478 F.3d 658 (4th Cir. 2007), 04-4997, United States v. Burgess

Docket Nº:04-4997.
Citation:478 F.3d 658
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Keith Lavon BURGESS, a/k/a Buck Black, Defendant-Appellant.
Case Date:March 12, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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478 F.3d 658 (4th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Keith Lavon BURGESS, a/k/a Buck Black, Defendant-Appellant.

No. 04-4997.

United States Court of Appeals, Fourth Circuit.

March 12, 2007

Argued Jan. 31, 2007.

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ARGUED:

W. James Hoffmeyer, Florence, South Carolina, for Appellant.

Robert F. Daley, Jr., Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

ON BRIEF:

Reginald I. Lloyd, United States Attorney, A. Bradley Parham, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge NIEMEYER joined.

OPINION

SHEDD, Circuit Judge.

Keith Lavon Burgess pled guilty to conspiracy to possess with intent to distribute and to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. In sentencing Burgess, the district court applied the enhanced 20-year mandatory minimum sentence required by 21 U.S.C. § 841(b)(1)(A) for an offense committed "after a prior conviction for a felony drug offense has become final." Burgess now appeals, arguing primarily that the district court erroneously applied the 20-year mandatory minimum because his prior South Carolina conviction for cocaine possession, which is the predicate offense supporting the enhancement, is classified under state law as a misdemeanor and, therefore, is not a "felony drug offense" within the meaning of § 841(b)(1)(A). We disagree. The term "felony drug offense" is specifically and unambiguously defined in 21 U.S.C. § 802(44) for purposes of the Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801 et seq., and Burgess's prior cocaine possession

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conviction fits squarely within that definition. Accordingly, we affirm.

I

Under § 841(b)(1)(A), a conviction rendered pursuant to § 841(a)(1) involving 50 grams or more of cocaine base results in a mandatory minimum 10-year prison sentence. 1 Section 841(b)(1)(A) further provides that if the defendant committed the offense "after a prior conviction for a felony drug offense has become final," the mandatory minimum is enhanced to 20 years. Although § 841 does not define "felony drug offense," § 802(44) defines it for purposes of the CSA as "an offense that is punishable by imprisonment for more than one year under any law of ... a State ... that prohibits or restricts conduct relating to narcotic drugs...."

Burgess's Presentence Report ("PSR") calculated his sentencing guidelines range to be 151-188 months based on a total offense level of 31 and a criminal history category of IV. Before sentencing, the government filed an Information pursuant to 21 U.S.C. § 851 notifying Burgess that he was subject to the § 841(b)(1)(A) 20-year mandatory minimum because of his prior conviction under S.C.Code Ann. § 44-53-370(d)(1) for misdemeanor possession of cocaine. Burgess received a one-year sentence for that conviction, but the maximum possible sentence was two years. See id. The PSR was amended to reflect the enhancement, and Burgess objected, asserting (inter alia) that his prior cocaine possession conviction is not a "felony drug offense" within the meaning of § 841(b)(1)(A).

Specifically, Burgess argued that even though § 802(44) defines "felony drug offense" as being "an offense that is punishable by imprisonment for more than one year under any law of ... a State ... that prohibits or restricts conduct relating to narcotic drugs," the term as used in § 841(b)(1)(A) is ambiguous because another CSA definition provision, 21 U.S.C. § 802(13), defines "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." Invoking the rule of lenity, which provides that "an ambiguous criminal statute is to be construed in favor of the accused," Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), Burgess contended that "felony drug offense" in § 841(b)(1)(A) must be defined by incorporating the § 802(13) definition of "felony" into the § 802(44) definition of "felony drug offense," and such a reading mandates that the § 841(b)(1)(A) enhanced mandatory minimum applies only when a prior conviction is both classified as a felony and punishable by more than one year of imprisonment. Because his prior cocaine possession conviction is classified as a misdemeanor under S.C.Code Ann. § 44-53-370(d)(1), Burgess maintained that it is not a "felony drug offense."

The district court overruled this objection, concluding that "felony drug offense" for purposes of § 841(b)(1)(A) is defined by § 802(44) without reference to § 802(13). Because the prior cocaine possession conviction was punishable by more than one year of imprisonment, the district court applied the § 841(b)(1)(A) enhancement and increased the mandatory minimum from 10 to 20 years. After granting a downward departure motion made by the government based on substantial assistance, the district court sentenced Burgess to 156 months of imprisonment.

Burgess thereafter noticed this appeal, and his attorney filed a brief pursuant to

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