Aggravated Felonies

(B)  Offenses Involving Fake Controlled Substances.  A state conviction for sale of a simulated controlled substance,[349] that is not a federally-listed controlled substance, is not an aggravated felony conviction under the second prong.  The federal definition of “counterfeit substance”[350] is a subset of the federally defined “controlled substance.”[351]  The definition of a counterfeit controlled substance requires the substance to be on the federal list of controlled substances, but mislabeled as to the manufacturer.[352]  There is no federal felony proscribing sale of non-controlled substances (a.k.a. “bunk”) which have been falsely passed off as a controlled substance (i.e., oregano sold as marijuana or a cutting agent sold as cocaine ).[353]

This offense additionally does not meet the first prong of the aggravated felony drug trafficking test, because non-controlled substances, such as sugar, are not listed in the federal controlled substances schedule.  Sale of sugar cannot be considered “illicit trafficking” in a controlled substance.

            On the other hand, it appears that a drug trafficking offense involving a counterfeit controlled substance will be considered a drug trafficking offense in the illegal re-entry sentencing context, even if it is not considered an aggravated felony.[354]  See § 4.40, supra.

[349] For example, Washington State forbids creating or delivering a counterfeit controlled substance.  RCW § 69.50.401(b).  See also Texas Health and Safety Code § 482.002 (delivering and offering to sell a simulated controlled substance).  A defendant may be liable under this latter statute for attempting to distribute dominoes, represented to be a bag of cocaine.  See Ramos v. State, 928 S.W.2d 160 (Tex. App. 1996).  A defendant may also be convicted for distributing leaf stems and sunflower seeds, which were represented to be a nickel bag of marijuana.  See Holliman v. State, 692 S.W.2d 120 (Tex. App. 1985).

[350] 21 U.S.C. § 802(7) (“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, 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.”) (emphasis added).  This definition provides a federal definition of  “counterfeit substance” under the Controlled Substances Act, and also governs convictions under the Controlled Substances Import and Export Act, see 21 U.S.C. § 951(b) (1994), and the Maritime Drug Law Enforcement Act, see 46 U.S.C. App. § 1903(i) (1994).

[351] United States v. Cooper, 121 F.3d 130, 133, 134 (3d Cir. 1997) (by definition, a “counterfeit substance” must be  a “controlled substance;” if a particular substance is not a “controlled substance,” then it cannot be a “counterfeit substance” within the meaning of 21 U.S.C. § 802(7)).

[352] 21 U.S.C. § 802(7) (“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, 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.”).

[353] There is, however, BIA authority indicating that such a conviction does constitute a conviction relating to a controlled substance.  Matter of TC, 7 I. & N. Dec. 100, 102 (BIA 1956) (California conviction for selling a liquid substance “in lieu of a narcotic drug” under California law was an offense “relating to” a controlled substance under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)). See also N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 7.138, et seq (2005).

[354] U.S.S.G. § 2L1.2(b)(1)(C), appl. note 1(B)(iv) (2005).  United States v. Crittenden, 372 F.3d 706, (5th Cir. 2004) (Texas U.S.S.G. case holds a simulated controlled substance is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) (“[Th]e district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.”).