PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4997

KEITH LAVON BURGESS, a/k/a Buck

Black,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Terry L. Wooten, District Judge.

(CR-03-107)

Argued: January 31, 2007

Decided: March 12, 2007

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion, in

which Judge Wilkinson and Judge Niemeyer joined. 

COUNSEL

ARGUED: W. James Hoffmeyer, Florence, South Carolina, for

Appellant. Robert F. Daley, Jr., Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South

Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, United States

Attorney, A. Bradley Parham, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South

Carolina, for Appellee. 

Affirmed by Supreme Court, April 16, 2008
OPINION

SHEDD, Circuit Judge: 

Keith Lavon Burgess pled guilty to conspiracy to possess with

intent to distribute and to distribute 50 grams or more of cocaine base

in violation of 21 U.S.C. §§ 841(a)(1) and 846. In sentencing Burgess,

the district court applied the enhanced 20-year mandatory minimum

sentence required by 21 U.S.C. § 841(b)(1)(A) for an offense committed "after a prior conviction for a felony drug offense has become

final." Burgess now appeals, arguing primarily that the district court

erroneously applied the 20-year mandatory minimum because his

prior South Carolina conviction for cocaine possession, which is the

predicate offense supporting the enhancement, is classified under

state law as a misdemeanor and, therefore, is not a "felony drug

offense" within the meaning of § 841(b)(1)(A). We disagree. The

term "felony drug offense" is specifically and unambiguously defined

in 21 U.S.C. § 802(44) for purposes of the Controlled Substances Act

("CSA"), 21 U.S.C. §§ 801 et seq., and Burgess’s prior cocaine possession conviction fits squarely within that definition. Accordingly,

we affirm. 

I

Under § 841(b)(1)(A), a conviction rendered pursuant to

§ 841(a)(1) involving 50 grams or more of cocaine base results in a

mandatory minimum 10-year prison sentence.1 Section 841(b)(1)(A)

further provides that if the defendant committed the offense "after a

prior conviction for a felony drug offense has become final," the mandatory minimum is enhanced to 20 years. Although § 841 does not

define "felony drug offense," § 802(44) defines it for purposes of the

CSA as "an offense that is punishable by imprisonment for more than

one year under any law of . . . a State . . . that prohibits or restricts

conduct relating to narcotic drugs . . . ." 

1

"Section 841(b)(1) provides penalties not only for violations of § 841,

but also for transgressions of § 846 that involve a conspiracy to commit

an offense defined in § 841." United States v. Stokes, 261 F.3d 496, 499

n.4 (4th Cir. 2001). 

2 UNITED STATES v. BURGESS
Burgess’s Presentence Report ("PSR") calculated his sentencing

guidelines range to be 151-188 months based on a total offense level

of 31 and a criminal history category of IV. Before sentencing, the

government filed an Information pursuant to 21 U.S.C. § 851 notifying Burgess that he was subject to the § 841(b)(1)(A) 20-year mandatory minimum because of his prior conviction under S.C. Code Ann.

§ 44-53-370(d)(1) for misdemeanor possession of cocaine. Burgess

received a one-year sentence for that conviction, but the maximum

possible sentence was two years. See id. The PSR was amended to

reflect the enhancement, and Burgess objected, asserting (inter alia)

that his prior cocaine possession conviction is not a "felony drug

offense" within the meaning of § 841(b)(1)(A). 

Specifically, Burgess argued that even though § 802(44) defines

"felony drug offense" as being "an offense that is punishable by

imprisonment for more than one year under any law of . . . a State . . .

that prohibits or restricts conduct relating to narcotic drugs," the term

as used in § 841(b)(1)(A) is ambiguous because another CSA definition provision, 21 U.S.C. § 802(13), defines "felony" as "any Federal

or State offense classified by applicable Federal or State law as a felony." Invoking the rule of lenity, which provides that "an ambiguous

criminal statute is to be construed in favor of the accused," Staples v.

United States, 511 U.S. 600, 619 n.17 (1994), Burgess contended that

"felony drug offense" in § 841(b)(1)(A) must be defined by incorporating the § 802(13) definition of "felony" into the § 802(44) definition of "felony drug offense," and such a reading mandates that the

§ 841(b)(1)(A) enhanced mandatory minimum applies only when a

prior conviction is both classified as a felony and punishable by more

than one year of imprisonment. Because his prior cocaine possession

conviction is classified as a misdemeanor under S.C. Code Ann. § 44-

53-370(d)(1), Burgess maintained that it is not a "felony drug

offense." 

The district court overruled this objection, concluding that "felony

drug offense" for purposes of § 841(b)(1)(A) is defined by § 802(44)

without reference to § 802(13). Because the prior cocaine possession

conviction was punishable by more than one year of imprisonment,

the district court applied the § 841(b)(1)(A) enhancement and

increased the mandatory minimum from 10 to 20 years. After granting a downward departure motion made by the government based on

UNITED STATES v. BURGESS 3
substantial assistance, the district court sentenced Burgess to 156

months of imprisonment. 

Burgess thereafter noticed this appeal, and his attorney filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious issues for appeal, but raising two issues, one

of which is the propriety of the § 841(b)(1)(A) enhancement.2 After

reviewing the entire record in accord with Anders, we directed the

government to file a responsive brief, and we notified Burgess of his

right to file a pro se supplemental brief in an Anders case (which he

did not do). 

Subsequent to Burgess’s sentencing, two federal appellate courts

considered the precise issue now before us, reaching conflicting

results. Consistent with Burgess’s position below and on appeal, the

D.C. Circuit applied the rule of lenity and held that "felony drug

offense," as used in § 841(b)(1)(A), is defined by §§ 802(13) and

802(44); under this reasoning, the applicability of the enhancement is

limited "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." United States v. West, 393 F.3d 1302, 1315

(D.C. Cir. 2005). Rejecting this approach, the First Circuit held that

"the definition of ‘felony drug offense’ contained in § 802(44) unambiguously controls for the purposes of determining whether the penalty enhancement in § 841(b)(1)(A) is triggered" and, therefore, the

enhancement applies when the defendant has a prior drug conviction

that is punishable by more than one year of imprisonment, regardless

of how the offense is classified. United States v. Roberson, 459 F.3d

39, 51 (1st Cir. 2006), cert. denied, ___ S. Ct. ___ (Feb. 20, 2007).

The parties have cited these cases in support of their respective positions, and the courts’ opinions thoroughly detail their underlying

rationales. See Roberson, 459 F.3d at 50-55; West, 393 F.3d at 1310-

15. 

2Burgess’s attorney also raised the propriety of Burgess’s base offense

level calculation under United States v. Booker, 543 U.S. 220 (2005). In

light of our determination that the district court properly applied the 20-

year mandatory minimum, we need not consider the Booker issue further.

4 UNITED STATES v. BURGESS
II

The district court’s interpretation of "felony drug offense," as it is

used in § 841(b)(1)(A), involves a pure question of law, which we

review de novo. Ramey v. Director, O.W.C.P., 326 F.3d 474, 476 (4th

Cir. 2003). Using common sense as a guide, Kofa v. I.N.S., 60 F.3d

1084, 1088 (4th Cir. 1995) (en banc), "[o]ur first step in interpreting

a statute is to determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the

case," Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). We determine the "plainness or ambiguity of statutory language . . . by reference to the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole." Id. at 341.

"Our inquiry must cease if the statutory language is unambiguous and

the statutory scheme is coherent and consistent." Id. at 340 (internal

quotation marks omitted). In most instances, "[s]tatutory definitions

control the meaning of statutory words," Lawson v. Suwanee Fruit &

S.S. Co., 336 U.S. 198, 201 (1949), and "[w]hen a statute includes an

explicit definition, we must follow that definition, even if it varies

from that term’s ordinary meaning," Stenberg v. Carhart, 530 U.S.

914, 942 (2000). Moreover, a statutory definition "which declares

what a term means . . . excludes any meaning that is not stated."

Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) (internal quotation marks omitted). 

As we have noted, § 841 does not define "felony drug offense," but

§ 802(44) does in plain and unambiguous terms:

The term "felony drug offense" means 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, anabolic steroids, or depressant or stimulant substances.

Like the First Circuit, whose reasoning we adopt, we believe that

"[b]ecause the term ‘felony drug offense’ is specifically defined in

§ 802(44), and § 841(b)(1)(A) makes use of that precise term, the logical, commonsense way to interpret ‘felony drug offense’ in

§ 841(b)(1)(A) is by reference to the definition in § 802(44)." RoberUNITED STATES v. BURGESS 5
son, 459 F.3d at 52. We discern no basis from the plain language or

statutory scheme of the CSA to indicate that Congress intended "felony drug offense" also to incorporate the definition in § 802(13). We

also reject Burgess’s attempt to invoke the rule of lenity because we

find that there is no "grievous ambiguity or uncertainty" in the pertinent statutes. See Muscarello v. United States, 524 U.S. 125, 138-39

(1998) ("To invoke the rule [of lenity], we must conclude that there

is a grievous ambiguity or uncertainty in the statute." (internal quotation marks omitted)).3

In light of our interpretation of § 841(b)(1)(A), Burgess’s prior

conviction for cocaine possession constitutes a "felony drug offense."

Accordingly, the district court correctly applied the 20-year mandatory minimum to his sentence. 

III

Based on the foregoing, we affirm the conviction and sentence. We

direct counsel to inform Burgess, in writing, of the right to petition

the Supreme Court of the United States for further review. If Burgess

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move for leave to withdraw

3Apart from the foregoing, we reject Burgess’s argument that the

§ 802(13) definition of "felony" must be incorporated into § 802(44) for

an additional reason. In United States v. Amaya-Portillo, 423 F.3d 427

(4th Cir. 2005), we considered whether a state conviction for cocaine

possession qualifies as an "aggravated felony" under U.S.S.G. § 2L1.2 if

it is a misdemeanor under the applicable state law and punishable only

as a misdemeanor under the CSA. Resolution of this issue required us

ultimately to determine for purposes of 18 U.S.C. § 924(c) what constitutes a "drug trafficking crime," which is defined as "any felony punishable under the [CSA]." We concluded that § 802(13) — without

reference to § 802(44) — provides the definition of "felony" under the

CSA. Looking to §§ 802(13) and 802(44), we explained that "felony"

and "felony drug offense" "are two different terms with different definitions under the CSA," and that a state offense can be a "felony drug

offense" but not a "felony." 423 F.3d at 435. Because Burgess’s argument is necessarily predicated on reading the § 802(13) definition of "felony" into the § 802(44) definition of "felony drug offense," our analysis

in Amaya-Portillo negates his argument. 

6 UNITED STATES v. BURGESS
from representation. Counsel’s motion must state that a copy thereof

was served on Burgess.

AFFIRMED

UNITED STATES v. BURGESS 7