United States v. Thompson, 961 F.3d 545

Thompson pleaded guilty to conspiracy to distribute marijuana and faced sentencing under 21 U.S.C. § 841(b)(1)(B), which carried a mandatory 10-year minimum if the defendant had a prior "felony drug offense."
The government relied on Thompson’s 2002 New York conviction for criminal sale of a controlled substance in the fifth degree (N.Y. Penal Law § 220.31) as the predicate felony drug offense.
NYPL § 220.31 criminalizes sale of any substance listed in N.Y. Pub. Health Law § 3306, a list that includes human chorionic gonadotropin (hCG).
The district court declined to apply the categorical approach, relied on factual materials showing Thompson’s prior sale involved cocaine, and also accepted the government’s argument that sale of hCG related to anabolic steroid use. The court applied the § 841(b)(1)(B) enhancement and sentenced Thompson to 10 years.
The Second Circuit held the categorical approach governs the identification of a prior "felony drug offense," found § 220.31 indivisible and overbroad because it covers hCG (which is not within § 802(44)’s enumerated classes), and concluded § 220.31 is not a categorical match to 21 U.S.C. § 802(44). The court vacated the sentence and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether courts must use the categorical approach to identify a § 841(b)(1)(B) "felony drug offense"	§ 851(c) permits fact-specific proof; court may consider underlying conduct	Categorical approach required; look only to statutory elements of prior conviction	Categorical approach applies to § 841(b)(1)(B) and § 802(44)
Whether NYPL § 220.31 is a categorical match to § 802(44)’s definition of felony drug offense	§ 220.31 substantially corresponds or hCG sales “relate to” anabolic steroids, so § 220.31 qualifies	§ 220.31 is indivisible and overbroad because it criminalizes sale of non-enumerated substances (e.g., hCG) outside § 802(44)	§ 220.31 is indivisible and overbroad; not a categorical match; prior conviction cannot trigger the § 841(b)(1)(B) enhancement

Taylor v. United States, 495 U.S. 575 (1990) (formulated the categorical approach for prior-conviction enhancements)
Descamps v. United States, 570 U.S. 254 (2013) (constitutional limits on using facts of prior conviction to increase sentence)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (application of the categorical approach)
United States v. Dennis Brown, 598 F.3d 1013 (8th Cir. 2010) (rejecting expansive readings of § 802(44))
Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (treated N.Y. Penal Law § 220.31 as indivisible)
United States v. Espinal, 634 F.3d 655 (2d Cir. 2011) (explaining purpose of § 851(c) fact-finding)
McCoy v. United States, 707 F.3d 184 (2d Cir. 2013) (noting prior use of categorical approach in this context)
Quarles v. United States, 139 S. Ct. 1872 (2019) (interpreting Taylor in the context of divisible statutes)