Judge Menashi’s First Criminal Opinion Goes Against the Defendant

In US v. Richardson, #19-412, Judge Menashi, joined by Judges Walker and Chin, affirmed the district court’s ruling that the defendant qualified as a career offender. The defendant’s prior offenses were (1) federal conspiracy to distribute and possess with intent to distribute cocaine (21 USC §§ 841 (a) (1) & 846) and (2) New York attempted possession of a controlled substance in the third degree (N.Y. Penal Law §§ 110.00/220.16(1)).

The issue on appeal was whether each of these offenses is a “controlled substance offense” under USSG § 4B1.2. A “controlled substance offense” is defined as “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 the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.” USSG § 4B1.2(b). Application note 1 to § 4B1.2 states that the term “controlled substance offense” includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

The defendant argued that application note 1 is invalid. He argued that it impermissibly expands the statutory definition to include inchoate offenses. Thus, because it is inconsistent with and contradicts the language of the guideline, it is invalid under Stinson v. US, 508 US 36 (1993).

The Second Circuit did not agree. It held that the application note is not inconsistent with, or a plainly erroneous reading of § 4B1.2. The Court found it was reasonable for the Sentencing Commission to interpret an offense that prohibits, that is, prevents or hinders, the distribution, etc., of a controlled substance to include offenses that forbid aiding and abetting, conspiring, or attempting to do those things. “A ban on attempting to distribute a controlled substance, for example, ‘hinders’ the distribution of the controlled substance.”

The Second Circuit thus joins the majority of what is now a 7 to 2 circuit split on this issue. The DC and Sixth Circuits are the ones siding with defendants. The First, Second, Third, Seventh, Eighth, Ninth, and Eleventh Circuits have sided with the government. The issue could reach the Supreme Court, or the Sentencing Commission could rewrite the guideline.