Friday, December 8th, 2023

New York Narcotics Convictions Still Aren’t Federal Controlled Substance Offenses

In United States v. Chaires, No. 20-4162 (2d Cir. Dec. 7, 2023) (per curiam), the Second Circuit (Carney, Sullivan, and Menashi) remanded for resentencing, on plain error review, where the defendant was sentenced as a career offender based on New York controlled substance predicates. As our dear readers are well-aware, Chaires follows in the footsteps of several important Second Circuit cases holding that state drug crimes are categorically overbroad – and cannot be used to enhance a sentence – because they punish possession of more substances than the federal Controlled Substance Act (CSA). To recap:

  • United States v. Townsend, 897 F.3d 66 (2d Cir. 2018). In this leading case, in addition to holding that the categorical approach applies to the controlled-substance-offense determination, the Court ruled that, because N.Y.P.L. 220.31 punishes possession of human chorionic gonadotropin, but the CSA does not, it cannot serve as a predicate for offense-level-enhancement purposes under U.S.S.G. 2K2.1(a)(2). 
  • United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), adhered to on reh’g, 60 F.4th 720 (2d Cir. 2023) (per curiam). Applying the categorical approach, N.Y.P.L. 220.39(1) cannot serve as a career offender predicate under U.S.S.G. 4B1.1, because the state controlled substance schedule includes naloxegol, which was federally descheduled in 2015. 
  • United States v. Minter, 80 F.4th 406 (2d Cir. 2023). The nail in the coffin. The Court again held that N.Y.P.L. 220.39(1) is overbroad in the ACCA context, 18 U.S.C. 924(e)(2)(A)(ii), this time because it criminalizes all cocaine isomers, not just the optical and geometric isomers explicitly listed in the CSA. 

Since Gibson and Minter, the Second Circuit has been working through a queue of defense and government appeals – like Chaires – raising the overbreadth issue. See also United States v. Johnson, No. 19-4071, 2023 WL 4752305 (2d Cir. Jul. 26, 2023) (summary order) (remanding for resentencing based on unpreserved Gibson error; career offender). In the end, the Chaires opinion is a straightforward application of Minter on plain error review. There are a few things to note, however.

First, as those litigating this issue know, ever since Gibson was decided a year ago, the government has insisted that it is non-precedential because it conceded the state/federal disparity in that case. The government sought rehearing in Gibson on this basis, and the panel granted rehearing but adhered to its decision. (Links to both opinions above.)  Nevertheless, that is still the government’s position as to Gibson.  However, Minter appears to have broken the logjam: while the government in Chaires pressed its Gibson-is-not-precedential argument, it explicitly conceded that remand was required under Minter. This concession is an important development for those post-Gibson cases where the government has continued to seek sentence enhancement in district court based on state drug crimes, or opposed remand on appeal.  

In addition, Judge Sullivan penned a lengthy concurrence in Chaires. While he agreed that remand was necessary under this Circuit’s precedent, he wrote separately because, in his view, Townsend was wrong to apply the categorical approach. (As the Judge notes, there is a Circuit split on this issue, which the Sentencing Commission and Supreme Court have thus far declined to resolve.) The concurrence’s pithy conclusion is a good summary of Judge Sullivan’s position:  

. . . The categorical approach lacks any foothold in [the career offender enhancement guidelines] text, has proven to be hopelessly difficult to administer, and illogically disqualifies untold numbers of state and federal narcotics convictions from serving as predicate offenses – even though those convictions were in fact premised on a federally controlled substance. For these reasons, I continue to believe that section 4B1.2(b) calls for a state-dependent approach to controlled substance offenses, as six of our sister circuits have already held. I therefore urge the Second Circuit to correct this error through an en banc or mini en banc proceeding that would overrule our currently binding precedent in Townsend and bring us in line with the majority of circuits to have addressed this issue.

Concurrence at 18 (internal citation omitted). 

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