Burgess v. United States - Oral Argument - March 24, 2008

Burgess v. United States

Media for Burgess v. United States

Audio Transcription for Opinion Announcement - April 16, 2008 in Burgess v. United States

Audio Transcription for Oral Argument - March 24, 2008 in Burgess v. United States

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 06-11429, Burgess versus United States.

Mr. Fisher.

Jeffrey L. Fisher:

Thank you, Mr. Chief Justice, and may it please the Court: The rule of lenity requires that any penal statute the government seeks to enforce against an individual must clearly and unambiguous apply to him and, as the government acknowledges its brief in this case, this Court has applied the rule of lenity in numerous recent cases involving mandatory sentencing provisions.

A reaffirmation of that time-honored principle is all that is necessary to decide this case.

The 20-year mandatory--

Anthony M. Kennedy:

Is it time-honored since Granderson?

Is that the first time we did it?

Jeffrey L. Fisher:

--Well, the rule of lenity has been--

Anthony M. Kennedy:

As to sentences?

Jeffrey L. Fisher:

--As to sentencing?

No, in the mid-20th century, Justice Kennedy, in the Bell decision written by Justice Frankfurter and in Ladner, both involved the degree of punishment which the defendant would receive.

There are other cases: In 1980 the Simpson case, and Bifulco around the same time.

So this Court has a history of applying the rule of lenity with equal force to sentencing provisions as it does to statutes demarcating criminal conduct or not.

And of course, as the green brief specially highlights, the very essence and the core of the rule of lenity derives from the English common law, which is... which was designed to invoke the rule of lenity to avoid mandatory punishment, not... not so much whether conduct was criminal or not.

So we think that applying that rule in a straightforward manner to this case requires a reversal.

The 20-year mandatory minimum in Section 841(b)(1)(A) applies only to defendants who have a prior conviction for a, quote, "felony drug offense".

Now, a sensible reading of that provision is that a State law misdemeanor simply does not constitute a felony drug offense.

John G. Roberts, Jr.:

Well, but if the rule of lenity depends upon of course some ambiguity in the term, the definition says

"1 year. "

It doesn't say anything about State classification.

Jeffrey L. Fisher:

That's right, Mr. Chief Justice, and if that's all you had on the statute books this might be an easier case.

But as you know, I think, above section 44 and section 13 the term "felony" is described and defined as

"a crime that is classified as a felony under Federal or State law. "

And so when you start with section 841(b)(1)(A), which uses the term "felony drug offense", and you go to the definitional section, the first thing you come to is the definition of felony, which says a crime classified as such.

And then, as you say, in section 44 you reach another definition.

So we think that at the very least you have an ambiguity here in which Congress has given two facially applicable definitions to the operative provision of the statute.

John G. Roberts, Jr.:

Well, obviously one is a definition of "felony" and the other is the definition of "felony drug offense" and the term that's at issue here is "felony drug offense".

Jeffrey L. Fisher:

Well, in a sense it's our position that both are at issue here.

The term "felony", which is within the term "felony drug offense", is also at issue here.

And as we've pointed out in pages 11 and 12, 11 and 12 of our yellow brief, it's not uncommon for Congress to have two separate definitions one of which is a single term within a broader term in a statute.