United States v. Thomas

• Decision Date: 01 October 2019
• Docket Number: No. 17-1405,17-1405
• Citation: 939 F.3d 1121
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Donald Ray THOMAS, a/k/a Donald Ray Thomas, II, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

939 F.3d 1121

UNITED STATES of America, Plaintiff - Appellee,

v.Donald Ray THOMAS, a/k/a Donald Ray Thomas, II, Defendant - Appellant.

No. 17-1405

United States Court of Appeals, Tenth Circuit.

FILED October 1, 2019

Jacob R. Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, United States Attorney, with him on the brief), Denver, Colorado for Plaintiff-Appellee.

Before HARTZ, MATHESON, and EID, Circuit Judges.

HARTZ, Circuit Judge.

The sole issue presented on this appeal is the meaning of counterfeit substance in § 4B1.2(b) of the United States Sentencing Guidelines. Defendant contends that a counterfeit substance is a controlled substance that has been mislabeled or misbranded fraudulently or without authorization—a definition that appears in a federal statute, 21 U.S.C. § 802(7). The government counters that it is a noncontrolled substance that is passed off as a controlled substance. Joining the five other circuits that have opined on the subject, we agree with the government.

Under USSG § 2K2.1(a)(2) the base offense level for a defendant convicted of a firearm offense is 24 if the offense was committed "subsequent to sustaining at least two felony convictions of either a crime of violence or controlled substance offense." The offense level is 20 if the defendant had a conviction of only one such offense. See id . § 2K2.1(a)(4). These provisions adopt the meaning of controlled substance offense in USSG § 4B1.2(b). See USSG § 2K2.1(a), App. n.1. That definition is as follows:

The term "controlled substance offense" means 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.

USSG § 4B1.2(b) (emphasis added). The guidelines do not define counterfeit substance for the purposes of this provision.

Defendant Donald Ray Thomas pleaded guilty in the United States District Court for the District of Colorado to possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). On appeal he does not challenge the validity of his plea; but as permitted by his plea agreement with the government, he raises one challenge with respect to his sentence. Because it is undisputed that he had a prior felony conviction for a crime of violence (robbery), his base offense level was at least 20. Whether it was 20 or 24 depended on the characterization of his 2014 Colorado conviction of distribution of an "imitation controlled substance" under Colo. Rev. Stat. § 18-18-422(1)(a). Colorado defines an imitation controlled substance as:

a substance that is not the controlled substance that it is purported to be but which, by appearance, including color, shape, size, and markings, by representations made, and by consideration of all relevant factors as set forth in section 18-18-421, would lead a reasonable person to believe that the substance is the controlled substance that it is purported to be.

Colo. Rev. Stat. § 18-18-420(3). Defendant challenges the district court’s ruling that his conviction involved a "counterfeit substance" and therefore was a "controlled substance offense" under USSG § 2K2.1(a). Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we reject this challenge and affirm Defendant’s sentence.

I. DISCUSSION

"Ultimately, our task in interpreting the Guidelines is to determine the intent of the Sentencing Commission." United States v. Rivera-Oros , 590 F.3d 1123, 1129 (10th Cir. 2009). We perform this task by applying traditional techniques of statutory construction. See United States v. Archuleta , 865 F.3d 1280, 1287 (10th Cir. 2017) (when a term "is not defined in the Guidelines, we must rely on the accepted rules of statutory construction in defining the term").

As a general rule, we interpret a word or phrase in a statute or the guidelines in accordance with its ordinary, everyday meaning. See United States v. Marrufo , 661 F.3d 1204, 1207 (10th Cir. 2011) ("When a term is not defined in the Guidelines, we give it its plain meaning."); Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts, § 6 ("Ordinary-Meaning Canon") (2012) ("Reading Law"). The definition of counterfeit in the most authoritative legal dictionary is: "Made to look genuine in an effort to deceive; produced by fakery, esp. with an intent to defraud." Black’s Law Dictionary 427 (10th ed. 2014). This is in keeping with the definitions in leading dictionaries for general use. See New Oxford American Dictionary 387 (2d ed. 2005) ("[M]ade in exact imitation of something valuable or important with the intention to deceive or defraud."); Webster’s Third New International Dictionary 519 (2002) ("[M]ade in fraudulent imitation: produced with intent to deceive."). Thus, a substance that is not in fact a controlled substance but is passed off as such is commonly referred to as a counterfeit controlled substance. See, e.g. , Franklin v. Bradshaw , 545 F.3d 409, 412 (6th Cir. 2008) ("Hennig realized that they had been given counterfeit cocaine commonly referred to as ‘fleece.’ "); United States v. Martinez , 520 F.3d 749, 751 (7th Cir. 2008) ("The [drug] agents replaced the cocaine with 100 kilograms of counterfeit cocaine."); United States v. Sampson , 140 F.3d 585, 588 (4th Cir. 1998) (two co-conspirators "testified that ... they sold ‘flex’ (counterfeit cocaine) to unsuspecting purchasers."). The government urges us to use the plain-English definition of counterfeit and construe counterfeit substance as a substance made in imitation of a controlled substance with intent to deceive.

Defendant does not contend that if we apply the common meaning of counterfeit substance , he could nevertheless prevail. He argues, however, that we should adopt a narrower meaning. He asserts that when determining the meaning of an undefined offense used in the guidelines, courts have not given the term its ordinary English meaning but have instead looked to federal statutes, state laws, model codes, treatises, and dictionaries to determine the "generic, contemporary meaning" of the offense. Aplt. Br. at 11; see United States v. Martinez-Cruz , 836 F.3d 1305, 1309 (10th Cir. 2016) ("To determine the generic, contemporary meaning of a crime enumerated in the Guidelines, the court begins by looking to the federal statute under which the defendant was previously convicted" and "also examines ... the definitions of the crime in a majority of the States’ criminal codes, as well as prominent secondary sources, such as criminal law treatises and the Model Penal Code." (brackets and internal quotation marks omitted)); Rivera-Oros , 590 F.3d at 1126-27 ("We look to a wide range of sources to determine the generic meaning of an enumerated offense, including federal and state statutes, the Model Penal Code, dictionaries, and treatises."). Accordingly, in his view, we must adopt the definition of counterfeit substance commonly used in those sources.

We agree with Defendant that the statutory definitions of the term counterfeit substance most often refer to controlled substances that are fraudulently or falsely labeled. For example, and most notably, the federal Controlled Substances Act states the following:

The term ‘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 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, distributor, or dispenser.

21 U.S.C. § 802(7). The term appears in 21 U.S.C. § 841(a), which provides:

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

Paragraph (1) in general prohibits dealing in controlled substances. The "Except as authorized" language at the beginning of subsection (a) is necessary, however, because some controlled substances serve useful purposes and can lawfully be manufactured, distributed, dispensed, or possessed, although they must still be regulated to protect consumers and prevent misuse. Effective regulation of such substances requires that they be properly labeled—that is, that they not be what are called "counterfeit substances" in the statute. Paragraph 2 prohibits trading in such counterfeits. For example, even when a person is authorized to manufacture a controlled substance, that person is prohibited from creating a counterfeit substance by mislabeling the controlled substance. Cf. United States v. Khoury , 901 F.2d 948, 965 (11th Cir. 1990) ("At a minimum, to prove a conspiracy to violate section 841(a)(2) ... the government must provide some evidence that the conspirators planned to place on the substance or its container a trademark, trade name, or other identifying mark of a manufacturer other than the persons actually manufacturing the substance.")

The Uniform Controlled Substances Act uses the term counterfeit substances in the same way:

Counterfeit Substances Prohibited; Penalty.

(a) A person may not knowingly or intentionally manufacture or deliver, or possess with intent to

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