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 Public 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 (Robert C. Troyer, U.S. Attorney, and Robert 

Mark Russel, Assistant U.S. Attorney, on the brief), Denver, Colorado, for PlaintiffAppellee United States of America. 

_________________________________ 

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

In this direct criminal appeal, we conclude both that the district 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 Court
2 

conviction as a “controlled substance 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 consulted U.S.S.G. § 2K2.1, 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 application 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 controlled substance to be such a “controlled substance offense.” 

Using a base offense level of twenty, then, the sentencing 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 first time that his prior 2014 Colorado 

conviction does not qualify as a “controlled substance offense.” 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 motion to supplement the appellate record 

with the plea agreement underlying McKibbon’s prior Colorado conviction. See 
3 

STANDARD OF REVIEW 

Because McKibbon did not object at sentencing to classifying his prior 

Colorado conviction as a “controlled substance offense,” we review for plain error. 

See Fed. R. Crim. P. 52(b); see also United States v. Taylor, 843 F.3d 1215, 1219 

(10th Cir. 2016), cert. denied, 137 S. Ct. 1608 (2017). To obtain relief, then, 

McKibbon “must establish (1) the existence of ‘an error that has not been 

intentionally relinquished or abandoned,’ (2) ‘the error must be plain—that is to say, 

clear or obvious,’ and (3) ‘the error . . . [must] have affected the defendant’s 

substantial rights.’” Taylor, 843 F.3d at 1220 (quoting Molina-Martinez v. United 

States, 136 S. Ct. 1338, 1343 (2016)). “‘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 judicial 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 manufacture, dispense, sell, or 

distribute, a controlled substance; or induce, attempt to induce, or 

conspire with one or more other persons, to manufacture, dispense, sell, 

distribute, or possess with intent to manufacture, dispense, sell, or 

distribute, a controlled substance; or possess one or more chemicals or 

supplies or equipment with intent to manufacture a controlled substance. 

 

United States v. Armendariz-Perez, 543 F. App’x 876, 880 (10th Cir. 2013) 

(unpublished). 
4 

Relevant to the statute’s proscription 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). 

The federal sentencing guidelines, in turn, define a “controlled substance 

offense” to mean 

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, import, export, distribute, or dispense. 

U.S.S.G. § 4B1.2(b). This definition 

include[s] the offenses of aiding and abetting, conspiring, and 

attempting to commit such offenses. 

Id. § 4B1.2, app. n.1. 

I. The district court erred in classifying McKibbon’s Colorado conviction as a 

“controlled substance offense” 

 We apply a categorical/modified categorical analysis to determine whether 

McKibbon’s prior Colorado conviction qualifies as a “controlled substance offense” 

under U.S.S.G. § 4B1.2(b). See United States v. Madkins, 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 (1990)) (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 covered 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’Connor, 874 F.3d at 1151, we conclude the state statute 

criminalizes a broader range of conduct 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 encompass mere offers to sell a controlled 

substance. 

Colorado Revised Statute § 18-18-405(1)(a), in pertinent part, makes it 

“unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or 

to possess with intent to manufacture, dispense, sell or distribute, a controlled 

substance.” Critically and relevant to the state statute’s proscription 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, import, export, distribute, or 
6 

dispense,” U.S.S.G. § 4B1.2(b). “[F]or purposes of this definition, ‘distribute’ means 

‘to deliver . . . a controlled substance or listed chemical.’” Madkins, 866 F.3d at 

1144 (quoting 21 U.S.C. § 802(11)). 

This court reached a similar conclusion in Madkins, holding that U.S.S.G. 

§ 4B1.2(b)’s definition of a “controlled substance offense” did not encompass a 

conviction under a Kansas law that made it a crime to offer to sell a controlled 

substance. 866 F.3d at 1143-48.2 

Other circuits have reached similar conclusions about other state statutes 

criminalizing offers to sell drugs. See United States v. Hinkle, 832 F.3d 569, 571-72 

& 571 n.8 (5th Cir. 2016) (concluding Texas statutes that made it unlawful to offer to 

sell a controlled substance criminalized a broader range of conduct than U.S.S.G. 

§ 4B1.2(b) encompasses, citing earlier Fifth Circuit cases); United States v. Savage, 

542 F.3d 959, 964-66 (2d Cir. 2008) (reaching the same conclusion regarding 

Connecticut statute that made it unlawful to offer to sell a controlled substance). 

Although a “controlled substance offense” under § 4B1.2(b) includes attempts 

to distribute controlled substances, in Madkins we considered and rejected the 

argument that such attempts would necessarily encompass a state offense involving 

an “offer to sell” a controlled substance: 

 2

 At the time Madkins pled guilty, the Kansas statutes at issue there did not expressly 

make it unlawful to possess the relevant controlled substance with the 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 statutes. Id. at 1146-47. 
7 

[W]e note that at first glance, it seems as though an offer for sale would 

fit squarely within the definition in the Guidelines, since the 

commentary to § 4B1.2 clarifies that a controlled substance offense 

includes an attempt to commit such an offense. But a closer look reveals 

that the two are not a categorical match. We have previously explained 

that in our circuit, “an attempt 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 the intent to actually complete the 

sale, a conviction for an offer to sell can be broader than a conviction 

for an attempt to sell. 

For example, as several other circuits have noted, “[a]n offer to 

sell can be fraudulent, such as when one offers to sell the Brooklyn 

Bridge. In such a circumstance, the offer to sell is fraudulent in the 

sense that the person offering the bridge 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 relied on this reasoning in distinguishing 

between a conviction for possession of a controlled substance with 

intent to sell or deliver, and a conviction for sale or delivery of a 

controlled substance without the possession element. But the argument 

applies with equal force in the context 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 latter, a conviction for possession with 

intent to sell a controlled substance—where sale is defined to include an 

offer—is broader than the conduct criminalized in § 4B1.2(a) and the 

authoritative commentary. 

Madkins, 866 F.3d at 1147-48 (footnote omitted). 

 The Government argues that there is no Colorado Supreme Court case 

expressly addressing a conviction under Colo. Rev. Stat. § 18-18-405(1)(a) for a 

fraudulent or non- bona fide offer to sell controlled substances. But that was true, as 

well, of the Kansas law addressed in Madkins, yet this Court interpreted an “offer” 

for sale under Kansas law to include fraudulent offers made without the intent 
8 

required in § 4B1.2(b), even in the absence of a state case recognizing such a 

conviction. See 866 F.3d at 1147-48; see also United States v. Bryant, 571 F.3d 147, 

156-58 (1st Cir. 2009) (holding New York offense of offering 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 conviction under an offering for sale theory, there 

must be evidence of a bona fide offer to sell—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 offers without citing 

supporting state case). 

The Government unpersuasively contends that, although the Colorado 

Supreme Court has never addressed the question, that Court “would probably” 

require proof of a bona fide offer to sell controlled substances to support a 

conviction. (Aple. Br. 12.) However, the plain language of the Colorado statute 

makes it unlawful to “offer” to sell controlled substances. The statute does not 

further modify or limit the term “offer.” Without any Colorado case law to the 

contrary, we have no authority on behalf of Colorado to insert any new limiting 

adjective such as “bona fide” adjacent to the unadorned word, “offer.” Nor is there 

legislative or judicial precedent in Colorado that has been cited to us that suggests 

that the Colorado Supreme Court would engage in its own legislation by rewriting 

Colo. Rev. Stat. §§ 18-18-405(1) or 18-18-403(1), if this issue were presented to 
9 

them. Thus, we cannot conclude the state courts would limit Colorado’s statute 

criminalizing “offers to sell” controlled substances only to bona fide offers. 

Moreover, it makes sense that the Colorado legislature would intend to 

criminalize both sham as well as bona fide offers to sell 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 implausible that Colorado would want 

to criminalize such activities. 

The Government, nevertheless, asserts that a Colorado Court of Appeals case, 

People v. Farris, 812 P.2d 654 (Colo. Ct. App. 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 prior version of the statutes at issue here, and specifically 

considered whether a “procuring agent” defense remained available after the state 

legislature revised these statutes. 812 P.2d at 655. Farris does not address whether 

the predecessor Colorado statute (or the current one) criminalizes only bona fide (as 

opposed to sham) offers to sell controlled substances. 

 Based on this Court’s reasoning in Madkins, then, we conclude that Colo. Rev. 

Stat. § 18-18-405(1)(a) criminalizes a broader range of conduct than is included in 

U.S.S.G. § 4B1.2(b)’s definition of a “controlled substance offense.” 

B. The Colorado statute is indivisible 

The Government next argues that Colo. Rev. Stat. § 18-18-405(1)(a) is 

divisible, setting forth the elements of multiple criminal offenses, including 

manufacturing, dispensing, distributing, selling, or offering to sell a controlled 
10 

substance. If so, the government argues that we can apply the modified categorical 

approach to determine to which of those offenses McKibbon pled guilty in 2014. See 

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If we can do so, and if by 

references to permitted materials we can tell that McKibbon was not convicted of the 

overly broad offense of offering to sell a controlled substance, then the Government 

contends his state conviction could still qualify as a “controlled substance offense” 

under U.S.S.G. § 4B1.2(b). But if the statute lists, not elements of different offenses, 

but only different means by which a person commits a single drug distribution 

offense, then the state statute is indivisible and the modified categorical approach 

will not apply. See Mathis, 136 S. Ct. at 2249-51, 2253. 

Mathis indicated that it will be “easy” to determine whether a state statute lists 

elements of different crimes or only means to commit a single crime when “a state 

court decision definitively answers the question.” 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 single 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 and distribution of a controlled 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 party 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 violated double jeopardy, 

id., because the Colorado legislature, in enacting Colo. Rev. Stat. § 18-18-405, 
11 

intended “to create a single, unitary offense.” 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 its conclusion, the Colorado Supreme Court went on to state 

that the Colorado legislature, in enacting § 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 organizational device”; “join[ed] in a single 

proscription an entire range of conduct potentially facilitating or contributing to illicit 

drug traffic”; and “criminalized” that “entire range of conduct . . . in a single 

subsection of a statute entitled simply, ‘Unlawful distribution, manufacturing, 

dispensing, sale or possession.’” Id. at 466 (footnote omitted). Abiodun further 

indicated that the statute’s “one sentence proscription 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 themselves 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 violating 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 create 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 basis of the quantum of drugs (rather 

than the act) involved, strongly points to the creation of a single crime, 
12 

the gravamen of which is preventing the unauthorized delivery of a 

particular quantity of a particular contraband substance. 

Id. at 466-67 (internal quotation marks omitted). 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 answer 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 state legislature intended to 

create a single unitary offense when it enacted the “alternatively-phrased” § 18-18-

405(1)(a). Mathis, 136 S. Ct. at 2249; see also id. at 2256. 

Moreover, Mathis suggested that, in determining whether a statute is divisible, 

we consider whether it provides different punishments for the different ways listed to 

violate the statute’s criminal proscription. See 136 S. Ct. at 2256. The Colorado 

Supreme Court did just that in Abiodun, noting that § 18-18-405(1)(a) does not 

provide different punishments depending on whether a defendant manufactured or 

distributed or offered to sell a controlled substance. 

Finally, Mathis suggests that, “if state law fails to provide clear answers,” we 

can take a “peek” at the documents of this defendant’s prior conviction “for the sole 

and limited purpose of determining whether the listed items are elements of the 

offense.” 136 S. Ct. at 2256-57 (internal quotation marks omitted). Doing so here, 

we see that McKibbon pled guilty to distribution of a controlled substance under 
13 

Colo. Rev. Stat. 18-18-405(1)(a) by either selling or distributing heroin. That further 

suggests that selling or distributing a controlled substance are only means to commit 

the single, indivisible offense of distributing a controlled substance. See Mathis, 136 

S. Ct. at 2248. 

For all of these reasons, then, we conclude 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 than is encompassed by U.S.S.G. § 4B1.2(b)’s definition 

of a “controlled substance offense,” 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 McKibbon’s prior Colorado 

conviction under § 18-18-405(1)(a) as a “controlled substance offense.” 

II. The error was plain 

An error is plain if it “is clear at the time of the appeal.” United States v. 

Iverson, 818 F.3d 1015, 1023 (10th 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 appellate 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 definition of a “controlled substance offense.” 

First, the Tenth Circuit has clearly held that § 4B1.2(b) does not include offers 

to sell controlled substances, unless the criminalized activity amounts to an attempt 

to distribute controlled substances. That means in essence that § 4B1.2(b) includes 

only bona fide offers to sell, because such activity can be considered an attempt to 
14 

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 fide 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 offers to sell controlled substances. That phrase has never 

been limited by the Colorado courts and so it plainly criminalizes 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 statute only under the categorical, rather than modified 

categorical, approach. 

Therefore, it is unavoidable that, applying the categorical approach, 

McKibbon’s conviction under Colo. Rev. Stat. § 18-18-405(1)(a) does not satisfy the 

requirements of U.S.S.G. § 4B1.2(b).3

 

III. The error affected McKibbon’s substantial rights 

 At the third step of the plain-error analysis, McKibbon must show that the 

plain error affected his substantial rights; that is, that “the error was prejudicial and 

 3

 We recognize that McKibbon did not object 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 the district court. Further, neither the 

district court nor the parties had the benefit of Madkins, which the Tenth Circuit 

issued while this appeal was pending. Nonetheless, the relevant time period in 

determining whether an error is plain is when we consider McKibbon’s direct appeal, 

which represents our opportunity to right any error that may have emerged with the 

evolution of the law during the Government’s prosecution of McKibbon. 
15 

affected the outcome of the proceedings.” United States v. Carillo, 860 F.3d 1293, 

1300 (10th Cir. 2017). Here, without a previous “controlled substance 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 would 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 form the essential starting point in any federal 

sentencing analysis, . . . it follows that an obvious error in applying them runs the 

risk of affecting the ultimate sentence.” United States v. Sabillon-Umana, 772 F.3d 

1328, 1333 (10th Cir. 2014) (internal quotation marks). 

Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents 

supports a requirement that a defendant seeking appellate review of an 

unpreserved Guidelines error make some further showing of prejudice 

beyond the fact that the erroneous, and 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 affects the fairness, integrity 

or public reputation of judicial proceedings 

 Our analysis of the fourth plain-error 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 error “seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” United States v. Figueroa–

Labrada, 720 F.3d 1258, 1266 (10th Cir. 2013) (internal quotation marks 
16 

omitted). “The fourth prong of the plain 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, depends 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 appropriate only where the error is 

“‘particularly egregious’ and the ‘failure to notice the error would result in 

a miscarriage of justice.’” United States v. Rufai, 732 F.3d 1175, 1195 

(10th Cir. 2013) (quoting Gonzalez–Huerta, 403 F.3d at 736). As part of 

this showing, in the sentencing context, a defendant “must demonstrate a 

strong possibility of receiving a significantly 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 have been fourteen, not twenty, his total offense level 

would have been fifteen, not twenty-one, and his guideline imprisonment 

range would have been thirty to thirty-seven months, not fifty-seven to 

seventy-one months. (Aplt. Br. 13.) The district court 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 thirty-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 “demanding standard,” GonazlezHuerta, 403 F.3d at 737, of the plain error’s fourth prong by showing that the 

district court’s error “seriously affected the fairness, integrity, or public 

reputation of judicial proceedings,” Figueroa-Labranda, 720 F.3d at 1266, we 

exercise our discretion to grant 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.