Burgess v. United States - Oral Argument

Argument of Jeffrey L. Fisher

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

Mr. Fisher.

Mr. 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--

Justice Kennedy: Is it time-honored since Granderson?

Is that the first time we did it?

Mr. Fisher: --Well, the rule of lenity has been--

Justice Kennedy: As to sentences?

As to sentences?

Mr. 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.

Chief Justice Roberts: 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.

Mr. 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.

Chief Justice Roberts: 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".

Mr. 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.

And so the mere fact, as the government would argue, that the word 44 does not mean that Congress meant that to be the sole definition.

We've given three examples on pages 11 and 12 where the sensible reading of the statute is that Congress attempted to nest the definition of a single term within the definition of a broader term.

Justice Alito: Could I... could I ask you what you think Congress might have been trying to do with the 1994 amendment under... under your reading?

Before 1994 the offense had to be classified as a felony.

Then they added this definition of "felony drug offense", and as I understand it your reading is that now the offense must be classified as a felony and it must be punishable by more, by imprisonment for more than a year.

What would be the reason for adding this new requirement as you see it, that it be punishable by more than a year, if there were not offenses that were classified by States as felonies but were punishable by less than a year?

I can't see the point unless the point was to rule those out.

And you haven't cited any State statute in your brief that involved an offense that was classified as a felony and is punishable by less than a year.

You cited a couple that were punishable by exactly a year, not more than a year but exactly a year.

So is it your, your theory that the reason for adding this new language was to make it clear that those offenses where the maximum was 12 months, as opposed to 12 months and a day, would not be counted?

Mr. Fisher: I think there is an agreement between us and the government on this point.

We cite in our blue brief statutes from Arizona as well as a couple of other States where there are crimes that are classified as felonies but punishable in less than a year.

And in those cases we agree with the government that that is the effect of the 1994 conforming amendments, is to exclude those outlier States that take low-level crimes and nonetheless classify them as felonies.

What this case is about--

Justice Alito: But if I could just come back to that.

I looked at those.

You cite Ohio, North Carolina, and Arizona and those are all punishable by... they all have a maximum term of 12 months, not less than.

So the difference is between 12 months and 12 months and a day?

Mr. Fisher: --Well, that works on the language of the statute, Justice Alito.

Justice Alito: But is it plausible that's the reason why Congress added this language?

They didn't want... they wanted to make sure that these felonies that were punishable by just 12 months would not be counted?

Mr. Fisher: Well, I think it is quite plausible that the language that Congress added has very little practical effect.

And that flows from the fact that Congress called these nothing more than conforming amendments, so Congress apparently wasn't trying to accomplish any dramatic change here and I think it might help to understand by looking at the other outlier states that the government claims got swept in with the 1994 amendments.

We cite statutes from States like Colorado.

Perhaps if I used a concrete example.

Take possession of a single ounce of marijuana.

That is one of the crimes in Arizona that we were just talking about, that is a felony punishable by no more than a year.

There are a few other States who are outliers in a different sense, in which they call these crimes misdemeanors, like the vast majority of States, but make them punishable by 18 months or more.

And so what the government's position is is that in 1994 when Congress passed a conforming amendment to exclude a couple of outlier States like Arizona, it was trying to sweep in for the first time into section 841(b)(1)(A) outlier States like Colorado that treat low-level drug crimes, low-level drug possession crimes, as misdemeanors that are punishable by more than a year.

So we think, for the very reasons the government explains, that Congress is trying to avoid disuniformity and happenstance according to how a few local jurisdictions might treat certain drug crimes, that it makes sense to read the '94 conforming amendments as requiring both the one-year punishment rule and the felony classification requirement.

And if you have any doubt on that, we submit it really makes sense to remember that what we're what talking about here is a mandatory minimum.

And so--

Justice Alito: What would you do with someone who was convicted... had a prior conviction of... for importing 10 tons of heroin in New Jersey, for example, where there are no felonies?

What would you do with that, a very serious drug offense in a State that doesn't use the term "felony" at all or a foreign conviction?

Mr. Fisher: --Well, we've cited a case in our brief in the Second Circuit that deals with that exact problem, at least with the New Jersey problem.

And what the courts did and what they have done in other circumstances where there's a felony classification requirement is they simply take the crime in New Jersey and analogize it to a comparable Federal or local State crime, and if it was... if it would be classified as a felony in that local jurisdiction, then courts... and this is even before the 1994 amendments... courts have treated it as a felony.

Justice Alito: But what they did... what they did in the Second Circuit case was to say this is punishable... this offense is punishable by more than a year in New Jersey and therefore it's a felony.

Mr. Fisher: I believe, Justice Alito, this was a case before 1994, so that's--

Justice Alito: I know.

And that's how they analogized it to a felony.

Mr. Fisher: --Right, because that is the Federal definition of a felony, and so that was the analogy that the Second Circuit was able to draw here and reach what we think is a commonsense way to deal with the unusual problem of New Jersey.

Another--

Justice Scalia: You say there are other examples where a... a noun that is nested in another definition is separately defined and the two are read together.

How are those phrased?

I mean, I could understand what you say if this provision here read

"The term "felony drug offense" means a felony that is punishable by imprisonment for more than one year. "

Then I'd go back to the "felony" definition for what a felony means, but it doesn't repeat the "felony".

"The term "felony drug offense" means an offense that is punishable by imprisonment for. "

--do any of the examples of nesting that you... that you bring forward read this way?

Mr. Fisher: --All three of them do, Justice Scalia.

Justice Scalia: Which ones are they?

Where are they--

Mr. Fisher: They're pages 11 and 12 of the yellow brief.

And so the first place to start is looking at the bottom of page 11, where the term "employee" is defined in one provision of the Federal... of the Federal statutory code.

And then the terms "employee of the Capitol Police",

"employee of the House of Representatives. "

are also defined, and they're defined... and those broader definitions are in the footnote at the bottom of page 12.

And so you see that there, after having defined the term "employee", the word "employee" is not repeated in those definitions.

They talk about "a member" or "an officer" or "an individual".

And so it's much like the circumstance here, where a more generic term is used in the broader definition, but it makes sense to read in the original definition.

The same thing I think you can see in the middle of page 12 with the part of the Bankruptcy Code that we've given this Court.

The word "debtor" is defined in a certain way, and then later on in the definitional provision, the term "debtor's principal residence" is defined as "a residential structure" and such and such.

Again the word "debtor" is not repeated in the broader definition, but we think the only way to make sense of it is to import the definition of the single term into the broader term.

If Congress had wanted--

Chief Justice Roberts: Just on that... just on that last one, are you saying that if it doesn't say "debtor's residential structure", you'd think it was somebody else's residential structure?

Mr. Fisher: --Well--

Chief Justice Roberts: I don't understand the point.

Mr. Fisher: --Well, there might be, you know, a very rigid plain-text argument that might be made.

The point is that Congress used... defined the term "debtor's principal residence" without using the term "debtor" again and defined it somewhere else.

My--

Chief Justice Roberts: Well, in a provision of the Bankruptcy Code that deals with debtors I don't think there's any question about whose residential structure they would be talking about, even though they don't repeat "debtor".

It strikes me as quite different than the provision we have before us today.

Mr. Fisher: --Well, then I think I'd refer you back to the employee example.

I mean, no example is going to be exactly on all fours.

I'm happy to acknowledge that.

The idea that I'm trying to get across is it's not unusual for Congress to define single terms that are nested within larger terms.

Justice Scalia: --And--

Justice Kennedy: --better example.

It doesn't quite work because it does not supersede the term "debtor" that was used earlier.

In the government's submission at least in this case, 13.

Mr. Fisher: I think that's right.

And I think one way to--

Justice Kennedy: So it seems to me they're not comparable in that sense.

Mr. Fisher: --Okay.

I think one way to understand how this statute... if Congress had wanted to do what the government says it wanted to do, how Congress could have made it absolutely clear... while we have the yellow brief open, we can look at page 13.

Justice Ginsburg: May I ask you a question before going on with this line?

You say that both the 802(13) definition has to be satisfied and the 44 definition, right?

But was 802(13) ever applicable to this situation?

What was the law prior to the 1994 amendment?

There was a section, wasn't there, that defined "felony drug offense"?

Mr. Fisher: For a time, yes, Justice Ginsburg, but... so when the statute was originally passed, 802(13) was the sole definition of '94 amendments, a definition of 841(b)(1)(A)--

Justice Ginsburg: Right.

Mr. Fisher: --but that itself just used the word 802(13).

So, again, I think there is an agreement between--

Justice Ginsburg: Would you take a look at that provision that was in 841(b)(1)?

Because it seems that it would be duplicative of 802(13).

Mr. Fisher: --Are you looking, Justice Ginsburg, at the 1988 version of the statute?

Justice Ginsburg: Yes.

Mr. Fisher: No, because--

Justice Scalia: --Where would we find this?

Mr. Fisher: --Oh, this is at 13a of the blue brief, Justice Scalia.

So, at page 13a it says,

"For purposes of this subparagraph, the term "felony drug offense" means an offense that is a felony under any provision of this subchapter, under any Federal law. "

Now, the word 802(13).

If I understand--

Justice Ginsburg: But read... read the end of it.

Read on where it says,

"or a felony under any law of a State or foreign country. "

et cetera.

Mr. Fisher: --Right.

But I think, again, the word 802(13) as of 1988--

Justice Ginsburg: Well, what--

Mr. Fisher: --because there isn't the explicit classification requirement.

Justice Ginsburg: --But it defines what the felony is:

"A felony under any law of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marijuana. "

et cetera.

Mr. Fisher: Well, I think the latter language, Justice Ginsburg, is defining--

Justice Ginsburg: Why would you need to look--

Mr. Fisher: --"drug offense", whereas the word "felony" I think is not a self-defining term in that statute as it's written.

And to understand whether we're talking about something like a one-year rule or a classification requirement, the reader needs to go back to the definitional section.

Justice Scalia: I don't... the definitional section contradicts... contradicts what's in (b)(1)(A).

Justice Ginsburg: --Yes.

Mr. Fisher: As of 1988?

Justice Scalia: Yes.

It contradicts it because the "felony" definition is classified as felony by Federal or State law.

Mr. Fisher: Well, it says

"a felony under the law of a State. "

So I think the classification requirement... I don't think it's inconsistent with it.

It might clarify it.

Justice Scalia: Which is

"under any provision of this subchapter or any other Federal law that prohibits or restricts. "

And then in the last part, "under any law of a"... of "State"... it picks up "State"... "or a foreign country".

802(13).

Mr. Fisher: That's right, Justice Scalia.

Justice Scalia: So you have to say that there "felony" stands on its own, right?

Mr. Fisher: Well, I guess you could, but then you wouldn't have a definition; then you'd have to figure out how to define "felony", whether it was a classification or a one-year rule or something else.

I think the natural reading, again, would be a classification requirement to the extent to which you couldn't look further than that provision of the statute, but--

Justice Breyer: Is the following true, that if you are right the reason Congress passed this new definition was it wanted to take those handful of States which have felonies as a year, the ones Justice Alito is talking about, and make clear that they are not covered?

Mr. Fisher: --Yes.

Justice Breyer: All right.

But if the government's right, then the reason Congress did this is that it recognized what I think is the truth, that felonies and misdemeanors are defined differently in many different ways under the laws of many different States and, in a matter where so much prison time turns on it, wished to create a single, uniform definition.

Now, if that's right, I'm asking myself which is a more plausible purpose.

Mr. Fisher: Well, we don't disagree with the government that the one-year rule does serve the purpose of helping iron out--

Justice Breyer: No, it doesn't, because if you're right, then you first have to look to the patchwork quilt of laws in all the different States to see whether those different States define the conduct as misdemeanors or felonies.

And then, having solved the patchwork problem, we add on the requirement of one year.

And so the bite of the new definition would be what Justice Alito said and nothing else.

Now, that's... and, yet, on the government's interpretation, the bite is to create a single, readily applied, uniform rule.

Now, if I ask myself which of those is most plausible, I hate to tell you which answer I get.

Mr. Fisher: --Well, I think, Justice Breyer, with due respect, if you look at the way different States treat drug crimes--

Justice Breyer: Am I right?

Am I right?

I mean, I put that out to give you a chance to say.

I'm not sure I am right.

Mr. Fisher: --That's what I'm trying to respond... different States treat drug crimes dramatically different, and this is so... I think it's common sense that States treat different crimes... treat... different States punish the same crime differently.

And that's nowhere more true than in drug crime, because there's a great amount of experimentation that goes on in the States.

And one of the things that certain States do, like Colorado, is take very low-level drug crimes and punish them by more than a year, in part so they can give treatment and keep people in, prison, long enough to have treatment take hold, whereas some other States treat drug crimes very differently.

So you have a patchwork whether you look to the classification or whether you look to the one-year rule.

That's why we think it makes sense to use both.

Now, if Congress had wanted to do what the government is suggesting, which is have the one-year rule be the sole and exclusive way of determining whether you have a felony before you, it could have very easily said so.

And there's an example... and this is at page 13 of the yellow brief... of what... of what the Federal Sentencing Guidelines do.

They define... in a "career-offender provision" there is a definition of "felony" there that is quite explicit.

They say a "felony" is

"an offense punishable by more than a year, regardless of whether such an offense is specifically designated as a "felony". "

So there are other provisions where Congress could have looked and it would have been well aware of how to make absolutely plain what it was trying to accomplish in the statute.

Now, we don't think that the government's reading is implausible, Justice Breyer, for the reason--

Justice Ginsburg: Mr. Fisher, could I just go back to what you quoted.

Are you quoting... you're quoting a Sentencing Guideline, right?

Mr. Fisher: --Yes.

Justice Ginsburg: Not a statute.

Mr. Fisher: Yes, I'm quoting the Sentencing Guideline, although in the Armed Career Criminal Act you can find another place where Congress dealt with this problem explicitly.

It said that felonies are crimes punishable more than a year; however, if the State classifies the crime as a misdemeanor, it has to be punishable by more than two years.

Justice Scalia: You think... you think it would mean something different if you just left out the "regardless of" clause?

Mr. Fisher: Well, Justice Scalia, with the problem--

Justice Scalia: The

"prior adult Federal or State conviction for an offense punishable by death or imprisonment for a term exceeding one year. "

you think it means something different without the "regardless".

Mr. Fisher: --Not necessarily, but leaving that clause--

Justice Scalia: Not at all?

Not possibly.

Mr. Fisher: --Well, our position is, Justice Scalia, that, standing alone, I will grant you; but the problem as we see it in this case is that that is left out.

In a very common problem, how to define a felony, they leave out that explicit statement of whether classification is important.

And what is more, in the same definitional provision--

Justice Scalia: I would say that "regardless" clause is extraordinary and I would not want to have to deal with such prolix statutes on a regular basis.

Mr. Fisher: --Well, I think there's a good reason why Congress put it in, and that's because it is a continually vexing problem, how to define what is a felony.

That's why Congress did it explicitly in the Armed Career Criminal Act.

That's why the Sentencing Guidelines are explicit here.

And leaving that out, and against the backdrop of a statute where the classification rule was the controlling rule for over a decade, and where they leave that classification rule in the very same definitional provision of the statute, we think, gives rise to an ambiguity.

Chief Justice Roberts: If it's such a vexing problem, why would Congress have incorporated the problem into the definition of "felony drug offense"?

Mr. Fisher: Well, I'm not sure I follow the question.

Chief Justice Roberts: Well, you seem to suggest that it's a vexing problem that "felony" is defined differently in different States.

And, yet, you say that the term "felony", which relies on how it's defined by different States, was incorporated in the felony drug offense, which seems to have a quite clear definition of punishable by more than one year.

If they don't want to repeat the problem that "felony" is defined differently in different States, they would not do what you're suggesting, which is incorporate it wholesale into the latter definition.

Mr. Fisher: Well, with all due respect, what Congress did is they left 802(13) on the books, which does turn on classifications.

And it's not... even though it is a... it is something of a patchwork, it is not unusual at all to have very serious consequences turn on whether something is classified as a "felony" or not.

Justice Ginsburg: But, of course, they had to leave it on the books because they need a definition of "felony".

"Felony" has to be defined in many places, but this is a definition of "felony drug offense".

So--

Mr. Fisher: Well, again, Justice Ginsburg, I think that is right.

But then what Congress could have done is use the language that the Federal Sentencing Guidelines use, or something comparable to make clear its intent.

And the classification of a felony or not a felony, as this Court knows, has a time-honored import.

Things like the right to vote, the right to bear arms, the right to various civil rights turn on whether somebody has been convicted of a felony or a misdemeanor.

And, again, this brings us in a sense back to the rule of lenity because one of the principal reasons for the rule of lenity is fair notice.

Now, this Court, as early as the McBoyle decision recognized that we're dealing with something of a fiction when we imagine an offender is looking at the statutory books to decide whether certain conduct is prohibited or not.

But in the context of recidivist enhancements that lead to mandatory minimums, we're talking about very real and serious notice problems.

Imagine the conscientious public defender advising someone like Mr. Burgess as to whether he should plead guilty to a misdemeanor or a felony.

This happens in States across the country that have three-strike provisions, that have very serious immigration consequences turning on "felony" or "misdemeanor".

That lawyer might have concluded, as the District of Columbia Circuit did, that pleading to a misdemeanor here would not expose Mr. Burgess in the event he was convicted of a later crime to such a serious punishment as the 20-year mandatory minimum in this case.

Justice Kennedy: Can you tell me what happened in South Carolina?

Could he on those facts and under the charges have been sentenced to more than a year?

It was just that the judge gave him less than a year?

Mr. Fisher: Mr. Burgess's crime, possession of cocaine, was punishable by up to two years.

So, yes, he received a sentence far less than that.

Justice Kennedy: But he, himself, was eligible for the--

Mr. Fisher: Yes.

The crime to which he pled guilty was punishable by two years.

But you should understand that that kind of hypothetical, punishable-by problem is one I know this Court dealt with a couple of months ago in the Rodriguez case.

And you should understand that not just what Congress, under the government's view, had been looking to sweep in outlier States like Colorado, but if the government prevails in the Rodriguez case where the term 1994 amendments, which were termed "conforming amendments", have an even far more sweeping effect and bring in lots of State-law misdemeanors that were never covered by the prior act.

If there are no more questions, I will reserve my time.

Justice Ginsburg: --Just one.

You said that in most States what Burgess did, his crime, simple possession, would not encounter a sentence of upward of one year.

Did you do a survey?

Did you document that in your brief?

Mr. Fisher: No.

But I said earlier, Justice Ginsburg, giving the example of possession of one ounce of marijuana, that the vast majority of States punished that as a misdemeanor by less than a year.

Mr. Burgess's crime, at best, was a misdemeanor punishable by less than a year under Federal law, but different States treat that crime differently.

And I think a majority of those, a majority of States, would treat that as a crime punishable by more than a year and classified as a

"felony. "

"If there are no more questions-- "

Argument of Nicole Saharsky

Chief Justice Roberts: Thank you, counsel.

Ms. Saharsky.

Mr. Saharsky: Mr. Chief Justice, and may it please the Court: Congress answered the question presented in this case when it adopted an express definition for "felony drug offense".

Under that definition, "felony drug offense" means an offense punishable by more than one year of imprisonment under certain State, Federal, or foreign drug laws.

There is no textual basis for going beyond that definition to also require that an offense be classified as a "felony".

The enhancement trigger in the sentencing-enhancement provision is a felony drug offense, and the way that the definition works is that you take the definition Congress provided for "felony drug offense".

Chief Justice Roberts: Is "drug" a nested term in that?

It doesn't really define "drug".

Do they look somewhere else for that definition?

Mr. Saharsky: Well, the term "felony drug offense", the "drug" component we understand to be the component that says "an offense" that prohibits...

"under law that prohibits or restricts conduct related to narcotic drugs, marijuana, anabolic steroids-- "

Chief Justice Roberts: Is there a place you would... is that a place you would look if you didn't know what they meant by "drug"?

If an issue arose whether, you know, a natural narcotic, I mean is that a drug or not?

Mr. Saharsky: --There is a definition of 802.

It refers back to the general definition of 321 of the Controlled--

Chief Justice Roberts: So that is nested in this definition, "felony drug offense"?

Mr. Saharsky: --The term "felony drug offense" has only the meaning that Congress gave to it.

In the words it shows that it be punishable by more than one year under State, Federal or foreign law relating to those particular drugs.

In fact, the question that you asked shows why Petitioner's reading of the statute cannot be correct, that you can't use both the definition of "felony drug offense" that Congress provided and try to import in separate definitions for "felony" and separate definitions for "drug", because the definition of "drug" in the Controlled Substances Act is very broad and applies to many different kinds of drugs, whereas the definition of "felony drug offense" only refers to offenses that involve narcotic drugs, anabolic steroids, marijuana or depressant or stimulant substances.

In the same way, this shows why Petitioner cannot be correct that the definition of "felony" also must be brought into "felony drug offense", because Congress chose that the measure of seriousness in "felony drug offense" is an offense punishable by more than one year.

And it actually took out of the statute the measure of seriousness which is classification as a felony.

So to bring that requirement back in would undo the change that Congress made in 1994.

That's the language, Justice Ginsburg, that we were looking at at the bottom of the... at the back of the blue book.

In 1988 it said

""Felony drug offense" means an offense which is a felony. "

And that language was taken out and Congress replaced it with this new language, which says

"punishable by more than one year of imprisonment. "

Chief Justice Roberts: What do you do with your friend's argument that the classification... or the term, more than one year or less than one year, doesn't always have to do with how serious they view the offense, but they may impose a sentence of more than one year to allow time for rehabilitation?

Mr. Saharsky: Congress chose the words that it did,

"punishable by more than one year. "

because it believed it to be a good measure of seriousness.

This Court has recognized in cases like Blanton versus City of North Las Vegas that the term of imprisonment that a legislature chooses is a good measure of the seriousness of the offense.

There may be offenses that a State classifies as more or less serious based on punishment, but Congress wanted to do its best to get uniformity in provision... in this provision.

So what it did here was to take out this requirement that would look to varying State and foreign laws and instead have one that was just based on term of imprisonment.

And actually this... this raises a very serious problem with Petitioner's reading of the statute, which is with respect to foreign offenses.

The "felony drug offense" definition allows an enhancement based on State, Federal or foreign offenses, and the definition of "felony" unadorned and standing by itself doesn't refer to foreign offenses at all, which means that there is a serious ambiguity if both apply as to what would be done in the case of trying to enhance based on a foreign offense.

Justice Ginsburg: Well, I suppose it might for countries that use that classification, for common law countries.

Mr. Saharsky: There are countries that do use the felony-misdemeanor distinction.

There are some that do not.

But we understand in 1994 that Congress... the change Congress made to be one that eliminates those kinds of ambiguities.

And certainly, if Congress had thought in 1994 that both the separate definition of felony and the definition of felony drug offense mattered, that it would have placed foreign offenses in the definition of felony, and it didn't do that here.

Justice Ginsburg: The... the information we have in the brief says that there are two States that have dropped those labels.

Are there more than New Jersey and Maine?

Mr. Saharsky: New Jersey and Maine are the only ones that I'm aware of.

Certainly, as this Court discussed in some previous questions, there may be ways in which courts could try to work around ambiguities that, for example, existed in the statute 1990... prior to 1994, to figure out how offenses in New Jersey should be treated.

But the fact that Congress made the change in 1994 to pick clear language that would just turn on the authorized term of imprisonment shows that that's what should be used, that choice should be given effect.

The fact that courts might be able to deal with an ambiguous statute certainly does not give license to create one where it doesn't otherwise exist.

There's an example the Petitioner raised, which is how violent felonies are treated in the Armed Career Criminal Act, and I think that that... that illustrates how Congress could have done what Petitioner wanted if that was, in fact, its intent.

In the ACCA, a violent felony, which could be the basis for a sentence enhancement, is defined as various violent offenses that are punishable by imprisonment exceeding one year.

But then Congress specifically decided that it wanted to exempt state misdemeanor offenses that it didn't consider serious enough to qualify as violent felonies.

So it exempted State offenses that are classified as misdemeanors and punishable by less than two years.

And we think that the Congress' treatment in the ACCA exempting specific State offenses shows that if Congress had wanted to exempt offenses classified as misdemeanors in the way that Petitioner suggests, then it would have done so in that way.

Congress chose a meaning here for "felony drug offense" and we think that it needs to be given effect.

Justice Kennedy: Could you tell us just a little bit about the rule of lenity?

You want us to apply sort of a watered down discount rule of lenity in sentencing cases?

And do you have authority for that?

Mr. Saharsky: The government--

Justice Kennedy: After we said in Granderson the rule of lenity applies without qualifying or modifying it at all.

Mr. Saharsky: --The government's position is that the rule of lenity operates in the same manner in both the defining the offense context and in the sentencing context.

The point that we were making in our brief is that the purposes behind the rule of lenity are really implicated to a lesser extent when we're talking about sentencing, and particularly with respect to mandatory minimums, because there's not a question of whether the offense conduct at issue is illegal, and there's not a question about the maximum offense, the maximum term of imprisonment that the person could be subject to.

So, our brief should be best understood as a response to Petitioner's extensive historical discussion of the rule of lenity and a suggestion that it applies with even more vigor in the context of mandatory minimums.

We don't think that that's the case, but at the same time we are not suggesting there is a new different rule of lenity in this context.

And again, we don't see this as a rule of lenity case.

Congress picked a particular definition and it used those terms... that term "felony drug offense" to trigger each of the sentencing enhancement provisions here.

We don't think there is any reason to look beyond it.

If the Court has no further questions, Government submits the judgment below should be affirmed.

Rebuttal of Jeffrey L. Fisher

Chief Justice Roberts: Thank you, Ms. Saharsky.

Mr. Fisher, you have four minutes.

Mr. Fisher: Thank you, Mr. Chief Justice.

If I might pick up where Justice Kennedy left off with the rule of lenity, because we don't want this Court to lose sight of the importance of the rule of lenity in this case.

It's not our position that the government's reading is unreasonable.

It is simply our position that our reading of the statute is a possible one and that Congress may have been--

Justice Kennedy: Well, but there has to be a real ambiguity.

I mean, if there is a plausible defendant-friendly interpretation, that doesn't trigger the rule of lenity, does it or doesn't it?

Mr. Fisher: --I think, Justice Kennedy, a fair way to ask yourself the question is, would the statute here rise to the level of a plain statement of a kind that is required to, for example, abrogate sovereign immunity or to realign the Federal State balance.

The term "clear statement" and "clear and definition statement" that is used in the historical context--

Justice Scalia: How many statutes exist like that, my goodness?

You want the government to be held in all statutes to a level that is clear enough to satisfy the clear statement--

Mr. Fisher: --With all due respect, Justice Scalia, that's what the historical cases say.

Justice Scalia: --That's what the rule of lenity means.

Mr. Fisher: Yes.

With all due respect.

If you look at the examples in Blackstone, that's the Greenbury cite, if you look at this Court's earliest cases, Chief Justice Marshall wrote for the court in Wiltberger that even though it's extremely improbable that Congress wanted the result that the defendant presses, the Court is nevertheless going to insist on it, because it is not unambiguously clear this was Congress' intent.

And so, it's easy to forget given the modern proliferation of Federal criminal statutes how rare criminal cases used to be in this court.

Justice Scalia: Do our cases reflect what you're saying?

I thought our cases on the rule of lenity say that where there is an ambiguity you give the tie to the defendant.

Mr. Fisher: Well, I think this is very important, Justice Scalia, your cases, especially the historical cases and the modern ones, I think, waffle in different directions, but there are plenty of cases from this Court that are much more than a tie-breaker in the sense of the rule of lenity and say, we require clear and definite terms, that's the phrase Justice Frankfurter used to repeat.

Justice Holmes said the statute must be clear.

Even up to Granderson it says--

Justice Kennedy: That was in a context where the question was whether or not the conduct was criminal at all not since.

Mr. Fisher: --That's right.

But for the reason--

Justice Kennedy: If you apply clear statement rule to the sentencing code, I don't think we are going to be able to get beyond the second sentence.

Mr. Fisher: --Well, I think with due respect what you're going to do is actually reduce the number of cases this court hears, because once you have a clear statement rule, two things are going to happen.

The lower courts are going to find it more... easier to resolve these kinds of cases because just like in the sovereign immunity and Federalism context, it's much easier to look for a clear statement.

And even more importantly, Congress will know that when it legislates in the realm of criminal sentencing, that it needs to be clear, and it will solve this case... this Court the problem, perhaps, of having four or five cases on its docket every term involving circuit splits and how to apply mandatory minimums in the vast labyrinth of Federal criminal sentencing provisions.

So we think this Court can rest assured, of course, that if it rules for the Petitioner in this case and Congress doesn't like the result, that it is well and able and ready to step in to solve that problem.

The problem is, is that if this Court accepts broad readings of the government, from the government of criminal statutes, that the institutional forces that drive legislation are... make it much less likely that Congress can step in to solve that problem in favor of criminal defendants.

So for the reasons we've explained, we think this Court should go back to the historical understanding brought forward to the present of the importance of the rule of lenity, and in this case find that the statute does not clearly and unambiguously apply to Petitioner.

If there are no further questions, I'll submit the case.

Chief Justice Roberts: Thank you, Mr. Fisher.

The case is submitted.