22-2755-cr United States v. Sylvester

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ”SUMMARY ORDER“). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of January, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, RAYMOND J. LOHIER, JR., MICHAEL H. PARK, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 22-2755-cr

JAKEEM SYLVESTER,

Defendant-Appellant. ------------------------------------------------------------------

FOR DEFENDANT-APPELLANT: KENDRA L. HUTCHINSON, Federal Defenders of New York, New York, NY FOR APPELLEE: MICHAEL D. MAIMIN (Jennifer N. Ong on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY

Appeal from a judgment of the United States District Court for the

Southern District of New York (Kenneth M. Karas, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is VACATED and the

case is REMANDED for further proceedings.

Jakeem Sylvester appeals from an October 19, 2022 judgment of the United

States District Court for the Southern District of New York (Karas, J.) convicting

him of being a felon in possession of a firearm in violation of

(g)(1)

and sentencing him principally to a term of imprisonment of 42 months.

Sylvester challenges the procedural reasonableness of his sentence, arguing that

the District Court improperly determined that his previous convictions under

New York Penal Law § 220.16(1) were “controlled substance offenses,” which

yielded a higher base offense level of 24 under § 2K2.1(a)(2) of the United States

Sentencing Guidelines. We assume the parties’ familiarity with the underlying

2 facts and the record of prior proceedings, to which we refer only as necessary to

explain our decision to vacate and remand.

We apply the “categorical approach” to determine if a state-law drug

offense is a “controlled substance offense” under the Sentencing Guidelines.

United States v. Chaires,

(2d Cir. 2023). “Under the categorical

approach, courts identify the minimum criminal conduct necessary for

conviction under a particular statute by looking only to the statutory definitions

– i.e., the elements – of the offense, and not to the particular underlying facts.”

United States v. Minter,

(2d Cir. 2023) (quotation marks omitted).

Accordingly, for a state drug offense to be a “controlled substance offense”

under the Sentencing Guidelines, “the state law must criminalize only those

substances that are criminalized under federal law.” United States v. Townsend,

(2d Cir. 2018). Because the New York drug offense of which

Sylvester was convicted refers to “narcotic drug[s],” which are defined by the

substances listed in New York’s Schedules I(b), I(c), II(b), and II(c), we compare

those schedules to the federal controlled substance schedules.

(7), 220.16(1). We review the District Court’s determination that

Sylvester’s prior offenses were controlled substances offenses under the

3 Sentencing Guidelines de novo. Townsend,

.

Sylvester identifies one substance and a separate class of substances that,

he says, are not controlled federally but are “narcotic drug[s]” under New York

law: naloxegol and constitutional isomers of cocaine. In Minter, we held that

New York controls constitutional isomers of cocaine, while the federal

Government does not. 80 F.4th at 410–11. And in United States v. Gibson,

(2d Cir. 2022) (Gibson I), we reached the same conclusion with

respect to naloxegol. See also United States v. Gibson,

(2d Cir.

2023) (Gibson II). We therefore agree with Sylvester that his prior convictions

are not controlled substance offenses under the Sentencing Guidelines.

The Government argues that the holding in Gibson I that New York

controls naloxegol is not the law of the Circuit. We rejected that argument in

Gibson II. See

; see also United States v. Johnson, No. 19-4071-cr,

, at *2 (2d Cir. July 26, 2023). Moreover, our decision in Minter

would still compel us to conclude that Sylvester was not convicted of a

controlled substance offense. The Government concedes as much. We

therefore remand for resentencing.

The Government alternatively moves to certify two questions to the New

4 York Court of Appeals, suggesting that our decisions “are not the final word on

the meaning of New York’s state laws.” Mot. to Certify 5. It’s true that our

decision to vacate Sylvester’s sentence rests in part on interpretations of New

York law, but we are already bound by precedential opinions interpreting that

law. We accordingly deny the Government’s motion. We note, however, that

our “decision on a question of State law, of course, in no way prevents the courts

of the State, especially the highest court, from reaching their own decision when

the question is eventually presented to them.” 53rd St., LLC v. U.S. Bank Nat’l

Ass’n,

(2d Cir. 2021).

5 We have considered the Government’s remaining arguments and conclude

that they are without merit. For the foregoing reasons, the judgment of the

District Court is VACATED and the case is REMANDED for further proceedings.

The Government’s motion to certify questions to the New York Court of Appeals

is DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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