United States v. Gibson

55 F.4th 153

UNITED STATES of America, Appellant,

v.Vincent GIBSON, Defendant-Appellee.

Docket No. 20-3049

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: November 23, 2021

Decided: December 6, 2022

KATHERINE A. GREGORY, Assistant United States Attorney, Buffalo, New York (James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, on the brief), for Appellant.

MARIANNE MARIANO, Federal Public Defender, Buffalo, New York, for Defendant-Appellee.

Before: KEARSE, LOHIER, and LEE, Circuit Judges.

KEARSE, Circuit Judge:

The United States appeals from so much of a judgment of the United States District Court for the Western District of New York, Lawrence J. Vilardo, Judge , as sentenced defendant Vincent Gibson to 60 months’ imprisonment following his plea of guilty to 11 crimes committed in 2017, to wit, five counts of bank robbery in violation of 18 U.S.C. § 2113(a), five counts of entering the banks with intent to commit larceny in violation of 18 U.S.C. § 2113(a), and one count of bank larceny in violation of 18 U.S.C. § 2113(b) ; and one count of interstate communication of a threat to injure in violation of 18 U.S.C. § 875(c) in 2018. The government had urged the court to sentence Gibson as a career offender under § 4B1.1 of the advisory Sentencing Guidelines ("Guidelines"), within the recommended imprisonment range of 151 to 188 months. The court rejected that request, ruling that one of the predicates advanced by the government for such an enhancement--Gibson's 2002 conviction of third-degree attempted criminal sale of a controlled substance under New York Penal Law §§ 220.39(1) and 110--is not a proper predicate because New York's controlled substances schedule included naloxegol, which had been removed from the federal controlled substances schedules, promulgated under the Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801 - 971, in 2015. The court ruled that "controlled substances" in § 4B1.1 refers exclusively to substances controlled under the CSA, and that as the New York schedule was broader than the schedules currently promulgated under the CSA--i.e. , those reflecting federal criminal law as it stood at the time of Gibson's sentencing in the present case--Gibson's conviction under §§ 220.39(1) and 110 is not a controlled substance offense within the meaning of § 4B1.1. On appeal, the government, which bypassed its opportunities in the district court to argue that New York law was not broader than the current federal law, contends that the district court misinterpreted the Guidelines by failing to compare the New York controlled substances schedule to the federal schedules as they existed at the time of Gibson's state-law conviction in 2002. Finding no merit in that contention, we affirm. While there is much to be said for looking to federal criminal law as it stood at the time the defendant engaged in the conduct that constitutes his present offense, rather than at the time of sentencing for his present offense, we need not decide between the two in this case because either leads to affirmance. Federal criminal law--both at the time of this conduct and at the time of sentencing for it--was narrower than the state law that governed Gibson's 2002 conviction.

I. BACKGROUND

The factual background is not in dispute. As indicated above, Gibson has been convicted in the present case, pursuant to his plea of guilty, of committing, inter alia , several felony crimes of violence in 2017, see , e.g. , United States v. Moore , 916 F.3d 231, 237 (2d Cir. 2019) (bank robbery "by force and violence, or by intimidation," 18 U.S.C. § 2113(a), is a felony crime of violence). Gibson's past criminal record includes his 2002 felony conviction of third-degree attempted criminal sale of a controlled substance in violation of New York Penal Law §§ 220.39(1) (third-degree sale) and 110 (attempt) (collectively "N.Y. §§ 220.39(1) and 110"), and a 2004 felony conviction of first-degree attempted robbery in violation of New York Penal Law §§ 160.15(2) and 110.

A. The Dispute Over the Controlled Substance Predicate for Career-Offender Enhancement

To the extent relevant here, Guidelines § 4B1.1 provides that a defendant whose current offense is a crime of violence, committed when he was over 18 years of age, "is a career offender if ... [he] has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Guidelines § 4B1.1(a). Those "two" predicate convictions can consist either of convictions in the same category or of "one felony conviction of a crime of violence and one felony conviction of a controlled substance offense." Id. § 4B1.2(c). As defined in pertinent part by the Guidelines,

[t]he term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the ... dispensing of a controlled substance,

Guidelines § 4B1.2(b), or an attempt to commit such an offense, see id . Application Note 1.

Under New York law, "[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells ... a narcotic drug," N.Y. Penal Law § 220.39(1) (McKinney 2002)--or of an attempt to do so, see id. § 110. The term "narcotic drug" is defined to include "any controlled substance"--other than methadone--"listed in schedule ... II(b)" of § 3306 of New York's Public Health Law. N.Y. Penal Law § 220.00(7) (McKinney 2002). As relevant here, that schedule II(b) list of controlled substances includes--as it apparently did in 2002--"[o]pium and opiate, and any salt, compound, derivative , or preparation of opium or opiate ." N.Y. Pub. Health Law § 3306 Schedule II(b)(1) (McKinney 2002) ("New York schedule II(b)(1)") (emphases added). Naloxegol is an opium alkaloid derivative. See generally Schedules of Controlled Substances: Removal of Naloxegol From Control, 80 Fed. Reg. 3468, 3468 (Jan. 23, 2015) ("Naloxegol Delisting Rule") ("Prior to the effective date of this rule, naloxegol was a schedule II controlled substance because it can be derived from opium alkaloids.").

The government, in anticipation of Gibson's plea of guilty in the present case (without a plea agreement), submitted to the court a Calculation of Maximum Sentence and Sentencing Guideline Range. It contended that Gibson's record of convictions subjected him to the Guidelines § 4B1.1 career-offender enhancement. The application of that enhancement increases a defendant's Guidelines offense level and criminal history category and would have resulted in a recommended imprisonment range for Gibson of 151 to 188 months.

Gibson, in response, filed a motion asking the court not to apply the career-offender enhancement, contending that the necessary predicates were lacking. While noting that New York attempted robbery had been held by this Court to be a crime of violence, he argued that his 2002 controlled substance conviction under N.Y. §§ 220.39(1) and 110 was not a proper predicate because naloxegol, a narcotic drug criminalized by § 220.39(1) and New York schedule II(b)(1), has been excluded from federally controlled substances since 2015. (See Gibson Memorandum of Law dated October 31, 2019 ("October Mem."), at 2-5.) Gibson pointed out that in United States v. Townsend , 897 F.3d 66 (2d Cir. 2018) (" Townsend "), this Court held that "the term ‘controlled substance’ in § 4B1.2(b) refers exclusively to substances scheduled under the [CSA]"; that New York Penal Law § 220.31 (fifth-degree criminal sale of a controlled substance) encompassed Human Chorionic Gonadotropin ("HCG"), a drug that was not included in the federal schedules; that § 220.31 was therefore broader than federal law; and that a conviction under § 220.31 was thus not a "controlled substance" offense within the meaning of § 4B1.1. (Gibson October Mem. at 2, 4 (citing Townsend , 897 F.3d at 75 ).) Gibson argued that the reasoning of Townsend applied equally to his conviction under N.Y. §§ 220.39(1) and 110. He contended that the district court should "look to the Guidelines and the state-of-the-law as it exists .... ‘on the date the defendant is sentenced’ " to determine what § 4B1.1's reference to a controlled substance offense means with respect to the defendant to be federally sentenced (id. at 5 (quoting 18 U.S.C. § 3553(a)(4)(A)(ii) )); and that the court should conclude that a conviction under N.Y. §§ 220.39(1) and 110 is not a controlled substance conviction within the meaning of § 4B1.1 because of New York schedule II(b)(1)’s criminalization of naloxegol, which has not been a federally controlled substance since 2015. Gibson argued that with only one possible predicate conviction remaining--the 2004 attempted robbery conviction--§ 4B1.1 was not applicable.

The government, while not disputing Gibson's contention that N.Y. §§ 220.39(1) and 110 included naloxegol and thus criminalized a broader range of conduct than do the current CSA schedules, argued that the district court should reject Gibson's advocated "time-of-sentencing" rule for comparing a state law to its generic federal counterpart. (Government's Response in Opposition to Defendant's Memorandum of Law, dated December 2, 2019 ("Government's December 2 Mem."), at 4.) The government stated that "[i]n Townsend , the Court specifically compared the state and federal controlled substance schedules at the time of Townsend's conviction , not the schedules at the time of his sentencing. 897 F.3d at 74." (Government's December 2 Mem. at 5 (emphasis in Mem.).) It also contended that this Court had used that same retrospective focus in Doe v. Sessions , 886 F.3d 203, 208 (2d Cir. 2018), albeit with respect to an immigration removal proceeding. The government contended that the district court should look to the contents of the CSA schedules only as of the time of Gibson's 2002 conviction under §§ 220.39(1) and 110; and as naloxegol had...