Opinion
Case No. 1:02-CR-35
January 14, 2003
MEMORANDUM OPINION AND ORDER DENYING SENTENCE ENHANCEMENT
I
On August 7, 2002, defendant Richard Lee Bowden was found guilty by a jury of possession of more than 50 grams of cocaine base with intent to distribute it. The government has timely given notice that defendant's two prior felony convictions may subject him to enhanced punishment under 21 U.S.C. § 841(b)(1)(A), i.e., mandatory life imprisonment. Defendant objects, contending his two prior convictions, for possession of an imitation controlled substance with intent to deliver it, are not "felony drug offenses." The government insists that enhancement is appropriate even though defendant's earlier convictions did not actually involve narcotics because the state law under which he was convicted prohibits or restricts conduct "relating to narcotics."
Having duly considered the parties' arguments, the Court concluded at defendant's sentencing on January 13, 2003, that enhancement is not appropriate under the facts of this case, and so ruled from the bench. This memorandum opinion and order memorializes the Court's bench ruling.
II
The subject mandatory life imprisonment enhancement is triggered by "two or more prior convictions for a felony drug offense." 21 U.S.C. § 841(b)(1)(A). "Felony drug offense" is defined as follows:
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). The terms "narcotic drugs," "marihuana," and "depressant or stimulant substances" are expressly and explicitly defined in the Controlled Substances Act, 21 U.S.C. § 802(9), (16) and (17).
Both of defendant's prior convictions are for violations of M.C.L. § 333.7341(3), which provides in relevant part: "[A] person shall not manufacture, distribute or possess with intent to distribute, an imitation controlled substance." "Imitation controlled substance," in turn, is defined in pertinent part as follows:
a substance that is not a controlled substance or is not a drug for which a prescription is required under federal or state law, which by dosage unit appearance including color, shape, size or markings, and/or by representations made, would lead a reasonable person to believe that the substance is a controlled substance.
M.C.L. § 333.7341(1)(b) (emphasis added). Thus, under Michigan law, an "Imitation controlled substance" is not a controlled substance.
Can a law that expressly excludes "controlled substances" from the purview of its regulation be deemed to "prohibit or restrict conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances?"
The government has not argued that "narcotic drugs, marihuana or depressant or stimulant substances" are not among the substances identified in the controlled substances schedules set forth in the Michigan Public Health Code, M.C.L. §§ 733.7212, 733.7214, 733.7216, 733.7218, 733.7220. Rather, the government argues that the subject law need not regulate controlled substances per se to regulate conduct relating to controlled substances. See United States v. Corrales, 183 F.3d 1116, 1127 (9th Cir. 1999). Inasmuch as defendant Bowden was convicted of conduct in which he treated an imitation controlled substance (i.e., "soap, baking soda, or something similar") as a narcotic drug (i.e., cocaine), the government argues he was convicted of wrongful conduct "relating to" a narcotic drug.
Defendant's memorandum in support of motion to dismiss government's information and notice of prior felony convictions, p. 6 n. 6.
Yet, in every case relied on by the government, the proscribed conduct related in some manner to the use, possession or sale of an actual controlled substance. Neither the instant Michigan statute nor the conduct for which defendant was convicted related to an actual controlled substance. To the contrary, the statute expressly excludes controlled substances from the purview of its regulation and defendant's conduct of conviction undisputedly related to a non-controlled substance.
An "imitation controlled substance," as defined under Michigan law, does not come within the scope of "narcotic drugs" or "marihuana" or "depressant or stimulant substances," as defined under federal law. It follows then, employing a strict reading of the pertinent provisions of the Controlled Substances Act, and giving them their plain and ordinary meaning, that neither of defendant Bowden's prior convictions was for a "felony drug offense." Enhancement is therefore inappropriate.
III
Nonetheless, and despite the lack of supporting case law authority, the government argues that sentence enhancement is appropriate because defendant's conduct of conviction — although it did not relate to an actual narcotic drug — related to narcotics trafficking, and therefore related indirectly to narcotic drugs. Because the provisions of the Controlled Substances Act, using carefully and precisely defined terms, do not expressly support the argument, any such construction would represent a judicial gloss that could only be legitimized by ambiguity in the Act's language. Yet, the resolution of any such ambiguity would necessarily trigger the "rule of lenity."
Under the rule of lenity, any ambiguity in a statute that cannot be resolved through reference to its language, structure and legislative history, must be resolved in favor of the criminal defendant. See United States v. Thomas, 211 F.3d 316, 322 (6th Cir. 2000) (J. Clay, concurring opinion); United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994). The rationale for the rule of lenity is explained as follows:
In United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) the Supreme Court enunciated the policies behind the time honored axiom of lenity:
This principle [rule of lenity] is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should."
Id. at 348, 92 S.Ct. 515 (citations omitted). Accordingly, the "policy of lenity means that the Court will not interpret a federal statute so as to increase the penalty it places on an individual when such an interpretation can be no more than a guess as to what Congress intended." Bifulco v. United States, 447 U.S. 381, 387 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).
Thomas, 211 F.3d at 322.
Here, as seen above, the plain language of the statute does not support the broad construction argued by the government. The government has not cited and the Court has not identified legislative history or case law authority supporting such a construction. Under these circumstances, defendant Bowden can hardly be held to have been fairly warned, pursuant to 21 U.S.C. § 841(b)(1)(A), that his prior convictions for possessing an imitation controlled substance would subject him to enhanced punishment based on prior "felony drug offenses." It follows that even if defendant's prior convictions might arguably be deemed felony drug offenses under the Controlled Substances Act, the rule of lenity dictates that such an ambiguity be resolved in defendant's favor and that defendant be spared enhanced punishment based on a mere guess as to what Congress intended.
IV
Accordingly, defendant's objection to the sentence enhancement sought by the government, denominated as a motion to dismiss government's information and notice of prior felony drug convictions, is GRANTED, and the requested sentence enhancement is DENIED.