19-4071-cr United States v. Johnson 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 26th day of July, two thousand twenty-three. 4 5 Present: 6 ROSEMARY S. POOLER, 7 EUNICE C. LEE, 8 Circuit Judges, 9 PAUL A. ENGELMAYER, 10 District Judge. ∗ 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 19-4071-cr 18 19 20 HODAYAH JOHNSON, 21 22 Defendant-Appellant. 23 _____________________________________ 24 25 FOR DEFENDANT-APPELLANT: STEPHANIE M. CARVLIN, Law Office of Stephanie 26 Carvlin, New York, NY. 27 28 FOR APPELLEE: LINDSEY KEENAN (Michael D. Maimin, on the brief), 29 for Audrey Strauss, United States Attorney for the 30 Southern District of New York, New York, NY.
∗ Judge Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting by designation. 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Seibel, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the sentence of the district court is VACATED, and the case is REMANDED
5 for resentencing.
6 After entering a plea of guilty to one count of possession of a controlled substance with
7 intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), Defendant-Appellant
8 Hodayah Johnson was sentenced principally to 132 months’ incarceration. Johnson argues on
9 appeal that the district court imposed his sentence after erroneously giving him a career offender
10 sentencing enhancement under United States Sentencing Guidelines § 4B1.1(a) based on the
11 district court’s improper designation of one of his predicate offenses as a controlled substance
12 offense. We assume the parties’ familiarity with the underlying facts, the procedural history of
13 the case, and the arguments on appeal, which we discuss only as necessary to explain our decision.
14 After his indictment in March of 2019, Johnson pleaded guilty in August of 2019 to
15 possession of a controlled substance with intent to distribute. The Probation Office advised that
16 Johnson should receive a career offender sentencing enhancement under U.S.S.G. § 4B1.1(a)
17 based in part on his 2003 conviction under New York Penal Law § 220.16(1) for possession of a
18 controlled substance in the third degree. The parties did not contest the applicability of § 4B1.1(a),
19 and the district court accepted that Johnson was a career offender under § 4B1.1(a). With the
20 career offender enhancement, Johnson’s Guidelines range was 188 to 235 months, and the district
21 court sentenced him to 132 months’ incarceration. Johnson timely appealed.
22 Johnson now argues that the district court erred by finding that his 2003 New York State
23 drug conviction was a predicate offense warranting imposition of the § 4B1.1(a) career offender
2 1 sentencing enhancement. Because New York’s definition of a controlled substance is broader than
2 the federal definition, Johnson contends that it cannot provide the categorical match necessary for
3 the career offender sentencing enhancement to apply. See United States v. Townsend, 897 F.3d
4 66, 74 (2d Cir. 2018) (finding a defendant’s Sentencing Guidelines range was erroneously
5 calculated in part because “the state statute under which [the defendant] was convicted sweeps
6 more broadly than its federal counterpart”).
7 While Johnson’s appeal was pending, this Court decided United States v. Gibson, 55 F.4th
8 153 (2d Cir. 2022), adhered to on reh’g, 60 F.4th 720 (2d Cir. 2023) (per curiam). In Gibson, the
9 defendant raised before the district court a similar challenge to the use of a New York drug offense
10 as a career offender predicate. Id. at 155. The Court affirmed the district court’s conclusion that
11 the Guidelines § 4B1.1(a) sentencing enhancement did not apply to a defendant sentenced in 2020
12 based on that defendant’s prior 2002 New York State drug conviction because “New York’s
13 controlled substances schedule included naloxegol, which had been removed from the federal
14 controlled substances schedules . . . in 2015.” Id.; see also Gibson, 60 F.4th at 720 (clarifying that
15 part of Gibson’s holding is that “the federal controlled substances schedules” are “categorically
16 narrower than the New York drug schedules” because the schedules diverged in 2015). Gibson
17 also “reject[ed] the government’s contention[]” that a sentencing court could still apply the § 4B1.1
18 enhancement even after this divergence by looking to “New York’s [drug] schedule . . . as [it]
19 stood at the time of [the] New York controlled substance conviction, rather than at the time of”
20 either the offense or the sentence for the current conviction. 55 F.4th at 160–61.
21 Because Johnson did not argue below that Guidelines § 4B1.1 cannot apply to him based
22 on his 2003 New York State drug conviction, he concedes that his argument on appeal is subject
23 to the plain-error standard. When “we review for plain error,” we “consider[] whether ‘(1) there
3 1 is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error
2 affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity
3 or public reputation of judicial proceedings.’” United States v. Miller, 954 F.3d 551, 557–58 (2d
4 Cir. 2020) (quoting United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013)).
5 Johnson’s case meets the first prong of the plain-error analysis. “A district court commits
6 procedural error where it . . . makes a mistake in its Guidelines calculation.” United States v.
7 Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). “[A]n unobjected-to miscalculation of a
8 defendant’s Guidelines range constitutes procedural error” and will “satisfy[] the first plain error
9 prong (that there is error).” United States v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). Gibson
10 held that the Guidelines § 4B1.1 sentencing enhancement cannot apply based on, as here, a prior
11 New York State drug conviction entered at a time when New York’s drug schedules were
12 categorically broader than current federal drug schedules. 55 F.4th at 166 (“Here, by the time
13 Gibson began his 2017 bank robbery spree, the [Controlled Substances Act] schedules, having
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19-4071-cr United States v. Johnson 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 26th day of July, two thousand twenty-three. 4 5 Present: 6 ROSEMARY S. POOLER, 7 EUNICE C. LEE, 8 Circuit Judges, 9 PAUL A. ENGELMAYER, 10 District Judge. ∗ 11 _____________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 19-4071-cr 18 19 20 HODAYAH JOHNSON, 21 22 Defendant-Appellant. 23 _____________________________________ 24 25 FOR DEFENDANT-APPELLANT: STEPHANIE M. CARVLIN, Law Office of Stephanie 26 Carvlin, New York, NY. 27 28 FOR APPELLEE: LINDSEY KEENAN (Michael D. Maimin, on the brief), 29 for Audrey Strauss, United States Attorney for the 30 Southern District of New York, New York, NY.
∗ Judge Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting by designation. 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Seibel, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the sentence of the district court is VACATED, and the case is REMANDED
5 for resentencing.
6 After entering a plea of guilty to one count of possession of a controlled substance with
7 intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), Defendant-Appellant
8 Hodayah Johnson was sentenced principally to 132 months’ incarceration. Johnson argues on
9 appeal that the district court imposed his sentence after erroneously giving him a career offender
10 sentencing enhancement under United States Sentencing Guidelines § 4B1.1(a) based on the
11 district court’s improper designation of one of his predicate offenses as a controlled substance
12 offense. We assume the parties’ familiarity with the underlying facts, the procedural history of
13 the case, and the arguments on appeal, which we discuss only as necessary to explain our decision.
14 After his indictment in March of 2019, Johnson pleaded guilty in August of 2019 to
15 possession of a controlled substance with intent to distribute. The Probation Office advised that
16 Johnson should receive a career offender sentencing enhancement under U.S.S.G. § 4B1.1(a)
17 based in part on his 2003 conviction under New York Penal Law § 220.16(1) for possession of a
18 controlled substance in the third degree. The parties did not contest the applicability of § 4B1.1(a),
19 and the district court accepted that Johnson was a career offender under § 4B1.1(a). With the
20 career offender enhancement, Johnson’s Guidelines range was 188 to 235 months, and the district
21 court sentenced him to 132 months’ incarceration. Johnson timely appealed.
22 Johnson now argues that the district court erred by finding that his 2003 New York State
23 drug conviction was a predicate offense warranting imposition of the § 4B1.1(a) career offender
2 1 sentencing enhancement. Because New York’s definition of a controlled substance is broader than
2 the federal definition, Johnson contends that it cannot provide the categorical match necessary for
3 the career offender sentencing enhancement to apply. See United States v. Townsend, 897 F.3d
4 66, 74 (2d Cir. 2018) (finding a defendant’s Sentencing Guidelines range was erroneously
5 calculated in part because “the state statute under which [the defendant] was convicted sweeps
6 more broadly than its federal counterpart”).
7 While Johnson’s appeal was pending, this Court decided United States v. Gibson, 55 F.4th
8 153 (2d Cir. 2022), adhered to on reh’g, 60 F.4th 720 (2d Cir. 2023) (per curiam). In Gibson, the
9 defendant raised before the district court a similar challenge to the use of a New York drug offense
10 as a career offender predicate. Id. at 155. The Court affirmed the district court’s conclusion that
11 the Guidelines § 4B1.1(a) sentencing enhancement did not apply to a defendant sentenced in 2020
12 based on that defendant’s prior 2002 New York State drug conviction because “New York’s
13 controlled substances schedule included naloxegol, which had been removed from the federal
14 controlled substances schedules . . . in 2015.” Id.; see also Gibson, 60 F.4th at 720 (clarifying that
15 part of Gibson’s holding is that “the federal controlled substances schedules” are “categorically
16 narrower than the New York drug schedules” because the schedules diverged in 2015). Gibson
17 also “reject[ed] the government’s contention[]” that a sentencing court could still apply the § 4B1.1
18 enhancement even after this divergence by looking to “New York’s [drug] schedule . . . as [it]
19 stood at the time of [the] New York controlled substance conviction, rather than at the time of”
20 either the offense or the sentence for the current conviction. 55 F.4th at 160–61.
21 Because Johnson did not argue below that Guidelines § 4B1.1 cannot apply to him based
22 on his 2003 New York State drug conviction, he concedes that his argument on appeal is subject
23 to the plain-error standard. When “we review for plain error,” we “consider[] whether ‘(1) there
3 1 is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error
2 affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity
3 or public reputation of judicial proceedings.’” United States v. Miller, 954 F.3d 551, 557–58 (2d
4 Cir. 2020) (quoting United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013)).
5 Johnson’s case meets the first prong of the plain-error analysis. “A district court commits
6 procedural error where it . . . makes a mistake in its Guidelines calculation.” United States v.
7 Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). “[A]n unobjected-to miscalculation of a
8 defendant’s Guidelines range constitutes procedural error” and will “satisfy[] the first plain error
9 prong (that there is error).” United States v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). Gibson
10 held that the Guidelines § 4B1.1 sentencing enhancement cannot apply based on, as here, a prior
11 New York State drug conviction entered at a time when New York’s drug schedules were
12 categorically broader than current federal drug schedules. 55 F.4th at 166 (“Here, by the time
13 Gibson began his 2017 bank robbery spree, the [Controlled Substances Act] schedules, having
14 eliminated naloxegol in 2015, were narrower than the New York schedules applicable to his 2002
15 state-law conviction.”). And, while Gibson did not resolve “whether . . . the district court should
16 consult the [Controlled Substances Act] version at the time of the defendant’s current offense or
17 the version at the time of his sentencing for this offense,” id., the result is the same here since
18 Johnson both engaged in his current offense conduct and was sentenced in 2019, well after the
19 New York State and federal drug schedules diverged. Thus, Johnson’s 2003 New York State
20 conviction cannot support imposing the § 4B1.1 sentencing enhancement.
21 Because Gibson is now the law of the Circuit, Johnson’s case also meets the second prong
22 of the plain-error analysis. “[W]hether there was ‘error,’ and whether that error is ‘plain’—the
23 first two requirements of the plain error standard of review—‘is established at the time of the
4 1 appeal,’ not as of the time that the district court ruled.” United States v. Martinez, 991 F.3d 347,
2 357 (2d Cir. 2021) (quoting United States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020)). Although
3 “[t]he law may not have been clear at the time of [Johnson]’s plea and sentence, . . . after [Gibson],
4 it is eminently plain.” United States v. Garcia, 587 F.3d 509, 520 (2d Cir. 2009).
5 Finally, Johnson meets the last two prongs of the plain-error analysis. These prongs can
6 be met where, as here, there is plain error stemming from “[a]n unobjected-to error in Guidelines
7 calculation,” because the “district court’s miscalculation of the Guidelines sentencing range carries
8 serious consequences for the defendant.” Wernick, 691 F.3d at 117 (internal quotation marks and
9 alterations omitted). Without the career offender enhancement, Johnson argues, his Guidelines
10 range would have been 57 to 71 months, rather than the 188 to 235 months the district court
11 calculated. “While the district court might have selected the same sentence regardless of the
12 guideline range, . . . the error had a potentially serious impact on the sentence imposed.” Id.
13 We have considered the parties’ remaining arguments and find that they are without merit
14 or that, in light of our reasoning above, we need not address them. Accordingly, we VACATE
15 Johnson’s sentence and REMAND for resentencing.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court