Criminal Defense of Immigrants

(E)  Simulated Controlled Substances.  An offense involving simulated controlled substances (i.e., flour or sugar being passed off as cocaine) should not be considered an aggravated felony because such an offense is not punished under federal law, and the federal schedules to not list simulated controlled substances in the federal drug schedules.  Federal law only prohibits offenses involving “counterfeit” controlled substances, where one controlled substance is passed off as being another.[320]  A “simulated controlled substance” is clearly distinct from a “counterfeit substance” treated in 21 U.S.C. 841(a)(2), and not included in the Controlled Substance Act, so it should not be an aggravated felony. As far as being a crime related to a controlled substance, three circuits have addressed the issue in the context of the sentencing guidelines, (which can be distinguished since it uses a different definition).  

                However, at least three courts[321] have found offenses involving simulated controlled substances are “related to”[322] a controlled substance offense (at least where the substance was simulating a drug on the federal schedules), and therefore trigger removal under the controlled substances grounds of removal.[323]

[320] See 21 U.S.C. § § 802(7) (“counterfeit controlled substance” must be a “controlled substance” pretending to be manufactured by someone other than the actual manufacturer), 841(a)(2) (sale, etc. of counterfeit controlled substances prohibited).

[321] United States v. Crittenden, 372 F.3d 706 (5th Cir. 2004) (Texas USSG case holds a simulated CS 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.”).

[322] See § 16.36, supra.

[323] See § § 21.4-21.5, 21.13, supra.