Earlier this week, on December 6, 2022, the Second Circuit held in United States v. Gibson, No. 20-3049 (2d Cir. Dec. 6, 2022), that a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance, NYPL 220.39(1) and 110.00, is not a “controlled substance offense” under the Guidelines.
Gibson was convicted in the WDNY of bank robbery and other offenses. The PSR classified him as a career offender, based in relevant part on a 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance. Gibson objected, arguing that the New York offense did not categorically involve a federally controlled substance, as required under United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). Specifically, Gibson argued, New York’s 2002 drug schedules included the opium derivative naloxegol, but in 2015, the federal government had removed that substance from the federal schedules. Thus, by the time of the federal sentencing in 2020, the New York schedule was categorically overbroad. The government conceded overbreadth, but argued that the relevant comparison was between the state and federal drug schedules in effect in 2002, when there was no ovebreadth. The district court (Judge Vilardo, the author of Townsend) rejected the government’s argument, ruled that the relevant comparison was between the state schedule in effect at the time of the defendant’s prior conviction (2002) and the federal schedule in effect at the time of the federal sentencing (2020), and declined to apply the career-offender enhancement. The government appealed.
The Circuit (Kearse, Lohier, Lee) affirmed. The Circuit accepted the government’s concession that the New York schedule was overbroad due to the federal deletion of naloxegol. In addition, the Circuit held, in determining whether a state drug schedule is overbroad, a federal sentencing court must compare (i) the state schedule in effect at the time of the state conviction, to (ii) the federal schedule in effect at either the time of the federal offense conduct or the federal sentencing. (The Circuit didn’t resolve this subissue, as the naloxegol overbreadth existed both at the time of Gibson’s 2017 federal offense conduct and his 2020 federal sentencing.) For Gibson, the relevant comparison was between the 2002 New York schedule, which included naloxegol as a “derivative of opium,” and the 2017 or 2020 federal schedules, which no longer included naloxegol. As a result, Gibson’s New York offense was overbroad and not a “controlled substance offense.”
What does this mean for defendants in this Circuit? Any New York drug offense with a “narcotic drug” element does not count for the Guidelines, ACCA, or 21 USC 851 enhancements.
The Circuit had already established in Townsend that New York drug offenses with a “controlled substance” element – most commonly, fifth-degree sale and possession, NYPL 220.31 and 220.06, and fourth-degree sale, NYPL 220.34(7) and (8) – don’t count. Now, Gibson extends this rule to New York drug offenses with a “narcotic drug” element – most commonly, third-degree sale and possession, NYPL 220.39(1) and 220.16(1). Gibson applies to all NYPL 220.39(1) and 220.16(1) offenses, regardless of date, as long as the federal offense conduct occurred after January 23, 2015 (the date on which naloxegol was removed from the federal schedules). In addition, Gibson’s reasoning would seem to apply to both ACCA and 851. So if a defendant’s New York drug prior has as an element either a “controlled substance” or a “narcotic drug” – it does not count for these enhancements.
Congratulations to WDNY FPD Marianne Mariano for this win!
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