United States v. Barrow
230 F. Supp. 3d 116
E.D.N.Y2017Background
- Defendant Barrow pled guilty to dealing in firearms without a license (18 U.S.C. § 922(a)(1)(A)) and possession of a firearm after a felony (18 U.S.C. § 922(g)(1)); other counts were dismissed.
- From Sept. 2014–Nov. 2015 he sold 14 firearms to undercover agents in multiple transactions; arrested Jan. 29, 2016.
- PSR recommended a higher base offense level (24) based on two prior New York felony drug convictions (1994 and 2002 arrests); government pressed for enhanced Guidelines.
- Court held the 1994 conviction was too remote (released 1999) to count under U.S.S.G. § 4A1.2(e)(1); examined whether the 2002 New York § 220.31 conviction (criminal sale in the fifth degree) qualified as a Guidelines “controlled substance offense.”
- Court concluded § 220.31 is categorically broader than the Guidelines predicate because New York criminalizes HCG (chorionic gonadotropin), a substance not listed in the federal CSA schedules, so the conviction cannot serve as a predicate.
- Calculation: base level 14, adjusted offense level 19, CHC III, Guidelines range 37–46 months; court imposed 42 months imprisonment, 3 years supervised release, and two $100 assessments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether older (1994) NY drug conviction counts for Guidelines enhancement | Gov: counts as prior felony for § 2K2.1 enhancement | Barrow: too remote under § 4A1.2(e)(1) (not within 15 years) | Held: Too remote; cannot increase base level |
| Whether 2002 NY § 220.31 conviction is a Guidelines "controlled substance offense" | Gov: § 220.31 is an offense under state law punishable >1 year and thus counts under U.S.S.G. §4B1.2(b) | Barrow: § 220.31 is broader than the federal generic offense and therefore does not qualify | Held: § 220.31 is categorically broader because it covers HCG (not listed in CSA); conviction is not a predicate |
| Whether the modified categorical approach can be used to identify the specific controlled substance | Gov: may attempt to use charging documents if statute divisible | Barrow: statute indivisible; cannot look beyond elements | Held: § 220.31 is indivisible; modified categorical approach not applicable |
| Whether there is a realistic probability NY applied § 220.31 to HCG (so the conviction would be non-generic) | Gov: must show realistic probability of non-generic application | Barrow: no evidence conviction involved HCG | Held: There is actual state practice prosecuting HCG; realistic probability exists, so the statute is categorically broader |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for predicate offenses)
- Descamps v. United States, 133 S. Ct. 2276 (divisible statutes; modified categorical approach limits)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (realistic probability standard in categorical analysis)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (realistic probability requirement)
- Johnson v. United States, 135 S. Ct. 2551 (limits on judicially imagined ‘ordinary case’ risk assessment)
- United States v. Booker, 543 U.S. 220 (Guidelines advisory; §3553(a) factors)
- Rita v. United States, 551 U.S. 338 (reasoned explanation for sentence outside/in relation to Guidelines)
- United States v. Cavera, 550 F.3d 180 (2d Cir. en banc) (district court must independently consider §3553(a))
- Pascual v. Holder, 723 F.3d 156 (2d Cir.) (New York drug statutes require bona fide intent to sell)
- United States v. Savage, 542 F.3d 959 (2d Cir.) (state statutes penalizing possession without intent to distribute can be non-predicate)