Burgess v. US
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[edit] Briefs and Documents
AFFIRMED in an opinion by Justice Ginsburg.
Docket: 06-11429
Opinion Below: Court of Appeals for the Fourth Circuit
QP:
1. Whether the term “felony drug offense” as used in federal statutes requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari materia with federal statutes defining both “felony” and “felony drug offense”, so as” to require imposition of minimum 20-year sentence only if prior drug conviction as both punishable by more “than one year in prison and characterized as a felony by controlling law.
2. When the court finds that a criminal statute is ambiguous, must it then turn to the rule of lenity to resolve ambiguity?
Merits briefs (via ABA)
- Brief for Petitioner Keith Lavon Burgess
- Brief for Respondent United States of America
- Reply Brief for Petitioner Keith Lavon Burgess
Amicus briefs
[edit] Pre-Argument Articles
[edit] 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.)
[edit] Opinion Analysis
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 above).
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.
