United States v. Larry Robertson ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2158
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Larry Robertson, also known as *
“Bo,” *
*
Appellant. *
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Submitted: November 14, 2006
Filed: January 24, 2007
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Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
This case presents the purely legal issue of whether a conviction for the
manufacture/distribution of a “look-alike” substance under Illinois law qualifies as a
controlled substance offense for purposes of the career offender provision of the
United States Sentencing Guidelines. The district court1 held that it does. We affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
I. BACKGROUND
In 2005, Larry Robertson pled guilty to one count of conspiracy to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846, and one count of possession
of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
presentence investigation report (PSR) classified Robertson as a career offender under
U.S.S.G. § 4B1.1 because he was at least 18 years old at the time of the instant
offense, the instant offense was a felony controlled substance offense, and he had one
prior felony conviction for a crime of violence and one prior felony conviction for a
controlled substance offense. The two career offender-qualifying prior convictions
were both from Illinois: one for armed robbery in 1999 and another for
manufacture/distribution of a “look-alike” substance in 2002. Robertson conceded
that the armed robbery conviction qualified as a crime of violence but objected to the
characterization of the look-alike substance conviction as a controlled substance
offense. The district court found that it did qualify and deemed Robertson a career
offender under § 4B1.1, resulting in a base offense level of 37. The district court also
found that the look-alike substance conviction qualified as a prior drug felony which
doubled the statutory mandatory minimum from ten years to twenty years under 21
U.S.C. § 841(b)(1)(A).
Robertson received a three-level reduction for acceptance of responsibility.
With a total offense level of 34 and a criminal history category of VI, the district court
identified an advisory sentencing guidelines range of 262 to 327 months. The
Government made a motion under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1,
recommending a 30 percent downward departure to a sentence below the statutory
mandatory minimum based on Robertson’s substantial assistance. The district court
departed 20 percent from the bottom of the advisory guidelines range and sentenced
Robertson below the 20-year statutory minimum to 210 months’ imprisonment. On
appeal, Robertson challenges the district court’s determination that his Illinois look-
alike substance conviction qualified as a controlled substance offense under § 4B1.1
and as a prior drug felony under 21 U.S.C. § 841(b)(1)(A).
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II. DISCUSSION
We review de novo the district court’s conclusion that the Illinois look-alike
substance conviction qualifies as a controlled substance offense for purposes of the
career offender provision of the guidelines. See United States v. Oman, 427 F.3d
1070, 1076 (8th Cir. 2005). The relevant portion of the career offender provision
states that a “defendant is a career offender if . . . 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(a).
The term “controlled substance offense” is defined by the guidelines as:
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.
U.S.S.G. § 4B1.2(b) (emphases added). Thus, it is clear that a conviction of a
counterfeit substance offense qualifies as a controlled substance offense for the
purposes of the career offender enhancement.
The Illinois code contains a counterfeit substance offense, 720 Ill. Comp. Stat.
570/401, but Robertson was not convicted under it. Instead, Robertson was convicted
under the Illinois look-alike substance statute, which states: “It is unlawful for any
person knowingly to manufacture, distribute, advertise, or possess with intent to
manufacture or distribute a look-alike substance.” 720 Ill. Comp. Stat. 570/404(b).
The Government concedes that the Illinois look-alike statute does not apply to
controlled substances. Therefore, the only issue is whether his conviction of a look-
alike substance offense is the equivalent of a counterfeit substance offense under
§ 4B1.2.
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The guidelines do not define the term “counterfeit substance,” and § 4B1.2
does not import the definition found in the Controlled Substance Act (“CSA”).2 We
agree with the Fifth Circuit that, in absence of a definition, “we accord counterfeit its
plain meaning.” United States v. Crittenden, 372 F.3d 706, 709 (5th Cir. 2004); see
also United States v. Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir. 2006), cert.
denied, --- U.S. ---, 126 S. Ct. 1386 (2006) (using the “ordinary, contemporary,
common meaning” of “sexual abuse of a minor” where the guidelines did not define
it). In Crittenden, the Fifth Circuit addressed the issue of whether a conviction under
a Texas statute prohibiting the “delivery of a simulated controlled substance” qualified
as a controlled substance offense for the purposes of § 4B1.1. Crittenden, 372 F.3d
at 706. Acknowledging that a simulated controlled substance is not a controlled
substance, the Crittenden court was faced with the issue of whether a simulated
controlled substance qualified as a counterfeit substance. Id. at 707. Recognizing that
§ 4B1.2 neither defined the term “counterfeit” nor imported the definition from the
2
Had the Commission wished to import the CSA definition, as Robertson urges
this Court to do, it certainly could have. Indeed, the Commission’s incorporation of
federal statutory definitions in other guidelines provisions indicates its capability to
do so. See, e.g., U.S.S.G. § 1B1.1 cmt. n.1(F) (defining “destructive device” by
reference to 26 U.S.C. § 5845(f)); U.S.S.G. § 2A2.3 cmt. n.3 (defining “substantial
bodily injury” by reference to 18 U.S.C. § 113(b)(1)); U.S.S.G. § 2B1.1 cmt. n.1
(defining “trade secret” by reference to 18 U.S.C. § 1839(3)). Therefore, the
Commission’s failure to reference the CSA definition of “counterfeit” in the career
offender provision evidences an intent to depart from it. See Chernin v. Lyng, 874
F.2d 501, 506 (8th Cir. 1989) (finding Federal Meat Packing Act that granted targeted
employers, but not targeted employees, a right to a hearing “demonstrate[d]
Congress’s intent to exclude such employees from the administrative process”).
Moreover, incorporation of the CSA definition of counterfeit substance would
violate the “settled rule that a statute must, if possible, be construed in such fashion
that every word has some operative effect.” United States v. Nordic Vill., Inc., 503
U.S. 30, 36 (1992). The CSA defines a counterfeit substance as “a controlled
substance.” 21 U.S.C. § 802(7). Therefore, to use this definition of counterfeit
substance would effectively read out the word “or” in the phrase “controlled substance
(or counterfeit substance)” used twice in § 4B1.2 (emphasis added).
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CSA, the Fifth Circuit turned to the dictionary to discern the plain meaning of
counterfeit. Id. at 707-09. We likewise adopt this procedure. See United States v.
Honken, 184 F.3d 961, 969 (8th Cir. 1999) (using the dictionary to define the plain
meaning of “extraordinary case” where the guidelines did not define it).
At issue is the phrase “counterfeit substance,” but we believe that the definition
of the single word counterfeit is dispositive. The dictionary defines the adjective
counterfeit as “made in imitation of something else with intent to deceive: forged.”
Merriam-Webster’s Collegiate Dictionary 285 (11th ed. 2005); see also Black’s Law
Dictionary 376 (8th ed. 2004) (“to unlawfully forge, copy or imitate an item . . . or to
possess such an item without authorization and with the intent to deceive or defraud
by presenting the item as genuine”). We agree with the conclusion in Crittenden that
the plain meaning of counterfeit has two essential components: (1) made in imitation
and (2) intent to deceive. Crittenden, 372 F.3d at 708; cf. State Bank of Poplar Bluff
v. Md. Cas. Co., 289 F.2d 544, 547-48 (8th Cir. 1961) (defining, in the negotiable
instrument context, the noun counterfeit as “that which is made in imitation of
something with a view to deceive”). Therefore, if a substance is made in imitation
with an intent to deceive, it is “counterfeit” for the purposes of § 4B1.2 and qualifies
as a controlled substance offense under the career offender provision.
Having reached this general conclusion, we follow Crittenden’s analysis and
next examine the elements of the Illinois look-alike substance offense in order to
determine if Robertson’s look-alike substance conviction involved a substance that
was made in imitation with an intent to deceive. See Crittenden, 372 F.3d at 708(examining how the Texas code defined “simulated controlled substance” to
determine if it matched the dictionary definition of counterfeit).
Robertson pled guilty to manufacturing/distributing a look-alike substance in
violation of 720 Ill. Comp. Stat. 570/404(b). The Illinois code defines a “look-alike
substance” as:
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a substance, other than a controlled substance which (1) by overall dosage
unit appearance, including shape, color, size, markings or lack thereof,
taste, consistency, or any other identifying physical characteristic of the
substance, would lead a reasonable person to believe that the substance
is a controlled substance, or (2) is expressly or impliedly represented to
be a controlled substance or is distributed under circumstances which
would lead a reasonable person to believe that the substance is a
controlled substance.
720 Ill. Comp. Stat. 570/102(y). The Texas statute at issue in Crittenden defined
“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.” Crittenden, 372 F.3d at 708 (quoting Texas Health & Safety Code Ann.
§ 482.001(4)) (emphasis added). Unlike the Texas statute, the Illinois statute provides
two alternative definitions for a look-alike substance. Therefore, because the record
does not reveal whether Robertson was convicted under (y)(1) or (y)(2), we must
address both clauses of the Illinois look-alike substance statute independently to
determine whether either or both accord with the plain meaning of counterfeit as used
in § 4B1.2.
Facially, it is readily apparent that (y)(1) and (y)(2) each includes the “made-
in-imitation” component of “counterfeit.” Turning to the “intent-to-deceive”
component, the plain language in (y)(2)— “expressly or impliedly represented” and
“distributed under circumstances which would lead a reasonable person to believe that
the substance is a controlled substance”—clearly contains an intent-to-deceive
element. By contrast, the language of (y)(1) is not as clear. Here, we depart from
Crittenden’s analysis and defer to the Appellate Court of Illinois, which recently
interpreted the meaning of this statute.3
3
We note that although Crittendon did not look to Texas cases to aid the
interpretation of the statute at issue in that case, we have found the procedure useful
in the past when required to determine if a state-law conviction qualifies for a
guidelines enhancement. See, e.g., United States v. McCall, 439 F.3d 967, 972-73
(8th Cir. 2006) (en banc) (relying on Supreme Court of Missouri decision to determine
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In People v. Anderson, the court addressed the defendant’s challenge to the
sufficiency of the evidence to convict him of possession with intent to deliver a
look-alike substance, the same statute under which Robertson was convicted. 848
N.E.2d 98, 101 (Ill. App. 2006), appeal denied by --- N.E.2d ---, 221 Ill. 2d 644 (Ill.
Sep. 27, 2006). Anderson unsuccessfully attempted to sell crushed peanuts as crack
cocaine. Id. at 100. Law enforcement discovered the peanuts in plastic baggies on
Anderson’s person after they arrested him for armed violence. Id. The arresting
officer testified that upon first seeing the substance, he “immediately formed an
assumption that it was crack cocaine,” despite Anderson’s statement to the officer that
it was “just peanuts, man.” Id. at 100-01. The Anderson court held that the
defendant’s ability to “pass off a phoney substance as real” by its “appearance and
packaging” alone, was sufficient “to establish the substance as a look-alike under
clause (1) of section 102(y).” Id. at 105. In other words, the Anderson court found
the physical characteristics and appearance of the substance indicative of an intent to
“pass off” the substance as real, and, therefore, sufficient to support a conviction
under (y)(1). Id. Furthermore, we note that if (y)(1) is not read to contain an intent-
to-deceive element, it would be capable of imposing criminal liability in some
circumstances without proof of any criminal intent. See United States v. Apfelbaum,
445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a
criminal actus reus are generally required for an offense to occur.”). Therefore, we
conclude (y)(1) also contains an intent-to-deceive element.
The Anderson court also noted the “additional fact” that the defendant
“represented the substance as crack cocaine” would also support a violation of (y)(2).
See id. Therefore, we believe that Anderson’s reading of the look-alike statute
suggests that both (y)(1) and (y)(2) have the necessary intent-to-deceive element, the
whether Missouri’s DWI offense qualified as a violent felony under the Armed Career
Criminal Act); United States v. Johnson, 417 F.3d 990, 998 (8th Cir. 2005) (bolstering
the conclusion that the Missouri offense of tampering in the first degree qualified as
a violent felony under the Armed Career Criminal Act by examining Missouri
decisions).
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former through its physical characteristics and the latter through representations or the
circumstances under which it is presented. Because both (y)(1) and (y)(2) contain the
made-in-imitation and intent-to-deceive elements, we conclude that both definitions
of “look-alike substance” provided in the Illinois code satisfy the plain meaning of
counterfeit. As such, Robertson’s conviction under 720 Ill. Comp. Stat. 570/404(b)
qualifies as a controlled substance offense for the purposes of § 4B1.2.
Robertson also challenges the district court’s finding that his Illinois look-alike
substance conviction was a felony drug conviction that doubled his mandatory
minimum sentence under 21 U.S.C. § 841(b)(1)(A). Prior to sentencing, the
Government filed a substantial assistance downward departure motion under § 5K1.1
and 18 U.S.C. § 3553(e), vesting the district court with authority to sentence
Robertson below the statutory mandatory minimum. Because we affirm the district
court’s classification of Robertson as a career offender, the district court correctly
determined Robertson’s advisory guidelines range, prior to considering the departure
motion, as 262 to 372 months. Because the Government’s motion allowed the district
court to depart below the applicable statutory minimum, be it ten or twenty years, and
because the guidelines range before considering the downward departure motion
exceeded either statutory minimum, we need not reach the issue of which statutory
minimum applies.4
III. CONCLUSION
For the foregoing reasons, we affirm Robertson’s sentence.
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4
At oral argument, Robertson’s counsel conceded that if we affirmed
Robertson’s career offender status, we need not reach the statutory mandatory
minimum issue.
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