UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD RAY THOMAS, a/k/a Donald Ray Thomas, II, Defendant - Appellant.
No. 17-1405
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
October 1, 2019
PUBLISH; Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00325-PAB-1); Elisabeth A. Shumaker, Clerk of Court
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.
The sole issue presented on this appeal is the meaning of counterfeit substance in
Under
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.
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
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.
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 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
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 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.
(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,
The Uniform Controlled Substances Act uses the term counterfeit substances in the same way:
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, 559 U.S. 133, 138 (2010), the Supreme Court had to resolve the meaning in the Armed Career Criminal Act (ACCA),
Similar reasoning requires rejection of Defendant‘s argument. Application of his definition of counterfeit substance in
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.
To avoid the surplusage canon, Defendant notes that the term counterfeit substance appears in
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,
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,
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
A further indication, if any is needed, that
Defendant also argues that the history of
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
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.”
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, 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 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
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
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
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
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 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
failure of Congress to amend a statute. We think it is. The Commission
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.
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 against that legislative backdrop, we should rely on the predominant legal definition of the term. I therefore dissent.
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.”
To define its terms,
Mr. Thomas pled guilty to being a felon in possession of a firearm in violation of
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
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
On appeal, the parties dispute the meaning of “counterfeit substance” in
* * * *
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
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
Second, although courts commonly consult dictionaries to understand statutory
terms,5 dictionaries should not always be
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 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 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
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. 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,”
Because Sentencing Guidelines regarding prior drug offenses fall squarely in the context of criminal drug laws, we should rely on legislators over lexicographers and 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
First, the majority relies on Johnson v. United States, 559 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 ‘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
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. 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
Moreover, parentheticals are often used to clarify terms. Here, the
A reader of
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
Third, the majority discounts
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
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.,
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
Fifth, the majority points to the lack of any cross-reference to the statutory
definition of “counterfeit substance” in
More telling is that courts routinely incorporate the CSA‘s definition of
“controlled substance” into their Guidelines analysis even when the applicable Guidelines
section does not cross-reference the Act. See United States v. Sanchez-Garcia, 642 F.3d
658, 661-62 (8th Cir. 2011) (noting
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. 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,
Notes
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.
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.”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.
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
III. CONCLUSION
The majority relies on the dictionary, a concern about redundancy, the lack of a
cross-reference in
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.