U.S.A v. Brown

Decision Date25 March 2010
Docket NumberNo. 07-2287.,07-2287.
Citation598 F.3d 1013
PartiesUNITED STATES of America, Appellee, V. Dennis Morris BROWN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas John O'Flaherty, argued, San Luis Obispo, CA, for appellant.

Charles J. Williams, AUSA, argued, Cedar Rapids, IA (Peter E. Deegan, Jr. AUSA, on the brief, Cedar Rapids, IA), for appellee.

Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

This case presents the question whether a prior conviction for delivery of a "simulated controlled substance" under Iowa law qualifies as a "felony drug offense" under a recidivism provision of the Controlled Substances Act, 21 U.S.C § 802(44). We hold that it does not, and we therefore vacate Dennis Morris Brown's sentence and remand for resentencing.

I.

On June 21, 2006, a grand jury indicted Brown for two counts of distributing crack cocaine within 1000 feet of a protected location, in violation of 21 U.S.C. § 860. Before trial, the government filed an information pursuant to 21 U.S.C. § 851 notifying Brown that it intended to seek increased punishment due to Brown's criminal history. The notice provided that Brown had three prior "felony drag offenses" in Iowa state court, and was therefore subject to a mandatory term of life imprisonment under 21 U.S.C § 841(b)(1)(A). A felony drug offense is one that "is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44).

Brown's criminal history includes (1) a 1992 conviction for delivery of a substance that he represented to be methamphetamine but was later determined not to contain any controlled substance; (2) a 1993 conviction for delivery of cocaine and (3) a 1993 conviction for delivery of a substance that he represented to be cocaine but was later determined not to contain any controlled substance, all three offenses in violation of Iowa Code § 204.401 (subsequently recodified at Iowa Code § 124.401). The first and third of fenses involved the delivery of a "simulated controlled substance, " defined under Iowa law as "a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and... would lead a reasonable person to believe it to be a controlled substance." Iowa Code § 204.101(27) (1991) (recodified at Iowa Code § 124.101(27) (2007)).1

On August 22, 2006, Brown agreed in a written plea agreement to plead guilty to one count of distributing crack cocaine within 1000 feet of a protected location. The government reiterated its intention to seek a sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Brown reserved the right to challenge whether-his two prior convictions for delivery of a "simulated controlled substance" qualified as "felony drug offenses" within the meaning of § 802(44). If those two convictions are not qualifying, then the statute does not require a mandatory term of life imprisonment.

Brown pleaded guilty, and the district court ruled that he was subject to a mandatory term of life imprisonment under § 841(b)(1)(A). The court concluded that the two offenses involving simulated controlled substances qualified as "felony drug offenses." United States v. Brown, No. 06-CR-1028-LRR, 2007 WL 1498472, *4 (N.D.Iowa May 21, 2007). The court reasoned that the Controlled Substances Act "similarly penalizes the distribution of controlled substances and counterfeit substances, " id. at *3 (citing 21 U.S.C. §§ 841(a)(1), 841(a)(2)), and that "when a defendant delivers a counterfeit controlled substance, many of the dangers and harms to society that are present when 'the real deal' is delivered are also present." Id. The court concluded that the phrase "relating to" in § 802(44) is "very broad and encompasses a wide range of potential conduct." Id.

II.

On appeal, Brown asserts that his prior convictions for delivery of a simulated controlled substance under Iowa law are not convictions for a "felony drug offense" under 21 U.S.C. §§ 841(b)(1)(A) and § 802(44). There is little authority on this question. The district court here ruled that the convictions qualify; a district court in Virginia held that comparable convictions do not. United States v. Gardner 534 F.Supp.2d 655, 658-62 (W.D.Va.2008); cf. United States v. Latham, No. 08-1610, 2009 WL 4927964 (6th Cir. Dec.22, 2009) (per curiam)(holding that "[t]he very existence of these two non-binding, contradictory opinions is sufficient to establish, ipso facto, that any error in this case cannot be deemed 'plain' because... any error is not 'clear under current law' "). This court has reserved judgment on the question, United States v. Robertson, 474 P.3d 538, 543 & n. 4 (8th Cir.2007), and we review the district court's conclusion de novo.

Section 802(44) defines a felony drug offense as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." Brown's offenses were punishable by more than one year under Iowa law, and the disputed issue is whether delivering simulated methamphetamine or cocaine is an offense that "prohibits or restricts conduct relating to narcotic drugs." 21 U.S.C. § 802(44) (emphasis added).

The Controlled Substances Act ("CSA") does not define the phrase "relating to, " and the government argues that the ordinary meaning is a broad one, such that simulating a sale of narcotic drugs is conduct relating to narcotic drugs. In the context of preemption under the Airline Deregulation Act, the Supreme Court stated that "relating to" carries a "broad" meaning—"to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black's Law Dictionary 1158 (5th ed.1979)). This court has agreed that the phrase "relating to" has a "broad ordinary meaning, " even in the criminal context, when construing a sentencing enhancement for prior offenses "relating to... abusive sexual conduct involving a minor." United States v. Weis, 487 F.3d 1148, 1152 (8th Cir.2007) (internal quotation omitted). This breadth has led our court and others to hold that several offenses—all involving actual narcotics— are covered by the definition of "felony drug offense" as one that prohibits or restricts conduct "relating to narcotic drugs." See United States v. Millard 139 F.3d 1200, 1209 (8th Cir.1998) (holding that a prior conviction for "sponsoring a gathering with the knowledge that a controlled substance would be distributed" qualified as a felony drug offense because it contained an "element of mental culpability directly related to a drug crime"); United States v. Curry, 404 F.3d 316, 31920 (5th Cir.2005) (per curiam) (holding that § 802(44) "sweeps broadly enough to in-elude even strict liability offenses" like possession of marijuana in a penal institution); United States v. Spikes, 158 F.3d 913, 932 (6th Cir.1998) (holding that "relating to" is an "expansive term, " and thus "the statutory phrase 'felony drug offense' clearly... encompasses drug offenses that involve the simple possession of drugs"); United States v. Sandle, 123 F.3d 809, 812 (5th Cir.1997) (holding that an offense for simple cocaine possession without any additional intent element qualified as a "felony drug offense").

The plain language alone, however, is not sufficient to resolve this case. Even a broad phrase has limits, and our analysis should not stop with the words "relating to" in isolation, for that "would ignore the rule that, because statutes are not read as a collection of isolated phrases, [aj word in a statute may or may not extend to the outer limits of its definitional possibilities." Abuelhawa v. United States, -U.S.-,-, 129 S.Ct. 2102, 2105, 173 L.Ed.2d 982 (2009) (internal citation and quotation omitted). We must consider the phrase "relating to narcotic drugs" in context. See Fitzgerald v. Barnstable Sch. Comm., -U.S.-, —-, 129 S.Ct. 788, 794, 172 L.Ed.2d 582 (2009).

Several considerations lead us to conclude that an offense involving only simulated controlled substances is not an offense that prohibits or restricts conduct relating to narcotic drugs within the meaning of § 802(44). To start, the sentencing enhancement appears in a statute that is concerned entirely with the regulation of actual controlled substances. Congress declared in the CSA that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people, " 21 U.S.C. § 801(2) (emphasis added), and found that federal control over domestic and foreign traffic of controlled substances was essential.Id § 801(5), (7) (emphasis added). While the district court is correct that the CSA penalizes offenses involving counterfeit substances (i.e., actual controlled substances that bear an unauthorized trademark, id. § 802(7)), never has Congress regulated simulated or look-alike controlled substances. See United States v. Sampson, 140 F.3d 585, 589 (4th Cir.1998). A reasonable legislator contemplating a sentence enhancement based on prior offenses "relating to narcotic drugs, " in a statute directed exclusively to regulating the traffic of actual narcotic drugs, seems likely to have understood that the class of offenses triggering the enhancement likewise would involve actual narcotic drugs.

The history of ...

To continue reading

Request your trial
16 cases
  • Stewart v. United States
    • United States
    • U.S. District Court — Southern District of Iowa
    • 5 Agosto 2021
    ...his prior conviction satisfies the federal recidivism statute. "There is little authority on this question." United States v. Brown , 598 F.3d 1013, 1015 (8th Cir. 2010).A. "Felony Drug Offense" Stewart contends his 2000 conviction for possession of a "controlled substance" under 720 ILCS 5......
  • Brock-Miller v. United States, 16-3050
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 3 Abril 2018
    ...requires the qualifying conviction to be punishable by a term of imprisonment of more than one year). See also United States v. Brown , 598 F.3d 1013, 1015–18 (8th Cir. 2010) (concluding that Iowa convictions for delivery of simulated controlled substances were not felony drug offenses by a......
  • Gamboa v. Daniels
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 14 Febrero 2022
    ...the statutory definition of the prior offense, not to the facts underlying a defendant's prior convictions."); United States v. Brown , 598 F.3d 1013, 1015–18 (8th Cir. 2010) (comparing Iowa statute for delivery of simulated methamphetamine with federal statutes and concluding that defendan......
  • USA v. Rains
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Agosto 2010
    ...but, if so, it is a firearms statute that, at least in some situations, prohibits conducted related to drugs. See United States v. Brown, 598 F.3d 1013, 1015-16 (8th Cir.2010) (discussing broad ordinary meaning of the phrase “related to narcotic drugs”). Aldridge also asks us to apply the r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT