United States v. Townsend

• Decision Date: 23 July 2018
• Docket Number: No. 17-757-cr,August Term 2017,17-757-cr
• Citation: 897 F.3d 66
• Parties: UNITED STATES of America, Appellee, v. Tyrek TOWNSEND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

897 F.3d 66

UNITED STATES of America, Appellee,

v.Tyrek TOWNSEND, Defendant-Appellant.

No. 17-757-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: March 7, 2018

Decided: July 23, 2018

David K. Kessler, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief ), for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

Daniel Habib, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: Cabranes and Carney, Circuit Judges, and Vilardo, District Judge.^*

Lawrence J. Vilardo, District Judge:

For purposes of United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 4B1.2(b), "[t]he term ‘controlled substance offense’ means an offense under federal or state law ... that prohibits ... distribution ... of a controlled substance ." (emphasis added).

This case presents the question of how to define "controlled substance" in § 4B1.2(b) : Does that term include only substances controlled by federal law under the Controlled Substances Act ("CSA")? Or does it also include substances regulated by state law but not by federal law?

Because we find that "controlled substance" refers exclusively to substances controlled by the CSA, we VACATE the judgment of the United States District Court for the Eastern District of New York (Dora L. Irizarry, Chief Judge ) and REMAND for resentencing.

I. BACKGROUND

On November 21, 2015, New York Police Department officers saw the Defendant-Appellant, Tyrek Townsend ("Townsend"), engage in what they believed to be suspicious, drug-related activity. The officers arrested Townsend and, in the search incident to his arrest, recovered a loaded 9-millimeter semiautomatic weapon. A later search at the police precinct yielded six partial tablets of alprazolam, also known as Xanax, a federally controlled substance.

Townsend was indicted by a federal grand jury on three counts: (1) possessing alprazolam with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(2) ; (2) possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 12, 2016, Townsend pleaded guilty to counts one and three.

The crime of being a felon in possession of a firearm, under 18 U.S.C. § 922(g)(1), has a Guidelines base offense level of 20 if the defendant committed the offense after sustaining one felony conviction for either a crime of violence or a controlled substance offense. U.S.S.G. § 2K2.1(a)(4)(A) (2016). The base offense level increases from 20 to 24 if the defendant has two such prior convictions. U.S.S.G. § 2K2.1(a)(2).

The presentence investigation report ("PSR") prepared before sentencing determined that U.S.S.G. § 2K2.1(a)(2) applied to Townsend and that the appropriate base offense level was 24. It based that conclusion on two of Townsend’s prior convictions: one under New York Penal Law ("NYPL") section 220.31 for fifth-degree criminal sale of a controlled substance and another under New Jersey law for third-degree aggravated assault with a deadly weapon.¹

Townsend objected to the higher base offense level. He argued that his prior controlled substance offense under New York law was substantively broader than its federal counterpart and therefore could not be used to increase the offense level and his subsequent calculated Guidelines range. More specifically, he noted that NYPL section 220.31 prohibits the sale of Human Chorionic Gonadotropin ("HCG"), a substance controlled under New York law but not controlled under the CSA. Because the New York statute criminalized the distribution of a substance that was not proscribed by federal law, Townsend argued, a conviction under that statute would not increase his federal Guidelines range. The government and the district court disagreed, however.

According to the district court, which adopted the reasoning of the PSR, because the Guidelines define a qualifying predicate controlled substance offense as one "under federal or state law," all state drug convictions necessarily qualify. Appellant’s App. 238-39. And for that reason, in part, the court found that Townsend’s prior New York drug conviction subjected him to a heightened base offense level under § 2K2.1(a)(2).

II. DISCUSSION

We review the sentence imposed by a district court for reasonableness. United States v. Cavera , 550 F.3d 180, 187-88 (2d Cir. 2008) (en banc). But we review de novo a district court’s specific determination that a "prior offense was a controlled substance offense, as defined by U.S.S.G. § 4B1.2." United States v. Savage , 542 F.3d 959, 964 (2d Cir. 2008) (internal quotation marks omitted).

Calculating a defendant’s sentencing range under the Guidelines includes far more than simply considering the crime of conviction. Indeed, for some crimes, the base offense level under the Guidelines—i.e., the starting point—increases because of certain convictions the defendant previously sustained. See, e.g. , U.S.S.G. § 2K2.1(a)(2). But such enhancements are limited by considerations of fairness and due process. See Rosales-Mireles v. United States , ––– U.S. ––––, 138 S.Ct. 1897, 1907-08, ––– L.Ed.2d –––– (2018).

For starters, the Guidelines language must make clear—to the court, to the defendant, and to the government—the basis for a sentencing enhancement. Thus, to determine whether a prior conviction increases the defendant’s base offense level, courts begin with the language of the Guidelines. See, e.g. , Savage , 542 F.3d at 963-64 (beginning sentencing enhancement analysis with Guidelines language). If the Guidelines are clear, there is little more to do; if they are ambiguous, however, the courts have crafted an interpretive scheme that honors our federal sentencing system while preserving the fairness owed to the defendant.

A. Interpreting Guidelines §§ 2K2.1 and 4B1.2(b)

Section 2K2.1 of the Guidelines adopts the definition of a "controlled substance offense" in § 4B1.2(b). U.S.S.G. § 2K2.1, Application Note 1. Section 4B1.2(b), in turn, defines a controlled substance offense as

An offense under federal or state law , punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b) (emphasis added).

The district court here found this language to be clear and unambiguous. Because state controlled substance offenses can be valid predicate offenses, the court reasoned, all state controlled substance offenses are incorporated into the sentencing enhancement provision. In the words of the court, "[t]he operative term is ‘or state law.’ So that particular guideline actually provides that a specific violation of state law ... would make it a controlled substance offense under the guideline." Appellant’s App. 238-39.

The district court here was not the only one in our Circuit to reach that conclusion. In United States v. Laboy , 16-CR-669 (AJN), 2017 WL 6547903 (S.D.N.Y. Dec. 12, 2017), the district court found that "the phrase ‘controlled substances’ has no inherent meaning beyond a governing entity’s decision to control certain substances and not others." Id. at *3. Because "state offenses would carry with them a reference to their own state drug schedules," and because state convictions clearly qualify, the court concluded that a conviction for an offense involving a substance controlled only under state law would qualify as well. Id. But see United States v. Barrow , 230 F.Supp.3d 116, 123-24 (E.D.N.Y. 2017).

On appeal, the government echoes the district court’s conclusion that the plain language of the Guidelines triggers application of the § 2K2.1(a) Guidelines enhancement based on any predicate state controlled substance offense.² "Had the [Sentencing] Commission intended to restrict a ‘controlled substance offense’ to only crimes involving a substance controlled under federal law, it would have done so." Br. Appellee 15-16. The government cites examples in the Guidelines where the definition of a term is expressly limited to federal law. Id. at 16-18; see also Laboy , 2017 WL 6547903, at *3. In other words, in the government’s view, the absence of the word "federal" next to "controlled substance" means that the Sentencing Commission intended for sentencing courts to consider convictions for sale of a substance controlled only under state law.³

But the government has it backwards: Because of the presumption that federal—not state—standards apply to the Guidelines, discussed in more detail below, if the Sentencing Commission wanted "controlled substance" to include substances controlled under only state law to qualify, then it should have said so.

And the Guidelines language is not as clear as the government and the court below made it out to be. Although a "controlled substance offense" includes an offense "under federal or state law," that does not also mean that the substance at issue may be controlled under federal or state law. To include substances controlled under only state law, the definition should read "... a controlled substance under federal or state law ." But it does not.

It may be tempting to transitively apply the "or state law" modifier from the term "controlled substance offense" to the term "controlled substance." But to do so would undermine the presumption that federal standards define federal sentencing provisions. Because the Guidelines presume the application of federal standards unless they explicitly provide otherwise, the ambiguity in defining "controlled substance" must be resolved according to federal—not state—standards.

1. The Jerome presumption

As a general...