Argument Preview

One part of the Controlled Substances Act, 21 U.S.C. 802, provides 46 very specific definitions for terms used throughout the Act, which is the major statute that proscribes drug offenses in America. Armed with not just a dictionary but that subsection, one might think with that many definitions, it would be difficult to find a glimmer of ambiguity about anything specified in the Act. But, according to petitioner Keith Burgess in the Supreme Court case Burgess v. US, to be argued Monday, March 24, that instinct would be wrong.

Here are two of the definitions he believes lead directly to an ambiguity:

Section 13 of 21 U.S.C. 802 provides that "The term "felony' means any Federal or State offense classified by applicable Federal or State law as a felony."
Section 44 of 21 U.S.C. 802 provides that "The term "felony drug offense' means 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."

Burgess asks us to look closely at those definitions: what if someone commits a state drug offense that is punishable by imprisonment of more than year "“ and so clearly falls within the purview of Section 44, which defines "felony drug offense" "“ but that is classified by its state as a misdemeanor, and so doesn't meet the requirement of Section 13? In other words, can someone commit a "felony drug offense" without actually committing a "felony"? In Petitioner's case, of course, the questions are not merely academic but a cold, hard reality, and the way the Court resolves his question could knock ten years off of his prison term.

In 2002, Petitioner Keith Lavon Burgess plead guilty to a misdemeanor state law drug possession offense that carried with it a statutory maximum sentence of two years. When he was later convicted of a more serious federal drug trafficking crime, the statutory sentencing scheme was clear: if he had previously committed a "felony drug offense," his mandatory minimum would be twenty years, but if not, it would be ten; on that, both the government and Burgess agree. But what they can't agree on is whether he actually committed a "felony drug offense" for the purposes of the statute.

The court below, the Court of Appeals for the Fourth Circuit, believed that the statute was clear: "The term "felony drug offense' is specifically and unambiguously defined in [Section 44]," that Court wrote in deciding that the twenty-year minimum ought to apply. But Burgess's brief argues that one can't just deny the existence of Section 13: after all, the word "felony" does appear in the phrase "felony drug offense," and "felony" is defined as, well any offense that's been designated a felony. The rub is that his offense was called a misdemeanor. As he sates in his brief, "the 20-year mandatory minimum sentence" applies "to those who have committed [a] prior state offense sufficiently serious both to be considered felonies in the convicting state and to warrant punishment of more than a year's imprisonment." Since his prior conviction didn't meet that first-prong of what he sees as a two-prong test, he should not have faced a mandatory minimum twenty-year sentence.

But the government argues that one needn't look any farther than Section 44's definition of "felony drug offense," which it believes is both crystal clear and the only applicable definition when the statute refers specifically to that "term of art": if Burgess's earlier offense was drug-related (it was) and was punishable by more than a year's imprisonment (it was also), then the Government believes it's a felony drug offense regardless of what name the state legislature called it, end of story. Or, as the Solicitor General puts it, "[t]o apply both statutory definitions, as petitioner suggests, would create anomalies and ambiguities where none exists." The Government notes that the word felony alone appears in other places of the CSA, and it's those places where the Section 13 definition applies. Quoting the lower court's reasoning, the Solicitor General emphasizes the difference: "Congress's decision to use the precise term "felony drug offense,'instead of the more broadly used term "felony,' evidences an intent to distinguish these sentence-enhancement provisions from the other provisions that refer to the generic "felony.'"

In his reply brief, Burgess admits that the government's view of the statute may be a "reasonable counter-argument," which was a characterization far more generous than that given in his cert. reply brief "“ written without the assistance of counsel "“ where he called the government's arguments opposing certiorari "laughable." Still, whether laughable or reasonable, Burgess believes that as long as the government's argument is not completely definitive, the rule of lenity (which states that in the instance of ambiguous statutory language, the interpretation most favorable to the defendant should prevail) should apply and he should be sentenced under only the ten-year minimum. He believes that if there is any ambiguity at all, his more lenient view should prevail.

(Disclosure: Akin Gump is co-counsel for the petitioner, though this author had no involvement with the case.)

Posted in Burgess v. US, Everything Else