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Second Circuit Continues To Scrutinize Drug Trafficking Offenses After Townsend

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 Circuit went on to hold that the district court erred in concluding that Guerrero’s Arizona state conviction qualified as a “felony drug trafficking offense” because the Arizona statute was “sweeps more broadly than its federal counterpart.”  Because that offense was not a drug trafficking offense, Guerrero would have had a lower offense level under the 2014 Guidelines—the guidelines in effect at the time of his offense—rather than under the 2016 Guidelines, the guidelines in effect at the time of sentencing.  Courts typically apply the Guidelines in effect at the time of sentencing, but in light of the Supreme Court’s decision in Peugh v. United States, 569 U.S. 530, 549 (2013), the panel recognized that even under an advisory Guidelines regime, “constitutional ex post facto concerns dictate making an exception to the ordinary practice when the version in effect at sentencing give rise to a higher sentence than does the version in effect at the time of the offense.”  That is precisely the issue that occurred for Guerrero.  The 2014 Guidelines without the drug trafficking sentencing enhancement provided for a lower sentencing range for Guerrero than he faced under the 2017 Guidelines.  Accordingly, the Circuit vacated the district court’s sentence imposed and remanded for sentencing.

The illegal reentry guidelines have long been criticized as being too high and many judges have elected post-Booker to vary downward from those Guidelines.  Although the 2016 illegal reentry guidelines are in many regards less harsh than the 2014 guidelines, due to intervening amendments promulgated by the Sentencing Commission, this case presented facts that made the reverse true for the defendant.  In the aftermath of Townsend, we can expect to see more district courts analyzing whether particular state law drug offenses also qualify under the CSA.  In Guerrero, the Second Circuit made clear that it will be looking closely at the sentences it reviews that depend on a “drug trafficking offense” or “controlled substance offense” enhancement.

-By Hyatt Howard and Harry Sandick