Second Circuit Holds That NYPL § 220.31 (5th Degree Criminal Sale of a Controlled Substance) Is Not A “Controlled Substance Offense” Under USSG 4B1.2(b)

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 is indivisible (as the Second Circuit had already held in Harbin v. Sessions), so a court must presume that a defendant convicted under § 220.31 sold HCG.

How to apply Townsend:

• Any NY state statute that just uses the term “controlled substance” (as opposed to, say “narcotic drug”) IS NOT a controlled substance offense.The most common such statutes are: § 220.31 (criminal sale 5th); § 220.06(1) (criminal possession 5th); § 220.34(7) and (8) (criminal sale 4th); § 220.48 (criminal sale to child); § 220.65 (criminal sale by practitioner); § 220.77(1) (operating as major trafficker).
• Statutes from other states with overbroad drug schedules may not qualify, depending on whether or not the statute is divisible, and whether the government has Shepard documents showing the particular substance sold.States that are known to have overbroad schedules include California, Connecticut, Kansas, Michigan, Pennsylvania, and Virginia. However, there may be others.

  Often, the good law on divisibility and overbreadth appears in immigration cases involving the “controlled substance offense” ground of removability. If you have an out-of-state drug prior, you will want to take a close look at overbreadth.

N.B. The Federal Defenders represents Mr. Townsend.