Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:09-CR-00053(01)RM-Robert L. Miller, Jr., Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before FLAUM, WOOD, and HAMILTON, Circuit Judges.
This case raises a surprisingly complicated question: under the Sentencing Guidelines, are crimes involving phony versions of illegal drugs properly characterized as "controlled-substance offenses"? Irvin Hudson pleaded guilty to possession of a firearm as a felon and possession of a stolen firearm. Hudson's recommended sentence under the guidelines depends on the nature of his previous offense: if his earlier conviction amounted to a "controlled-substance offense," then the guidelines would recommend a longer sentence. Before he was caught with the gun, Hudson had been convicted in the Indiana state courts of the crime of dealing in a substance represented to be a controlled substance (marijuana)-a so-called "look-alike" drug offense. The district court concluded that Hudson's Indiana conviction qualified as a controlled-substance offense, calculated the guidelines range on that basis, and sentenced him to a within-guidelines sentence of 72 months' imprisonment. Hudson appeals his sentence to this court.
This appeal turns on how to classify Indiana's look-alike drug crimes. The Sentencing Guidelines specifically define controlled-substance offenses to include crimes related to controlled substances or "counterfeit substances." The district court and the government rely on the plain meaning of "counterfeit" to sweep in Hudson's look-alike offense. Hudson responds that look-alikes literally are neither controlled substances nor counterfeit substances. He observes that different parts of the guidelines, federal drug laws, and Indiana law define the term "counterfeit substance" in a manner that would not include faux marijuana. Those provisions limit the definition of "counterfeit substance" to controlled substances that bear false designations of source and thus appear to have been legitimately manufactured or distributed, rather like the apocryphal "Rolex" watches that can be bought on some streets for $10 apiece. Although Hudson's argument gives us pause, we join our sister circuits in the view that "look-alike" offenses constitute controlled-substance offenses for sentencing purposes.
We begin with a survey of Indiana's drug offenses. Indiana law creates three categories of drug crimes, the first of which addresses certain conduct related to controlled substances. See IND. CODE §§ 35-48-4-1 et seq. This case does not involve that part of the law.
Second, Indiana, like many states, has counterfeit-substance crimes. See id. § 35-48-4-5 (criminalizing creating, delivering, financing the delivery of, or possessing with the intent to deliver or finance the delivery of a counterfeit substance). Indiana's definition of "counterfeit substance," like the corresponding federal definition, does not include non-controlled substances passed off as street drugs. Compare id. § 35-48-1-10 (" '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 who in fact manufactured, distributed, or dispensed the substance.") with 21 U.S.C. § 802(7) ("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."). Hudson was not charged with a counterfeit-substance offense under Indiana law.
Third and finally, Indiana law establishes "look-alike" drug offenses. See IND. CODE § 35-48-4-4.5 & -4.6. As mentioned earlier, look-alikes are non-controlled substances held out as controlled substances. See, e.g., United States v. Williams, 553 U.S. 285, 317-18, 320 (2008) (Souter, J., dissenting) (discussing virtual child pornography by analogy to a drug dealer selling baking powder instead of powder cocaine); Conner v. State, 626 N.E.2d 803, 805 (Ind. 1993) (discussing the sentence for selling oregano held out as marijuana); State v. Wilson, 466 N.W.2d 101 (N.D. 1991) (discussing sale of parsley masquerading as marijuana). Compare NY court sniffs at ex-cop's drugged-dinner claim, ASSOCIATED PRESS (Feb. 5, 2010) (describing individual's claim that his failed drug test could be explained by his wife's sub rosa substitution of marijuana for oregano in a recipe for meatballs). Hudson was convicted of the following look-alike drug offense:
A person who knowingly or intentionally delivers or finances the delivery of any substance, other than a controlled substance or a drug for which a prescription is required under federal or state law, that:
(1) Is expressly or impliedly represented to be a controlled substance;
(2) Is distributed under circumstances that would lead a reasonable person to believe that the substance is a controlled substance; or
(3) By overall dosage unit appearance, including shape, color, size, markings, or lack of markings, taste, consistency, or any other identifying physical characteristic of the substance, would lead a reasonable person to believe the substance is a controlled substance; commits dealing in a substance represented to be a controlled substance, a Class D felony.
IND. CODE § 35-48-4-4.5(a). We turn now to the interaction between this state-law conviction and the district court's calculation of the ...