United States v. Babcock, No. 20-4003 (10th Cir. 2022)

Defendant Zachary Babcock appealed the denial of his motion under 28 U.S.C. § 2255 to vacate and correct his sentence on the ground of ineffective assistance of counsel. He argued his counsel failed to object to a sentencing-guidelines enhancement under USSG § 2K2.1(a)(4)(A) based on prior Utah convictions of a “controlled substance offense” as defined by USSG § 4B1.2(b). The Tenth Circuit Court of Appeals had previously held Colorado and Kansas statutes that prohibited a "mere offer" to sell a controlled substance, without requiring proof of intent to actually distribute or complete a sale, did not satisfy the definition of "controlled substance offense." The Tenth Circuit found guideline commentary stated that an attempt to commit a controlled-substance offense was itself a controlled-substance offense, and the Court's opinions left open the possibility that an offer-to-sell statute could satisfy the conditions necessary to be considered an attempt-to-sell statute. Defendant contended his trial counsel should have argued at sentencing: (1) that an offer to sell under the Utah statute was not necessarily an attempt to commit a controlled-substance offense; and (2) that the guideline commentary stating that an attempt to commit a controlled-substance offense was also a controlled-substance offense improperly expanded the text of the guideline.The Tenth Circuit determined defense counsel's failure to make those two arguments did not constitute deficient performance because the first argument lacked merit and the second "would have been a stretch at the time."