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 

(a), one count of bank larceny in violation of 

(b),

 7   and one count of interstate communication of a threat to injure in violation of 18

 

(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, 

, 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, Buffalo, New York (James P. Kennedy, Jr.,
16                          United States Attorney for the Western District of
17                          New York, Buffalo, New York, on the brief), for
18                          Appellant.

19                      MARIANNE MARIANO, Federal Public Defender, Buffalo,
20                          New York, for Defendant-Appellee.