NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 17-3416

_____________ UNITED STATES OF AMERICA

v. PERMAESHWAR SINGH, Appellant

______________ On Appeal from United States District Court for the Middle Distri ct of Pennsylvania (District Court No. 4-15-cr-0028-011) District Judge: Honorable Matthew W. Brann

______________ Argued Pursuant to Thir d Circuit L.A.R. 34.1(a) May 23, 2019

______________ Before: McKEE, SHWARTZ, and FUENTES, Circuit Judges

. (Opinion filed: August 6, 2019) Jenny P. Roberts, Esq. Office of United States Attorney 235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503 Counsel for Appellee George J. Rocktashel, Esq. [Argued] Office of United States Attorney 240 West Third Street2 Suite 316 Williamsport, PA 17701 Counsel for Appellee Kimberly R. Brunson, Esq. [Argued] Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222 Counsel for Appellant Jose C. Campos, Esq. Hugh Campos 1845 Walnut Street Suite 932 Philadelphia, PA 19103 Counsel for Appellant

_____________ __________ OPINION 

McKEE, Circuit Judge

. Permaeshwar Singh appeals the district court’s judgment of sentence that was imposed following his guilty pl ea. Though Singh’s crime of conviction, the “controlled substance” provision of N.Y. Penal Law § 220.06, features the same elements as the generic federal offense, and the New York st atute outlaws one substance that federal law does not, chorionic gonadotropin, the distri ct court did not have the opportunity to

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3 determine whether there is a realistic probability that New York would prosecute anyone under § 220.06(1) for possessi on of chorionic gona dotropin. We will therefore remand

for the district court to make this determination.

I. The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because Singh admits that he did not challenge the classification of the “controlled substance” provision of N.Y. Penal Law § 220.06 as a predicate offense for purposes of the career criminal sentence enhancement before the district court, we review for pl ain error. Under plain-error review, we must reverse if (1) there was an “error;” (2) the e rror was “plain;” (3) it “affect[ed] substantial rights;” and (4) not correcting the error would “s eriously affect[] the fairness, integrity or public reputation of judicial proceedings.” 1 The defendant, and not the Government, bears the burden of persuasi on under plain error review. 2

II.

At issue here is the district court’s dete rmination that Singh qu alifies as a career offender under U.S.S.G. § 4B1.1. Under the guidelines, “a defendant is a career offender if . . . the defendant has at least two prior fe lony convictions of either a crime of violence

or a controlled substance offense.” 3 The district court ruled that Singh’s conviction for violating N.Y. Penal Law § 220.06 qualifie d as a “controlled substance offense” under

1 United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young , 47 U.S. 1, 15 (1985)); Fed. R. Crim. P. 52(b). 2 Olano , 507 U.S.at 734. 3 U.S. Sentencing Guidelines Manual § 4B1.1(a).4 U.S.S.G. §§ 4B1.1 and 4B1.2(b). At se ntencing, Singh did not challenge this characterization of § 220.06. Instead, he argue d that his convictions for attempted assault and possession of a controlled subs tance in violation of § 220. 06 should be counted as a single conviction for purposes of § 4B1.1. Th e district court correctly rejected this argument. “Prior sentences always are counted separately if the sentences were imposed for offenses that were separate d by an intervening arrest (i.e ., the defendant is arrested for the first offense prior to committing the second offense).” 4 Abandoning that argument, Singh now conte nds that the subsection of 220.06 that he was convicted under does not qualify as a “controlled substance offense” for the purposes of the federal sentencing guidelines . He argues N.Y. Penal Law § 220.06 is a divisible statute that must be analyzed usi ng the modified categorical approach, that he was convicted under subsection (1) of N.Y. Penal Law §220.06, and that because this

subsection criminalizes more conduct than its fe deral counterpart, it cannot be used as a predicate under U.S.S.G. § 4B1.1.

III. Generally, courts apply the categorical appr oach to determine wh ether a prior state

conviction is a “controlled substance offe nse” for sentencing guidelines purposes. 5 In applying the categorical approach, a court is required to ignore the “facts,” which are

4 Id. § 4A1.2(a)(2). 5 See Mathis v. United States , 136 S. Ct. 2243, 2248 (2016).5 “mere real-world things–extra neous to the crime’s legal re quirements,” and focus instead “solely on whether the elements of the crime of conviction sufficiently match.” 6 Elements are the “constituent parts” of a crime’s legal definition–the things the “prosecution must prove to sustain a conviction.” 7 But facts are “circumstances,” events that have no legal effect or consequence on the conviction. 8 When the “elements” of a state and federal law match, the state law can serve as a predic ate offense for purposes of the sentencing guidelines. 9 Otherwise, the state statute sweeps more broadly and “no conviction under that law could count” as a § 4B1.1 predicate. 10 “The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime.” 11 But “[a] single statute may list elem ents in the alternative, and thereby define multiple crimes.” 12 Such a scenario requires the application of the modified categorical approach, which re quires a sentencing court to determine “which of the

alternative elements listed . . . was in tegral to the defendant’s conviction.” 13 The modified categorical approach allows a court to examine a limited number of documents to determine what crime, with what el ements, a defendant was convicted of. 14 But the

6 Id. 7 Id. (citations and internal quotations omitted). 8 Id. (citations and internal quotations omitted). 9 United States v. Brown , 765 F. 3d 185, 189 (3d Cir. 2014). 10 Mathis , 136 S. Ct. at 2249. 11 Id. 12 Id. 13 Id. 14 See, e.g. , Shepard v. United States , 544 U.S. 13, 26 (2005).6 modified categorical approach still “retains th e categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime.” 15 Therefore, as with the categorical approach, a “defenda nt’s crime of conviction can count as a predicate only if its elements match those of a generic offense.” 16 N.Y. Penal Law § 2 20.06 is divisible. 17 The statute is broken into eight different subsections, creating eight different offenses. 18 For purposes of federal sentencing, some

of these offenses as written are more serious than others. For example, in Henriquez a defendant was charged under § 220.06. The court consulted Shepard documents to determine that the defendant pleaded guilty for a violation of subsection (5) of the statute, which criminalizes the possession of cocai ne that weighs 500 milligrams or more. 19 There, the court correctly conc luded that an analysis of s ubsection (5) under the modified categorical approach established that Henriq uez had been convicted for the possession of cocaine, a controlled substance under federal la w. But an analysis of subsection (1), leads

us to a different conclusion. Shepard documents reveal that Singh was convi cted under the first provision of the statute, which states that a person is guilty of a class D felony of criminal possession of a controlled substance in the fifth degree when he or she know ingly and unlawfully

15 Descamps v. United States , 570 U.S. 254, 263 (2013). 16 See Mathis , 136 S. Ct. at 2251. 17 See Henriquez v. Sessions , 890 F.3d 70, 72 (2d Cir. 2018). 18 See Mathis , 136 S. Ct. at 2249 (California burglary law “prohibited ‘the lawful entry or the unlawful entry’ of a premis es with intent to steal, so as to create two different offenses, one more serious than the other”). 19 Henriquez , 890 F.3d at 72.7 posesses “a controlled substanc e with intent to sell it.” 20 New York law at the time of Singh’s conviction had a broade r definition of a controlled substance than its federal counterpart. New York law defined a “controlle d substance” as “any substance listed in schedule I, II, II, IV, or V of section thirty-thr ee hundred six of the public health law

other than marihuana.” 21 New York’s Schedule II included chorionic gonadotropin as a prohibited drug. 22 The New York prohibition agains t chorionic gona dotropin extends beyond the substances prohibited by the Federal Controlled Substances Act. 23 The “controlled substance” provision of § 220.06 is therefore more broad than its federal counterpart because it criminalizes the possession of more substances than the federal law. Further, a prosecutor is not required to prove which dr ug a person alleged to have violated the first provision of § 220.06 possessed, as the substance is a means of commission, rather than an element of the crime. 24 However, to conclusively demonstrate that first provision of § 220.06 cannot serve as a predicate offense under § 4B1.1, Singh mu st also show a realistic probability that New York would prosecute some one under § 220.06(1) for po ssession with intent to sell chorionic gonadotropin. In Gonzales v. Du enas-Alvarez, the Supreme Court held that it takes “more than the application of legal imagin ation” to find that a state law criminalizes

20 N.Y. Penal Law § 22 0.06 (McKinney 2004). 21 Id. § 220.00(5) (McKinney 2004). 22 See N.Y. Public Health Law § 3306, Schedule II(j ) (listing any material, compound, mixture, or preparation which contains any amount of chor ionic gonadotropin). 23 21 U.S.C. § 812. 24 See People v. Gagnier , 146 A.D.3d 1019, 1021 (N .Y. App. Div. 2017).8 conduct outside the generic federal definition of the crime. 25 Instead, such a finding “requires a realistic probability, not a theoretic al possibility, that the State would apply its

statute to conduct that falls outside the generic definition of a crime.” 26 “A defendant may establish such a probability by showing that the state stat ute was so applied in his or her own case or by pointing to other cases in which the state courts applied the statute in a non-generic fashion.” 27 The parties did not raise this issue with the district cour t and thus did not present it with evidence upon which it could make this determination. We will therefore remand

for the district court to determine whether th ere is a realistic probability that New York would prosecute someone for possessing with intent to sell chorionic gonadotropin in violation of N.Y. Penal Law § 220.06(1). If the Court finds a realistic probability of such prosecution, then the first provision of § 220. 06 cannot serve as a predicate offense under § 4B1.1, and the Court should resentence Sin gh. If there is no such realistic probability,

the Court can maintain the se ntence it previously imposed.

IV. For the foregoing reasons, we will remand for proceedings in accordance with this opinion.

25 549 U.S. 183, 193 (2007). 26 Id

. 27 United States v. Daniels , 915 F.3d 148, 151 (3d Cir. 2019).