Note
Does a Texas Drug Prior Make You a Career Offender? United States v. Tanksley
Not under Tanksley: the Fifth Circuit held that a Texas possession-with-intent-to-deliver conviction is not a guidelines controlled substance offense.
Written by Brandon Sample · Updated · Filed under Sentencing articles
On this page
A Texas conviction for possession with intent to deliver a drug, under Texas Health and Safety Code § 481.112(a), does not count as a "controlled substance offense" under the federal sentencing guidelines. The Fifth Circuit held this on January 18, 2017, in United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). For someone whose sentence was raised because of that kind of prior, the difference can be years.
Why a prior drug conviction matters
The federal sentencing guidelines raise sentences for people with earlier "controlled substance offense" convictions. The main example is the career offender guideline. It applies to someone with two or more prior convictions for a controlled substance offense or a "crime of violence," and it can greatly increase the sentence. Other guidelines, like the gun guideline, use the same definition.
To decide whether a state conviction counts, courts use the "categorical approach." They compare the elements of the state law to the federal definition. If the state law covers more conduct than the federal definition, the conviction does not count, no matter what the person actually did. (For a similar issue, see our post on an Oregon drug delivery law.)
What happened
Dantana Tanksley pleaded guilty to being a felon in possession of a gun. The judge raised his guideline range because of an earlier Texas conviction under § 481.112(a), treating it as a controlled substance offense.
The Fifth Circuit disagreed. Texas defines "deliver" to include an "offer to sell" drugs. The guidelines definition does not cover a mere offer to sell, so the Texas law reaches more conduct than the federal definition.
Why the court could not look at the details
The court could not look at Tanksley's indictment, plea papers, or actual conduct to see what he actually did. That is because of the Supreme Court's decision in Mathis v. United States, 136 S. Ct. 2243 (2016).
Mathis explained when courts may use the "modified categorical approach," which allows a look at certain court records. It applies only when a statute is "divisible," meaning it lists separate crimes with different elements. The Fifth Circuit treated § 481.112(a) as one indivisible offense. The court wrote that, because the modified categorical approach did not fit, "we cannot use it to 'narrow' Tanksley's conviction to 'possession with intent to deliver' a controlled substance." So it had to look at the statute as a whole, which "criminalizes a greater swath of conduct than the elements of the relevant Guidelines offense."
The court also found the error was not harmless. The sentence was vacated and the case sent back for resentencing.
What this means today
The Sentencing Commission has revised the career offender definitions since 2017. If you have a Texas drug prior that raised your federal sentence, have a lawyer check how the current guidelines and Fifth Circuit law apply to you. It helps to have the presentence report (PSR, the report the probation office prepares before sentencing), which lists each prior conviction, along with the state court records for the prior itself.
Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.