Thursday, August 16, 2018

The Second Circuit Has Held That New York State Convictions for “Controlled Substances” Offenses Do Not Qualify as a Career Offender Conviction

by

Lawrence L. Kasperek


In USA v. Townsend, 897 F.3d 66 (2d Cir. July 23, 2018), the Second Circuit held that NYS Penal Law  Section § 220.31 (fifth-degree criminal sale of a controlled substance) is not a "controlled substance offense" under USSG 4B1.2(b). See United States v. Townsend, 897 F.3d 66 (2d Cir. 2018) (Cabranes, Carney, Vilardo (W.D.N.Y.)) (appeal from Irizarry, C.J., E.D.N.Y.). Yes that's right  --  Judge Vilardo sitting by designation from the WDNY in Buffalo, NY.

The consequences of this decision is that any New York State statute that just uses the term “controlled substance” is not a controlled substances offense for the purposes of the Career Offender Guideline analysis.

How to apply Townsend:

- Any NY state statute that just uses the term “controlled substance” (as opposed to, say "narcotic drug") IS NOT a controlled substance offense. The most common New York State statutes to look for are: 220.31 (criminal sale 5th); 220.06(1) (criminal possession 5th); 220.34(7) and (8) (criminal sale 4th); 220.48 (criminal sale to child); 220.65 (criminal sale by practitioner); 220.77(1) (operating as major trafficker).

- Statutes from other states with overbroad drug schedules also may not qualify, depending on whether or not the statute is divisible, and whether the government has Shepard documents showing the particular substance sold. States that are known to have overbroad schedules include California, Connecticut, Kansas, Michigan, Pennsylvania, and Virginia. However, there may be others. Often, the good law on divisibility and overbreadth appears in immigration cases involving the “controlled substance offense”" ground of removability. If your client has an out-of-state drug prior, you will want to take a close look at overbreadth.

- For now, the higher-degree New York offenses, especially 220.39(1) (criminal sale 3rd, narcotic drug) still count.

Importantly, Townsend's logic may also apply to 2K2,.1 referencing "controlled substance offenses" or any other Guideline application.

Credit for the above belongs to Daniel Habib, a Federal Public Defender in the Eastern and Southern Districts of NY for bring the challenge and  Amy Baron-Evans, National Sentencing Resource Counsel  for analysis.

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