a) is indivisible; Mathis and Texas precedent (Lopez) show the listed items are means, so modified categorical approach is improper |
| Whether Ford remains good law after Mathis | Tanksley: Mathis implicitly overrules Ford because Ford treated § 481.112(a) as divisible | Government: Ford remains controlling; Hinkle applies Mathis and is consistent | Held: Mathis unequivocally abrogates Ford’s divisibility holding; Ford cannot stand |
| Whether Tanksley’s prior conviction qualifies as a Guidelines "controlled substance offense" | Tanksley: Because the statute is indivisible, his conviction under § 481.112(a) cannot be narrowed to a qualifying offense | Government: The prior conviction qualifies under Ford/Hinkle | Held: Viewed as a whole, § 481.112(a) criminalizes a broader swath of conduct than the Guidelines offense, so it does not qualify |
| Whether any error in applying the enhancement was harmless | Government: Any error was harmless because the district court said it would have imposed the same sentence under § 3553(a) | Tanksley: The record shows the court relied on the Guidelines calculation, so harmlessness is not established | Held: Government failed to show harmlessness; sentence vacated and case remanded for resentencing |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct.) (clarifies when the modified categorical approach applies and how to determine if listed items are elements or means)
- United States v. Ford, 509 F.3d 714 (5th Cir.) (prior Fifth Circuit decision treating Tex. Health & Safety Code § 481.112(a) as divisible and permitting enhancement)
- United States v. Hinkle, 832 F.3d 569 (5th Cir.) (applied Mathis to conclude § 481.112(a) is indivisible)
- United States v. Gonzales, 484 F.3d 712 (5th Cir.) (held delivery under § 481.112(a) was not a qualifying "drug trafficking offense")
- Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App.) (Texas Court of Criminal Appeals held delivery and possession-with-intent are different means of the same offense, treating listed items as means rather than elements)