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When Is a Controlled Substance Not a Controlled Substance?

Human Chorionic Gonadotropin is a hormone produced during pregnancy that is prescribed as part of some fertility treatments and, less legitimately, sold as a dieting aid.  In New York, it is considered a controlled substance, but it’s not listed on the federal controlled substance schedule.  In United States v. Townsend, the Second Circuit (Cabranes, Carney, Lawrence Vilardo, D.J.) faced a defendant with a prior conviction for possession of HCG, and considered whether his base offense level should be increased based on a prior conviction for an “offense under federal or state law . . . that prohibits . . . distribution . . . of a controlled substance.”   USSG § 2K2.1(a).  Applying a presumption that the Guidelines refer to federal law unless they explicitly incorporate state law, the panel said no:  because HCG is not banned on the federal level, its possession is not an offense for possession of a “controlled substance” for sentencing purposes.

Tyrek Townsend was arrested in New York and ultimately pleaded guilty to possession of Xanax with the intent to distribute and being a felon in possession of a firearm.  To calculate the base offense level for the felon in possession charge, the court had to determine if Townsend had a prior felony conviction for a controlled substance offense.  At issue in this decision is his conviction under New York Penal Law § 220.31 for fifth degree criminal sale of a controlled substance.  This statute makes it a crime to “knowingly and unlawfully sell[] a controlled substance.”  This incorporates by reference the New York state schedule of controlled substances, which includes HCG.  Townsend argued that the state law conviction was substantively broader than its federal counterpart because federal law does not prohibit the sale of HCG.

Before the trial court, the government argued that this was of no moment because § 220.31 was divisible and the base level could be enhanced based on Townsend’s possession of heroin, which the government contended formed the basis of the prior conviction.  However, after Townsend’s sentencing, the Second Circuit ruled in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), that § 220.31 is indivisible as to controlled substance.

Given the ruing in Harbin, the Court’s  primary task on appeal was to consider whether “controlled substance” in the Guidelines referred to a substance that was controlled by any jurisdiction, or only those substances on the federal controlled substances schedule.  The Court applied “the presumption that federal—not state—standards apply to the Guidelines” to hold that only federal controlled substances count.  See Jerome v. United States, 318 U.S. 101, 104 (1943) (the application of federal law does not depend on state law unless clearly indicated to the contrary).  Although the Guidelines refer to an “offense under state or federal law,” the reference to “controlled substance” is unmodified.  The Court concluded that “if the Sentencing Commission wanted ‘controlled substance’ to include substances controlled under only state law to qualify, then it should have said so.”  In holding that a “controlled substance” refers only to federally-controlled substances, the Second Circuit joins the Fifth, Eighth and Ninth Circuits, which held the same in interpreting a different portion of the Guidelines.  The Sixth Circuit, the Court observed, decided this issue the other way, finding no requirement that the controlled substance underlying a state conviction also be controlled by the federal government.

Because of the misalignment in New York and federal controlled substances, there was no “categorical match” between Townsend’s prior conviction under New York Penal Law § 220.31 and a “controlled substance offense” as used in the Guidelines.  And because the Court had already determined that § 220.31 was indivisible, the modified categorical approach—which would have permitted the Court to look at the indictment and plea allocution—was unavailable.  The end result is that Townsend’s prior conviction could not be a predicate offense for purposes of an enhanced federal sentence.

Two points briefly merit discussion:  First, the Court of Appeals applied the Jerome presumption in order to avoid a situation in which the application of this federal rule—the Guidelines provision—depended on the operation of state law.  It makes sense that a defendant in one state should, to the extent possible, not be treated more harshly than a defendant in another state, and the Jerome presumption is an important part of achieving this desirable national uniformity.

Second, this decision is based on an unusual aspect of the applicable New York state statute, which is that it only refers generally to the sale of “a controlled substance.”  N.Y. Penal Law § 220.31.  It does not enumerate which specific controlled substances are covered by the statute, and given that the New York list and the federal list are different, the statute’s violation cannot give rise to an enhancement under Section 2K2.1(a).  Other New York criminal law statutes do identify specific types of drugs.  For example, criminal sale of a controlled substance in the first degree specifically refers to narcotic drugs or methadone.  N.Y. Penal Law § 220.43.  Criminal sale of a controlled substance in the second degree also refers to specific drugs, such as narcotics, methamphetamine, stimulants, LSD, hallucinogens, or methadone.  N.Y. Penal Law § 220.41.  Absent a change in the definition of controlled substances in New York, or a change in the wording of N.Y. Penal Law § 220.31, convictions for this particular statute alone will not support this specific enhancement, regardless of what drug the defendant actually sold.