The Second Circuit has once again confronted the issue of what is a “controlled substance” for purposes of sentencing enhancements under the Guidelines. Earlier this year, the Second Circuit held that the phrase “controlled substance” in U.S.S.G. § 2K2.1(a)(2)—a section that enhances the guidelines sentence for a felon in possession of a firearm previously convicted of two felonies for either a crime of violence or a “controlled substance offense”—refers “exclusively to those substances in the [federal Controlled Substances Act (“CSA”)].” United States v. Townsend, 897 F.3d 66, 75(2d Cir. 2018). This meant that not all state law drug offenses were suitable to be used as sentencing enhancements. Now, in United States v. Guerrero, the Circuit held that the phrase “controlled substance offense” construed in Townsend has the same meaning as the term “felony drug trafficking offense” found in Section 2L1.2(b)(1)(B) of the 2014 Sentencing Guidelines, which is used for illegal reentry offenses. United States v. Guerrero, No. 17-cv-851 (2d Cir. Dec. 10, 2018).
Specifically, in Guerrero, the Second Circuit considered whether a defendant’s prior Arizona drug conviction qualified as a “felony drug trafficking offense” under the 2014 Guidelines for sentence enhancements for unlawfully entering or remaining in the United States. Under those 2014 Guidelines, a “drug trafficking offense” was defined as an “offense under federal, state, or local law that prohibits the…distribution…[of] a controlled substance[.]” Because that definition was “virtually identical” to the definition of “controlled substance” in Townsend, the Second Circuit saw “no reason” not to use the same definition of a controlled substance: those substances within the CSA.
With that definition, the Second...
