            18-2545-cr
            United States v. Thompson


 1                                                   In the
 2                          United States Court of Appeals
 3                                      For the Second Circuit
 4                                                  ________
 5
 6                                            AUGUST TERM, 2019
 7
 8                                        ARGUED: OCTOBER 2, 2019
 9                                         DECIDED: JUNE 8, 2020
10
11                                               No. 18-2545-cr
12
13                                       UNITED STATES OF AMERICA,
14                                                Appellee,
15
16                                                       v.
17
18                                           JEREMY L. THOMPSON,
19                                            Defendant-Appellant. *
20                                                 ________
21
22                             Appeal from the United States District Court
23                               for the Northern District of New York.
24                                             ________
25
26          Before: WALKER and CARNEY, Circuit Judges, and KOELTL, District Judge. †

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. 18-2545-cr


 1         Defendant-Appellant Jeremy L. Thompson appeals from a sentence entered
 2   in the United States District Court for the Northern District of New York following
 3   his conviction on one count of conspiracy to distribute and possess with intent to
 4   distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.
 5   The district court (Norman A. Mordue, Judge) sentenced Thompson to ten years’
 6   imprisonment pursuant to § 841(b)(1)(B), which specified a mandatory minimum
 7   of ten years’ imprisonment for defendants with a prior conviction for a felony drug
 8   offense. The district court had concluded that Thompson’s prior conviction for the
 9   attempted sale of a controlled substance in the fifth degree, in violation of N.Y.
10   Penal Law § 220.31, was a conviction for a “felony drug offense,” as defined by 21
11   U.S.C. § 802(44). We find that the district court erred in treating Thompson’s prior
12   § 220.31 conviction as a predicate felony drug offense under the categorical
13   approach because § 220.31 criminalized conduct beyond the scope of the federal
14   analog. We therefore VACATE the district court’s sentence and REMAND for
15   resentencing.

16                                             ________
17
18                      STEVEN D. CLYMER (Carl G. Eurenius, on the brief), Assistant
19                      United States Attorneys, for Grant C. Jacquith, United States
20                      Attorney for the Northern District of New York, for Appellee.

21                      JAMES L. RIOTTO II, James L. Riotto II, Esq., Rochester, NY, for
22                      Defendant-Appellant.

23                                             ________
           3                                                              No. 18-2545-cr


 1
 2   JOHN M. WALKER, JR., Circuit Judge:

 3         Defendant-Appellant Jeremy L. Thompson appeals from a sentence entered
 4   in the United States District Court for the Northern District of New York following
 5   his conviction on one count of conspiracy to distribute and possess with intent to
 6   distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.
 7   The district court (Norman A. Mordue, Judge) sentenced Thompson to ten years’
 8   imprisonment pursuant to § 841(b)(1)(B), which specified a mandatory minimum
 9   of ten years’ imprisonment for defendants with a prior conviction for a felony drug
10   offense. The district court had concluded that Thompson’s prior conviction for the
11   attempted sale of a controlled substance in the fifth degree, in violation of N.Y.
12   Penal Law § 220.31, was a conviction for a “felony drug offense,” as defined by 21
13   U.S.C. § 802(44). We find that the district court erred in treating Thompson’s prior
14   § 220.31 conviction as a predicate felony drug offense under the categorical
15   approach because § 220.31 criminalized conduct beyond the scope of the federal
16   analog. We therefore VACATE the district court’s sentence and REMAND for
17   resentencing.

18


19                                    BACKGROUND

20         On April 17, 2018, Thompson pled guilty to one count of conspiracy to
21   distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C.
22   §§ 841(a)(1), 841(b)(1)(B), and 846.      The day before his plea hearing, the
23   government filed a sentencing enhancement information pursuant to 21 U.S.C. §
24   851, alerting the district court to Thompson’s 2002 conviction for the attempted
           4                                                                No. 18-2545-cr


 1   criminal sale of a controlled substance in the fifth degree, in violation of N.Y. Penal
 2   Law (NYPL) § 220.31. NYPL § 220.31 criminalizes the sale of any of the hundreds
 3   of controlled substances enumerated in N.Y. Pub. Health Law § 3306.

 4         At his plea hearing, Thompson admitted to the 2002 conviction but
 5   contested whether a violation of NYPL § 220.31 was a “felony drug offense” that
 6   would trigger the sentencing enhancement in § 841(b)(1)(B). The district court
 7   ordered Thompson to file a written response to the government’s sentencing
 8   enhancement information. Thompson’s written response argued that (1) the
 9   district court was required to use the categorical approach to determine whether
10   his NYPL § 220.31 violation was a felony drug offense and that (2) NYPL § 220.31’s
11   criminalization of the sale of certain compounds, notably human chorionic
12   gonadotropin (hCG), swept more broadly than the federal definition of a felony
13   drug offense and thus precluded a prior-conviction sentencing enhancement. The
14   government replied, arguing that the district court was not required to use the
15   categorical approach and appending documents showing that Thompson’s 2002
16   offense of conviction involved cocaine.

17         On August 17, 2018, the district court issued a decision and order rejecting
18   Thompson’s arguments. The district court held that it was not required to apply
19   the categorical approach, but that even if it were, Thompson’s claim would fail
20   because “one of the uses of [hCG] is by men who are ‘using anabolic steroids in
21   order to restore natural testosterone production.’” 1 Therefore, hCG “is sufficiently
22   related to anabolic steroids to fall within the federal statute.” 2 Using the 2002


           1   App’x at 94.
           2   Id.
            5                                                                         No. 18-2545-cr


 1   conviction under NYPL § 220.31 as a predicate felony drug offense, the district
 2   court sentenced Thompson to ten years’ imprisonment, as required by the
 3   sentencing enhancement’s mandatory minimum. 3 This appeal followed.
 4


 5                                           DISCUSSION

 6          On     appeal,     Thompson        primarily     challenges      the    district   court’s
 7   determination that his prior conviction under NYPL § 220.31 was a predicate
 8   felony drug offense for the purpose of the § 841(b)(1)(B) sentencing enhancement.
 9   The resolution of Thompson’s appeal requires answering two questions: (1)
10   whether the categorical approach applies to the identification of felony drug
11   offenses; and (2) if so, whether NYPL § 220.31 offenses are a categorical match for
12   felony drug offenses.

13          The categorical approach “requires [a district court] to look to the elements
14   and the nature of the offense of conviction, rather than to the particular facts


            3  The 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 ten 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. 18-2545-cr


 1   relating to [the defendant’s] crime.” 4 It then “asks whether the least of conduct
 2   made criminal by [a] state statute falls within the scope of activity that the federal
 3   statute penalizes.” 5 Thus, if the categorical approach applies, a district court must
 4   consider only the fact of Thompson’s prior conviction under NYPL § 220.31, not
 5   the fact that Thompson’s prior conviction involved cocaine. The district court
 6   must then examine whether Thompson’s NYPL § 220.31 offense is a categorical
 7   match 6 for a felony drug offense. Our review of the district court’s analysis raises
 8   questions of law, which we review de novo. 7

 9                    A.       Does the categorical approach apply?

10          The district court declined to apply the categorical approach, noting that
11   neither the Supreme Court nor the Second Circuit has definitively mandated using
12   the categorical approach to identify a prior “felony drug offense,” as defined in 21
13   U.S.C. § 802(44). The district court located support for a circumstance-specific
14   analysis in 21 U.S.C. § 851(c), which it asserted “provides an explicit fact-finding
15   mechanism for courts to determine whether to impose increased punishment by
16   reason of a prior conviction, based on the evidence supported by the parties,” and
17   “must be read alongside” § 841(b)(1)(B). 8


            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. 18-2545-cr


 1          We disagree with the district court’s analysis and conclusion. The text,
 2   history, and past implementation of §§ 841(b)(1)(B), 851(c), and 802(44), strongly
 3   counsel in favor of using the categorical approach.

 4          The relevant statutory text is centered upon the fact of conviction and not
 5   the facts supporting that conviction. Section 841(b)(1)(B) states that its sentencing
 6   enhancement is triggered “after a prior conviction for a felony drug offense.” 9
 7   Section 841(b)(1)(B) is concerned only with the question of whether or not a
 8   defendant has a prior conviction, not with its underlying factual details. Section
 9   851(c) is likewise concerned with the same binary question. In relevant part, §
10   851(c) allows a defendant to “den[y] any allegation of the information of prior
11   conviction, or claim[] that any conviction alleged is invalid.” Under 21 U.S.C. §
12   851(a), a sentencing enhancement information must “stat[e] in writing the
13   previous convictions to be relied upon.” Neither § 851(a) nor § 851(c) speaks to an
14   information that addresses the details of how a defendant committed the prior
15   crime. Our § 851(c) case law is consistent with this textual analysis. In United
16   States v. Espinal, we identified the purpose of fact-finding under § 851(c) as
17   determining “whether [the defendant] was indeed the man convicted in the prior
18   . . . case.” 10 This determination is separate from, and § 851(c) therefore is not
19   concerned with, the circumstances of the prior offense.

20          Similarly, § 802(44) defines a felony drug offense as a violation of “any law
21   of the United States or of a State or foreign country that prohibits or restricts


            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, 667 (2d Cir. 2011).
            8                                                                            No. 18-2545-cr


 1   conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or
 2   stimulant substances.” 11 Section 802(44) plainly refers to the terms of the statute
 3   of conviction, not to the conviction’s underlying circumstances. We cannot see
 4   how the language of § 802(44) could be construed to refer to the offense conduct.

 5          The language in §§ 841(b)(1)(B), 851(c), and 802(44) is analogous to the
 6   language at issue in the first Supreme Court case requiring use of the categorical
 7   approach, Taylor v. United States. That case involved a statute referring to “‘a
 8   person who . . . has three previous convictions’ for—not a person who has
 9   committed—three previous violent felonies or drug offenses.” 12 As in Taylor, the
10   language here is concerned with the existence of a valid prior conviction and the
11   statute of conviction.            Accordingly, this language “generally supports the
12   inference that Congress intended the sentencing court to look only to the fact that
13   the defendant had been convicted of crimes falling within certain categories, and
14   not to the facts underlying the prior convictions.” 13

15          Looking beyond the text, we agree with the Eighth Circuit in United States
16   v. Dennis Brown that there is “no indication in the . . . [statutory] history of [§
17   841(b)(1)] that a particular state offense might sometimes count toward the




            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 foreign 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. 18-2545-cr


 1   sentencing enhancement and sometimes not, depending on the facts of the case.” 14
 2   Previous iterations of § 841(b)(1)(B) support the use of the categorical approach.
 3   Upon its enactment in 1970, § 841(b)(1)(B)’s sentencing enhancement was
 4   triggered when a person had “one or more prior convictions of him for an offense
 5   punishable under this paragraph, or for a felony under any other provision of this
 6   title [II] or title III or other law of the United States relating to narcotic drugs,
 7   marihuana, or depressant or stimulant substances.” 15 Congress plainly did not
 8   intend for courts to use a circumstance-specific approach to determine whether
 9   defendants had prior convictions under Title II or Title III. Under the interpretive
10   maxim of noscitur a sociis, “a word is known by the company it keeps,” 16 we can
11   then infer that Congress likewise eschewed a circumstance-specific approach
12   when in the same provision it tied the sentencing enhancement to “a felony under
13   any . . . other law of the United States relating to narcotic drugs, marihuana, or
14   depressant or stimulant substances.” In 1994, Congress moved the language
15   explaining        which      prior     convictions      triggered    §   841(b)(1)’s     sentencing
16   enhancement to § 802(44), a general federal definition of “felony drug offense.” 17
17   Nothing in the statutory history suggests that Congress departed from its original
18   categorical approach in doing so.




            14598 F.3d 1013, 1017 (8th Cir. 2010) (analyzing § 841(b)(1)(A), which mirrors 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. 18-2545-cr


 1           Consistent with the text and history of § 841(b)(1)(B) and related sections,
 2   albeit without explicitly deciding that the categorical approach applies, this circuit
 3   has used the categorical approach to determine whether a defendant had a prior
 4   felony drug conviction. 18 In McCoy v. United States, we referred to the use of the
 5   categorical approach in this context as our “long-accepted” practice. 19 Both the
 6   Seventh and Eighth Circuits, after thorough analysis, found the categorical
 7   approach applicable to § 841(b)(1)(A), which mirrors § 841(b)(1)(B), and § 802(44). 20
 8   The First, Third, and Ninth Circuits have also applied the categorical approach to
 9   identify felony drug offenses, although they have not explained their reasons for
10   doing so. 21        Only the Sixth Circuit, in an unpublished opinion that cites no
11   authority and provides no rationale, has declined to apply the categorical
12   approach to identify felony drug offenses. 22




             18See, 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 district 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.

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

     938 F.3d 503, 511 (3d Cir. 2019); United States v. Ocampo-Estrada, 873 F.3d 661, 667 (9th Cir. 2017).

              United States v. Soto, 8 F. App’x 535, 541 (6th Cir. 2001) (“[T]his court does not employ a
             22

     categorical approach to determining whether a prior conviction constitutes a ‘felony drug offense’
     for purposes of section 841(b)(1).”).
           11                                                                  No. 18-2545-cr


 1         Using the categorical approach in this context also avoids Sixth Amendment
 2   and practical concerns. 23 As the Supreme Court explained in Descamps v. United
 3   States, the categorical approach has “Sixth Amendment underpinnings” because,
 4   “other than the fact of a prior conviction, any fact that increases the penalty for a
 5   crime beyond the prescribed statutory maximum must be submitted to a jury.” 24
 6   The Sixth Amendment “counsel[s] against allowing a sentencing court to make a .
 7   . . determination about what the defendant and . . . judge [or jury] must have
 8   understood as the factual basis of the prior [conviction].” 25              Adopting a
 9   circumstance-specific approach here would require sentencing courts to do just
10   that, even to the point of requiring a separate trial on the question. Given the
11   wealth of textual and historical evidence supporting the use of the categorical
12   approach to identify felony drug offenses for sentencing enhancement purposes,
13   we decline to interpret §§ 841(b)(1)(B) and 802(44) in a way that would raise
14   serious Sixth Amendment questions.

15         B.        Are NYPL § 220.31 offenses a categorical match to § 802(44)’s
16         definition of felony drug offense?

17         Having determined that the categorical approach applies, we turn to
18   whether Thompson’s NYPL § 220.31 offense is a categorical match for a felony
19   drug offense under § 802(44), the federal analog. We conclude that it is not because
20   NYPL § 220.31 criminalizes conduct beyond the federal analog. NYPL § 220.31
21   prohibits the sale of the controlled substances enumerated in N.Y. Pub. Health


           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. 18-2545-cr


 1   Law § 3306. In Harbin v. Sessions, we held that NYPL § 220.31 is an “indivisible”
 2   statute that “creates only a single crime”; that single crime can be violated by
 3   selling any of the N.Y. Pub. Health Law § 3306 substances. 26 In other words, the
 4   district court must treat Thompson’s prior violation of NYPL § 220.31 as a
 5   “criminal sale of a controlled substance in the fifth degree.” It cannot look to
 6   Thompson’s prior indictment to treat his violation as a “criminal sale of cocaine in
 7   the fifth degree” because that is not the crime established by NYPL § 220.31.

 8          Thompson argues that NYPL § 220.31 is not a categorical match with §
 9   802(44) because it regulates hCG, a pregnancy hormone that is not included in the
10   federal analog § 802(44). That analog refers to laws “that prohibit[] or restrict[]
11   conduct relating to narcotic drugs, marihuana, anabolic steroids, and depressant
12   or stimulant substances.” Thompson argues that because a “criminal sale of a
13   controlled substance in the fifth degree” could be an unlawful sale of hCG, rather
14   than conduct relating to the four classes of controlled substances listed in § 802(44),
15   a § 220.31 conviction cannot serve as a predicate conviction triggering §
16   841(b)(1)(B)’s sentencing enhancement. We agree.




            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 others. 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. 18-2545-cr


 1          To paper over the fact that hCG is not itself a narcotic drug, marijuana, an
 2   anabolic steroid, or a depressant or stimulant substance, the government engages
 3   in a strained reading of § 802(44) to argue that the illicit sale of hCG is “conduct
 4   relating to” anabolic steroids because some individuals take hCG alongside
 5   anabolic steroids to offset the steroids’ suppression of their natural testosterone
 6   production. 27 While the language “relating to” has been “broadly interpreted” in
 7   other sentencing enhancement contexts, 28 we do not find the government’s
 8   reading persuasive. There is no indication in § 802(44) that Congress enumerated
 9   four classes of controlled substances to capture the sale of a host of unenumerated
10   chemical compounds that are not controlled substances but could ameliorate the
11   side effects of controlled substances. 29 “[R]elating to” links “conduct” to “narcotic
12   drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 30
13   “[R]elating to” does not link other non-controlled substances or compounds to the
14   forgoing enumerated classes of drugs.                     The government’s reading would
15   effectively define felony drug offenses as conduct relating to non-controlled
16   substances or compounds relating to the enumerated classes of drugs. But that is
17   not what § 802(44) says or does. “[R]elating to” in § 802(44) modifies “conduct”




            27   Government’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) (finding 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. 18-2545-cr


 1   only once, and the most plausible and common-sense reading of “conduct” is
 2   manufacturing, selling, possessing, and the like.

 3          The Eighth Circuit has likewise rejected efforts to expand § 802(44)’s reach
 4   beyond its enumerated classes of drugs. In Dennis Brown, the Eighth Circuit
 5   recognized that “‘relating to’ has a ‘broad ordinary meaning,’ even in the criminal
 6   context,” but held that “simulated narcotic drugs” still fall outside § 802(44)’s
 7   ambit. 31 The Dennis Brown majority pointed out that the state statute at issue could
 8   be violated “without ever possessing, distributing, or using a controlled substance
 9   and without having any involvement whatsoever with an actual narcotic drug,”
10   and thus did not categorically fit within the federal definition of felony drug
11   offense. 32 The majority was not persuaded otherwise by “the close relationship
12   between controlled substance offenses and simulated controlled substance
13   offenses.” 33

14          As an alternative to its “relating to” argument, the government proposes
15   that NYPL § 220.31, despite being broader than § 802(44), “substantially
16   corresponds” to it and is therefore a categorical match.         The government’s
17   substantially-corresponds-to theory takes language from Taylor out of context. In
18   assessing generic burglary under 18 U.S.C. § 924(e), the Taylor Court held that “a[]
19   [state] offense constitutes ‘burglary for purposes of a § 924(e) sentence
20   enhancement if . . . its statutory definition substantially corresponds to ‘generic



            31   598 F.3d at 1015, 1017.
            32   Id. at 1018.
            33   Id. at 1020 (Shepherd, J., dissenting).
            15                                                                          No. 18-2545-cr


 1   burglary.’” 34 But the context for this statement was the Court’s concern about the
 2   status of “offenses under some States’ laws that, while not called ‘burglary,’
 3   correspond in substantial part to generic burglary” or offenses “in a State where
 4   the generic definition has been adopted, with minor variations in terminology.”35
 5   Taylor uses an example that makes clear that its substantially-corresponds-to
 6   standard does not mean that all slightly overbroad state statutes can still serve as
 7   a categorical match. Identifying “[a] few States’ burglary statutes . . . [that] define
 8   burglary more broadly, e.g., . . . by including places, such as automobiles and
 9   vending machines, other than buildings,” 36 the Court explained that the
10   government could still use convictions under these slightly overbroad state
11   statutes for the § 924(e) sentencing enhancement “if the indictment or information
12   and jury instructions show that the defendant was charged only with a burglary
13   of a building, and that the jury necessarily had to find an entry of a building to
14   convict. 37 Notably, Taylor’s example separated out location of entry as a distinct
15   element. It follows that an overbroad state statute can serve as a categorical match
16   if it is divisible into separate offenses, and the underlying indictment, information,
17   or jury instructions (to which the sentencing court may turn when the state statute
18   is divisible to ascertain the relevant crime to which the categorical approach will
19   apply) reveal that the offense of conviction has elements no broader than those of
20   the federal analog. 38 The situation is different in this case. As we have pointed

            34   495 U.S. at 602.
            35   Id. at 599.
            36   Id.
            37   Id. at 602 (emphasis added).
            38Quarles 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 generic
            16                                                                           No. 18-2545-cr


 1   out, NYPL § 220.31 is both overbroad and indivisible. It therefore does not
 2   substantially correspond to § 802(44) as that language is used in Taylor.

 3          Finally, the government maintains that the overbreadth of NYPL § 220.31 is
 4   purely hypothetical and the product of impermissible legal imagination. To be
 5   sure, such a characteristic would remove the supposed overbreadth from the
 6   calculation. 39 However, “when the state statute on its face reaches beyond the
 7   generic federal definition,” no legal imagination is necessary to find that the state
 8   statute is overbroad. 40 Because hCG is included in New York’s list of covered
 9   compounds at N.Y. Pub. Health Law § 3306, NYPL § 220.31 on its face criminalizes
10   conduct that is not covered by the federal analog at § 802(44).

11          To summarize, we reject the government’s capacious reading of § 802(44),
12   as well as its attempt to narrow the scope of § 220.31, and do not find a categorical
13   match. Accordingly, the district court erred in finding that Thompson’s prior
14   conviction under NYPL § 220.31 could serve as a predicate felony drug offense for
15   the § 841(b)(1)(B) sentencing enhancement and in sentencing Thompson pursuant
16   to that enhancement.

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.
            39Gonzales v. Duenas-Alvarez, 549 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. 18-2545-cr


1         Thompson also appeals from the district court’s decision to deny him a 21
2   U.S.C. § 851(c) hearing on the applicability of the categorical approach. Because
3   we find for Thompson on his substantive argument, we have no need to address
4   this secondary, procedural argument.

5


6                                   CONCLUSION

7         For the reasons stated above, we VACATE the district court’s sentence and
8   REMAND for resentencing.
