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Look-alike offense counts as controlled-substance offense in sentencing

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A previous conviction for a “look-alike” offense constitutes a controlled-substance offense for sentencing purposes, the 7th Circuit Court of Appeals ruled for the first time Tuesday.

Irvin Hudson challenged the District Court’s decision that Hudson’s previous conviction of dealing in a substance represented to be a controlled substance – a “look-alike” drug offense – qualified as a controlled-substance offense for calculating his sentence following his guilty plea to possession of a firearm as a felon and possession of a stolen firearm. By having a previous conviction for a controlled-substance offense, Hudson’s sentencing guideline would increase from a base level 14 to a base level 20.

Although the federal guideline sections don’t define the term “counterfeit substance,” there’s no reason why the guidelines must be restricted to a particular state’s concept of what is meant by that term, wrote Judge Diane Wood in United States of America v. Irvin S. Hudson, No. 09-3518. Other Circuit Courts have relied on dictionary definitions of “counterfeit” to find look-alike offenses qualify as a controlled-substance offense under the guidelines.

“Using an independent federal definition of the term thus supports the conclusion that Hudson was convicted of a controlled-substance offense for dealing counterfeit marijuana,” she wrote. "Counsel for Hudson presented a responsible argument, which has convinced some judges that look-alike offenses are not controlled-substance offenses. His position may be worth the attention of the Sentencing Commission or other courts. But, in the end, we are not persuaded.”

Judge Wood noted that at least four sister Circuits have adopted the government’s interpretation of the sentencing guidelines and classified look-alike offenses as controlled-substance offenses. The government also has a point when it argued that it would be nonsensical to punish the selling of controlled substances and mislabeled prescription drugs but not the selling of look-alikes, she noted.

“Given the natural meaning of ‘counterfeit’ and the overall purpose of the guidelines provisions, we decline to adopt Hudson’s narrow definition of ‘counterfeit offense’ as applied to U.S.S.G. § 2K2.1,” wrote Judge Wood.
 

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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