United States v. Brown, 638 F.3d 816

Indictment charged Brown with two counts of distributing cocaine base within 1,000 feet of a protected location; Brown pled guilty to one count under a plea agreement.
District court determined Brown’s two Iowa convictions for delivery of a simulated controlled substance qualified as “felony drug offenses” under §841(b)(1)(A), imposing life imprisonment.
On Brown’s appeal, we held neither Iowa conviction qualified as a felony drug offense under §802(44), vacating and remanding for resentencing.
At resentencing, the district court applied the career offender enhancement under §4B1.1, because Brown’s criminal history qualified, though his base offense level remained 35.
The district court’s calculation yielded a total offense level of 33 and a criminal history category VI, producing a guideline range of 235–293 months, and the court varied downward to 210 months; Brown challenges the career offender designation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brown qualifies as a career offender under §4B1.1.	Brown argues his two Iowa simulations are not controlled substance offenses.	Brown contends the simulated substances do not meet §4B1.2(b) as counterfeit substances.	Yes; they qualify as controlled substance offenses, making him a career offender.
Whether simulated controlled substances satisfy “counterfeit substance” under §4B1.2(b).	Brown asserts no; simulated substances are not counterfeit under the guideline.	Brown relies on Robertson to equate simulated with counterfeit.	Yes; the definition includes made-in-imitation with intent to deceive, satisfying counterfeit substance.
Standard of review for career offender determination; notice issue under §851.	Argues potential error in sentencing based on memo of record and notice.	§851 not applicable given career-offender sentence within statutory maximum.	De novo review; §851 not applicable here.

United States v. Crippen, 627 F.3d 1056 (8th Cir. 2010) (de novo review of career-offender designation; two prior offenses needed for §4B1.1(a)(3))
Robertson v. United States, 474 F.3d 538 (8th Cir. 2007) (counterfeit substance includes made-in-imitation and intent-to-deceive elements)
United States v. Shepard, 462 F.3d 847 (8th Cir. 2006) (§851 notice requirements when sentence falls within statutory maximum)