Skip to content

Career Offender Enhancement Cannot Be Based On Texas Possession With Intent To Distribute Conviction

United States v. Tanksley - Career Offender Enhancement  : Dantana Tanksley was previously convicted in Texas under Section 481.112(a) of the Texas controlled substances act of possessing with intent to distribute a controlled substance. He was later enhanced as a career offender under federal sentencing guidelines.

Under the federal sentencing guidelines, an individual can be enhanced as a career offender if the person has two or more prior convictions that are controlled substance offenses or "crimes of violence." The sentencing guidelines define the term "controlled substance offense" by looking at what constitutes a federal controlled substance offense. If the elements of a state prior conviction are broader than federal controlled substance laws, the prior conviction will not qualify the person as a career offender. The federal career offender enhancement, if applicable, greatly increases an individual's sentence.

The Fifth Circuit held that application of the career offender enhancement in Tanksley’s case was improper because the Texas offense of possession with intent to distribute is broader than a generic federal substance offense. This is because Texas law defines “delivery” as including an “offer to sell” drugs. Federal law does not prohibit an “offer to sell.”

The court was barred from looking at the indictment, plea papers, or actual conduct associated with Tanksley’s Texas prior because of the Supreme Court’s recent decision in Mathis v. United States, 136 S.Ct. 2243 (2016). Mathis clarified application of the categorical and modified categorical approaches.

“Because the modified categorical approach is inappropriate in this case, we cannot use it to ‘narrow’ Tanksley's conviction to ‘possession with intent to deliver’ a controlled substance. We instead look to Section 481.112(a) as a whole in determining whether his conviction thereunder qualifies as a controlled substance offense under the Guidelines. Section 481.112(a) ‘criminalizes a greater swath of conduct than the elements of the relevant Guidelines offense.’” The case was remanded for resentencing. United States v. Tanksley, No. 15-11078 (5th Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

1 Comment

  1. Anna on November 23, 2017 at 8:48 pm

    Hello Brandon,
    Great article! Based on the information stated above would AR Terroristic act also not be a qualifying predicate for sentencing enhancement under the federal crime of violence? It appears to be just as broad and there is no generic federal offense that matches. A prosecutor stated that it could be applicable but it based on US v. Mathis and US v. Boman (2017) it shouldn’t. What are your thoughts?
    § 5-13-310. Terroristic act Universal Citation: AR Code § 5-13-310 (2016)
    (a) A person commits a terroristic act if, while not in the commission of a lawful act, the person:
    (1) Shoots at or in any manner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause injury to another person or damage to property; or
    (2) Shoots at an occupiable structure with the purpose to cause injury to a person or damage to property.
    (b) (1) Upon conviction, any person who commits a terroristic act is guilty of a Class B felony.
    (2) Upon conviction, any person who commits a terroristic act is guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person.
    (c) This section does not repeal any law or part of a law in conflict with this section, but is supplemental to the law or part of a law in conflict.
    http://law.justia.com/codes/arkansas/2016/title-5/subtitle-2/chapter-13/subchapter-3/section-5-13-310/

    Three Arrested For Terroristic Act for throwing a large fire cracker in someone’s yard – News – Booneville Democrat – Booneville, ARhttp://www.boonevilledemocrat.com/news/20170207/three-arrested-for-terroristic-act

Leave a Comment





Recommended for you

Federal Halfway House – Everything You Need To Know

Over the past several weeks, I have received numerous e-mails and calls from different individuals concerning federal halfway house placements that have been reduced significantly—or denied entirely—by the Federal Bureau of Prisons (“BOP”). What is going on? A variety of things, it seems. I.  Federal Halfway House – A Brief Overview The BOP has long…

The First Step Act Bill Summary Explained : A Comprehensive Analysis

The First Step Act 2018 Bill Summary: On December 21, 2018, the President signed into law The First Step Act 2018, a bipartisan effort to reform the federal criminal justice system. The Law Office of Brandon Sample has assembled this detailed analysis of the First Step Act 2018 to help the public understand the ins…

Sentencing Reform And Federal Prison News – January 2018

We are a week into 2018 and there is much buzz about what lies ahead in the year from the courts, Congress, and the U.S. Sentencing Commission for federal prison and sentencing reform. Here’s a summary of some of the highlights. (a) Congress – Sentencing Reform Different bills remain under consideration, but none have yet…

Scroll To Top