U.S. v. Mills, 06-4776.

• Decision Date: 07 May 2007
• Docket Number: No. 06-4776.,06-4776.
• Citation: 485 F.3d 219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre MILLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

485 F.3d 219

UNITED STATES of America, Plaintiff-Appellee, v. Andre MILLS, Defendant-Appellant.

No. 06-4776.

United States Court of Appeals, Fourth Circuit.

Argued: March 12, 2007.

Decided: May 7, 2007.

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 Attorney, Michael C. Hanlon, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Judge KING joined.

OPINION

WILKINSON, Circuit Judge.

This case presents the question of whether a conviction for a simulated 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 district 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 conviction is not a "controlled substance offense" because simulated drugs are not a "counterfeit substance" as defined by the Controlled Substances Act, 21 U.S.C. § 802(7) (2000). Because the Guidelines' provisions 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 × 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 "Moonwear," including: an AR-15 assault rifle; a Taurus 9 millimeter handgun; 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; pistol 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 indictment 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 criminal 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 recommendation on Sentencing Guideline § 2K2.1(a)(2) which calls for a base level offense of 24 when a defendant has two prior felony convictions 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 Resisting 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 substance" offense as that term is used in Section 4B1.2 includes a simulated 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 Maryland 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 dictates 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 subsequent 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 substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b) (emphasis added).

A.

In the case at hand, Mills was convicted of selling imitation narcotics 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 simulated narcotics is one involving a "counterfeit substance" under § 4B1.2(b). The Guidelines do not, however, define the term "counterfeit substance" as employed in Section 4B1.2(b).

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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 630, 166 L.Ed.2d 462 (2006); Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (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 imitation of" a controlled substance is a "counterfeit substance."

At the time of Mills' conviction, Maryland's look-a-like drug statute, entitled, "Possession with Intent to Distribute Look-A-Like Controlled 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 distribute 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)).

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 distribute, 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 simulated 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 sentencing 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 controlled 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...