United States v. Mills

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4776
ANDRE MILLS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:05-cr-00419-CCB)

Argued: March 12, 2007

Decided: May 7, 2007

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Michael and Judge King joined.

COUNSEL

ARGUED: John Hanjin Chun, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Jonathan Biran, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, Sarah S. Gannett,
Staff Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States
2 UNITED STATES v. MILLS
Attorney, Michael C. Hanlon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.

OPINION

WILKINSON, Circuit Judge:

This case presents the question of whether a conviction for a simu-
lated controlled substance qualifies as a "controlled substance
offense" under United States Sentencing Guidelines Section 2K2.1.
Defendant Andre Mills pled guilty to possession of ammunition by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000). The dis-
trict court enhanced Mills’ sentence on the grounds that his conviction
for distributing simulated drugs was a "counterfeit substance" offense
and thus a "controlled substance offense" within the meaning of
§ 2K2.1. On appeal, Mills argues that his prior simulated drug convic-
tion is not a "controlled substance offense" because simulated drugs
are not a "counterfeit substance" as defined by the Controlled Sub-
stances Act, 21 U.S.C. § 802(7) (2000). Because the Guidelines’ pro-
visions at issue here do not reference 21 U.S.C. § 802(7), and because
the plain meaning of an undefined term controls in the absence of
such a cross-reference, we find Mills’ argument to be without merit
and now affirm.

I.

This case arises out of a routine traffic stop in which Baltimore
City police stopped and obtained consent to search the vehicle driven
by Andre Mills. The officers recovered 120 rounds of Wolf FMJ-type
7.62 x 39 caliber ammunition — suitable for certain types of assault
rifles — from inside Mills’ trunk. Mills waived his Miranda rights
and voluntarily told the officers that the ammunition went with an
assault rifle that he kept at his clothing store, "Moonwear."

After obtaining a warrant, a team of officers searched the clothing
store. The search team recovered a number of firearms from "Moon-
wear," including: an AR-15 assault rifle; a Taurus 9 millimeter hand-
 UNITED STATES v. MILLS 3
gun; a Taurus .357 revolver; a 12-gauge "Maverick" shotgun; and a
9 millimeter Smith and Wesson handgun. In addition to the weapons,
the search team discovered a stockpile of ammunition and a number
of firearms-related items, including: two magazine speed loaders; pis-
tol grips; a pistol laser sight; a 12-gauge Sidewinder conversion kit;
and a side saddle shotgun shell holster.

Mills was indicted for possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1). He subsequently waived indict-
ment and pled guilty to an information charging him with unlawful
possession of ammunition by a convicted felon, also in violation of
18 U.S.C. § 922(g)(1).

The Presentence Investigation Report detailed an extensive crimi-
nal history with a number of prior arrests and convictions, many for
drug-related conduct, and recommended (over Mills’ objection) a
base offense level of 24. The PSR grounded its offense-level recom-
mendation on Sentencing Guideline § 2K2.1(a)(2) which calls for a
base level offense of 24 when a defendant has two prior felony con-
victions for either a "crime of violence" or a "controlled substance
offense." See U.S.S.G. § 2K2.1 (2006). According to the PSR, Mills
had two prior Maryland felony convictions which qualified him for
a § 2K2.1(a)(2) sentencing enhancement: Possession with Intent to
Distribute Look-A-Like Controlled Dangerous Substances and Resist-
ing Arrest.

On July 7, 2006, the district court conducted a sentencing hearing
and found the predicates for a § 2K2.1 sentencing enhancement to be
met. The court held that the "plain meaning" of a "counterfeit sub-
stance" offense as that term is used in Section 4B1.2 includes a simu-
lated drug conviction like Mills’. The court thus applied the sentence
enhancement, arrived at a base offense level of 24, and sentenced
Mills to 70 months of imprisonment.

Mills now appeals this sentence. He argues that the district court
erred in enhancing his sentence pursuant to United States Sentencing
Guideline Section 2K2.1 and that the proper base offense level for his
offense is 20, not 24. Mills concedes that resisting arrest is a "crime
of violence" and thus a qualifying predicate offense for a Section
2K2.1 enhancement, but claims that his second offense — the Mary-
4 UNITED STATES v. MILLS
land look-a-like narcotics conviction — is not a predicate "controlled
substance offense" under § 2K2.1.

II.

Section 2K2.1 provides the legal framework for calculating an
offense level for the unlawful possession of firearms or ammunition
in violation of, inter alia, 18 U.S.C. § 922(g)(1). This provision dic-
tates a base offense level of 24 for defendants who are convicted as
felons in possession of firearms or ammunition if:

the defendant committed any part of the instant offense sub-
sequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense.

U.S.S.G. § 2K2.1(a)(2). Section 2K2.1 defines the term "controlled
substance offense" in reference to the "meaning given that term in
§ 4B1.2(b)." Id. (application note 1). Section 4B1.2(b), in turn,
defines "controlled substance offense" as:

[A]n 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 counterfeit substance) or the
possession of a controlled substance (or counterfeit sub-
stance) with intent to manufacture, import, export, distrib-
ute, or dispense.

U.S.S.G. § 4B1.2(b) (emphasis added).

A.

In the case at hand, Mills was convicted of selling imitation narcot-
ics in violation of Section 286B of Article 27 of the Maryland Code.
Because this provision criminalizes the distribution of fake, rather
than genuine, narcotics we must decide whether a conviction for sim-
ulated narcotics is one involving a "counterfeit substance" under
§ 4B1.2(b). The Guidelines do not, however, define the term "coun-
terfeit substance" as employed in Section 4B1.2(b).
 UNITED STATES v. MILLS 5
It is a cornerstone of statutory interpretation that an undefined term
is construed "in accordance with its ordinary or natural meaning."
FDIC v. Meyer, 510 U.S. 471, 476 (1994); see Lopez v. Gonzales, ___
U.S. ___, 127 S. Ct. 625, 630 (2006); Smith v. United States, 508 U.S.
223, 228 (1993); United States v. Mitchell, 39 F.3d 465, 468 (4th Cir.
1994). Because the Guidelines do not define "counterfeit substance,"
we turn to this cardinal principle of statutory construction, which
applies with equal force to the United States Sentencing Guidelines.
United States v. Rouse, 362 F.3d 256, 262 (4th Cir. 2004); see United
States v. John, 935 F.2d 644, 646 (4th Cir. 1991).

The adjective "counterfeit" ordinarily means "[m]ade in imitation
of something else . . . not genuine." Oxford English Dictionary Vol.
III 1027 (2d ed. 1989); see also Black’s Law Dictionary 376 (8th ed.
2004) (defining "counterfeit" as "an imitation intended to pass for an
original"). Thus, for the purposes of a Section 2K2.1 sentencing
enhancement (or career offender status), a substance "made in imita-
tion of" a controlled substance is a "counterfeit substance."

At the time of Mills’ conviction, Maryland’s look-a-like drug stat-
ute, entitled, "Possession with Intent to Distribute Look-A-Like Con-
trolled Dangerous Substances," provided:

(b) A person may not distribute, attempt to distribute or
possess with intent to distribute a noncontrolled substance
upon the representation that the substance is a controlled
dangerous substance.

(c) It is unlawful for a person to distribute, attempt to dis-
tribute or possess with intent to distribute, any noncontrolled
substance intended by that person for use or distribution as
a controlled dangerous substance or under circumstances
where one reasonably should know that the noncontrolled
substance will be used or distributed for use as a controlled
dangerous substance.

MD. CODE ANN., Crim. Law, art. 27, § 286B (1957) (current version
at MD. CODE ANN., Crim. Law, § 5-617 (2002)).
6 UNITED STATES v. MILLS
A conviction under Section 286B of Article 27 of the Maryland
Code plainly qualifies as a "counterfeit substance" conviction under
Guideline § 4B1.2(b). The Maryland law punishes persons who dis-
tribute, attempt to distribute, or possess with intent to distribute a non-
controlled substance "made in imitation" of a controlled dangerous
substance. See Oxford English Dictionary Vol. III 1027 (2d ed. 1989).
Since the "plain meaning" of "counterfeit substance" includes simu-
lated controlled substances — like the purported heroin and cocaine
trafficked by Mills — Mills’ conviction is a "controlled substances
offense" and a predicate felony for the purposes of a 2K2.1 sentenc-
ing enhancement.

B.

Defendant does not dispute that his simulated drug conviction is a
"counterfeit substance" offense as that term is ordinarily understood.
He argues instead that "counterfeit substance" should be defined in
reference to the Controlled Substances Act, 21 U.S.C. § 802(7). That
provision speaks to the mislabeling and mispackaging of genuine con-
trolled substances, not to the distribution of counterfeit controlled
substances. It defines a "counterfeit substance" as:

[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 thereof, of a manufacturer, distributor, or
dispenser other than the person or persons who in fact man-
ufactured, distributed, or dispensed such substance and
which thereby falsely purports or is represented to be the
product of, or to have been distributed by, such other manu-
facturer, distributor, or dispenser.

21 U.S.C. § 802(7). Defendant’s attempt to incorporate this definition
suffers from a fatal flaw: Neither of the Guidelines’ provisions at
issue here make any reference whatsoever to 21 U.S.C. § 802(7).

This omission is significant because the Sentencing Commission
clearly knows how to cross-reference when it wants to. Guideline
drafters have, in fact, transformed the technique into something of an
art: The Sentencing Guidelines are a veritable maze of interlocking
 UNITED STATES v. MILLS 7
sections and statutory cross-references. And the Guidelines at issue
here are no exception. Section 4B1.2 expressly references a number
of statutes. It defines "crime of violence" to include unlawful posses-
sion of a firearm as described in 26 U.S.C. § 5845(a). U.S.S.G.
§ 4B1.2 (application note 1). Likewise, Section 4B1.2 defines "con-
trolled substances offense" to include (1) unlawful possession of a
listed chemical in violation of 21 U.S.C. § 841(d)(1); (2) unlawful
possession of controlled substances manufacturing equipment in vio-
lation of 21 U.S.C. § 843(a)(6); (3) maintenance of a place for facili-
tating a drug offense in violation of 21 U.S.C. § 856; and (4) use of
a communications facility in aid of a drug offense in violation of 21
U.S.C. § 843(b). Id. For its part, § 2K2.1 incorporates by express ref-
erence the definition of "ammunition" found at 18 U.S.C.
§ 921(a)(17)(A); the definition of "firearm" found at 18 U.S.C.
§ 921(a)(3); and the definition of "destructive device" found at 26
U.S.C. § 5845(f). U.S.S.G. § 2K2.1 (application note 1).

Indeed, in a separate provision of the Sentencing Guidelines, the
Commission makes express reference to § 802(7)’s definition of
"counterfeit." Section 2D1.1, which provides the sentencing frame-
work for drug-related offenses, states that the provision "also appl-
[ies] to ‘counterfeit’ substances, which are defined in 21 U.S.C.
§ 802." U.S.S.G. § 2D1.1 (application note 2). In stark contrast, nei-
ther Section 2K2.1 nor Section 4B1.2 makes any reference to 21
U.S.C. § 802(7).

We cannot presume this omission to be inadvertent. Where the
Commission "includes particular language in one section of a [Guide-
line] but omits it in another section . . . it is generally presumed that
[the Commission] acts intentionally and purposely in the disparate
inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23
(1983). So too here. Had the Commission intended for 21 U.S.C.
§ 802(7) to apply, it had only to say so. But it did not and we decline
Mills’ invitation to supply a cross-reference of our own.

Further, to bootstrap the federal definition of "counterfeit sub-
stance" into the Sentencing Guidelines "would violate the ‘settled rule
that a statute must, if possible, be construed in such fashion that every
word has some operative effect.’" United States v. Robertson, 474
F.3d 538, 540 n.2 (8th Cir. 2007) (quoting United States v. Nordic
8 UNITED STATES v. MILLS
Vill., Inc., 503 U.S. 30, 36 (1992)). Because the Controlled Sub-
stances Act defines a "counterfeit substance" as "a controlled sub-
stance," see 21 U.S.C. § 802(7), to use the federal definition "of
counterfeit substance would effectively read out the word ‘or’ in the
phrase ‘controlled substance (or counterfeit substance)’ used twice in
§ 4B1.2." Robertson, 474 F.3d at 540 n.2.

That Congress defines "counterfeit substance" under federal law
differently than a state may choose to define the term under state law
is not evidence that the Commission intended for something other
than the plain meaning of "counterfeit" to apply in Section 4B1.2.
Indeed, to apply the federal definition of "counterfeit" here would
completely read the word "state" out of Section 4B1.2. But the Sen-
tencing Commission, by specifying that federal and state violations
serve as predicate offenses for career offender status, clearly intended
for repeat offenders of both state and federal counterfeit crimes to be
subject to an enhanced sentence. See U.S.S.G. § 4B1.2(b). It is, more-
over, routine for states to criminalize conduct that carries no penalty
under federal law. And, of course, the state police power is not
grounded in a requirement that a parallel provision of federal law also
criminalize a defendant’s conduct.

Here, defendant places great reliance on the fact that both Mary-
land and federal law distinguish between look-a-like drugs and coun-
terfeit substances — from this defendant concludes that "counterfeit"
is a "term of art." But, if Congress had wished to define counterfeit
in reference to a limited technical term, it would have included a
cross-reference to § 802(7), as it did elsewhere. See U.S.S.G. § 2D1.1
(application note 2). Further, there are many reasons to believe that
Congress did not intend "counterfeit" to be construed in the limited,
term-of-art sense suggested by defendant. To ascribe such a meaning
to "counterfeit" would subject a defendant to an enhanced sentence
based upon a prior conviction for the improper labeling of pharma-
ceuticals, but not for the distribution of simulated cocaine. This mean-
ing makes no sense in the context of the career offender Guidelines
— the whole purpose of which is to provide longer sentences for per-
sons who are repeatedly convicted of violent or drug-related offenses.
See U.S.S.G. § 4B1.1 (background).

Our conclusion that the definition of "controlled substance offense"
found in Section 4B1.2(b) encompasses look-a-like drug convictions
 UNITED STATES v. MILLS 9
is supported by the case law. Every court to consider the issue has
concluded, as we now hold, that state simulated or look-a-like drug
convictions are "counterfeit substance" offenses under Section
4B1.2(b). See, e.g., Robertson, 474 F.3d at 543 (holding prior Illinois
conviction for manufacture or distribution of "look-a-like" substance
a "controlled substance offense"); United States v. Crittenden, 372
F.3d 706 (5th Cir. 2004) (holding prior Texas conviction for delivery
of simulated controlled substance a "controlled substance offense");
United States v. Evans, 358 F.3d 1311 (11th Cir. 2004) (holding prior
conviction involving delivery of chalk, rather than cocaine, a "con-
trolled substance offense").

C.

In a last effort to avoid the logical consequences of the Guidelines’
omission of any reference to § 802(7), Mills argues that simulated
drug convictions do not qualify as predicate offenses under the career
offender Sentencing Guidelines because those crimes are not enumer-
ated in Section 994(h) of Title 28. That provision, which authorizes
the Sentencing Commission to formulate the career offender provi-
sions of the Sentencing Guidelines, provides that the offenses
described within the Controlled Substances Act, see 21 U.S.C. § 841,
qualify as predicate offenses. 28 U.S.C. § 994(h) (2000). Mills thus
claims, because the Controlled Substances Act does not regulate the
distribution of simulated controlled substances, that Section 994(h)
evidences Congress’ intent to exclude look-a-like convictions from
the career offender Guidelines.

We disagree. The fact that Congress delineated some crimes that
qualify as predicate offenses under Section 4B1.1 does not prohibit
the Sentencing Commission from promulgating guidelines that reach
other offenses too. To the contrary, the Commission has authority to
"depart, as need be, from the Controlled Substances Act’s definition
of controlled substance offense (and, in turn, counterfeit controlled
substance), in order to avoid sentencing disparities." Crittenden, 372
F.3d at 709. As the background notes to Section 4B1.1 explain, such
modification is consistent with the Commission’s "general guideline
promulgation authority under 28 U.S.C. § 994(a)-(f), and its amend-
ment authority under 28 U.S.C. § 994(o) and (p)." U.S.S.G. § 4B1.1
(background).
10 UNITED STATES v. MILLS
Moreover, to adopt defendant’s view — that only those offenses
listed in Section 994(h) qualify as predicate offenses for purposes of
Section 4B1.1 — would mean that the Commission had exceeded its
authority by including other narcotics-related offenses. See Critten-
den, 372 F.3d at 709. To begin with, Section 994(h) makes no men-
tion of state drug offenses at all; but no one disputes that state law
convictions for violent felonies and controlled substance felonies are
within the ambit of the career offender Guidelines. Likewise, defen-
dant’s reading of the statute would invalidate the Commission’s inclu-
sion of "the offenses of aiding and abetting, conspiring, and
attempting to commit" controlled substance offenses, see U.S.S.G.
§ 4B1.2 (application note 1), since those offenses are altogether
absent from the dictates of Section 994(h). In light of the Commis-
sion’s authority to modify the guidelines in order to "avoid unwar-
ranted sentencing disparities" and to "focus more precisely" on
"recidivist offenders," U.S.S.G. § 4B1.1 (background), we decline
defendant’s invitation to so substantially rewrite the career offender
provisions of the Sentencing Guidelines.

III.

There is simply no reason to assume that the Commission meant
something different than the plain meaning of "counterfeit" in the
career offender provisions of the Sentencing Guidelines. The purpose
of the career offender Guidelines is to ensure that "substantial prison
terms" are imposed "on repeat violent offenders and repeat drug traf-
fickers." See U.S.S.G. § 4B1.1 (background) (quoting S. Rep. No.
225, 98th Cong., 1st Sess. 175 (1983)). Thus, "Section 994(h) of Title
28 . . . mandates that the Commission assure that certain ‘career’
offenders receive a sentence of imprisonment ‘at or near the maxi-
mum term authorized.’" Id. (quoting 28 U.S.C. § 994(h)).

To construe Section 2K2.1 to impose a heightened base offense
level upon a prior conviction for the sale of an improperly labeled
pharmaceutical, but not for the sale of imitation cocaine, makes no
sense in the context of the career offender Guidelines. There are, in
fact, a number of good reasons for the Commission to include persons
who distribute simulated drugs within the class of recidivist offenders
subject to longer terms. To begin with, the "sale of simulated con-
trolled substances carries with it the same dangers of violence as the
 UNITED STATES v. MILLS 11
sale of a controlled substance, as well as many, if not most, of the
numerous other egregious harms flowing from such sales." Critten-
den, 372 F.3d at 709-10. In both instances, there is no small danger
of, for example, retaliation by disgruntled customers, turf warfare,
street rivalry, and robbery attempts or other criminal activity by cus-
tomers or competitors. Indeed, simulated drug purchasers will not
generally know that a substance they are purchasing is fake. And, in
the event an imitation is discovered, the risk of violence may well
increase, rather than decrease.

This case is a good example. On June 29, 1999, Baltimore City
police observed Mills engaging in what looked to be a classic street-
level drug transaction. Mills was approached by customer after cus-
tomer; after a brief conversation, he would duck into a side alley to
retrieve his illegal product, which he exchanged for cash in a hand-to-
hand transaction. Since Mills’ conduct was indistinguishable from a
"real" controlled substance violation, it necessarily involved many, if
not all, of the dangers associated with "real" drugs.

Indeed, the Maryland General Assembly promulgated the provision
at issue in this case in an effort to remedy many of the same problems
associated with genuine narcotics. The Maryland legislature was
aware that the proliferation of look-a-like substances had become a
"real threat to . . . young people" and had rendered the identification
of real controlled substances difficult. See Robinson v. Maryland, 702
A.2d 741, 751 & n.16 (Md. 1997).

To hold that look-a-like drug convictions are not predicate offenses
for purposes of the career offender Guidelines would run afoul of
Congress’ mandate to "avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct." 18 U.S.C. § 3553(a)(6) (2000). Drug traffickers who hap-
pen to have look-a-like drugs on hand when they are arrested would
be subject to much lower sentences. But, as this case illustrates,
defendants who are convicted of selling fake drugs and defendants
who are convicted of selling genuine narcotics "have been found
guilty of similar conduct." Id. To fail to recognize this similarity
would create an "unwarranted sentencing disparit[y]" of the sort Con-
gress and the Commission have sought to avoid.
12 UNITED STATES v. MILLS
IV.

For the foregoing reasons, Mills’ sentence is affirmed.

AFFIRMED