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Title United States v. West

Argued September 16, 2004 Decided January 7, 2005

Subject

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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

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.

David 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

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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

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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

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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.

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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

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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

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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

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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." FED. 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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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"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.

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