United States v. Davis ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-30941
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KOMA DAVIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-32-ALL-F
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Koma Davis pleaded guilty to possessing a firearm after
having been convicted of a felony, in violation of 18 U.S.C.
§§ 924(a) and 922(g)(1). The district court sentenced him to 46
months in prison and to three years of supervised release.
Davis argues that the district court erred by assigning him
a base offense level of 20 under U.S.S.G. § 2K2.1(b)(4)(A), based
on his having a prior conviction of a “controlled substance
offense.” He maintains that his 2000 Louisiana conviction of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-30941
-2-
distribution of a substance falsely represented to be crack
cocaine does not qualify as such a conviction because it involved
an “imitation” substance rather than a “counterfeit substance.”
Offenses involving “counterfeit substances” qualify as
“controlled substance offenses” pursuant to the applicable
definition in U.S.S.G. § 4B1.2(b), but “counterfeit” is not
defined by the Sentencing Guidelines. Davis concedes that his
contention is foreclosed by United States v. Crittenden, 372 F.3d
706, 708, 709 (5th Cir. 2004), in which we adopted a broad
dictionary definition of “counterfeit” in determining the plain
meaning of that term. He raises the argument to preserve it for
possible further review.
AFFIRMED.