Tuesday, May 08, 2007

Look-a-Like Drug Conviction = Controlled Substance Offense Under 2K2.1

US v. Mills: Mills was stopped in his car in Baltimore. During a consensual search, an officer found 120 rounds of ammunition. A later search at Mills's business uncovered a stash of guns and associated paraphernalia. Mills eventually pleaded guilty to being a felon in possession of ammunition. At sentencing, the issue was whether Mills's base offense level under USSG 2K2.1 should be 24 or 20, based on his prior convictions. Mills contended that his prior Maryland conviction for "possession with intent to distribute look-a-like controlled dangerous substances" was not a "controlled substance offense" sufficient to support the higher base offense level (he admitted another prior conviction that fit the definition of "crime of violence"). The district court disagreed, set the base offense level at 24, and sentenced Mills to 70 months in prison.

On appeal, the Fourth Circuit affirmed Mills's sentence. The court concluded that the term "counterfeit substance," as used in USSG 4B1.2(b) and to which 2K2.1 cross references, was not defined by the Guidelines and therefore retained its plain meaning. Under that plain meaning, Mills's prior offense - which involved distributing substances that were not narcotics under the false pretense that they were - involved a counterfeit substance and therefore was a controlled substance offense. The court rejected Mills's attempt to read the definition of "counterfeit substance" from 21 USC 802(7) (which involves falsely labelled prescription drugs) into 4B1.2(b), noting that the Sentencing Commission knows how to cross reference to specific statutory definitions and it's failure to do so in this case must have been intentional. The court also rejected Mills's argument that the fact that simulated drug offenses are not counted for career offender purposes required a definition of counterfeit substance different from the plain meaning.

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