## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-2509

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Dennis Morris Brown, * * [PUBLISHED] Appellant. *

___________ Submitted: April 15, 2011 Filed: May 12, 2011

___________ Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

___________ PER CURIAM. A federal grand jury returned an indi ctment charging Dennis Brown with two counts of distributing cocaine base within1,000 feet of a protected location, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 860. Brown pled guilty to one of the two counts, pursuant to a plea agreemen t. Over Brown’s objection, the district court determined that Brown’s two prior Io wa convictions for delivery of a simulated controlled substance qualified as “felony drug offenses” and subjected him to a mandatory term of life imprisonment pursuan t to § 841(b)(1)(A). As a result, the court sentenced Brown to life imprisonmen t. Brown appealed, and upon determining that neither of Brown’s previous convicti ons for delivery of a simulated controlled substance was a “felony drug offense” as defined in 21 U.S.C. § 802(44), our court1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.
-2- vacated his sentence and remanded for resentencing. United States v. Brown , 598 F.3d 1013, 1018 (8th Cir. 2010).

At Brown’s resentencing hearing, the district court 1 determined that Brown’s criminal history qualified him as a car eer offender pursuant to U.S.S.G. § 4B1.1. Because Brown’s base offense level of 35 already was higher than the applicable career offender offense level, the career o ffender enhancement did not affect Brown’s offense level. The enhancement did, how ever, increase Brown’s criminal history category from V to VI. The district cour t then reduced Brown’s offense level by 2 levels for acceptance of responsibility. See § 3E1.1(a). With a total offense level of 33 and a criminal history category of VI , Brown’s resulting advisory sentencing guidelines range was 235 to 293 months’ imprisonment. The district court varied downward and imposed a sentence of 210 months. Brown appeals his sentence, arguing that the district court erred in applying the career offender enhancement.

“We review the district court’s determination that a defendant qualifies as a career offender de novo.” United States v. Crippen , 627 F.3d 1056, 1066 (8th Cir. 2010). In order to qualify as a career offende r, the defendant musthave “at least two prior felony convictions of either a crim e of violence or a controlled substance offense.” § 4B1.1(a)(3). The term “c ontrolled substance offense” is defined as:

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohib its 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. § 4B1.2(b) (emphases added).-3- Brown’s two convictions relied upon by the district court to apply the career offender enhancement were “a 1992 conviction for delivery of a substance that he represented to be methamphetamine but wa s later determined not to contain any controlled substance . . . [and] a 1993 conviction for delivery of a substance that he represented to be cocaine but was later determined not to c ontain any controlled substance, [both] in violation of Iowa Code § 204.401.” Brown , 598 F.3d at 1014. The parties agree that the “c harging documents incorrectly refer to Brown’s offenses as delivery of a ‘counterfe it’ controlled substance,” see id. at 1014 n.1, and that the two convictions were for the delivery of a “simulated controlled substance,” see id. at 1014. Iowa law defines a “simulated controlled substance” as:

a substance which is not a controlled substance but which is expressly represented to be a controlled substance, or a substance which is not a controlled substance but which is impliedly represented to be a controlled substance and which because of its nature, packaging, or appearance would lead a reasonable person to believe it to be a controlled substance.
Iowa Code § 204.101(27) (1991) (recodifi ed at Iowa Code § 124.101(28) (2010)).

Brown argues that a “simulated contro lled substance,” as defined by the Iowa Code, does not qualify as a “counterfeit subs tance” under § 4B1.2(b). “The guidelines do not define the term ‘counterfeit subs tance,’ and § 4B1.2 does not import the definition found in the Controlled Substance Act.” United States v. Robertson , 474 F.3d 538, 540 (8th Cir. 2007). As such, in Robertson , our court looked to “the plain meaning of counterfeit” and determined that, if a substance is “made in imitation” and “with an intent to deceive,” the substance “is ‘counterfeit’ for the purposes of § 4B1.2 and qualifies as a controlle d substance offense under th e career offender provision.” Id. at 541.2The Illinois statute defined a “look alike substance” as “a substance, other than a controlled substance which . . . (2) is e xpressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the s ubstance is a controlled substance.” Robertson , 474 F.3d at 541-42 (quoting 720 Ill. Comp. Stat. 570/102(y)).

3 Brown also argues that the government did not satisfy the notice requirements of 21 U.S.C. § 851. Because Brown’s “sentence was determined by the career offender Guideline and it fell within the maximum statutory range[,] . . . § 851 has no application to his sentencing.” See United States v. Shepard , 462 F.3d 847, 873 (8th Cir. 2006); see also United States v. Wallace , 895 F.2d 487, 489-90 (8th Cir. 1990).
-4- In Robertson , we determined that an Illinois statute 2contained the made-in-imitation and intent-to-deceive el ements of “counterfe it” for the purposes of § 4B1.2. See id . at 542 (“Facially, it is readily apparent that [section] (y)(2) . . . includes the ‘made-in-imitation’ component of ‘counterfe it[,]’ . . . [and] the plain language in [section] (y)(2)—‘expressly or impliedly represented’ and ‘distributed under circumstances which woul d lead a reasonable person to believe that the substance is a controlled substance’ —clearly contains an intent-to-deceive element.”). Because the Illinois statute’ s definition of “look alike substance” in Robertson and the Iowa statute’s definition of “simulated controlled substance” in this case both contain the same operative language, compare 720 Ill. Comp. Stat. 570/102(y)(2) with Iowa Code § 204.101(27), we c onclude that the definition of “simulated controlled substance” in section 204.101(27) contains the made-in-imitation and in tent-to-deceive elements and, thus, satisfies the plain meaning of “counterfeit substance.” Consequently, Brown’s two Iowa convictions for delivery of a simulated controlled substance qualify as controlled substance offenses for the purposes of § 4B1.1(a), and the district c ourt did not err when it sentenced Brown as a career offender.

We affirm Brown’s sentence. 3

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