IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff, 

vs. 

PERRION BLUFORD,

Defendant.

4:23-CR-3056

TENTATIVE FINDINGS

The Court has received the revised presentence investigation report in 

this case. There are no motions for departure or variance. The defendant has 

objected to the presentence report. Filing 67.

IT IS ORDERED:

1. The Court will consult and follow the Federal Sentencing Guidelines to 

the extent permitted and required by United States v. Booker, 543 U.S. 

220 (2005) and subsequent cases. In this regard, the Court gives notice 

that, unless otherwise ordered, it will:

(a) give the advisory Guidelines respectful consideration within the 

context of each individual case and will filter the Guidelines' advice 

through the 18 U.S.C. § 3553(a) factors, but will not afford the 

Guidelines any particular or "substantial" weight;

(b) resolve all factual disputes relevant to sentencing by the greater 

weight of the evidence and without the aid of a jury;

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(c) impose upon the United States the burden of proof on all 

Guidelines enhancements;

(d) impose upon the defendant the burden of proof on all Guidelines

mitigators;

(e) depart from the advisory Guidelines, if appropriate, using preBooker departure theory; and

(f) in cases where a departure using pre-Booker departure theory is 

not warranted, deviate or vary from the Guidelines when there is 

a principled reason justifying a sentence different than that called 

for by application of the advisory Guidelines, again without 

affording the Guidelines any particular or "substantial" weight.

2. There are no motions that require resolution at sentencing. The 

defendant has objected to several paragraphs of the presentence report, 

but all the objections hinge on the same argument: That 79 pills 

suspected to be MDMA, but which apparently weren't, shouldn't be 

included in the drug quantity for purposes of calculating the offense level 

for possession of marijuana with intent to deliver. Filing 67. The 

defendant's objection, at least on the present record, has merit.

The defendant was arrested with 79 pills suspected to be MDMA, and 

1.45 kg of suspected marijuana. The presentence report describes how 

initially, the drugs seized from the defendant tested negative for 

controlled substances, but a later sample tested positive for marijuana. 

According to the defendant, the pills were found not to be a controlled 

substance. Filing 67 at 1. And that's consistent with the following 

passage from the prosecutor's version of the offense:

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The investigator would further explain that those involved 

in selling drugs sometimes sell counterfeit drugs. 

Counterfeit drugs can be obtained at a lower cost because 

they are not illegal. Those involved in selling drugs will 

sometimes sell both actual and counterfeit drugs to their 

customers and pass the counterfeit drugs off as actual drugs 

and sell them at the market price for illegal drugs. 

Nonetheless, the presentence report includes those pills in the drug 

quantity calculation, and they matter—if they were MDMA, their 

converted drug weight would be the equivalent of 9.88 kg of marijuana.

According to the presentence report, "counterfeit" drugs are still included 

in the guidelines calculation.

But these pills—unless evidence is adduced showing that they're a 

controlled substance of some kind—aren't "counterfeit" drugs within the 

applicable definition. True, U.S.S.G. § 2D1.1—the guideline establishing 

the base offense level for controlled substance offenses—does apply to 

"'counterfeit' substances, which are defined in 21 U.S.C. § 802 to mean 

controlled substances that are falsely labeled so as to appear to have 

been legitimately manufactured or distributed." § 2D1.1, cmt. n.4. But 

that definition, found in 21 U.S.C. § 802(7), states that

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, 

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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.

In other words, a "counterfeit" controlled substance is still a controlled 

substance—just not the controlled substance it's purported to be.1 A 

substance which appears to be a controlled substance, but actually isn't, 

also isn't a "counterfeit" controlled substance within the definition found 

in § 802(7) or § 2D1.1 cmt. n.4. See United States v. Thomas, 939 F.3d 

1121, 1126 (10th Cir. 2019) (every counterfeit substance is already a 

controlled substance; a counterfeit substance is simply a controlled 

substance that is mislabeled to conceal its origin); United States v. 

Sampson, 140 F.3d 585, 589 (4th Cir. 1998) (fake cocaine made from wax, 

flour and baking soda was not a "counterfeit substance" under § 802(7)); 

United States v. Franklin, 125 F.3d 851 (5th Cir. 1997) (a "simulated 

controlled substance" is not a "counterfeit substance" under the 

Guidelines); United States v. Cooper, 121 F.3d 130, 134 (3d Cir. 1997) (if 

a substance is not a "controlled substance," it cannot be a "counterfeit 

substance" within the meaning of § 802(7)); cf. United States v. Brown, 

598 F.3d 1013, 1016 (8th Cir. 2010) (Congress has never regulated 

simulated or look-alike controlled substances).

1 The parlance seems to be this: a "counterfeit" controlled substance is a controlled substance 

being passed off as something else—say, fentanyl pills labeled with a brand name for 

oxycodone or alprazolam. But a fake controlled substance, which isn't actually controlled at 

all, is a "look-alike" or "simulated" controlled substance.

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For that reason, the Court finds the defendant's objection to have merit, 

at least at this point. If, indeed, there is no evidence that the suspected 

MDMA pills were some kind of controlled substance, then those pills 

don't count towards the drug quantity calculation and base offense level 

for Count I. And as far as the Court can tell, the defendant's calculations 

based on that objection—that without the pills, the defendant's 

guidelines range would be 27 to 33 months—appear to be correct.

The government bears the burden to prove drug quantity by a 

preponderance of the evidence. United States v. Young, 689 F.3d 941, 945 

(8th Cir. 2012). Accordingly, the Court will make a final ruling on the 

defendant's objection based on the evidence at sentencing.

3. Except to the extent, if any, that the Court has sustained an objection,

granted a motion, or reserved an issue for later resolution in the 

preceding paragraph, the parties are notified that the Court's tentative 

findings are that the presentence report is correct in all respects.

4. If any party wishes to challenge these tentative findings, that party 

shall, as soon as possible (but in any event no later than three (3) 

business days before sentencing) file with the Court and serve upon 

opposing counsel an objection challenging these tentative findings, 

supported by a brief as to the law and such evidentiary materials as are 

required, giving due regard to the local rules of practice governing the 

submission of evidentiary materials. If an evidentiary hearing is 

requested, such filings should include a statement describing why a 

hearing is necessary and how long such a hearing would take.

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5. Absent timely submission of the information required by the preceding 

paragraph, the Court's tentative findings may become final and the 

presentence report may be relied upon by the Court without more.

6. Unless otherwise ordered, any objection challenging these tentative 

findings shall be resolved at sentencing.

Dated this 31st day of January, 2024.

BY THE COURT:

John M. Gerrard

Senior United States District Judge

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