60 F.4th 720
2d Cir.2023Background
- Defendant Gibson had a 2002 New York drug conviction; at issue was whether that conviction qualified as a "controlled substance offense" predicate for Guidelines §4B1.1.
- In 2015 naloxegol was removed from the federal CSA schedules; New York's 2002 schedule included opiate derivatives (including naloxegol).
- The district court, citing United States v. Townsend, evaluated comparability using current federal schedules and found federal law narrower than New York's 2002 law, so §4B1.1 did not apply.
- On appeal this Court affirmed that the district court correctly concluded current federal law is narrower and that Gibson's §4B1.1 enhancement was inapplicable.
- The United States petitioned for panel rehearing, arguing the Court's ruling that the 2015 naloxegol delisting made federal schedules categorically narrower was dictum and should be labeled nonprecedential.
- The Court granted rehearing to address government positions and record characterizations but denied the request to amend the opinion or recharacterize the ruling as dictum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New York's 2002 drug schedule is categorically broader than current federal schedules after naloxegol delisting | Gibson: NY 2002 is broader than current federal law; naloxegol inclusion means the 2002 conviction is not a federal predicate | Government: Court should look to federal schedules as they existed in 2002, not current schedules | Court: Current federal schedules are narrower; district court correctly found §4B1.1 inapplicable to Gibson |
| Whether the comparability issue was presented and preserved | Gibson: Government failed to contest divergence; issue was before the court | Government: The divergence argument was not properly before the district court/appeal; should be handled on remand | Court: Government did raise and brief positions and made representations in district court and on appeal; issue was properly presented |
| Which temporal frame controls comparability analysis (current federal law vs. law at time of prior offense) | Gibson: Use current Guidelines and current federal schedules | Government: Use federal schedules as of 2002 (time of prior conviction) | Court: Consistent with Townsend and the district court, courts assess comparability under current federal law |
| Whether the Court's statement that the 2015 naloxegol removal rendered federal schedules categorically narrower was dictum | Gibson: N/A | Government: That statement was dictum and should be deemed nonprecedential | Court: Denied request; the ruling was necessary to resolution and is not mere dictum |
Key Cases Cited
- United States v. Gibson, 55 F.4th 153 (2d Cir. 2022) (affirming that current federal schedules are narrower than New York's 2002 schedule and §4B1.1 was inapplicable)
- United States v. Townsend, 897 F.3d 66 (2d Cir. 2018) (instructing courts to assess comparability under current federal law)
- Gall v. United States, 552 U.S. 38 (2007) (sentencing proceedings must begin with correct Guidelines calculation)