Last week the Second Circuit held that NY Penal Law § 220.31 (fifth-degree criminal sale of a controlled substance) is not a “controlled substance offense” under USSG 4B1.2(b). See United States v. Townsend, No. 17-757 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). The opinion is available here.
The upshot of Townsend is that any New York state statute that just uses the term “controlled substance” is not a controlled substance offense for purposes of the Career Offender Guideline. As our office’s Daniel Habib explains, the analysis in Townsend is straightforward:
(1) The term “controlled substance” in USSG 4B1.2(b) refers exclusively to those substances in the federal Controlled Substance Act (CSA), 21 USC § 802.
(2) NY Penal Law § 220.31 criminalizes the sale of a drug, human chorionic gonadotropin (HCG), that is not included in the CSA.
(3) NY Penal Law § 220.31 …