United States v. Minter

80 F.4th 406

UNITED STATES of America, Appellant, v. Dave MINTER, Defendant-Appellee.

No. 21-3102

August Term 2022

United States Court of Appeals, Second Circuit

Argued March 23, 2023

Decided September 6, 2023

Appeal from the United States District Court for the Southern District of New York, No. 20-Cr-389 (JGK), John G. Koeltl, District Judge, Presiding.

Michael D. Maimin (Kevin Mead, Won S. Shin, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, N.Y. for Appellant

Derek A. Cohen, (Brian Mogck, on the brief), Walden Macht & Haran, New York, N.Y. for Defendant-Appellee.

Before: PARKER, LYNCH, and LOHIER, Circuit Judges.

Barrington D. Parker, Circuit Judge:

The government appeals from a judgment of conviction entered against Defendant-Appellee Dave Minter in the United States District Court for the Southern District of New York (Koeltl, J.) The District Court concluded that Minter was not an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), and therefore declined to impose a sentencing enhancement sought by the government.

The issue presented by this appeal is whether Minter's 2014 conviction under New York Penal Law § 220.39(1) for the sale of cocaine was for a "serious drug offense" and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA. Because we hold that New York's definition of cocaine is categorically broader than its federal counterpart, Minter's cocaine conviction cannot serve as a predicate ACCA offense. We therefore affirm the judgment of conviction.

BACKGROUND

In April 2020, Minter was arrested in the Bronx after discharging a pistol. He was subsequently indicted for one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2, to which he pleaded guilty in April 2021. The government notified Minter just before he entered his plea that it intended to seek an enhanced mandatory minimum sentence that, it claimed, had been triggered under the ACCA by Minter's three prior felony convictions in New York. 18 U.S.C. §§ 924(e)(2)(A)(ii)-(B)(i). Those prior convictions included: (1) a 2004 conviction for robbery in the third degree; (2) a 2009 conviction for robbery in the second degree; and (3) as relevant here, a 2014 conviction for the sale of a controlled substance in the third degree, after being caught with approximately a quarter kilogram of cocaine. Because Minter does not contest and did not contest below that, following United States v. Thrower, 914 F.3d 770, 776 (2d Cir. 2019), his two prior robbery convictions qualified as violent felonies under § 924(e)(2)(B)(i) of the ACCA, this appeal concerns only Minter's third conviction.

In seeking the enhancement, the government characterized Minter's 2014 conviction under New York Penal Law § 220.39(1), as a "serious drug offense," pursuant to 18 U.S.C. § 924(e)(2)(A)(ii). The enhancement would have increased Minter's term of imprisonment from a 10-year maximum (and no minimum) to a mandatory minimum of imprisonment of 15 years.

Minter objected to his classification as an armed career criminal on the ground that the New York cocaine offense was categorically broader than its federal counterpart under the Controlled Substances Act ("CSA"), 21 U.S.C. § 802. Specifically, Minter argued that the CSA prohibits possession of only optical and geometric isomers of cocaine, while New York's statute prohibits possession of all cocaine isomers. Because of this categorical mismatch, Minter argued, his 2014 conviction for selling cocaine could not serve as a predicate offense for a sentencing enhancement under the ACCA.

The government responded that New York State does not criminalize isomers of cocaine beyond its optical and geometric isomers because those isomers are not chemically equivalent to coca leaves, and because the New York State Legislature could not have intended its definition of cocaine to reach such isomers. The government also argued that the court should apply the "realistic probability test" to find no such probability that the New York statute would ever be applied to prosecute conduct involving a non-optical or non-geometric isomer of cocaine.

The District Court was not persuaded by the government's arguments. It concluded that New York's definition of cocaine, without any textual limitation on the types of isomers it reaches, was categorically broader than the federal definition, which expressly limits itself to only optical and geometric isomers. Finding the predicate for a sentencing enhancement under the ACCA unmet, the District Court then sentenced Minter to 72 months' imprisonment.¹

This appeal followed. We review de novo whether a prior conviction qualifies as a "serious drug offense" under ACCA. United States v. Ojeda, 951 F.3d 66, 69 (2d Cir. 2020).

DISCUSSION

Under the ACCA, a defendant who has three prior convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence of fifteen years if convicted of possessing a firearm or ammunition that has been transported in interstate commerce. 18 U.S.C. § 924(e)(1). The term "serious drug offense" is defined as:

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.

18 U.S.C. § 924(e)(2)(A). If a state statute of conviction is broader than its federal counterpart—that is, if the state statute criminalizes conduct that is not criminalized under the analogous federal law—the state conviction cannot be used to enhance a defendant's sentence under the ACCA. Cf. United States v. Townsend, 897 F.3d 66, 72 (2d Cir. 2018).

We apply the categorical approach to determine whether a state law matches conduct involving a controlled substance as defined under federal law. See Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). " 'Under the categorical approach, courts identify the minimum criminal conduct necessary for conviction under a particular statute' by 'looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts.' " Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018) (quoting United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018)). The categorical approach "is concerned with the existence of a valid prior conviction and the statute of conviction, . . . [i.e.] 'to the fact that the defendant has been convicted of crimes falling within certain categories, and not to the facts underlying the prior conviction.' " United States v. Thompson, 961 F.3d 545, 550 (2d Cir. 2020) (quoting Taylor, 495 U.S. at 600, 110 S.Ct. 2143).

"When [a] state law is facially overbroad"—even by a minimal amount—"we look no further." Hylton, 897 F.3d at 65 (internal quotation marks omitted). That proposition applies to the identity of prohibited substances, as "the state law must criminalize only those substances that are criminalized under federal law." Townsend, 897 F.3d at 74. A state's criminalization of a single substance not also prohibited by the CSA is often enough to prevent a prior conviction from triggering a federal sentencing enhancement. See id. (finding New York's criminalization of human chorionic gonadotropin categorically overbroad compared to the CSA, which does not list that substance); cf. Hylton, 897 F.3d at 59, 63 (holding that federal law punishing as a felony a "small amount" of marijuana, defined as thirty grams, is a categorical mismatch to New York's law, which overbroadly punished as a felony only twenty-five grams of marijuana).

Here, the relevant offense is Minter's 2014 conviction for the sale of cocaine, a violation of New York Penal Law § 220.39(1). That section provides, in relevant part, that "[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). A "narcotic drug" is defined as "any controlled substance listed in schedule I(b), I(c), II(b) or II(c) other than methadone."² N.Y. Penal Law § 220.00(7). Since 1978, Schedule II(b) of the New York Public Health Law, in turn, defines "cocaine" and related substances as:

Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances including cocaine and ecgonine, their salts, isomers, and salts of isomers, except that the substances shall not include . . . decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

N.Y. Pub. Health Law § 3306, Schedule II(b)(4). By contrast, Schedule II of the federal CSA defines cocaine as:

Coca leaves . . . and any salt, compound, derivative or preparation of coca leaves (including cocaine . . . and ecgonine . . . and their salts, isomers, derivatives and salts of isomers and derivatives), and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include . . . decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.

21 C.F.R. § 1308.12(b)(4). Unlike New York's undefined use of the term "isomer," the federal regulation further...