                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              November 23, 2005
                               No. 05-11998
                                                             THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 04-00175-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

VIRGIL JAWAN SMITH,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                             (November 23, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

     Virgil J. Smith, a federal prisoner, appeals his 151-month sentence for
possession with intent to distribute a quantity of crack cocaine and cocaine

hydrochloride, in violation of 21 U.S.C. § 841(a)(1). Smith was sentenced as a

career offender, based in part on a state felony conviction for possession of a

counterfeit substance.

      On appeal, Smith argues that this conviction was not a controlled substance

offense, and thus, the government did not meet its burden of proving that he had

two previous felony convictions for controlled substance offenses as described in

U.S.S.G. §§ 4B1.1 and 4B1.2, the career offender portions of the sentencing

guidelines. According to Smith, the term “counterfeit substance,” used in § 4B1.2,

must be defined through 21 U.S.C. § 802(7). Smith contends that the definition in

§ 802(7) does not include non-drug imitation substances such as the one he was

convicted of possessing. Smith’s second argument in favor of interpreting

§§ 4B1.1 & 4B1.2 through § 802(7) is that the sentencing commission lacked the

authority to include crimes that were not defined in the same manner as the United

States Code within the career offender provision.

      We review de novo the interpretation and application of the sentencing

guidelines. United States v. Bracciale, 374 F.3d 998, 1003 n.5 (11th Cir. 2004).

The burden of proof for establishing that a sentence enhancement is warranted lies

with the government. United States v. Hernandez, 145 F.3d 1433, 1440 (11th Cir.



                                          2
1998). A defendant is a career offender if(1) he was at least 18 years old when

convicted of the instant offense, (2) the instant offense is “a felony that is either a

crime of violence or a controlled substance offence,” and (3) he has “at least two

prior felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 4B1.1(a). We have held that, in determining whether a state

felony is a “controlled substance offense” under § 4B1.1, we must “look at the

elements of the convicted offense, not the conduct underlying the conviction.”

United States v. Frazier, 89 F.3d 1501, 1505 (11 th Cir. 1996).

      According to§ 4B1.2, a “‘controlled substance offense’ means an offense

under federal or state law, punishable by imprisonment for a term exceeding one

year, that prohibits [. . .] the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export, distribute, or dispense.”

U.S.S.G. § 4B1.2(b). The Georgia Controlled Substances Act provides that it is

unlawful for any person to possess, sell, manufacture, or possess with intent to sell

a counterfeit substance. Ga. Code Ann. § 16-13-30(i). The Act further provides

that a person who sells a counterfeit substance is guilty of a felony punishable by

not less than one year’s imprisonment. Id.

      Smith was convicted of possessing a counterfeit substance with intent to sell.

This was an offense under a state law that prohibited the possession of a counterfeit



                                            3
substance, and was punishable by imprisonment for a term exceeding one year. As

such, the elements of the offense match the plain language of §§ 4B1.1 & 4B1.2.

This offense is sufficient to count towards Smith’s career offender status. See

Frazier, 89 F.3d at 1505.

      This interpretation is not modified by the statutory definitions contained in

21 U.S.C. § 802(7). Section 4B1.1, background, of the sentencing guidelines states

that § 4B1.1 implements the career offender directive contained in 28 U.S.C. §

994(h). U.S.S.G. § 4B1.1, background. However, it also states that, “in accord

with its general guideline promulgation authority under 28 U.S.C. § 994(a)-(f), and

its amendment authority under 28 U.S.C. § 994(o) and (p), the Commission has

modified this definition in several respects . . . .” U.S.S.G. § 4B1.1, background.

Nothing in 28 U.S.C. § 994 prevents the sentencing commission from using its

authority in this manner. Moreover, as the Commission has expressly stated that

the definitions have been modified, it would be inappropriate to read them as

narrowly as Smith contends they should be read. Smith’s sentence is

      AFFIRMED.         1




      1
          Smith’s request for oral argument is denied.

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