20-3049 USA v. Gibson 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2021 5 (Argued: November 23, 2021 Decided: December 6, 2022) 6 Docket No. 20-3049 7 _________________________________________________________ 8 UNITED STATES OF AMERICA, 9 Appellant, 10 - v. - 11 VINCENT GIBSON, 12 Defendant-Appellee. 13 _________________________________________________________ 14 Before: KEARSE, LOHIER, and LEE, Circuit Judges. 1 Appeal by the United States from so much of a judgment entered in the 2 United States District Court for the Western District of New York, Lawrence J. 3 Vilardo, Judge, as sentenced defendant Vincent Gibson to 60 months' imprisonment 4 following his plea of guilty to five counts of bank robbery in violation of 18 U.S.C. 5 § 2113(a), five counts of entering the banks with intent to commit larceny in violation 6 of 18 U.S.C. § 2113(a), one count of bank larceny in violation of 18 U.S.C. § 2113(b), 7 and one count of interstate communication of a threat to injure in violation of 18 8 U.S.C. § 875(c). The district court declined to sentence Gibson as a career offender 9 under Sentencing Guidelines § 4B1.1 to a recommended imprisonment range of 151 10 to 188 months, ruling that a predicate advanced by the government for the 11 enhancement--Gibson's 2002 conviction of third-degree attempted criminal sale of a 12 controlled substance under New York Penal Law §§ 220.39(1) and 110--was not a 13 proper predicate because New York's controlled substances schedule included 14 naloxegol, which was removed from the federal controlled substances schedules 15 promulgated under the Controlled Substances Act, 21 U.S.C. §§ 801-971, in 2015. The 16 court ruled that as the New York schedule was broader than the current federal 17 schedules--i.e., those reflecting federal criminal law as it stood at the time of Gibson's 18 sentencing in the present case--Gibson's conviction under §§ 220.39(1) and 110 is not 2 1 a "controlled substance offense" within the meaning of § 4B1.1. On appeal, the 2 government, which bypassed its opportunities in the district court to argue that the 3 New York schedule was not broader than the current federal schedules, contends that 4 the district court misinterpreted the Guidelines by failing to compare the New York 5 schedule to the federal schedules as they existed at the time of Gibson's state-law 6 conviction in 2002. Finding no merit in that contention, we affirm. While there is 7 much to be said for looking to federal criminal law as it stood at the time the 8 defendant engaged in the conduct that constitutes his present offense, rather than at 9 the time of sentencing for his present offense, we need not decide between the two in 10 this case because either leads to affirmance. Federal criminal law--both at the time of 11 this conduct and at the time of sentencing for it--was narrower than the state law that 12 governed Gibson's 2002 conviction. 13 Affirmed. 14 KATHERINE A. GREGORY, Assistant United States 15 Attorney, …
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