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Interesting case re: HCG is a controlled substance in some States

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  • Interesting case re: HCG is a controlled substance in some States



    So this kid was arrested in NY State for possession of HCG. Convicted as it is a Schedule III drug there. It is in CA as well...

    Years later he was arrested on another drug charge, I believe it was said to be heroin. At the Federal level. So prosecutors increased his Sentence based on his prior HCG arrest. (sounds so pathetic right?) In Federal Court and Appeals Courts, the case to increase sentence was rejected due to the fact that HCG is not scheduled as a drug at the Federal level. The case was remanded for him to be resentenced appropriately (at a lower level)




    Justia Opinion Summary
    A "controlled substance" for purposes of USSG 4B1.2(b) referred exclusively to substances controlled by the Controlled Substances Act (CSA). USSG 2K2.1 adopts the definition of a "controlled substance offense" in section 4B1.2(b). The Second Circuit held that defendant's prior drug conviction under New York Penal Law 220.31 did not qualify as a predicate controlled substance offense. Because defendant's prior state conviction was for violating an indivisible statute, the categorical approach applies, and because the state statute of conviction criminalizes the sale of a substance not criminalized under federal law, the state statute does not categorically match the federal crime. Therefore, defendant's prior New York state drug conviction did not subject him to a heightened base offense under USSG 2K2.1(a). The court vacated the district court's judgment and remanded for resentencing.





    US vs Townsend
    https://law.justia.com/cases/federal...018-07-23.html

  • #2
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