Monday, June 8th, 2020

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction for a felony drug offense” for purposes of the recidivism enhancement in 21 U.S.C. § 851 under Taylor’s now-familiar categorical approach. This is so because, as the Court previously held in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), this New York law (1) is indivisible and (2) regulates a broader range of controlled substances than the analogous federal drug schedule. In particular, while § 220.31 criminalizes the sale of HCG (a pregnancy hormone), federal law does not. And because fifth-degree sale is indivisible, it is irrelevant that court documents show that Thompson’s prior conviction involved the sale of cocaine.

Two practice pointers:

First, under the First Step Act, enacted in December 2018, Thompson’s prior conviction would not qualify for another reason. The Act amended § 851 by requiring that the defendant have a “prior conviction for a serious drug offense,” defined inter alia as a drug offense carrying a statutory maximum penalty of 10 or more years’ imprisonment. Section 220.31 is a “D felony” in New York and carries a maximum of only 7 years.

Thompson did not benefit from the First Step Act because he was sentenced before its enactment. See Act § 401(c) (noting that amendment to § 851 “shall apply to any offense that was committed before the date of enactment of the Act, if a sentence for the offense has not been imposed as of such date of enactment”) (emphasis added).

Second, this opinion is limited to fifth-degree sale and does not apply to first- through fourth-degree sale in New York. As the Court notes, those statutes “may be divisible” and “generally criminalize the sale of dangerous substances, rather than the sale [of public-health related substances such as HCG].” Thus, “our opinion does not consider or decide” whether a conviction under one of those laws would qualify for a recidivist enhancement.

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