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).
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