Monday, in United States v. Sprull, 18 Cr. 665, Judge Castel ruled that a prior conviction under 21 U.S.C. 846 is not a controlled substance offense under U.S.S.G. 4B1.2(b). Judge Castel agreed with Judge Oetken’s analysis in United States v. Wilson, 18 Cr. 12, and ruled that under the categorical approach, 846 has no overt act requirement, whereas the generic offense of “conspiring” under Application Note 1 to 4B1.2(b) does. As a result, 846 is a categorical mismatch for the Guidelines predicate. We have requested the transcript and will circulate it. We also have briefing on this issue for anyone who’s interested.
The question is currently pending before the Second Circuit in United States v. Tabb, No. 18-338 (briefing complete; oral argument not scheduled yet).