The following excerpt is from Alsol v. Mukasey, 548 F.3d 207 (2nd Cir. 2008):
The issue in these cases is whether a second conviction for simple drug possession under state law is a felony under the Controlled Substances Act ("CSA") because it could have been prosecuted as a recidivist offense under 21 U.S.C. 844(a). We hold that it is not. We further clarify that our sentencing decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), does not foreclose this holding.