IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20307

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MOHAMMAD JAMAL RASHID, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:13-CR-579

Before JONES, SMITH, and COSTA, Circuit Judges.

PER CURIAM:*

Mohammad Jamal Rashid (Rashid) pled guilty to one count of receiving 

in interstate commerce and delivering or proffering for delivery, drugs that 

were misbranded, for pay or otherwise, with intent to defraud and mislead, in 

violation of 21 U.S.C. §§ 331(c) and 333(a)(2). He also pled guilty to one count 

of conspiracy, inter alia, to import counterfeit goods. 18 U.S.C. § 371. The 

district court applied a two-level enhancement under U.S.S.G. § 2B5.3(b)(6)(A)

and imposed a sentence of 27 months’ imprisonment on both counts, to run 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 23, 2015

Lyle W. Cayce

Clerk

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concurrently, as well as separate terms of supervised release on each 

conviction. Rashid appeals the application of the risk enhancement under 

§ 2B5.3(b)(6). We find the evidence insufficient to support the district court’s 

implicit finding under this guideline that Rashid’s conduct created a risk of 

death or serious bodily injury. Accordingly, we VACATE Rashid’s sentence 

and REMAND. 

I.

Rashid entered into an agreement with Ashiq Ali Ghulan-Haider, also 

known as “Tina,” and an individual known as Zalfiqar to import misbranded, 

counterfeit drug tablets from China into the United States. Specifically, 

Rashid agreed to receive at his home a package containing counterfeit drugs 

labeled as Viagra® and Cialis® tablets. In return for Rashid’s cooperation, 

Tina agreed to forgive a $300 debt Rashid owed to him. The package, 

addressed to a false name at Rashid’s address, was seized by United States 

Customs and Border Protection Officers. It contained 7,200 counterfeit and 

misbranded tablets of Viagra and Cialis. An undercover federal agent then 

delivered the seized package to Rashid’s home, where Rashid purported to be 

the person whose name was listed on the package and told the agent that he 

had been expecting its arrival. After Rashid accepted the package, the agent 

detained him for questioning. 

During questioning, Rashid detailed his agreement with Tina and 

Zulfiqar and agreed to cooperate with the investigation. Samples of the 

counterfeit tablets were sent to the Food and Drug Administration (“FDA”), 

Pfizer, and Eli Lilly for testing;1 the tests confirmed that the tablets were 

counterfeit and misbranded. The packages of Viagra purported to contain 

 

1 Pfizer is the exclusive manufacturer and distributor of Viagra in the United States, 

and Eli Lilly is the exclusive manufacturer and distributor of Cialis in the United States.

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100 milligrams of sildenafil citrate, but testing revealed that each tablet 

contained less than 100 milligrams of the ingredient. The Cialis tablets also 

contained sildenafil citrate, though the package claimed that the tablets 

contained 20 milligram of tadalafil, the active ingredient in Cialis.

After Rashid pled guilty, the probation officer determined a base level of 

eight for Rashid’s offense, recommended several enhancements in the

presentence report (“PSR”), including a two-level enhancement under U.S.S.G. 

§ 2B5.3(b)(6)(A) for an offense that “involved a conscious or reckless risk of 

death or serious bodily injury,” and calculated the advisory guidelines range at 

33 to 41 months’ imprisonment. Rashid objected to the enhancement under 

§ 2B5.3(b)(6)(A) as unwarranted because the PSR contained no evidence that 

the tablets were capable of causing death or serious bodily injury. In an 

addendum to the PSR, the probation officer replied that “the offense, by its 

nature, and on the instant facts given the incorrect pharmaceutical ingredients 

in the tables, involves the conscious or reckless risk of death or serious bodily 

injury to prospective customers.” The government submitted “victim impact 

statements” from Eli Lilly and Pfizer. Each company’s statement included 

approximately one paragraph warning about the potential risks that drugs like 

Viagra or Cialis can pose.

At sentencing, the court overruled all of Rashid’s objections, adopting the

PSR and its addenda. The district judge made no specific findings regarding

§ 2B5.3(b)(6)(A), but stated only that “of course, these drugs could only be 

selected by a lawfully – by written prescription, and I think the response 

speaks for itself.” The district judge also suggested the possibility that the 

counterfeit tablets also contained “fillers,” such as “industrial stuff.” Defense 

counsel objected to the suggestion as “wildly inappropriate” speculation, and 

the judge noted that he would not consider it when making his sentencing 

decision. The court imposed a sentence, slightly below the guidelines range, of

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27 months’ imprisonment on both counts concurrently. Rashid did not again 

object to the sentence, but filed a timely notice of appeal.

II. 

We review a district court’s application of the sentencing guidelines de 

novo, and its factual findings for clear error. See United States v. GarciaGuerrero, 313 F.3d 892, 895 (5th Cir. 2002). Rashid challenges the district 

court’s application of § 2B5.3(b)(6)(A), asserting that the evidence does not 

support the finding that the tablets he received were capable of causing death 

or serious bodily injury, nor does it support a finding that he was consciously 

aware of any risk of death or serious bodily injury, or that any such risk would 

have been obvious to a reasonable person.

The application of the § 2B5.3(b)(6)(A) risk enhancement is one of first 

impression in this court. U.S.S.G. § 2B5.3(b)(6), Criminal Infringement of 

Copyright or Trademark, provides:

[i]f the offense involved (A) the conscious or reckless risk of death 

or serious bodily injury . . . increase by 2 levels.”2

 

§ 2B5.3(b)(6). Rashid maintains that the enhancement was conjectural and 

thus clearly erroneous because the government did not show that the 

counterfeit tablets in fact posed a risk of death or serious bodily injury. He

also challenges the implication that generalized statements about the dangers 

associated with counterfeit drugs can be sufficient to establish risk.

The 2011 Guidelines define a “serious bodily injury” as an “injury 

involving extreme physical pain or the protracted impairment of a function of 

a bodily member, organ, or mental faculty; or requiring medical intervention 

 

2 The PSR used the 2011 edition of the Guidelines. In November 2013, the Guidelines 

were amended and the risk enhancement provision was renumbered § 2B5.3(b)(6)(A). For 

the purposes of simplicity, all citations in this opinion will be to the provision as designated 

under the current Guidelines.

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such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1, 

comment n.1(L). At sentencing, the district court did not explain why Rashid’s 

conduct created a risk of serious injury sufficient to justify the risk 

enhancement, saying only that the presence of counterfeit Viagra and Cialis

“speaks for itself.” This finding is premised on a belief that counterfeit drugs 

are per se risky and pose an inherent risk of serious bodily injury. With regard 

to the application of sentence enhancements, however, this court has

emphasized that bright-line tests are not necessarily appropriate. See United 

States v. Bailon, 444 F. App’x 55, 61 (5th Cir. 2011) (“[A] single, bright-line test 

is not necessarily appropriate for a guideline that must be applied to a wide 

variety of factual settings.”) (quoting Zuniga-Amezquita, 468 F.3d 886, 889 

(5th Cir. 2006)). Because § 2B5.3(b)(6) may apply to innumerable counterfeit 

drugs, it is best defined through careful application to the specific facts of a 

case. See Bailon, 444 F.App’x at 61 (refusing to adopt a blanket rule that giving 

any drug to a minor who is not one’s child carries an inherent risk of serious 

bodily injury). Relevant factors a district court may consider in cases involving 

counterfeit drugs may include the nature of the particular drug involved, all of 

its active and inactive ingredients, the intended uses, the individuals for whom 

the drug is designed, and the FDA-issued warnings about the drug.

In Zhou, for example, the Tenth Circuit held the enhancement was 

proper where the defendant’s production and distribution of counterfeit Alli®, 

a weight loss drug, created the risk of serious bodily injury. United States v. 

Zhou, 717 F.3d 1139 (10th Cir. 2012). The risk of injury was established by 

FDA alerts “describing the serious health risks posed generally by drugs 

containing Sibutramine . . . and warnings specifically addressing the health 

risks of the counterfeit Alli [the defendant] was producing and distributing.” 

Zhou, 717 F.3d 1139, 1151-52. Specifically, there was evidence in Zhou that 

individuals taking counterfeit Alli “may have been taking three times the usual 

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daily dose . . . . [Those doses cause] anxiety, nausea, heart palpitations, 

tachycardia (a racing heart), insomnia and small increases in blood pressure 

in healthy people. In those with a history of cardiovascular disease, it could 

lead to elevated blood pressure, stroke, or heart attack.” Zhou, 717 F.3d at 

1152 n.5. Notably, the inquiry in Zhou was not whether the particular risk 

was inherent in all counterfeit drugs, nor was it limited to the question of 

whether the defendant’s specific counterfeit drugs posed the requisite risk. 

Instead, the court focused on whether the type of drug was generally associated 

with such risk and if so, whether counterfeiting the drug compounded the 

likelihood of the risk. 

In this case, the PSR relied only on general statements regarding the 

importance of FDA oversight and the government’s “victim impact statements”

provided on behalf of Pfizer and Eli Lilly. The PSR noted, without further 

explanation, that “the offense, by its nature, and on the instant facts given the 

incorrect pharmaceutical ingredients in the tablets, involves the conscious or 

reckless risk of death or serious bodily injury to prospective customers.” The 

“victim impact statements” from Eli Lilly and Pfizer were equally vague. Each 

company’s statement includes only one paragraph that mentions potential 

health concerns associated with the drugs. Indeed, the extent of the warnings 

contained in Pfizer’s statement are as follows: 

Pharmaceutical drugs like VIAGRA® are substances that must be 

carefully handled and transported in specific ways and under 

specific conditions. When the supply chain is compromised or 

counterfeit drugs are sold patients may receive drugs that are 

ineffective or unsafe.

Similarly, Eli Lilly’s statement declares that:

Counterfeit drugs pose an inherent risk of death or serious bodily 

injury. Approved pharmaceutical manufacturers are subject to 

FDA oversight and inspection of their manufacturing processes as 

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well as strict packaging and labeling requirements . . . . Lilly’s 

manufacturing processes are tightly controlled in order to prevent 

inadvertent or knowing adulteration of its pharmaceutical 

products. Offenses involving counterfeit drugs circumvent these 

processes and pose a grave threat to public health and safety.

Unlike in Zhou, where the FDA had issued warnings about the dangers of 

ingesting Alli and counterfeit Alli products, none of the evidence here suggests

that a similar danger of serious bodily injury or death is associated with 

Viagra, Cialis, or their counterfeit counterparts. 

To justify applying the § 2B5.3(b)(6) enhancement for a counterfeit drug 

offense, the government must provide at least some evidence that the 

particular drug or the particular counterfeit version poses a threat of serious 

bodily injury or death. Without more, generalized statements about the safety 

concerns associated with counterfeit drugs are insufficient to support a twolevel increase under § 2B5.3(b)(6)(A). See Zhou, 717 F.3d at 1152.

Neither the PSR nor the “victim impact statements” support a finding

that drugs like Viagra, Cialis, and their counterfeits, are associated with an 

increased risk of death or serious bodily injury. The district court’s application 

of the enhancement provision under § 2B5.3(b)(6) was error. The record is 

unclear as to whether the district court would have imposed the same sentence 

under the lower advisory guidelines range calculated without reference to this 

enhancement. Because there is a possibility that Rashid’s sentence was 

influenced by the erroneous guidelines calculation, the error is not harmless.3 

Accordingly, we VACATE Rashid’s sentence and REMAND for resentencing 

consistent with this opinion. 

 

3 Having concluded that the application of the enhancement was error based on the 

analysis of risk, we need not reach Rashid’s additional arguments discussing his subjective 

awareness of the risk or the contention that the risk would have been obvious to a reasonable 

person.

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