United States v. James Randy Nelson

MOTZ, Circuit Judge,

dissenting:

I respect the majority’s position and recognize the intuitive appeal of the Government’s argument. In my view, however, the plain language of the relevant statutes and Supreme Court instruction as to proper statutory interpretation require reversal of the judgment of the district court. Accordingly, I must dissent.

I.

The district court sentenced James Nelson to a ten-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B) (2006) because it found that Nelson’s previous conviction under 18 U.S.C.A. § 924(c)(1)(A) (1999) constituted a predicate “felony drug offense,” as 21 U.S.C. § 802(44) (2006) defines that term. Section 802(44) provides that a “felony drug offense” is:

an offense that is punishable by imprisonment for more than one year under any law of the United States ... that *264prohibits or restricts conduct relating to narcotic drugs....

(emphasis added).

The majority properly recognizes that § 802(44) provides the relevant definition of “felony drug offense.” But, immediately after citing this definition, it states that it “must determine whether Nelson’s March 1999 § 924(c)(1) conviction ... is an offense that ‘prohibits or restricts conduct relating to narcotic drugs.’ ” Ante at 260 0quoting 21 U.S.C. § 802(44)(emphasis added)). It seems to me that this approach ignores the plain language of § 802(44): the word “that” emphasized above in the statutory definition refers to “law,” not “offense.” Whether a previous conviction constitutes a “felony drug offense” depends not on the conduct that led to the prior offense, but rather on the law under which the individual was previously convicted. In Nelson’s case, that law was 18 U.S.C. § 924(c)(1)(A). Thus, the question is whether violations of this law are “felony drug offense[s].”

Section 924(c)(1)(A) provides:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to a term of imprisonment of not less than 5 years.

The plain statutory language prohibits the use or carrying of a firearm “during and in relation to” a crime of violence or a drug trafficking crime. Hence, § 924(c)(1)(A) criminalizes some conduct that has no relationship to drug activity.1 Wben a previous conviction involves no drug-related conduct, surely no one would suggest that the prior conviction constituted a “felony drug offense.” Indeed, the majority acknowledges that “if Nelson had only been convicted of carrying a firearm during and in relation to a crime of violence or violating § 924(c)(1) generieally” it “might be required” to reach “a different result.” Ante at 261.

The Government maintains that we should look to the facts of each conviction to determine whether that particular violation of § 924(c)(1)(A) was a “felony drug offense.” But the plain language of § 802(44) forbids this approach. Section 802(44) directs our attention to the “law,” not the conduct. Thus, either all violations of a “law” — in this case, § 924(c)(1)(A)' — ■ constitute “felony drug offense[s]” or none do. If Congress had intended for sentencing judges to look to the facts of a prior conviction, it could have defined a “felony drug offense” as a “crime or an offense involving conduct relating to drugs.” But it did not. “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes,” United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), and the “words” of *265§ 802(44) simply do not permit a court to hold that sometimes violations of § 924(c)(1)(A) are “felony drug offense[s],” and sometimes they are not.

Moreover, contrary to the Government’s contention, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), do not allow sentencing judges to look to the facts of a prior conviction in order to determine whether a defendant has previously committed a “felony drug offense.” In Shepard and Taylor, the Supreme Court considered when “burglary” constituted a “violent felony” and thus a proper basis to enhance a sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2006). After examination of § 924(e) and its legislative history, the Court concluded “that Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States” and so a prior burglary offense would count for the purpose of the ACCA enhancement if the person had been convicted of “any crime, regardless of its exact definition or label, having th[ese] basic elements.” Taylor, 495 U.S. at 598-99, 110 S.Ct. 2143. If a court cannot determine from a statutory definition that a crime substantially corresponds to “generic” burglary, it can consider whether “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant,” id. at 602, 110 S.Ct. 2143, or if the defendant pleaded guilty to such an offense, Shepard, 544 U.S. at 19, 125 S.Ct. 1254.

Neither the Supreme Court nor this court has ever suggested that the Shepard-Taylor approach can be applied generally to federal sentencing enhancements or particularly to the question of whether a law “restricts or prohibits conduct relating to drugs” for the purposes of a 21 U.S.C. § 841(b) enhancement. That said, if the language of § 802(44), the felony drug offense definition at issue here, was similar to § 924(e), the provision considered in Shepard and Taylor, then those cases would provide authority for the Government’s contention that we should examine the conduct underlying the predicate § 924(c)(1)(A) violation to determine if it is a felony drug offense.

In fact, however, the statutory language in § 802(44) differs markedly from that in § 924(e). These differences in statutory language clearly demonstrate why the Shepardr-Taylor approach does not apply here. Section 924(e)(2)(B), the statute at issue in Shepard and Taylor, defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). This definition focuses on the “crime” that formed the basis for the prior conviction; that is, the criminal conduct for which the individual was convicted. Hence, once the Court in Shepard and Taylor identified the elements of the “crime” of “burglary,” sentencing courts were free to look to whether the individual’s conduct included all of these elements. In contrast, the statutory definition of a “felony drug offense,” at issue here, directs judges not to the criminal conduct underlying the prior conviction, but to the law under which the individual was convicted. 21 U.S.C. § 802(44). Accordingly, it would be inconsistent with that statutory language to apply the Shepard and Taylor approach here.2

*266In sum, the plain language of the statutory definition of “felony drug offense” in § 802(44) does not permit sentencing judges to look to the conduct underlying a previous conviction under § 924(c)(1)(A)— as the majority must here — in order to determine whether that conviction qualifies as a “felony drug offense.” Rather, a court must determine whether or not all violations of that law constitute “felony drug offense[s].”

II.

To hold that all violations of § 924(c)(1)(A) are “felony drug offense[s]” when some of these violations have nothing to do with drugs would be an absurd result that no court should countenance when a “reasonable application can be given which is consistent with the legislative purpose.” See United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 76 L.Ed. 224 (1931). Here, a “reasonable application” that “is consistent with the legislative purpose” is certainly possible. Section 924(c)(1)(A) always “prohibits or restricts conduct relating to” firearms and so violations of it can more reasonably (and accurately) be viewed as felony firearm offenses rather than felony drug offenses.3

The legislative history of § 924(c)(1)(A) makes clear that Congress intended the statute as a restriction on firearm conduct, not drug conduct. As we have previously observed, the “unmistakable objective” of § 924(c)(1)(A) is to “ ‘persuad[e] the man who is tempted to commit a federal Felony to leave his gun at home,’ ” United States v. Camps, 32 F.3d 102, 108 (4th Cir.1994) (quoting Busic v. United States, 446 U.S. 398, 414, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (quoting 114 Cong. Rec. 22231 (1968) (statement of Rep. Poff, the sponsor of the amendment embodied in § 924(c)(1)))). Consistent with this purpose, we have explained that “the plain language of section 924(c)(1) very clearly does not criminalize the underlying predicate offense, whether it be a crime of violence or a drug trafficking crime.” Id. Perhaps for this reason, unlike federal statutes that target drug-related conduct, which are located in the Controlled Substances Act in title 21 of the United States Code, § 924(c)(1)(A) is located in title 18 of the United States Code.

Furthermore, treating violations of § 924(c)(1)(A) as “felony drug offense[s]” leads to troubling results that Congress could not have intended. As one example, a conviction based on a single underlying drug offense could lead to an enhancement for having two predicate felony drug offenses — one for the drug conviction and one for the § 924(c)(1)(A) conviction — and thus one prior criminal incident could result in a mandatory life sentence. See 21 U.S.C. § 841(b)(1)(A). Although the Government represents that this is not their practice, our precedent holding that a defendant, possessing multiple firearms in connection with a single drug trafficking or violent crime incident, can be convicted of multiple counts of § 924(c)(1)(A), see Camps, 32 F.3d at 108, provides the basis for another troubling example. If a violation of § 924(c)(1)(A) constitutes a “felony drug offense,” a defendant convicted of *267multiple violations of that law for possessing multiple firearms could face a mandatory life sentence even if the § 924(c)(1)(A) convictions arose from, a single incident having nothing at all to do with drugs.

Finally, of course, the rule of lenity counsels against treating violations of § 924(c)(1)(A) as “felony drug offense[s].” The Supreme Court has instructed that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland v. United States, 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (internal quotation marks omitted). To be sure, the Court has carefully “reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (internal quotation marks omitted). In my view, Nelson need not rely on the rule of lenity in this ease. For I believe that the plain language, structure, legislative history, and motivating policy of 18 U.S.C. § 924(c)(1)(A) all indicate that violations of it do not constitute “felony drug offense[s].” However, if there were any “reasonable doubt” as to this, we must apply the rule of lenity. Moskal, 498 U.S. at 108, 111 S.Ct. 461.

III.

For all of these reasons, I would hold that violations of § 924(c)(1)(A) are not “felony drug offense[s]” and reverse the judgement of the district court.

. Cf. United States v. Brandon, 247 F.3d 186, 191-92 (4th Cir.2001) (applying the Taylor approach to a different subsection of the ACCA itself only because the relevant statutory definition, like that in Taylor, focused on “the generic conduct proscribed by the stat*266ute”). But see United States v. Curry, 404 F.3d 316, 320 (5th Cir.2005) (per curiam) (assuming, in dicta and without explanation, that Shepard allows reference to the "underlying facts” to determine whether a prior conviction constitutes a predicate "felony drug offense”).

. Of course, Congress could enact a statute that created both a felony firearm offense and a felony drug offense, but such a statute would prohibit both firearm and drug activity in all instances, something that § 924(c)(1)(A) does not do.