United States v. McKibbon

Defendant Gary McKibbon pled guilty to being a felon in possession of a firearm. 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. 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 argued for the first time that his prior 2014 Colorado conviction did not qualify as a “controlled substance offense.” After review, the Tenth Circuit concluded both that the district court plainly erred in treating defendant's prior Colorado drug distribution conviction as a “controlled substance offense” under U.S.S.G. 4B1.2(b), and that that error warranted resentencing. View "United States v. McKibbon" on Justia Law