United States v. West, Thomas

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2004 Decided January 7, 2005

No. 03-3115

UNITED STATES OF AMERICA,
APPELLEE

V.

THOMAS L. WEST ,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cr00519-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.

Dav id B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney at the time the brief was filed, John
R. Fisher, Elizabeth Trosman, and John P. Mannarino, Assistant
U.S. Attorneys.

Before: GINSBURG, Chief Judge, and EDWARDS and
ROGERS, Circuit Judges.
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Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Appellant Thomas L. West was
convicted by a jury of possession with intent to distribute 50
grams or more of cocaine base in violation of § 841(a)(1) and
(b)(1)(A)(iii) of the Drug Abuse Prevention and Control Act (the
"Controlled Substances Act" or the "Act"). 21 U.S.C.A. §
841(a)(1) & (b)(1)(A)(iii) (West 1999 & Supp. 2004).
Appellant's arrest occurred after a foot chase following a traffic
stop that was initiated when appellant allegedly drove through
a stop sign. According to the Government, when the foot chase
culminated in a physical struggle between appellant and the
pursuing officers, appellant threw down an object which was
later identified as a bag containing crack cocaine. Appellant
argued that he was stopped on a pretext and that the officer's
testimony regarding the drugs was not credible.
On appeal, appellant seeks a new trial, arguing that the trial
court erred when it (1) allowed the Government to introduce a
copy of his conviction for driving without a permit on the
evening of his arrest, and (2) denied his request for a "missing-
evidence" instruction based on the Government's failure to
produce a copy of the stop sign citation allegedly issued by the
arresting officers. Alternatively, appellant seeks a remand for
resentencing, arguing that the District Court erred in doubling
his mandatory minimum prison term from 10 to 20 years on the
basis of a single prior misdemeanor drug conviction in
Maryland. We find no merit in appellant's new trial arguments.
We agree, however, that the District Court erred in enhancing
appellant's sentence by 10 years.
Section 841(b)(1)(A) requires imposition of an enhanced
mandatory minimum of 20 years' imprisonment when a
defendant has a "prior conviction for a felony drug offense." 21
U.S.C.A. § 841(b)(1)(A). Appellant's Maryland misdemeanor
conviction carried with it the possibility of up to four years in
prison; he received a sentence of one year with all but eight days
 3

suspended. In determining that appellant's prior Maryland
misdemeanor triggered an enhancement under § 841(b)(1)(A),
the District Court relied solely on § 802(44), which defines a
"felony drug offense" as any offense punishable by over one
year in prison. 21 U.S.C. § 802(44) (2000). Looking to the
language and structure of the relevant provisions of the statute,
and considering the applicable canons of statutory construction,
including the rule of lenity, we are convinced that
§ 841(b)(1)(A) must be read in pari materia with § 802(44) and
§ 802(13), which defines a "felony" as an offense classified by
applicable law as a felony. See 21 U.S.C. § 802(13). Under this
reading, a prior drug conviction will only provide the predicate
for a 10-year § 841(b)(1)(A) enhancement if it is both
punishable by more than one year and characterized as a felony
by the controlling law. Therefore, we remand the case to the
District Court with instructions to vacate appellant's sentence
and resentence him to the applicable mandatory minimum of 10
years' imprisonment.
I. BACKGROUND
The Government and the defense present similar, though
not identical, pictures of the events leading to appellant's arrest
in December 2002. The main points of difference involve
appellant's alleged running of a stop sign and whether the drugs
recovered from the ground where appellant was eventually
detained belonged to him. The defense theorized that the traffic
stop was pretextual and that, because appellant fled and
physically resisted arrest, the officers then charged him with
possession of drugs that did not belong to him. Key to
appellant's case was the absence of any traffic citation to
corroborate the officers' claim that he drove through a stop sign.
A. Trial Evidence
The Government's evidence consisted largely of the
testimony of the two arresting officers. The officers testified
 4

that appellant drove through a stop sign at approximately 25
miles per hour as he turned from Atlantic Street onto Barnaby
Street in Southeast Washington, D.C. According to the officers,
after they pulled appellant over, he stepped from his car and
turned to face them. When the officers ordered appellant back
into his car, he fled.
Ignoring repeated orders to stop, appellant ran into the 800
block of Southern Avenue. When he fell, Officer Chumbley
tackled him. Officer Chumbley testified that, at some point
during their struggle, he saw appellant toss an object with his
right hand. Officer Chumbley stated that after the object hit the
ground, he saw that it was a clear bag containing a white rock
substance. Officer Bevilacqua testified that appellant "made a
motion with his right hand out to the side," but he did not see a
bag or any other object leave appellant's hand. Trial Transcript
("Trial Tr.") at 345. The officers testified that appellant
continued to struggle after the alleged toss. Eventually, Officer
Chumbley temporarily blinded appellant with pepper spray and
handcuffed him. The police recovered $143 from appellant.
The Government obtained a stipulation from the defense
that a DEA analysis of the plastic bag's contents demonstrated
that it contained 53.6 grams of cocaine base. A drug expert
testified that the amount of cocaine was more consistent with
sale than use.
During the defense case, an investigator testified that he
visited the area of the arrest seven times in March and April of
2003. He stated that he observed a lot of foot traffic, and he
noted that there appeared to be drug activity in the area. In
addition, he testified that he could not make the turn from
Atlantic onto Barnaby at more than 10 miles per hour and that
to do so at 15 miles per hour would probably cause a driver to
flip or hit another car. A friend of appellant's testified that
appellant had helped him move on the evening of his arrest and
that they parted sometime between 8:00 p.m. and 9:00 p.m. in
 5

the area of appellant's arrest. The friend also testified that he
was familiar with the apartment complex located in the 800
block of Southern Avenue and that it was "infested" with drugs.
Id. at 462. The defense established that there were no
fingerprints recovered from the bag containing the drugs.
B. Admission of the Certified Copy of the No-Permit
Conviction
During his opening argument, defense counsel stated that
the police would testify that they stopped appellant for running
a stop sign and that they issued him a citation for that offense,
but that the jury would not see the citation because the police did
not have it. After openings, the prosecutor objected to any
missing-evidence cross-examination or argument concerning the
traffic stop. The Government admitted that it did not have the
stop sign citation, but noted that appellant had been convicted of
driving without a permit on the night of his arrest. Government
counsel stated that if the defense raised the absence of either the
stop sign or no-permit citations, he would seek to introduce a
certified copy of the record of the appellant's no-permit
conviction. The judge responded that the defense was only
talking about a missing-evidence argument, not cross-
examination to elicit evidence.
The trial judge re-raised the missing-evidence issue a bit
later, stating that he would address the Government's concerns
on an issue-by-issue basis. Government counsel responded that
it would be inappropriate for the defense to argue that the
missing citations suggested that the police were lying. He
asserted that the citations were not in the Government's case file
because traffic offenses are handled by the Corporation Counsel,
that the certified copy of appellant's conviction for driving
without a permit supported the conclusion that the officers
issued both citations to appellant, and that it would be unfair to
allow the missing-evidence argument since appellant was not
being prosecuted for a traffic offense.
 6

The court made its final ruling regarding the admission of
the no-permit record during the cross-examination of Officer
Chumbley. On direct, Chumbley testified that he determined,
at the scene, that appellant did not have a driver's license.
However, Officer Chumbley was asked nothing and said nothing
about issuing any citations. During cross-examination, defense
counsel questioned Officer Chumbley about his failure to issue
a citation for the alleged stop sign violation. Officer Chumbley
responded that he had issued a citation and given it to appellant.
The officer then volunteered that he had also issued a citation to
appellant for driving without a permit and had taken both
citations to the Corporation Counsel. Though the testimony
regarding the no-permit citation was arguably irrelevant and
beyond the scope of counsel's examination, defense counsel did
not object.
On redirect, Officer Chumbley indicated that he was
unsuccessful in tracking down copies of the traffic tickets, but
was able to obtain a certified copy of appellant's no-permit
conviction. Again, defense counsel did not object. Defense
counsel finally objected when the Government began to lay the
foundation to introduce the certified record into evidence,
arguing that the document was irrelevant and beyond the scope.
The District Court admitted the record, holding, in pertinent
part, that the no-permit and stop sign citations were issued at the
same time by the same officer and that evidence of a conviction
pursuant to one of the citations thus tended to prove the
existence of the other citation.
C. The Trial Court's Denial of the Missing-Evidence
Instruction
During the instruction conference, the Government objected
to appellant's request for a missing-evidence instruction
regarding the Government's failure to produce a copy of the stop
sign citation. The prosecutor argued, among other things, that
a copy of the citation was not peculiarly within the power of the
 7

Government to produce and could, in fact, be obtained by the
defense from the Bureau of Traffic Adjudication or Superior
Court. The defense argued that the citation was peculiarly
within the power of the Government to produce, because "the
last testimony" about the ticket was Officer Chumbley's
statement that he "gave it to someone in the Seventh District."
Trial Tr. at 396. The court ruled that there was no basis for
giving a missing-evidence instruction because, among other
reasons, the ticket was not peculiarly within the power of the
Government to produce.
D. Enhanced Sentence
Prior to sentencing, the Government and appellant filed
written memoranda addressing the enhancement issue. The
Government argued that appellant's 1992 plea to a Maryland
misdemeanor drug offense provided the predicate prior
conviction for a felony drug offense necessary to trigger a
doubling of the mandatory minimum from 10 to 20 years
pursuant to § 841(b)(1)(A). The Government relied on
§ 802(44), a definitional provision within the Controlled
Substances Act that describes a "felony drug offense" as "an
offense that is punishable by imprisonment for more than one
year under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to narcotic . . .
substances." 21 U.S.C. § 802(44). Though classified as a
misdemeanor under Maryland law, the offense to which
appellant pled in 1992 was punishable by up to four years
imprisonment. Appellant was incarcerated for eight days on the
1992 Maryland possession offense, with the remainder of his
one-year prison term having been suspended.
Appellant argued that the enhancement provision did not
apply for several reasons. Citing to § 802(13), which defines a
"felony" as "any Federal or State offense classified by applicable
Federal or State law as a felony," 21 U.S.C. § 802(13), he
argued that the pertinent statutory terms were contradictory and
 8

ambiguous. He also argued that the Tenth Amendment, as well
as the ex post facto and equal protection clauses, prohibited
imposition of the enhancement based on his prior Maryland
misdemeanor conviction. Following oral argument, the District
Court ruled that imposition of the proposed enhancement would
not violate the Constitution. United States v. West, 293 F. Supp.
2d 49 (D.D.C. 2003). The trial court did not address appellant's
statutory construction argument.
Subsequently, at a sentencing hearing, the District Court,
resting on United States v. Glover, 153 F.3d 749 (D.C. Cir.
1998), ruled that imposition of the enhanced mandatory
minimum of 20 years was required. Prior to imposition of
sentence, the Government admitted that the 20-year sentence
was a "substantial if not staggering amount of time." Sentencing
Transcript at 5. And the court acknowledged that if it did not
believe itself bound to impose the additional 10-year
enhancement, it would not do so. Addressing appellant, the
court said, "I am convinced that you will not go back in that
direction [referring to appellant's involvement with drugs], and
I certainly hope you won't. But the Court is required to apply
the law as Congress sees fit, and it is an awfully stiff sentence."
Id. at 11. The court subsequently sentenced appellant to the
enhanced mandatory minimum of 20 years in prison followed by
10 years of supervised release.
II. ANALYSIS
A. New Trial Arguments
On appeal, appellant argues that the District Court erred
when it permitted the Government to introduce a copy of his no-
permit conviction to counter the defense's suggestions that
appellant did not run a stop sign and that the alleged traffic stop
was pretextual. According to appellant, the copy of the no-
permit citation was irrelevant, because proof that he was
prosecuted for driving without a permit had no logical tendency
 9

to establish that the police issued him a citation for failing to
obey a stop sign. Appellant argues that the court exacerbated
this erroneous evidentiary ruling by refusing to give a missing-
evidence instruction based upon the Government's failure to
produce the stop sign citation. According to appellant, the
errors, taken together, were not harmless. Appellant points out
that the Government's case rested entirely on the officers'
testimony, so the erroneous admission of the no-permit citation,
together with the denial of the missing-evidence instruction,
badly weakened defense attempts to undermine the officers'
credibility.
With respect to the admission of the copy of the no-permit
citation, appellant gave away any argument he may have had
when he conceded in his brief before this court that the no-
permit conviction actually reinforced trial counsel's suggested
inference that the police officers lied about the basis for the
traffic stop. See Br. for Appellant at 26. And appellant cannot
prevail on his claim regarding the missing-evidence instruction,
because trial counsel clearly failed to establish the requisite
foundation for giving the disputed instruction.
1. Admission of the Copy of the No-Permit Conviction
Rule 401 of the Federal Rules of Evidence defines relevant
evidence as "evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." F ED . R. EVID. 401. When a relevance
objection is made at trial, admission of the referenced evidence
is reviewed for abuse of discretion. United States v. Smith, 232
F.3d 236, 241 (D.C. Cir. 2000); United States v. Askew, 88 F.3d
1065, 1074 (D.C. Cir. 1996). Here we need not decide whether
the trial court's admission of the copy of the no-permit
conviction was error, because, on this record, any possible error
was clearly harmless.
 10

The District Court ruled that the certified copy of the no-
permit conviction corroborated Officer Chumbley's testimony
that he issued the no-permit citation at the same time that he
issued the stop sign citation and that the conviction thus tended
to demonstrate that a stop sign citation was issued. Assuming,
as appellant argues, that this reasoning was entirely without
logic and that admission of the document was thus an abuse of
discretion, the error was, by appellant's own concession,
harmless. As appellant points out in his brief, "evidence of the
no-permit conviction, combined with Chumbley's testimony that
he was unable to locate any record of the failure to stop citation,
had the . . . tendency . . . to reinforce the inference raised on
cross-examination that the police never issued a stop sign
citation to West and that the officers lied about that and about
the basis for the traffic stop itself." Br. for Appellant at 26.
Even absent this concession, given trial counsel's failure to
object to the testimonial evidence regarding the no-permit
citation and conviction, Trial Tr. at 276, 278, 280-81, there is
nothing to indicate that the admission of the paper record added
to any prejudice already caused by the uncontested preceding
testimony. In light of that testimony, and after reviewing all that
was presented to the jury, without stripping the presumed
erroneous admission of the record from the whole, we can say
with fair assurance that the jury's judgment was not substantially
swayed by the necessarily cumulative effect of seeing a copy of
the record of appellant's no-permit conviction. See Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946).
2. Denial of the Missing-Evidence Instruction
A trial court's decision to refuse a request for a missing-
evidence instruction is also reviewed for abuse of discretion.
See United States v. Tarantino, 846 F.2d 1384, 1404 (D.C. Cir.
1988) (describing the standard of review when the analogous
missing-witness instruction is denied). A missing-evidence
instruction is appropriate if it is peculiarly within the power of
 11

one party to produce the evidence and the evidence would
elucidate a disputed transaction. See United States v. Williams,
113 F.3d 243, 245 (D.C. Cir. 1997) (describing the necessary
foundation for an analogous missing-witness instruction);
United States v. Glenn, 64 F.3d 706, 709 (D.C. Cir. 1995)
(same). When these two requirements are met, jurors may be
instructed that the controlling party's failure to produce the
evidence permits them to draw the inference that the evidence
would have been unfavorable to that party. See id.
In this case, the District Court correctly ruled that the
instruction was not appropriate, because the record did not
support the conclusion that the citation was peculiarly available
to the Government. Appellant asserts that, because the
Government failed to establish that the ticket was lost, the
District Court's ruling was mistaken. Br. for Appellant at 28.
But this argument is off the mark. As the proponent of the
instruction, it was appellant's burden to show that the citation
was peculiarly within the control of the Government. As the
prosecutor pointed out during trial, "there is no reason why
[appellant] if he wanted to have a copy of that ticket . . .
couldn't just go to the bureau of Traffic Adjudication or to the
Superior Court . . . and get a record of that citation." Trial Tr. at
381. Defense counsel offered no rejoinder to the prosecutor's
assertion. He never indicated, for instance, that he had sought
or subpoenaed a copy of the citation from Traffic Adjudication,
Superior Court, or the Corporation Counsel and that someone
from those offices claimed that it was lost or otherwise
unavailable. Nor did he argue that there was some rule or policy
preventing him from seeking or subpoenaing the record from the
proper authorities.
Appellant offers nothing more convincing before this court.
He asserts only that "it is unlikely that West would have
received copies of the traffic citations after his altercation with
the officers in which he was temporarily blinded and then
 12

forcibly arrested." Br. for Appellant at 28. While this may
suggest that appellant did not personally possess a copy of the
citation, it does not establish that the ticket was within the
control of the Government and thus not available to the defense.
B. Sentence Enhancement
The compelling issue in this case relates to appellant's claim
that the District Court erred in doubling his sentence, from 10 to
20 years, on the basis of a misguided application of the sentence
enhancement provision under 21 U.S.C.A. § 841(b)(1)(A). The
sentencing issue raised by appellant turns on the construction of
the statutory scheme in Title 21 establishing different penalties
for various drug violations based on, among other factors, the
type and quantity of the drug involved and the defendant's
history of drug convictions. 21 U.S.C.A. §§ 841-863 (West
1999 & Supp. 2004). The District Court concluded that a state
drug conviction that is classified as a "misdemeanor" under the
applicable state law nonetheless constitutes a "prior conviction
for a felony drug offense" under § 841(b)(1)(A) if the conviction
was punishable by more than one year in prison. Applying a de
novo standard of review, United States v. Braxtonbrown-Smith,
278 F.3d 1348, 1352 (D.C. Cir. 2002), we hold that the District
Court erred in its construction and application of § 841(b)(1)(A).
1. Statutory Context
Section 841(b)(1)(A)(iii) of the Controlled Substances Act
provides that a person who is guilty of possession with intent to
distribute 50 grams or more of a mixture or substance containing
cocaine "shall be sentenced to a term of imprisonment which
may not be less than 10 years or more than life." 21 U.S.C.A. §
841(b)(1)(A)(iii). The relevant enhancement provision of §
841(b)(1)(A) provides:
If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which
 13

may not be less than 20 years and not more than life
imprisonment . . . .
21 U.S.C.A. § 841(b)(1)(A) (emphasis added). The
applicability of the 10-year enhancement thus turns on the
meaning of the words "prior conviction for a felony drug
offense." Although they are not defined in § 841(b)(1)(A), §
802, the definitional section of the Act, contains two facially
relevant provisions. The first, § 802(13), defines the term
"felony" as "any Federal or State offense classified by applicable
Federal or State law as a felony." 21 U.S.C. § 802(13). The
second, § 802(44), defines the words "felony drug offense" as
"an offense that is punishable by imprisonment for more than
one year under any law of the United States or of a State or
foreign country that prohibits or restricts conduct relating to
narcotic drugs, marihuana, or depressant or stimulant
substances." 21 U.S.C. § 802(44).
Congress added § 802(44) to the Controlled Substances Act
in 1994. Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, tit. IX, § 90105, 108 Stat. 1796,
1987-88. Prior to 1994, § 802 did not define "felony drug
offense." 21 U.S.C. § 802 (Supp. V 1993). Rather, the words
were defined only in § 841(b)(1)(A), which, consistent with §
802(13), described a "felony drug offense" as "an offense that is
a felony under any provision of this subchapter or any other
Federal law that prohibits or restricts conduct relating to narcotic
drugs, marihuana, or depressant or stimulant substances or a
felony under any law of a State or a foreign country that
prohibits or restricts conduct relating to narcotic drugs,
marihuana, or depressant or stimulant substances." 21 U.S.C. §
841(b)(1)(A) (Supp. V 1993).
2. The Parties' Positions
The issue in this case arises as a result of the 1994
amendments. Prior to 1994, a state misdemeanor drug
 14

conviction could not provide the predicate offense necessary for
a felony enhancement under § 841(b)(1)(A). See United States
v. Brown, 33 F.3d 1014, 1017-18 (8th Cir. 1994). Only a prior
drug conviction characterized as a felony by the controlling state
authority could provide the necessary enhancement. Id. Thus,
the question raised here is whether Congress, in enacting the
1994 amendments, intended to broaden the application of the
felony enhancement in § 841(b)(1)(A) to make it applicable to
state misdemeanor offenses that are punishable by more than a
year in prison. The Government argues that it did, contending
that § 802(44) alone defines a prior felony drug offense for
purposes of § 841(b)(1)(A).
Looking to both the language and structure of the Act,
appellant contends that § 841(b)(1)(A) must be construed by
reference to both § 802(13) and § 802(44). Appellant argues
that § 841(b)(1)(A) plainly refers only to felony drug
convictions, so the definitional provisions under both § 802(13)
and § 802(44) appear to apply. Appellant also reminds us that,
under well-established case law, a court must always strive to
interpret statutes to give meaning to all provisions and to
achieve coherent and consistent results. Following these
principles, appellant argues that the phrase "prior conviction for
a felony drug offense" in § 841(b)(1)(A) must be read in pari
materia with the definition of "felony" in § 802(13) and the
definition of "felony drug offense" in § 802(44). Pursuant to
this reading, the 10-year § 841(b)(1)(A) enhancement applies
only when a defendant's prior conviction is (1) classified as a
felony by applicable state or federal law and (2) punishable by
more than a year in prison.
3. Analysis
In addressing the parties' conflicting positions, we must first
decide whether the 1994 amendments manifest an unambiguous
intent on the part of Congress to broaden the applicability of the
disputed enhancement provision. If we find the statute
 15

ambiguous on this point, we must turn to the rule of lenity to
resolve the dispute. See United States v. Nofziger, 878 F.2d 442,
446 (D.C. Cir. 1989) (applying the rule of lenity, as well as the
canon that criminal offenses requiring no mens rea are generally
disfavored, to resolve an ambiguous statute in the defendant's
favor). This is so because, in the criminal context, our
assessment of the meaning of any particular statute is informed
by "two policies that have long been part of our tradition."
United States v. Bass, 404 U.S. 336, 348 (1971).
First, we require that "'fair warning . . . be given . . . in
language that the common world will understand, of what the
law intends to do if a certain line is passed.'" Id. (quoting
McBoyle v. United States, 283 U.S. 25, 27 (1931)). "Second,
because of the seriousness of criminal penalties, and because
criminal punishment usually represents the moral condemnation
of the community," we require that legislatures, not courts,
define criminal activity. Bass, 404 U.S. at 348. The latter
policy reflects our society's "'instinctive distastes against men
languishing in prison unless the lawmaker has clearly said they
should.'" Id. (quoting H. Friendly, Mr. Justice Frankfurter and
the Reading of Statutes, in BENCHMARKS 196, 209 (1967)). In
short, Congress must be precise in providing fair notice of the
specific criminal activity that is prohibited, as well as the
punishment that will be imposed if the prohibition is violated.
Both of these policies find expression in the rule of lenity.
"The [Supreme] Court has emphasized that the touchstone of the
rule of lenity is statutory ambiguity." Bifulco v. United States,
447 U.S. 381, 387 (1980) (quotations and citations omitted).
"Where Congress has manifested its intention, [the courts] may
not manufacture ambiguity in order to defeat that intention." Id.
Where, however, "the language and structure" of an act contain
a "grievous ambiguity or uncertainty . . . such that even after a
court has seized every thing from which aid can be derived, it is
still left with an ambiguous statute," the rule of lenity requires
 16

that the issue be decided in the defendant's favor. Chapman v.
United States, 500 U.S. 453, 463 (1991) (quotations and
citations omitted); see also Ratzlaf v. United States, 510 U.S.
135, 148 (1994) (finding the relevant statute clear, but noting
that were it ambiguous, "we would resolve any doubt in favor of
the defendant").
The Supreme Court has directed that, in seizing everything
from which aid can be derived, we must consider the "text,
structure, and history" of the disputed legislation, United States
v. Granderson, 511 U.S. 39, 54 (1994), including "ordinary rules
of statutory construction," United States v. Thompson/Ctr. Arms
Co., 504 U.S. 505, 517 (1992). The plain language, of course,
provides the first point of reference. Braxtonbrown-Smith, 278
F.3d at 1352. If the statutory language has a "plain and
unambiguous meaning," the court's inquiry ends, provided that
the resulting "statutory scheme is coherent and consistent."
United States v. Wilson, 290 F.3d 347, 352 (D.C. Cir. 2002)
(quotations and citations omitted). The determination of
whether certain language is plain depends on "the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole." Id. at 353
(quotations and citations omitted).
In arguing that the language of the 1994 amendments is
plain and unambiguous, the Government relies primarily on
United States v. Glover, 153 F.3d 749 (D.C. Cir. 1998).
According to the Government, in Glover this court "expressly
found that the new definition in section 802(44) did precisely
what its language says, i.e., made section 841(b)'s enhancement
apply based on the possible term of punishment for the prior
offense," without reference to the definition of felony in §
802(13). Br. for Appellee at 29-30. The Government is quite
wrong on this point. In Glover, we held only that application of
§ 841(b)(1)(A)'s enhancement provision based on a prior state
misdemeanor drug conviction punishable by more than a year in
 17

prison did not constitute a retroactive reclassification of that
misdemeanor as a felony in violation of the ex post facto clause
and did not violate the Tenth Amendment. See Glover, 153 F.3d
at 757-58 & n.6. The court was not presented with and did not
decide the statutory construction argument raised by appellant.
Consequently, the decision in Glover does not resolve the issue
raised here.
Without Glover, the Government's plain language argument
amounts to nothing more than a bold assertion: "section 802(44)
defines appellant's Maryland conviction as a 'felony drug
offense' because the Marlyand conviction was 'punishable by
imprisonment for more than one year' under Maryland law." Br.
for Appellant at 28. This self-serving assertion, however, begs
the question. The question at hand is not simply whether the
language of § 802(44) defines "a prior conviction for a felony
drug offense," but, rather, whether there is any language in that
or any other provision of the Act plainly stating that § 802(44)
alone gives meaning to those words as they are used in §
841(b)(1)(A). There is not.
In enacting the 1994 amendments, Congress did not amend
§ 841(b)(1)(A) either to specify that the new definition
contained in § 802(44) was the exclusive means of determining
which drug offenses would trigger an enhancement or to
indicate that § 802(13) should be ignored in any determination
regarding whether an enhancement was mandated. Neither did
Congress amend § 802(13) or include any language in § 802(44)
specifying that the former should not be considered or that the
latter should be the only provision referred to in determining
whether a prior drug offense requires a 10-year enhancement.
See United States v. Bombardier Corp., 380 F.3d 488, 495-96
(D.C. Cir. 2004) (noting that the failure of Congress to edit the
existing and unamended provisions of the False Claims Act to
indicate that claims need not be made to the Government
 18

supported the conclusion that the amendments arguably
suggesting that they did not were not controlling).
In the closing paragraph of its brief, almost as an
afterthought, the Government summarily states that, "[b]y
setting forth a separate definition of 'felony drug offense' in
section 802(44), Congress maintained the status of that phrase
as a term of art defined independently from section 802(13)."
Br. of Appellee at 32. This argument ignores a lot in a vain
attempt to prove too much. The very fact that Congress placed
the definition of felony drug offense in § 802(44) – a
definitional subsection that is coequal to the definitional
provision under § 802(13) – significantly undermines any
suggestion that its intent was to treat the phrase as a "term of
art" specific to § 841(b)(1)(A) and unaffected by other relevant
provisions in § 802.
At oral argument, Government counsel attempted to shore
up this "term of art" argument by reference to the canon that
specific statutory provisions take precedence over more general
ones. This canon, the Government argued, requires that §
802(44), alone, define the words "prior conviction for a felony
drug offense" as used in § 841(b)(1)(A). According to the
Government, absent the explicit incorporation of § 802(13) into
§ 802(44), the canon prohibits resort to the allegedly more
general definition contained in § 802(13). Pointing to §
841(b)(2), another enhancement provision, the Government
urged that application of the canon is supported by Congress's
retention of the term "felony" elsewhere in the Act. According
to the Government, this demonstrates that application of the
canon is not prohibited by the rule that a statute may not be read
so as to make any of its provisions superfluous. There are
several problems with the Government's arguments.
First, the Government's assertion that § 802(44) is a
"specific" provision, and thus warrants precedence over the
allegedly more "general" § 802(13), finds no support in the
 19

structure of the statute. As noted above, both are coequal
definitional provisions and neither is more or less specific or
general than the other. It is no answer for the Government to
say that § 802(44) employs a "term of art," because, as we have
shown, nothing in § 841(b)(1)(A) explicitly points to § 802(13)
or to § 802(44), and nothing in § 802(13) or in § 802(44)
explicitly points to § 841(b)(1)(A). Both "felony," defined in §
802(13), and "felony drug offense," defined in § 802(44), are
used in § 841(b)(1)(A). Thus, there is a glaring ambiguity as to
whether either or both provisions apply with respect to a §
841(b)(1)(A) enhancement.
Second, in amplifying the first point, appellant convincingly
points out that the word "felony," as used in the enhancement
provisions of the Act to refer to prior convictions, always
pertains explicitly to drug offenses. For example, the provision
to which the Government referred, § 841(b)(2), states, in
relevant part, that
[i]f any person commits such a violation after one or more
prior convictions of him for an offense punishable under
this paragraph, or for a felony under any other provision of
this subchapter or subchapter II of this chapter or other law
of a State, the United States, or a foreign country relating to
narcotic drugs, marihuana, or depressant or stimulant
substances, have become final, such person shall be
sentenced to a term of imprisonment of not more than . . . .
21 U.S.C. § 841(b)(2) (2000). The only "felony" to which this
provision applies is a felony conviction under the Controlled
Substances Act or some other federal, state, or foreign law
pertaining to drug offenses. See also 21 U.S.C.A. §§ 843(d),
(e), 848(c), (e), 853(d) (West 1999 & Supp. 2004). Thus,
contrary to what the Government suggests, the term "felony," as
used in the Offenses and Penalties part of the Act, does not refer
to general felony convictions, but only to prior felony
convictions for drug offenses. There is, then, no distinction
 20

between a felony and a felony drug offense for penalty purposes.
Consequently, there is no instance in which the so-called
"general" definition of § 802(13) would apply to the exclusion
of § 802(44), because each reference to a felony is a reference
to a felony drug offense.
Finally, it is noteworthy that, when asked by the court, the
Government could not cite a single case in which the specific-
takes-precedence-over-the-general canon has been applied to a
criminal statute to cure an otherwise grievous ambiguity relating
to the construction of competing definitional provisions where
application of the specific provision would be more detrimental
to the defendant than application of the general provision. The
reason is obvious: the rule of lenity applies to resolve such
ambiguities in a defendant's favor.
The Government's only other argument is also quite weak.
It asserts that "the fact that Congress changed the pre-1994
definition of 'felony drug offense,' not just by adding it, but by
replacing its language entirely, is the strongest possible
indication that it did not wish to retain the old definition." Br.
for Appellee at 32-33. According to the Government, "[i]f
Congress had intended the old language to remain in effect as an
additional requirement in the definition of section 802(44), it
would have left it there." Id. at 33. The Government cites no
legislative history to support this proposition and we have found
none. Without the illumination that such history might provide,
the Government's position is no more plausible than appellant's.
In moving the amended definition of the phrase from §
841(b)(1)(A) to the general definitional section of the Act and
rendering it in pari materia with § 802(13), it is at least as
plausible that Congress demonstrated its intent to limit the
applicability of the enhancement provision to those instances in
which the prior drug offense is both punishable by more than
one year and classified as a felony by the controlling authority.
 21

"In these circumstances – where text, structure, and history
fail to establish that the Government's position is unambiguously
correct – we apply the rule of lenity and resolve the ambiguity
in [appellant's] favor." Granderson, 511 U.S. at 54. We may
not "interpret a federal criminal statute so as to increase the
penalty . . . when such an interpretation can be based on no more
than a guess as to what Congress intended." Id. at 42-43
(quotations and citations omitted); see also Ladner v. United
States, 358 U.S. 169, 177-78 (1958) (applying the rule of lenity
in favor of the defendant after concluding that the more lenient
construction "may as reasonably be read" as the harsher and
"[n]either the wording of the statute nor its legislative history
points clearly to either meaning").
All that the Government offers in this case is a guess as to
the reach of § 841(b)(1)(A). Given the language and structure
of the Act, it seems to us that it is at least as likely, if not
significantly more likely, that appellant is correct with respect
to Congress's intent in amending § 841(b)(1)(A). Given the rule
of lenity, however, we need not guess. "To the extent that the
Government's argument persuades us that the matter is not
entirely free of doubt, the doubt must be resolved in favor of
lenity." Whalen v. United States, 445 U.S. 684, 694 (1980). A
ruling in favor of appellant is required, because, after application
of "every thing from which aid can be derived, [we are] still left
with an ambiguous statute." Chapman, 500 U.S. at 463
(quotations and citations omitted). In the face of such grievous
ambiguity, the more lenient interpretation controls.
III. CONCLUSION
We affirm the judgment of conviction. We remand the case
to the District Court, however, with instructions to vacate
appellant's sentence and to resentence appellant to the applicable
mandatory minimum of 10 years' imprisonment.