In United States v. Gibson, 55 F.4th 153 (2d Cir. 2022), the Second Circuit held that the defendant’s 2002 New York state conviction for attempted third-degree criminal sale of a controlled substance was not a “controlled substance” offense under the career offender Sentencing Guideline because the New York drug schedules in 2002 included naloxegel, which had been removed from the federal schedules in 2015, making the New York offense categorically broader than the federal controlled substance offense when Gibson was sentenced in 2020. The government had conceded that the New York 2002 schedule was broader than the current federal schedule, but argued that the comparison should be between the New York and federal schedules in 2002. The Circuit rejected that argument. See December 8, 2022, Blog post.
The government (W.D.N.Y.) sought panel rehearing, asking the Court to issue an amended opinion stating that this holding was actually dicta. Not surprisingly, this did not go over well. The panel granted rehearing but only to reject the government’s request, reiterate its holding in the original opinion, and flag the government’s mischaracterizations of both the holding and the arguments made in the district court and on appeal.