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Second Circuit Announces Categorical Approach Applies to State Convictions for Sentencing Enhancement Determination Under 21 U.S.C. § 841(b)(1)(B)

In the U.S. District Court for the Northern District of New York, Jeremy L. Thompson pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.

The Government had filed a sentencing enhancement information citing his prior conviction for attempted criminal sale of a controlled substance in the fifth degree, in violation of New York Penal Law § 220.31, which criminalizes the sale of hundreds of controlled substances listed in N.Y. Pub. Health Law § 3306.

Thompson admitted to the prior conviction but contested whether a § 220.31 conviction qualifies as a predicate “felony drug offense,” as required by § 841(b)(1)(B) to trigger enhancement under the categorical approach which, he argued, the district court was required to use. Under the categorical approach, a conviction may not be used for enhancement if the state statute of conviction criminalizes any substance not criminalized by an analogous federal statute. Since the sale of human chorionic gonadotropin is criminalized under § 220.31, but not under federal statute, § 220.31 convictions cannot be used for enhancement under the categorical approach.

Noting that neither the U.S. Supreme Court nor the Second Circuit has definitively required the use of the categorical approach to identify a prior “felony drug offense,” as defined in 21 U.S.C. § 802(44), the district court rejected the categorical approach and ruled that, since the state conviction involved cocaine, it could be used for enhancement. Aided by Rochester attorney James L. Riotto, II, Thompson appealed.

The Second Circuit noted that the categorical approach requires looking at the elements and nature of an offense rather than the particular facts of the crime. The Court concluded that the text of § 841(b)(1)(B) concerns whether a defendant has a prior conviction for a felony drug offense, not the underlying factual details. It and § 802(44), which defines “felony drug offense,” focus on the statute of conviction, not the underlying facts.

The Court agreed with the Eighth Circuit, which held in United States v. Brown, 598 F.3d 1013 (8th Cir. 2010), that the statutory text does not support having a conviction under a state statute that sometimes counts toward enhancement and sometimes not, depending on the facts of the case. The legislative history of § 841(b)(1)(B) also shows that Congress intended for the categorical approach to be applied. Further, adopting a circumstance­specific analysis would require a fact-intensive determination by the senting court, “even to the point of requiring a separate trial on the question,” the Court observed. Therefore, the Court explicitly adopted the categorical approach, which it had previously mentioned in McCoy v. United States, 707 F.3d 184 (2d Cir. 2013) (per curiam), as its “long-accepted” practice.

Under the categorical approach, it quickly became clear that the conviction under § 220.31 could not be used to enhance the sentence because § 220.31 criminalizes the sale of drugs not criminalized by federal statute and thus is broader than its federal analog. Since there is no categorical match, the state conviction cannot be used to enhance Thompson’s sentence, the Court ruled.

Accordingly, the Court vacated Thompson’s sentence and remanded the case to the district court for resentencing. See: United States v. Thompson, 961 F.3d 545 (2d Cir. 2020).

Editor’s note: In the opinion, the Court explains that, after a thorough analysis, both the Seventh and Eighth Circuits have adopted the categorical approach with respect to “§ 841(b)(1)(A), which mirrors § 841(b)(1(B), and § 802(44).” Additionally, without explaining their rationale for doing so, the First, Third, and Ninth Circuits “have also applied the categorical approach to identify felony drug offenses,” the Court notes. In contrast, only the “Sixth Circuit, in an unpublished opinion that cites no authority and provides no rationale, has declined to apply the categorical approach to identify felony drug offense,” according to the Court. For case citations, see the opinion. 

Related legal case

United States v. Thompson

 

 

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