U.S. v. Minter, No. 21-3102 (2d Cir. 2023)
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Defendant was arrested in the Bronx after discharging a pistol. He was subsequently indicted for one count of being a felon in possession of a firearm, to which he pleaded guilty in April 2021. The government notified Defendant just before he entered his plea that it intended to seek an enhanced mandatory minimum sentence that, it claimed, had been triggered under the ACCA by Defendant’s three prior felony convictions in New York. The district court concluded that Defendant was not a career offender under the ACCA and therefore declined to impose a sentencing enhancement sought by the government. The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA.
The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.”
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