Wednesday, April 16, 2008

SCOTUS: CSA's "Felony Drug Offense" Is Term of Art, Does Not Depend on State Classification of Offense as Felony or Misdemeanor

Burgess v. United States, No. 06-11429 (U.S. Apr. 16, 2008)

The good news is that fans of statutory construction get two decisions to gnaw on today. The bad news is that you've already heard about the good one.

The question in Burgess, which has produced a circuit split, "is 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 question arises because of two apparently conflicting definitions in the Controlled Substances Act:
Section 802(13) defines the unadorned term "felony" to mean any"offense classified by applicable Federal or State law as afelony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specifieddrugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country."

The Court holds, unanimously, that the term "felony drug offense" is "defined exclusively by §802(44) and does not incorporate §802(13)'s definition of 'felony.'" It concludes that Congress defined "felony drug offense" as a term of art "without reference to §802(13)[,]" for several reasons:

First, 802(44) provides that "the term 'felony drug offense' means an offense that is punishable by imprisonment for more than one year," and generally "[a] definition which declares what a term 'means' . . . excludes any meaning that is not stated."

Second, "the term 'felony' is commonly defined to mean a crime punishable by imprisonment for more than one year." Since 802(44) defines an FDO as "an offense . . . punishable by imprisonment for more than one year[,]" there is no gap for 802(13)'s "felony" definition to fill.

Third, if Congress wanted to incorporate 802(13)'s felony definition in 802(44), it could have defined an FDO as "a felony that is punishable for more than one year . . . . " (The Court points out that Congress has nested definitions in this manner elsewhere in the U.S. Code, but distinguishes Burgess's examples of "defined words nested within defined phrases where . . . the definition of the word is embraced within the phrase, although the word is not repeated in the definition of the phrase.")

Fourth, interpreting 802(44) to incorporate 802(13) would lead to anomalies in that it would wind up excluding foreign offenses (because 802(13) refers only to federal or state offenses, whereas 802(44) refers to state, federal, and foreign offenses). It would also exclude offenses in states that don't classify offenses as felonies or misdemeanors. (The latter "anomaly" is actually pretty minor. The opinion cites only two states that don't classify: New Jersey and Maine. But it also cites a case acknowledging that New Jersey common law classifies offenses punishable by more than one year as felonies. So we're left with Maine, and given the state's low population, it's hard to imagine that its lack of misdemeanor/felony classification could affect very many 841 enhancement determinations.)

Fifth, reading 802(44) in this way does not render 802(13) superfluous because there are at least several places in the CSA that rely on the "unadorned" felony definition in 802(13).

The Court also concludes that a change in the relevant provisions in 1994 confirms its construction of the statute, but I won't bore you with the details of that.

Finally, and least persuasively, the Court declares that the rule of lenity has no application here because the statute isn't ambiguous. The decision may be unanimous, but I think it's a stretch to say there's no ambiguity at all.

(Interesting aside: the Court issued its opinion in this case just 23 days after oral argument.)



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