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December 7, 2007

Another "priors" case with some rule of lenity spicing

This new post at SCOTUSblog provides a bit more background on Burgess, the most sentencing-focused case in today's big bunch of cert grants.  Here are the Questions Presented in the case:

1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari materia with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20-year sentence only if prior drug conviction as both punishable by more “than one year in prison and characterized as a felony by controlling law.

2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?

By my count, Burgess is the fourth case this Term dealing with how federal statutes define state prior offenses for purpose of certain sentencing enhancements.  Because these issues arise a lot, and because they can often generate circuit splits, I am not surprised these case often garner attention in the cert. pool.  However, with so many other issues competing for the Justices' attention, I suspect a few SCOTUS watchers are not that excited that more than 5% of the argued docket this term is focused on these state priors issues.

December 7, 2007 at 05:29 PM | Permalink

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Isn't there a lurking, and somewhat ironic, Anders issue in the Burgess v. US matter? I have not read the record before the 4th Circuit, but the Court of Appeals' opinion recites that while Burgess' counsel raised the "and/or" prior felony statutory issue before the District Court, he simply filed an Anders brief in the 4th Circuit, representing that that in his view the case lacked any "non-frivilous" issues to pursued. He did identify the statutory question but apparently - despite a circuit split on the question - did not find the question "non-frivolous." The 4th Circuit also recognized the split between the DC and First circuits, but did not call for the defendant's counsel to submit a "merits" brief on the statutory issue. Instead, it asked for a government brief on the issue, and (presumably based on the gov't's brief and the Anders submission) then resolved the appeal on the merits. It then told defense counsel to explain the cert. process to Burgess but said counsel could also move to withdraw if he viewed the the cert. petition as frivolous. Defense counsel presumably followed that course, given that the petition was filed pro se. Thus, the statutory issue has now reached the Supreme Court (apparently based on a circuit split) without any defense counsel ever filing an appellate merits brief advocating on behalf of Burgess.

Posted by: gary myers | Dec 21, 2007 11:01:09 AM

Isn't there a lurking, and somewhat ironic, Anders issue in the Burgess v. US matter? I have not read the record before the 4th Circuit, but the Court of Appeals' opinion recites that while Burgess' counsel raised the "and/or" prior felony statutory issue before the District Court, he simply filed an Anders brief in the 4th Circuit, representing that that in his view the case lacked any "non-frivilous" issues to pursued. He did identify the statutory question but apparently - despite a circuit split on the question - did not find the question "non-frivolous." The 4th Circuit also recognized the split between the DC and First circuits, but did not call for the defendant's counsel to submit a "merits" brief on the statutory issue. Instead, it asked for a government brief on the issue, and (presumably based on the gov't's brief and the Anders submission) then resolved the appeal on the merits. It then told defense counsel to explain the cert. process to Burgess but said counsel could also move to withdraw if he viewed the the cert. petition as frivolous. Defense counsel presumably followed that course, given that the petition was filed pro se. Thus, the statutory issue has now reached the Supreme Court (apparently based on a circuit split) without any defense counsel ever filing an appellate merits brief advocating on behalf of Burgess.

Posted by: gary myers | Dec 21, 2007 11:01:52 AM

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