A drug conviction that is treated as a misdemeanor under state law can later function as a "felony drug offense" for the purposes of federal sentencing in a subsequent case if that state conviction is punishable by more than a year in prison, the United States Supreme Court held today in Burgess v. United States.
The petitioner in this case, Keith Lavon Burgess, had a prior South Carolina cocaine possession conviction. That conviction was treated as a misdemeanor by South Carolina, but it was punishable by up to two years in prison. When Burgess later picked up a federal case for conspiracy to possess with intent to distribute 50 grams or more of cocaine base, the feds argued that he should be subject to a 20 year mandatory minimum sentence under 21 U. S. C. §841(b)(1)(A) for having previously been convicted of a "felony drug offense."
Justice Ginsburg, who writes for the majority in Burgess, explains that the meaning of "felony drug offense" under the federal statute does not turn on how the state defines the offense or even on how the federal Controlled Substances Act defines the word "felony." Rather, the term "felony drug offense" is defined by 21 U.S.C. § 802(44), which states that
“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.”
Given that the offense was punishable by more than a year of imprisonment in South Carolina, then, Burgess' state law prior was a "felony drug offense" even if South Carolina thought of it as a misdemeanor.
One remarkable wrinkle in this case is that Michael Ray, the jailhouse paralegal who helped Burgess file this appeal in the first place and who earns the princely sum of 29 cents an hour for his trouble was reportedly being investigated by the South Carolina Attorney General for practicing law without a license, seemingly in retaliation for assisting Burgess. The Associated Press' Meg Kinnard described the investigation in February in an article carried on Law.com, and the Wall Street Journal's Law Blog in February also named Ray its "Jailhouse Lawyer of the Day," as did the legal gossip blog Above the Law.
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