Case Information
‐ ‐ cr Townsend In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ cr
U NITED S TATES OF A MERICA Appellee
T YREK T OWNSEND Defendant Appellant
On Appeal from District Court Eastern District
A RGUED : M ARCH D ECIDED : J ULY
Before: C ABRANES C ARNEY Circuit Judges V ILARDO , District Judge . [*]
For purposes United States Sentencing (“U.S.S.G.” “Guidelines”) 4B1.2(b), “[t]he term ‘controlled offense’ means law . . . prohibits . . . distribution . .” (emphasis added).
This case presents question how define “controlled substance” 4B1.2(b): Does include substances by Controlled Substances Act (“CSA”)? Or it also include substances regulated by but by law? we find refers exclusively CSA, VACATE judgment United States District Court for Eastern District New (Dora L. Irizarry, Chief Judge ) REMAND for resentencing.
D AVID K. K ESSLER Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, brief ), for Richard P. Donoghue, Attorney, Eastern District New York, Brooklyn, NY, Appellee *3 D ANIEL H ABIB Federal Defenders New York, Inc., Appeals Bureau, New York, NY, for Defendant ‐ Appellant.
L AWRENCE J. V ILARDO District Judge :
For purposes Sentencing (“U.S.S.G.” “Guidelines”) 4B1.2(b), “[t]he term ‘controlled offense’ means law . . . prohibits . . . distribution .” (emphasis added).
This case presents question how define “controlled substance” 4B1.2(b): Does include substances by Controlled Substances Act (“CSA”)? Or it also include substances regulated by but law? we find refers exclusively CSA, VACATE judgment District Court Eastern District New York (Dora L. Irizarry, Chief Judge ) REMAND resentencing.
I. BACKGROUND
On November Police Department officers saw Defendant ‐ Appellant, Tyrek Townsend (“Townsend”), engage what they believed suspicious, drug related activity. officers arrested Townsend and, search incident his arrest, recovered loaded millimeter semiautomatic weapon. A later search police precinct yielded six partial tablets alprazolam, also known Xanax, federally substance.
Townsend was indicted a grand jury on three counts: (1) possessing alprazolam with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2); (2) possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) being a felon possession of a firearm, in violation U.S.C. § 922(g)(1). On September Townsend pleaded guilty counts one three.
The crime being felon possession firearm, under U.S.C. § 922(g)(1), has base offense level if defendant committed offense after sustaining one felony conviction for either crime violence controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A) (2016). The base offense level increases from has two such prior convictions. U.S.S.G. § 2K2.1(a)(2). presentence investigation report (“PSR”) prepared before determined 2K2.1(a)(2) applied
Townsend appropriate base offense level was It based conclusion two Townsend’s prior convictions: one under New York Penal Law (“NYPL”) 220.31 fifth degree criminal sale substance another New Jersey third degree aggravated assault deadly weapon.
Townsend objected higher base offense level. He argued his prior substance offense New York *5 substantively broader than federal counterpart therefore could not used increase offense level his subsequent calculated Guidelines range. More specifically, he noted NYPL 220.31 prohibits sale Human Chorionic Gonadotropin (“HCG”), a substance under New York but under CSA. New York statute criminalized distribution a substance proscribed by law, Townsend argued, under would increase his Guidelines range. government district court disagreed, however.
According district court, which adopted reasoning PSR, because define qualifying offense one “under law,” all drug convictions necessarily qualify. Appellant’s App. And for reason, part, court found Townsend’s drug subjected him heightened base offense level § 2K2.1(a)(2).
II. DISCUSSION
We review sentence imposed by district court reasonableness. Cavera F.3d (2d Cir. 2008) (en banc). But review de novo district court’s specific determination “prior offense, defined U.S.S.G. 4B1.2.” Savage (2d Cir. 2008) (internal quotation marks omitted).
Calculating defendant’s range includes far simply considering crime conviction. Indeed, some crimes, base level Guidelines—i.e., starting point—increases certain previously sustained. See, e.g. 2K2.1(a)(2). But such enhancements limited considerations *6 fairness due process. Rosales Mireles , S. Ct. (2018).
For starters, Guidelines language must make clear—to court, defendant, government—the basis sentencing enhancement. Thus, determine whether increases defendant’s base offense level, courts begin with language Guidelines. See, e.g. Savage ‐ (beginning sentencing enhancement analysis with Guidelines language). If Guidelines are clear, there little do; they ambiguous, however, courts have crafted interpretive scheme honors our system while preserving fairness owed defendant.
A. Interpreting §§ 2K2.1 4B1.2(b) Section 2K2.1 adopts definition substance offense” 4B1.2(b). U.S.S.G. § 2K2.1, Application Note Section 4B1.2(b), turn, defines substance
An or punishable imprisonment exceeding one year, prohibits
manufacture, import, export, distribution,
or dispensing (or counterfeit substance) possession (or counterfeit substance) intent manufacture, import, export, distribute, dispense. 4B1.2(b) (emphasis added).
The district court here found this language be clear and unambiguous. Because state controlled substance offenses can be valid predicate offenses, court reasoned, all state substance offenses incorporated into enhancement provision. In words court, “[t]he operative ‘or state law.’ So that particular guideline actually provides that specific violation state would make it substance offense guideline.” Appellant’s App. 238 ‐ district court here only one our Circuit reach conclusion. In v. Laboy 16 CR ‐ 669 (AJN) 2017 WL (S.D.N.Y. Dec. 12, 2017), district court found “the phrase ‘controlled substances’ has no inherent meaning beyond governing entity’s decision control certain and others.” Id. *3. Because “state offenses would carry them reference their own drug schedules,” clearly qualify, court concluded conviction for involving would qualify well. Id. But see Barrow F. Supp. 3d (E.D.N.Y. 2017).
On appeal, government echoes district court’s conclusion plain language triggers application 2K2.1(a) enhancement based on any predicate offense. “Had [Sentencing] *8 Commission intended to restrict a ‘controlled substance offense’ to only crimes involving substance controlled under federal law, it would have done so.” Br. Appellee government cites examples in the where the definition term expressly limited to federal law. Id. at 18; s ee also Laboy WL *3. In other words, government’s view, absence the word “federal” next to “controlled substance” means Sentencing Commission intended courts to consider sale substance controlled only under state law.
But government has it backwards: presumption federal—not state—standards apply Guidelines, discussed detail below, Sentencing Commission wanted “controlled include substances controlled under only state law qualify, then it should have said so.
And language not clear as government court below made it out be. Although “controlled substance offense” includes “under federal or state law,” does also mean substance issue may be under law. To include law, definition should read “. substance law .” But it not.
It may tempting transitively apply “or law” modifier from substance offense” term *9 “controlled substance.” But to do so would undermine presumption federal standards define federal provisions. Guidelines presume application federal standards unless they explicitly provide otherwise, ambiguity defining must be resolved according to federal—not state—standards.
1. The Jerome presumption
As general rule, commonly called Jerome presumption, application federal depend on state unless Congress plainly indicates otherwise. See Jerome v. United States , 318 U.S. 101, 104 (1943). Although federal statute, Guidelines given force law, v. Kirvan , F.3d 309, 311 (2d Cir. 1996), arguably have even greater need uniform application, Savin , F.3d (2d Cir. 2003). Jerome presumption thus applies equally Guidelines. Savin F.3d
Sentencing who has involves complicated “meshing process observe two sovereigns competing their legitimate spheres.” Dickinson First Nat’l Bank F.2d (5th Cir. 1968) (Goldberg, J.). But there any doubt, it interest sovereign must give way because, after all, punish violations law. Stated another way, “the should be applied uniformly those convicted crimes irrespective how victim happens characterized home jurisdiction.” Savin (applying Jerome presumption Guidelines).
What more, since Jerome decided Supreme Court has rejected attempts impose enhanced punishments criminal defendants light conviction, when those attempts do also ensure conduct gave rise *10 justified imposition of an enhancement under a uniform federal standard. See Taylor v. U.S. 579, ‐ (1990) (rejecting argument that “burglary” in Armed Career Criminal Act means “burglary” however a chooses to define it); Esquivel ‐ Quintana v. Sessions S. Ct. (2017) (rejecting argument that “sexual abuse of a minor” encompasses all statutory rape regardless the state’s age of consent, that definition “turns the categorical approach on its head by defining the generic federal offense sexual abuse minor as whatever is illegal under particular law the State where the defendant convicted”). These decisions reinforce idea imposing federal enhancement under requires something based on state’s determination given should controlled.
In light above, we confident federal law interpretive anchor to resolve ambiguity at issue here. Any other outcome would allow enhancement turn whatever “is illegal under particular law State where convicted,” clear departure from Jerome progeny. Esquivel Quintana S. Ct. Thus, under 4B1.2(b) must refer exclusively those drugs listed federal law—that is, CSA.
The interpretation of “controlled substance” by other circuits holding that a “controlled substance” refers exclusively to a substance controlled by CSA, we in good company. Fifth, Eighth, Ninth Circuits have found “controlled Guidelines have same meaning we now find. [5] United States v. Gomez ‐ Alvarez , 781 F.3d 787, 793 ‐ 94 (5th Cir. 2015); United States v. Leal ‐ Vega , 680 F.3d 1166 ‐ 67 (9th Cir. 2012); Sanchez ‐ Garcia , 642 F.3d 661 ‐ 62 (8th Cir. 2011).
According Ninth Circuit, “defining ‘controlled substance’ have ordinary meaning of a drug regulated would make what offenses constitute a drug necessarily depend on at issue.” Leal ‐ Vega , F.3d at 1166 (emphasis original). Based on same reasoning, Fifth Circuit found that government must “establish substance underlying th[e] covered CSA” before a substance can qualify Guidelines offense. Gomez ‐ Alvarez F.3d at (5th Cir. 2015); see also Sanchez ‐ Garcia, “generic definition” substance might be, we need decipher generic definition resolve this appeal. These other circuit opinions considered different Guidelines. They also analyzed definition “drug trafficking offense,” rather offense.” See, e.g. Leal Vega (9th Cir. 2012). We nonetheless find them instructive definitions use virtually identical language incorporating offenses “prohibit[] manufacture, import, export, distribution, dispensing substance.” Compare 2L1.2, U.S.S.G. § 4B1.2(b). We note, however, our holding applies provision issue this appeal, 2K2.1(a). We also note these cases relied different interpretive scheme, none them explicitly applied Jerome presumption portion issue, do here.
F.3d 661 ‐ 62 (finding as overinclusive California statute defined controlled broadly than CSA). But see United States v. Smith F. App’x 483, 489 (6th Cir. 2017) (finding “no requirement particular underlying state conviction also federal government” an enhancement under § 4B1.2).
B. Comparing state their corresponding federal crimes Concluding defined 4B1.2(b) includes CSA end our analysis. A state conviction will qualify 2K2.1(a) if state conviction aligns with, is “categorical match” with, federal law’s definition substance. To determine whether definition matches, must know state crime committed compare elements crime elements corresponding generic federal crime. If state statute broader counterpart—that is, statute criminalizes some conduct criminalized analogous law—the cannot support increase base level. Jones (2d Cir. 2017).
There two ways compare statutes their generic counterpart: categorical approach modified categorical approach. Mathis S. Ct. (2016). Which approach court takes turns whether defining crime divisible indivisible. Id.
A statute is divisible when it lists elements in the alternative, thereby defining multiple crimes within one statute. Jones , F.3d at 16. A divisible statute triggers modified categorical approach. Id.
An indivisible statute, other hand, defines only one crime. It may list “various factual means of committing single element,” but it list elements in alternative. Mathis, S. Ct. at 2249. An indivisible statute is subject categorical approach. Jones F.3d at 16.
Under categorical approach, because statute is indivisible, courts look only at language of statute, statute defines only one crime. But statute divisible, courts do know looking text statute which alternative version of *14 statute the may have violated. Id. Therefore, if the statute at issue divisible, courts apply the modified categorical approach consider very limited set of materials to help determine the specific elements of the crime of conviction. [7] Id. ; Descamps U.S. 62 (2013).
Once courts determine the particular elements of the crime of conviction, the analysis the same both approaches. Mathis S. Ct. at (finding once courts determine, the modified categorical approach, which alternative version of the crime committed, “court[s] can then compare crime, categorical approach commands, relevant generic offense”). If elements defendant’s prior conviction are same as, narrower than, generic counterpart crime, prior can affect defendant’s range 2K2.1(a). See Jones F.3d Conversely, elements statute are broader those corresponding crime, prior give rise enhancement 2K2.1(a). See id. other words, punishes conduct criminalized cannot affect calculation.
*15 1. Matching NYPL section 220.31 with the CSA
There is no longer any question that NYPL section 220.31 is indivisible: last year, this Court found exactly that Harbin Sessions at 61. We found that NYPL section 220.31 “creates only a single crime” with several “factual means which crime may be committed.” Id. 65. finding indivisible, we identified four elements crime. The defendant must (1) knowingly (2) unlawfully
(3) sell (4) a controlled substance. Id. NYPL section 220.31 thus requires only defendant possess “controlled substance” generally. The particular defendant actually possessed is element Law need be proven be convicted violating this statute. Therefore, our inquiry limited whether “controlled substance” NYPL 220.31 categorical match CSA’s definition “controlled substance.”
An element state categorically matches counterpart state element “the same as, narrower than” element. Descamps U.S. With respect substances, means must criminalize those criminalized law. And analysis focuses element—not specific underlying conviction— “we must presume rested upon nothing least acts criminalized” statute. Moncrieffe *16 Holder U.S. 184, (2013) (internal quotation marks and alterations omitted). If might be convicted violating NYPL section 220.31 for conduct is not prohibited CSA, his state conviction cannot qualify predicate offense. See Esquivel ‐ Quintana S. Ct. 1572.
At time Townsend’s conviction, New York state drug schedule, section New York Public Health Law, included HCG Schedule III substance. N.Y. Pub. Health Law § Schedule III(7)(g) (listing Chorionic gonadotropin).
HCG not under CSA. Compare N.Y. Pub. Health Law § U.S.C. § Therefore, state statute under which Townsend convicted sweeps broadly counterpart, his prior conviction under NYPL section 220.31 not predicate purposes increasing his range § 2K2.1(a). sum, because Townsend’s prior conviction violating indivisible statute, categorical approach applies. And statute criminalizes sale criminalized law, categorically match crime. Consequently, Townsend’s cannot 2K2.1(a).
III. CONCLUSION
For reasons above, hold that:
(1) 4B1.2(b) refers exclusively those CSA; (2) NYPL section 220.31 criminalizes sale drug, HCG, included CSA, NYPL 220.31 therefore *17 cannot predicate enhanced sentence 2K2.1(a). Townsend’s NYPL 220.31 therefore qualify offense.” We therefore VACATE District Court’s judgment REMAND resentencing.
[*] Judge Lawrence J. Vilardo, District Court Western District York, sitting designation.
[1] Townsend initially objected using both determining his base offense level. At time sentencing, however, Townsend withdrew his objection New Jersey aggravated assault conviction but maintained his New York substance could support higher level. So Townsend argued his base level did qualify offense” 2K2.1(a)(2).
[2] proceedings below, government’s primary argument qualifying conviction rested on divisibility NYPL section 220.31. “divisible,” government argued, based on government’s assertion Townsend’s prior possessing heroin HCG, his qualified. This Court’s subsequent decision Harbin Sessions (2d Cir. 2017), however, found NYPL 220.31 indivisible. infra section II.B.1. So government has changed direction appeal.
[3] fact, even though government now asserts Townsend’s interpretation defies “the plain text [§ 4B1.2(b)]” Br. Appellee government conceded proceedings below very point it now contests. Appellant’s App. (“[I]f convicted selling ‘human chorionic gonadotropin,’ ‘controlled substance’ but then Drug Conviction would count felony.”) (citation omitted).
[4] We note our conclusion 2K2.1(a) meant apply only substances federal determined by our adherence Jerome presumption interpreting provision’s ambiguity. Our analysis Jerome presumption differs from approach taken Court Taylor Esquivel Quintana Sessions both those cases, Court defined “generic” meaning contained enhancement determine whether defendant’s qualified enhancement issue. Jerome presumption requires consider defined law, regardless what
[6] For example, in Jones considered first degree robbery statute, which defines robbery in four distinct ways: A person guilty robbery in first degree when he forcibly steals property when, course commission crime or immediate flight therefrom, he or another participant crime: 1. Causes serious physical injury any person who participant crime; or 2. Is armed with deadly weapon; or 3. Uses or threatens immediate use dangerous instrument; 4. Displays what appears pistol, revolver, rifle, shotgun, machine gun other firearm NYPL 160.15. We found this statute divisible each four subsections constitutes distinct crime distinct elements. Jones
[7] Out fairness defendant, among other considerations, courts following modified categorical approach are very careful limit review underlying conduct related conviction. Jones, (“Statements ‘non elemental fact’ records convictions [such precise manner which crime committed] prone error precisely their proof unnecessary. Defendants therefore may have little incentive ensure correctness those details earlier could later trigger unforeseen enhancement.”) (internal citations quotation marks omitted).
[8] government’s brief might read maintaining language clearly incorporates substances, therefore court need venture into realm categorical approach. For reasons set forth above, disagree.