Prior Colorado Drug Offense is Overbroad; Application of Career Offender Guideline was Plain Error

US v. McKibbon, 2017 WL 6614572 (10th Cir. 12/28/17): Great categorical analysis win. On plain error review, the Court reverses the district court's application of the career-offender enhancement based on defendant's prior Colorado drug conviction. Colo. Rev. Stat. § 18-18-405(a)(1) criminalizes a broader range of conduct than that included in § 4B1.2(b). The Colorado statute includes "sale" of a controlled substance, which under Colorado law includes offers to sell, while the career-offender definition of "controlled substance offense" does not expressly include offers to sell. The Court rejects the government's argument that the Colorado Supreme Court "'would probably' require proof of a bona fide offer to sell controlled substances to support a conviction" because the plain language of the statute does not include the qualifier "bona fide" and there is no Colorado state law stating such a requirement. The Court also rejects the government's argument that the statute is divisible, because the Colorado Supreme Court expressly stated in State v. Abiodun, 111 P.3d 462 (Colo. 2005), that §18-18-405(a)(1) "defines a single offense."