Can a Prior State Drug Conviction Raise Your Federal Sentence?

A prior state drug conviction can raise your federal sentence. In the Second Circuit (New York, Connecticut, and Vermont), though, it counts under the gun guideline only if the drug is also on the federal list of controlled substances. That is the rule from United States v. Townsend, 897 F.3d 66 (2d Cir. 2018).

Prior State Drug Convictions

What happened in Townsend

Tyrek Townsend was sentenced in federal court for possessing Xanax with intent to distribute and for possessing a gun as a convicted felon. He had a prior New York conviction under New York Penal Law § 220.31 for selling HCG, a pregnancy hormone sometimes sold as a diet aid.

The district court treated that prior conviction as a "controlled substance offense." Under the gun guideline, USSG §2K2.1(a), that raised his starting offense level and his guideline range, and the court imposed an enhanced sentence of seven years.

The problem was that New York lists HCG as a controlled substance, but federal law does not. New York's statute (§ 220.31, fifth-degree criminal sale of a controlled substance) points to New York's own drug list. So the appeals court had to decide what happens when the state list and the federal list do not match.

What the court decided

The Second Circuit held that "controlled substance" in §2K2.1 means only drugs listed in the federal Controlled Substances Act. Because New York's law covers drugs the federal law does not, a conviction under it does not automatically count. The court vacated (threw out) the sentence and sent the case back for resentencing.

The court's reasoning came down to fairness. Your federal sentence should not be higher just because your state happens to ban more substances than federal law does. The goal was more uniform treatment of prior state drug convictions in federal sentencing.

Congress could add more drugs to the federal list later. Until it does, a state conviction for a drug that is not on the federal list should not raise your range under this guideline in the Second Circuit.

What this means for you

Townsend was good news for people facing federal sentencing with a prior state drug conviction. They should not be punished more harshly for a prior involving a drug that federal law does not ban.

If you have a prior state drug conviction, check whether the state's drug list matched the federal list at the time of that conviction. A mismatch may keep the prior from raising your range. The place to raise this is usually in written objections to the presentence report (PSR), the probation office's report that calculates your guideline range.

Keep in mind:

• Townsend is binding only in the Second Circuit. Some other circuits, such as the Sixth Circuit, have ruled the other way under the guidelines.
• Different rules can apply under other laws, such as the Armed Career Criminal Act, so check which law is being used to raise your sentence.
• When this article was written in 2018, Townsend was new, and judges might not have had it in mind at sentencing. Make sure your lawyer raises rulings like this one so they are not overlooked.

Challenging how a prior drug conviction is counted can be complicated. Brandon Sample has litigated federal appeals and written about the federal sentencing guidelines, including how prior drug convictions are counted.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.