UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ZACHARY ROBERT BABCOCK, Defendant - Appellant.
No. 20-4003
United States Court of Appeals for the Tenth Circuit
July 21, 2022
PUBLISH; D.C. Nos. 2:18-CV-00819-TS & 2:17-CR-00124-TS-1; Appeal from the United States District Court for the District of Utah
Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for the Defendant-Appellant.
Elizabethanne Stevens, Assistant United States Attorney (John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, with her on the briefs), Salt Lake City, Utah, for the Plaintiff-Appellee.
Before HARTZ, KELLY, and MURPHY, Circuit Judges.
Defendant Zachary Babcock appeals the denial of his motion under
Defendant contends that his trial counsel should have argued at sentencing (1) that an offer to sell under the Utah statute is not necessarily an attempt to commit a controlled-substance offense and (2) that the guideline commentary stating that an attempt to commit a controlled-substance offense is also a controlled-substance offense improperly expanded the text of the guideline. Exercising jurisdiction under
I. BACKGROUND
Defendant was charged with possession of methamphetamine with intent to distribute, see
Defendant‘s presentence investigation report (PSR) calculated Defendant‘s base offense level as 20 by applying a guideline that provides an increased offense level for those who have previously been convicted of a felony “controlled substance offense.”
The guidelines define controlled-substance offense to mean:
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits 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.
To determine whether a prior conviction qualifies as a controlled-substance offense, we apply what is called the categorical approach, which requires us to “line up the elements of the prior conviction alongside the elements of the [guidelines] predicate offense” to make sure that the guidelines definition of the predicate offense does not have any elements absent from the offense of the prior conviction. Madkins, 866 F.3d at 1145 (brackets and internal quotation marks omitted). That is, a prior conviction under a statute “will qualify as a controlled substance offense only if [the violated statute] criminalizes no more conduct than the offenses listed in the Guidelines.” United States v. Faulkner, 950 F.3d 670, 674 (10th Cir. 2019).1 Our analysis focuses on “the elements of the statute of conviction and not on the particular facts underlying that conviction.” Id. (brackets and internal quotation marks omitted).
Defendant‘s prior convictions were under
Defendant, however, argues that the government‘s argument fails on two counts. First, he argues that for the state offense to constitute an attempt to commit a controlled-substance offense, the offender must make a bona fide offer to distribute a controlled substance, and, in his view, the Utah statute does not require that the offer be bona fide, so the state offense cannot be a predicate offense for application of the guidelines enhancement. Second, Defendant argues that even if the Utah offense is equivalent to an attempt to commit a controlled-substance offense, the Sentencing Commission lacked authority
The district court rejected both of Defendant‘s arguments and denied a certificate of appealability (COA) to allow Defendant to appeal to this court. See
II. DISCUSSION
A. Standard of Review
In a § 2255 appeal, “[w]e review the district court‘s legal rulings . . . de novo and its findings of fact for clear error.” United States v. Holloway, 939 F.3d 1088, 1097 (10th Cir. 2019) (internal quotation marks omitted). Because there are no disputed historical facts, our review is de novo. Cf. id. (reviewing claim of ineffective assistance of counsel de novo).
B. Ineffective Assistance of Counsel
To establish an ineffective-assistance-of-counsel claim, one must show both deficient performance and resultant prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We may reject a claim under either prong without reviewing the other. See id. at 697.
Deficient performance is representation that falls “below an objective
“[C]ounsel‘s failure to raise or recognize a potential legal argument does not automatically render counsel‘s performance constitutionally deficient.” United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004). Rather, we must ask whether “the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. In answering this question we must recognize that life is short. Realistically, counsel do not have the time, and therefore are not required, to do everything possible to help their clients. They are not ineffective because they fail to conceive, research, and raise every novel argument that has a chance to prevail. See New v. United States, 652 F.3d 949, 952 (8th Cir. 2011) (failure to raise argument that a warrantless entry into defendant‘s hospital room was a search violating the Fourth Amendment did not constitute deficient performance where there was a split of authority among state courts and the Eighth Circuit had not yet addressed the issue). In particular, if an argument is meritless, it is likely that the failure to raise it was not deficient performance. But in any event, the lack of merit establishes that the defendant was not prejudiced by the failure to argue the point, thereby defeating the ineffective-assistance claim. See, e.g., United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006) (assuming counsel‘s performance was deficient but holding that ineffective-assistance claim failed because defendant was not prejudiced by omission of argument that “would have failed on the merits“).
Because the merit of the ineffectiveness claim depends on the merits of the arguments not made by trial counsel, we next address the merits of those arguments. We begin by discussing when an offer to distribute constitutes an attempt to distribute. We then turn to the Utah statute and conclude that an offer to distribute under the statute satisfies the requirements for an attempt. After that, we consider whether the guidelines commentary improperly defined a controlled-substance offense to include an attempt to commit a controlled-substance offense. Although there is now some caselaw support for that proposition, we conclude that failure to raise the issue was not deficient performance at the time of Defendant‘s sentencing.
C. When Is an Offer to Distribute an Attempt to Distribute?
In two recent cases this court held that statutes proscribing offers to sell did not meet the guidelines definition of a controlled-substance offense because the government had not shown that the statutes required an intent to sell a controlled substance. In Madkins (decided two months before Defendant was sentenced), the court considered a Kansas statute that made it unlawful “to sell, offer for sale or have in [one‘s] possession with intent to sell, deliver, or distribute” a controlled
We considered whether an offer to sell under the Kansas statute would satisfy the guideline because, under the guideline commentary, an attempt to sell is treated as a controlled-substance offense and an offer to sell could be an attempt to sell. We rejected that possibility because an attempt to commit a crime requires an intent to commit the crime; and such intent was not required to prove an offer to sell under the Kansas statute. See Madkins, 866 F.3d at 1147–48. Therefore, the Kansas statute was broader than the guidelines definition of sell or attempt to sell. See id. We quote at length our explanation for that conclusion:
In reaching our holding today, we note that at first glance, it seems as though an offer for sale would fit squarely within the definition in the Guidelines, since the commentary to
§ 4B1.2 clarifies that a controlled substance offense includes an attempt to commit such an offense. But a closer look reveals that the two are not a categorical match. We have previously explained that in our circuit, “an attempt to commit a crime requires the intent to commit the crime and overt acts in furtherance of that intent.” See United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir. 2005) (emphasis added). And because a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than a conviction for an attempt to sell.For example, as several other circuits have noted, “[a]n offer to sell can be fraudulent, such as when one offers to sell the Brooklyn Bridge. In such a circumstance, the offer to sell is fraudulent in the sense that the person offering the bridge or the drug does not have the intent to distribute or sell the item.” [United States v.] Savage, 542 F.3d [959,] 965 [2d Cir. 2008] (citing United States v. Palacios-Quinonez, 431 F.3d 471, 476 (5th Cir. 2005))5. . . .
Since [an offer] does not necessarily involve the intent to sell or distribute that is required for [an attempt], a conviction for possession with intent to sell a controlled substance—where sale is defined to include an offer—is broader than the conduct criminalized in
§ 4B1.2(a) and the authoritative commentary.
The one out-of-circuit opinion we cited in support of our intent analysis—Savage—likewise focused on only the element of intent in holding that an offer to sell under a Connecticut statute did not constitute an attempt to commit a controlled-substance offense. That court concluded as follows its analysis of why conviction under the Connecticut statute would not satisfy the guideline:
An offer to sell can be fraudulent, such as when one offers to sell the Brooklyn Bridge. In such a circumstance, the offer to sell is fraudulent in the sense that the person offering the bridge or the drug does not have the intent to distribute or sell the item. As we have held, a crime not involving the mental culpability to commit a substantive narcotics offense
does not serve as a predicate controlled substance offense under the Guidelines. Thus, the Connecticut statute, by criminalizing a mere offer to sell, criminalizes more conduct than falls within the federal definition of a controlled substance offense.
Savage, 542 F.3d at 965–66 (citations, brackets, and internal quotation marks omitted).
This circuit‘s next opinion on the subject, United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017) (decided two months after Defendant was sentenced), adopted the same reasoning as in Madkins, quoting the same passage from that opinion that we quoted above. It considered a Colorado drug law that defined prohibited sales to include “a barter, an exchange, or a gift, or an offer therefor.” Id. at 972 (quoting
Defendant asserts, however, that McKibbon required more than an intent element. He argues that we insisted that the offer to sell be a bona fide offer to sell, and that an offer is bona fide only if the offeror has the ability to consummate the sale. As he puts it, “[T]his court has explained that a bona fide offer to sell is one in which the ‘defendant had both the intent and ability to proceed with the sale.‘” Aplt. Br. at 14 (quoting McKibbon, 878 F.3d at 973) (emphasis in Defendant‘s brief). Defendant is correct that McKibbon states that the offer to sell must be bona fide. But we have no doubt that the panel in McKibbon was using the term as it is defined in Black‘s Law Dictionary 217 (11th ed. 2019): “1. Made in good faith; without fraud or deceit. 2. Sincere; genuine.” An offer to sell is bona fide if the offeror intends to sell the product or service offered. The context of our use of the term bona fide further supports our interpretation. We used the term in response to the government‘s argument that the Colorado Supreme Court had never addressed a conviction for an offer to sell that was not a bona fide offer and that the state‘s highest court would probably require proof of a bona fide offer to sell if the issue ever arose. See McKibbon, 878 F.3d at 973–74. In making that argument, the government‘s brief in McKibbon stated: “[T]he Colorado Supreme Court would likely interpret the term ‘offer’ to mean a bona-fide offer—i.e., one made with the intent to sell drugs.” McKibbon (16-1493) Aplee. Br. at 13. It would be most unusual and surprising if we had rejected the government‘s “bona fide” argument, using the same term (bona fide) as that argument, and yet were giving that term an idiosyncratic meaning (a meaning different from the dictionary meaning and the meaning provided in the government brief) without explicitly saying so.
The Government argues that there is no Colorado Supreme Court case expressly addressing a conviction under
Colo. Rev. Stat. § 18-18-405(1)(a) for a fraudulent or non-bona fide offer to sell controlled substances. But that was true, as well, of the Kansas law addressed in Madkins, yet this Court interpreted an “offer” for sale under Kansas law to include fraudulent offers made without the intent required in§ 4B1.2(b) , even in the absence of a state case recognizing such a conviction. See 866 F.3d at 1147-48; see also United States v. Bryant, 571 F.3d 147, 156-58 (1st Cir. 2009) (holding New York offense of offering to sell a controlled substance fell withinU.S.S.G. § 4B1.2(b) because ”it is well-established under New York law that in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell—i.e., that defendant had both the intent and ability to proceed with the sale” (emphasis added) (internal quotation marks omitted)); United States v. Savage, 542 F.3d 959, 965-66 (2d Cir. 2008) (interpreting Connecticut statute criminalizing offers to include fraudulent offers without citing supporting state case).
The citation to Bryant was to show that it is not an impossible burden to insist that the government provide a state-court decision imposing an intent requirement on a prohibition of offers to sell. In Bryant the defendant argued that his conviction under a New York drug statute that prohibited offers to sell was not a controlled-substance offense. He relied on the proposition in Savage that an offer to sell made without the intent to distribute or sell the drug would not be a controlled-substance offense under the guidelines. See Bryant, 571 F.3d at 157. The First Circuit rejected the argument because the New York statute in fact required such intent. It wrote: “[I]t is well-established under New York law that ‘in order to support a conviction under an offering for sale theory, there must be evidence of a bona fide offer to sell—i.e., that defendant had both the intent and ability to proceed with the sale.‘” Id. at 158 (internal quotation marks omitted). Thus, it concluded, “At the time Bryant was allegedly convicted of the offense, he would have been found to have intent to proceed with a sale.” Id.
Bryant was not adopting the definition of bona fide offer used by the New York courts. All that mattered for the First Circuit‘s purposes was that New York law explicitly required an intent to sell. Defendant would have us believe that by including quoted language in a parenthetical that was broader than necessary to make the quoting court‘s point (McKibbon did not underline the “ability to proceed with the sale” language, but rather underlined the phrase “it is well-established under New York law“—to show that some States do clearly require intent) this court in McKibbon adopted a meaning of bona fide that is a significant departure from common usage. We reject the proposition as fanciful.
To be sure, attempt requires more than intent. McKibbon quoted Madkins for the proposition that “an attempt to commit a crime requires the intent to commit the crime and overt acts in furtherance of that intent.” McKibbon, 878 F.3d at 973 (internal quotation marks omitted). Before assessing whether the Utah offer-to-sell
In the attempt context we have said that whether conduct qualifies as an overt act (or, using the more common terminology, qualifies as a substantial step toward committing the offense6) “necessarily depends on the facts of each case.” United States v. Ramirez, 348 F.3d 1175, 1180 (10th Cir. 2003) (internal quotation marks omitted). In assessing whether conduct constitutes a substantial step, we must keep in focus that “[t]he primary purpose in punishing attempts is . . . to subject to corrective action those individuals who have sufficiently manifested their dangerousness.” 2 Wayne LaFave, Substantive Criminal Law § 11.2, at 285 (3d ed. 2018).
One could reasonably take the position that an offer to sell is always a satisfactory overt act or substantial step. This court has certainly suggested as much. See Almanza-Vigil, 912 F.3d at 1320 (in the attempt context, referring to an offer as an overt act); see also United States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012),
abrogated on other grounds by United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (“An offer to sell a controlled substance is an act perpetrated in furtherance of a sale, typically as part of the negotiation for the price and quantity, and it is therefore a substantial step in attempting to consummate a sale.“).
But even if an offer to sell might in some circumstances not suffice as a substantial step, we think that situation sufficiently unlikely that it is appropriate to place the burden on the defendant to show that a conviction could be had under the state offer-to-sell statute in circumstances in which the offer was not a substantial step. Under the categorical approach, “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); accord Moncrieffe v. Holder, 569 U.S. 184, 191 (2013). The defendant “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Duenas-Alvarez, 549 U.S. at 193; see, e.g., United States v. Mendez, 924 F.3d 1122, 1125–26 (10th Cir. 2019) (requiring examples of prosecution under defendant‘s expansive reading of state statute where neither statute on its face nor caselaw interpreting it supported defendant‘s interpretation); cf. United States v. Titties, 852 F.3d 1257, 1274 (10th Cir. 2017) (not requiring examples of actual prosecution under defendant‘s theory where plain text of the statute reached beyond the generic definition of a violent felony). We now turn to whether the Utah offer-to-sell provision is a controlled-substance offense.
D. The Utah Statute
To begin with, in a brief opinion addressing whether
The statute in question . . . specif[ies] that any activity leading to or resulting in the distribution for value of a controlled substance must be engaged in knowingly or with intent that such distribution would, or would be likely to, occur. Thus, any witting or intentional lending of aid in the distribution of drugs, whatever form it takes, is proscribed by the act.
State v. Harrison, 601 P.2d 922, 923 (Utah 1979).
The Utah Court of Appeals later elaborated on the matter. In State v. Hester an undercover officer drove up to a curb where the defendant was standing and asked if he had any heroin, to which the defendant replied, “only coke.” 3 P.3d 725, 727 (Utah Ct. App. 2000), abrogated on other grounds by State v. Clark, 20 P.3d 300 (Utah Ct. App. 2001). The officer said that she wanted heroin but “if he had any cocaine she had a twenty“; the defendant took her $20 bill, told her to wait, and was then arrested as he was walking away from the undercover officer. Id. The defendant was charged with “unlawful distribution, offering, agreeing, consenting or arranging to distribute a controlled or counterfeit substance” under
According to the court of appeals, “To make out a prima facie case under the statute, the State must show that an offer, agreement, consent, or arrangement to distribute controlled substances was made by the defendant and, whichever variation or variations it charges, that the behavior was engaged in knowingly or with intent that such distribution would, or would be likely to, occur.” Id. 728 (internal quotation marks omitted).7 It further held that “[a] defendant who offers to sell drugs with no actual intent of following through is not guilty of the offense of arranging.” Id. 729. There, despite the defendant‘s verbal offer and receipt of a $20 bill, the
court held that there was insufficient evidence to show that “the defendant acted with the knowledge or intent that his actions would result in the distribution of a controlled substance.” Id.
The State could have shown intent, according to the court, “by producing evidence of a completed sale of cocaine to [the officer] or evidence that [defendant] took active steps to facilitate the distribution of cocaine, even if the distribution never actually occurred.” Id. The court provided examples of active steps, with accompanying illustrative cases, including “ma[king] phone calls seeking drugs; dr[iving] around looking for drugs; comment[ing] to [the officer] on how the drugs were to be acquired; [being] seen conferring with known drug suppliers; or [being] shown to be a link in a chain of distribution.” Id. 729 n.6 (citations and internal quotation marks omitted). By contrast, in Hester the defendant did not have cocaine on him at the time, nor had he spoken to anyone after leaving the officer, and there was no indication he would “meet a supplier or otherwise actually procure cocaine or arrange for its delivery to [the officer].” Id. 727.
We easily conclude that the Utah statute requires an intent to commit a controlled-substance offense.8 In addition, we see little difference between the
requirement in Hester of substantial evidence of intent and the traditional requirement in attempt law that there be proof of a substantial step in furtherance of the offense. In other words, Utah effectively requires an overt act in support of an offer to sell. It is perhaps conceivable that Utah courts might interpret the statute to permit a conviction of one who is not guilty of an attempt to commit a controlled-substance offense. But as previously stated, under the categorical approach, “find[ing] that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires . . . a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U.S. at 193. Defendant has not satisfied his burden of showing such a possibility, and the Utah Court of Appeals decision in Hester would seem to foreclose it.9
about this challenge to Defendant‘s enhancement. We therefore cannot say that it was objectively unreasonable for counsel to fail to argue that Defendant‘s Utah conviction did not qualify as a controlled-substance offense.
E. Authority of Guideline Commentary
Defendant argues that his counsel should have objected to the enhancement on the ground that the Sentencing Commission exceeded its authority when, rather than amending the
The guidelines contain three types of content: (1) guideline provisions, (2) “policy statements regarding application of the guidelines,” and (3) commentary, which “may interpret a guideline or explain how it is to be applied, suggest circumstances which may warrant departure from the guidelines, or provide background information.” Stinson v. United States, 508 U.S. 36, 41 (1993) (ellipses, brackets, and internal quotation marks omitted); see id. 46 (one way to incorporate revisions to the guidelines is via “commentary, if the guideline which the commentary interprets will bear the construction“). Stinson held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. 38. This limitation ensures that the Sentencing Commission does not impermissibly circumvent the requirements that it comply with the notice-and-comment provisions of the Administrative Procedure Act in issuing guidelines, see 28 U.S.C. § 994(x), and that Congress be given notice to enable it to revoke or amend proposed guidelines, see id. § 994(p). See Mistretta v. United States, 488 U.S. 361, 393–94 (1989).10
As we noted above,
The circuit courts are divided on the legitimacy of this application note, with a slight majority finding the guideline text and application note consistent with one
consistent); United States v. Richardson, 958 F.3d 151, 154–55 (2d Cir. 2020), cert. denied, 141 S. Ct. 423 (2020) (same); United States v. Smith, 989 F.3d 575, 585 (7th Cir.), cert. denied, 142 S. Ct. 488 (2021) (same); United States v. Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993) (same), overruled on other grounds by Custis v. United States, 511 U.S. 485 (1994); United States v. Smith, 54 F.3d 690, 693 (11th Cir. 1995) (same). But see United States v. Nasir, 982 F.3d 144, 159 (3d Cir. 2020) (en banc) (the commentary is inconsistent with
Given the prominence of the issue and this split of authority, one might say that it would be deficient performance of counsel to fail to raise the issue, at least in a circuit which had not already resolved the matter. But there was no split of authority
when Defendant was sentenced on October 2, 2017. No circuit had held that the commentary and the guideline were inconsistent. More important, in United States v. Chavez, 660 F.3d 1215, 1228 (10th Cir. 2011), this court had rejected a challenge to the legitimacy of note 1 in the commentary to
F.3d at 585; Winstead, 890 F.3d at 1091; United States v. Walton, 840 F. App‘x 46, 47 (8th Cir.), cert. denied, 142 S. Ct. 163 (2021).
In light of our opinion in Chavez and the absence of any supporting decision by any other circuit at the time, we do not think that it was deficient performance by Defendant‘s counsel at sentencing to fail to raise a claim that the commentary relied on by the district court was invalid because it was inconsistent with the guideline itself. We are confident that there were scores of competent attorneys who likewise failed to raise the issue during that period of time. Defendant‘s claim of ineffective assistance of counsel on this ground must be rejected.
For these reasons, we find that counsel did not perform deficiently in failing to challenge either (1) the categorical fit between
III. CONCLUSION
We AFFIRM the judgment of the district court. Appellant‘s motion to file an oversized brief is GRANTED.
HARTZ
Circuit Judge