Today, the Circuit held in Harbin v. Sessions, No. 14-1433-ag, that the New York offense of criminal sale of a controlled substance in the 5th degree, NYPL 220.31, is not a controlled substance offense for immigration purposes.
You can access the opinion here.
The analysis is straightforward: (1) The NY statute prohibits the sale of a “controlled substance.” That element is indivisible under Mathis v. United States, 136 S. Ct. 2243 (2016). (2) The NY controlled substance schedule is categorically broader than the federal schedule because the former includes at least one substance (human chorionic gonadotropin, HCG) that the latter does not.
If your client has a prior conviction under 220.31, you should be arguing that 220.31 is not a controlled substance offense under the Guidelines (for example, under the felon-in-possession or career-offender guidelines), or any other enhancement provision. Although not controlling, Harbin is extremely helpful on this point. First, Harbin holds that the NY statute is indivisible — and that holding is binding. This means that the modified categorical approach is inapplicable, and a district court may not examine the charging paper, plea agreement, or plea colloquy to determine what controlled substance your client actually sold. See Descamps v. United States, 133 S. Ct. 2276, 2282 (2013) (“[W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.”). Second, Harbin holds that the NY schedule is overbroad because it includes HCG. That holding, too, is binding.
You should also make this argument for the following less common NY offenses:
– 220.34(7) or (8)
As a reminder, at least two district courts have accepted the argument that 220.31 is not a controlled substance offense for Guidelines purposes. Sent’g Tr. 52-54, United States v. Smith, 14 Cr. 813 (KPF) (S.D.N.Y. Oct. 1, 2015); United States v. Barrow, ___ F. Supp. 3d ___, ___, 2017 WL 519305, at *3-6 (E.D.N.Y. Feb. 2, 2017) (JBW).