2 0-3049

U SA v. Gibson

1 U NITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2021 5 ( Argued: November 23, 2021 Rehearing Decided: February 21, 2023) 6 Docket No. 20-3049 7

_ ________________________________________________________ 8 U NITED STATES OF AMERICA, 9 Appellant, 10 11 - v. - 12 V INCENT GIBSON, 13 Defendant-Appellee

. 14

_

________________________________________________________ 15 B efore: KEARSE, LOHIER, and LEE, Circuit Judges

. 16 P e ti ti o n b y the United States for a panel rehearing of this Co u r t ' s d e c i si o n 17 in United States v. Gibson , 55 F.4th 153 (2d Cir. 2022), a n d for an amended opinion 18 stating that the ruling that the 2015 removal of naloxegol from the federal controlled1 substances schedules rendered those schedules categorically narrower than the 2 r elevant New York drug schedules was nonprecedentia l

. Th e petition for a panel 3 r ehearing is granted; the request for an amended opinion is denied. 4 Tiffany H. Lee, A ssistant United States Attorney, 5 Attorney, for T rini E. Ross, Uni ted States 6 A tto rney fo r the Western District of New York, 7 Buffalo, New York.

8 P ER CURIAM : 9 The government petitions for a panel rehearing o f so m uch o f our 10 d ecision in United States v. G ibson , 55 F.4th 153 (2d C ir. 2 0 2 2 ) , as ruled that the 2015 11 r emoval of naloxegol from the federal controlled substances schedules promulgated 12 under the Controlled Substances Act ("CSA"), 21 U.S. C

. §§ 8 0 1 -971, rendered those 13 schedules categorically narrower than the New York drug schedul es a pplicable t o 14 Gibs on's 2 002 state-law conviction. The government's petition suggests that th a t 15 ruling in our opinion ("Opinion") was dictum rather than a holding, and asks that we 16 i ssue an amended opinion so stating. We g rant rehearing in order to note the 17 g overnment's various positions on th e c o m parability o f the state and federal drug

21 schedules, and to flag some defects in the petition's characterizations o f the record; 2 w e deny the request for an amended opinion. 3 To b egin with, we note that the government's petition repeated l y 4 c onfuses this appeal with the case a s a whole. It states, for example, that our Opinion 5 "exp l ai n ed that the disparity issue was not presented at all in this case ." ( Governm en t 6 P etition (or "Petition") at 10 (emphases added).) Our Opinion instead stated that " this 7 appeal presents fewer issues than might have been raised." Gibson , 5 5 F.4th at 158 8 ( emphasis added). The Opinion proceeded to note, i n te r a l ia, tha t the government had 9 " not a rgue[d] that the New York law w as not broader than the current fed eral 10 schedules" " in response to Gibson's contention " in the district court that New York law 11 w as broader than federal law. Id

. at 158-59 (emphasis a d d ed )

. And while the 12 g overnment characterizes the Opinion as saying that "the Government was bound in 13 this case not to contest the disparity issue" (Peti ti on at 9 ( emphasis added)), the 14 Opinion instead noted that " [t]he government is correct that it 'is constrained from 15 a rguing on appeal that the drug schedules a re c omparable e v en a fter th e 2015 16 a mendment removing naloxegol,' havin g m ade no such argument in the district 17 c ourt." Gibson , 55 F.4th at 16 0 ( quo ti n g Government's reply brief on a ppeal at 12 18 (em p h a sis o urs)). A s we stated, "[t]he issue raised by Gibson's central contention

- - 31 that the state and federal schedules diverged--did not remain unresolved by the 2 g overnment's refusal to address it." Gibson , 55 F.4th at 160. We did not indicate that 3 any prior holding of this Court--or anything in the record of this case--could warrant 4 the government's claiming to have been "bound" or " constrained" from contesting--in 5 l i ght of the federal delisting of naloxegol--the comparability i ssue in the district court. 6 Nor can w e credit the government's notions that "th[e] argument" "that 7 ' federal law [is] c ategorically narrower than the state-law counterpart' based on the 8 [ federal-law] d escheduling of naloxegol" " w a s . . . no[t] b efore the district court " 9 ( Government Petition at 4 (emphasis added)), and that the " issue"-- i.e. , whether "state 10 l aw at the time of [ Gibson's 2 002 d rug] offense" was broader than current federal law11

- " was not briefed [on appeal] by either party " ( id

. at 3 (emphasis added)). In Gibson's 12 a ppellate brief, pages 10-14 discussed that issue. ( S e e, e .g . , G ibson brief on appeal 13 a t 1 2 (under "the categorical approach in the present case, the district court properly 14 d etermined that [New York Penal Law] § 220.39(1) reaches c o nduct that w oul d not 15 b e c riminalized federally"); id

. ("New York's definition of 'narcotic drug' i s broader 16 than the federal schedules."); i d

. at 13 ("Simply put, fed era l l aw controls 'any

. . . 17 d erivative

. . . of opium or opiate,' subject to certain exceptions, a mong them 18 naloxegol. New York has no such exception. N a l o xegol is an o piate d erivative.").) 41 And in the district court, Gibson had made these points in opposing the government's 2 c ontention that his sentence should be enhanced p ursuant to Guidelines § 4B1.1 o n 3 the basis of his two prior New York convictions, one of which w as his 2002 drug 4 o ffense. Gibson had i mmediately pointed out that New York l aw governing that 5 o ffense was broader than current federal law; he argued that while tw o p redicate 6 o ffenses are required for application of § 4B1.1, the court should find one of his two 7 prior c onvictions relied on b y the g o vernment--his prior drug c onviction--is not a 8 proper predicate because the current federal schedules of controlled substances are 9 narrower than New York's 2002 drug schedules. See, e.g. , Gibson , 55 F.4th at 156-57. 10 The government argued that Gibson's "argument is without merit" because the court 11 should look at the federal schedules o nly a s they existed at the time o f Gibson's prior 12 New Y ork drug offense in 2002, not as they exist currently. (Government's Response 13 in Opposition to Defendant's Memorandum o f Law, dated December 2, 2019 14 ( "Government's December 2 Mem."), at 4.) 15 The implicit premise of the government's timing argument was that the 16 New York schedules under which Gibson was convicted in 2002 were broader than 17 the current federal schedules. Although the government suggests in its petition that 18 i t has some ques tion a s to whether naloxegol was within the New York controlled 51 substance schedules ( see Petition at 13-14), it did not contest d uring the proceedings 2 in the district court ( s ee, e.g. , Government's December 2 Mem. at 4), that naloxegol was 3 a federally controlled substanc e in 2 0 0 2 b ut after January 2015 w as no longer federally 4 c ontrolled, see Schedules of Controlled Substances: Removal of Naloxegol From 5 C ontrol, 80 F ed. Reg. 3468, 3468 (Jan. 23, 2 015). And know i n g that the federal 6 schedules in 2 002 included naloxegol, the government repeatedly r epresented to the 7 d istrict court that the New York schedules under which Gibson w as convicted in 2002 8 w ere coextensive with federal l aw at that time: It stated that the "New York schedule 9 o f substances in 2002 correlate[d] with the CSA schedules in place in 2002 " (Government's 10 D ecember 2 Mem. at 5 (emphasis added)); that " the s tate and federal schedules in 2002 11 m irror[ed] each other " ( id

. a t 6 (emphasis a dded)); that Gibson "was convicted at a time 12 where [ sic ] the schedules were exactly the same " (Motion Hearing Transcript January 31, 13 2 020, at 3 ( e mphasis added)). The unspoken impetus for the government's insistence 14 that the court should look only to the 2002 federal schedules, and not to the current 15 federal schedules ( which e xclude naloxegol), was that the New York law applicable 16 t o Gibson's 2002 conv i c ti o n w a s broader than current federal l aw. If the New York 17 schedules were not broader, there would have been no reason t o insist that the court 18 not look to the current federal schedules. 61 The govern ment's implicit recognition that the New York schedules 2 g overning Gibson's 2 002 c onviction were broader than current federal law became 3 e xplicit in the government's opening brief on appeal. It stated: 4 While the state and federal drug schedules aligned in 2002, a 2015 5 amendment t o the Controlled Substances Act ("CSA") re moved 6 naloxegol a s a f edera l ly c ontrolled substance, rendering New York 7 State Penal L aw § 110/220. 39 -1 broader than its federal 8 counterpart . 9 ( Government brief on appeal at 6 n. 2 ( em phasis added).) The g overnment argued 10 that the nature o f the state-law drug offense o f which Gibson was c onvicted in 2002 11 w as not affected b y the fact "[t]hat the drug schedules diverged 13 years [ there]after." ( Id

. 12 a t 11 (emphasis added).) 13 Although the government sought, in its reply brief, to retreat from the 14 e xplicit s ta tem ents it made in its main brief as to New York drug l aws' greater 15 breadth than current federal law ( see Government reply brief on appeal at 11

- 1 3 )

- - 16 a rguing that "[a]ny substantive argument o n whether the schedules have diverged should 17 be ha n d l e d first at the district court level upon remand for resentencing " ( id

. at 12- 13 18 ( emphases a dded))--that argument made no sense. If, a s the government urged, the 19 c ase were remanded because the 2002 federal d rug schedules were the proper frame

71 o f reference, the i ssue of whether the state law is broader than current federal law 2 w ould be irrelevant. 3 Regardless o f the manner in which the government chose to support its 4 a rgumen t for the imposition of an enhanced sentence on Gibson under Guidelines 5 § 4B1.1, the question of the c omparability of the state drug sch ed ules applicable t o 6 Gibson's 2002 conviction and the current federal schedules was in fact an issue in the 7 c ase and was in fact " handled" in the district court. A d istrict court is required t o 8 " begin all sentencing proceedings by correctly calculating the applicable [advisory] 9 Guidelines range." Gall v. United States , 552 U .S. 38, 49 (2007). The government 10 a rgued that the proper Guidelines imprisonment range for Gibson was 151 to 188 11 months pursuant to § 4B1.1; Gibson contended that his prior drug conviction was not 12 a proper predicate for the application of § 4B1.1 because (a) a defen d a n t i s to be 13 sentenced under the version of the Guidelines currently applicable to hi m, (b) the 14 Guidelines incorporate the federal d rug s ch edules, and ( c) the current federal 15 schedules are narrower than the New York drug schedules, s ee G i bson , 55 F.4th 16 a t 156-57. Plainly, the parties disputed whether Gibson's 2002 drug conviction was 17 a proper predicate for an enhancement under § 4B1.1 of the Guidelines ; a nd a 18 c omparison of the state and federal drug schedules was essential to the resolution o f 81 that dispute. As the government correctly says at the outset of its petition, in order 2 t o decid e " [ w] h ether a prior conviction qualifies as a 'controlled substance offense,' 3 U .S.S.G. § 4 B1.2(b)," the courts must "determine whether [a] state statute" relied o n 4 b y the government "is categorically b roader th a n i ts federal counterpart: if it is 5 b r o ader, the state conviction is not a controlled substance offense; if it i s not broader, 6 the state conviction is a controlled substance offense." (Government Petition at 1.) 7 A s described in Gibson , 55 F.4th at 157-58, the d istrict court concluded , 8 c iting United S tates v. Townsend, 897 F.3d 66 (2d Cir. 2018), that it was required t o 9 a ssess the comparability of the state and federal drug schedules under current federal 10 l aw. It thus c ould not rule as it did-- i .e. , that Gibson's 2002 conviction was not a 11 proper § 4B1.1 predicate, see, e.g. , Gibson , 55 F.4th at 159-60--without concluding that 12 the 2002 New York drug schedules w ere broader than the current federal drug 13 schedules. The fact that the government elected not to c o ntest the divergence did not 14 mean that "the issue" did not exist or that the district court was relieved of its normal 15 obligation to calculate the applicable Guidelines range. 16 Our Op i n i o n stated that we were "[r]eviewing the district court's 17 Guidelines interpretations and legal rulings de novo, " Gibson , 55 F.4th at 161. As to the

91 r espective contents of th e 2 0 0 2 New York drug schedules and the current federal 2 schedules, we observed, inter alia, that 3 [a]s relevant here, th[e] schedule II(b) list of controlled substances 4 [in New York's drug schedules] includes--as it apparently did in 5 2002--"[o]pium and o piate, and any salt, compound, derivative, or 6 preparation of opium or opiate ." N.Y. Pub. Health Law § 3306 7 Schedule II(b)(1) (McKinney 2002) ("New York schedule II(b)(1)") 8 (emphases added). Naloxegol is a n o p ium alkaloid d erivative. 9 See generally Sched ul es of C ontrolled Substances: Removal o f 10 Naloxegol From Con tro l, 80 F ed. Reg. 3468, 3468 (Jan. 23, 2015) 11 ("Naloxegol Delisting Rule") ( " Pri o r t o the effective date of this 12 rule, naloxegol was a schedule II controlled s ubs ta nce b ecause it 13 can be derived from opium alkaloids ."). 14 G ibson , 55 F.4th at 1 56 (last two emphases ours). And we concluded that the district 15 c ourt had correctly rul ed that "[f]ederal criminal law--both at the time of [Gibson's 16 2 017] c onduct and at the time of sentencing fo r i t- -was narrower than the state law 17 that g overned Gibson's 2002 conviction," id

. at 155, and that the court had correc tl y 18 c oncluded that § 4B1.1 was thus "inapplicabl e to Gibson for lack of a necessary 19 predicate," i d . at 167. 20 P l a inly, the c o mpa r ab i l i ty o f the Ne w Y o rk ' s 2002 drug sche d u l e s and the 21 current federal drug schedules was an issue that the district court was requi red to, 22 and did, decide in order to make a determination as to what Gibson's Guidel ines 23 sentence would b e. This Court w a s required to, and did, determine whether the 101 d istrict court's decisio n w a s correct. The government's request for an amended 2 o pinion suggesting that these rulings were not holdings is denied.

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