United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2509

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United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Dennis Morris Brown, *

* [PUBLISHED]

Appellant. *

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Submitted: April 15, 2011

Filed: May 12, 2011

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Before BYE, COLLOTON, and GRUENDER, Circuit Judges. 

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PER CURIAM. 

A federal grand jury returned an indictment charging Dennis Brown with two

counts of distributing cocaine base within 1,000 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 agreement. Over Brown’s objection, the district

court determined that Brown’s two prior Iowa convictions for delivery of a simulated

controlled substance qualified as “felony drug offenses” and subjected him to a

mandatory term of life imprisonment pursuant to § 841(b)(1)(A). As a result, the

court sentenced Brown to life imprisonment. Brown appealed, and upon determining

that neither of Brown’s previous convictions for delivery of a simulated controlled

substance was a “felony drug offense” as defined in 21 U.S.C. § 802(44), our court
1

 The Honorable Linda R. Reade, Chief Judge, 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 court1

 determined that Brown’s

criminal history qualified him as a career 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 offender enhancement did not affect Brown’s

offense level. The enhancement did, however, increase Brown’s criminal history

category from V to VI. The district court 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 offender, the defendant must have “at least two

prior felony convictions of either a crime of violence or a controlled substance

offense.” § 4B1.1(a)(3). The term “controlled substance offense” is defined as:

an offense under federal or state law, punishable by imprisonment for a

term exceeding one year, that prohibits 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 was 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 contain any controlled

substance, [both] in violation of Iowa Code § 204.401.” Brown, 598 F.3d at 1014.

The parties agree that the “charging documents incorrectly refer to Brown’s offenses

as delivery of a ‘counterfeit’ 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) (recodified at Iowa Code § 124.101(28) (2010)).

Brown argues that a “simulated controlled substance,” as defined by the Iowa

Code, does not qualify as a “counterfeit substance” under § 4B1.2(b). “The guidelines

do not define the term ‘counterfeit substance,’ 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 controlled substance offense under the career offender provision.”

Id. at 541. 
2

 The Illinois statute defined a “look alike substance” as “a substance, other than

a controlled substance which . . . (2) is expressly or impliedly represented to be a

controlled substance or is distributed under circumstances which would lead a

reasonable person to believe that the substance 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).

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In Robertson, we determined that an Illinois statute2

 contained the

made-in-imitation and intent-to-deceive elements of “counterfeit” 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 ‘counterfeit[,]’ . . . [and] the

plain language in [section] (y)(2)—‘expressly or impliedly represented’ and

‘distributed under circumstances which would 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 conclude that the definition of

“simulated controlled substance” in section 204.101(27) contains the

made-in-imitation and intent-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 court did not err when it sentenced Brown as

a career offender. 

We affirm Brown’s sentence.3

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