United States v. Thomas

939 F.3d 1121

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 1, 2019
• Docket: 17-1405
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 1, 2019

Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 17-1405 v.

DONALD RAY THOMAS, a/k/a Donald Ray Thomas, II,

Defendant - Appellant. _________________________________

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

2 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

3 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

4 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.

5 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:

6 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

7 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

8 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

9 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

1 Replacing the parentheses by commas in the guideline would result in the following awkward language, in which the conjunction or sometimes joins substances and sometimes joins actions, thereby discombobulating the reader: 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

10 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

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.

2 § 1B1.1 cmt. n.1(C), § 1B1.1 cmt. n.1(H), § 1B1.1 cmt. n.1(J), § 1B1.3 cmt. n.3(B), § 1B1.3 cmt. n.3(D), § 2A1.4 cmt. n.1, § 2A2.2(b)(2), § 2A2.3(a)(1), § 2A2.4(b)(1), § 2B1.1(b)(16), § 2B1.1 cmt. n.1, § 2B1.1 cmt. n.3(F)(i), § 2B1.1 cmt. n.15(A), § 2B2.1(b)(4), § 2B2.1 cmt. n.3, § 2B2.3(b)(2), § 2B2.3 cmt. n.1, § 2B3.2 cmt. n.1, § 2B5.1(b)(4), § 2B5.1 cmt. background, § 2B5.3(b)(6), § 2D1.1(b)(1), § 2D1.1(c) n.J, § 2D1.1 cmt. n.18(A), § 2D1.11(b)(1), 2D1.11 cmt. n.4, § 2D1.11 cmt. background,

11 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

§ 2D1.12 cmt. n.3, § 2E2.1(b)(1), § 2G2.5(b)(2), § 2H3.1 cmt. n.1, § 2H3.1 cmt. n.4, § 2L1.1(b)(5), § 2R1.1 cmt. n.2, § 2R1.1 cmt. background, § 3A1.3 cmt. n.4(B), § 5F1.7 cmt. background (b)(2), § 5G1.3(a), § 5H1.1, § 8A1.2 cmt. n.3(G). 3 § 1B1.5 cmt. n.3, § 2B1.1 cmt. n.10(C), § 2B1.1 cmt. n.10(D), § 2D1.6 cmt. n.1, § 2H4.1 cmt. n.2, § 2K2.4 cmt. n.1, § 2L1.1(b)(1), § 2L1.1(b)(3), § 2L1.2 cmt. n.7, § 2L2.1(b)(1), § 2L2.1(b)(4), § 2L2.2(b)(2), § 2Q1.2 cmt. n.3, § 2S1.1(a)(1), § 2S1.1 cmt. n.3(A), § 2S1.3 cmt. n.2, § 2X1.1 cmt. n.4, § 3A1.2(c)(2), § 3A1.3 cmt. n.4(A), § 3A1.3 cmt. n.4(B), § 3D1.2 cmt. background, § 3E1.1 cmt. background, § 4A1.2 cmt. n.2, § 5C1.2(a)(2), § 5E1.2 cmt. n.3, § 6B1.2 cmt. background, § 6B1.3, § 8C2.5(c)(1), § 8C2.5(c)(2), § 8C2.5(d)(1).

12 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

13 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

4 The pre-1989 guideline read: “The term ‘controlled substance offense’ as used in this provision means an offense identified in 21 U.S.C. §§ 841, 845(b), 856, 952(a), 955, 955(a), 959; and similar offenses.” USSG § 4B1.2(2), at 4.11 (1988). An application note added: “‘Controlled substance offense’ includes any federal or state offense that is substantially similar to any of those listed in subsection (2) of the guideline. These offenses include manufacturing, importing, distributing, dispensing, or possessing with intent to manufacture, import, distribute or dispense, a controlled substance (or a counterfeit substance).” Id. cmt. n.2, at 4.12.

14 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,

15 462 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,

16 712 F. App’x 838, 840 (11th Cir. 2017) (citing United States v. Frazier, 89 F.3d 1501,

1505 (11th Cir. 1996)); United States v. Smith, 156 F. App’x 154, 155–56 (11th Cir.

2005) (same). None have agreed with Defendant’s position.

We should not create a circuit split merely because we think the contrary

arguments are marginally better. A number of circuits have stated that only a

“compelling” or “strong” reason can justify creation of a circuit split. See Padilla-

Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017), cert. denied, 139 S. Ct. 411 (2018)

(“As a general rule, we decline to create a circuit split unless there is a compelling reason

to do so.” (internal quotation marks omitted)); United States v. Nesmith, 866 F.3d 677,

680 (5th Cir. 2017) (adopting the same position as other circuits “[b]ecause [the

appellant] has not provided a compelling reason to create a circuit split.”); Janese v. Fay,

692 F.3d 221, 227 (2d Cir. 2012) (“[I]n the absence of compelling reasons to the

contrary, maintaining a circuit split . . . is inadvisable.”); Alternative Sys. Concepts, Inc.

v. Synopsys, Inc., 374 F.3d 23, 31 (1st Cir. 2004) (“A court of appeals should always be

reluctant to create a circuit split without a compelling reason, and none exists here.”);

Wagner v. PennWest Farm Credit, ACA, 109 F.3d 909, 912 (3d Cir. 1997) (“In light

of such an array of precedent [from other circuits], we would require a compelling basis

to hold otherwise before effecting a circuit split.”); Wash. Energy Co. v. United States, 94

F.3d 1557, 1561 (Fed. Cir. 1996) (“As a general matter, we do not create conflicts among

the circuits without strong cause. We adhere to this view because federal law (unlike

state law) is supposed to be unitary.” (citation and internal quotation marks omitted));

Mayer v. Spanel Int’l Ltd., 51 F.3d 670, 675 (7th Cir. 1995) (“We do not create conflicts

17 among the circuits without strong cause.”), abrogated on other grounds by Field v. Mans,

516 U.S. 59, 74–75 (1995). This court has simply expressed reluctance to create a circuit

split, without describing the threshold necessary to overcome the reluctance. See United

States v. Smith, 815 F.3d 671, 677 (10th Cir. 2016) (“[O]ur reading . . . avoids the

unnecessary creation of a circuit split.”); Brunswick Corp. v. Spinit Reel Co., 832 F.2d

513, 528 (10th Cir. 1987) (“[W]e are not inclined to create a split in the circuit courts.”);

see also United States v. Games-Perez, 695 F.3d 1104, 1115 (10th Cir. 2012) (Murphy,

J., concurring in denial of rehearing en banc) (“[T]he circuits have historically been loath

to create a split where none exists. . . . [As one circuit put it,] ‘Absent a strong reason to

do so, we will not create a direct conflict with other circuits.’” (citations omitted)); id. at

1123 n.7 (Gorsuch, J., dissenting from denial of rehearing en banc) (“[W]hile the

concurrence quotes cases from other circuits counseling against creating a circuit split

‘absent a strong reason to do so,’ inconsistency with an unambiguous statutory direction

from Congress surely qualifies as just such a strong reason.” (citation omitted)). But at

least there must be a “sound reason” to go against the tide. Anderson v. Private Capital

Grp., 549 F. App’x 715, 718 (10th Cir. 2013). As one member of this court has

explained, “The avoidance of unnecessary circuit splits furthers the legitimacy of the

judiciary and reduces friction flowing from the application of different rules to similarly

situated individuals based solely on their geographic location.” Games-Perez, 695 F.3d

at 1115 (Murphy, J., concurring in denial of rehearing en banc). And the greater the

number of circuits that are aligned together, the more an appropriate judicial modesty

should make us reluctant to reject that uniform judgment. Although Defendant’s

18 argument is hardly frivolous, we do not think it sufficiently persuasive to overcome that

reluctance.

Supporting our view that there is not a good reason, much less a strong or

compelling one, to split from the other circuits on this issue is the inaction of the

Sentencing Commission. The Commission has declined to amend the guidelines

definition of controlled substance offense to counter the unanimous circuit opinions (say,

by adding a simple cross-reference to the federal statutory definition of counterfeit

substance) during the 15 years since the first published circuit opinion adopting our

position, even after two panel dissents, see Crittenden, 372 F.3d at 710 (Dennis, J.,

concurring in part and dissenting in part); Frazier, 89 F.3d at 1508, (Godbold, J.,

concurring in part and dissenting in part), and the Seventh Circuit’s explicit suggestion

more than nine years ago that the issue “may be worth the attention of the Sentencing

Commission.” Hudson, 618 F.3d at 704. This court has repeatedly said that the

Commission’s failure to modify a guideline in response to judicial interpretations of the

guideline indicates Commission satisfaction with the interpretation. In United States v.

O’Flanagan, 339 F.3d 1229, 1231 (10th Cir. 2003), the issue was the propriety of

applying the cross reference to § 2X1.1 in § 2K2.1 to calculate an offense level under the

robbery guideline in § 2B3.1. We supported our rejection of the defendant’s argument by

noting that it was contrary to prior decisions of this court and other circuits and that “the

Sentencing Commission has not expressed displeasure with the uniform judicial

interpretation and application of § 2X1.1 in the years following.” Id. at 1235. Similarly,

in United States v. Laughrin, 438 F.3d 1245, 1248–49 (10th Cir. 2006), we followed an

19 interpretation of a guideline subsection by two other circuits, saying: “[E]ven if we

would have been inclined to disagree with the decisions by our fellow circuits as a matter

of first impression, their persuasive force has been magnified by the Sentencing

Commission’s apparent agreement with these decisions,” in that “the Sentencing

Commission has amended [the applicable guideline] twelve times since [the first of the

circuit decisions]” without changing the language of the pertinent guideline subsection.

See also United States v. Rosales-Garcia, 667 F.3d 1348, 1355 (10th Cir. 2012).

We recognize that the Supreme Court has held that “Congress’ failure to overturn

a statutory precedent is [no] reason for this Court to adhere to it.” Patterson v. McLean

Credit Union, 491 U.S. 164, 175 n.1 (1989). The Court reasoned that “[i]t is impossible

to assert with any degree of assurance that congressional failure to act represents

affirmative congressional approval of the Court’s statutory interpretation. Congress may

legislate, moreover, only through the passage of a bill which is approved by both Houses

and signed by the President. Congressional inaction cannot amend a duly enacted

statute.” Id. (citations and internal quotation marks omitted).

But the Sentencing Commission is not Congress. It is an agency within the

judicial branch, see 28 U.S.C. § 991(a) (“There is established as an independent

commission in the judicial branch of the United States a United States Sentencing

Commission . . . .”), with a unique relationship to the courts. For example, although a

core responsibility of the Supreme Court is to resolve circuit splits, the Court decided in

Braxton v. United States, 500 U.S. 344, 348 (1991), that circuit splits regarding the

sentencing guidelines are best left to the Sentencing Commission to resolve through

20 amendments to the guidelines. The Court began by reiterating its essential role in

resolving disagreements within the lower courts even though other institutions (Congress

and agencies) could act to eliminate doubt for the future.

A principal purpose for which we use our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the United States courts of appeals and state courts concerning the meaning of provisions of federal law. With respect to federal law apart from the Constitution, we are not the sole body that could eliminate such conflicts, at least as far as their continuation into the future is concerned. Obviously, Congress itself can eliminate a conflict concerning a statutory provision by making a clarifying amendment to the statute, and agencies can do the same with respect to regulations. Ordinarily, however, we regard the task as initially and primarily ours.

Id. at 347–48. But, it continued, “this may not be Congress’ intent with respect to the

Sentencing Guidelines.” Id. at 348. Noting that 28 U.S.C. § 994(o) imposes on the

Commission the duty “periodically to review and revise” the Guidelines, the Court

explained: “The Guidelines are of course implemented by the courts, so in charging the

Commission periodically to review and revise the Guidelines, Congress necessarily

contemplated that the Commission would periodically review the work of the courts, and

would make whatever clarifying revisions to the Guidelines conflicting judicial decisions

might suggest.” Id. at 348 (brackets and internal quotation marks omitted). The statutory

grant of this Commission responsibility “alone might induce us to be more restrained and

circumspect in using our certiorari power as the primary means of resolving such

conflicts,” id.; but there was more. “In addition to the duty to review and revise the

Guidelines, Congress has granted the Commission the unusual explicit power to decide

whether and to what extent its amendments reducing sentences will be given retroactive

21 effect, 28 U.S.C. § 994(u).” Id. The Court therefore decided to forgo review of the circuit

conflict, leaving that to an ongoing Commission proceeding on the issue. Since then, the

Court has continued to leave it to the Commission to resolve circuit conflicts regarding

interpretation of the guidelines.

The Commission has repeatedly expressed its proactive stance in clarifying and

improving the guidelines. See, e.g., United States Sentencing Commission, 2013 Annual

Report, A-19 (“The Commission closely monitors the sentencing decisions of the federal

courts to identify areas in which guideline amendments, research, or legislative action

may be needed.”) Then-Circuit Judge Alito commented on the uniqueness of the

Commission’s role in an essay reviewing its 1991 Annual Report:

As a court of appeals judge, I was interested by the Report’s laconic statement that many of the amendments the Commission promulgated in 1991 were “intended to clarify existing guidelines, policy statements, and commentary.” What this statement means in part is that the Commission, through the amendment process, is now performing with respect to the interpretation of the guidelines essentially the same role that the Supreme Court plays with respect to the interpretation of other federal laws: resolving circuit conflicts and generally keeping the courts of appeals in line. . . . As far as I am aware, no other federal agency—in any branch— has ever performed a role anything like it.

Samuel Alito, Reviewing the Sentencing Commission’s 1991 Annual Report, 5 Fed.

Sent’g Rep. 166, 168 (1992) (footnote omitted, emphasis added).

The dissent suggests that the Sentencing Commission limits its clarification

amendments to resolving circuit splits. But that misstates Commission practice. To be

sure, the Commission does take circuit splits seriously. Among the 53 amendments

promulgated since 2011, there are 12 that say that some of the changes in the amendment

22 are responses to circuit splits. See U.S. Sentencing Guidelines Manual supp. to app. C,

Amend. 801 at 133–37 (2018); id., Amend. 795 at 111–12; id., Amend. 794 at 108– 09;

id., Amend 792 at 104; id., Amend. 786 at 76–77; id., Amend. 784 at 72–73; id., Amend.

780 at 51– 52; id., Amend. 775 at 40–41; id., Amend. 774 at 38–39; id., Amend. 767 at

18–19; id., Amend. 766 at 15–16; id., Amend. 764 at 10–11. But the Commission, in

keeping track of what is going on in the courts, does not need to wait for a circuit split.

In the 53 post-2011 amendments, there are five stating that they are clarifying guidelines

in response to circuit-court decisions where no split was noted, see id., Amend. 812 at

194–95 (2018); id., Amend. 809 at 189; id., Amend. 803 at 160–62; Amend. 785 at 73–

74; id., Amend 762 at 8; three respond to district-court decisions, see id., Amend. 810 at

189; id., Amend. 807 at 176 (2018); id., Amend. 802 at 145; and three respond to

concerns raised by persons outside the judiciary, see id., Amend. 803 at 159–60 (note that

another provision of Amendment 803 also separately responds to judicial decisions, as

cited above); id., Amend. 799 at 128; id., Amend. 783 at 70–71. Most pertinent, on at

least one occasion it did what it has failed to do with respect to the question before us—it

amended a guideline “to address criticism by the Seventh Circuit regarding potential

ambiguity in how the [guideline] is currently phrased.” Id., Amend. 803 at 162; see

Hudson, 618 F.3d at 704. The Commission’s role is significantly broader than that of the

Supreme Court in resolving circuit splits.

The unique nature of the Sentencing Commission as it relates to the federal courts

requires a careful examination of whether its inaction in the face of numerous judicial

interpretations over an extended period of time may be of more consequence than a

23 failure of Congress to amend a statute. We think it is. The Commission has adopted 813

amendments to the guidelines, some of which make numerous changes. Given the

Commission’s duty and practice of reviewing how the federal courts are applying the

guidelines, it is clear that the failure to act has not been because of ignorance of circuit

decisions; and the Commission’s small size and focus on detail would ordinarily make

inertia or the complexity of the enactment process an unlikely cause of inaction. If, for

instance, the Commission wished to make clear that the term counterfeit substance in a

guideline is defined in the federal statute, that wish could be easily fulfilled. Also,

because of the explicit statutory grant to the Commission of the power to make guidelines

amendments retroactive, it is the present views of the Commission that are of paramount

importance. Even if it believes that the courts have correctly captured the original

meaning of a guidelines provision, it can revise its earlier view and make the “correction”

retroactive. Or if it believes that the courts have misinterpreted its original guideline but

it is content with the “new” version, it can leave the misinterpretation undisturbed.

In this light, we can say with some confidence that the Commission—being fully

aware of the circuit-court interpretations of counterfeit substance in the guideline, the

dissents from those decisions, and the suggestion by the Seventh Circuit that the

Commission address the issue—has not thought that the court decisions present a

significant problem for the guidelines. That being the case, we see no good reason to

create a circuit split.

II. CONCLUSION

We AFFIRM Defendant’s sentence.

24 17-1405, United States v. Thomas MATHESON, Circuit Judge, dissenting:

Mr. Thomas pled guilty to being a felon in possession of a firearm. He previously

had been convicted for distribution of an “imitation controlled substance”—fake heroin—

in violation of Colorado law.1 Because the district court concluded this prior offense was

for selling a “counterfeit substance,” it held that the state conviction qualified as a

“controlled substance offense” under United States Sentencing Guidelines (“Guidelines”

or “U.S.S.G.”) §§ 2K2.1 and 4B1.2(b), and it relied on the state conviction to impose an

enhanced sentence for the felon-in-possession conviction.

Mr. Thomas challenges his sentence. Resolution of his appeal turns on choosing

between two competing definitions of the term “counterfeit substance.” The majority

affirms Mr. Thomas’s enhanced sentence based on the dictionary definition and common

meaning of the word “counterfeit.” Maj. Op. at 17. In the drug enforcement context,

however, the U.S. Congress and most state legislatures define “counterfeit substance”

more narrowly than the district court’s and majority’s dictionary-based definition.

Because the Sentencing Commission promulgated Guidelines addressing drug offenses

1 Under Colorado law, an “imitation controlled substance” is “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. Ann. § 18-18-420(3). A separate provision makes it “unlawful for a person to manufacture, distribute, or possess with intent to distribute an imitation controlled substance.” Id. § 18-18-422(1)(a). against that legislative backdrop, we should rely on the predominant legal definition of

the term. I therefore dissent.

I. BACKGROUND

The Sentencing Guidelines increase the sentence for a firearms offense when a

defendant has previously committed a “crime of violence or a controlled substance

offense.” U.S.S.G. § 2K2.1(a). If the firearm offense occurred after one such crime, the

Guidelines set a base offense level at 20. U.S.S.G. § 2K2.1(a)(4). If it occurred

“subsequent to sustaining at least two felony convictions of either a crime of violence or

a controlled substance offense,” § 2K2.1(a)(2) provides for a base offense level of 24.

To define its terms, § 2K2.1 incorporates § 4B1.2(b), which states that a

“controlled substance offense” is “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) . . . .” U.S.S.G. § 4B1.2(b) (emphasis added); see U.S.S.G. § 2K2.1 cmt. n.1

(adopting the definition of “controlled substance” provided in § 4B1.2). Neither U.S.S.G.

§ 2K2.1 nor § 4B1.2(b) defines “counterfeit substance.”

Mr. Thomas pled guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). Before that conviction, Mr. Thomas had pled guilty to two

felonies: (1) robbery and (2) felony distribution of an imitation controlled substance

under Colorado Revised Statute § 18-18-422(1)(a).

At sentencing, the district court found that Mr. Thomas’s robbery conviction

qualified as a “crime of violence” and his imitation controlled substance offense qualified

2 as a “controlled substance offense.” ROA, Vol. III at 53. It regarded the imitation

controlled substance to be a “counterfeit substance” based on the “plain and ordinary

meaning” of “counterfeit.” Id. The court thus set Mr. Thomas’s base offense level at 24,

which yielded a Guideline range of 57 to 71 months of imprisonment. It sentenced Mr.

Thomas to 64 months in prison and three years of supervised release.2 Mr. Thomas

reserved his right to appeal the district court’s ruling that his “imitation controlled

substance” offense qualified as a “controlled substance offense” under U.S.S.G.

§ 2K2.1(a)(2). He filed a timely notice of appeal.

On appeal, the parties dispute the meaning of “counterfeit substance” in

§ 4B1.2(b). Relying on dictionaries and “common meaning,” Maj. Op. at 4, the majority

accepts the district court’s view that “counterfeit substance” is a substance that is “made

in imitation of something else with intent to deceive,” ROA, Vol. III at 52-53; see Maj.

Op. at 4.3 As the majority and the parties acknowledge, however, legislatures have

adopted a different definition. The Controlled Substances Act (“CSA”), 18 U.S.C.

§ 802(7); 36 states and the District of Columbia; and the Uniform Controlled Substances

Act use the term “counterfeit substance” to mean a mislabeled or misbranded controlled

substance.4 This legislative definition is narrower than the dictionary-based definition

2 If the base offense level had been 20 instead of 24, Mr. Thomas’s Guideline range would have been 37 to 46 months. 3 As discussed below, the majority does not define “substance.” 4 The CSA defines “controlled substance” as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 3 endorsed by the majority and district court. Under the legislative definition, Mr.

Thomas’s prior Colorado offense would not qualify as a controlled substance offense

under § 4B1.2(b), resulting in a lower advisory Guidelines range.

* * * *

Before proceeding to the analytical discussion, a brief summary may be useful

regarding three key terms: “controlled substance,” “counterfeit substance,” and

“imitation controlled substance.” Only the first two terms appear in § 4B1.2(b):

“controlled substance (or a counterfeit substance).” Under the district court’s and the

majority’s reading of § 4B1.2(b), “counterfeit substance” includes “imitation controlled

substance.” If “counterfeit substance” in § 4B1.2(b) is the legislative definition—a

mislabeled controlled substance—the Guideline does not apply to an “imitation

controlled substance” offense.

21 U.S.C. § 802(6). It excludes alcohol and tobacco. Id. It defines “counterfeit substance” as 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). 4 II. DISCUSSION

“We interpret the Sentencing Guidelines according to accepted rules of statutory

construction.” United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir. 2011)

(quotations omitted). Although the majority relies on various approaches to support its

definition of “counterfeit substance,” this case turns on whether the phrase’s meaning

should be based on the dictionary and common meaning or on the definition legislated by

the U.S. Congress and a substantial majority of state legislatures.

The following discussion (A) explains why we should adhere to the legislative

rather than the dictionary-based definition of “counterfeit substance,” and (B) responds to

the majority’s points.

A. Legislative Versus Dictionary Definition of “Counterfeit Substance”

We should choose the legislative definition because it (1) provides a complete

definition of “counterfeit substance”; (2) avoids the limitations inherent in dictionary

definitions; (3) was promulgated by elected legislatures; and (4) stems from the drug

enforcement context in which the Guideline term is used. See FAA v. Cooper, 566 U.S.

284, 291-99 (2012) (using legal context to define “actual damages”).

First, only legislatures have fully defined the phrase “counterfeit substance” that

appears in § 4B1.2(b). Dictionaries define “counterfeit,” but not “counterfeit substance.”

The dictionary definition therefore omits half of the relevant language. See Sullivan v.

Stroop, 496 U.S. 478, 483 (1990) (“But where a phrase in a statute appears to have

become a term of art, . . . any attempt to break down the term into its constituent words is

not apt to illuminate its meaning.”). When presented with competing definitions, we

5 should generally adopt the definition that defines the whole term rather than a portion of

it.

Second, although courts commonly consult dictionaries to understand statutory

terms,5 dictionaries should not always be the first tool of interpretation, especially when a

term has a widely recognized and established legislative definition. See Antonin Scalia &

Brian A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012)

(“Sometimes context indicates that a technical meaning applies. . . . And when the law is

the subject, ordinary legal meaning is to be expected, which often differs from common

meaning.”); see also Felix Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L. Rev. 527, 537 (1947) (“And if a word is obviously transplanted from another

legal source, whether the common law or other legislation, it brings the old soil with it.”).

The Supreme Court recently explained that when courts interpret a term with an

established “legal lineage,” dictionaries have limited utility. See Hall v. Hall, 138 S. Ct.

1118, 1124-25 (2018) (declaring “[t]his is not a plain meaning case” and declining to rely

on the dictionary definition of “consolidate” because the term had an established legal

5 See James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681 (2017) (empirical study of dictionary usage in the Supreme Court and Courts of Appeals). The reliance on dictionaries has extended to the Sentencing Guidelines. See, e.g., United States v. Wolf, 860 F.3d 175, 198 (4th Cir. 2017) (using dictionary definition to interpret Guideline term); United States v. Dougherty, 754 F.3d 1353, 1359 (11th Cir. 2014) (same). 6 meaning). Hall’s holding is in line with many others.6 This guidance favors the

legislative definition over the dictionary in this case.7

Third, legislators are elected, accountable lawmakers whose enactments defining a

particular term should receive judicial deference relative to writers and editors of

dictionaries. As Judge Mikva said, “Congress is like Humpty Dumpty in Through the

Looking Glass. When Congress uses a word, the word means what Congress says it

means, all the dictionary definitions to the contrary notwithstanding. If Congress has

established what it wants a word to mean, that is what it means.” Abner J. Mikva, A

Reply to Judge Starr’s Observations, 1987 Duke L.J. 380, 386 (1987). In this instance,

38 legislatures have adopted a definition that is contrary to the district court’s dictionary-

based definition. To reject this definition would “give a judge the relatively unrestrained

6 For example, the Supreme Court has instructed that “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” FAA v. Cooper, 566 U.S. 284, 292 (2012) (quotations and citations omitted). It also has said that “[i]n the absence of contrary indication, we assume that when a statute uses [a term of art], Congress intended it to have its established meaning.” McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991). See also Binkley v. People, 716 P.2d 1111, 1113 (Colo. 1986) (“It is a cardinal rule of statutory construction . . . that a term which has acquired a technical or particular meaning, whether by legislative definition or otherwise, should be construed according to its acquired meaning.”). 7 “Dictionaries are most useful to determine what possible meanings a word might have, but they are not as useful for reaching closure on what words might mean in different contexts, nor are they always useful for determining the ordinary meaning of word clusters (like ‘driving a vehicle’) . . . .” William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 44 (2016).

7 power to look just at the statute’s words and at Webster’s Dictionary, and to decide with

Webster’s what the law of the land will be.” Id.

The CSA does not state that its definition of “counterfeit substance” in § 802(7)

shall apply to the Sentencing Guidelines. In that regard, the CSA’s definition cannot bind

our understanding of § 4B1.2(b) under a “[l]egislative supremacy doctrine . . . of

statutory interpretation.” Daniel A. Farber, Statutory Interpretation and Legislative

Supremacy, 78 Geo. L.J. 281, 283 (1989). But the legislative definition is only a short

step removed from the Guidelines because § 4B1.2(b) applies the term “counterfeit

substance” to determine the sentencing consequences for violations of the criminal

provisions in the CSA and state drug laws. Legislatures have defined this key term for

this specific context. The dictionary writers have not, nor were they elected to do so.

Fourth, context matters.8 “[W]ords may have different meanings when used in the

context of a special subject, than they have in general usage.” United States v.

Crittenden, 372 F.3d 706, 711 (5th Cir. 2004) (quotations omitted). As the Supreme

Court has recognized, the context in which a word is used can alter a word’s meaning.

See United States v. Castleman, 572 U.S. 157, 163-68 (2014) (defining “force”

differently in the context of “violent felony” than in the context of “misdemeanor crime

of domestic violence”); see also Stephen C. Mouritsen, The Dictionary Is Not a Fortress:

Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L.

8 Judge Posner observed, “Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings.” United States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 2012).

8 Rev. 1915 (2010) (criticizing courts’ reflexive reliance on dictionaries and arguing for a

context-based approach to plain-meaning analyses).9

In this case, the context of a Guideline using prior drug offenses to calculate a

sentence is criminal drug enforcement.10 In defining the term “controlled substance

offense,” § 4B1.2(b) uses the term “counterfeit substance,” putting it squarely in the

category of offenses—state and federal—concerning criminal drug activity.11 State and

federal legislatures define the crimes underlying a defendant’s prior convictions. And, as

previously noted, the majority of states and the United States define “counterfeit

substance” as Mr. Thomas proposes for § 4B1.2(b).

Because Sentencing Guidelines regarding prior drug offenses fall squarely in the

context of criminal drug laws, we should rely on legislators over lexicographers and

9 See Wilson v. Safelite Grp., Inc., 930 F.3d 429, 438-42 (6th Cir. 2019) (Thapar, J., concurring in part and in the judgment) (discussing merits of using context-based tools to determine plain meaning). 10 The primary audience for the Guidelines reinforces the point that § 4B1.2(b) was written for the criminal drug enforcement context. Given their complexity, “[i]ntricate guidelines are addressed not to potential criminals, but to the judges, prosecutors, and other officials who administer the criminal justice system.” Ronald F. Wright, Complexity and Distrust in Sentencing Guidelines, 25 U.C. Davis L. Rev. 617, 618 (1992). As Professor Eskridge explains, the case for the “technical [meaning of] terms is strongest and most relevant” for rules “addressed to particular public or private officials and not to the general population.” Eskridge, supra note 7, at 60. 11 Justice Scalia, a leading proponent of dictionary usage, wrote that “[t]he meaning of terms on the statute books ought to be determined . . . on the basis of which meaning is (1) most in accord with context and ordinary usage, and . . . (2) most compatible with the surrounding body of law into which the provision must be integrated.” Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (Scalia, J., concurring). 9 interpret the term “counterfeit substance” in accordance with its established legal

meaning. See Hall, 138 S. Ct. at 1124-25 (interpreting the term “consolidate” according

to its legal, rather than common usage, definition).

B. Responses to the Majority’s Other Points

“As a general rule,” the majority agrees that “when dealing with a technical or

specialized subject, we should understand terms in their technical or specialized

meaning.” Maj. Op. at 7. The following addresses the majority’s arguments to avoid that

“general rule” and use the dictionary definition instead.

First, the majority relies on Johnson v. United States, 599 U.S. 133, 138-40

(2010), in which the Supreme Court interpreted the meaning of the word “force” in the

Armed Career Criminal Act and favored the dictionary over the common law definition.

Maj. Op. at 7-8. The Court, however, started with the common law definition,

recognized it as a term of art, and decided it did not “fit” with other terms in the statute,

all before turning to the dictionary. In other words, the Court’s first option was the

common law’s definition, not the dictionary’s.12 See also Chapman v. United States, 500

U.S. 453, 454 (1991) (stating that because “the Sentencing Guidelines do not define

12 The Supreme Court’s later decision in Castleman, 572 U.S. at 168, applied Johnson and found that a “misdemeanor crime of domestic violence” is satisfied “by the degree of force that supports a common-law battery conviction.” Castleman therefore clarified that, where the common law definition of a term of art fits with other terms of the statute, courts need not resort to the dictionary definition. See id. It reached that conclusion, in part, by looking to state assault and battery laws. Id. at 167.

10 ‘mixture,’ and it has no established common-law meaning, it must be given its ordinary

meaning”).13

Our circuit follows a similar approach to understand references to generic offenses

in the Guidelines. See, e.g., United States v. Rivera-Oros, 590 F.3d 1123, 1126-27 (10th

Cir. 2009) (looking at “a wide range of sources . . . including federal and state statutes,

the Model Penal Code, dictionaries, and treatises” to define the generic, contemporary

meaning of an offense under the Guidelines).

Second, the majority urges that applying the legislative definition of “counterfeit

substance” to § 4B1.2(b) would make “(or a counterfeit substance)” redundant. Maj. Op.

at 8-9. This would, the majority states, “add[] no substantive content” to § 4B1.2(b)’s

definition of “controlled substance offense” because “every counterfeit substance is

already a controlled substance.” Id. at 8.

The majority relies heavily on this canon. But the redundancy (or surplusage)

canon is not always conclusive and may be discounted in statutory interpretation. See

Lamie v. United States Tr., 540 U.S. 526, 536 (2004) (“[O]ur preference for avoiding

surplusage constructions is not absolute.”); Chickasaw Nation v. United States, 534 U.S.

13 In another case called Johnson v. United States, 529 U.S. 694, 706-08 (2000), the Supreme Court bypassed a dictionary definition when it was clear Congress had intended a different meaning. The Court held that a provision in the 1984 Sentencing Reform Act that authorized a district court to “revoke” a term of supervised release and send the defendant back to prison also allowed the imposition of a further term of supervised release after the incarceration. Id. at 703-07. The Court acknowledged that the primary dictionary definition of “revoke” is “to annul by recalling or taking back.” Id. at 704 (quoting Webster’s Third New International Dictionary 1944 (1981)). But it concluded that Congress wanted to use “revoke” in an unconventional sense, “allowing a ‘revoked’ term of supervised release to retain vitality after revocation.” Id. at 707. 11 84, 94 (2001); Scalia & Garner, supra, at 176-79.14 As the Supreme Court recently

explained,

If one possible interpretation of a statute would cause some redundancy and another interpretation would avoid redundancy, that difference in the two interpretations can supply a clue as to the better interpretation of a statute. But only a clue. Sometimes the better overall reading of the statute contains some redundancy.

Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). In the Guidelines

context, the Fifth Circuit has held that the “canon is inapt in the context of [U.S.S.G. §]

4A1.1, in which the [Sentencing] Commission was trying to account for myriad

‘jurisdictional variations in offense definitions, sentencing structures, and manner of

sentence pronouncement.’” United States v. Enrique-Ascencio, 857 F.3d 668, 675 (5th

Cir. 2017) (quoting U.S.S.G. § 4A1.1 cmt. background). Stated succinctly,

“[r]edundancy is not a silver bullet.” Rimini St., 139 S. Ct. at 881.

Moreover, parentheticals are often used to clarify terms. Here, the § 4B1.2(b)

parenthetical may reasonably be read to clarify that “controlled substance offense”

includes the legislative definition of “counterfeit substance.”15 See Mizrahi v. Gonzales,

14 “Sometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill- conceived but lamentably common belt-and-suspenders approach.” Scalia & Garner, supra, at 176-77. See also Linda D. Jellum, Mastering Statutory Interpretation 104 (2008) (“Statutes are not always carefully drafted. Legal drafters often include redundant language on purpose to cover any unforeseen gaps or simply for no good reason at all.”). 15 Under the Controlled Substances Act, a “counterfeit substance” offense is not the same as a “controlled substance” offense. As defined by statute, a “controlled substance” is (1) “a drug or other substance,” (2) as defined in separate “schedules,” and (3) is not alcohol or tobacco. 21 U.S.C. § 802(6). A “counterfeit substance” is (1) a 12 492 F.3d 156, 166 (2d Cir. 2007) (noting that the disjunctive parenthetical in 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) “need not be assigned a different meaning from the preceding

language to avoid being surplusage; it can reasonably be construed to illustrate or explain

the broader proposition”).

A reader of § 4B1.2(b) would benefit from this clarification given that “controlled

substance” and “counterfeit substance” appear side-by-side in the U.S. Code. The

definition of “counterfeit substance” in 21 U.S.C. § 802(7) is separate from and comes

immediately after the definition of “controlled substance” in § 802(6). Similarly,

21 U.S.C. § 841(a)(1) makes it unlawful “to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or dispense, a controlled substance,” while

the next subsection, 21 U.S.C. § 841(a)(2), makes it unlawful “to create, distribute, or

dispense, or possess with intent to distribute or dispense, a counterfeit substance.”16 The

controlled substance, (2) mislabeled to look like it was produced by another person, and (3) which thereby purports to be from that person. Id. § 802(7). Thus, “counterfeit substance” incorporates the definition of “controlled substance,” but it includes additional requirements. Similarly, most states have “controlled substance” offenses that are distinct from “counterfeit substance” offenses. They also have distinct “imitation controlled substance” offenses. Colorado provides an example. See Colo. Rev. Stat. Ann. § 18-18-405 (controlled substances); id. § 18-18-422 (imitation controlled substances); id. § 18-18-423 (counterfeit controlled substances). 16 The majority notes that § 841(a)(1) uses the word “manufacture,” while § 841(a)(2) instead uses “create.” It then points out that § 4B1.2(b) uses “manufacture” and suggests that the Guideline’s word choice is significant. See Maj. Op. at 13. The difference between (a)(1) and (a)(2) may suggest there is a difference between manufacturing a controlled substance and creating a counterfeit substance, but it does not change that, under § 802(7), a “counterfeit substance” is necessarily a “controlled substance.” In other words, if the definition of “counterfeit substance” is redundant in 13 terms “controlled” and “counterfeit” substance are related and often appear together. But

they are not the same. The parenthetical in § 4B1.2(b) thus serves a useful, non-

redundant clarifying function.

Third, the majority discounts § 4B1.2(b)’s placement of “or a counterfeit

substance” in a parenthetical. Maj. Op. at 9-11. In general, parentheses “indicate a word,

phrase, or clause that has been interjected by way of explanation or qualification” and are

used to “set off an inserted phrase, clause, or sentence that [the author] want[s] to

minimize.” Bryan A. Garner, The Chicago Guide to Grammar, Usage, and Punctuation

365 (2016) (emphasis added). The majority, however, would have us “give substantive

effect to language in [the] parenthetical” by interpreting “(or a counterfeit substance)” to

“expand[] the relevant offenses to encompass those involving fake controlled

substances.” Maj. Op. at 10. This interpretation would significantly enlarge the

substantive scope of the Guideline to cover multiple state offenses. Indeed, the district

court’s definition would expand the term “controlled substance offense” in § 4B1.2(b) to

include offenses that do not involve controlled substances, such as Mr. Thomas’s sale of

rocks and sand made to look like heroin. The substantive reach of the district court’s and

majority’s reading would seem to merit more than a mere parenthetical.

This is especially so because state law “imitation controlled substance” offenses—

such as Mr. Thomas’s—are not punishable under the federal narcotics laws. See United

§ 4B1.2(b), then, under the majority’s logic, it must also be redundant under 21 U.S.C. § 802(6) and § 802(7).

14 States v. Sampson, 140 F.3d 585, 589 (4th Cir. 1998) (“Simply because a substance looks

like cocaine, and the defendant misrepresents to his unsuspecting purchaser that the

substance is cocaine, does not make the mere distribution of that substance a violation of

the federal narcotics laws.”). Moreover, states like Colorado label “imitation controlled

substance” offenses as such. See, e.g., Colo. Rev. Stat. Ann. § 18-18-420(3). If the

Commission wished to include those offenses in its definition of “controlled substance

offenses,” it could easily have added the word “imitation.”

Fourth, the majority emphasizes the Commission’s use of the word “or” in “(or

counterfeit substance),” noting that the Commission generally uses “or” in parentheticals

to “expand[] the scope of [a] guideline to include things that would generally not be

considered subsets of the term.” Maj. Op. at 12. The majority’s ensuing point is

well-taken that the case for the legislative definition of “counterfeit substance” would be

stronger if § 4B1.2(b) had said “(including a counterfeit substance)” instead of “(or a

counterfeit substance).” But the majority’s expansive interpretation of “counterfeit

substance” would take the point too far, broadening the Guideline’s coverage more than

the Commission’s other “or” parentheticals. See, e.g., U.S.S.G. § 2B1.1 cmt. n.10(D)

(using an “or” parenthetical to expand “name” to include “or other identifying

information”). Maj. Op. at 12.17 The “or” parenthetical here is more consistent with its

17 The majority’s point that § 4B1.2(b) contains ten commas should draw the attention of drafting stylists, but whether commas, parentheticals, or nothing surrounds the words “counterfeit substance” does not make the case for the dictionary-based definition of “counterfeit substance” any stronger. Indeed, as noted above, using parentheticals around a phrase that, under the majority’s understanding, would 15 clarifying message that the Guideline covers controlled substance offenses as defined in

the federal and most criminal codes. See Mizrahi, 492 F.3d at 166 (concluding that the

“or” parenthetical in 8 U.S.C. § 1182(a)(2)(A)(i)(II) “can reasonably be construed to

illustrate or explain the broader proposition” (emphasis added)).

Fifth, the majority points to the lack of any cross-reference to the statutory

definition of “counterfeit substance” in § 4B1.2(b) in contrast to Application Note 4 to

U.S.S.G. § 2D1.1, which states that “counterfeit substances” are defined in 21 U.S.C.

§ 802(7) as “controlled substances that are falsely labeled.” See Maj. Op. at 13-14. This

point would carry more weight were it not for the Background Commentary to § 4B1.1

and its reference to 28 U.S.C. § 994(h). Section 994(h) provides for sentencing

enhancements under the Guidelines for persons convicted of counterfeit substance

offenses under 21 U.S.C. § 841, which in turn criminalizes counterfeit substance offenses

based on § 802(7)’s definition. See Crittenden, 372 F.3d at 711 (Dennis, J., dissenting in

part) (finding the CSA’s “definition of the term ‘counterfeit substance’ has been

effectively incorporated into the Guidelines”). This cross-reference to § 802(7) is,

however, admittedly attenuated because it is not explicit and does not appear in

§ 4B1.2(b).

More telling is that courts routinely incorporate the CSA’s definition of

“controlled substance” into their Guidelines analysis even when the applicable Guidelines

incorporate multiple state imitation drug offenses into the Guideline does not seem to be the obvious punctuation choice.

16 section does not cross-reference the Act. See United States v. Sanchez-Garcia, 642 F.3d

658, 661-62 (8th Cir. 2011) (noting § 4B1.2(b) does not define “controlled substance”

and using the CSA’s definition to determine whether prior conviction qualified as a

“controlled substance offense”).18 In doing so, they draw on the legislative definition of

“controlled substance” and the well-established body of law surrounding it. See id. To

illustrate, U.S.S.G. § 2L1.2 does not define “controlled substance,” but it defines a “drug

trafficking offense” using materially identical language to U.S.S.G. § 4B1.2(b)’s

definition of “controlled substance offense.”19 Yet even without a cross-reference, courts

assume the CSA’s legislative definition of a “controlled substance” applies. See, e.g.,

United States v. Leiva–Deras, 359 F.3d 183, 189 (2d Cir. 2004) (using the CSA to

determine whether a prior conviction meets the criteria for a “drug trafficking offense”

under U.S.S.G. § 2L1.2(b)(1)(A)(i)). Given that § 4B1.2(b) does not define “controlled

18 See also United States v. Kelly, 991 F.2d 1308, 1316 (7th Cir. 1993) (using the CSA to determine if marijuana is a “controlled substance” under U.S.S.G. § 2K2.1(a)); United States v. Madkins, 866 F.3d 1136, 1144 (10th Cir. 2017) (relying on the CSA to define the word “distribute” under U.S.S.G. § 4B1.2(b)); United States v. Gardner, 534 F. Supp. 2d 655, 660-61 (W.D. Va. 2008) (holding that defendant’s imitation controlled substance conviction was not a “felony drug offense” for the purposes of a statutory sentencing enhancement under 21 U.S.C. § 841(b)(1)(A)). 19 Under § 2L1.2, a “drug trafficking offense” is “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell 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.” U.S.S.G. § 2L1.2, cmt. n.2; see United States v. Walker, 858 F.3d 196, 200 n.4 (4th Cir. 2017) (“The Guidelines’ definition of ‘controlled substance offense’ is substantively identical to the definition of ‘drug trafficking offense’ at issue here.”).

17 substance” or “counterfeit substance,” and that courts rely on the CSA to understand the

meaning of “controlled substance,” courts should rely on the CSA’s definition of

“counterfeit substance” in § 802(7) for consistent Guidelines interpretation.

Sixth, the majority cites decisions from five other circuits that have reached the

same conclusion it has reached. Maj. Op. at 17-19.20 But two of the decisions drew

dissents, see Crittenden, 372 F.3d at 710 (Dennis, J., dissenting in part); United States v.

Frazier, 89 F.3d 1501, 1508 (11th Cir. 1996) (Godbold, J. dissenting in part), and the

Seventh Circuit correctly recognized that the issue presents a “surprisingly complicated

question,” United States v. Hudson, 618 F.3d 700, 701 (7th Cir. 2010). We are, of

course, not bound by out-of-circuit decisions.21

We have departed from our sibling circuits when we disagree with them. See

Jewell v. United States, 749 F.3d 1295, 1300 (10th Cir. 2014) (“We are hesitant to create

a circuit split, but we have little choice because we are obliged to follow the Supreme

Court’s holding . . . even if other circuit courts have not.”); see also United States v.

20 See United States v. James, 712 F. App’x 838, 840 (11th Cir. 2017) (unpublished) (citing United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996)); United States v. Hudson, 618 F.3d 700, 705 (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); Crittenden, 372 F.3d at 709. 21 Neither are the district courts in this circuit. Since Mr. Thomas’s sentence and conviction, at least two district court decisions in the Tenth Circuit addressed the issue. See United States v. Horton, 17-CR-00048-RM, Dist. Ct. Docs at 44, 48 (D. Colo. Sept. 15, 2017) (sentencing transcript not published); United States v. Pigford, No. 16-CR- 00181-LTB, Dist. Ct. Doc. at 35 (D. Colo. Sept. 13, 2016) (same). In both, the district court agreed with the defendant, declining to accept the government’s argument that the dictionary definition should be applied to “counterfeit” under U.S.S.G. § 4B1.2(b).

18 Games-Perez, 695 F.3d 1104, 1123 n.7 (10th Cir. 2012) (Gorsuch, J., dissenting from

denial of reh’g en banc) (“Although we are hesitant to create a circuit split, we must

follow the unambiguously expressed intent of Congress.” (quotations and alterations

omitted)). Recently, in Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016), we split with

the D.C. Circuit notwithstanding the dissent’s forceful criticism of our decision to do so.

See id. at 1201 (McKay, J., dissenting) (“[T]he majority is resolved to create a circuit

split. When there are competing understandings of Supreme Court precedent, I would

prefer the outcome that does the least mischief.”). The Supreme Court ultimately agreed

with our view of the issue. See Lucia v. SEC, 138 S. Ct. 2044, 2050-51 (2018).22

In delegating to the Sentencing Commission the statutory duty “periodically [to]

review and revise” the Guidelines, 28 U.S.C. § 994(o), “Congress necessarily

contemplated that the Commission would periodically review the work of the courts, and

would make whatever clarifying revisions to the Guidelines conflicting judicial decisions

might suggest,” Braxton v. United States, 500 U.S. 344, 348 (1991). Advancing a

contrary position on a Guideline interpretation alerts the Commission to take a second

look.23

22 Rigid adherence to prudential avoidance of a circuit split would give the first circuit to consider an issue the power to decide it for all circuits. As then-Professor Posner noted, “[A] difficult legal question is more likely to be answered correctly if it is allowed to engage the attention of different sets of judges deciding factually different cases than if it is answered finally by the first panel to consider it.” Richard A. Posner, The Federal Courts: Crisis and Reform 163 (1985). 23 See Samuel Estreicher & John Sexton, Redefining the Supreme Court’s Role: A Theory of Managing the Federal Judicial Process 48 (1986) (“From the absence of a rule 19 I share the majority’s reluctance about creating a circuit split. But I am wary

about subordinating the decisions of elected legislators, who have defined the term at

issue here, to those of lexicographers, who have defined only half of the term for all

contexts, for the sake of acquiescing to out-of-circuit decisions.

Seventh, the majority relies on the Sentencing Commission’s inaction in the face

of the circuit opinions that have addressed this issue. Maj. Op. at 19-25. This court has

been reluctant to rely on Commission inaction. See United States v. Smith, 133 F.3d 737,

748 (10th Cir. 1997) (“Since no guideline amendments were proposed, [the defendant]

interprets the Commission’s inaction as endorsing the adequacy of the existing

guidelines. [The defendant] reads too much into the Commission’s inaction.”); see also

United States v. Marshall, 998 F.2d 634, 636 n.4 (8th Cir. 1993) (“Several years of

inaction arguably suggests Congressional and Sentencing Commission satisfaction with

the current situation, but we do not discount the force of inertia in governmental

affairs.”); Advanced Micro Devices v. C.A.B., 742 F.2d 1520, 1541 (D.C. Cir. 1984)

(“The general rule is that congressional inaction or congressional action short of the

enactment of positive law, like postenactment legislative history, is often entitled to no

weight in construing a statute.”) (citing and discussing scholarly commentary).

Why has the Commission not clarified § 4B1.2(b)? We could speculate that the

Commission’s inaction connotes approval of judicial interpretation of the Guidelines, or

of intercircuit stare decisis . . . we derive a basic premise that disuniformity, at least in the short run, may be tolerable and perhaps beneficial.”).

20 that the Commission instead has focused more on addressing circuit splits.24 But

engaging in this conjecture would raise a host of questions, including: (1) How long

must the Commission fail to act before we draw meaning from its silence? (2) How

many circuits must weigh in on the issue before we decide that view is established? (3)

Do district court opinions count? (4) Does an inference from Commission inaction

require judicial consensus? And (5) do dissenting opinions matter? Although

Commission inaction may “offer[] . . . a modicum of . . . support” for an existing

interpretation in some circumstances, see United States v. Rosales-Garcia, 667 F.3d

1348, 1355 (10th Cir. 2012), interpreting the Commission’s silence can be a speculative

exercise. This factor does not, in my view, outweigh the predominant legislative

definition of “counterfeit substance.”

III. CONCLUSION

The majority relies on the dictionary, a concern about redundancy, the lack of a

cross-reference in § 4B1.2(b) to § 802(7), fear of a circuit split, and Commission inaction.

The redundancy concern is unpersuasive. On the cross-reference point, the context in

which § 4B1.2(b) falls and the foregoing discussion provide countervailing

considerations. The prudential concern about a circuit split is legitimate but overstated.

24 Indeed, many amendments to the Guidelines have addressed “circuit conflicts.” The majority identifies 12 such amendments since 2011. Maj. Op. at 23. I count at least 49 overall. See U.S.S.G. app. C, amends. 472, 500, 549, 552, 564, 566, 568, 572, 579, 577, 580, 581, 582, 583, 591, 597, 602, 603, 604, 613, 614, 615, 617, 630, 632, 634, 635, 645, 660, 664, 667, 691, 693, 709, 731, 732, 741, 752, 759, 764, 766, 767, 774, 775, 780, 786, 794, 795, 801 (effective Nov. 1, 2018). 21 And Commission inaction is unconvincing. The case for the legislative definition is

stronger than for the dictionary.

We should adhere to the established legal meaning of “counterfeit substance” as

defined by 36 state legislatures, the District of Columbia, the Uniform Substances Act,

and the U.S. Congress. Because Mr. Thomas’s imitation controlled substance offense

does not fit within that definition, I would remand for the district court to resentence him

under a properly calculated Guideline range.