United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 1, 2004
Charles R. Fulbruge III
No. 02-41339 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL KEITH CRITTENDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges
RHESA HAWKINS BARKSDALE, Circuit Judge:
Darrell Keith Crittenden, who pleaded guilty in March 2002 to
knowingly and intentionally possessing an illegal drug, with intent
to distribute, appeals his sentence, primarily challenging being
classified as a career offender under Sentencing Guidelines §
4B1.1. For that classification, at issue is whether Crittenden’s
previous Texas conviction for delivery of a simulated controlled
substance qualifies under § 4B1.1 as one of the requisite two
controlled substance offenses. AFFIRMED.
I.
After Crittenden was arrested in Texas, in February 2002,
cocaine was found in his vehicle. Crittenden pleaded guilty to
possession, with intent to distribute, 77 grams of cocaine base, a
Schedule II controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A).
Previously, Crittenden had been convicted for two offenses
under Texas law: delivery of a simulated controlled substance in
1994; and delivery of a controlled substance in 1996. Based on
these prior convictions, the district court found (over
Crittenden’s objection) that Crittenden was a career offender under
the Guidelines, resulting in a substantial increase in his
sentence. He was sentenced, inter alia, to 210 months’
imprisonment.
II.
Crittenden presents two challenges to his sentence. First,
claiming that his previous conviction for delivery of a simulated
controlled substance is not a controlled substance offense under
the Guidelines, he contests being classified as a career offender.
Second, claiming a conflict between the judgment and oral sentence
pronouncement, he maintains his sentence must be reformed to
conform to the latter.
A.
Application of the Guidelines is reviewed de novo. E.g.,
United States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003). They
provide for career offender status
if (1) the defendant was at least eighteen
years old at the time the defendant committed
the instant offense of conviction, (2) the
instant offense of conviction is a felony that
2
is either a crime of violence or a controlled
substance offense, and (3) the defendant has
at least two prior felony convictions of
either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1 (2001) (emphasis added). The only factor at issue
is whether the 1994 Texas conviction for delivery of a simulated
controlled substance is a Guidelines controlled substance offense.
Guidelines § 4B1.2 defines such an offense as one
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 counterfeit
substance) or the possession of a controlled
substance (or counterfeit substance) with
intent to manufacture, import, export,
distribute, or dispense.
Id. § 4B1.2(b) (emphasis added). The Guidelines, however, do not
define “counterfeit substance” as used in § 4B1.2. The Government
contends that a simulated controlled substance offense is a
counterfeit controlled substance offense for Guidelines’ purposes.
Whether one offense equates with the other is a question of first
impression in our circuit. (Our court addressed this issue in an
unpublished opinion, United States v. Franklin, No. 97-40160 (5th
Cir. 18 Aug. 1997); there, however, the Government conceded that
the simulated controlled substance offense was not a controlled
substance offense.)
With little analysis, two other circuits (Eighth and Eleventh)
have addressed this issue. In United States v. Frazier, 89 F.3d
3
1501, 1505 (11th Cir. 1996), a split panel held a Florida statute
prohibiting “any person to ... in any manner offer to unlawfully
sell to any person a controlled substance ... and then sell to such
person any other substance in lieu of such controlled substance”
was a controlled substance offense under Guidelines § 4B1.1. See
also United States v. Evans, 358 F.3d 1311 (11th Cir. 2004) (citing
Frazier and holding a conviction involving the delivery of chalk
rather than cocaine was a controlled substance offense under
§4B1.1). Frazier cited United States v. Hester, 917 F.2d 1083,
1085 (8th Cir. 1990), where a divided panel held an offense
characterized as a misdemeanor under California law was a felony
under § 4B1.1 because it was punishable by more than one year’s
imprisonment. The Hester majority appears to have implicitly
decided that a conviction under the California statute prohibiting
the sale of a substance, in lieu of a controlled substance, was a
counterfeit controlled substance offense under § 4B1.1. Id. at
1084, 1086 (referring to the conviction as one for selling a
counterfeit controlled substance, whereas the language of the
statute (quoted only by the dissent) prohibited sale of a substance
in lieu of a controlled substance). More recently, the Eighth
Circuit, in dicta, noted that the Government had not appealed the
ruling that sale of a simulated controlled substance (baking soda)
was not a controlled substance offense under the Guidelines.
United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000).
4
“It is well established that our interpretation of the
Sentencing Guidelines is subject to the ordinary rules of statutory
construction. If the language of the guideline is unambiguous, our
inquiry begins and ends with the plain meaning of that language.”
United States v. Carbajal, 290 F.3d 277, 283 (5th Cir. 2002)
(citation omitted). See also United States v. Solis-Campozano, 312
F.3d 164, 166 (5th Cir. 2002); United States v. Boudreau, 250 F.3d
279, 285 (5th Cir. 2001).
For its ordinary, plain meaning, “counterfeit” is defined as
“made in imitation of something else with intent to deceive:
forged”. WEBSTER’S NEW COLLEGIATE DICTIONARY 297 (9th ed. 1991). See
also BLACK’S LAW DICTIONARY 354 (7th ed. 1999) (“to forge, copy or
imitate (something) without a right to do so and with the purpose
of deceiving or defrauding”). Essentially, the plain meaning of
counterfeit has two components: made in imitation; and intent to
deceive.
The Texas law under which Crittenden was convicted defines a
simulated controlled substance as one “that is purported to be a
controlled substance, but is chemically different from the
controlled substance it is purported to be”. TEXAS HEALTH & SAFETY
CODE ANN. § 482.001(4) (Vernon 2003). For example, under Texas law,
flour packed to resemble cocaine is a simulated controlled
substance. E.g., Rodriguez v. State, 879 S.W.2d 283 (Tex. App.
1997, pet. ref’d).
5
Therefore, looking to the two components of counterfeit: a
substance “purported to be a controlled substance”, but which is
not such a substance, is necessarily “made in imitation of
something else”; and a harmless substance would not be purported to
be a controlled substance without “inten[ding] to deceive”.
Accordingly, a Texas conviction for delivery of a simulated
controlled substance satisfies both components of the plain meaning
of “counterfeit” as used in the Guidelines.
On the other hand, although the Guidelines do not define a
counterfeit controlled substance, the Controlled Substance Act, 21
U.S.C. § 801, et seq., defines this term in a far more restricted
manner than its plain meaning. For the Controlled Substances Act,
a counterfeit substance is
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 manufactured,
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 manufacturer,
distributer, or dispenser.
21 U.S.C. § 802(7).
The Texas simulated controlled substance offense does not
require that the purported controlled substance have any
identifying marks or otherwise misrepresent its manufacturing
origin. As discussed, a Texas simulated controlled substance
6
offense requires only that the substance be in imitation of a
controlled substance. Therefore, under the more narrow definition
in the federal Controlled Substances Act, the elements for a Texas
simulated controlled substance offense do not equal those for a
counterfeit controlled substance offense under the federal Act.
Nor do they equate with those for a “counterfeit substance”
under the Texas Controlled Substances Act. There, such a substance
is
a controlled substance that, without
authorization, bears or is in a container or
has a label that bears an actual or simulated
trademark, trade name, or other identifying
mark, imprint, number, or device of a
manufacturer, distributor, or dispenser other
than the person who in fact manufactured,
distributed, or dispensed the substance.
TEX. HEALTH & SAFETY CODE ANN. § 481.002(7) (Vernon 2003). This
definition of counterfeit substance is substantially similar to
that found in the Federal Controlled Substances Act; but, unlike
the federal definition, the Texas definition does not require that
the counterfeit substance “thereby falsely purports or is
represented to be the product of, or to have been distributed by,
such other manufacturer, distributer, or dispenser”. 21 U.S.C. §
802(7).
Along this line, the Guidelines’ § 4B1.1 background comments
for defining a career offender refer to 28 U.S.C. § 994(h), which
requires the Sentencing Commission to mandate near the maximum
sentence for those with previous convictions of two or more
7
specific kinds of felonies. One such felony is “an offense
described in section 401 of the Controlled Substances Act (21
U.S.C. 841)”. 28 U.S.C. § 994(h)(1)(B). Section 401 prohibits,
inter alia, distribution of counterfeit controlled substances, 21
U.S.C. § 841(a)(2); therefore, it is arguable that the Controlled
Substances Act’s definition of counterfeit is applicable to the
Guidelines. On the other hand, as noted, the Guidelines neither
define a counterfeit controlled substance offense nor specifically
incorporate the definition from the Controlled Substances Act.
The answer is found in those same Guidelines’ background
comments. They recognize that the Commission has modified §
994(h)’s definition of career offender in order “to avoid
‘unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar criminal conduct’”.
U.S.S.G. § 4B1.1 (background)(emphasis added). For example, §
994(h)(2)(B), identifying the type of convictions that qualify for
the requisite two prior convictions for career offender status,
does not list convictions under state law; on the other hand, they
are so listed in Guidelines § 4B1.1 (incorporating § 4B1.2(b)’s
definition of controlled substance offense, quoted supra (“offense
under federal or state law”; emphasis added)).
This reflects the Commission’s intent to depart, as need be,
from the Controlled Substances Act’s definition of controlled
substance offense (and, in turn, counterfeit controlled substance),
8
in order to avoid sentencing disparities. Accordingly, and because
Guidelines §§ 4B1.1 and 4B1.2 neither define the term counterfeit,
nor cross-reference the Controlled Substances Act for its
definition there (and, contrary to the Dissent at 4, do not
“effectively include []” it), we hold that our rules of statutory
interpretation govern. Therefore, we accord counterfeit its plain
meaning — made in imitation of something with intent to deceive.
Providing additional compelling support for applying the plain
meaning rule are quite obvious, strong policy reasons for
interpreting broadly a counterfeit controlled substance offense to
encompass a simulated controlled substance offense.
First, the sale of simulated controlled substances carries
with it the same dangers of violence as the sale of a controlled
substance, as well as many, if not most, of the numerous other
egregious harms flowing from such sales. E.g., Record Head Corp.
v. Sachen, 682 F.2d 672, 680 (7th Cir. 1982) (upholding against
challenge on other grounds ordinance prohibiting sale of simulated
controlled substances because they encourage illegal use of drugs
and should be prevented for health and safety of community); Fla.
Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d
1213, 1223 (11th Cir. 1982) (upholding ordinance prohibiting sale
of simulated controlled substances because they contribute to
atmosphere of community acceptance of illegal use of controlled
substances). We do not believe that the Guidelines intended to
9
omit this type offense in providing for enhanced sentences for
those with multiple drug-related convictions. See United States v.
Sampson, 140 F.3d 585, 589 (4th Cir. 1998) (stating that 21 U.S.C.
§ 841(a)(2), concerning counterfeit controlled substances, “seems
to have been designed to prosecute the unauthorized use of
controlled substances found in commercial settings such as
prescription drugs, not those sold in street deals”) For these
reasons, we disagree with the dissent’s position that a simulated
controlled substance offense is fundamentally different from a
counterfeit controlled substance offense.
Second, as discussed supra, the Guidelines’ definition of
controlled substance offense applies to both state and federal
offenses. The Texas offense for distribution of a simulated
controlled substance may have a different name or elements under
another State’s law; yet each offense may be similar. Again, one
purpose of the Guidelines is to treat similar offenses similarly.
B.
Crittenden next challenges the special condition in the
judgment that requires him to undergo mental health treatment. He
contends: the oral pronouncement of sentence did not include such
treatment; and, therefore, the judgment must be reformed to conform
with the oral pronouncement. E.g., United States v. Vega, 324 F.3d
798, 801 (5th Cir. 2003).
10
This claim is simply incorrect; Crittenden misreads the
record. At sentencing, after discussing the special condition that
Crittenden attend drug rehabilitation, the district court judge
noted: “We’ll also put in a requirement if your Probation Officer
feels it would be helpful [that] you’ll participate in any type of
mental health treatment program”.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
11
DENNIS, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s decision that Crittendon’s sentence
need not be reformed to remove the requirement that he undergo
mental health treatment. However, because Crittendon’s conviction
for delivery of a “simulated controlled substance” offense under
Texas law is not a “controlled substance offense” as defined in
U.S.S.G. § 4B1.2(b), I respectfully dissent from the majority’s
affirmance of the district court’s enhancement of his sentence
under U.S.S.G. § 4B1.1.
Under section 4B1.1 of the Sentencing Guidelines, a person
convicted of a “controlled substance offense” who has at least two
prior convictions for controlled substance offenses is a “career
offender” and must be sentenced accordingly. U.S.S.G. § 4B1.1
(2001). Section 4B1.2(b) of the Guidelines defines the term
“controlled substance offense” for career offender status 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 counterfeit
substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture,
import, export, distribute or dispense.
Id. § 4B1.2(b)(emphasis added). The federal Controlled Substance
Act in section 802(7) defines “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 manufactured, distributed,
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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 manufacturer,
distributor, or dispenser.
21 U.S.C. § 802(7)(emphasis added). In short, a counterfeit
substance is a controlled substance that has been incorrectly
labeled so as to misrepresent its manufacturer, distributor, or
dispenser. As the majority concedes, this definition of the term
“counterfeit substance” excludes Crittendon’s Texas state law
conviction for delivery of a “simulated controlled substance.”
The majority, however, ignores this definition and instead
uses a dictionary definition of the term “counterfeit” to find that
Crittendon’s simulated substance conviction is a “controlled
substance offense” under section 4B1.2(b). It claims that the
section 802(7) definition is inapplicable because it would result
in sentencing disparities among defendants with similar records.
However, because the section 802(7) definition of the term
“counterfeit substance” has been effectively incorporated into the
Guidelines, we are bound by this definition. Further, even if it
were not expressly incorporated, we are still required to use this
definition because the term “counterfeit substance” is a well-
established term of art within the realm of controlled substance
offenses. Finally, the majority’s concern about treating similar
offenses differently is unwarranted in these circumstances;
“simulated controlled substance” offenses are different from
controlled and counterfeit substance offenses because, unlike those
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offenses, “simulated controlled substance” offenses do not involve
controlled substances and are not illegal under federal law.
Although we generally apply the plain meaning of a term when
interpreting a statute, “[w]ords may have different meanings when
used in the context of a special subject, than they have in general
usage.” 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.27, at
335 (6th ed. 2000). This is particularly so when the term is
defined within a statutory scheme. See Stenberg v. Carhart, 530
U.S. 914, 942 (2000)(“When a statute includes an explicit
definition, we must follow that definition, even if it varies from
that term's ordinary meaning.”). Further, when context dictates
that a term has a particular definition, that definition will apply
instead of the plain meaning of the term. See A. Magnano Co. v.
Hamilton, 292 U.S. 40, 46-47 (1934)(providing that the words of an
Act “are to be given their ordinary meaning unless the context
shows that they are differently used”).
The section 802(7) definition of “counterfeit substance”
refers only to controlled substances that misidentify the
manufacturer, distributor, or dispenser of the controlled
substance. There is no dispute that this definition does not
criminalize a person’s possession of a noncontrolled substance that
he represents to be a controlled substance. As the majority
explains, this definition has been incorporated into the Sentencing
Guidelines. The Background Commentary to section 4B1.1 references
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28 U.S.C. § 994(h), which provides for sentencing enhancements for
persons convicted of counterfeit substance offenses under 21 U.S.C.
§ 841(a)(2). Section 841(a)(2) criminalizes counterfeit substance
offenses based on section 802(7)’s definition of the term
“counterfeit substance.” By referencing section 994(h), the
Commission effectively included the section 802(7) definition of
the term “counterfeit substance” within its Guidelines. Because
the term has a specific definition, we must use that definition
rather than the plain meaning of the term “counterfeit” in defining
“counterfeit substance.” See Stenberg, 530 U.S. at 942.
Moreover, even if the section 802(7) definition of the term
“counterfeit substance” was not directly incorporated into the
Guidelines, we would still be compelled to apply this definition
because it is well-established within the realm of controlled
substance offenses. The definition of “counterfeit substance”
utilized by federal law is also pervasive throughout state law.
The Uniform Controlled Substances Act (“UCSA”) describes the ban on
counterfeit substances as follows:
A person may not knowingly or intentionally manufacture
or deliver, or possess with intent to manufacture or
deliver, a controlled substance that, or the container or
labeling of which, without authorization, bears the
trademark, trade name or other identifying mark, imprint,
number, or device or a likeness thereof, of a
manufacture, distributor, or dispenser, other than the
person who manufactured, distributed, or dispensed the
substance.
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UNIFORM CONTROLLED SUBSTANCES ACT § 404(a) (1994). Again, this
definition identifies a counterfeit substance as a controlled
substance that has been mislabeled so as to misrepresent its
manufacturer, distributor, or dispenser. Because the USCA has been
substantially adopted in all fifty states and the District of
Columbia, it is not surprising that states similarly define the
term “counterfeit substance.” For instance, Texas, where
Crittendon was convicted of his “simulated controlled substance”
offense, defines “counterfeit substance” as:
[A] controlled substance that, without authorization,
bears or is in a container or has a label the bears an
actual trademark, trade name, or other identifying mark,
imprint, number, or device of a manufacturer,
distributor, or dispenser other than the person who in
fact manufactured, distributed, or dispensed the
substance.
TEX. HEALTH & SAFETY CODE § 481.002(7). Many other states also employ
a similar definition of the term “counterfeit substance.” See
e.g., LA. R.S. § 40:961(9) (defining “counterfeit substance”); MISS.
CODE ANN. § 41-29-105(g)(same).
Further, although it is not illegal under federal law to
possess or deliver a simulated controlled substance, the UCSA and
many states, including Texas, provide a separate offense for the
possession or delivery of a simulated or imitation controlled
substance. UNIFORM CONTROLLED SUBSTANCES ACT § 405(1994); TEX. HEALTH &
SAFETY CODE § 482.002; see e.g., LA. R.S. § 40:971.1(A); MISS. CODE
ANN. § 41-29-146. Under Texas law, a “simulated controlled
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substance” is defined as “a substance that is purported to be a
controlled substance, but is chemically different from the
controlled substance it is purported to be.” TEX. HEALTH & SAFETY CODE
§ 482.001(4); see also LA. R.S. § 40:961(20) (defining “imitation
controlled dangerous substance”). Thus, a simulated controlled
substance is not a controlled substance, it is simply a substance
that is wrongly represented to be a controlled substance. As the
Texas statutes illustrate, the term “counterfeit substance” has a
defined, well-established meaning distinct from the definition of
a “simulated” or “imitation” controlled substance offense.
Accordingly, we must apply this definition, rather than a
definition based on the plain meaning of the term “counterfeit.”
See Magnano, 292 U.S. at 46-47.
Finally, the majority incorrectly concludes that it must alter
the section 802(7) definition of “counterfeit substance” in order
to ensure that similar crimes are treated similarly. Even if we
were at liberty to depart from this definition, it is not warranted
here because simulated controlled substance offenses are different
from controlled or counterfeit substance offenses and thus need not
be treated similarly.
The Guideline Commission promulgated section 4B1.1 to fulfill
Congress’s mandate, as established through 28 U.S.C. § 994(h), to
enhance sentences for offenders who have repeatedly been convicted
of crimes of violence and federal drug offenses. In drafting
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section 4B1.1, the Guideline Commission acknowledged that it
amended the language in section 994(h) to “avoid ‘unwarranted
sentencing disparities among defendants with similar records who
have been found guilty of similar criminal conduct.’” U.S.S.G. §
4B1.1, cmt. background. Based on this, the majority concludes that
the Sentencing Commission intended to include offenses that would
not fall within the express language of section 994(h), noting that
the Guidelines include state law offenses, whereas section 994(h)
does not.1
Notwithstanding its effect on state law offenses duplicative
of federal offenses, this Background Commentary does not justify
departing from the established definition of “counterfeit
substance.” Simulated controlled substance offenses are not
similar to other controlled substance or counterfeit substance
offenses for one critical reason: simulated controlled substance
offenses do not involve controlled substances. Further, a
simulated controlled substance offense is different from those
types of crimes listed in section 994(h) because it is not a
federal crime to possess or sell a simulated controlled substance.
Thus, the rationale for including parallel state crimes is
inapplicable, and the Guideline Commission has provided us with no
1
The majority is correct that including state offenses
along with federal offenses does promote the Commission’s concern
with treating similar crimes similarly. Without adding state
offenses, a person convicted of two federal drug possession crimes
would receive a career offender enhancement, whereas a person with
two state drug possession charges would not.
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indication that it intended to include state convictions for acts
not mentioned within section 994(h). There is no reason to believe
that the Commission intended to depart from the well-established
statutory definition of “counterfeit substance” so as to include
simulated controlled substance offenses even though simulated
controlled substance offenses are not cognizable under federal law
and do not involve controlled substances.
The Sentencing Guidelines require us to use the section 802(7)
definition of “counterfeit substance” in defining that term for
purposes of career offender status. Because this definition does
not include Crittendon’s conviction for delivery of simulated
controlled substance, it is not a controlled substance offense as
defined in section 4B1.2(b). Therefore, Crittendon does not have
the two convictions necessary to be adjudged a career offender.
Consequently, I would vacate the district court’s sentence
enhancement under section 4B1.1 and remand for resentencing.
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United States v. Crittenden
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-06-01
Citations: 372 F.3d 706
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