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Click here for the full text of this decision FACTS:Darrell Keith Crittenden was arrested in Texas in February 2002 after cocaine was found in his vehicle. He pleaded guilty in March 2002 to knowingly and intentionally possessing an illegal drug, with intent to distribute. Previously, Crittenden had been convicted for two offenses under Texas law: delivery of a simulated controlled substance in 1994; and delivery of a controlled substance in 1996. Based on these prior convictions, the district court found (over Crittenden’s objection) that Crittenden was a career offender under the sentencing guidelines, resulting in a substantial increase in his sentence. He was sentenced, inter alia, to 210 months’ imprisonment. He appeals his sentence, primarily challenging being classified as a career offender under Sentencing Guidelines � 4B1.1. For that classification, at issue is whether Crittenden’s previous Texas conviction for delivery of a simulated controlled substance qualifies under � 4B1.1 as one of the requisite two controlled substance offenses. HOLDING:Affirmed. The court finds that two other circuits � the 8th and 11th � have addressed this issue. In United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996), a split panel held a Florida statute prohibiting “any person to . . . in any manner offer to unlawfully sell to any person a controlled substance . . . and then sell to such person any other substance in lieu of such controlled substance” was a controlled substance offense under � 4B1.1. More recently, the 8th Circuit, in dicta, noted that the government had not appealed the ruling that sale of a simulated controlled substance (baking soda) was not a controlled substance offense under the guidelines. A substance “purported to be a controlled substance,” but which is not such a substance, is necessarily “made in imitation of something else;” and a harmless substance would not be purported to be a controlled substance without “inten[ding] to deceive.” “Accordingly, a Texas conviction for delivery of a simulated controlled substance satisfies both components of the plain meaning of”counterfeit’ as used in the Guidelines,” the court explains. The court also finds that the sale of simulated controlled substances carries with it the same dangers of violence as the sale of a controlled substance, as well as many, if not most, of the numerous other egregious harms flowing from such sales. “We do not believe that the Guidelines intended to omit this type offense in providing for enhanced sentences for those with multiple drug-related convictions,” the panel wrote. OPINION:Barksdale, J; Duhe, Barksdale and Dennis, JJ Dennis, J., concurred in part and dissented in part.

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