09-3518 U.S. v. Hudson

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Sentencing
Prior convictions; look-alike drug crimes

“Look-alike” drug offenses constitute controlled-substance offenses for sentencing purposes.

“The Sentencing Commission frequently makes use of an explicit cross-reference to incorporate one provision or definition into another. See, e.g., U.S.S.G. § 2D1.1 n.3 (drawing the definitions of ‘dangerous weapon’ and ‘firearm’ from the Commentary to U.S.S.G. § 1B1.1); U.S.S.G. § 2D1.1 n.5 (defining ‘analogue’ by incorporating the definition of ‘controlled substance analogue’ from 21 U.S.C. § 802(32)). See also U.S.S.G. § 1B1.5 (setting the rules of interpretation for internal cross-references). Indeed, the Commission’s definition of ‘controlled substance offense’ appears in this case only through a cross-reference. See U.S.S.G. § 2K2.1 n.1 (referring to § 4B1.2(b)). Yet there is no cross-reference to the definition of ‘counterfeit substance’ in application note 2 of § 2D1.1, which applies to Hudson’s sentence. We must give meaning to the Sentencing Commission’s silences as well as its words.”

Affirmed.

09-3518 U.S. v. Hudson

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Wood, J.

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