               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0821n.06

                                          08-1610                                  FILED
                                                                                Dec 22, 2009
                        UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
      Plaintiff-Appellee,                     )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
DWIGHT JEROME LATHAM,                         )   WESTERN DISTRICT OF MICHIGAN
                                              )
      Defendant-Appellant.                    )




      Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.




       PER CURIAM. The defendant, Dwight Latham, was convicted by a jury of

conspiracy to distribute and/or possess with intent to distribute 50 grams or more of crack

cocaine. Because Latham had previously been convicted of two other felony drug-

trafficking offenses in Michigan state court, the district judge imposed a mandatory life

sentence on the defendant, under 21 U.S.C. § 841(b)(1)(A). On appeal, Latham contends

(1) that the indictment returned against him was constructively amended when the district

judge gave the jury faulty instructions; (2) that the evidence was insufficient to support the

conspiracy conviction; and (3) that one of his two prior convictions should not have been

considered a “felony drug offense” justifying imposition of a mandatory life sentence.
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United States v. Latham

Reviewing these allegations for plain error and for a manifest miscarriage of justice, we

find none and, therefore, affirm the district court’s judgment.




                    FACTUAL AND PROCEDURAL BACKGROUND


        At Latham’s trial, several witnesses testified regarding the defendant’s activities in

a known drug-trafficking area of Grand Rapids, Michigan. Some noted that they had

purchased small amounts of crack cocaine from Latham on numerous occasions. Others

offered testimony that the government now portrays as evidence of much more than mere

buyer/seller transactions. For instance, Rovell Woldemichael told the jurors that he had

known Latham for a couple of years and that he and the defendant often sold crack

cocaine from the same area of town. Woldemichael testified that he did not work for

Latham but, rather, was an independent dealer who obtained the crack cocaine he sold

to others from various individuals in the area. However, he did say that on three or four

occasions when his own drug supply became depleted, he bought a $20 rock of crack

cocaine from the defendant for resale. Moreover, Woldemichael presumed that Latham

knew that Woldemichael would resell the crack cocaine purchased from the defendant

because Woldemichael himself was not a crack user.


        Likewise, Hayward Welch testified that he routinely sold crack cocaine in the same

neighborhood as did Latham. Welch typically obtained his drugs from family members,


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United States v. Latham

but he also purchased crack cocaine from the defendant when Welch’s other suppliers

were not available. Eventually, Welch began making crack sales from the same crack

house used by Latham for some of his sales. The defendant generally acquiesced to

Welch’s resales of Latham’s crack cocaine from the same location but on occasion, the

defendant had the owner of the house, Linda Davis, ask Welch to leave the premises

because “Mr. Latham get mad sometimes because we was taking his money.”


        Linda Davis, a crack addict herself, testified that she purchased small amounts of

crack from the defendant and that the defendant also occasionally offered her a rock of

crack without payment or shared a marijuana blunt with her. Davis would often break the

rocks of crack she received into smaller amounts and sell them herself in order to obtain

cash. In fact, if an individual sought to purchase any amount of crack cocaine worth less

than ten dollars, Latham would direct that person to Davis and limit his own sales to

individuals looking for more expensive purchases of the drug.


        Rick Kenney, a Grand Rapids businessman and a crack addict, testified regarding

his dealings with defendant Latham. Kenney stated under oath that he purchased

$15,000 to $20,000 worth of crack cocaine a year, estimating that almost half of it came

from the defendant, and that his purchases were for personal use rather than resale.

However, he also explained that on three occasions when he had visited the defendant

to purchase crack cocaine, Latham had none for sale. At those times, Kenney said, he




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United States v. Latham

would have the defendant drive with him around the Grand Rapids area until Latham

could purchase crack from another dealer to sell to Kenny.


           Over time, Kenney also convinced one of his neighbors, Kenneth Beld, to try

smoking crack cocaine. Once Beld began using the drug, he purchased crack from

Kenney until Kenney introduced him to the defendant, and thereafter Beld bought directly

from Latham. Beld estimated that he eventually made 15 to 20 purchases from the

defendant, totaling roughly $2,000 to $3,000. Again, however, the witness claimed under

oath that all such purchases were for his personal use only.


           At the close of the proof, the jurors deliberated on the two counts of the indictment

still before them,1 “conspiracy to distribute and to possess with intent to distribute cocaine

base and marijuana” and “felon in possession of a firearm.” The jury eventually returned

a form indicating a guilty verdict on the conspiracy count, with an additional finding that

the conspiracy involved more than 50 grams of cocaine base but no marijuana, and a not-

guilty verdict on the felon-in-possession charge. Because of Latham’s previous criminal

convictions, the district court sentenced the defendant to a mandatory life term in prison.

Prior to doing so, however, the judge stated, “Left unconstrained, the likelihood that the

Court would give a life sentence is remote. I would not be giving a life sentence had I not




       1
          A third count of the superseding indictment that charged Latham with using, carrying, and
discharging a firearm during and in relation to a crime of violence was voluntarily dismissed prior
to trial.

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United States v. Latham

had the statute passed by Congress to enforce, but it is my duty to enforce it and,

therefore, I intend to do so.” Latham now appeals from that judgment.


                                       DISCUSSION


1. Constructive Amendment of Indictment


        Defendant Latham contends that the jury instructions given by the district judge

regarding the conspiracy charge constructively amended the indictment and thereby

violated his Fifth Amendment right not to “be held to answer for . . . [an] otherwise

infamous crime, unless on . . . indictment of a grand jury.” Specifically, he points to Count

I, which charged that:


        Between on or about an unknown date in 2005 and continuing through in or
        about June 2007, in Kent County, in the Southern Division of the Western
        District of Michigan, the defendant . . . did combine, conspire, confederate,
        and agree with other persons both known and unknown to the Grand Jury,
        to knowingly, intentionally and unlawfully distribute and possess with intent
        to distribute 50 grams or more of a mixture or substance containing a
        detectable amount of cocaine base (crack), a Schedule II controlled
        substance, and a quantity of marijuana, a Schedule I controlled substance.


In the jury instructions, however, the district court did not track the language in the

indictment referring to a conspiracy involving the distribution of crack and marijuana.

Instead, the district judge charged the jury that the defendant could be found guilty of

conspiracy if he agreed with another person to distribute or possess with intent to

distribute “cocaine base and/or marijuana.” (Emphasis added.) According to Latham, the


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United States v. Latham

disjunctive jury instruction broadened the basis for a conviction beyond what the

indictment alleged. In other words, rather than being subject to conviction of conspiracy

only if he agreed with another person to distribute both 50 grams of crack and a quantity

of marijuana, under the instruction as given, Latham could be convicted of distributing

crack cocaine or the marijuana or both.


        “[W]hen the terms of an indictment are in effect altered by the presentation of

evidence and jury instructions which so modify essential elements of the offense charged

that there is a substantial likelihood that the defendant may have been convicted of an

offense other than that charged in the indictment,” we will find that the charging document

has been constructively amended. United States v. Hathaway, 798 F.2d 902, 910 (6th

Cir. 1986). Such amendments, moreover, “are deemed prejudicial per se.” United States

v. Burkhart, 682 F.2d 589, 591 (6th Cir. 1982).


        Ordinarily, we review de novo the legal question of whether an indictment has been

constructively amended by proof or by the jury instructions. See United States v. Budd,

496 F.3d 517, 528 (6th Cir. 2007), cert. denied, 129 S.Ct. 48 (2008). If, however, the

defendant fails to object at trial to the allegedly improper jury instruction, we review the

appellate challenge only for plain error. See id. In doing so, we abide by the guidance

offered by the United States Supreme Court in United States v. Olano, 507 U.S. 725, 732

(1993). Consequently, our analysis is comprised of four distinct components:




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United States v. Latham

           First, we are to consider whether an error occurred in the district court.
           Absent any error, our inquiry is at an end. However, if an error occurred, we
           then consider if the error was plain. If it is, then we proceed to inquire
           whether the plain error affects substantial rights. Finally, even if all three
           factors exist, we must then consider whether to exercise our discretionary
           power under Rule 52(b), or in other words, we must decide whether the
           plain error affecting substantial rights seriously affected the fairness,
           integrity or public reputation of judicial proceedings.


United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993).




           In this instance, not only did the defendant fail to object to the jury instructions that

he now contends prejudiced him, but Latham, through his attorney, actually proposed

instructions that contained substantially the same language about which he now

complains.        In his suggested instruction delineating the elements of the criminal

conspiracy, the defendant requested that the district court charge the jury that the drug

conspiracy must, in part, “involve[ ] at least 50 grams of a substance or mixture containing

cocaine base (crack cocaine) or a quantity of marijuana.”2 (Emphasis added.)


           Nevertheless, Latham now insists that such “invited error” does not necessarily

“foreclose relief when the interests of justice demand otherwise.” United States v. Barrow,


       2
         The government’s proposed jury instruction on the elements of the conspiracy offense also
failed to track the language of the indictment. The prosecution suggested that the district court
explain to the jury that one element of the charged crime requires proof that “two or more persons
conspired, or agreed, to commit the crime of possession with intent to distribute or to distribute
cocaine base (commonly referred to as ‘crack’ or ‘crack cocaine’), and/or marijuana.” (Emphasis
added.)

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United States v. Latham

118 F.3d 482, 491 (6th Cir. 1997). Indeed, “where ‘the government [i]s as much a[t] fault

for inviting the error as the defendant’ and ‘the defendant . . . is claiming that his

constitutional rights have been violated,’ the interests of justice are not served by a strict

application of the waiver doctrine.” United States v. Savoires, 430 F.3d 376, 381 (6th Cir.

2005) (quoting Barrow, 118 F.3d at 491). Even if we chose to address the defendant’s

constructive amendment contention, however, our inquiry into this alleged error must still

be confined to a plain error analysis given the lack of objection to the jury charge given.




        Faced with such review, the defendant is stymied at the first step of the

examination framework because Sixth Circuit precedent provides that an instruction such

as the one given by the district judge in this case is not necessarily erroneous. Budd, 496

F.3d at 529; Hathaway, 798 F.2d at 913. Latham directs our attention to three out-of-

circuit decisions -- United States v. Narog, 372 F.3d 1243 (11th Cir. 2004); United States

v. Weissman, 899 F.2d 1111 (11th Cir. 1990); and United States v. Perez-Ruiz, 421 F.3d

11 (1st Cir. 2005) -- that he contends support his view that an indictment worded in the

conjunctive requires supporting proof of all included objects or concepts. None of these

cases circumvents our precedents, which are confirmed by Supreme Court case law.


        Two of the decisions cited by Latham are, however, easily distinguished from the

scenario presented by this appeal. In Narog, for example, the four defendants were

charged with “conspiracy to possess and distribute pseudoephedrine ‘knowing and having

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United States v. Latham

reasonable cause to believe that the listed chemical would be used to manufacture a

controlled substance, that is, methamphetamine.’” Id. at 1246. As the Eleventh Circuit

noted, however:


        The district court’s charge to the jury tracked the indictment to the extent
        that it required the jury to find that defendants knew or had reasonable
        cause to believe that the pseudoephedrine would be used to manufacture
        a controlled substance, and added (both orally and in the written instructions
        given to the jury) that “methamphetamine is a controlled substance within
        the meaning of the law.” The jury was clearly confused . . . .


Id. When the jury presented the court with a written question asking whether it must find

that the defendants had reasonable cause to believe that the pseudoephedrine would be

used to make “specifically methamphetamine to be guilty,” the district judge answered in

the negative, explaining that “[w]hat the government must prove . . . is that a Defendant

knew or had reasonable cause to believe that the pseudoephedrine would be used to

manufacture some controlled substance.” Id. at 1247. The Eleventh Circuit rectified that

error and reversed the convictions. In doing so, the court explained:


        By instructing the jury that it only needed to find that defendants knew or
        had reasonable cause to believe that the pseudoephedrine would be used
        to make any controlled substance, the district court unconstitutionally
        broadened the crimes charged in the indictment. The jury may well have
        convicted appellants of believing that the pills would be used to manufacture
        a controlled substance other than the one specified therein, although there
        was no evidence of such.


Id. at 1249.



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United States v. Latham

        Likewise, the Eleventh Circuit’s decision in Weissman was driven by the need to

ensure that the defendant was not convicted of a crime not contained within the

indictment. In that case, the grand jury indicted Weissman on charges under the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 - 1968.

The indictment further defined the illegal enterprise involved in the criminal activity as “a

group of individuals associated in fact known as the DeCavalcante Family of La Cosa

Nostra.” Weissman, 899 F.2d at 1112. Yet, when presented with a question from the

deliberating jury whether it was necessary for the fact-finders to determine “that the

enterprise was the DeCavalcante Family,” id. at 1113, the district court responded, “While

you don’t have to conclude it was the DeCavalcante family, you do have to conclude that

there was such an enterprise which is within the definitions that I have already given.” Id.

The appellate court again took issue with the broad interpretation of the indictment

afforded by the district court’s jury charge, noting that “[u]nder the instructions given here,

the jury may well have convicted these defendants of being involved with an enterprise

other than the one charged in the indictment.” Id. at 1116. Consequently, the Eleventh

Circuit reversed Weissman’s conviction and remanded the matter for further proceedings.


        Finally, Perez-Ruiz does not stand for the proposition for which the defendant cites

it. In that First Circuit litigation, the defendant was charged with conspiring to distribute

heroin, cocaine, and cocaine base (crack). Both the indictment and the trial testimony,

however, also referred to incidents in which Perez-Ruiz was also involved with marijuana.

Nevertheless, the marijuana incidents “were not charged as objects of the conspiracy” and

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“the jury instructions thereafter expressly identified the conspiracy at issue as an

agreement to distribute heroin, cocaine and cocaine base and did not include marijuana.”

Perez-Ruiz, 421 F.3d at 14. As the court noted, “there is no realistic chance that, in

convicting under this indictment and these instructions, the jury constructively amended

the indictment by convicting Perez solely for a marijuana conspiracy – itself never

charged.” Id. Thus, unlike the situations presented in Narog and Weissman, there was

no danger that the jury convicted the defendant of a crime for which he was not indicted,

in large part because the instructions to the jury on the conspiracy charge mentioned only

the three drugs (heroin, cocaine, and cocaine base) mentioned in the charging document.




        In citing Perez-Ruiz, defendant Latham focuses, however, on the First Circuit’s

language that “strictly speaking, [the jury] had to conclude that all three hard drugs were

objects of the conspiracy because the indictment charged in the conjunctive.” Id. From

that statement, Latham extrapolates to the conclusion that his jury, in order to convict,

must have found a conspiracy to distribute both crack cocaine and “a quantity of

marijuana” because the indictment against him also charged those conspiracy objects “in

the conjunctive.”


        Despite the cited language from Perez-Ruiz, we recognize that the United States

Supreme Court’s decision in United States v. Miller, 471 U.S. 130 (1985), is to the

contrary. In Miller, the justices explained:

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United States v. Latham

        The Court has long recognized that an indictment may charge numerous
        offenses or the commission of any one offense in several ways. As long as
        the crime and the elements of the offense that sustain the conviction are
        fully and clearly set out in the indictment, the right to a grand jury is not
        normally violated by the fact that the indictment alleges more crimes or other
        means of committing the same crime. Indeed a number of longstanding
        doctrines of criminal procedure are premised on the notion that each
        offense whose elements are fully set out in an indictment can independently
        sustain a conviction.
        . . . Convictions generally have been sustained as long as the proof upon
        which they are based corresponds to an offense that was clearly set out in
        the indictment.


Id. at 136 (emphasis added) (citations omitted). See also Budd, 496 F.3d at 528-29 (citing

United States v. Barrios-Perez, 317 F.3d 777, 779-80 (8th Cir. 2003) (“finding no

constructive amendment where the drug-conspiracy indictment was phrased in the

conjunctive, but the court instructed the jury in the disjunctive”)); Hathaway, 798 F.2d at

913 (“an impermissible variance does not occur when, although an indictment charges

several acts in the conjunctive, the district court charges the jury in the disjunctive”)).


        In this case, the grand jury indicted Latham for conspiracy to distribute and

conspiracy to possess with intent to distribute illegal drugs -- crack cocaine and marijuana.

The jury convicted him of conspiring to distribute and to possess with intent to distribute

only crack cocaine. Because that offense was clearly encompassed by the indictment

against the defendant, Latham is not being punished for actions that might well be beyond

the reach of the charging document. The jury instructions that referred to crack cocaine

and marijuana in the disjunctive thus did not constructively amend the defendant’s


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indictment so as to deprive him of his Fifth Amendment right to grand jury consideration

of his situation. Because offering a jury instruction that discussed a crime fully included

within the parameters of the indictment cannot be considered error, that charge also

cannot constitute the plain error necessary for Latham to prevail on this claim.


2. Sufficiency of the Evidence


        Latham next maintains that the government failed to adduce sufficient evidence to

support the conspiracy conviction. Ordinarily, we would analyze such an allegation of

error under the familiar sufficiency-of-the-evidence standard, viewing the trial testimony

and exhibits in the light most favorable to the prosecution to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because the

defendant failed to move for a judgment of acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure, however, we must affirm the conviction absent a manifest

miscarriage of justice, which occurs only when the trial record is “devoid of evidence

pointing to guilt.” United States v. Villarce, 323 F.3d 435, 438 (6th Cir. 2003) (citations

omitted).


        The defendant insists that there is just such a paucity of evidence in this case, in

part because the prosecution failed to establish that Latham conspired with anyone to

purchase crack cocaine, because the defendant had no “regular” sources of crack,

because the government offered no evidence that Latham provided drugs without prior

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payment or made large-quantity sales, and because the defendant engaged only in

discrete, arms’-length transactions with his customers. In order to establish Latham’s

participation in a drug conspiracy, the government must show, by either direct or

circumstantial evidence: “(1) an agreement to violate drug laws; (2) knowledge of and

intent to join the conspiracy; and (3) participation in the conspiracy.” United States v.

Gunter, 551 F.3d 472, 482 (6th Cir.) (citation omitted), cert. denied, 130 S.Ct. 194 (2009).

A formal or express agreement is not necessary, but a simple buyer-seller relationship

alone is insufficient to establish a drug conspiracy; however, “evidence of repeated

purchases can.” See id. (citing United States v. Brown, 332 F.3d 363, 373 (6th Cir.

2003)).




        In light of the extremely deferential review standard at play here given the

defendant’s failure to file a Rule 29 motion, we conclude that Latham cannot prevail on

his sufficiency claim because the appellate record is plainly not “completely devoid of

evidence” of guilt. In fact, trial testimony showed that Latham made numerous sales to

individuals that the defendant knew, or should have known, were then resizing and

reselling the “product” that he was providing. Not only was evidence adduced showing

that Latham knew that one of his purchasers, Hayward Welch, did not use crack cocaine,

but testimony established that Latham and Welch actually sold crack in the same location

after Welch would buy drugs from the defendant.             Other testimony from Rovell


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United States v. Latham

Woldemichael also indicated that Latham saw Woldemichael reselling crack he had

purchased from the defendant on various occasions. Also, Linda Davis testified that she

allowed Latham to sell drugs from her home in exchange for small quantities of crack and

that she and Latham had an understanding that Latham would refer customers seeking

only ten-dollar purchases to Davis so that she could make small amounts of money to

support herself and her drug habit.


        The government’s proof of conspiratorial activity in this case is, admittedly, not

overwhelming. Unfortunately for Latham, however, well-established law in the circuit does

not require the government to meet such an onerous burden on appeal in a situation such

as this. Because the defendant failed to seek a judgment of acquittal at the close of the

trial testimony, he must show that the record is without any evidence of his guilt. Latham

cannot do so given the testimony that he knowingly supplied crack cocaine to individuals

he knew would resell those drugs and given the testimony that he specifically directed

some individuals to purchase smaller quantities of crack from a person to whom Latham

sold drugs and from whom the defendant received the benefit of a crack house cover for

his sales. Latham, therefore, fails in his challenge to the sufficiency of the convicting

evidence.


3. Validity of Defendant’s Life Sentence


        In a final issue, the defendant challenges the propriety of his life sentence, insisting

that one of the predicate convictions used to enhance his punishment cannot be

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considered a “felony drug offense” under a reasonable construction of applicable statutes.

But, again, because Latham failed to lodge a timely objection to his sentence before the

district court, our review is now limited to an examination for plain error only. See United

States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004) (“If a party does not clearly

articulate any objection and the grounds upon which the objection is based [when

prompted to do so], then that party will have forfeited its opportunity to make any

objections not previously raised and thus will face plain error review on appeal.”).


        Pursuant to the applicable provision of 21 U.S.C. § 841(b)(1)(A), “[i]f any person

commits a violation of this subparagraph . . . after two or more prior convictions for a

felony drug offense have become final, such person shall be sentenced to a mandatory

term of life imprisonment without release . . . .” A “felony drug offense” is, moreover,

defined in the United States Code as “an offense that is punishable by imprisonment for

more than one year under any law of the United States or of a State or foreign country

that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,

or depressant or stimulant substances.” 21 U.S.C. § 802(44) (emphasis added). Latham

does not contest one of his prior state drug convictions, a June 2001 conviction for

possession with intent to distribute a controlled substance. He insists, however, that a

state court conviction in July 2002 for possession with intent to distribute an imitation

controlled substance does not constitute a prior “felony drug offense” because that




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conviction involved an “imitation” substance, not one of the actual drugs listed in 21 U.S.C.

§ 802(44).3


           In support of this contention, Latham directs us to a district court opinion from the

Western District of Virginia, in which the court held that a state court conviction for felony

possession with intent to distribute an imitation controlled substance, prohibited by Virginia

Code Annotated § 18.2-248(A), was not a felony drug offense for purposes of sentencing

under U.S.C. § 802(44). See United States v. Gardner, 534 F. Supp.2d 655 (W.D. Va.

2008), aff’d, No. 08-4230, 2009 WL 489997 (4th Cir.), cert. denied, 130 S.Ct. 125 (2009).

By the same measure, the defendant is forced to concede that an Iowa district court has

held to the contrary in United States v. Brown, No. 06-CR-1028-LRR, 2007 WL 1498472

(N.D. Iowa May 21, 2007).


           In that case, the district judge emphasized that the definition of “felony drug

offense” in section 802(44) was not limited to offenses involving narcotic drugs, marijuana,

anabolic steroids, or depressant or stimulant substances, but included offenses relating

to such substances. Citing our decision in United States v. Spikes, 158 F.3d 913, 932

(6th Cir. 1998), the district court in Brown recognized that “the phrase ‘relating to’ is very

broad and encompasses a wide range of potential conduct” and rationalized that:



       3
        Pursuant to the relevant provisions of M.C.L.A. § 333.7341(1)(b), an “imitation controlled
substance” is “a substance that is not a controlled substance . . . [but] which by dosage unit
appearance including color, shape, size, or markings, and/or by representations made, would lead
a reasonable person to believe that the substance is a controlled substance.”

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        Congress considers offenses involving controlled substances or counterfeit
        substances to be drug offenses. Obviously, when a defendant delivers a
        counterfeit controlled substance, many of the dangers and harms to society
        that are present when “the real deal” is delivered are also present. There
        is no indication that Congress intended to give a sentencing break to those
        who distribute counterfeit substances.


Brown, 2007 WL 1498472, at *3.


        The problem for the defendant in this case is not only the absence of controlling

authority from either this court or the Supreme Court, neither of which has addressed the

specific question that his life sentence raises, but also the fact that the two district courts

that have ruled on the issue have taken positions that are diametrically opposed. Thus,

the defendant here cannot prevail simply by arguing that the analysis in the Gardner

opinion is stronger and more cogent than that in Brown. The very existence of these two

non-binding, contradictory opinions is sufficient to establish, ipso facto, that any error in

this case cannot be deemed “plain” because, under the applicable standard of review, any

error is not “clear under current law.” Barrow, 118 F.3d at 492 (quoting Olano, 507 U.S.

at 734).


                                       CONCLUSION


        For the reasons set out above, we AFFIRM the judgment of the district court in its

entirety.




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