United States v. Babcock ( 2022 )


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  • Appellate Case: 20-4003     Document: 010110714502       Date Filed: 07/21/2022    Page: 1
    FILED
    United States Court of Appeals
    PUBLISH                                Tenth Circuit
    UNITED STATES COURT OF APPEALS                          July 21, 2022
    Christopher M. Wolpert
    FOR THE TENTH CIRCUIT                           Clerk of Court
    _________________________________
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 20-4003
    ZACHARY ROBERT BABCOCK,
    Defendant - Appellant.
    _________________________________
    Appeal from the United States District Court
    for the District of Utah
    (D.C. Nos. 2:18-CV-00819-TS & 2:17-CR-00124-TS-1)
    _________________________________
    Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal
    Public Defender, with him on the briefs), Salt Lake City, Utah, for the Defendant-
    Appellant.
    Elizabethanne Stevens, Assistant United States Attorney (John W. Huber, United States
    Attorney, and Ryan D. Tenney, Assistant United States Attorney, with her on the briefs),
    Salt Lake City, Utah, for the Plaintiff-Appellee.
    _________________________________
    Before HARTZ, KELLY, and MURPHY, Circuit Judges.
    _________________________________
    HARTZ, Circuit Judge.
    _________________________________
    Defendant Zachary Babcock appeals 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 complains that his counsel failed to object to a sentencing-guidelines
    Appellate Case: 20-4003     Document: 010110714502        Date Filed: 07/21/2022    Page: 2
    enhancement under USSG § 2K2.1(a)(4)(A) based on prior convictions of a
    “controlled substance offense” as defined by USSG § 4B1.2(b). The convictions were
    under a Utah statute that prohibits offers to sell controlled substances. This court has
    held that statutes of two States that prohibit a mere offer to sell a controlled
    substance—without requiring proof of intent to actually distribute or complete a
    sale—do not satisfy the definition of controlled substance offense. See United States
    v. Madkins, 
    866 F.3d 1136
    , 1145 (10th Cir. 2017) (Kansas statute); United States v.
    McKibbon, 
    878 F.3d 967
    , 973–74 (10th Cir. 2017) (Colorado statute). But guideline
    commentary states that an attempt to commit a controlled-substance offense is itself a
    controlled-substance offense, see USSG § 4B1.2 cmt. n.1, and our opinions have left
    open the possibility that an offer-to-sell statute could satisfy the conditions necessary
    to be considered an attempt-to-sell statute.
    Defendant contends that his trial counsel should have argued at sentencing (1)
    that an offer to sell under the Utah statute is 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 is also a controlled-substance
    offense improperly expanded the text of the guideline. Exercising jurisdiction under
    
    28 U.S.C. §§ 1291
     and 2253(a), we affirm the judgment below. Counsel’s failure to
    make those two arguments did not constitute deficient performance because the first
    argument lacks merit and the second would have been a stretch at the time.
    2
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    I.     BACKGROUND
    Defendant was charged with possession of methamphetamine with intent to
    distribute, see 
    21 U.S.C. § 841
    (a)(1), and being a felon in possession of a firearm and
    ammunition, see 
    18 U.S.C. § 922
    (g)(1). In July 2017 he pleaded guilty to the firearm
    charge in the United States District Court for the District of Utah in exchange for
    dismissal of the drug charge. He also waived his right to appeal or collaterally
    challenge his sentence, except on the ground of ineffective assistance of counsel.
    Defendant’s presentence investigation report (PSR) calculated Defendant’s
    base offense level as 20 by applying a guideline that provides an increased offense
    level for those who have previously been convicted of a felony “controlled substance
    offense.” USSG § 2K2.1(a)(4)(A). After an additional enhancement and two
    reductions, Defendant’s total offense level was 21, producing a guideline range of
    70–87 months’ incarceration, and Defendant was sentenced to 70 months in prison
    and three years supervised release on October 3, 2017.
    The guidelines define controlled-substance offense to mean:
    an offense under federal or state law, punishable by imprisonment for a
    term exceeding one year, that prohibits 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.
    USSG § 4B1.2(b). An accompanying application note states that the term controlled
    substance offense “include[s] the offenses of aiding and abetting, conspiring, and
    attempting to commit such [an] offense[].” USSG § 4B1.2 cmt. n.1 (emphasis added).
    3
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    To determine whether a prior conviction qualifies as a controlled-substance
    offense, we apply what is called the categorical approach, which requires us to “line
    up the elements of the prior conviction alongside the elements of the [guidelines]
    predicate offense” to make sure that the guidelines definition of the predicate offense
    does not have any elements absent from the offense of the prior conviction. Madkins,
    866 F.3d at 1145 (brackets and internal quotation marks omitted). That is, a prior
    conviction under a statute “will qualify as a controlled substance offense only if [the
    violated statute] criminalizes no more conduct than the offenses listed in the
    Guidelines.” United States v. Faulkner, 
    950 F.3d 670
    , 674 (10th Cir. 2019).1 Our
    analysis focuses on “the elements of the statute of conviction and not on the
    particular facts underlying that conviction.” 
    Id.
     (brackets and internal quotation
    marks omitted).
    Defendant’s prior convictions were under Utah Code § 58-37-8(1)(a)(ii),
    which makes it unlawful to “knowingly and intentionally . . . distribute a controlled
    or counterfeit substance, or to agree, consent, offer, or arrange to distribute a
    controlled or counterfeit substance.” (emphasis added). The government has argued
    that the state statute requires all the elements of an attempt to commit a controlled-
    substance offense, so the enhancement under the guidelines was proper.
    1
    Madkins and Faulkner predated Shular v. United States, 
    140 S.Ct. 779
    (2020), which appears to employ a different approach in determining whether a state
    offense is a controlled-substances offense under the Armed Career Criminal Act, 18
    U.S.C § 924(e). But we do not consider Shular here because neither party argued the
    point and we doubt that our ultimate conclusions would be affected.
    4
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    Defendant, however, argues that the government’s argument fails on two
    counts. First, he argues that for the state offense to constitute an attempt to commit a
    controlled-substance offense, the offender must make a bona fide offer to distribute a
    controlled substance, and, in his view, the Utah statute does not require that the offer
    be bona fide, so the state offense cannot be a predicate offense for application of the
    guidelines enhancement. Second, Defendant argues that even if the Utah offense is
    equivalent to an attempt to commit a controlled-substance offense, the Sentencing
    Commission lacked authority to use its commentary to expand the guidelines
    definition to include attempts. Defendant raised neither of these arguments until he
    filed his § 2255 motion.
    The district court rejected both of Defendant’s arguments and denied a
    certificate of appealability (COA) to allow Defendant to appeal to this court. See 
    28 U.S.C. § 2253
    (c)(1)(B) (requiring COA to appeal denial of motion under § 2255). We
    then granted a COA on these two issues.2 Our task is to determine whether counsel’s
    failure to raise these arguments at sentencing constituted ineffective assistance of
    counsel.3
    2
    We also granted a COA on Defendant’s argument that the Utah law at issue
    here did not categorically qualify as a controlled-substance offense because it applied
    to substances not controlled under federal law. Defendant concedes that this
    argument has since been resolved to the contrary in United States v. Jones, 
    15 F.4th 1288
    , 1290 (10th Cir. 2021), which held that the guidelines do not limit controlled
    substances to only those substances so defined under federal law.
    3
    Although Defendant has already served his prison sentence, this case is not
    moot because he is still on supervised release. If we were to hold that his sentence
    was unlawful, the district court would need to resentence him, and the term of
    supervised release could be modified in his favor. See United States v. Salazar, 987
    5
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    II.    DISCUSSION
    A.     Standard of Review
    In a § 2255 appeal, “[w]e review the district court’s legal rulings . . . de novo
    and its findings of fact for clear error.” United States v. Holloway, 
    939 F.3d 1088
    ,
    1097 (10th Cir. 2019) (internal quotation marks omitted). Because there are no
    disputed historical facts, our review is de novo. Cf. 
    id.
     (reviewing claim of
    ineffective assistance of counsel de novo).
    F.3d 1248, 1252 (10th Cir. 2021) (holding that appeal of sentence was not moot
    because “the mere possibility of a reduced term of supervised release is enough to
    maintain a live controversy”). As stated recently by the Supreme Court, “[W]e may
    dismiss the case [as moot] only if it is impossible for a court to grant any effectual
    relief whatever to [the party seeking relief] assuming it prevails.” Mission Product
    Holdings, Inc. v. Tempnology, LLC, 
    139 S. Ct. 1652
    , 1660 (2019) (internal quotation
    marks omitted). The mootness issue would be different if the challenge were to the
    execution of his prison sentence (say, he complained that his release date was
    miscalculated) in a habeas proceeding under 
    28 U.S.C. § 2241
     and he had already
    been released from confinement, even if he was still on supervised release, where we
    could not order any relief because we lacked authority to reduce the term of
    supervised release as “compensation” for serving an excessive time in prison. See
    Rhodes v. Judiscak, 
    676 F.3d 931
    , 932 (10th Cir. 2012). (Because Rhodes is
    distinguishable from this case—where we clearly have authority to require
    resentencing—we need not consider its continuing viability. But we note that the two
    circuit-court opinions relied on by Rhodes have since been rejected by later decisions
    of the same courts. See United States v. Epps, 
    707 F.3d 337
    , 344–46 (D.C. Cir. 2013)
    (rejecting United States v. Bundy, 
    391 Fed. Appx. 886
     (D.C. Cir. 2010)); United
    States v. Scripps, 
    961 F.3d 626
    , 631 n.3 (3d Cir. 2020) (distinguishing Burkey v.
    Marbury, 
    556 F.3d 142
     (3d Cir. 2009), and stating that its mootness logic “appears to
    have been superseded by more recent Supreme Court case law, which clarifies that a
    case is not moot if there is any theoretical avenue of relief. See, e.g., [Mission
    Product].”).)
    6
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    B.     Ineffective Assistance of Counsel
    To establish an ineffective-assistance-of-counsel claim, one must show both
    deficient performance and resultant prejudice to the defendant. See Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). We may reject a claim under either prong
    without reviewing the other. See 
    id. at 697
    .
    Deficient performance is representation that falls “below an objective standard
    of reasonableness.” 
    Id. at 688
    . We start with the presumption that “absent a showing
    to the contrary, . . . an attorney’s conduct is objectively reasonable because it could
    be considered part of a legitimate trial strategy.” Bullock v. Carver, 
    297 F.3d 1036
    ,
    1047 (10th Cir. 2002). But even when, as was apparently true here,4 “an attorney’s
    ignorance of relevant law and facts precludes a court from characterizing certain
    actions as strategic . . . , the pertinent question under the first prong of Strickland
    remains whether, after considering all the circumstances of the case, the attorney’s
    representation was objectively unreasonable.” 
    Id.
     at 1050–51.
    “[C]ounsel’s failure to raise or recognize a potential legal argument does not
    automatically render counsel’s performance constitutionally deficient.” United States
    v. Harms, 
    371 F.3d 1208
    , 1212 (10th Cir. 2004). Rather, we must ask whether “the
    identified acts or omissions were outside the wide range of professionally competent
    assistance.” Strickland, 
    466 U.S. at 690
    . In answering this question we must
    recognize that life is short. Realistically, counsel do not have the time, and therefore
    4
    In the § 2255 proceeding in district court, trial counsel for Defendant
    conceded that he had not thought to challenge the enhancement.
    7
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    are not required, to do everything possible to help their clients. They are not
    ineffective because they fail to conceive, research, and raise every novel argument
    that has a chance to prevail. See New v. United States, 
    652 F.3d 949
    , 952 (8th Cir.
    2011) (failure to raise argument that a warrantless entry into defendant’s hospital
    room was a search violating the Fourth Amendment did not constitute deficient
    performance where there was a split of authority among state courts and the Eighth
    Circuit had not yet addressed the issue). In particular, if an argument is meritless, it is
    likely that the failure to raise it was not deficient performance. But in any event, the
    lack of merit establishes that the defendant was not prejudiced by the failure to argue
    the point, thereby defeating the ineffective-assistance claim. See, e.g., United States
    v. Orange, 
    447 F.3d 792
    , 797 (10th Cir. 2006) (assuming counsel’s performance was
    deficient but holding that ineffective-assistance claim failed because defendant was
    not prejudiced by omission of argument that “would have failed on the merits”).
    Because the merit of the ineffectiveness claim depends on the merits of the
    arguments not made by trial counsel, we next address the merits of those arguments.
    We begin by discussing when an offer to distribute constitutes an attempt to
    distribute. We then turn to the Utah statute and conclude that an offer to distribute
    under the statute satisfies the requirements for an attempt. After that, we consider
    whether the guidelines commentary improperly defined a controlled-substance
    offense to include an attempt to commit a controlled-substance offense. Although
    there is now some caselaw support for that proposition, we conclude that failure to
    raise the issue was not deficient performance at the time of Defendant’s sentencing.
    8
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    C.      When Is an Offer to Distribute an Attempt to Distribute?
    In two recent cases this court held that statutes proscribing offers to sell did
    not meet the guidelines definition of a controlled-substance offense because the
    government had not shown that the statutes required an intent to sell a controlled
    substance. In Madkins (decided two months before Defendant was sentenced), the
    court considered a Kansas statute that made it unlawful “to sell, offer for sale or have
    in . . . [one’s] possession with intent to sell, deliver, or distribute” a controlled
    substance. 866 F.3d at 1145 (quoting Kan. Stat. § 65-4161(a) (2001) and § 65-
    4163(a)(3) (2001)).
    We considered whether an offer to sell under the Kansas statute would satisfy
    the guideline because, under the guideline commentary, an attempt to sell is treated
    as a controlled-substance offense and an offer to sell could be an attempt to sell. We
    rejected that possibility because an attempt to commit a crime requires an intent to
    commit the crime; and such intent was not required to prove an offer to sell under the
    Kansas statute. See Madkins, 866 F.3d at 1147–48. Therefore, the Kansas statute was
    broader than the guidelines definition of sell or attempt to sell. See id. We quote at
    length our explanation for that conclusion:
    In reaching our holding today, we 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
    9
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    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.” [United States v.] Savage, 542 F.3d [959,] 965 [2d Cir.
    2008] (citing United States v. Palacios-Quinonez, 
    431 F.3d 471
    , 476 (5th
    Cir. 2005))[5]. . . .
    Since [an offer] does not necessarily involve the intent to sell or
    distribute that is required for [an attempt], 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.
    Id.
    The one out-of-circuit opinion we cited in support of our intent analysis—
    Savage—likewise focused on only the element of intent in holding that an offer to
    sell under a Connecticut statute did not constitute an attempt to commit a controlled-
    substance offense. That court concluded as follows its analysis of why conviction
    under the Connecticut statute would not satisfy the guideline:
    An 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. As we have held, a crime not involving
    the mental culpability to commit a substantive narcotics offense does not
    serve as a predicate controlled substance offense under the Guidelines.
    Thus, the Connecticut statute, by criminalizing a mere offer to sell,
    criminalizes more conduct than falls within the federal definition of a
    controlled substance offense.
    5
    Palacios-Quinonez provided the Brooklyn Bridge example, but only to
    distinguish an offer to sell drugs from a purchase for sale (the state offense at issue in
    the case) in that an offer to sell does not require the offeror to possess drugs. The
    court concluded that the offense of purchase of a drug for sale satisfies the elements
    of possession with intent to distribute (attempt was not at issue). See 
    431 F.3d at 476
    .
    10
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    Savage, 542 F.3d at 965–66 (citations, brackets, and internal quotation marks
    omitted).
    This circuit’s next opinion on the subject, United States v. McKibbon, 
    878 F.3d 967
     (10th Cir. 2017) (decided two months after Defendant was sentenced),
    adopted the same reasoning as in Madkins, quoting the same passage from that
    opinion that we quoted above. It considered a Colorado drug law that defined
    prohibited sales to include “a barter, an exchange, or a gift, or an offer therefor.” 878
    F.3d at 972 (quoting 
    Colo. Rev. Stat. § 18-18-403
    (1)). Neither the plain text of the
    Colorado statute, nor cases interpreting it, had limited or modified the term offer to
    include an intent requirement. See 
    id. at 974
    . A conviction under the Colorado statute
    thus did not qualify as a controlled-substance offense under the guideline. We do not
    read McKibbon as altering the analysis in Madkins. As we later summarized the
    holdings in Madkins and McKibbon, “[B]ecause a fraudulent offer lacks the intent to
    sell or distribute that an attempt requires, a conviction for selling or distributing a
    controlled substance (in any state that defines sale to include all offers) criminalizes a
    broader swath of conduct than the guidelines’ definition of a controlled substance
    offense.” United States v. Almanza-Vigil, 
    912 F.3d 1310
    , 1320 (10th Cir. 2019)
    (emphasis added, internal quotation marks omitted). In sum, as we understand
    Madkins and McKibbon, we will not hold that a state offer-to-sell offense is a
    controlled-substance offense under the guidelines unless case law or unambiguous
    statutory language requires as an element of the offense an intent to sell a controlled
    substance.
    11
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    Defendant asserts, however, that McKibbon required more than an intent
    element. He argues that we insisted that the offer to sell be a bona fide offer to sell,
    and that an offer is bona fide only if the offeror has the ability to consummate the
    sale. As he puts it, “[T]his court has explained that a bona fide offer to sell is one in
    which the ‘defendant had both the intent and ability to proceed with the sale.’” Aplt.
    Br. at 14 (quoting McKibbon, 878 F.3d at 973) (emphasis in Defendant’s brief).
    Defendant is correct that McKibbon states that the offer to sell must be bona fide. But
    we have no doubt that the panel in McKibbon was using the term as it is defined in
    Black’s Law Dictionary 217 (11th ed. 2019): “1. Made in good faith; without fraud or
    deceit. 2. Sincere; genuine.” An offer to sell is bona fide if the offeror intends to sell
    the product or service offered. The context of our use of the term bona fide further
    supports our interpretation. We used the term in response to the government’s
    argument that the Colorado Supreme Court had never addressed a conviction for an
    offer to sell that was not a bona fide offer and that the state’s highest court would
    probably require proof of a bona fide offer to sell if the issue ever arose. See
    McKibbon, 878 F.3d at 973–74. In making that argument, the government’s brief in
    McKibbon stated: “[T]he Colorado Supreme Court would likely interpret the term
    ‘offer’ to mean a bona-fide offer—i.e., one made with the intent to sell drugs.”
    McKibbon (16-1493) Aplee. Br. at 13. It would be most unusual and surprising if we
    had rejected the government’s “bona fide” argument, using the same term (bona fide)
    as that argument, and yet were giving that term an idiosyncratic meaning (a meaning
    12
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    different from the dictionary meaning and the meaning provided in the government
    brief) without explicitly saying so.
    The definition of bona fide relied on by Defendant appears in McKibbon solely
    in a parenthetical in which the First Circuit quotes a decision of a New York state
    court. The surrounding paragraph of McKibbon addresses whether we should assume,
    in the absence of any state-court decisions on the matter, that a statutory prohibition
    on offers to sell applies only to offers made with the intent to sell. We wrote:
    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 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).
    McKibbon, 878 F.3d at 973.
    The citation to Bryant was to show that it is not an impossible burden to insist
    that the government provide a state-court decision imposing an intent requirement on
    a prohibition of offers to sell. In Bryant the defendant argued that his conviction
    under a New York drug statute that prohibited offers to sell was not a controlled-
    substance offense. He relied on the proposition in Savage that an offer to sell made
    13
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    without the intent to distribute or sell the drug would not be a controlled-substance
    offense under the guidelines. See Bryant, 
    571 F.3d at 157
    . The First Circuit rejected
    the argument because the New York statute in fact required such intent. It wrote: “[I]t
    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.’” 
    Id. at 158
    (internal quotation marks omitted). Thus, it concluded, “At the time Bryant was
    allegedly convicted of the offense, he would have been found to have intent to
    proceed with a sale.” 
    Id.
    Bryant was not adopting the definition of bona fide offer used by the New
    York courts. All that mattered for the First Circuit’s purposes was that New York law
    explicitly required an intent to sell. Defendant would have us believe that by
    including quoted language in a parenthetical that was broader than necessary to make
    the quoting court’s point (McKibbon did not underline the “ability to proceed with
    the sale” language, but rather underlined the phrase “it is well-established under New
    York law”—to show that some States do clearly require intent) this court in
    McKibbon adopted a meaning of bona fide that is a significant departure from
    common usage. We reject the proposition as fanciful.
    To be sure, attempt requires more than intent. McKibbon quoted Madkins for
    the proposition that “an attempt to commit a crime requires the intent to commit the
    crime and overt acts in furtherance of that intent.” McKibbon, 878 F.3d at 973
    (internal quotation marks omitted). Before assessing whether the Utah offer-to-sell
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    statute is an attempt statute, we should therefore add a few words about the overt-act
    requirement.
    In the attempt context we have said that whether conduct qualifies as an overt
    act (or, using the more common terminology, qualifies as a substantial step toward
    committing the offense6) “necessarily depends on the facts of each case.” United
    States v. Ramirez, 
    348 F.3d 1175
    , 1180 (10th Cir. 2003) (internal quotation marks
    omitted). In assessing whether conduct constitutes a substantial step, we must keep in
    focus that “[t]he primary purpose in punishing attempts is . . . to subject to corrective
    action those individuals who have sufficiently manifested their dangerousness.” 2
    Wayne LaFave, Substantive Criminal Law § 11.2, at 285 (3d ed. 2018).
    One could reasonably take the position that an offer to sell is always a
    satisfactory overt act or substantial step. This court has certainly suggested as much.
    See Almanza-Vigil, 912 F.3d at 1320 (in the attempt context, referring to an offer as
    an overt act); see also United States v. Evans, 
    699 F.3d 858
    , 868 (6th Cir. 2012),
    6
    When it said that attempt requires intent and overt acts, Madkins was
    quoting Taylor, 
    413 F.3d at 1155
    , which said, “In our circuit, a conspiracy or an
    attempt to commit a crime requires the intent to commit the crime and overt acts in
    furtherance of that intent.” The use of the term overt act fit neatly in a sentence also
    addressing the crime of conspiracy, which traditionally requires an overt act. But the
    authority that Taylor cited, United States v. Haynes, 
    372 F.3d 1164
    , 1167 (10th Cir.
    2004), which addressed attempt but not conspiracy, spoke in terms of substantial
    steps, without any reference to overt acts. Indeed, the necessary actus reus for
    attempt “has been described as an overt act that constitutes a substantial step toward
    completing the offense.” See United States v. Irving, 
    665 F.3d 1184
    , 1197 n.14 (10th
    Cir. 2011) (internal quotation marks omitted). For attempt crimes our caselaw refers
    to this simply as a substantial step requirement. See 
    id.
     at 1198 n.14 (noting that an
    added benefit of this nomenclature is clearly distinguishing between attempt and
    conspiracy, where the overt act need not be substantial).
    15
    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022     Page: 16
    abrogated on other grounds by United States v. Havis, 
    927 F.3d 382
     (6th Cir. 2019)
    (“An offer to sell a controlled substance is an act perpetrated in furtherance of a sale,
    typically as part of the negotiation for the price and quantity, and it is therefore a
    substantial step in attempting to consummate a sale.”).
    But even if an offer to sell might in some circumstances not suffice as a
    substantial step, we think that situation sufficiently unlikely that it is appropriate to
    place the burden on the defendant to show that a conviction could be had under the
    state offer-to-sell statute in circumstances in which the offer was not a substantial
    step. Under the categorical approach, “to find that a state statute creates a crime
    outside the generic definition of a listed crime in a federal statute requires more than
    the application of legal imagination to a state statute’s language. It requires a realistic
    probability, not a theoretical possibility, that the State would apply its statute to
    conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-
    Alvarez, 
    549 U.S. 183
    , 193 (2007); accord Moncrieffe v. Holder, 
    569 U.S. 184
    , 191
    (2013). The defendant “must at least point to his own case or other cases in which the
    state courts in fact did apply the statute in the special (nongeneric) manner for which
    he argues.” Duenas-Alvarez, 
    549 U.S. at 193
    ; see, e.g., United States v. Mendez, 
    924 F.3d 1122
    , 1125–26 (10th Cir. 2019) (requiring examples of prosecution under
    defendant’s expansive reading of state statute where neither statute on its face nor
    caselaw interpreting it supported defendant’s interpretation); cf. United States v.
    Titties, 
    852 F.3d 1257
    , 1274 (10th Cir. 2017) (not requiring examples of actual
    prosecution under defendant’s theory where plain text of the statute reached beyond
    16
    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022      Page: 17
    the generic definition of a violent felony). We now turn to whether the Utah offer-to-
    sell provision is a controlled-substance offense.
    D.      The Utah Statute
    Utah Code § 58-37-8(1)(a)(ii) makes it unlawful to “knowingly and
    intentionally . . . distribute a controlled or counterfeit substance, or to agree, consent,
    offer, or arrange to distribute a controlled or counterfeit substance.” In light of the
    interpretation of this statute by the Utah courts, we reject Defendant’s arguments that
    it does not state a controlled-substance offense. In particular, we hold that a violation
    of the offer-to-sell provision is an attempt to sell.
    To begin with, in a brief opinion addressing whether § 58-37-8(1)(a)(ii) was
    unconstitutionally vague, the Utah Supreme Court held that the statute makes clear
    that the “outer perimeters” of proscribed conduct requires knowledge or intent that
    distribution occur:
    The statute in question . . . specif[ies] that any activity leading to or
    resulting in the distribution for value of a controlled substance must be
    engaged in knowingly or with intent that such distribution would, or would
    be likely to, occur. Thus, any witting or intentional lending of aid in the
    distribution of drugs, whatever form it takes, is proscribed by the act.
    State v. Harrison, 
    601 P.2d 922
    , 923 (Utah 1979).
    The Utah Court of Appeals later elaborated on the matter. In State v. Hester an
    undercover officer drove up to a curb where the defendant was standing and asked if
    he had any heroin, to which the defendant replied, “only coke.” 
    3 P.3d 725
    , 727
    (Utah Ct. App. 2000), abrogated on other grounds by State v. Clark, 
    20 P.3d 300
    (Utah Ct. App. 2001). The officer said that she wanted heroin but “if he had any
    17
    Appellate Case: 20-4003     Document: 010110714502        Date Filed: 07/21/2022      Page: 18
    cocaine she had a twenty”; the defendant took her $20 bill, told her to wait, and was
    then arrested as he was walking away from the undercover officer. 
    Id.
     The defendant
    was charged with “unlawful distribution, offering, agreeing, consenting or arranging
    to distribute a controlled or counterfeit substance” under § 58-37-8(1)(a)(ii). Id. at
    728. The trial court dismissed the charge because the government failed to present
    evidence from which a fact finder could reasonably infer intent to distribute. See id.
    at 727. The court of appeals agreed. See id.
    According to the court of appeals, “To make out a prima facie case under the
    statute, the State must show that an offer, agreement, consent, or arrangement to
    distribute controlled substances was made by the defendant and, whichever variation
    or variations it charges, that the behavior was engaged in knowingly or with intent
    that such distribution would, or would be likely to, occur.” Id. at 728 (internal
    quotation marks omitted).7 It further held that “[a] defendant who offers to sell drugs
    with no actual intent of following through is not guilty of the offense of arranging.”
    Id. at 729. There, despite the defendant’s verbal offer and receipt of a $20 bill, the
    7
    The Utah Court of Appeals broadly refers to this statute as the “arranging
    statute.” Hester, 
    3 P.3d at 729
    . As indicated in the above quotation, the court does
    not distinguish between the various means of violating the law (i.e., offering,
    agreeing, consenting, or arranging to distribute). Thus, we are unpersuaded by an
    argument in Defendant’s briefs that the statute is broader than the guidelines
    definition of controlled-substance offense because it reaches mere agreement or
    consent to distribute. Hester made clear that its interpretation of the statute applied to
    “whichever variation or variations” were charged under the statute. 
    3 P.3d at 728
    . As
    the district court concluded, “[A]ll of the alternative means set out in the statute
    require both an intent to distribute and an act taken in furtherance of that intent,
    bringing them into the definition of an attempt.” R., Vol. II at 127.
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    court held that there was insufficient evidence to show that “the defendant acted with
    the knowledge or intent that his actions would result in the distribution of a
    controlled substance.” 
    Id.
    The State could have shown intent, according to the court, “by producing
    evidence of a completed sale of cocaine to [the officer] or evidence that [defendant]
    took active steps to facilitate the distribution of cocaine, even if the distribution never
    actually occurred.” 
    Id.
     The court provided examples of active steps, with
    accompanying illustrative cases, including “ma[king] phone calls seeking drugs;
    dr[iving] around looking for drugs; comment[ing] to [the officer] on how the drugs
    were to be acquired; [being] seen conferring with known drug suppliers; or [being]
    shown to be a link in a chain of distribution.” 
    Id.
     at 729 n.6 (citations and internal
    quotation marks omitted). By contrast, in Hester the defendant did not have cocaine
    on him at the time, nor had he spoken to anyone after leaving the officer, and there
    was no indication he would “meet a supplier or otherwise actually procure cocaine or
    arrange for its delivery to [the officer].” 
    Id. at 727
    .
    We easily conclude that the Utah statute requires an intent to commit a
    controlled-substance offense.8 In addition, we see little difference between the
    8
    In 2007 the Fifth Circuit ruled in a brief per curiam unpublished opinion that
    by including mere offers to sell, the Utah law at issue here was broader than the
    guidelines definition of drug trafficking offense under USSG § 2L1.2 cmt. n.1(B)(iv)
    (2006), which defined such offenses to include those that “prohibit[] the
    manufacture, import, export, distribution, or dispensing of a controlled substance . . .
    or the possession of a controlled substance . . . with intent to [do any of the
    aforementioned].” See United States v. Duque-Hernandez, 227 F. App’x 326, 328
    (5th Cir. 2007). The Commission thereafter amended the commentary to § 2L1.2 to
    19
    Appellate Case: 20-4003      Document: 010110714502          Date Filed: 07/21/2022      Page: 20
    requirement in Hester of substantial evidence of intent and the traditional
    requirement in attempt law that there be proof of a substantial step in furtherance of
    the offense. In other words, Utah effectively requires an overt act in support of an
    offer to sell. It is perhaps conceivable that Utah courts might interpret the statute to
    permit a conviction of one who is not guilty of an attempt to commit a controlled-
    substance offense. But as previously stated, under the categorical approach,
    “find[ing] that a state statute creates a crime outside the generic definition of a listed
    crime in a federal statute requires . . . a realistic probability, not a theoretical
    possibility, that the State would apply its statute to conduct that falls outside the
    generic definition of a crime.” Duenas-Alvarez, 
    549 U.S. at 193
    . Defendant has not
    satisfied his burden of showing such a possibility, and the Utah Court of Appeals
    decision in Hester would seem to foreclose it.9
    We recognize that this court has held that failure to raise a “clearly meritorious
    [objection] under the existing [sentencing] guidelines and elementary burden-of-
    proof principles” constitutes ineffective assistance of counsel. United States v.
    Glover, 
    97 F.3d 1345
    , 1349 (10th Cir. 1995). But there is nothing clearly meritorious
    explicitly include offers to sell in the definition. Defendant argues that “[b]y
    amending § 2L1.2 and not § 4B1.2, the Sentencing Commission has indicated a clear
    intent that §4B1.2 does not extend to offers to sell.” Aplt. Br. at 13. We are not
    persuaded. A critical distinction between the two provisions is that the commentary
    to § 4B1.2 already included attempt crimes whereas the prior definition of drug-
    trafficking offenses in the § 2L1.2 commentary specified only completed offenses.
    9
    We further note that insofar as Defendant is complaining about the failure of
    his attorney to argue that the Utah statute does not require something more than
    intent, such as an overt act, he is largely relying on language in our McKibbon
    opinion, which was not rendered until after Defendant’s sentencing.
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    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022      Page: 21
    about this challenge to Defendant’s enhancement. We therefore cannot say that it was
    objectively unreasonable for counsel to fail to argue that Defendant’s Utah
    conviction did not qualify as a controlled-substance offense.
    E.     Authority of Guideline Commentary
    Defendant argues that his counsel should have objected to the enhancement on
    the ground that the Sentencing Commission exceeded its authority when, rather than
    amending the § 4B1.2(b) guideline text, it used commentary to expand the definition
    of a controlled-substance offense to include attempt crimes.
    The guidelines contain three types of content: (1) guideline provisions, (2)
    “policy statements regarding application of the guidelines,” and (3) commentary,
    which “may interpret a guideline or explain how it is to be applied, suggest
    circumstances which may warrant departure from the guidelines, or provide
    background information.” Stinson v. United States, 
    508 U.S. 36
    , 41 (1993) (ellipses,
    brackets, and internal quotation marks omitted); see 
    id. at 46
     (one way to incorporate
    revisions to the guidelines is via “commentary, if the guideline which the
    commentary interprets will bear the construction”). Stinson held that “commentary in
    the Guidelines Manual that interprets or explains a guideline is authoritative unless it
    violates the Constitution or a federal statute, or is inconsistent with, or a plainly
    erroneous reading of, that guideline.” 
    Id. at 38
    . This limitation ensures that the
    Sentencing Commission does not impermissibly circumvent the requirements that it
    comply with the notice-and-comment provisions of the Administrative Procedure Act
    in issuing guidelines, see 
    28 U.S.C. § 994
    (x), and that Congress be given notice to
    21
    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022      Page: 22
    enable it to revoke or amend proposed guidelines, see 
    id.
     § 994(p). See Mistretta v.
    United States, 
    488 U.S. 361
    , 393–94 (1989).10
    As we noted above, § 4B1.2(b) of the guidelines defines controlled substance
    offense as one “that prohibits the manufacture, import, export, distribution, or
    dispensing of a controlled substance . . . or the possession of a controlled substance .
    . . with intent to manufacture, import, export, distribute, or dispense.” An application
    note to § 4B1.2 further states that a controlled-substance offense “include[s] the
    offenses of aiding and abetting, conspiring, and attempting to commit such [an]
    offense[].” USSG § 4B1.2(b) cmt. n.1. Defendant argues that this note is inconsistent
    with § 4B1.2 because the guideline text itself already provides “a clear, specific
    definition” of a controlled-substance offense which “omits any reference to attempts
    or offers to sell, despite the Commission’s authority to amend the guideline to
    include offers to sell if that was warranted.” Aplt. Br. at 25.
    The circuit courts are divided on the legitimacy of this application note, with a
    slight majority finding the guideline text and application note consistent with one
    another. See, e.g., United States v. Lewis, 
    963 F.3d 16
    , 22 (1st Cir. 2020), cert.
    denied, 
    141 S. Ct. 2826
    , 
    210 L. Ed. 2d 945
     (2021) (commentary and guideline are
    10
    Under the Commission’s Rules of Practice and Procedure, “The
    Commission may promulgate commentary and policy statements, and amendments
    thereto, without regard to the provisions of 
    28 U.S.C. § 994
    (x). Nevertheless, the
    Commission will endeavor to provide, to the extent practicable, comparable
    opportunities for public input on proposed policy statements and commentary
    considered in conjunction with guideline amendments.” USSC, Rule of Practice and
    Procedure 4.3.
    22
    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022     Page: 23
    consistent); United States v. Richardson, 
    958 F.3d 151
    , 154–55 (2d Cir. 2020), cert.
    denied, 
    141 S. Ct. 423
     (2020) (same); United States v. Smith, 
    989 F.3d 575
    , 585 (7th
    Cir.), cert. denied, 
    142 S. Ct. 488
     (2021) (same); United States v. Vea-Gonzales, 
    999 F.2d 1326
    , 1330 (9th Cir. 1993) (same), overruled on other grounds by Custis v.
    United States, 
    511 U.S. 485
     (1994); United States v. Smith, 
    54 F.3d 690
    , 693 (11th
    Cir. 1995) (same). But see United States v. Nasir, 
    982 F.3d 144
    , 159 (3d Cir. 2020)
    (en banc) (the commentary is inconsistent with § 4B1.2(b) because the guideline does
    not enumerate inchoate offenses), cert. denied, 
    142 S. Ct. 275
     (2021), and cert.
    granted, judgment vacated on other grounds, 
    142 S. Ct. 56
     (2021); United States v.
    Campbell, 
    22 F.4th 438
    , 444 (4th Cir. 2022) (same); United States v. Havis, 
    927 F.3d 382
    , 386–87 (6th Cir. 2019) (en banc); United States v. Winstead, 
    890 F.3d 1082
    ,
    1091–92 (D.C. Cir. 2018).11
    Given the prominence of the issue and this split of authority, one might say
    that it would be deficient performance of counsel to fail to raise the issue, at least in a
    circuit which had not already resolved the matter. But there was no split of authority
    11
    After the D.C. Circuit decided Winstead (the first case to find the guideline
    text and commentary inconsistent), the Sentencing Commission proposed an
    amendment to the guideline text to explicitly include inchoate offenses. Although the
    Commission stated that its commentary was authoritative under Stinson, it proposed
    moving inchoate offenses “to the guideline itself as a new subsection (c) to alleviate
    any confusion and uncertainty resulting from the D.C. Circuit’s decision.” USSC
    Notice of Proposed Amendments, 
    83 Fed. Reg. 65400
    -01, 65413 (Dec. 20, 2018). The
    Sentencing Commission has not had a quorum to promulgate amendments since then.
    See Guerrant v. United States, 
    142 S. Ct. 640
    , 641 (2022) (statement of Sotomayor,
    J., joined by Barrett, J.) (“[T]he Sentencing Commission has not had a quorum for
    three full years.”).
    23
    Appellate Case: 20-4003     Document: 010110714502         Date Filed: 07/21/2022     Page: 24
    when Defendant was sentenced on October 2, 2017. No circuit had held that the
    commentary and the guideline were inconsistent. More important, in United States v.
    Chavez, 
    660 F.3d 1215
    , 1228 (10th Cir. 2011), this court had rejected a challenge to
    the legitimacy of note 1 in the commentary to USSG § 4B1.2, holding that the
    Sentencing Commission “acted within [its] broad grant of authority in construing
    attempts to commit drug crimes as controlled substance offenses for purposes of
    determining career offender status.” Defendant states that in Chavez this court did not
    explicitly address whether the Commission had acted improperly by including
    attempts only in commentary, rather than by amending the language of the guideline
    itself. But our opinion specifically noted that commentary is not authoritative if it
    “violates the Constitution or a federal statute, or is inconsistent with, or a plainly
    erroneous reading of, [the applicable] guideline.” Id. at 1226. And we must have been
    considering those requirements when we wrote: “Because the commentary [to
    § 4B1.2] interprets controlled substance offenses as including convictions for
    attempted drug trafficking, and because the commentary is authoritative, the district
    court properly determined that Mr. Chavez should be classified as a career offender.”
    Id. at 1228 (emphasis added). The natural reading of the opinion would be that the
    panel implicitly rejected the argument now made by Defendant.12 Indeed, several
    other circuits have read Chavez as rejecting that very argument. See, e.g., Smith, 989
    12
    This is not to say that this implicit rejection would be precedent that would
    bind later panels of this court.
    24
    Appellate Case: 20-4003    Document: 010110714502          Date Filed: 07/21/2022   Page: 25
    F.3d at 585; Winstead, 890 F.3d at 1091; United States v. Walton, 840 F. App’x 46,
    47 (8th Cir.), cert. denied, 
    142 S. Ct. 163
     (2021).
    In light of our opinion in Chavez and the absence of any supporting decision
    by any other circuit at the time, we do not think that it was deficient performance by
    Defendant’s counsel at sentencing to fail to raise a claim that the commentary relied
    on by the district court was invalid because it was inconsistent with the guideline
    itself. We are confident that there were scores of competent attorneys who likewise
    failed to raise the issue during that period of time. Defendant’s claim of ineffective
    assistance of counsel on this ground must be rejected.
    For these reasons, we find that counsel did not perform deficiently in failing to
    challenge either (1) the categorical fit between Utah Code § 58-37-8(1)(a)(ii) and the
    definition of a controlled-substance offense in USSG § 4B1.2 or (2) the
    Commission’s authority to include attempt offenses in the definition via commentary.
    III.   CONCLUSION
    We AFFIRM the judgment of the district court. Appellant’s motion to file an
    oversized brief is GRANTED.
    25