United States v. McKibbon
878 F.3d 967
| 10th Cir. | 2017Background
- Defendant Gary McKibbon pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- At sentencing the district court treated a 2014 Colorado conviction under Colo. Rev. Stat. § 18-18-405(1)(a) (distribution/sale/offers to sell a controlled substance) as a "controlled substance offense" under U.S.S.G. § 4B1.2(b) and used a base offense level of 20.
- That calculation produced a total offense level of 21 and an advisory Guidelines range of 57–71 months; the court imposed a 66-month sentence.
- On direct appeal (for the first time), McKibbon argued the Colorado conviction does not categorically qualify as a § 4B1.2(b) "controlled substance offense."
- The Tenth Circuit reviewed for plain error and applied the categorical/modified categorical framework, considering whether the Colorado statute is divisible and whether it criminalizes conduct broader than § 4B1.2(b).
- The court concluded the Colorado statute is indivisible, criminalizes offers to sell (including sham/non‑bona fide offers), and thus is broader than § 4B1.2(b); it therefore found plain error that affected McKibbon’s substantial rights and granted resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colo. Rev. Stat. § 18-18-405(1)(a) qualifies categorically as a “controlled substance offense” under U.S.S.G. § 4B1.2(b) | McKibbon: Colorado statute is broader because it criminalizes offers to sell, including sham offers, so it does not categorically match § 4B1.2(b). | Government: The conviction fits § 4B1.2(b); if statute is divisible, modified categorical approach can identify qualifying means. | The court held the Colorado statute is indivisible and broader than § 4B1.2(b); a § 18-18-405(1)(a) conviction does not categorically qualify. |
| Whether the Colorado statute is divisible (permitting modified categorical approach) | McKibbon: Abiodun shows Colorado intended a single unitary offense, so statute is indivisible. | Government: Abiodun addressed double jeopardy, not divisibility, so modified categorical approach should apply. | The court held Abiodun controls: the statute is indivisible (single offense with alternative means). |
| Whether the sentencing error was plain | McKibbon: The law (including Madkins) clearly shows § 4B1.2(b) does not cover offers to sell absent attempt/bona fide offer; thus the district court erred plainly. | Government: (argued below) Colorado courts would require bona fide offer; error was not plain. | The court held the error was plain at time of appeal. |
| Whether the plain error affected substantial rights and warrants resentencing | McKibbon: Without the prior “controlled substance offense” his Guidelines range would be 30–37 months (vs. 57–71), so prejudice is clear and resentencing is required. | Government: did not dispute Guideline math on appeal. | The court held the error prejudiced McKibbon’s substantial rights and, under the demanding fourth prong, granted resentencing. |
Key Cases Cited
- United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017) (§ 4B1.2(b) does not categorically encompass state statutes criminalizing offers to sell drugs)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility inquiry and limits on modified categorical approach)
- People v. Abiodun, 111 P.3d 462 (Colo. 2005) (Colorado Supreme Court: § 18-18-405(1)(a) defines a single unitary offense)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (Guidelines errors can satisfy prejudice prong when they set incorrect framework for sentencing)
- United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir. 2014) (discussing demanding standard for fourth prong of plain-error review)