Interesting "rule of lenity" arguments in new SCOTUS brief

As noted here at SCOTUSblog, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed this merits brief earlier this week.  Though the main statutory interpretation issue in Burgess is quite technical, the brief is quite interesting (and was authored by a veritable SCOTUS dream team).  Of particular interest is the brief's fairly extended discussion of the "rule of lenity" and its application in this case.  Here is a summary of these points from the brief's "summary of the argument" section:

A criminal statute subject to two plausible constructions, one harsher than the other, must be resolved in favor of lenity.  Congress has legislated against the backdrop of the rule of lenity for generations, aware that when it intends to make previously innocent conduct criminal, or increase the penalty for previously illegal conduct, it must make that intention plain.  Strict application of the rule of lenity is especially appropriate in the context of mandatory minimum sentencing, which alters the traditional allocation of sentencing authority among the branches and where a mistaken interpretation can result in particularly severe consequences that may be, as a practical matter, difficult for Congress to correct.  On the other hand, there is every reason to believe that Congress stands at the ready to revise an unduly lenient construction, as the history of this sentencing provision illustrates.