Tuesday, March 13, 2007

Two-Year Misdemeanor is "Felony Drug Offense"

US v. Burgess: Burgess was convicted of conspiring to distribute more than 50 grams of cocaine base. The Government filed an 851 information to enhanced the mandatory minimum based on Burgess's prior South Carolina conviction for possession of cocaine. For that conviction, a misdemeanor under state law, Burgess received a one-year sentence. The statutory maximum for the offense, however, was two years. Burgess objected, arguing that the definition of "felony drug offense" in 21 USC 802(44), which ties the definition to sentence length regardless of state law classification, must be read in common with the definition of "felony" in 21 USC 802(13), which ties the definition to state law. The district court rejected Burgess's argument and sentenced him to 156 months in prison (following a downward departure for substantial assistance).

Burgess's counsel filed an Anders brief, but the court nonetheless took the case for oral argument. The court upheld Burgess's sentence and rejected his argument regarding the meaning of "felony drug offense." The definition of that term in section 802(44) is unambiguous and has nothing to do with the general definition of "felony" in section 802(13). The court did note that, after Burgess's sentencing, two other Circuits had split on the issue, the First Circuit (US v. Roberson, 459 F.3d 39 [1st Cir. 2006] - adopting Fourth Circuit position) and DC Circuit (US v. West, 393 F.3d 1302 [DC Cir. 2005] - adopting Burgess's argument and applying Rule of Lenity).


Anonymous said...

This is another example of the problem with definitions in the federal statutes and guidelines that make any offense "punishable by a year or more" (or similar phrase) a felony regardless of the terminology given by the state or the sentence imposed. Individuals regularly have their sentences enhanced based on convictions for which they received misdemeanor-type sentences, but since the offense could have punished by a year or more, it is considered a felony. All this could be cleaned up by making such enhancements depend on the sentence actually imposed, rather than what could have been.

Anonymous said...

I don't understand why Congress has to make such a harsh sentencing policy even remotely ambiguous. If their object is to deter criminal activity, then let these people know exactly what the consequences of their actions will be. Endorse it. Like 10-20-Life. Instead, while Mr. Burgess writes on a job application that he has a misdemeanor, he actually has a felony under CSA. No way he knew that. Ignorance is no defense, but it isn't a deterrent either.