United States v. Crittenden

372 F.3d 706, 2004 U.S. App. LEXIS 10645, 2004 WL 1194489
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 1, 2004
Docket02-41339
StatusPublished
Cited by33 cases

This text of 372 F.3d 706 (United States v. Crittenden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Crittenden, 372 F.3d 706, 2004 U.S. App. LEXIS 10645, 2004 WL 1194489 (5th Cir. 2004).

Opinions

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 Crit-tenden’s objection) that Crittenden was a career offender under the Guidelines, resulting in a substantial increase in his sen[707]*707tence. 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 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, 1997 WL 574822 (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 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 [708]*708the 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).

“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.8d 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”.

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Bluebook (online)
372 F.3d 706, 2004 U.S. App. LEXIS 10645, 2004 WL 1194489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-crittenden-ca5-2004.