PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GARY ALAN MCKIBBON, Defendant - Appellant. No. 16-1493

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00130-RM-1)

________________ _________________ Jacob Rasch-Chabot, Assistant Federal Pub lic Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant Gary Alan McKibbon. J. Bishop Grewell, Assistant U.S. Attorney (R obert C. Troyer, U.S. Attorney, and Robert Mark Russel, Assistant U.S. Attorney, on the brief), Denv er, Colorado, for PlaintiffAppellee United States of America.

________________ _________________ Before BRISCOE , EBEL , and PHILLIPS , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ In this direct criminal appeal, we conc lude both that the di strict court plainly erred in treating Defendant Gary McKibbon’s prior Colorado drug distribution FILED United States Court of Appeals Tenth Circuit 

### December 28, 2017 Elisabeth A. Shumaker Clerk of Court2 conviction as a “controlled s ubstance offense” under U.S.S. G. § 4B1.2(b), and that that error warrants resentencing. BACKGROUND McKibbon pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In calculating his sentence for that offense under the 2016 sentencing guidelines, the district court c onsulted U.S.S.G. § 2K 2.1, which provided for a base offense level of twenty if McKibbon had a prior “controlled substance offense” as defined by U.S.S.G. § 4B1.2(b) and its applicat ion note 1. See U.S.S.G. § 2K2.1(a)(4)(A) & app. n.13. The court, without objection, deemed McKibbon’s 2014 Colorado conviction under Colo. Rev. Stat. § 18-18-405(1)(a ) for distribution of a Schedule I or II controlle d substance to be such a “c ontrolled substance offense.” Using a base offense level of twenty , then, the sentenci ng court calculated McKibbon’s total offense level to be twenty -one which, combined with his criminal history category IV, resulted in an advisory guideline range of fifty-seven to seventyone months in prison. The district court imposed a within-range sentence of sixty-six months. On appeal, McKibbon argues for the fi rst time that his prior 2014 Colorado conviction does not qualify as a “controlled substance offens e.” We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) to consider his appeal. 1

1 The Court GRANTS the Government’s moti on to supplement the appellate record with the plea agreement underlying McKibb on’s prior Colorado conviction. See3 STANDARD OF REVIEW Because McKibbon did not object at se ntencing to classifying his prior Colorado conviction as a “contro lled substance offense,” we review for plain error. See Fed. R. Crim. P. 52(b); see also Un ited States v. Taylor , 843 F.3d 1215, 1219 (10th Cir. 2016), cert. deni ed, 137 S. Ct. 1608 (2017). To obtain relief, then, McKibbon “must establish (1) the existe nce of ‘an error that has not been intentionally relinquished or abandoned,’ (2) ‘t he error must be plain—that is to say, clear or obvious,’ and (3) ‘the error . . . [must] have affect ed the defendant’s substantial rights.’” Tayl or, 843 F.3d at 1220 (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2 016)). “‘Once these three conditions have been met,’ we must ‘exercise [our] discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of j udicial proceedings.’” Id. (quoting Molina-Martinez, 136 S. Ct. at 1343). LEGAL DISCUSSION Colorado Revised Statute § 18-18-405(1)(a) makes it unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufactur e, dispense, sell, or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more other pe rsons, to manufacture, dispense, sell, distribute, or possess w ith intent to manufactur e, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a cont rolled substance.

United States v. Armendariz-Perez, 543 F. App’x 876, 880 (10th Cir. 2013) (unpublished).4 Relevant to the statute’s proscription agai nst selling a controlle d substance, Colorado defines “[s]ale” to “mean [] a barter, an exchange, or a gi ft, or an offer therefor.” Id. § 18-18-403(1) (emphasis added); see also id. § 18-18-102(33) (emphasis added). The federal sentencing guidelines, in turn, define a “controlled substance offense” to mean the manufacture, import, export, di stribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfe it substance) with intent to manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(b). This definition include[s] the offenses of aidi ng and abetting, conspiring, and attempting to commit such offenses. Id. § 4B1.2, app. n.1. I. The district court erred in classify ing McKibbon’s Colorado conviction as a “controlled substance offense” We apply a categorical/modified categor ical analysis to determine whether McKibbon’s prior Colorado conviction qualif ies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). See United States v. Ma dkins, 866 F.3d 1136, 1143-44 (10th Cir. 2017). In doing so, our focus is on “the elements of the statute of conviction and ‘not [on] the particular facts underlying that conviction.’” United States v. O’Connor, 874 F.3d 1147, 1151 (10th Cir. 2017) (quoting Taylor v. United States, 495 U.S. 575, 600 (199 0)) (alteration omitted).5 A. Colo. Rev. Stat. § 18-18-405(1 )(a) criminalizes a broader range of conduct than U.S.S.G. § 4B1.2(b) encompasses Comparing “the scope of the conduct c overed by the elements of” an offense under Colo. Rev. Stat. § 18-18-405(1)(a) with § 4B1.2(b)’s definition of a “controlled substance offense,” O’Con nor, 874 F.3d at 1151, we c onclude the state statute criminalizes a broader range of conduc t than that included in § 4B1.2(b). Specifically, the state statute criminalizes all offers to sell a controlled substance, while U.S.S.G. § 4B1.2(b) does not encomp ass mere offers to sell a controlled substance. Colorado Revised Statute § 18-18-405(1)(a), in pe rtinent part, makes it “unlawful for any person knowingly to manufact ure, dispense, sell, or distribute, or to possess with inte nt to manufacture, dispense, sell or distribute, a controlled substance.” Critically and relevant to the state statute’s proscrip tion against selling a controlled substance, Colorado defines “[s]ale” to “mean[] a barter, an exchange, or a gift, or an offer therefor.” Id. § 18-18-403(1) (emphasis added); see also id. § 18-18- 102(33) (emphasis added). However, the sentencing guidelines’ definition of a “controlled substance offense” in § 4B1.2(b) does not expressly include offering to sell. See Madkins, 866 F.3d at 1145. Instead, § 4B1.2(b) defines a “controlled substance offense” to include only “the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, impor t, export, distribute, or6 dispense,” U.S.S.G. § 4B1.2(b) . “[F]or purposes of this de finition, ‘distribute’ means ‘to deliver . . . a controlled substance or listed chemic al.’” Madkins, 866 F.3d at 1144 (quoting 21 U.S.C. § 802(11)). This court reached a similar conclusi on in Madkins, holdi ng that U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance o ffense” did not encompass a conviction under a Kansas law that made it a crime to o ffer to sell a controlled substance. 866 F.3d at 1143-48. 2
Other circuits have reached similar c onclusions about othe r state statutes criminalizing offers to sell drugs. See Un ited States v. Hinkle, 832 F.3d 569, 571-72 & 571 n.8 (5th Cir. 2016) (conc luding Texas statutes that ma de it unlawful to offer to sell a controlled substance cr iminalized a broader range of conduct than U.S.S.G. § 4B1.2(b) encompasses, citing earlier Fift h Circuit cases); Unite d States v. Savage, 542 F.3d 959, 964-66 (2d Cir. 2008) (re aching the same conclusion regarding Connecticut statute that made it unlawful to offer to sell a contro lled substance). Although a “controlled substance offense” under § 4B1.2(b) includes attempts to distribute controlled substances, in Ma dkins we considered and rejected the argument that such attempts would necessa rily encompass a stat e offense involving an “offer to sell” a co ntrolled substance:

2 At the time Madkins pled guilty, the Kansas statutes at issue th ere did not expressly make it unlawful to possess th e relevant controlle d substance with th e intent to offer it for sale. 866 F.3d at 1144-45. But Kansas case law and the state’s pattern jury instructions at that time provided that proof of a defendant’s possession of the controlled substance with the intent to offer it for sale was sufficient to support a conviction under those state st atutes. Id. at 1146-47.7 [W]e note that at first glance, it seem s as though an offer for sale would fit squarely within the definiti on in the Guidelines, since the commentary to § 4B1.2 clarifies th at a controlled substance offense includes an attempt to co mmit such an offense. Bu t a closer look reveals that the two are not a cat egorical match. We have previously explained that in our circuit, “an attemp t to commit a crime requires the intent to commit the crime and overt acts in furtherance of that intent.” See United States v. Taylor, 413 F. 3d 1146, 1155 (10th Cir. 2005) (emphasis added). And because a person can offer a controlled substance for sale without having th e intent to actual ly complete the sale, a conviction for an offer to se ll can be broader than a conviction for an attempt to sell. For example, as severa l other circuits have noted, “[a]n offer to sell can be fraudulent, such as wh en one offers to sell the Brooklyn Bridge. In such a circum stance, the offer to se ll is fraudulent in the sense that the person offering the bri dge or the drug does not have the intent to distribute or sell the item.” Savage, 542 F.3d at 965 [(2d Cir.)] (citing United States v. Palacios-Quinonez, 431 F. 3d 471, 476 (5th Cir. 2005)). To be sure, courts have reli ed on this reasoning in distinguishing between a conviction for possession of a controlled substance with intent to sell or deliver, and a c onviction for sale or delivery of a controlled substance without the posse ssion element. But the argument applies with equal force in the cont ext of the distinction between an offer and an attempt. Since the former does not necessarily involve the intent to sell or distribute that is required for the la tter, a conviction for possession with intent to sell a controlled substance— where sale is defined to include an offer—is broader than the conduct cr iminalized in § 4B1.2(a) and the authoritative commentary. Madkins, 866 F.3d at 1147- 48 (footnote omitted). The Government argues that ther e is no Colorado Supreme Court case expressly addressing a convi ction under Colo. Rev. St at. § 18-18-405(1)(a) for a fraudulent or non- bona fide offer to sell cont rolled substances. Bu t that was true, as well, of the Kansas law addr essed in Madkins, yet this Court interpreted an “offer” for sale under Kansas law to include fraudu lent offers made without the intent8 required in § 4B1.2(b), even in the ab sence of a state cas e recognizing such a conviction. See 866 F.3d at 1147-48; see also United Stat es v. Bryant , 571 F.3d 147, 156-58 (1st Cir. 2009) (holdi ng New York offense of o ffering to sell a controlled substance fell within U.S.S.G. § 4B1.2(b) because “it is well-established under New York law that in order to support a convicti on under an offering fo r sale theory, there must be evidence of a bona fide offer to se ll—i.e., that defendant had both the intent and ability to proceed with the sale” (emphasis added) (internal quotation marks omitted)); United States v. Savage, 542 F.3d 959, 965-66 (2d Cir. 2008) (interpreting Connecticut statute criminalizing offers to include fraudulent o ffers without citing supporting state case). The Government unpersuasively cont ends that, although the Colorado Supreme Court has never addressed the que stion, that Court “would probably” require proof of a bona fide offer to sell controlled substa nces to support a conviction. (Aple. Br. 12.) However, the plain language of the Colorado statute makes it unlawful to “offer” to sell controlled substa nces. The statute does not further modify or limit th e term “offer.” Without an y Colorado case law to the contrary, we have no author ity on behalf of Colorado to insert any new limiting adjective such as “bona fid e” adjacent to the unadorned wo rd, “offer.” Nor is there legislative or judicial preceden t in Colorado that has been cited to us that suggests that the Colorado Supreme Court would e ngage in its own legislation by rewriting Colo. Rev. Stat. §§ 18-18-405( 1) or 18-18-403(1), if this issue were presented to9 them. Thus, we cannot conclude the stat e courts would limit Colorado’s statute criminalizing “offers to se ll” controlled substances onl y to bona fide offers. Moreover, it makes sense that the Co lorado legislature would intend to criminalize both sham as well as bona fide offers to se ll drugs. Experience teaches that real drug dealers sometimes engage in sham deals, and those deals are fraught with the potential for violence, and so it is not implau sible that Colorado would want to criminalize su ch activities. The Government, nevertheless, asserts th at a Colorado Court of Appeals case, People v. Farris, 812 P.2d 654 (Colo. Ct. A pp. 1991) limited offers criminalized under § 18-18-405(1)(a) to bona fide offers. But Farris did not address that question. Instead, Farris addressed a prio r version of the statutes at issue here, a nd specifically considered whether a “procuri ng agent” defense remained available after the state legislature revised these stat utes. 812 P.2d at 655. Fa rris does not address whether the predecessor Colorado statute (or the curre nt one) criminalizes only bona fide (as opposed to sham) offers to sell controlled substances. Based on this Court’s reas oning in Madkins, then, we c onclude that Colo. Rev. Stat. § 18-18-405(1)(a) crimin alizes a broader range of conduct than is included in U.S.S.G. § 4B1.2(b)’s definition of a “controlled substanc e offense.” B. The Colorado statute is indivisible The Government next argues that Co lo. Rev. Stat. § 18-18-405(1)(a) is divisible, setting forth the elements of multiple cr iminal offenses, including manufacturing, dispensing, dist ributing, selling, or offe ring to sell a controlled10 substance. If so, the government argues th at we can apply the modified categorical approach to determine to which of those o ffenses McKibbon pled guilty in 2014. See Mathis v. United States, 136 S. Ct. 2243, 22 49 (2016). If we can do so, and if by references to permitted mate rials we can tell that McKibbon was not convicted of the overly broad offense of offeri ng to sell a controlled substa nce, then the Government contends his state convicti on could still qualify as a “c ontrolled substance offense” under U.S.S.G. § 4B1.2(b). Bu t if the statute lists, not el ements of diffe rent offenses, but only different means by which a pers on commits a single drug distribution offense, then the state stat ute is indivisible and the modified categorical approach will not apply. See Mathis, 13 6 S. Ct. at 2249-51, 2253. Mathis indicated that it will be “easy” to determine wh ether a state statute lists elements of different crimes or only mean s to commit a single cr ime when “a state court decision definitively answers the questi on.” Id. at 2256. We have just such a situation here. The Colorado Supreme Court, in People v. Abiodun, held that Colo. Rev. Stat. § 18-18-405(1)(a) “defines a si ngle offense.” 111 P.3d 462, 464 (Colo. 2005). In Abiodun, the defendant was charged and convicted under § 18-18- 405(1)(a) of both possession a nd distribution of a controlle d substance arising out of the same transaction; that is, “the only evidence of the defendant’s possession was that he acquired the drugs from a third part y for distribution to the informant.” 111 P.3d at 464. The Colorado Supreme Court held that convicting the defendant for both possession and distribution under those circumstances violat ed double jeopardy, id., because the Colorado legislature, in enacting Colo. Rev. Stat. § 18-18-405,11 intended “to create a single, unitary offens e.” 111 P.3d at 468 (stating also “that the acts enumerated in section 405(1)(a) all represent stages in the commission of one crime.”). In support of it s conclusion, the Colorado Supr eme Court went on to state that the Colorado legislature, in enacti ng § 18-18-405(1)(a), “joined” “a number of acts . . . as a disjunctive series, in a single sentence, without any attempt to differentiate them by name or other orga nizational device”; “j oin[ed] in a single proscription an entire range of conduct potentially facilitati ng or contributing to illicit drug traffic”; and “criminaliz ed” that “entire range of conduct . . . in a single subsection of a statute entitled simply, ‘Unlawful distribution, manufacturing, dispensing, sale or possess ion.’” Id. at 466 (footnote omitted). Abiodun further indicated that the statute’s “one sentence pros cription is structured as a series of acts, with reference to the same controlled substance and governed by a common mens rea”; “[t]he acts chosen for specific inclusion are not th emselves mutually exclusive but overlap in various ways and cover a continuum of conduct from the production of a controlled substance to its delivery to another person, under any of a number of circumstances”; and the sentence for violat ing this statute “is in no way dependent upon the particular enumerated act or acts he is found to have committed.” Id. Abiodun then concluded: Nothing in the specific language of the statute or the history of its enactment suggests an intent to cr eate a separate offense for each proscribed act. On the contrary, the scope and structure of the proscriptive provision, combined with sentencing provisions differentiating punishments on the basi s of the quantum of drugs (rather than the act) involved, strongly point s to the creation of a single crime,12 the gravamen of which is preventing the unauthorized delivery of a particular quantity of a part icular contraband substance. Id. at 466-67 (internal quotation marks om itted). Based on the Colorado Supreme Court’s decision in Abiodun, we conclude § 18-18-405(1)(a) is an indivisible statute, setting forth one offense which can be committed by a variety of means. The Government argues that, because Abiodun was specifically addressing a double jeopardy question, that decision does not directly an swer the relevant question here, whether Colo. Rev. Stat. § 18-18-405 (1)(a) is divisible. To the contrary, Abiodun addresses exactly that question, holding that the st ate legislature intended to create a single unitary offe nse when it enacted the “a lternatively-phrased” § 18-18- 405(1)(a). Mathis, 136 S. Ct. at 2249; see also id. at 2256. Moreover, Mathis suggested that, in dete rmining whether a statute is divisible, we consider whether it provi des different punishments for th e different ways listed to violate the statute’s criminal proscripti on. See 136 S. Ct. at 2256. The Colorado Supreme Court did just that in Abiod un, noting that § 18-18-405(1)(a) does not provide different punishments depending on whether a defendant manufactured or distributed or offered to se ll a controlled substance. Finally, Mathis suggests that , “if state law fails to pr ovide clear answers,” we can take a “peek” at the docum ents of this defendant’s pr ior conviction “for the sole and limited purpose of determining whethe r the listed items ar e elements of the offense.” 136 S. Ct. at 2256- 57 (internal quotation marks omitted). Doing so here, we see that McKibbon pled guilty to dist ribution of a contro lled substance under13 Colo. Rev. Stat. 18-18-405(1)(a ) by either selling or distri buting heroin. That further suggests that selling or dist ributing a controlled substan ce are only means to commit the single, indivisible offens e of distributing a controlled substance. See Mathis, 136 S. Ct. at 2248. For all of these reasons, then, we conc lude Colo. Rev. Stat. § 18-18-405(1)(a) sets forth a single indivisible criminal offense. And because that offense criminalizes a broader range of conduct th an is encompassed by U.S.S. G. § 4B1.2(b)’s definition of a “controlled substance o ffense,” any conviction under Colo. Rev. Stat. § 18-18- 405(1)(a) will categorically not qualify as a “controlled substance offense” under § 4B1.2(b). The district court, then, erred in treating McKi bbon’s prior Colorado conviction under § 18-18-40 5(1)(a) as a “controlled s ubstance offense.” II. The error was plain An error is plain if it “i s clear at the time of the appeal.” United States v. Iverson, 818 F.3d 1015, 1023 (1 0th Cir.), cert denied, 137 S. Ct . 217 (2016); see Johnson v. United States, 520 U.S. 461, 468 ( 1997) (“[I]t is enough that an error be ‘plain’ at the time of appella te consideration.”). Here, it was plain error to conclude that McKibbon’s prior Colorado conviction under Colo. Rev. Stat. § 18-18-405(1)(a) satisfied U.S.S.G. § 4B1.2(b)’s definiti on of a “controlled subs tance offense.” First, the Tenth Circuit has clearly held that § 4B1.2( b) does not include offers to sell controlled substances, unless the cr iminalized activity amounts to an attempt to distribute controlled substa nces. That means in essen ce that § 4B1.2(b) includes only bona fide offers to sell , because such activity can be considered an attempt to14 distribute. But § 4B1.2(b) does not include non-bona fide offers to sell because “offer” itself is not listed in § 4B1. 2(b) and a non-bona fi de offer cannot be considered an attempt to distribute. Second, the plain language of Colo. Rev. Stat. §§ 18-18- 405(1)(a) and 18-18- 403(1) criminalizes all offe rs to sell controlled substa nces. That phrase has never been limited by the Colorado courts and so it plainly criminal izes non-bona fide offers to sell drugs as well as bona fide offers. Third, Colo. Rev. Stat. § 18-18-405(1) is non-divisible. That is the clear holding of the Colorado Supreme Court in Abiodun. Thus we may evaluate a conviction under that statut e only under the categorical, rather than modified categorical, approach. Therefore, it is unavoidable that, applying the categorical approach, McKibbon’s conviction under Colo. Rev. St at. § 18-18-405(1)(a) does not satisfy the requirements of U.S.S.G. § 4B1.2(b). 3
III. The error affe cted McKibbon’s substantial rights At the third step of the plain-error analysis, McKibbon must show that the plain error affected his substa ntial rights; that is, that “t he error was prejudicial and

3 We recognize that McKibbon did not obj ect at sentencing to treating his prior conviction as a “controlled substance offense” under U. S.S.G. § 4B1.2(b), and therefore no one made these arguments to th e district court. Further, neither the district court nor the part ies had the benefit of Madki ns, which the Tenth Circuit issued while this appeal was pending. No netheless, the releva nt time period in determining whether an error is plain is when we consid er McKibbon’s direct appeal, which represents our opportunity to right any error that may have emerged with the evolution of the law during the Govern ment’s prosecution of McKibbon.15 affected the outcome of the proceedings.” United States v. Ca rillo, 860 F.3d 1293, 1300 (10th Cir. 2017). Here, without a pr evious “controlled s ubstance offense,” McKibbon did not qualify for a base offense level of twenty . He contends on appeal, and the Government does not dispute this, that his base offense level would have been fourteen and his total offense level w ould have been fifteen. That would have resulted in an advisory prison range of between thirty and thirty-seven months, instead of fifty-seven to seventy-one months. Because “the guidelines fo rm the essential starti ng point in any federal sentencing analysis, . . . it fo llows that an obvious error in applying them runs the risk of affecting the ultima te sentence.” United States v. Sabillon-Um ana, 772 F.3d 1328, 1333 (10th Ci r. 2014) (internal quotation marks). Nothing in the text of Rule 52(b), it s rationale, or the Court’s precedents supports a requirement th at a defendant seeking a ppellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, a nd higher, Guidelines range set the wrong framework for the sentencing proceedings. Molina-Martinez, 136 S. Ct. at 1345. IV. The error warrants relief because it seriously aff ects the fairness, integrity or public reputation of j udicial proceedings Our analysis of the fourth plain-erro r prong is informed by our recent decision in United States v. Rosales-Miranda, 755 F.3d 1253 (10th Cir. 2014). There we explained that, [u]nder the fourth prong of the plain- error test, the defendant must show that the complained-of e rror “seriously affects th e fairness, integrity, or public reputation of judicial proceed ings.” United States v. Figueroa– Labrada, 720 F.3d 1258, 1266 (10th Cir. 2013) (i nternal quotation marks16 omitted). “The fourth prong of the plai n error test is discretionary,” United States v. Turrietta, 696 F. 3d 972, 984 (10th Cir. 2012 ), and its standard is a “demanding standard, and of course, de pends on the facts of the particular case,” United States v. Gonzalez–Huerta , 403 F.3d 727, 737 (10th Cir. 2005) [(en banc)] (citation omitted). Reversal on the fourth prong is ap propriate only wh ere the error is “‘particularly egregious’ and the ‘failu re to notice the error would result in a miscarriage of justice.’” United St ates v. Rufai, 732 F.3d 1175, 1195 (10th Cir. 2013) (quoting Gonzalez–Huert a, 403 F.3d at 736). As part of this showing, in the sentencing context, a defendant “must demonstrate a strong possibility of receiving a signifi cantly lower sentence” but for the error. United States v. Mullins, 613 F.3d 1273, 1294 (10th Cir. 2010) (quoting United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009)) (internal quotation marks omitted). Rosales-Miranda, 755 F.3d at 1262. McKibbon has met this “demanding standard,” Gonzalez-Huerta, 403 F.3d at 737, and has “demonstrate[d] a strong possibility of receiving a significantly lower sentence,” Mullins, 613 F.3d at 1294 (internal quotation marks omitted). McKibbon argued that, but for the district court’s error, his base offense level would ha ve been fourteen, not twen ty, his total offense level would have been fifteen, not twenty -one, and his guideline imprisonment range would have been thirty to thir ty-seven months, not fifty-seven to seventy-one months. (Aplt. Br. 13.) The district c ourt sentenced McKibbon to a within-guideline sixty-six-month term of imprisonment. (Id. at 13-14.) His sixty-six-month term of imprisonment, as McKibbon argued, is “nearly 80% above the top of the” thirty to th irty-seven-month guideline range, which would have been the proper range but for the district court’s error. (Id. at 14 (emphasis added).)17 Because McKibbon has met the “d emanding standard,” GonazlezHuerta, 403 F.3d at 737, of the plain erro r’s fourth prong by showing that the district court’s error “seriously affe cted the fairness, integrity, or public reputation of judicial proceedings,” Figueroa-Labranda, 720 F.3d at 1266, we exercise our discretion to gr ant McKibbon resentencing. CONCLUSION For the foregoing reasons, we remand this case to the district court with directions to vacate McKibbon’s sentence and resentence him.