In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3518
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
IRVIN S. H UDSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CR-00053(01)RM—Robert L. Miller, Jr., Judge.
A RGUED A PRIL 2, 2010—D ECIDED A UGUST 24, 2010
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. This case raises a surprisingly
complicated question: under the Sentencing Guidelines,
are crimes involving phony versions of illegal drugs
properly characterized as “controlled-substance of-
fenses”? Irvin Hudson pleaded guilty to possession of a
firearm as a felon and possession of a stolen firearm.
Hudson’s recommended sentence under the guidelines
depends on the nature of his previous offense: if his
2 No. 09-3518
earlier conviction amounted to a “controlled-substance
offense,” then the guidelines would recommend a
longer sentence. Before he was caught with the gun,
Hudson had been convicted in the Indiana state courts of
the crime of dealing in a substance represented to be a
controlled substance (marijuana)—a so-called “look-alike”
drug offense. The district court concluded that Hudson’s
Indiana conviction qualified as a controlled-substance
offense, calculated the guidelines range on that basis,
and sentenced him to a within-guidelines sentence of
72 months’ imprisonment. Hudson appeals his sentence
to this court.
This appeal turns on how to classify Indiana’s look-
alike drug crimes. The Sentencing Guidelines specifically
define controlled-substance offenses to include crimes
related to controlled substances or “counterfeit sub-
stances.” The district court and the government rely on
the plain meaning of “counterfeit” to sweep in Hudson’s
look-alike offense. Hudson responds that look-alikes
literally are neither controlled substances nor counter-
feit substances. He observes that different parts of the
guidelines, federal drug laws, and Indiana law define
the term “counterfeit substance” in a manner that would
not include faux marijuana. Those provisions limit the
definition of “counterfeit substance” to controlled sub-
stances that bear false designations of source and thus
appear to have been legitimately manufactured or dis-
tributed, rather like the apocryphal “Rolex” watches
that can be bought on some streets for $10 apiece. Al-
though Hudson’s argument gives us pause, we join
our sister circuits in the view that “look-alike” offenses
No. 09-3518 3
constitute controlled-substance offenses for sentencing
purposes.
I
We begin with a survey of Indiana’s drug offenses.
Indiana law creates three categories of drug crimes, the
first of which addresses certain conduct related to con-
trolled substances. See IND. C ODE §§ 35-48-4-1 et seq. This
case does not involve that part of the law.
Second, Indiana, like many states, has counterfeit-
substance crimes. See id. § 35-48-4-5 (criminalizing
creating, delivering, financing the delivery of, or pos-
sessing with the intent to deliver or finance the delivery
of a counterfeit substance). Indiana’s definition of “coun-
terfeit substance,” like the corresponding federal defini-
tion, does not include non-controlled substances passed
off as street drugs. Compare id. § 35-48-1-10 (“ ‘Counterfeit
substance’ means a controlled substance which, or the
container or labeling of which, without authorization,
bears the trademark, trade name, or other identifying
mark, imprint, number, or device, or any likeness there-
of, of a manufacturer, distributor, or dispenser other
than the person who in fact manufactured, distributed, or
dispensed the substance.”) with 21 U.S.C. § 802(7) (“The
term ‘counterfeit substance’ means a controlled sub-
stance which, or the container or labeling of which,
without authorization, bears the trademark, trade name,
or other identifying mark, imprint, number, or device, or
any likeness thereof, of a manufacturer, distributor, or
dispenser other than the person or persons who in
4 No. 09-3518
fact manufactured, distributed, or dispensed such sub-
stance and which thereby falsely purports or is repre-
sented to be the product of, or to have been distributed
by, such other manufacturer, distributor, or dispenser.”).
Hudson was not charged with a counterfeit-substance
offense under Indiana law.
Third and finally, Indiana law establishes “look-alike”
drug offenses. See IND. C ODE § 35-48-4-4.5 & -4.6. As
mentioned earlier, look-alikes are non-controlled sub-
stances held out as controlled substances. See, e.g.,
United States v. Williams, 553 U.S. 285, 317-18, 320 (2008)
(Souter, J., dissenting) (discussing virtual child pornogra-
phy by analogy to a drug dealer selling baking powder
instead of powder cocaine); Conner v. State, 626 N.E.2d
803, 805 (Ind. 1993) (discussing the sentence for selling
oregano held out as marijuana); State v. Wilson, 466
N.W.2d 101 (N.D. 1991) (discussing sale of parsley mas-
querading as marijuana). Compare NY court sniffs at
ex-cop’s drugged-dinner claim, A SSOCIATED P RESS (Feb. 5,
2010) (describing individual’s claim that his failed drug
test could be explained by his wife’s sub rosa substitu-
tion of marijuana for oregano in a recipe for meatballs).
Hudson was convicted of the following look-alike drug
offense:
A person who knowingly or intentionally delivers or
finances the delivery of any substance, other than
a controlled substance or a drug for which a prescrip-
tion is required under federal or state law, that:
(1) Is expressly or impliedly represented to be
a controlled substance;
No. 09-3518 5
(2) Is distributed under circumstances that would
lead a reasonable person to believe that the sub-
stance is a controlled substance; or
(3) By overall dosage unit appearance, including
shape, color, size, markings, or lack of markings,
taste, consistency, or any other identifying
physical characteristic of the substance, would
lead a reasonable person to believe the substance
is a controlled substance;
commits dealing in a substance represented to be
a controlled substance, a Class D felony.
IND . C ODE § 35-48-4-4.5(a). We turn now to the interac-
tion between this state-law conviction and the district
court’s calculation of the guidelines range for Hudson’s
federal case.
II
Hudson pleaded guilty to one count of possessing a
firearm as a felon and one count of possessing a firearm
knowing or having reason to believe it was stolen.
See 18 U.S.C. § 922(g)(1) & (j). Pursuant to U.S.S.G.
§ 2K2.1(a)(6), the base level for prohibited persons con-
victed of a firearms offense would be 14. If the defendant
committed the firearms offense after being convicted of
a felony-level controlled-substance offense, however,
the guidelines provide for a base level of 20. U.S.S.G.
§ 2K2.1(a)(4)(A). Hudson’s rap sheet places him in
criminal history category III, meaning that a previous
conviction for a controlled-substance offense would
6 No. 09-3518
move him from a guidelines range of 37 to 46 months’
imprisonment (base level 14) to a recommended sentence
of 70 to 87 months (base level 20). Finding that Hudson
was convicted of a controlled substance offense—the
Indiana look-alike crime—the district court concluded
that the latter range applied and that 72 months’ impris-
onment represented a just sentence.
Hudson does not challenge the district court’s mathe-
matical computation of the guidelines range or the
substantive reasonableness of his sentence. Rather, his
appeal focuses on the narrow question whether the
district court was correct to assign him a base level of
20, relying on the look-alike drug conviction as a prior
controlled-substance offense.
The logic of the district court (and the government) is
straightforward. The application notes to the relevant
guideline provide that the term “controlled substance
offense” takes the meaning given in U.S.S.G. § 4B1.2. See
U.S.S.G. § 2K2.1 n.1. Section 4B1.2 defines the term “con-
trolled substance offense” as:
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counter-
feit substance) or the possession of a controlled sub-
stance (or counterfeit substance) with the intent to
manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). This definition lays out our guide-
posts: controlled-substance offenses include state-law
offenses related to controlled or counterfeit substances
No. 09-3518 7
punishable by imprisonment for a term exceeding one
year. Hudson was convicted of an Indiana offense
related to a substance masquerading as a controlled sub-
stance, not under Indiana’s law addressing counterfeit
substances. The federal guideline, however, does not de-
fine the term “counterfeit substance.” There is no reason
why the guidelines must be restricted to a particular
state’s concept of what is meant by that term. Viewed
broadly, what Hudson sold could be seen as a “counter-
feit” version of an illegal drug. See M ERRIAM-W EBSTER’S
C OLLEGIATE D ICTIONARY 285 (11th ed. 2005) (defining
“counterfeit” as “made in imitation of something else
with intent to deceive: forged”). See also United States v.
Mills, 485 F.3d 219, 222 (4th Cir. 2007) (citing the
O XFORD E NGLISH D ICTIONARY and B LACK ’ S L AW D ICTIO -
NARY, and concluding that a Maryland look-alike offense
qualifies as a controlled-substance offense under the
guidelines because it dealt with a substance “made in
imitation of” a controlled substance). Conviction of
the Indiana look-alike offense is punishable by impris-
onment for a term exceeding one year. See IND. C ODE § 35-
50-2-7(a) (“A person who commits a Class D felony shall
be imprisoned for a fixed term of between six (6) months
and three (3) years . . . .”). Using an independent
federal definition of the term thus supports the conclu-
sion that Hudson was convicted of a controlled-sub-
stance offense for dealing counterfeit marijuana.
Hudson asks us to look more deeply into the meaning
of “counterfeit substance” and to reject the govern-
ment’s “plain meaning” argument. Neither section of the
Sentencing Guidelines described above defines the term
8 No. 09-3518
“counterfeit substance.” If we look at the Sentencing
Guidelines as a whole, however, we find that the Com-
mission has defined the term “counterfeit substance”
elsewhere. In the section of the guidelines establishing
the punishment for drug crimes, U.S.S.G. § 2D1.1, the
application notes provide:
The statute [21 U.S.C. § 841] and guideline also
apply to “counterfeit” substances, which are defined
in 21 U.S.C. § 802 to mean controlled substances that
are falsely labeled so as to appear to have been legiti-
mately manufactured or distributed.
U.S.S.G. § 2D1.1 n.2. This note is a shorthand version of
the statutory definition of “counterfeit substance,” 21
U.S.C. § 802, which we have quoted in full above. This
statutory definition, as we also noted, is substantively
similar to the definition of that term in Indiana law, IND.
C ODE § 35-48-1-10. These definitions demonstrate that, at
least for some purposes, both federal law and Indiana
law consider the category “counterfeit substances” to
exclude look-alikes. Hudson asks us to incorporate this
definition into U.S.S.G. § 4B1.2(b) and, correspondingly,
into U.S.S.G. § 2K2.1. See United States v. Crittenden, 372
F.3d 706, 711-14 (5th Cir. 2004) (Dennis, J., concurring
in part and dissenting in part) (arguing for this position
with respect to Texas’s look-alike offense).
Counsel for Hudson presented a responsible argu-
ment, which has convinced some judges that look-alike
offenses are not controlled-substance offenses. His posi-
tion may be worth the attention of the Sentencing Com-
mission or other courts. But, in the end, we are not per-
No. 09-3518 9
suaded. To begin with, we are not writing on a blank
slate. At least four of our sister circuits have adopted the
government’s intuitive interpretation of the Sentencing
Guidelines and have classified look-alike offenses as
controlled-substance offenses. See Mills, 485 F.3d 219;
United States v. Robertson, 474 F.3d 538 (8th Cir. 2007);
Crittenden, 372 F.3d 706; United States v. Evans, 358 F.3d
1311 (11th Cir. 2004); but see Crittenden, 372 F.3d at 710-14
(Dennis, J., concurring in part and dissenting in part);
United States v. Frazier, 89 F.3d 1501, 1508-10 (11th Cir.
1996) (Godbold, J., concurring in part and dissenting in
part).
But our conclusion is supported by more than our
desire to avoid creating a conflict among the circuits. See
C IR. R. 40(e). The Sentencing Commission frequently
makes use of an explicit cross-reference to incorporate one
provision or definition into another. See, e.g., U.S.S.G.
§ 2D1.1 n.3 (drawing the definitions of “dangerous
weapon” and “firearm” from the Commentary to U.S.S.G.
§ 1B1.1); U.S.S.G. § 2D1.1 n.5 (defining “analogue” by
incorporating the definition of “controlled substance
analogue” from 21 U.S.C. § 802(32)). See also U.S.S.G.
§ 1B1.5 (setting the rules of interpretation for internal
cross-references). Indeed, the Commission’s definition
of “controlled substance offense” appears in this case
only through a cross-reference. See U.S.S.G. § 2K2.1 n.1
(referring to § 4B1.2(b)). Yet there is no cross-reference
to the definition of “counterfeit substance” in application
note 2 of § 2D1.1, which applies to Hudson’s sentence.
We must give meaning to the Sentencing Commission’s
silences as well as its words.
10 No. 09-3518
Furthermore, although we do not find the policy argu-
ments to be one-sided, there are practical reasons
to accept the government’s definition. The govern-
ment has a point when it argues that it would be non-
sensical to punish the selling of controlled substances
and mislabeled prescription drugs but not the selling of
look-alikes. Look-alike drug transactions impose many
of the same externalities as controlled-substance transac-
tions. See, e.g., Crittenden, 372 F.3d at 709-10. The Supreme
Court has commented that, for some illegal drugs in-
cluding marijuana, there exists an “established, albeit
illegal, interstate market.” See Gonzales v. Raich, 545 U.S.
1, 18 (2005). We agree with the government that it would
be odd to read the Sentencing Guidelines to exclude
prior convictions that contribute to that illegal market,
even if the underlying conduct involved a look-alike.
Although we can imagine reasons for the distinction that
Hudson advances—e.g., that the Commission focused on
inherently dangerous substances rather than illegal
markets—we find the government’s theory persuasive,
especially in light of the mounting weight of appellate-
court decisions on its side.
Finally, the government draws our attention to the
reference in the guidelines to “federal or state” controlled-
substance offenses. The government reads this as a
signal that the district courts should count all state of-
fenses, including look-alike crimes. Many of the courts
of appeals have accepted this view. See, e.g., Mills, 485
F.3d at 223-24. With respect, we do not find this argu-
ment very helpful. The reference to federal or state law
says nothing about the definition of a “counterfeit sub-
No. 09-3518 11
stance,” and for all we know the Commission intended
to adopt Congress’s definition of “counterfeit substance”
and to respect the distinction many states (including
Indiana) acknowledge between something with a false
label of origin and something that is actually not a con-
trolled substance. Yet this does not mean that the gov-
ernment’s reading is unsupportable. Indeed, we find it
to be the best option for understanding this provision.
Given the natural meaning of “counterfeit” and the
overall purpose of the guidelines provisions, we decline
to adopt Hudson’s narrow definition of “counterfeit
offense” as applied to U.S.S.G. § 2K2.1.
For these reasons, the judgment of the district court
is A FFIRMED.
8-24-10