United States v. Zimmian Tabb, 949 F.3d 81

Tabb pled guilty to aiding and abetting distribution of 3.75 g of crack cocaine (21 U.S.C. § 841; 18 U.S.C. § 2) in May 2017; plea did not stipulate career‑offender status.
At sentencing the district court applied the U.S.S.G. § 4B1.1 career‑offender enhancement based on two prior felonies: a 2014 federal narcotics conspiracy conviction (21 U.S.C. § 846) and a 2010 attempted assault in the second degree conviction under N.Y. Penal Law § 120.05(2).
With the enhancement the Guidelines range was 151–188 months; without it 33–41 months; the court imposed a 120‑month sentence (below Guidelines).
On appeal Tabb argued (1) that attempted second‑degree assault under N.Y.P.L. § 120.05(2) is not a "crime of violence" under the Force Clause of U.S.S.G. § 4B1.2, and (2) that a § 846 narcotics conspiracy is not a "controlled substance offense" under § 4B1.2 (challenging Application Note 1 and the inclusion of § 846 conspiracies).
The Second Circuit reviewed the Guidelines issues de novo and affirmed: (1) § 120.05(2) (attempt) is categorically a crime of violence; (2) § 846 conspiracy qualifies as a controlled substance offense under Application Note 1 as interpreted in this Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted assault (N.Y.P.L. § 120.05(2)) is a "crime of violence" under the Force Clause of U.S.S.G. § 4B1.2	U.S.: Walker and Singh establish that the substantive offense (and attempt) necessarily involves the use/attempted use of physical (violent) force	Tabb: statute can be satisfied by indirect force or omission; New York "attempt" broader than generic attempt; Johnson/Chrzanoski undermine Walker	Affirmed. Attempted § 120.05(2) is categorically a crime of violence; Walker and Singh control; Castleman and Second Circuit precedent support indirect‑force and attempt analyses
Whether conviction under 21 U.S.C. § 846 (narcotics conspiracy) is a "controlled substance offense" under U.S.S.G. § 4B1.2 (Application Note 1)	U.S.: Application Note 1 explicitly includes conspiracies (including § 846); Jackson binds this Circuit; Congress intended parity between substantive drug crimes and conspiracies	Tabb: Application Note 1 conflicts with Guideline text (invalid); § 846 is not "generic" conspiracy because no overt‑act requirement (citing Norman)	Affirmed. Under Jackson/Application Note 1 § 846 conspiracies qualify as controlled substance offenses in the Second Circuit; Application Note 1 is binding here

United States v. Walker, 442 F.3d 787 (2d Cir. 2006) (per curiam) (held attempted NYPL § 120.05(2) categorically involves attempted use of physical force)
Singh v. Barr, 939 F.3d 457 (2d Cir. 2019) (reaffirmed Walker; substantive § 120.05(2) is a crime of violence under § 16(a))
United States v. Jackson, 60 F.3d 128 (2d Cir. 1995) (upheld Sentencing Commission’s inclusion of conspiracies in Application Note 1)
United States v. Castleman, 572 U.S. 157 (2014) (physical force can encompass indirect application, e.g., poisoning)
Johnson v. United States, 559 U.S. 133 (2010) (defined "physical force" as violent force)
United States v. Shabani, 513 U.S. 10 (1994) (federal narcotics conspiracy § 846 does not require an overt act)
Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is binding unless plainly erroneous or inconsistent)