Burgess v. United States

Oral argument: 
March 24, 2008

In 2002, a South Carolina state court convicted Keith Burgess of misdemeanor drug possession, an offense punishable by up to two years' incarceration. In 2003, a federal court convicted Burgess of conspiring to distribute fifty or more grams of cocaine base in violation of the Controlled Substances Act ("CSA"). The court ruled that Burgess' prior state-court conviction constituted a "felony drug offense" under the CSA and thus qualified Burgess for sentence enhancement from ten to twenty years' imprisonment.� Burgess appealed, claiming that the sentence enhancement provision did not apply.� Burgess argued that court should have applied the CSA's definition of "felony" instead of "felony drug offense," under which the state-court conviction merely constituted a misdemeanor. This case highlights the role of judicial review in the application of mandatory minimum sentences.


    In 2002, a South Carolina state court convicted Keith Lavon Burgess of possessing a small amount of cocaine in violation of S.C. Code Ann. � 44-53-370(d)(1). South Carolina classifies simple possession of cocaine as a misdemeanor if the defendant has no prior drug offenses. Although the offense was punishable by two years' imprisonment, the state court sentenced Burgess to a one-year suspended sentence, two years' probation, and fifty hours' community service.

    In 2003, in the U.S. District Court for the District of South Carolina, Burgess pled guilty to two criminal conspiracy charges in violation of the Controlled Substances Act, 21 U.S.C. � 801 et seq. ("CSA.") Burgess pled guilty to conspiracy with intent to distribute fifty or more grams of cocaine base in violation of 21 U.S.C. � 841(a)(1) and � 846. The district court granted the Government's request and applied section 841(b)(1)(A) ("enhancement provision"), set forth in the CSA. The enhancement provision requires a sentencing court to apply an increased sentence if defendants have previously been convicted of "felony drug offense." The enhancement provision raised Burgess' minimum sentence from ten years to twenty years. After granting the Government's motion to decrease the sentence for Burgess' substantial assistance, the court sentenced him to thirteen years.

    The CSA separately defines the terms "felony" and "felony drug offense." The definition of the term "felony" in section 802(13) relies on the classification given to the crime in the criminal statute. If a state classifies a crime as a misdemeanor, the federal government must also consider it a misdemeanor for purposes of the CSA. By contrast, the definition of the term "felony drug offense" in section 802(44) depends upon whether the crime in question is punishable by more than one year's imprisonment.

    On appeal, the U.S. Court of Appeals for the Fourth Circuit determined that Burgess' prior conviction fell within the definition of "felony drug offense" set forth in section 802(44). The Court thus upheld the district court's application of the enhancement provision and minimum twenty-year sentence. The Court rejected Burgess' argument that the presence of section 802(13) created an ambiguity in the enhancement provision.

    The U.S. Courts of Appeal disagree over the proper interpretation of "felony drug offense" in the CSA's enhancement provision. The Fourth Circuit's opinion aligns with the U.S. Court of Appeals for the First Circuit in applying the enhancement provision if defendants had previously been convicted of a state-classified misdemeanor punishable by more than one year's imprisonment. By comparison, the U.S. Court of Appeals for the D.C. Circuit has concluded that a prior state-classified misdemeanor did not trigger the enhancement provision. On December 7, 2005, the U.S. Supreme Court granted certiorari.


    Statutory Background

    Section 802(13) of the Act defines the term "felony" as an offense classified by applicable law as a felony. Prior to 1994, section 841(b)(1)(A) of the Act ("enhancement provision") defined a similar term, "felony drug offense," as an offense concerning narcotic drugs, marijuana, depressants, or stimulants that is classified by applicable law as a felony. In 1994, Congress amended the CSA ("Conforming Amendments") to conform to a newly enacted criminal statute, the Controlled Substances Import and Export Act. The Conforming Amendments redefined the term "felony drug offense" to constitute a drug-related offense punishable by more than one year's imprisonment, regardless of state-law designation. The enhancement provision currently mandates a minimum 20-year sentence for any violator of section 841(a) with a prior conviction for a "felony drug offense."

    In 2003, a federal district court convicted Keith Burgess of intent to distribute fifty or more grams of cocaine base, in violation of � 841(a)(1). The court ruled that though Burgess' prior drug conviction was a misdemeanor under state law, because it was punishable by more than one year of imprisonment, it fell under the � 802(44) definition of "felony drug offense." Therefore, pursuant to the enhancement provision, the court increased Burgess' sentence to twenty years. The U.S. Court of Appeals for the Fourth Circuit affirmed, holding that the definition of "felony drug offense" displaces the definition of "felony."

    Issue #1: Statutory Interpretation

    Burgess argues that both the definitions of "felony" and "felony drug offense," combined, define the term "felony drug offense," as opposed to just the definition of "felony drug offense." Under Burgess' preferred reading, a "felony drug offense" must be both punishable by more than one year of imprisonment and classified by applicable law as a "felony." The lower courts, however, adopted the First Circuit's holding in United States v. Roberson, 459 F.3d 39, 55 (1st Cir. 2006), that the definition of "felony drug offense" unambiguously controls-if state law punishes an offense by a sentence of greater than one year, state-law classification as felony or misdemeanor is irrelevant.

    Term of Art?

    The United States' position is that "felony drug offense" is a term of art and is distinct from the term "felony." That is, because the CSA specifically defines "felony drug offense" and the enhancement provision uses that exact term, the logical way to interpret that term in the enhancement provision is to use only the definition of "felony drug offense." The Roberson court agreed, stating "[w]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." In United States v. West, the U.S. Court of Appeals for the D.C. Circuitdisagreed, reasoning that because Congress defined the term "felony" in the same section as the term "felony drug offense," the two definitions are coequal. Consequently, Congress' intent was not to treat "felony drug offense" as a term of art unaffected by other definitions in the same section.

    Intended Only to Conform?

    Burgess urges the Court to interpret the term "felony drug offense" according to legislative intent. In determining the Congress' intent when the plain meaning of a statute's text is in question, courts consider the statute's legislative history, structure, and motivating policies. Specifically, the title of a statute section is one item to consider in resolving ambiguity. According to Burgess, there was no explanation for the Conforming Amendments in the legislative history or the statute itself. Burgess argues that the presence of the term "conforming" in the Amendments' title implies that Congress merely intended to conform the CSA to parallel provisions in the Controlled Substances Import and Export Act, not to make a substantive change.

    The United States disagrees, noting that the intent to make conforming changes does not preclude an additional intent to make a substantive change. It argues that because Congress replaced the entire definition of the term, it must not have intended to preserve the old meaning. Further, the United States claims, the CSA uses the term "felony drug offense" only in the context of the enhancement provision, while it uses the term "felony" for multiple purposes throughout Title 21. Thus, Congress intended that the post-1994 definition of "felony drug offense" apply to the enhancement provision exclusive of the term "felony." Burgess asserts that there is no evidence that Congress desired to make a sweeping change that would render the definition of the term "felony" partially ineffective. � Burgess notes that "[r]epeals by implication are not favored and will not be found unless an intent to repeal is 'clear and manifest.'"

    Omission of Cross-Reference Implies Intent?

    The United States argues that if Congress had intended the term "felony drug offense" to be defined by reference to the term "felony," it could have indicated that objective by including an explicit cross-reference in the text of section 802(44), as has been done in other provisions of the U.S. Code. Burgess responds that Congress could have as easily amended the CSA to specify that � 802(44) was the exclusive means to define the term "felony drug offense" for the purposes of � 841(b)'s sentence enhancement.

    Issue #2: Ambiguity and Lenity

    Burgess finally argues that the rule of lenity should apply. Under the rule of lenity, "an ambiguous criminal statute is to be construed in favor of the accused." If the text, structure, legislative history, and motivating policies of the statute create "grievous" ambiguity regarding the scope of the statute's application, the rule of lenity applies. The rule of lenity applies to sentencing as well as substantive statutes.

    The D.C. Circuit in West held that the term "felony drug offense" in the enhancement provision is ambiguous, and therefore lenity applies. Burgess agrees, arguing that even if the term is not meant to be interpreted as a combination of the definitions of � 802(13) and � 802(44), at best, it is ambiguous. The United States responds that lenity does not apply because there is no "grievous" ambiguity about the scope of the statute.


    In this case, the U.S. Supreme Court will answer a question of statutory interpretation that depends largely on ancient common-law jurisprudence and carries the potential to shape the course of criminal sentencing across the country. See Brief of Nat'l Assoc. of Crim. Def. Lawyers and Families Against Mandatory Minimums as Amici Curiae for Petitioner ("NACDL Brief"). In interpreting a federal statute to determine how Congress intended to sentence a defendant for his criminal behavior, the Court will weigh in on a centuries-old discussion regarding the appropriate balance of power between the legislature and the judiciary in the realm of criminal sentencing. See 2A Norman J. Singer, Sutherland Statutory Construction � 48:3 (7th ed. 2007).

    Arguments of the Parties

    The United States argues that section 802(44) of the Controlled Substances Act, 21 U.S.C. � 801 et seq. ("CSA"), which defines "felony drug offense," unambiguously applies to this case. Brief for Respondent at 10. Although the CSA defines the term "felony" by reference to state law, the CSA separately defines the term "felony drug offense" to include all crimes punishable by more than one year's imprisonment. 21 U.S.C. � 802(13), (44). Pointing to the clear language in section 802(44), the United States urges the Court to uphold the Fourth Circuit's ruling because Burgess' previous conviction resulted in a prison sentence lasting more than one year. Brief for Respondent at 10.

    On appeal, Burgess asserts that the text of the CSA itself is ambiguous. Because both definitions apply to the enhancement provision, Burgess argues that no court can determine whether Congress intended that courts apply the sentence enhancement to criminal defendants in his situation. Consequently, the Court should apply the rule of lenity and choose the interpretation most favorable to criminal defendants.

    Separation of Powers

    Over the centuries, common-law courts developed principles of statutory interpretation that reflected a balance of power between the judiciary and the legislature. See Brief for Petitioner at 8-9.Under the rule of lenity, courts construing ambiguous criminal statutes should adopt the interpretation favoring the defendant. See NACDL Brief at 8. Courts reasoned that when the legislature intended to impose the most severe of penalties, it must do so unambiguously. See Brief for the Petitioner at 29.

    This issue presents the Court with a difficult problem. As the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums discuss in their amicus brief, Congress purposely limited the judiciary from viewing criminal defendants as unique and deserving of individualized punishment when it promulgated the mandatory minimum sentencing scheme. See NACDL Brief at 17. These statutes represent a clear legislative decision to change the balance of powers by limiting judicial discretion in sentencing. See Brief for Respondent at 39. This expression, however, complicates the traditional role of judicial review in criminal sentencing. See NACDL Brief at 17.

    Here, the Court must decide whether more or less deference to Congress is appropriate in the context of criminal sentencing. See NACDL Brief at 17. The NACDL argues that mandatory minimum sentencing schemes subject criminal defendants to a greater risk of injustice because a court's power to equitably adjust a sentence is diminished. Id. Viewed in this light, the rule of lenity can protect an element of fairness courts have long considered essential in criminal sentencing. See Id. Weighing against this argument is Congress' clear intention to increase the severity of criminal sentencing of repeat offenders. See Brief for Respondent at 27. The Court could conclude that such a plain expression of purpose warrants greater deference, not less, in applying the mandatory minimum sentence. See Id. at 39.

    Implications of the Court's Decision

    The Court's decision may have wide implications. As the NACDL notes, the Court's ruling will affect the potential sentences of many criminal defendants already present in the federal court system. See NACDL Brief at 2. In addition, the Court's decision concerning the CSA may impact courts' interpretation of other mandatory minimum sentencing statutes. Id. State legislatures are rapidly enacting similar sentencing schemes. SeeId. at 19.A resolution for either Burgess or the United States might establish a course that state courts across the country will follow.


    This case raises the issue of statutory ambiguity in Burgess' attempt to avoid the harshness of the Controlled Substances Act's mandatory minimum sentencing scheme. Burgess hopes to convince the Supreme Court that the Act is ambiguous because more than one definition could apply to a key term. The United States, however, asserts that the Act is clearly unambiguous because the Act specifically defined the exact term in question. In effect, this case questions the extent to which courts must defer to legislative intent. A resolution favoring the United States could undermine courts' ability to give individualized sentences to convicted criminals. A decision favoring Burgess could undercut Congress' intent in passing the Act. An outcome for either party could significantly affect the lives of many criminal defendants by deciding whether they must receive a longer minimum sentence.

    Written by:

    Carrie Payne

    Suzanne Cook

    Edited by:

    Ferve Ozturk


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