18

- 2545

- cr United States v. Thompson



## In the 1 

# United States Court of Appeals
2 

## For the Second Circuit 3

________ 4

5

A UGUST T ERM , 201 9 6

7

A RGUED : O CTOBER 2

, 201 9 8

D ECIDED : J U N E 8

, 20 20 9

10

No. 1 8

- 2 545

- c r 11

12

U NITED S TATES OF A MERICA

, 13 Appellee

, 14

15

v. 16

17
J EREMY L. T HOMPSON

, 18 Defendant

- Appell ant

. * 19

________ 20

21 Appeal from the United States District Court 22

for the North ern District of New York. 23

________ 24

25

Before: W ALKER and C A RNEY

, Circuit Judges , and K OELTL

, District Judge

. † 26

27

________ 28

* The Clerk of Court is respectfully directed to amend the official caption as listed above.

† Judge John G

. Koeltl , of the United States District Court for the Southern District of New
York, sitting by designation.2 No

. 1 8

- 2545

- cr

Defendant

- Appellant Jeremy L. Thompson appeals from a sentence entered 1

in the United States District Court for the Northern District of New York following 2

his conviction on one count of conspiracy to distribute and possess with intent to 3

distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846

. 4

The district court ( Norman A. Mordue

, Judge ) sentenced Thompson to ten years’ 5

imprisonment pursuant to § 841(b)(1)(B), which specified a mandatory minimum 6

of ten years’ imprisonment for defendant s with a prior conviction for a felony drug 7

offense

. The district court had concluded that Thompson’s prior conviction for the 8

attempted sale of a controlled substance in the fifth degree, in violation of N.Y. 9

P enal L aw § 220.31, was a conviction for a “ felony drug offense, ” as defined by 21 10

U.S.C. § 802(44)

. We fin d that the district court erred in treat ing Thompson’s prior 11

§ 220.31 conviction as a predicate felony drug offense under the categorical 12

approach because § 220.31 criminalized conduct beyond the scope of the federal 13

analog

. We therefore VACATE the district court’s sentence and REMAND for 14

resentencing

. 15

________ 16

17

S TEVEN D. C LYMER ( Carl G. Eurenius

, on the brief ), Assistant 18

United States Attorneys

, for Grant C. Jacquith, United States 19

Attorney for the Northern District of New York, for Appellee

. 20

J AMES L. R IOTTO II

, James L. Riotto II, Esq.

, Rochester , NY, for 21

Defendant

- Appellant

. 22

___ _____ 233 No

. 1 8

- 2545

- cr

1

J OHN M. W ALKER

, J R

., Circuit Judge : 2

Defendant

- Appellant Jeremy L. Thompson appeals from a sentence entered 3

in the United States District Court for the Northern District of New York following 4

his conviction on one count of conspiracy to distribute and possess with intent to 5

distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846

. 6

The district court ( Norman A. Mordue

, Judge ) sentenced Thompson to ten years’ 7

imprisonment pursuant to § 841(b)(1)(B), which specifi ed a mandatory minimum 8

of ten years’ imprisonment for defendants with a prior conviction for a felony drug 9

offense . The district court had concluded that Thompson’s prior conviction for the 10

attempted sale of a controlled substance in the fifth degree, in violation of N.Y. 11

Penal Law § 220.31, was a conviction for a “ felony drug offense, ” as defined by 21 12

U.S.C. § 802(44). We find that the district court erred in treating Thompson’s prior 13

§ 220.31 conviction as a predicate felony drug offense under the categorical 14

approach because § 220.31 criminalized conduct beyond the scope of the fede ral 15

analog. We therefore VACATE the district court’s sentence and REMAND for 16

resentencing. 17

18

BACKGROUND 19

On April 17, 2018, T hompson pled guilty to one count of c onspiracy to 20

d istribute and p ossess with i ntent to d istribute m arijuana, in violation of 21 U.S .C. 21

§§ 841(a)(1), 841(b)(1)(B), and 846. T he day before his plea hearing, the 22

government filed a sentencing enhancement information pursuant to 21 U.S.C. § 23

851, alerting the district court to Thompson’s 2002 conviction for the attempted 244 No

. 1 8

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- cr

criminal sale of a controlled substance in the fifth degree, in violation of N

. Y

. P enal 1

L aw (NYPL) § 220.31. NYPL § 220.31 criminalizes the sale of any of the hundreds 2

of controlled substances enumerated in N.Y. Pub. Health Law § 3306. 3

At his plea hearing, Thompson admitted to the 2002 conviction but 4

contested whether a violation of NYPL § 220.31 was a “ felony drug offense ” that 5

would trigger the sentencing enhancement in § 841(b)(1)(B) . The district court 6

ordered Thompson to file a written response to the government’s sentencing 7

enhancement information. Thompson’s written response argued that ( 1 ) the 8

district court was re quired to use the categorical approach to determine whether 9

his NYPL § 220.31 violation was a felony drug offense and that ( 2 ) NYPL § 220.31’s 10

criminalization of the sale of certain compounds, notably human chorionic 11

gonadotropin (hCG ), swept more broadly than the federal definition of a felony 12

drug offense and thus precluded a prior

- conviction sentencing enhancement. The 13

government replied, arguing that the district court was not required to use the 14

categorical approach and appending documents showing that Thompson’s 2002 15

offense of conviction involved cocaine

. 16

On August 17, 2018, the district court issued a decision and order rejecting 17

Thompson’s arguments. The district court held that it was not required to apply 18

the categorical approach, but that even if it were, Thompson’s claim would fail 19

because “one of the uses of [hCG] is by men who are ‘using anabolic steroids in 20

order to restore natural testosterone production

. ’” 1 Therefore, hCG “is sufficiently 21

related to anabolic steroi ds to fall within the federal statute.” 2 Using the 2002 22

1 App’x at 94.

2 Id

.5 No

. 1 8

- 2545

- cr

conviction under NYPL § 220.31 as a predicate felony drug offense, t he district 1

court sentenced Thompson to ten years’ imprisonment, as required by the 2

sentencing enhancement’s mandatory minimum. 3 This appeal followed. 3

4

DISCUSSION 5

On appeal, Thompson primarily challenges the district court ’s 6

determination that his prior conviction under NYPL § 220.31 w as a predicate 7

felony drug offense for the purpose of the § 841(b)(1)(B) sentencing enhancement. 8

The resolution of Thompson’s appeal requires answering two questions: (1) 9

whether the categori c al approach applies to the identification of felony drug 10

offens es ; and (2) if so, whether NYPL § 220.31 offense s are a categorical match for 11

felony drug offense s

. 12

The categorical approach “requires [a district court] to look to the elements 13

and the nature of the offense of conviction, rather than to the particular facts 14

3 T he First Step Act, enacted on December 21, 2018, amended § 841(b)(1)(B) such that a
mere “felony drug offense” no longer triggers the sentencing enhancement implicated here. Pub.

L. No. 115

- 391, § 401(a)(2)(B), 132 Stat. 5194 , 5220

– 21 (2018). As amended, the sentencing
enhancement is available only when a defendant has “a prior conviction for a serious drug felony
or serious violent felony.” Id . Serious drug felonies include “offense[s] under State law . . . for
which a maximum term of imprisonment of t en years or more is prescribed by law.” 18 U.S.C. §

924(e)(2)(A). NYPL § 220.31 specifies that the criminal sale of a controlled substance in the fifth
degree is a “ class D felony, ” the sentence for which “shall not exceed seven years.” NYPL § 70.00.

A violation of NYPL § 220.31 is therefore not a serious drug felony under the First Step Act.
Thompson, however, was sentenced several months before the First Step Act was enacted. The
First Step Act’s amendments to § 841(b)(1)(B) are non

- retroactive, Pub

. L. No. 115

- 391, § 401(c),

132 Stat. at 5221, and therefore Thompson cannot benefit from their heightened threshold for the
imposition of § 841(b)(1)(B)’s sentencing enhancement.6 No

. 1 8

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relating to [the defendant’s] crime.” 4 It then “asks whether the least of conduct 1

made criminal by [a] state statute falls within the scope of activi ty that the federal 2

statute penalizes. ” 5 Thus , if the categorical approach applies, a district court must 3

consider only the fact of Thompson’s prior conviction under NYPL § 220.31, not 4

the fact that Thompson’s prior conviction involved cocaine. The distr ict court 5

must then examine whether Thompson’s NYPL § 220.31 offense is a categorical 6

match 6 for a felony drug offense

. Our review of the district court’s analysis raises 7

questions of law

, which we review de novo

. 7 8

A. Does t he categorical approach appl y? 9

T he district court declined to apply the categorical approach , noting that 10

neither the Supreme Court nor the Second Circuit has definitively mandated using 11

the categorical approach to identify a prior “ felony drug offense

, ” as defined in 21 12

U.S.C. § 802(44)

. The district court located support for a circumstance

- spe cific 13

analysis in 21 U.S.C. § 851 (c) , which it asserted “provides an explicit fact

- finding 14

mechanism for courts to determine whether to impose increased punishment by 15

reason of a prior conviction, based on the evidence supported by the parties,” and 16

“must be read alongside” § 841(b)(1)(B). 8 17

4 Leocal v. Ashcroft , 543 U.S. 1, 7 (2004).

5 Stuckey v. United States , 878 F.3d 62, 67 (2d Cir. 2017).

6 To be a “categorical match,” the prior state offense must be parallel to or narrower than
the federal analog.

7 See Stuckey , 878 F.3d at 65 (reviewing de novo a district court’s categorical approach
analysis).

8 App’x at 91.7 No

. 1 8

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We disagree with the district court’s analysis and conclusion. T he text, 1

history, and past implementation of § § 841(b)(1)(B), 851 (c) , and 802(44), strongly 2

counsel in favor of us ing the categorical approach. 3

The relevant statutory text is centered upon the fact of conviction and not 4

the facts supporting that conviction. Section 841(b)(1)(B) states that its sentencing 5

enhancement is triggered “after a prior conviction for a felony d rug offense.” 9 6

Section 841(b)(1)(B) is concerned only with the question of whether or not a 7

defendant has a prior conviction , not with its underlying factual details . Section 8

851 (c) is likewise concerned with the same binary question. In relevant part, § 9

851(c) allows a defendant to “den[y] any allegation of the information of prior 10

conviction, or claim[] that any conviction alleged is invalid.” Under 21 U.S.C. § 11

851(a), a sentencing enhancement information must “stat[e] in writing the 12

previous convictions to be relied upon.” Neither § 851(a) nor § 851(c) speaks to an 13

information t hat addresses the details o f how a defendant committed the prior 14

crime. Our § 851(c) case law is consistent with this textual analysis. In United 15

States v. Espinal , we identified the purpose of fact

- finding under § 851(c ) as 16

determining “whether [the defendant] was indeed the man convicted in the prior 17

. . . case.” 10 This determination i s separate from, and § 851(c ) therefore is not 18

concerned with

, the circumstances of the prior offense. 19

Similarly

, § 802(44) defines a felony drug offense as a violation of “any law 20

of the United States or of a State or foreign country that prohibits or restricts 21

9 In relevant part, 21 U.S.C. § 841(b)(1)(B) reads: “If any person commits such a violation
after a prior conviction for a felony drug offense has become final, such person shall be sentenced
to a term of imprisonment which may not be less than 10 years.”

10 634 F.3d 655, 6 6 7 (2d Cir. 2011).8 No

. 1 8

- 2545

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conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or 1

stimulant substances .” 11 Section 802(44) plainly refers to the terms of the statut e 2

of conviction, not to the conviction’s underlying circu mstances. We cannot see 3

how the language of § 802(44) c ould be construed to refer to the offense conduct. 4

T he language in § § 841(b)(1)(B), 851(c), and 802(44) is analogous to the 5

language at issue in the first Supreme Court case requiring use of the categorical 6

approach

, Taylor v. United States

. That case involved a statute referring to “ ‘ a 7

person who . . . has three previous convictions’ for

— not a person who has 8

committed

— three previous violent felonies or drug offenses.” 12 As in Taylor

, the 9

language here is concerned with the existence of a valid prior conviction and the 10

statute of conviction . Accordingly, th is language “generally supports the 11

inference that Con gress intended the sentencing court to look only to the fact that 12

the defendant had been convicted of crimes falling within certain categories , and 13

not to the facts underlying the prior convictions .” 13 14

Looking beyond the text, we agree with the Eighth Circuit in United States 15

v. Dennis Brown that there is “no indication in the . . . [statutory] history of [ § 16

841(b)(1)] that a particular state offense might sometimes count toward the 17

11 In relevant part, 21 U.S.C. § 802(44) reads: “The term ‘felony drug offense’ means an
offense that is punishable by imprisonment for more than one year under any law of the United
States or of a State or foreig n country that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.”

12 495 U.S. 575, 600 (1990).

13 Id.9 No

. 1 8

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sentencing enhancement and sometimes not, depending on the fact s of the case.” 14 1

P revious iterations of § 841(b)(1)(B) support the use of the categorical approach. 2

Upon its enactment in 1970

, § 841(b)(1)(B)’s sentencing enhancement was 3

triggered when a person had “one or more prior convictions of him for an offense 4

punishable under this paragraph, or for a felony under any other provision of this 5

title [II] or title III or other law of the Unite d States relating to narcotic drugs, 6

marihuana, or depressant or stimulant substances.” 15 Congress plainly did not 7

intend for courts to use a circumstance

- specific approach to determine whether 8

defendants had prior convictions under T itle II or T itle III. Under the interpretive 9

maxim of noscitur a sociis

, “a word is know n by the company it keep s,” 16 we can 10

then infer that Congress likewise eschewed a circumstance

- specific approach 11

when in the same provision it tied the sentencing enhancement to “a felony under 12

any . . . other law of the United States relating to narcotic drugs, marihuana, or 13

depressant or stimulant substances.” In 1994, Congress moved t h e language 14

explaining which prior convictions triggere d § 841(b)(1) ’s sentencing 15

enhancement to § 802(44)

, a general federal definition of “felony drug offense

. ” 17 16

Nothing in the statutory history suggests that Congress departed from its original 17

categorical approach in doing so

. 18

14 598 F.3d 1013, 1017 (8th Cir. 2010) (analyzing § 841(b)(1)(A), which mirr ors and was
adopted alongside § 841(b)(1)(B)).

15 Pub. L. No. 91

- 513, § 401, 84 Stat. 1236, 1261 (1970).

16 Yates v. United States , 574 U.S. 528, 543 (2015).

17 Pub. L. No. 103

- 322, § 90105, 108 Stat. 1796, 1988 (1994); see also Burgess v. United States

, 553 U.S. 124, 133 (2008) (describing the evolution of the definition of “felony drug offense”).10 No

. 1 8

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Consistent with the text and history of § 841(b)(1)(B) and related sections, 1

albeit without explicitly deciding that the categorical approach applies, this circuit 2

ha s used the categorical approach to determine whether a defendant ha d a prior 3

felony drug conviction

. 18 I n McCoy v. United States , we referred to the use of the 4

categorical approach in this context as our “long

- accepted” practice. 19 Both t he 5

Seventh and Eighth C ircuits , after thorough analy sis, found the categorical 6

approach applicable to § 841(b)(1)(A) , which mirrors § 841(b)(1)(B), and § 802(44). 20 7

T he First , Third, and Ninth C ircuits have also appl ied the categorical approach to 8

identify felony drug offenses , although they have not explained their reasons for 9

doing so

. 21 Only the Sixth Circuit, in an unpublished opinion that cites no 10

authority and provides no rationale, has declined to apply the catego rical 11

approach to identify felony drug offenses. 22 12

18 See, e.g., United States v. Roman , 464 F. App’x 32, 35 (2d Cir. 2012) (determining that the
defendant’s prior New York state conviction “plainly qualifies as a felony drug offense under the
categorical approach”); United States v. Davis , 561 F. App’x 50, 53 (2d Cir. 2014) (affirming a
district court judgment after the distr ict court “us[ed] the modified categorical approach” to
determine that the defendant was convicted of a felony drug offense).

19 707 F.3d 184, 188 (2d Cir. 2013) (per curiam)

.

20 United States v. Elder , 900 F.3d 491 (7th Cir. 2018); Dennis Brown , 598 F.3d 1013.

21 See, e.g., United States v. Gary Brown , 500 F.3d 48, 59 (1st Cir. 2007); United States v. Aviles

, 938 F.3d 503, 511 (3d Cir. 2019); United States v. Ocampo

- Estrada , 873 F.3d 661, 667 (9th Cir. 2017).

22 United States v. Soto , 8 F. App’x 535, 541 (6th Cir. 2001) (“[T]his court does not employ a
categorical approach to determining whether a prior conviction constitutes a ‘felony drug offense’
for purposes of section 841(b)(1).”).11 No

. 1 8

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Using the categorical approach in this context also avoids Sixth Amendment 1

and practical concerns. 23 As the Supreme Court explained in Descamps v. United 2

States , the categorical approach has “Sixth Amendment underpinnings” because, 3

“other than the fact of a prior conviction, any fact that increases the penalty for a 4

crime beyond the prescribed statutory maximum must be submitted to a jury.” 24 5

The Sixth Amendment “ counsel[s] against a llowing a sentenc ing court to make a . 6

. . determination about what the defendant and . . . judge [or jury] must have 7

understood as the factual basis of the prior [conviction]

. ” 25 Adopting a 8

circumstance

- specific approach here would require sentencing courts to do just 9

tha t , even to the point of requiring a separate trial on the question . Given the 10

wealth of textual and historical evidence supporting the use of the categorical 11

approach to identify felony drug offenses for sentencing enhancement purposes, 12

we decline to inte rpret § § 841(b)(1)(B ) and 802(44) in a way that would raise 13

serious Sixth Amendment question s. 14

B. Are NYPL § 220.31 offense s a categorical match to § 802(44)’s 15

definition of felony drug offense ? 16

Having determined that the categorical approach applies, we turn to 17

whether Thompson’s NYPL § 220.31 offense is a categorical match for a felony 18

drug offense under § 802(44) , the federal analog

. We conclude that it is not because 19

NYPL § 220.31 criminalize s conduct beyond the federal analog

. NYPL § 220.31 20

prohibits the sale of the controlled substances enumerated in N.Y. Pub. Health 21

23 See Elder , 900 F .3d at 499.

24 570 U.S. 254, 269 (2013) (internal quotation marks omitted).

25 Id . (internal quotation marks omitted).12 No

. 1 8

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Law § 3306

. In Harbin v. Sessions , we held that NYPL § 220.31 is an “indivisible” 1

statute that “creates only a single crime ” ; that single crime can be violated by 2

selling any of the N.Y. Pub. Health Law § 3306 substances. 26 In other words, the 3

district court must treat Thompson’s prior violation of NYP L § 220.31 as a 4

“criminal sale of a controlle d substance in the fifth degree. ” It cannot look to 5

Thompson’s prior indictment to treat his violation as a “criminal sale of cocaine in 6

the fifth degree” because that is not the crime established by NYPL § 220.31. 7

Thompson argues that NYPL § 220.31 is not a categorical match with § 8

802(44) because it regulates hCG, a pregnancy hormone that is not included in the 9

federal analog § 802(44)

. That analog refers to laws “that prohibit[] or restrict[] 10

conduct relating to narcotic drugs, marihuana, anabolic steroids, and depressant 11

or stimulant substances.” Thompson argues that because a “criminal sale of a 12

controlled substance in the fifth degree” could be an unlawful sale of hCG , rather 13

than conduct relating to the four classes of controlled substances listed in § 802(44)

, 14

a § 220.31 conviction cannot serve as a predicate conviction triggering § 15

841(b)(1)(B)’s sentencing enhancement. W e agree. 16

26 860 F.3d 58, 61, 64 (2d Cir. 2017). N.Y. Pub. Health Law § 3306 enumerates hundreds of
controlled substances, some more dangerous than o thers. NYPL § 220.31 incorporates all of these
hundreds of controlled substances and is a relatively low

- level class D felony in the fifth degree

. Because the provisions of New York law criminalizing the sale of controlled substances in the

first through fourth degrees

— NYPL §§ 220.43 (first degree), 220.41 (second degree), 220.39 (third
degree), and 220.34 (fourth degree)

— may be divisible and generally criminalize the sale of
particularly dangerous substances , rather than the sale of any substance on N.Y. Pub. Health Law

§ 3306 ’s lengthy list , our opinion does not consider or decide the status of sentencing
enhancements predicated on New York convictions for the criminal sale of controlled substances
in the first through fourth degrees.13 No

. 1 8

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- cr

To paper over the fact that hCG is not itself a narcotic drug, marijuana, an 1

anabolic steroid, or a depressant or stimulant substance, the government engages 2

in a strained reading of § 802(44) to argue that the illicit sale of hCG is “ conduct 3

relating to” anabolic steroids because some individuals take hCG alongside 4

anabolic steroids to offset the steroids’ suppression of their natural testosterone 5

production

. 27 While the language “relating to” has been “broadly interpreted” in 6

other sentencing enhancement contexts

, 28 we do not find the government’s 7

reading persuasive. There is no indication in § 802(44) that Congress enumerated 8

four classes of controlled substances to capture the sale of a host of unenumerated 9

chemical compounds that are not controlled substances but could ameliora te the 10

side effects of controlled substances

. 29 “[R]elating to” links “ conduct ” to “narcotic 11

drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 30 12

“[R]elating to” does not link other non

- controlled substances or compounds to the 13

forgoing enumerated classes of drugs. The government’s reading would 14

effectively define felony drug offenses as conduct relating to non

- controlled 15

substances or compounds relating to the enumerated class es of drugs. But that is 16

not what § 802(44) says or does. “[R]elating to” in § 802(44) modifies “conduct” 17

27 Governmen t’s Br. at 35.

28 United States v. Barker , 723 F.3d 315, 322

– 23 (2d Cir. 2013) (per curiam).

29 This is consistent with the absence of authority suggesting that § 802(44) is void for

vagueness. United States v. Mattler , 751 F. App’x 86, 89 (2d Cir. 2018) (f inding no support for the
defendant’s argument that the scope of “conduct relating to” § 802(44)’s four classes of drugs is
“virtually limitless” and therefore void for vagueness).

30 21 U.S.C. § 802(44) (emphasis added).14 No

. 1 8

- 2545

- cr

only once, and the most plausible and common

- sense reading of “conduct” is 1

manufacturing, selling, possessing, and the like. 2

The Eighth Circuit h as likewise rejected efforts to expand § 802(44)’s reach 3

beyond its enumerated classes of drugs. In Dennis Brown , the Eighth Circuit 4

recognized that “‘relating to’ has a ‘broad ordinary meaning,’ even in the criminal 5

context,” but held that “simulated nar cotic drugs” still fall outside § 802(44)’s 6

ambit. 31 The Dennis Brown majority pointed out that the state statute at issue could 7

be violated “without ever possessing, distributing, or using a controlled substance 8

and without having any involvement whatsoever with an actual narcotic drug,” 9

and thus did not categorically fit within the federal definition of felony drug 10

offense. 32 The majority was not persuaded otherwise by “the close relationship 11

between controlled substance offenses and simulated controlled substance 12

offenses.” 33 13

As an alternative to its “relating to” argument, the government proposes 14

that NYPL § 220.31

, despite being broader than § 802(44) , “substantially 15

corresponds” to it and is therefore a categorical match

. The government’s 16

substantially

- corresponds

- to theory takes language from Taylor out of context

. In 17

a ssessing generic burglary under 18 U.S.C. § 924 (e)

, the Taylor C ourt held that “a [] 18

[state] offense constitutes ‘burglary for purposes of a § 924(e) sentence 19

enhancement if . . . its statutory definition substantially corresponds to ‘generic 20

31 598 F.3d at 1015 , 1017

.

32 Id . at 1018.

33 Id . at 1020 (Shepherd, J., dissenting).15 No

. 1 8

- 2545

- cr

burglary.’” 34 But the context for this statement was the Court ’s concern about the 1

status of “offenses under some States’ laws that, while not called ‘burglary,’ 2

correspond in substantial part to generic burglary” or offenses “in a State where 3

the generic definition has been adopted, with minor variations i n terminology.” 35 4

Taylor uses an example that makes clear that its substantially

- corresponds

- to 5

standard does not mean that all slightly overbroad state statute s can sti ll serve as 6

a categorical match. Identifying “[a] few States’ burglary statutes . . . [that] define 7

burglary more broadly, e.g. , . . . by including places, such as automobiles and 8

vending machines, other than buildings ,” 36 the Court explained that the 9

government could still use convictions under these slightly overbroad state 10

statutes for th e § 924(e) sentencing enhancement “ i f the indictment or information 11

and jury instructions show that the defendant was charged only with a burglary 12

of a building, and that the jury necessarily had to find an entry of a building to 13

convict

. 37 Notably, Taylor ’s example separate d out location of entry as a distinct 14

element. It follows that an overbroad state statute can serve as a categorical match 15

if it is divisible into separate offenses , and the underlying indictment, information, 16

or jury instructions (to which the sentencing court may turn when the state statute 17

is divisible to ascertain the relevant crime to which the categorical approach will 18

apply ) reveal that the offense of conviction has elements no broader than th os e of 19

the federal analog. 38 The situation is different in this case

. As we have pointed 20

34 495 U.S. at 602.

35 Id . at 599.

36 I d.

37 I d. at 602 (emphasis added)

.

38 Quarles v. United States confirms this reading of Taylor . 139 S. Ct. 1872 (2019). In Quarles

, the Court considered whether Michigan third

- degree home invasion “[1] is broader than generic16 No

. 1 8

- 2545

- cr

out

, NYPL § 220.31 is both overbroad and indivisible. It therefore does not 1

substantially correspond to § 802(44) as that language is used in Taylor

. 2

Finally, the government maintains that the overbreadth of NYPL § 220.31 is 3

purely hypothetical and the product of impermissible legal imagination

. To be 4

sure, such a characteristic would remove the supposed overbreadth from the 5

calculation. 39 However, “ when the state statute on its face reaches beyond the 6

generic federal definit ion, ” no legal imagination is necessary to find that the state 7

statute is overbroad. 40 Because hCG is included in New York’s list of covered 8

compounds at N.Y. Pub. Health Law § 3306, NYPL § 220.31 on its face criminalizes 9

conduct that is not covered by the federal analog at § 802(44). 10

To summarize, w e reject the government’s capacious reading of § 802(44)

, 11

as well as its attempt to narrow the scope of § 220.31, and do not find a categorical 12

match. Accordingly, the district court erred in finding that Thompson’s prior 13

conviction under NYPL § 220.31 could serve as a predicate felony drug offense for 14

the § 841(b)(1)(B) sentencing enhancement and in sentencing Thompson pursuant 15

to that enhancement. 16

* * * 17

burglary or, instead, [2] ‘substantially corresponds’ to or is narrower than generic burglary.” Id

. at 1880. The Court’s framing of this inquiry contrasts the state offense being broader than the
federal analog with the state offense substantially corresponding to the federal analog. An
overbroad and indivisible state offense cannot substantially correspond to a federal analog.

39 Gonzales v. Duenas

- Alvarez , 54 9 U.S. 183, 193 (2007) (“[T]o find that a state statute creates
a crime outside the generic definition of a listed crime in a federal statute requires more than the
application of legal imagination to a state statute’s language.”).

40 Williams v. Barr

, – F. 3d

– , 2020 WL 2745538, at *8 (2d Cir. May 27, 2020).17 No

. 1 8

- 2545

- cr

Thompson also appeals from the district court’s de cision to deny him a 21 1

U.S.C. § 851(c) hearing on the applicability of the categorical approach. Because 2

we find for Thompson on his substantive argument, we have no need to address 3

this secondary, procedural argument

. 4

5

CONCLUSION 6

For the reasons stated above, we VACATE the district court’s sentence and 7

REMAND for resentencing. 8