USA v. Gibson, No. 20-3049 (2d Cir. 2022)
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The United States appealed the district court’s judgment sentencing Defendant to 60 months' imprisonment following his plea of guilty to bank robbery, entering the banks with intent to commit larceny, bank larceny, and interstate communication of a threat to injure. The district court declined to sentence Defendant as a career offender under Sentencing Guidelines Section 4B1.1, ruling that a predicate advanced by the government for the enhancement—Defendant’s 2002 conviction of third-degree attempted criminal sale of a controlled substance under New York Penal Law Sections 220.39(1) and 110--was not a proper predicate because New York's controlled substances schedule included naloxegol, which was removed from the federal controlled substances schedules. On appeal, the government contended that the district court misinterpreted the Guidelines by failing to compare the New York schedule to the federal schedules as they existed at the time of Defendant’s state-law conviction in 2002.
The Second Circuit affirmed. The court found no merit in the government’s contention. The court explained that while there is much to be said for looking to federal criminal law as it stood at the time Defendant engaged in the conduct that constitutes his present offense, rather than at the time of sentencing for his present offense, the court need not decide between the two in this case because either leads to affirmance. Federal criminal law--both at the time of this conduct and at the time of sentencing for it--was narrower than the state law that governed Defendant’s 2002 conviction.
The court issued a subsequent related opinion or order on February 21, 2023.
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