United States v. Townsend, No. 17-757 (2d Cir. 2018)Annotate this Case
A "controlled substance" for purposes of USSG 4B1.2(b) referred exclusively to substances controlled by the Controlled Substances Act (CSA). USSG 2K2.1 adopts the definition of a "controlled substance offense" in section 4B1.2(b). The Second Circuit held that defendant's prior drug conviction under New York Penal Law 220.31 did not qualify as a predicate controlled substance offense. Because defendant's prior state conviction was for violating an indivisible statute, the categorical approach applies, and because the state statute of conviction criminalizes the sale of a substance not criminalized under federal law, the state statute does not categorically match the federal crime. Therefore, defendant's prior New York state drug conviction did not subject him to a heightened base offense under USSG 2K2.1(a). The court vacated the district court's judgment and remanded for resentencing.