FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                      PUBLISH
                                                                          December 28, 2017
                       UNITED STATES COURT OF APPEALS
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
                             FOR THE TENTH CIRCUIT
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-1493

GARY ALAN MCKIBBON,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:16-CR-00130-RM-1)
                       _________________________________

Jacob 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.

J. 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.
                        _________________________________

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
                   _________________________________

EBEL, Circuit Judge.
                         _________________________________

      In this 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.

                                    BACKGROUND

      McKibbon 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 sixty-six

months.

      On 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.1



1
 The Court GRANTS the Government’s motion to supplement the appellate record
with the plea agreement underlying McKibbon’s prior Colorado conviction. See

                                           2
                                 STANDARD OF REVIEW

      Because 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, 

, 1219

(10th Cir. 2016), cert. denied, 

(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.’” 

(quoting Molina-Martinez v. United

States, 

, 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.’” 

136 S. Ct. at 1343).

                                   LEGAL DISCUSSION

      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.



United States v. Armendariz-Perez, 543 F. App’x 876, 880 (10th Cir. 2013)
(unpublished).

                                            3
Relevant 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.” 

(emphasis added); see also 

(emphasis added).

      The 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.

app. n.1.

I. The district court erred in classifying McKibbon’s Colorado conviction as a
“controlled substance offense”

      We 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, 

, 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.’” United

States v. O’Connor, 

, 1151 (10th Cir. 2017) (quoting Taylor v. United

States, 

, 600 (1990)) (alteration omitted).




                                            4
       A. Colo. Rev. Stat. § 18-18-405(1)(a) criminalizes a broader range of
       conduct than U.S.S.G. § 4B1.2(b) encompasses

       Comparing “the scope of the conduct covered by the elements of” an offense

under Colo. Rev. Stat. § 18-18-405(1)(a) with § 4B1.2(b)’s definition of a “controlled

substance offense,” 

, we conclude the state statute

criminalizes a broader range of conduct than that included in § 4B1.2(b).

Specifically, the state statute criminalizes all offers to sell a controlled substance,

while U.S.S.G. § 4B1.2(b) does not encompass mere offers to sell a controlled

substance.

       Colorado Revised Statute § 18-18-405(1)(a), in pertinent part, 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.” Critically and relevant to the state 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.” 

(emphasis added); see also 

102(33) (emphasis added).

       However, the sentencing guidelines’ definition of a “controlled substance

offense” in § 4B1.2(b) does not expressly include offering to sell. See 

. Instead, § 4B1.2(b) defines a “controlled substance offense” to include

only “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


                                             5
dispense,” U.S.S.G. § 4B1.2(b). “[F]or purposes of this definition, ‘distribute’ means

‘to deliver . . . a controlled substance or listed chemical.’” 

(quoting 21 U.S.C. § 802(11)).

      This court reached a similar conclusion in Madkins, holding that U.S.S.G.

§ 4B1.2(b)’s definition of a “controlled substance offense” did not encompass a

conviction under a Kansas law that made it a crime to offer to sell a controlled

.2

      Other circuits have reached similar conclusions about other state statutes

criminalizing offers to sell drugs. See United States v. Hinkle, 

, 571-72

& 571 n.8 (5th Cir. 2016) (concluding Texas statutes that made it unlawful to offer to

sell a controlled substance criminalized a broader range of conduct than U.S.S.G.

§ 4B1.2(b) encompasses, citing earlier Fifth Circuit cases); United States v. Savage,

, 964-66 (2d Cir. 2008) (reaching the same conclusion regarding

Connecticut statute that made it unlawful to offer to sell a controlled substance).

      Although a “controlled substance offense” under § 4B1.2(b) includes attempts

to distribute controlled substances, in Madkins we considered and rejected the

argument that such attempts would necessarily encompass a state offense involving

an “offer to sell” a controlled substance:

2
   At the time Madkins pled guilty, the Kansas statutes at issue there did not expressly
make it unlawful to possess the relevant controlled substance with the intent to offer
it for 

. But Kansas case law and the state’s pattern jury
instructions at that time provided that proof of a defendant’s possession of the
controlled substance with the intent to offer it for sale was sufficient to support a
conviction under those state statutes. 

                                             6
      [W]e 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, 

, 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.” 

[(2d Cir.)]
      (citing United States v. Palacios-Quinonez, 

, 476 (5th Cir.
      2005)). To be sure, courts have relied on this reasoning in distinguishing
      between a conviction for possession of a controlled substance with
      intent to sell or deliver, and a conviction for sale or delivery of a
      controlled substance without the possession element. But the argument
      applies with equal force in the context of the distinction between an
      offer and an attempt.

             Since the former does not necessarily involve the intent to sell or
      distribute that is required for the latter, 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.

(footnote omitted).

      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

                                           7
required in § 4B1.2(b), even in the absence of a state case recognizing such a

conviction. 

; see also United States v. Bryant, 

,

156-58 (1st Cir. 2009) (holding New York offense of offering to sell a controlled

substance fell within U.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, 

, 965-66 (2d Cir. 2008) (interpreting

Connecticut statute criminalizing offers to include fraudulent offers without citing

supporting state case).

      The Government unpersuasively contends that, although the Colorado

Supreme Court has never addressed the question, that Court “would probably”

require proof of a bona fide offer to sell controlled substances to support a

conviction. (Aple. Br. 12.) However, the plain language of the Colorado statute

makes it unlawful to “offer” to sell controlled substances. The statute does not

further modify or limit the term “offer.” Without any Colorado case law to the

contrary, we have no authority on behalf of Colorado to insert any new limiting

adjective such as “bona fide” adjacent to the unadorned word, “offer.” Nor is there

legislative or judicial precedent in Colorado that has been cited to us that suggests

that the Colorado Supreme Court would engage in its own legislation by rewriting

Colo. Rev. Stat. §§ 18-18-405(1) or 18-18-403(1), if this issue were presented to



                                           8
them. Thus, we cannot conclude the state courts would limit Colorado’s statute

criminalizing “offers to sell” controlled substances only to bona fide offers.

      Moreover, it makes sense that the Colorado legislature would intend to

criminalize both sham as well as bona fide offers to sell drugs. Experience teaches

that real drug dealers sometimes engage in sham deals, and those deals are fraught

with the potential for violence, and so it is not implausible that Colorado would want

to criminalize such activities.

      The Government, nevertheless, asserts that a Colorado Court of Appeals case,

People v. Farris, 

(Colo. Ct. App. 1991) limited offers criminalized

under § 18-18-405(1)(a) to bona fide offers. But Farris did not address that question.

Instead, Farris addressed a prior version of the statutes at issue here, and specifically

considered whether a “procuring agent” defense remained available after the state

legislature revised these 

. Farris does not address whether

the predecessor Colorado statute (or the current one) criminalizes only bona fide (as

opposed to sham) offers to sell controlled substances.

      Based on this Court’s reasoning in Madkins, then, we conclude that Colo. Rev.

Stat. § 18-18-405(1)(a) criminalizes a broader range of conduct than is included in

U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense.”

      B. The Colorado statute is indivisible

      The Government next argues that Colo. Rev. Stat. § 18-18-405(1)(a) is

divisible, setting forth the elements of multiple criminal offenses, including

manufacturing, dispensing, distributing, selling, or offering to sell a controlled

                                            9
substance. If so, the government argues that we can apply the modified categorical

approach to determine to which of those offenses McKibbon pled guilty in 2014. See

Mathis v. United States, 

, 2249 (2016). If we can do so, and if by

references to permitted materials we can tell that McKibbon was not convicted of the

overly broad offense of offering to sell a controlled substance, then the Government

contends his state conviction could still qualify as a “controlled substance offense”

under U.S.S.G. § 4B1.2(b). But if the statute lists, not elements of different offenses,

but only different means by which a person commits a single drug distribution

offense, then the state statute is indivisible and the modified categorical approach

will not apply. See 

, 2253.

      Mathis indicated that it will be “easy” to determine whether a state statute lists

elements of different crimes or only means to commit a single crime when “a state

court decision definitively answers the question.” 

We have just such a

situation here. The Colorado Supreme Court, in People v. Abiodun, held that Colo.

Rev. Stat. § 18-18-405(1)(a) “defines a single offense.” 

, 464 (Colo.

2005). In Abiodun, the defendant was charged and convicted under § 18-18-

405(1)(a) of both possession and distribution of a controlled substance arising out of

the same transaction; that is, “the only evidence of the defendant’s possession was

that he acquired the drugs from a third party for distribution to the 

. The Colorado Supreme Court held that convicting the defendant for

both possession and distribution under those circumstances violated double jeopardy,

Colorado legislature, in enacting Colo. Rev. Stat. § 18-18-405,

                                           10
intended “to create a single, unitary 

(stating also “that the

acts enumerated in section 405(1)(a) all represent stages in the commission of one

crime.”). In support of its conclusion, the Colorado Supreme Court went on to state

that the Colorado legislature, in enacting § 18-18-405(1)(a), “joined” “a number of

acts . . . as a disjunctive series, in a single sentence, without any attempt to

differentiate them by name or other organizational device”; “join[ed] in a single

proscription an entire range of conduct potentially facilitating or contributing to illicit

drug traffic”; and “criminalized” that “entire range of conduct . . . in a single

subsection of a statute entitled simply, ‘Unlawful distribution, manufacturing,

dispensing, sale or possession.’” 

(footnote omitted). Abiodun further

indicated that the statute’s “one sentence proscription is structured as a series of acts,

with reference to the same controlled substance and governed by a common mens

rea”; “[t]he acts chosen for specific inclusion are not themselves mutually exclusive

but overlap in various ways and cover a continuum of conduct from the production of

a controlled substance to its delivery to another person, under any of a number of

circumstances”; and the sentence for violating this statute “is in no way dependent

upon the particular enumerated act or acts he is found to have committed.” 

concluded:

       Nothing in the specific language of the statute or the history of its
       enactment suggests an intent to create a separate offense for each
       proscribed act. On the contrary, the scope and structure of the
       proscriptive provision, combined with sentencing provisions
       differentiating punishments on the basis of the quantum of drugs (rather
       than the act) involved, strongly points to the creation of a single crime,


                                            11
      the gravamen of which is preventing the unauthorized delivery of a
      particular quantity of a particular contraband substance.

-67 (internal quotation marks omitted). Based on the Colorado Supreme

Court’s decision in Abiodun, we conclude § 18-18-405(1)(a) is an indivisible statute,

setting forth one offense which can be committed by a variety of means.

      The Government argues that, because Abiodun was specifically addressing a

double jeopardy question, that decision does not directly answer the relevant question

here, whether Colo. Rev. Stat. § 18-18-405(1)(a) is divisible. To the contrary,

Abiodun addresses exactly that question, holding that the state legislature intended to

create a single unitary offense when it enacted the “alternatively-phrased” § 18-18-

405(1)(a). 

; see also 

      Moreover, Mathis suggested that, in determining whether a statute is divisible,

we consider whether it provides different punishments for the different ways listed to

violate the statute’s criminal proscription. 

. The Colorado

Supreme Court did just that in Abiodun, noting that § 18-18-405(1)(a) does not

provide different punishments depending on whether a defendant manufactured or

distributed or offered to sell a controlled substance.

      Finally, Mathis suggests that, “if state law fails to provide clear answers,” we

can take a “peek” at the documents of this defendant’s prior conviction “for the sole

and limited purpose of determining whether the listed items are elements of the

(internal quotation marks omitted). Doing so here,

we see that McKibbon pled guilty to distribution of a controlled substance under


                                           12
Colo. Rev. Stat. 18-18-405(1)(a) by either selling or distributing heroin. That further

suggests that selling or distributing a controlled substance are only means to commit

the single, indivisible offense of distributing a controlled substance. See 

.

      For all of these reasons, then, we conclude Colo. Rev. Stat. § 18-18-405(1)(a)

sets forth a single indivisible criminal offense. And because that offense criminalizes

a broader range of conduct than is encompassed by U.S.S.G. § 4B1.2(b)’s definition

of a “controlled substance offense,” any conviction under Colo. Rev. Stat. § 18-18-

405(1)(a) will categorically not qualify as a “controlled substance offense” under

§ 4B1.2(b). The district court, then, erred in treating McKibbon’s prior Colorado

conviction under § 18-18-405(1)(a) as a “controlled substance offense.”

II. The error was plain

      An error is plain if it “is clear at the time of the appeal.” United States v.

Iverson, 

, 1023 (10th Cir.), cert denied, 

(2016); see

Johnson v. United States, 

, 468 (1997) (“[I]t is enough that an error be

‘plain’ at the time of appellate consideration.”). Here, it was plain error to conclude

that McKibbon’s prior Colorado conviction under Colo. Rev. Stat. § 18-18-405(1)(a)

satisfied U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense.”

      First, the Tenth Circuit has clearly held that § 4B1.2(b) does not include offers

to sell controlled substances, unless the criminalized activity amounts to an attempt

to distribute controlled substances. That means in essence that § 4B1.2(b) includes

only bona fide offers to sell, because such activity can be considered an attempt to

                                           13
distribute. But § 4B1.2(b) does not include non-bona fide offers to sell because

“offer” itself is not listed in § 4B1.2(b) and a non-bona fide offer cannot be

considered an attempt to distribute.

       Second, the plain language of Colo. Rev. Stat. §§ 18-18-405(1)(a) and 18-18-

403(1) criminalizes all offers to sell controlled substances. That phrase has never

been limited by the Colorado courts and so it plainly criminalizes non-bona fide

offers to sell drugs as well as bona fide offers.

       Third, Colo. Rev. Stat. § 18-18-405(1) is non-divisible. That is the clear

holding of the Colorado Supreme Court in Abiodun. Thus we may evaluate a

conviction under that statute only under the categorical, rather than modified

categorical, approach.

       Therefore, it is unavoidable that, applying the categorical approach,

McKibbon’s conviction under Colo. Rev. Stat. § 18-18-405(1)(a) does not satisfy the

requirements of U.S.S.G. § 4B1.2(b).3

III. The error affected McKibbon’s substantial rights

       At the third step of the plain-error analysis, McKibbon must show that the

plain error affected his substantial rights; that is, that “the error was prejudicial and

3
  We recognize that McKibbon did not object at sentencing to treating his prior
conviction as a “controlled substance offense” under U.S.S.G. § 4B1.2(b), and
therefore no one made these arguments to the district court. Further, neither the
district court nor the parties had the benefit of Madkins, which the Tenth Circuit
issued while this appeal was pending. Nonetheless, the relevant time period in
determining whether an error is plain is when we consider McKibbon’s direct appeal,
which represents our opportunity to right any error that may have emerged with the
evolution of the law during the Government’s prosecution of McKibbon.

                                            14
affected the outcome of the proceedings.” United States v. Carillo, 

,

1300 (10th Cir. 2017). Here, without a previous “controlled substance offense,”

McKibbon did not qualify for a base offense level of twenty. He contends on appeal,

and the Government does not dispute this, that his base offense level would have

been fourteen and his total offense level would have been fifteen. That would have

resulted in an advisory prison range of between thirty and thirty-seven months,

instead of fifty-seven to seventy-one months.

      Because “the guidelines form the essential starting point in any federal

sentencing analysis, . . . it follows that an obvious error in applying them runs the

risk of affecting the ultimate sentence.” United States v. Sabillon-Umana, 

, 1333 (10th Cir. 2014) (internal quotation marks).

      Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents
      supports a requirement that a defendant seeking appellate review of an
      unpreserved Guidelines error make some further showing of prejudice
      beyond the fact that the erroneous, and higher, Guidelines range set the
      wrong framework for the sentencing proceedings.

.

IV. The error warrants relief because it seriously affects the fairness, integrity
or public reputation of judicial proceedings

      Our analysis of the fourth plain-error prong is informed by our recent decision

in United States v. Rosales-Miranda, 

(10th Cir. 2014). There we

explained that,

      [u]nder the fourth prong of the plain-error test, the defendant must show
      that the complained-of error “seriously affects the fairness, integrity, or
      public reputation of judicial proceedings.” United States v. Figueroa–
      Labrada, 

, 1266 (10th Cir. 2013) (internal quotation marks

                                           15
      omitted). “The fourth prong of the plain error test is discretionary,” United
      States v. Turrietta, 

, 984 (10th Cir. 2012), and its standard is a
      “demanding standard, and of course, depends on the facts of the particular
      case,” United States v. Gonzalez–Huerta, 

, 737 (10th Cir.
      2005) [(en banc)] (citation omitted).

             Reversal on the fourth prong is appropriate only where the error is
      “‘particularly egregious’ and the ‘failure to notice the error would result in
      a miscarriage of justice.’” United States v. Rufai, 

, 1195
      (10th Cir. 2013) (quoting 

). As part of
      this showing, in the sentencing context, a defendant “must demonstrate a
      strong possibility of receiving a significantly lower sentence” but for the
      error. United States v. Mullins, 

, 1294 (10th Cir. 2010)
      (quoting United States v. Meacham, 

, 1190 (10th Cir. 2009))
      (internal quotation marks omitted).

.

      McKibbon has met this “demanding standard,” 

, and has “demonstrate[d] a strong possibility of receiving a

significantly lower sentence,” 

(internal quotation

marks omitted). McKibbon argued that, but for the district court’s error, his

base offense level would have been fourteen, not twenty, his total offense level

would have been fifteen, not twenty-one, and his guideline imprisonment

range would have been thirty to thirty-seven months, not fifty-seven to

seventy-one months. (Aplt. Br. 13.) The district court sentenced McKibbon to

a within-guideline sixty-six-month term of imprisonment. (Id. at 13-14.) His

sixty-six-month term of imprisonment, as McKibbon argued, is “nearly 80%

above the top of the” thirty to thirty-seven-month guideline range, which

would have been the proper range but for the district court’s error. (Id. at 14

(emphasis added).)

                                            16
       Because McKibbon has met the “demanding standard,” Gonazlez-

, of the plain error’s fourth prong by showing that the

district court’s error “seriously affected the fairness, integrity, or public

reputation of judicial proceedings,” 

, we

exercise our discretion to grant McKibbon resentencing.

                                        CONCLUSION

       For the foregoing reasons, we remand this case to the district court with

directions to vacate McKibbon’s sentence and resentence him.




                                            17