United States v. Townsend

17‐757‐cr
United States v. Townsend
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2017
No. 17‐757‐cr
U NITED S TATES OF AMERICA,
Appellee,
v.
TYREK TOWNSEND,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Eastern District of New York
A RGUED: MARCH 7, 2018
D ECIDED: JULY 23, 2018

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Before: C ABRANES and C ARNEY , Circuit Judges, and V ILARDO , District
Judge.*
For purposes of United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”) § 4B1.2(b), “[t]he term ‘controlled substance offense’
means an offense under federal or state law . . . that prohibits . . .
distribution . . . of a controlled substance.” (emphasis added).
This case presents the question of how to define “controlled
substance” in § 4B1.2(b): Does that term include only substances
controlled by federal law under the Controlled Substances Act
(“CSA”)? Or does it also include substances regulated by state law but
not by federal law?
Because we find that “controlled substance” refers exclusively
to substances controlled by the CSA, we VACATE the judgment of the
United States District Court for the Eastern District of New York (Dora
L. Irizarry, Chief Judge) and REMAND for resentencing.
D AVID K. K ESSLER, Assistant United States
Attorney (Jo Ann M. Navickas, Assistant
United States Attorney, on the brief), for
Richard P. Donoghue, United States
Attorney, Eastern District of New York,
Brooklyn, NY, for Appellee.
* Judge Lawrence J. Vilardo, of the United States District Court for the
Western District of New York, sitting by designation.

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D ANIEL HABIB, Federal Defenders of New
York, Inc., Appeals Bureau, New York, NY,
for Defendant‐Appellant.
L AWRENCE J. V ILARDO , District Judge:
For purposes of United States Sentencing Guidelines (“U.S.S.G.”
or “Guidelines”) § 4B1.2(b), “[t]he term ‘controlled substance offense’
means an offense under federal or state law . . . that prohibits . . .
distribution . . . of a controlled substance.” (emphasis added).
This case presents the question of how to define “controlled
substance” in § 4B1.2(b): Does that term include only substances
controlled by federal law under the Controlled Substances Act
(“CSA”)? Or does it also include substances regulated by state law but
not by federal law?
Because we find that “controlled substance” refers exclusively
to substances controlled by the CSA, we VACATE the judgment of the
United States District Court for the Eastern District of New York (Dora
L. Irizarry, Chief Judge) and REMAND for resentencing.
I. BACKGROUND
On November 21, 2015, New York Police Department officers
saw the Defendant‐Appellant, Tyrek Townsend (“Townsend”),
engage in what they believed to be suspicious, drug‐related activity.
The officers arrested Townsend and, in the search incident to his
arrest, recovered a loaded 9‐millimeter semiautomatic weapon. A
later search at the police precinct yielded six partial tablets of
alprazolam, also known as Xanax, a federally controlled substance.

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Townsend was indicted by a federal grand jury on three counts:
(1) possessing alprazolam with the intent to distribute it, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(2); (2) possessing a firearm in
furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A); and (3) being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On September 12, 2016, Townsend
pleaded guilty to counts one and three.
The crime of being a felon in possession of a firearm, under 18
U.S.C. § 922(g)(1), has a Guidelines base offense level of 20 if the
defendant committed the offense after sustaining one felony
conviction for either a crime of violence or a controlled substance
offense. U.S.S.G. § 2K2.1(a)(4)(A) (2016). The base offense level
increases from 20 to 24 if the defendant has two such prior convictions.
U.S.S.G. § 2K2.1(a)(2).
The presentence investigation report (“PSR”) prepared before
sentencing determined that U.S.S.G. § 2K2.1(a)(2) applied to
Townsend and that the appropriate base offense level was 24. It based
that conclusion on two of Townsend’s prior convictions: one under
New York Penal Law (“NYPL”) section 220.31 for fifth‐degree
criminal sale of a controlled substance and another under New Jersey
law for third‐degree aggravated assault with a deadly weapon.1
Townsend objected to the higher base offense level. He argued
that his prior controlled substance offense under New York law was
1 Townsend initially objected to using both prior convictions in determining
his base offense level. At the time of sentencing, however, Townsend withdrew his
objection to the New Jersey aggravated assault conviction but maintained that his
New York controlled substance conviction could not support the higher offense
level. So Townsend argued that his base offense level was 20 because the New York
controlled substance conviction did not qualify as a “controlled substance offense”
under Guidelines § 2K2.1(a)(2).

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substantively broader than its federal counterpart and therefore could
not be used to increase the offense level and his subsequent calculated
Guidelines range. More specifically, he noted that NYPL
section 220.31 prohibits the sale of Human Chorionic Gonadotropin
(“HCG”), a substance controlled under New York law but not
controlled under the CSA. Because the New York statute criminalized
the distribution of a substance that was not proscribed by federal law,
Townsend argued, a conviction under that statute would not increase
his federal Guidelines range. The government and the district court
disagreed, however.
According to the district court, which adopted the reasoning of
the PSR, because the Guidelines define a qualifying predicate
controlled substance offense as one “under federal or state law,” all
state drug convictions necessarily qualify. Appellant’s App. 238‐39.
And for that reason, in part, the court found that Townsend’s prior
New York drug conviction subjected him to a heightened base offense
level under § 2K2.1(a)(2).
II. DISCUSSION
We review the sentence imposed by a district court for
reasonableness. United States v. Cavera, 550 F.3d 180, 187‐88 (2d Cir.
2008) (en banc). But we review de novo a district court’s specific
determination that a “prior offense was a controlled substance offense,
as defined by U.S.S.G. § 4B1.2.” United States v. Savage, 542 F.3d 959,
964 (2d Cir. 2008) (internal quotation marks omitted).
Calculating a defendant’s sentencing range under the
Guidelines includes far more than simply considering the crime of
conviction. Indeed, for some crimes, the base offense level under the
Guidelines—i.e., the starting point—increases because of certain
convictions the defendant previously sustained. See, e.g., U.S.S.G.
§ 2K2.1(a)(2). But such enhancements are limited by considerations of

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fairness and due process. See Rosales‐Mireles v. United States, 138 S. Ct.
1897, 1907‐08 (2018).
For starters, the Guidelines language must make clear—to the
court, to the defendant, and to the government—the basis for a
sentencing enhancement. Thus, to determine whether a prior
conviction increases the defendant’s base offense level, courts begin
with the language of the Guidelines. See, e.g., Savage, 542 F.3d at 963‐
64 (beginning sentencing enhancement analysis with Guidelines
language). If the Guidelines are clear, there is little more to do; if they
are ambiguous, however, the courts have crafted an interpretive
scheme that honors our federal sentencing system while preserving
the fairness owed to the defendant.
A. Interpreting Guidelines §§ 2K2.1 and 4B1.2(b)
Section 2K2.1 of the Guidelines adopts the definition of a
“controlled substance offense” in § 4B1.2(b). U.S.S.G. § 2K2.1,
Application Note 1. Section 4B1.2(b), in turn, defines a controlled
substance offense as
An offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that prohibits the
manufacture, import, export, distribution,
or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a
controlled substance (or counterfeit
substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b) (emphasis added).

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The district court here found this language to be clear and
unambiguous. Because state controlled substance offenses can be
valid predicate offenses, the court reasoned, all state controlled
substance offenses are incorporated into the sentencing enhancement
provision. In the words of the court, “[t]he operative term is ‘or state
law.’ So that particular guideline actually provides that a specific
violation of state law . . . would make it a controlled substance offense
under the guideline.” Appellant’s App. 238‐39.
The district court here was not the only one in our Circuit to
reach that conclusion. In United States v. Laboy, 16‐CR‐669 (AJN) 2017
WL 6547903 (S.D.N.Y. Dec. 12, 2017), the district court found that “the
phrase ‘controlled substances’ has no inherent meaning beyond a
governing entity’s decision to control certain substances and not
others.” Id. at *3. Because “state offenses would carry with them a
reference to their own state drug schedules,” and because state
convictions clearly qualify, the court concluded that a conviction for
an offense involving a substance controlled only under state law
would qualify as well. Id. But see United States v. Barrow, 230 F. Supp.
3d 116, 123‐24 (E.D.N.Y. 2017).
On appeal, the government echoes the district court’s
conclusion that the plain language of the Guidelines triggers
application of the § 2K2.1(a) Guidelines enhancement based on any
predicate state controlled substance offense.2 “Had the [Sentencing]
2 In the proceedings below, the government’s primary argument for
qualifying the conviction as a predicate offense rested on the divisibility of NYPL
section 220.31. Because that statute is “divisible,” the government argued, and
based on the government’s assertion that Townsend’s prior conviction was for
possessing heroin and not HCG, his prior conviction qualified. This Court’s
subsequent decision in Harbin v. Sessions, 860 F.3d 58, 61 (2d Cir. 2017), however,
found NYPL section 220.31 to be indivisible. See infra section II.B.1. So the
government has changed direction on appeal.

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Commission intended to restrict a ‘controlled substance offense’ to
only crimes involving a substance controlled under federal law, it
would have done so.” Br. Appellee 15‐16. The government cites
examples in the Guidelines where the definition of a term is expressly
limited to federal law. Id. at 16‐18; see also Laboy, 2017 WL 6547903,
at *3. In other words, in the government’s view, the absence of the
word “federal” next to “controlled substance” means that the
Sentencing Commission intended for sentencing courts to consider
convictions for sale of a substance controlled only under state law.3
But the government has it backwards: Because of the
presumption that federal—not state—standards apply to the
Guidelines, discussed in more detail below, if the Sentencing
Commission wanted “controlled substance” to include substances
controlled under only state law to qualify, then it should have said so.
And the Guidelines language is not as clear as the government
and the court below made it out to be. Although a “controlled
substance offense” includes an offense “under federal or state law,” that
does not also mean that the substance at issue may be controlled under
federal or state law. To include substances controlled under only state
law, the definition should read “. . . a controlled substance under federal
or state law.” But it does not.
It may be tempting to transitively apply the “or state law”
modifier from the term “controlled substance offense” to the term
3 In fact, even though the government now asserts that Townsend’s
interpretation of controlled substance defies “the plain text of [§ 4B1.2(b)]” Br.
Appellee 14, the government conceded in the proceedings below the very point it
now contests. See Appellant’s App. 187 (“[I]f the defendant was convicted of selling
‘human chorionic gonadotropin,’ a substance that was a ‘controlled substance’
under New York law but not federal law then the Drug Conviction would not count
as a predicate felony.”) (citation omitted).

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“controlled substance.” But to do so would undermine the
presumption that federal standards define federal sentencing
provisions. Because the Guidelines presume the application of federal
standards unless they explicitly provide otherwise, the ambiguity in
defining “controlled substance” must be resolved according to
federal—not state—standards.
1. The Jerome presumption
As a general rule, commonly called the Jerome presumption, the
application of a federal law does not depend on state law unless
Congress plainly indicates otherwise. See Jerome v. United States, 318
U.S. 101, 104 (1943). Although not a federal statute, the Guidelines are
given the force of law, United States v. Kirvan, 86 F.3d 309, 311 (2d Cir.
1996), and arguably have an even greater need for uniform
application, United States v. Savin, 349 F.3d 27, 34 (2d Cir. 2003). The
Jerome presumption thus applies equally to the Guidelines. Savin, 349
F.3d at 34.
Sentencing a defendant who has prior state convictions involves
a complicated “meshing process . . . as we observe two sovereigns
competing for their legitimate spheres.” Dickinson v. First Nat’l Bank,
400 F.2d 548, 549 (5th Cir. 1968) (Goldberg, J.). But if there is any
doubt, it is the interest of the state sovereign that must give way
because, after all, the Guidelines punish violations of federal law.
Stated another way, “the Guidelines should be applied uniformly to
those convicted of federal crimes irrespective of how the victim
happens to be characterized by its home jurisdiction.” See Savin, 349
F.3d at 35 (applying the Jerome presumption to the Guidelines).
What is more, since Jerome was decided the Supreme Court has
rejected attempts to impose enhanced federal punishments on
criminal defendants in light of a state conviction, when those attempts
do not also ensure that the conduct that gave rise to the state conviction

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justified imposition of an enhancement under a uniform federal
standard. See Taylor v. United States, 495 U.S. 575, 579, 590‐91 (1990)
(rejecting argument that “burglary” in Armed Career Criminal Act
means “burglary” however a state chooses to define it); Esquivel‐
Quintana v. Sessions, 137 S. Ct. 1562, 1570 (2017) (rejecting argument
that “sexual abuse of a minor” encompasses all state statutory rape
convictions regardless of the state’s age of consent, because that
definition “turns the categorical approach on its head by defining the
generic federal offense of sexual abuse of a minor as whatever is illegal
under the particular law of the State where the defendant was
convicted”). These decisions reinforce the idea that imposing a federal
sentencing enhancement under the Guidelines requires something
more than a conviction based on a state’s determination that a given
substance should be controlled.
In light of the above, we are confident that federal law is the
interpretive anchor to resolve the ambiguity at issue here. Any other
outcome would allow the Guidelines enhancement to turn on
whatever substance “is illegal under the particular law of the State
where the defendant was convicted,” a clear departure from Jerome
and its progeny. See Esquivel‐Quintana, 132 S. Ct. at 1570. Thus, a
“controlled substance” under § 4B1.2(b) must refer exclusively to those
drugs listed under federal law—that is, the CSA.4
4 We note that our conclusion that § 2K2.1(a) is meant to apply only to
substances controlled under federal law is determined by our adherence to the
Jerome presumption in interpreting the provision’s ambiguity. Our analysis under
the Jerome presumption differs from the approach taken by the Court in Taylor v.
United States and Esquivel‐Quintana v. Sessions. In both those cases, the Court
defined the “generic” meaning of an offense as contained in a federal enhancement
statute to determine whether the defendant’s state law offense qualified for the
federal enhancement at issue. Because the Jerome presumption requires that we
consider only controlled substances as defined by federal law, regardless of what

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2. The interpretation of “controlled substance”
by other circuits
In holding that a “controlled substance” refers exclusively to a
substance controlled by the CSA, we are in good company. The Fifth,
Eighth, and Ninth Circuits have found “controlled substance” in the
Guidelines to have the same meaning we now find.5 United States v.
Gomez‐Alvarez, 781 F.3d 787, 793‐94 (5th Cir. 2015); United States v. Leal‐
Vega, 680 F.3d 1160, 1166‐67 (9th Cir. 2012); United States v. Sanchez‐
Garcia, 642 F.3d 658, 661‐62 (8th Cir. 2011).
According to the Ninth Circuit, “defining the term ‘controlled
substance’ to have its ordinary meaning of a drug regulated by law
would make what offenses constitute a drug offense necessarily depend
on the state statute at issue.” Leal‐Vega, 680 F.3d at 1166 (emphasis in
original). Based on that same reasoning, the Fifth Circuit found that
the government must “establish that the substance underlying th[e]
conviction is covered by the CSA” before a controlled substance
conviction can qualify as a Guidelines predicate offense. Gomez‐
Alvarez, 781 F.3d at 793‐94 (5th Cir. 2015); see also Sanchez‐Garcia, 642
the “generic definition” of a controlled substance might be, we need not decipher
the generic definition of a controlled substance to resolve this appeal.
5 These other circuit opinions considered a different section of the
Guidelines. They also analyzed the definition of a “drug trafficking offense,” rather
than a “controlled substance offense.” See, e.g., United States v. Leal‐Vega, 680 F.3d
1160 (9th Cir. 2012). We nonetheless find them instructive because the definitions
use virtually identical language incorporating offenses under federal or state law
that “prohibit[] the manufacture, import, export, distribution, or dispensing of . . .
a controlled substance.” Compare U.S.S.G. § 2L1.2, with U.S.S.G. § 4B1.2(b). We
note, however, that our holding applies only to the provision of the Guidelines at
issue in this appeal, § 2K2.1(a). We also note that these cases relied on a different
interpretive scheme, and that none of them explicitly applied the Jerome
presumption to the portion of the Guidelines at issue, as we do here.

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F.3d at 661‐62 (finding as overinclusive a California statute that
defined controlled substance more broadly than the CSA). But see
United States v. Smith, 681 F. App’x 483, 489 (6th Cir. 2017) (finding “no
requirement that the particular controlled substance underlying a state
conviction also be controlled by the federal government” for an
enhancement under U.S.S.G. § 4B1.2).
B. Comparing prior state convictions to their corresponding
federal crimes
Concluding that “controlled substance” as defined by § 4B1.2(b)
of the Guidelines includes only substances controlled under the CSA
does not end our analysis. A state conviction will qualify as a
predicate offense under § 2K2.1(a) if the state conviction aligns with,
or is a “categorical match” with, federal law’s definition of a controlled
substance. To determine whether the definition matches, we must
know the state crime that was committed and compare the elements
of that crime to the elements of the corresponding generic federal
crime. If a state statute is broader than its federal counterpart—that is,
if the state statute criminalizes some conduct that is not criminalized
under the analogous federal law—the state conviction cannot support
an increase in the base offense level. See United States v. Jones, 878 F.3d
10, 15‐16 (2d Cir. 2017).
There are two ways to compare state statutes to their generic
federal counterpart: the categorical approach and the modified
categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2248‐49
(2016). Which approach a court takes turns on whether the state
statute defining the crime of conviction is divisible or indivisible. Id.
at 2249.

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A statute is divisible when it lists elements in the alternative,
thereby defining multiple crimes within one statute. Jones, 878 F.3d at
16.6 A divisible statute triggers the modified categorical approach. Id.
An indivisible statute, on the other hand, defines only one crime.
It may list “various factual means of committing a single element,” but
it does not list elements in the alternative. Mathis, 136 S. Ct. at 2249.
An indivisible statute is subject to the categorical approach. Jones, 878
F.3d at 16.
Under the categorical approach, because a statute is indivisible,
courts look only at the language of the statute, as the statute defines
only one crime. But if a statute is divisible, courts do not know by
looking only at the text of the statute which alternative version of the
6 For example, in Jones, we considered the New York first‐degree robbery
statute, which defines robbery in four distinct ways:
A person is guilty of robbery in the first degree
when he forcibly steals property and when, in the
course of the commission of the crime or of
immediate flight therefrom, he or another
participant in the crime:
1. Causes serious physical injury to any person who
is not a participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a
dangerous instrument; or
4. Displays what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm . . .
NYPL § 160.15. We found this statute divisible because each of the four subsections
of the statute constitutes a distinct crime with distinct elements. See Jones, 878 F.3d
at 16‐17.

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statute the defendant may have violated. Id. Therefore, if the statute
at issue is divisible, courts apply the modified categorical approach
and consider a very limited set of materials to help determine the
specific elements of the crime of conviction.7 Id.; Descamps v. United
States, 570 U.S. 254, 261‐62 (2013).
Once courts determine the particular elements of the crime of
conviction, the analysis is the same for both approaches. Mathis, 136
S. Ct. at 2249 (finding that once courts determine, under the modified
categorical approach, which alternative version of the crime was
committed, “court[s] can then compare that crime, as the categorical
approach commands, with the relevant generic offense”). If the
elements of the defendant’s prior state conviction are the same as, or
narrower than, the generic federal counterpart for that crime, the prior
state conviction can affect the defendant’s Guidelines range under
§ 2K2.1(a). See Jones, 878 F.3d at 16. Conversely, if the elements of the
state statute are broader than those in the corresponding federal crime,
the prior conviction does not give rise to a sentencing enhancement
under § 2K2.1(a). See id. In other words, a state statute that punishes
conduct not criminalized by federal law cannot affect the Guidelines
calculation.
7 Out of fairness to the defendant, among other considerations, courts
following the modified categorical approach are very careful to limit review of
underlying conduct related to the conviction. See Jones, 878 F.3d at 16 (“Statements
of ‘non‐elemental fact’ in the records of prior convictions [such as the precise
manner in which the crime was committed] are prone to error precisely because
their proof is unnecessary. Defendants therefore may have little incentive to ensure
the correctness of those details of earlier convictions that could later trigger the
unforeseen . . . enhancement.”) (internal citations and quotation marks omitted).

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1. Matching NYPL section 220.31 with the
CSA
There is no longer any question that NYPL section 220.31 is
indivisible: last year, this Court found exactly that in Harbin v. Sessions.
860 F.3d at 61. We found that NYPL section 220.31 “creates only a
single crime” with several “factual means by which that crime may be
committed.” Id. at 65.
In finding the statute indivisible, we identified four elements of
the crime. The defendant must (1) knowingly and (2) unlawfully
(3) sell (4) a controlled substance. Id. NYPL section 220.31 thus
requires only that a defendant possess a “controlled substance”
generally. The particular controlled substance a defendant actually
possessed is not an element under the New York Law and need not be
proven for a defendant to be convicted of violating this statute.
Therefore, our inquiry is limited to whether a “controlled substance”
under NYPL section 220.31 is a categorical match with the CSA’s
definition of a “controlled substance.”8
An element of a state offense categorically matches its federal
counterpart if the state element is “the same as, or narrower than” the
federal element. See Descamps, 570 U.S. at 257. With respect to
controlled substances, that means the state law must criminalize only
those substances that are criminalized under federal law. And because
the analysis focuses on the “controlled substance” element—not the
specific controlled substance underlying the prior state conviction—
“we must presume that the conviction rested upon nothing more than
the least of the acts criminalized” by the state statute. Moncrieffe v.
8 The government’s brief might be read as maintaining that the language of
the Guidelines clearly incorporates state controlled substances, and therefore the
court need not venture into the realm of the categorical approach. For the reasons
set forth above, we disagree.

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Holder, 569 U.S. 184, 190‐91 (2013) (internal quotation marks and
alterations omitted). If a defendant might be convicted of violating
NYPL section 220.31 for conduct that is not prohibited by the CSA, his
state conviction cannot qualify as a predicate offense. See Esquivel‐
Quintana, 137 S. Ct. at 1572.
At the time of Townsend’s conviction, the New York state drug
schedule, section 3306 of the New York Public Health Law, included
HCG as a Schedule III controlled substance. See N.Y. Pub. Health Law
§ 3306, Schedule III(7)(g) (listing Chorionic gonadotropin).
HCG is not a controlled substance under the CSA. Compare N.Y.
Pub. Health Law § 3306, with 21 U.S.C. § 802. Therefore, the state
statute under which Townsend was convicted sweeps more broadly
than its federal counterpart, and his prior conviction under NYPL
section 220.31 is not a predicate offense for purposes of increasing his
Guidelines range under § 2K2.1(a).
In sum, because Townsend’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. Consequently, Townsend’s
prior New York state conviction cannot be a predicate offense under
§ 2K2.1(a).
III. CONCLUSION
For the reasons above, we hold that:
(1) The term “controlled substance” in U.S.S.G. § 4B1.2(b) refers
exclusively to those substances in the CSA; and
(2) NYPL section 220.31 criminalizes sale of a drug, HCG, that is
not included in the CSA, and NYPL section 220.31 therefore

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cannot be a predicate offense for an enhanced sentence under
U.S.S.G. § 2K2.1(a).
Townsend’s prior conviction under NYPL section 220.31 therefore
does not qualify as a predicate “controlled substance offense.” We
therefore VACATE the District Court’s judgment and REMAND for
resentencing.

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