Appeal
from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00325-PAB-1)
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 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 manufacturer, distributor, or
dispenser, other than the person who manufactured,
distributed, or dispensed the substance.
Unif.
Controlled Substances Act § 404 (1995). And the
government does not dispute Defendant's assertion that
the laws of 36 states and the District of Columbia similarly
define counterfeit substance, although it points to
eight states that have adopted the meaning of counterfeit
substance that it urges in this court.
The
essence of Defendant's position is that when dealing with
a technical or specialized subject, we should understand
terms in their technical or specialized meaning. As a general
rule, we would agree with that proposition. But that
proposition cannot override common sense. In Johnson v.
United States, 599 U.S. 133, 138 (2010), the Supreme
Court had to resolve the meaning in the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), of the noun
force, which "has a number of meanings."
The specific question was whether the Florida offense of
battery constituted a "violent felony" under the
Act (and so could be used to enhance the defendant's
sentence). That depended on whether the requirement of
"force" in the ACCA could be satisfied by
"even the slightest offensive touching," which was
all the force necessary to establish the common-law crime of
battery (and battery under Florida law). See id. at
139. The Court refused to adopt the common-law meaning of the
term force, finding it incongruous as part of the
definition of the term violent felony, particularly
because common-law battery was a misdemeanor rather than a
felony. See id. at 139–42. It explained:
"[W]e do not assume that a statutory word is used as a
term of art where that meaning does not fit. Ultimately,
context determines meaning, and we do not force term-of-art
definitions into contexts where they plainly do not fit and
produce nonsense." Id. at 139–41
(citation and internal quotation marks omitted).
Similar
reasoning requires rejection of Defendant's argument.
Application of his definition of counterfeit
substance in USSG § 4B1.2(b) adds no substantive
content to the guidelines definition of controlled
substance offense. For convenience we repeat that
provision:
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). Under the statutory
definition that Defendant would adopt ("The term
'counterfeit substance' means a controlled substance
which [is mislabeled]." 21 U.S.C. § 802(7)), every
counterfeit substance is already a controlled substance; a
counterfeit substance is simply a controlled substance that
is mislabeled to conceal its origin. The parenthetical
"(or a counterfeit substance)" therefore would not
include any item beyond those clearly encompassed by the term
controlled substance, which immediately precedes the
parenthetical. Statutes that regulate, say, the distribution
of counterfeit substances (using Defendant's definition)
are simply a subset of statutes that regulate the
distribution of controlled substances. We follow our
precedent stating that "we should interpret statutory
provisions and the guidelines in a way which gives meaning
and effect to each part of the statutory or guideline
scheme." United States v. Acosta-Olivas, 71
F.3d 375, 379 (10th Cir. 1995); see Reading Law,
§ 26, Surplusage Canon, at 174 ("If possible, every
word and every provision is to be given effect (verba cum
effectu sunt accipienda). None should be ignored. None
should needlessly be given an interpretation that causes it
to duplicate another provision or to have no
consequence.").
To
avoid the surplusage canon, Defendant notes that the term
counterfeit substance appears in § 4B1.2(b)
only within a parenthetical and contends that "any
redundancy . . . is therefore of little consequence."
Aplt. Br. at 17. He relies on Chickasaw Nation v. United
States, 534 U.S. 84, 88 (2001), in which Indian tribes
claimed that a parenthetical statutory cross-reference in the
Indian Gaming Regulatory Act exempted gambling operations
from excise and occupational taxes. The Supreme Court quoted
the following from a circuit-court opinion: "A
parenthetical is, after all, a parenthetical, and cannot be
used to overcome the operative terms of the statute."
Id. at 95 (internal quotation marks omitted). (The
quotation, appropriately enough, was in a parenthetical to
the citation to the circuit-court opinion. We decline, in
this parenthetical, to engage in a philosophical
discussion about whether a parenthetical can be authority for
the proposition that parentheticals are not authoritative.)
But the Chickasaw Nation Court did not say that
parentheticals are necessarily surplusage. On the contrary,
it took the parenthetical cross-reference in the statute very
seriously. Indeed, it was the central subject of the
Court's decision. The Court determined that it was
required to treat the relevant language as surplusage not
because it was contained in a parenthetical, but because
"the language outside the parenthetical is
unambiguous" and the Court could not "give the
[parenthetical] reference independent operative effect
without seriously rewriting the language of the rest of the
statute." Id. at 89; see id. ("We
agree with the Tribes that rejecting their argument reduces
the [statutory reference in the parenthetical] to surplusage.
Nonetheless, we can find no other reasonable reading of the
statute.") We therefore conclude from Chickasaw
Nation that we should try to give substantive effect to
language in a parenthetical. And here, in contrast to
Chickasaw Nation, giving the parenthetical in the
guideline its common meaning adds eminently reasonable
content to the guideline (by expanding the relevant offenses
to encompass those involving fake controlled substances). We
also observe that putting "or a counterfeit
substance" in a parenthetical, rather than simply
setting it off with commas, is more likely to have been for
purposes of readability than to signify unimportance (as
suggested by the dissent). There were already 10 commas in
the sentence defining controlled substance offense.
The reader may wish to try replacing the parentheses by
commas and see how easy it would be to read the definitional
sentence.[1]
The
dissent suggests that the "(or counterfeit
substance)" parenthetical serves the purpose of
clarification-making clear that counterfeit substances (as
defined by the dissent) are among the controlled substances
covered by the guideline. But if that were the intent, the
Sentencing Commission would have used the word
including rather than the word or. The
Sentencing Commission appears to have followed a consistent
practice that distinguishes (in accord with common usage)
between parentheticals beginning with the word
including and parentheticals beginning with the word
or when the parenthetical appears after a term in a
guideline. Parentheticals using the word including
are meant to clarify the guideline; those with the word
or are meant to expand the meaning. When it uses the
word including, it is emphasizing that the term as
used in the guideline is not excluding a particular subset of
what is encompassed by the usual meaning of the term. For
example, USSG § 2B3.2 cmt. n.1 speaks of
"transportation systems and services (including
highways, mass transit, airlines, and airports"). The
words in the parenthetical are generally considered examples
(subsets) of the terms before the parenthetical. We include
in a footnote the occasions of this use of including
in the guidelines.[2] In contrast, when the Commission inserts a
parenthetical beginning with the word or after a
term in the guidelines, it is expanding the scope of the
guideline to include things that would generally not be
considered subsets of the term in its common meaning. For
example, USSG § 2B1.1 comment n.10(C) speaks of
"the defendant (or a person for whose conduct the
defendant is accountable)" and comment n.10(D) speaks of
"name (or other identifying information)." We
include in a footnote other examples of this use of the word
or in guidelines parentheticals.[3] Given this common
usage and the practice of the Sentencing Commission, we can
infer that if the Sentencing Commission intended the "or
a counterfeit substance" parenthetical in §
4B1.2(b) to refer to those controlled substances defined as
counterfeit substances in 21 U.S.C. § 802(7)-which are a
subset of controlled substances-it would have said
"including a counterfeit substance." That would
have made clear that when § 4B1.2(b) spoke of controlled
substances, it was including those controlled substances
defined as counterfeit substances. But instead the Commission
said "or a counterfeit substance," and the
use of the word or was signaling that the Commission
was including substances that are not controlled substances.
This is substantial support for our reading of the guideline.
It
should also be noted that the definition of controlled
substance offense in § 4B1.2(b) does not include
the word creation along with the prohibited acts
"manufacture, import, export, distribution, or
dispensing," even though creation is the
prohibited act unique to counterfeit substances, see
21 U.S.C. § 841(a)(2); Khoury, 901 F.2d at 965.
This is a peculiar, and confusing, omission if the Sentencing
Commission's focus in including the "or a
counterfeit substance" parenthetical had been to make
sure that the enhancement of the firearm-offense base offense
level under § 2K2.1(a)(2) for prior drug convictions
would encompass prior convictions under § 841(a)(2) (the
federal counterfeit-substance provision) and similar state
laws.
A
further indication, if any is needed, that § 4B1.2(b)
was not referencing the statutory definition of
counterfeit substance is that the Sentencing
Commission did not include a statutory reference in the
guideline. Not only are such cross-references common in the
guidelines, see, e.g., United States v. Mills, 485
F.3d 219, 223 (4th Cir. 2007) (citing numerous statutory
cross-references in §§ 4B1.2 and 2K2.1), but of
particular note, the Commission has even cross-referenced the
statutory definition of counterfeit substance in a
different guideline. Application note 4 to USSG § 2D1.1
(the guideline section used to compute the offense level for
drug offenses) states: "The statute and guideline also
apply to 'counterfeit' substances, which are defined
in 21 U.S.C. § 802 to mean controlled substances that
are falsely labeled so as to appear to have been legitimately
manufactured or distributed." If the Sentencing
Commission also intended to use that statutory definition in
§ 4B1.2, it would be remarkable to omit the
cross-reference there. Cf. United States v. Lucero,
747 F.3d 1242, 1249 (10th Cir. 2014) ("It is a
well-settled principle of statutory construction that when
Congress (or, as here, the Sentencing Commission) includes
particular language in one section of a statute or Guideline,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion."
(internal quotation marks omitted)). The cross reference to
the statutory definition appeared in the original version of
§ 2D1.1 in 1987. See USSG § 2D1.1 cmt.
n.2, at 2.40 (1987). The term counterfeit substance
first appeared in § 4B1.2 as a result of Amendment 268
two years later in 1989. See U.S. Sentencing
Guidelines Manual app. C, vol. I, Amend. 268 at 131–33
(2003). It is not as if it had never occurred to the
Sentencing Commission to add the statutory definition as a
cross reference. The omission of the cross-reference in
§ 4B1.2 only two years after it was added in §
2D1.1 appears to have been informed and intentional.
Defendant
also argues that the history of § 4B1.2 supports his
position. He contends that the language of the guideline
before it was revised in 1989 clearly conveys the meaning he
now advocates.[4] We do not think the earlier language was
all that clear. But in any event, the Sentencing Commission
explained that the purpose of its 1989 amendment was "to
clarify the definitions of crime of violence and controlled
substance offense used in this guideline." U.S.
Sentencing Guidelines Manual app. C, vol. I, Amend. 268 at
132–33 (2003). In that light, it would make little
sense to say that the present guideline is clarified by
looking at the earlier version. If, as suggested by
Defendant, the earlier version clearly supported his
position, the change in language would imply that the
Commission was not comfortable with that position.
We
should also respond to a comment repeated several times in
the dissent, although it has no basis in any principle of
statutory interpretation. The dissent suggests that we should
not adopt a definition contrary to a definition that
"was promulgated by elected legislatures." Dissent
at 5. The implication is that when Congress has defined a
term (as it has with counterfeit substance), we are
violating the will of the people by adopting another
definition. There might be some force to the argument if
Congress had stated in a statute that its statutory
definition of counterfeit substance was to apply throughout
federal law, or at least to the sentencing guidelines. But
the definitions in 21 U.S.C. § 802 are simply for words
"[a]s used in this subchapter," meaning 21 U.S.C.
§§ 801–904. That is the full extent of
Congress' statutory command. Congress has not made any
attempt to tell the Sentencing Commission how it must use the
term counterfeit substance in its guidelines. It is
worth noting that even when Congress has explicitly stated
that a definition is to apply to a certain portion of the
United States Code, the Supreme Court has repeatedly ignored
that command when the context otherwise requires. See,
e.g., Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,
316 (2014); N.W. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 206 (2009); Philco Aviation,
Inc. v. Shacket, 462 U.S. 406, 409 (1983); Lawson v.
Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949).
And as
recently stated by Justice Ginsburg in Yates v. United
States, 135 S.Ct. 1074, 1082 (2015) (opinion of
Ginsburg, J.), "We have several times affirmed that
identical language may convey varying content when used in
different statutes, sometimes even in different provisions of
the same statute." The Supreme Court has even had
occasion to reject the suggestion that a term in the
Controlled Substances Act must be given the same definition
as it has under the guidelines. See DePierre v. United
States, 564 U.S. 70, 88 (2011) ("[W]e reject
DePierre's suggestion that the term 'cocaine
base' as used in [21 U.S.C. § 841(b)(1)(A)(iii),
(B)(iii)] must be given the same definition as it has under
the Guidelines."). In that case the defendant wished to
benefit from the guidelines definition, which was narrower
than the definition of the statutory term adopted by the
Court. The Court denied the defendant his wish, and it never
suggested that the Sentencing Commission had to use the word
the same way that the statute did.
Thus,
standard tools of statutory interpretation all point to the
government's construction of the guidelines definition of
controlled substance offense. This should suffice to
affirm the sentence imposed by the district court.
But
there is more. Institutional considerations also argue in
favor of that result. At least five other circuits have
reached the same conclusion as we do here. See United
States v. Hudson, 618 F.3d 700, 704 (7th Cir. 2010);
United States v. Mills, 485 F.3d 219, 225 (4th Cir.
2007); United States v. Robertson, 474 F.3d 538, 541
(8th Cir. 2007); United States v. Crittenden, 372
F.3d 706, 709 (5th Cir. 2004); United States v.
James, 712 F.App'x 838, 840 (11th Cir. 2017) (citing
United States v. Frazier, 89 F.3d 1501, 1505 (11th
...