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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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