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

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. Career Offender Enhancement | Controlled Substance Act | Dantana Tanksley

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 than a generic federal controlled 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.

    Three Arrested For Terroristic Act for throwing a large fire cracker in someone’s yard – News – Booneville Democrat – Booneville, AR

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