Madkins was convicted of distribution of cocaine base and distribution of cocaine base within 1000 feet of a school. He was found guilty and was designated a career offender. He had two prior convictions in the state of Kansas for possession with intent to sell cocaine and marijuana. Madkins claimed that the Kansas statutes included possession of a controlled substance with intent to offer for sale, which is outside of 4b1.2. The District Court disagreed.

The Tenth Circuit reviewed the Kansas statute, which said: [I]t shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver, or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant drug.

Kansas Law defines sale as “offer to sell.” And because that is broader than a generic federal controlled substance offense, it does not qualify as proper predicate for the career offender enhancement. This is similar to United States v. Hinkle, which was decided by the Fifth Circuit. Hinkle was enhanced as a career offender based on a prior conviction for delivery of a controlled substance. However, Texas law, like Kansas, defines “distribution” as including an “offer to sell.” As such, the Fifth Circuit held that Texas distribution priors were no longer qualifying for career offender purposes.. Similarly, in United States v. Savage, 542 f3d 959 (2nd Cir. 2008), there was a Connecticut statute that penalized the “sale” of a controlled substance. But the definition of “sale” also included “any form of delivery[,] which includes barter, exchange or gift, or offer therefor.”

Madkins sentence was accordingly reversed, and the case was remanded for further proceedings. United States v. Madkins, No. 15-3299 (10th Cir. 2017).

JEREMY’S TAKE: The “categorical approach,” which requires examination of state statutes, is complicated. Many lawyers do not understand it. However, in light of Mathis, a decision from the Supreme Court in 2016, we are slowly seeing more and more appeals courts crack the door for individuals serving a long recidivist-based sentence.


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