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U.S. v. McKIBBON

No. 16-1493.

878 F.3d 967 (2017)

UNITED STATES of America, Plaintiff-Appellee, v. Gary Alan MCKIBBON, Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

Filed December 28, 2017.

Attorney(s) appearing for the Case

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 Plaintiff-Appellee United States of America.

Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.

In this direct criminal appeal, we conclude both that the district court plainly erred in treating Defendant Gary McKibbon's prior Colorado drug distribution conviction as a "controlled substance offense" under U.S.S.G. § 4B1.2(b), and that that error warrants resentencing.

BACKGROUND

McKibbon pled guilty...

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