939 F.3d 1121
10th Cir.2019Background
- Defendant Donald Ray Thomas pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and reserved an appeal of a sentencing issue.
- At sentencing the district court treated a prior Colorado conviction for distribution of an “imitation controlled substance” (fake heroin) as a qualifying “controlled substance offense” under the Guidelines, producing a higher base offense level (24 instead of 20).
- USSG §2K2.1(a) sets higher base levels when a firearms offense is committed subsequent to prior felony convictions for a crime of violence or a controlled substance offense; §4B1.2(b) defines “controlled substance offense” and includes the parenthetical “(or a counterfeit substance).”
- The disputed question: what does “counterfeit substance” mean in §4B1.2(b)? Thomas urged the statutory/legislative meaning (21 U.S.C. §802(7))—a mislabeled controlled substance; the government urged the ordinary-English meaning—a noncontrolled substance passed off as a controlled substance.
- The Tenth Circuit majority adopted the government’s construction (matching five other circuits), held Thomas’s prior Colorado conviction counted under §4B1.2(b), and affirmed the sentence; Judge Matheson dissented, arguing the legislative definition should control.
Issues
| Issue | United States' Argument | Thomas' Argument | Held |
|---|---|---|---|
| Whether “counterfeit substance” in USSG §4B1.2(b) means (a) a non‑controlled substance passed off as a controlled substance (ordinary meaning) or (b) a controlled substance that is mislabeled/misbranded per the CSA; and whether Thomas’s Colorado “imitation” conviction qualifies as a prior controlled‑substance offense for §2K2.1 enhancement | The term should be read in its ordinary sense (a fake substance passed off as drugs); that reading expands §4B1.2(b) to include state imitation/counterfeit‑drug offenses like Thomas’s, supporting the §2K2.1 enhancement | The term should be read by its legislative/drug‑law definition (21 U.S.C. §802(7)): a mislabeled controlled substance; that definition excludes Colorado’s imitation‑drug offense, so the prior conviction does not qualify for the enhancement | The court adopted the ordinary‑English meaning (noncontrolled substances passed off as controlled substances), concluded Thomas’s prior conviction qualified as a “counterfeit substance” offense for Guidelines purposes, and affirmed the enhanced sentence. |
Key Cases Cited
- United States v. Hudson, 618 F.3d 700 (7th Cir. 2010) (adopts ordinary‑meaning reading of “counterfeit substance” and invites Sentencing Commission review)
- United States v. Mills, 485 F.3d 219 (4th Cir. 2007) (reads Guidelines’ parenthetical to include noncontrolled substances passed off as controlled substances)
- United States v. Crittenden, 372 F.3d 706 (5th Cir. 2004) (joins majority view interpreting “counterfeit substance” broadly)
- DePierre v. United States, 564 U.S. 70 (2011) (Supreme Court: Guidelines and statutory terms may be defined differently in different contexts)
- Johnson v. United States, 559 U.S. 133 (2010) (context controls choice among competing meanings of an ambiguous term)
- Braxton v. United States, 500 U.S. 344 (1991) (recognizes Sentencing Commission’s role in resolving guideline interpretation issues)