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Opinion Recap: Burgess v. US

Fortunately for Keith Burgess, who is currently in jail serving a 156-month prison term, the Supreme Court handled his case with great speed and efficiency: his pro se pauper petition was granted in December 2007, argued in March of this year, and decided a scant three weeks later. Unfortunately for Burgess, however, the reason the Court was able to move with such velocity was that there was little disagreement that the position of the United States was the correct one; indeed, on Wednesday, April 17, in a unanimous opinion by Justice Ginsburg, the Court affirmed the decision of the Fourth Circuit and ruled against Burgess. The unanimous affirmance was not unexpected in light of that fact that Nicole Saharsky, the Assistant to the Solicitor General who argued the case on behalf of the federal government, faced so few questions from the Justices that she used only seven of her allotted thirty minutes at oral argument.

The issue in the case is one of statutory definition: as the opinion relates, the question was “whether a state drug offense classified as a misdemeanor, but punishable by more than one year’s imprisonment, is a “felony drug offense” as that term is used in [21 U.S.C.] § 841(b)(1)(A).” The answer, as Justice Ginsburg’s eleven-page opinion relates, is a definitive “yes”: “the Government’s reading [of the statute],” she writes, “…correctly interprets the statutory text and context.” (For more on the background of the case and provisions of the statute at issue, see our SCOTUSwiki preview here).

Justice Ginsburg manages, in her brief opinion, to address and dispense with many of Burgess’s key arguments. In succession, she adopts the government’s view that the phrase “felony drug offense” is a “term of art” properly defined that ought not send the reader to any separate definition of the term “felony” outlined elsewhere; she notes that the definition of “felony drug offense” comports well with the common legal use of the term “felony,” meaning generally “a crime punishable by imprisonment for more than one year”; she asserts that the Court’s reading provides a more logical view of Congressional intent; and she states that the Court’s interpretation “avoids anomalies that would arise” if petitioner Burgess’s view were adopted. In short, she leaves no doubt that there is any question as to whether the sentencing enhancement should apply. “Burgess’ argument…encounters formidable impediments,” she writes with dry understatement at the end of Section II.B, before noting that those impediments are “the text and history of the statute.” Formidable indeed.

As a sort-of coda to the opinion, Justice Ginsburg spends one paragraph addressing the rule of lenity arguments that Burgess had urged the Court to adopt. She simply notes that the Court cannot even attempt to apply the rule, since “there is no ambiguity for the rule of lenity to resolve.” Hence, one of Burgess’s central contentions – that, in the event of the alleged ambiguity, the rule of lenity ought to be applied “in the context of mandatory minimum sentencing provisions” – went unaddressed, and will, perhaps, be left to another day and another case.