United States v. Nelson ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4333
JAMES RANDY NELSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Walter D. Kelley, Jr., District Judge.
(2:05-cr-00114-WDK)
Argued: March 13, 2007
Decided: April 19, 2007
Before WILLIAMS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote the
majority opinion, in which Judge Williams joined. Judge Motz wrote
a dissenting opinion.
COUNSEL
ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Alexandria, Virginia, for Appellant. Rachel L.
Brand, UNITED STATES DEPARTMENT OF JUSTICE, Office of
the Attorney General, Washington, D.C., for Appellee. ON BRIEF:
Michael S. Nachmanoff, Acting Federal Public Defender, Riley H.
2 UNITED STATES v. NELSON
Ross, III, Assistant Federal Public Defender, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.
Chuck Rosenberg, United States Attorney, Alexandria, Virginia,
James Ashford Metcalfe, Assistant United States Attorney, Edward
K. Nickel, Third Year Law Student, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
James Nelson pled guilty to possession of five grams or more of
cocaine base (crack) with the intent to distribute, 21 U.S.C.
§§ 841(a)(1) and (b)(l)(B), and to possession of cocaine with the
intent to distribute, id. §§ 841(a)(1) and (b)(1)(C). In sentencing Nel-
son, the district court applied the enhanced ten-year mandatory mini-
mum sentence required by § 841(b)(1)(B) for an offense committed
"after a prior conviction for a felony drug offense has become final."
Nelson appeals, arguing that the district court erroneously applied the
ten-year mandatory minimum sentence because his prior March 1999
conviction for carrying a firearm during and in relation to a drug traf-
ficking crime, 18 U.S.C. § 924(c)(1), which is the predicate offense
supporting the enhancement, is not a "felony drug offense" within the
meaning of § 841(b)(1)(B). We disagree. The term "felony drug
offense" is specifically and unambiguously defined in 21 U.S.C.
§ 802(44), and Nelson’s March 1999 § 924(c)(1) conviction for carry-
ing a firearm during and in relation to a drug trafficking crime falls
squarely within that definition. Accordingly, we affirm the district
court’s judgment.
I
A
Under § 841(b)(1)(B), a conviction obtained pursuant to
§ 841(a)(1) involving five or more grams of crack results in a manda-
tory minimum five-year sentence. Section 841(b)(1)(B) further pro-
vides that if the defendant committed the offense "after a prior
UNITED STATES v. NELSON 3
conviction for a felony drug offense has become final," the mandatory
minimum is enhanced to ten years. Although § 841 does not define
"felony drug offense," § 802(44) does define the term 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, anabolic steroids, or depressant
or stimulant substances.
21 U.S.C. § 802(44).
B
In September 1998, Nelson was charged by a federal grand jury sit-
ting in the Eastern District of Virginia with possession of crack with
the intent to distribute, id. § 841(a)(1), and carrying a firearm during
and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). The
drug trafficking crime charged in the § 924(c)(1) count was the drug
offense charged in the § 841(a)(1) count. On March 8, 1999, Nelson
pled guilty to the § 924(c)(1) count pursuant to a plea agreement. Pur-
suant to the plea agreement, the district court dismissed the
§ 841(a)(1) count. On the same day he pled guilty, Nelson was sen-
tenced to sixty months’ imprisonment on the § 924(c)(1) count.
Following his release from prison, Nelson was arrested after he uri-
nated on the wall of a laundromat located on Coastal Boulevard in
Onley, Virginia. As the arresting officer frisked Nelson for weapons,
a scuffle apparently ensued, which led to Nelson’s arrest. During the
search incident to the arrest, the officer recovered crack and cocaine,
as well as $2,522.55 in cash, from Nelson’s person.
On August 25, 2005, a two-count indictment was returned by a fed-
eral grand jury sitting in the Eastern District of Virginia. Count One
charged Nelson with possession of five grams or more of crack with
the intent to distribute, 21 U.S.C. §§ 841(a)(1) and (b)(l)(B), and
Count Two charged Nelson with possession of cocaine with the intent
to distribute, id. §§ 841 (a)(1) and (b)(1)(C). Following the return of
the indictment, the government filed a notice and information certify-
4 UNITED STATES v. NELSON
ing that Nelson had been previously convicted of a felony drug
offense and that the conviction was final, see id. § 851(a)(1). The fel-
ony drug offense listed in the notice and information was Nelson’s
March 1999 § 924(c)(1) conviction.
On October 25, 2006, Nelson pled guilty to both counts in the
indictment, without the benefit of a plea agreement. A presentence
report (PSR) was prepared, but it did not include the application of
the ten-year mandatory minimum sentence contained in
§ 841(b)(1)(B).1 Consequently, the government objected to the PSR’s
failure to apply the ten-year mandatory minimum sentence for a prior
felony drug offense in § 841(b)(1)(B), contending that Nelson’s
March 1999 § 924(c)(1) conviction constituted a felony drug offense
because the offense involved conduct that related to narcotic drugs.
In a published decision, see United States v. Nelson, 417 F. Supp.
2d 773 (E.D. Va. 2006), the district court sustained the government’s
objection, concluding that Nelson’s March 1999 § 924(c)(1) convic-
tion for carrying a firearm during and in relation to a drug trafficking
crime fell squarely within § 802(44)’s unambiguous definition of "fel-
ony drug offense." Thereafter, Nelson was sentenced to concurrent
terms of 120 months’ imprisonment. Nelson noted a timely appeal.
II
On appeal, Nelson challenges the district court’s holding that his
March 1999 § 924(c)(1) conviction for carrying a firearm during and
in relation to a drug trafficking crime constituted a "felony drug
offense," as that term is defined in § 802(44). As this issue involves
the district court’s interpretation of statutes, our review is de novo.
United States v. Burgess, No. 04-4997, 2007 WL 726736, at *2 (4th
Cir. March 12, 2007).
When confronted with an issue turning on the interpretation of one
or several statutes, "[o]ur first step" is to determine whether the statu-
tory language in play "has a plain and unambiguous meaning with
regard to the particular dispute in the case." Robinson v. Shell Oil Co.,
1
The PSR recommended a sentencing range of 87 to 108 months’
imprisonment.
UNITED STATES v. NELSON 5
519 U.S. 337, 340 (1997). Questions concerning the plainness or the
ambiguity of the statutory language are resolved "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 (citation and
internal quotation marks omitted). In most instances, "[s]tatutory defi-
nitions control the meaning of statutory words," Lawson v. Suwannee
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).
As noted above, § 841 does not define "felony drug offense," but
§ 802(44) does so. 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. Accordingly, we must
determine whether Nelson’s March 1999 § 924(c)(1) conviction for
carrying a firearm during and in relation to a drug trafficking crime
is an offense that "prohibits or restricts conduct relating to narcotic
drugs," 21 U.S.C. § 802(44).
Section 924(c)(1)(A) states, in relevant part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment pro-
vided for such crime . . . be sentenced to a term of imprison-
ment of not less than 5 years.
18 U.S.C. § 924(c)(1)(A).
Under the plain language of § 924(c)(1), the statute criminalizes the
use or carrying of a firearm during and in relation to either a crime
of violence or a drug trafficking crime. Thus, in a § 924(c)(1) prose-
cution, the government must prove that "(1) the defendant used or
6 UNITED STATES v. NELSON
carried a firearm, and (2) the defendant did so during and in relation
to a drug trafficking offense or crime of violence." United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997); see also O’Malley,
Grenig, & Lee, 2A Federal Jury Practice and Instructions § 39.18
(5th ed. 2000) (stating in its proposed § 924(c)(1) instruction that the
government must prove beyond a reasonable doubt that the defendant
committed a predicate crime and that the defendant used or carried a
firearm during and in relation to that crime). Moreover, "a defen-
dant’s conviction under § 924(c) ‘does not depend on his being
convicted—either previously or contemporaneously—of the predicate
offense, as long as all of the elements of that offense are proved and
found beyond a reasonable doubt.’" United States v. Hopkins, 310
F.3d 145, 152 (4th Cir. 2002) (quoting United States v. Crump, 120
F.3d 462, 466 (4th Cir. 1997)).
In this case, Nelson’s guilty plea to the § 924(c)(1) offense consti-
tuted an admission of all the material elements of the crime. See
McCarthy v. United States, 394 U.S. 459, 466 (1969) ("[B]ecause a
guilty plea is an admission of all the elements of a formal criminal
charge, it cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts."); United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993) ("A knowing, voluntary, and
intelligent guilty plea to an offense conclusively establishes the ele-
ments of the offense and the material facts necessary to support the
conviction."). Thus, Nelson admitted that he not only possessed a fire-
arm, but also did so during and in relation to the offense of possession
of crack with the intent to distribute.2
Where, as here, a defendant has pled guilty to a § 924(c)(1) offense
involving the possession of a firearm during and in relation to a drug
trafficking crime, the § 924(c)(1) offense unquestionably "prohibits or
restricts conduct relating to narcotic drugs." Section 924(c)(1), in the
context of this case, prohibited Nelson from possessing crack with the
intent to distribute while simultaneously carrying a firearm. His con-
duct was not criminal under § 924(c)(1) until he (1) committed the
offense of possession of crack with the intent to distribute and (2) car-
2
Nelson concedes that the offense of possession of crack with the
intent to distribute is a drug trafficking crime as that term is defined in
18 U.S.C. § 924(c)(2).
UNITED STATES v. NELSON 7
ried the firearm during and in relation to that offense. Because his
conduct was not criminal under § 924(c)(1) without his possession of
crack with the intent to distribute, his March 1999 § 924(c)(1) convic-
tion was an offense that prohibited or restricted conduct relating to
narcotic drugs under § 802(44). Cf. United States v. Mankins, 135
F.3d 946, 949 (5th Cir. 1998) (holding that a prior conviction for use
of a communication facility in the facilitation of a drug offense under
21 U.S.C. § 843(b) constituted a "felony drug offense" because an
element of the § 843(b) offense included the facilitation of the com-
mission of a drug offense).
To be sure, if Nelson had only been convicted of carrying a firearm
during and in relation to a crime of violence or violating § 924(c)(1)
generically (in the sense that neither the parties nor the district court
could discern whether Nelson carried the firearm during and in rela-
tion to a crime of violence or carried it during and in relation to a drug
trafficking crime), a different result might be required. However, the
September 1998 indictment referred specifically to the crime of pos-
session of crack with intent to distribute. Because Nelson admitted,
by virtue of the September 1998 indictment and his subsequent guilty
plea, that he carried a firearm during and in relation to his possession
of crack with the intent to distribute, his March 1999 § 924(c)(1) con-
viction meets the "relat[ed] to" requirement of § 802(44).3
In the face of this straightforward application of the relevant stat-
utes, Nelson presses several arguments. First, he suggests that Con-
gress never intended § 924(c)(1) to restrict or prohibit conduct related
to controlled substances. In support of this assertion, he notes that
§ 924(c)(1) is contained in Chapter 44 ("Firearms") of Title 18
("Crimes and Criminal Procedure") as opposed to Part D ("Offenses
and Penalties") of Title 21 ("Food and Drugs"). He also notes that
3
In reviewing prior convictions to determine whether they fall within
a federal sentencing enhancement provision, the Supreme Court has
instructed us to review "the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant assented." Shepard
v. United States, 544 U.S. 13, 16 (2005). In keeping with Shepard, we
have relied on Nelson’s undisputed formal conviction records to deter-
mine the nature of his March 1999 § 924(c)(1) conviction.
8 UNITED STATES v. NELSON
§ 924(c)(1) can apply to conduct wholly unrelated to the possession
or distribution of controlled substances, for example, when the fire-
arm is possessed during and in relation to a crime of violence.
Nelson’s view of the relevant statutes is too myopic. Title 18 and
Title 21 work together, not separately, to prohibit conduct related to
controlled substances. Obviously, Chapter 44 of Title 18 deals mostly
with prohibited conduct related to firearms, and Part D of Title 21
deals mostly with prohibited conduct related to controlled substances.
However, there are instances in Title 18 where Congress understand-
ably sought to penalize conduct that went beyond conduct solely
related to firearms. Section 924(c)(1) is a prime example, as it
addresses the evil of possession of a firearm during and in relation to
either a crime of violence or a drug trafficking crime. Section 924(k),
which applies when a person smuggles a firearm into the United
States with the intent to engage in or promote the commission of,
inter alia, a Title 21 drug offense or a state law violation that "re-
late[s] to any controlled substance," is another example. Chapter 44
of Title 18 also contains other references to Title 21. See, e.g., 18
U.S.C. §§ 922(g)(3), 924(e)(1). In view of the interplay between Title
18 and Title 21, it was not unreasonable or unusual for Congress to
restrict some conduct related to controlled substances in Title 18.
Next, Nelson relies on the fact that § 924(e)(1), which imposes a
fifteen year minimum mandatory sentence for a defendant who is con-
victed of being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1) and has three previous convictions for, inter alia, a "seri-
ous drug offense," refers only to Title 21 for its definition of federal
crimes that constitute "serious drug offense[s]." According to Nelson,
"[h]ad Congress intended that § 924(c) qualify as a ‘drug offense,’ the
violation of that statute certainly would constitute a ‘serious drug
offense’ and, therefore, be included as a predicate offense for the
§ 924(e) enhancement." Appellant’s Br. at 15. Nelson’s argument
fails for the simple reason that § 924(e)(1) relates to a sentence
enhancement imposed for the possession of a firearm under
§ 922(g)(1), while this case concerns a sentence enhancement related
to the possession of crack under § 841(a)(1) and § 841(b)(l)(B). We
simply cannot take issue with Congress’ decision to create separate
approaches for the application of sentencing enhancements, one
related to a felon who possesses a firearm and the other related to cer-
UNITED STATES v. NELSON 9
tain drug offenses. Morever, several courts have recognized that the
definition of "felony drug offense" and "serious drug offense" are dis-
similar because the term "felony drug offense" has a broader reach
than the term "serious drug offense." See, e.g., United States v. Curry,
404 F.3d 316, 318-19 (5th Cir. 2005) (noting that the definition of
"felony drug offense" covers offenses involving the mere possession
of controlled substances, while the definition of "serious drug
offense" does not).
Nelson also suggests that, at a minimum, the rule of lenity "coun-
sels against adopting the district court’s interpretation of the term ‘fel-
ony drug offense.’" Appellant’s Br. at 17. We reject Nelson’s attempt
to invoke this rule because there is no "grievous ambiguity or uncer-
tainty" in the relevant statutes. 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.") (cita-
tion and internal quotation marks omitted).
Finally, we offer a brief comment concerning the dissenting opin-
ion of our distinguished colleague. According to the dissent, all viola-
tions of § 924(c)(1) are not felony drug offenses because in some
instances (not all) § 924(c)(1) criminalizes conduct that has no rela-
tionship to drug activity. See post at 11-13. According to the dissent,
its textual support for this argument is § 802(44)’s use of the word
"law." The use of the word "law," the dissent tells us, means that "ei-
ther all violations of a ‘law’ — in this case, § 924(c)(1)(A) — consti-
tute ‘felony drug offense[s]’ or none do." Post at 12. This is so,
according to the dissent, because the term "law" does not allow us to
examine anything beyond the statutory definition of § 924(c)(1).
We decline the dissent’s invitation to read the word "law" so nar-
rowly. "Law" as used in § 802(44) is a broad term, and it relates to
all federal, state, and foreign laws that prohibit or restrict conduct
related to drugs. Considering the broad nature of the term "law," we
are convinced that Congress did not intend § 802(44) to have no
application simply because a law in some instances would cover con-
duct unrelated to drug activity. For example, if a state law provided
that it was illegal for a defendant to possess drugs, distribute drugs,
manufacture drugs, or launder money, the dissent would conclude that
this law is not related to drugs because a component of the law—
10 UNITED STATES v. NELSON
money laundering—does not necessarily relate to drugs. Such an
approach is simply illogical, would defeat the purpose of the
enhanced penalties set forth in § 841(b)(1)(B), and explains why an
examination of Nelson’s undisputed formal conviction records is
appropriate in this case.
III
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
I respect the majority’s position and recognize the intuitive appeal
of the Government’s argument. In my view, however, the plain lan-
guage of the relevant statutes and Supreme Court instruction as to
proper statutory interpretation require reversal of the judgment of the
district court. Accordingly, I must dissent.
I.
The district court sentenced James Nelson to a ten-year mandatory
minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B) (2006)
because it found that Nelson’s previous conviction under 18 U.S.C.A.
§ 924(c)(1)(A) (1999) constituted a predicate "felony drug offense,"
as 21 U.S.C. § 802(44) (2006) defines that term. Section 802(44) pro-
vides that a "felony drug offense" is:
an offense that is punishable by imprisonment for more than
one year under any law of the United States . . . that prohib-
its or restricts conduct relating to narcotic drugs . . . .
(emphasis added).
The majority properly recognizes that § 802(44) provides the rele-
vant definition of "felony drug offense." But, immediately after citing
this definition, it states that it "must determine whether Nelson’s
UNITED STATES v. NELSON 11
March 1999 § 924(c)(1) conviction . . . is an offense that ‘prohibits
or restricts conduct relating to narcotic drugs.’" Ante at 5 (quoting 21
U.S.C. § 802(44)(emphasis added)). It seems to me that this approach
ignores the plain language of § 802(44): the word "that" emphasized
above in the statutory definition refers to "law," not "offense."
Whether a previous conviction constitutes a "felony drug offense"
depends not on the conduct that led to the prior offense, but rather on
the law under which the individual was previously convicted. In Nel-
son’s case, that law was 18 U.S.C. § 924(c)(1)(A). Thus, the question
is whether violations of this law are "felony drug offense[s]."
Section 924(c)(1)(A) provides:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment pro-
vided for such crime . . . be sentenced to a term of imprison-
ment of not less than 5 years.
The plain statutory language prohibits the use or carrying of a firearm
"during and in relation to" a crime of violence or a drug trafficking
crime. Hence, § 924(c)(1)(A) criminalizes some conduct that has no
relationship to drug activity.1 When a previous conviction involves no
drug-related conduct, surely no one would suggest that the prior con-
1
For this reason, United States v. Mankins, 135 F.3d 946, 949-50 (5th
Cir. 1998), on which the Government relies, is inapposite. There, the
Fifth Circuit held that a prior conviction for use of a communications
facility in violation of 21 U.S.C. § 843(b) (2006) constituted a "felony
drug offense" for purposes of the § 841(b)(1)(B) enhancement. But
unlike § 924(c), which penalizes some non-drug-related activity,
§ 843(b) only penalizes use of a communications facility in committing
drug related activity — i.e., crimes under the Controlled Substances Act.
A person cannot violate § 843(b) without drug-related activity. See
United States v. Martinez, 182 F.3d 1107, 1114 (9th Cir. 1999) (explain-
ing that Mankins held that an offense under § 843(b) "necessarily had to
relate to a drug offense"). Accordingly, Mankins does not aid the Gov-
ernment.
12 UNITED STATES v. NELSON
viction constituted a "felony drug offense." Indeed, the majority
acknowledges that "if Nelson had only been convicted of carrying a
firearm during and in relation to a crime of violence or violating
§ 924(c)(1) generically" it "might be required" to reach "a different
result." Ante at 7.
The Government maintains that we should look to the facts of each
conviction to determine whether that particular violation of
§ 924(c)(1)(A) was a "felony drug offense." But the plain language of
§ 802(44) forbids this approach. Section 802(44) directs our attention
to the "law," not the conduct. Thus, either all violations of a "law" —
in this case, § 924(c)(1)(A) — constitute "felony drug offense[s]" or
none do. If Congress had intended for sentencing judges to look to the
facts of a prior conviction, it could have defined a "felony drug
offense" as a "crime or an offense involving conduct relating to
drugs." But it did not. "There is, of course, no more persuasive evi-
dence of the purpose of a statute than the words by which the legisla-
ture undertook to give expression to its wishes," United States v. Am.
Trucking Ass’ns, 310 U.S. 534, 543 (1940), and the "words" of
§ 802(44) simply do not permit a court to hold that sometimes viola-
tions of § 924(c)(1)(A) are "felony drug offense[s]," and sometimes
they are not.
Moreover, contrary to the Government’s contention, Shepard v.
United States, 544 U.S. 13 (2005), and Taylor v. United States, 495
U.S. 575 (1990), do not allow sentencing judges to look to the facts
of a prior conviction in order to determine whether a defendant has
previously committed a "felony drug offense." In Shepard and Taylor,
the Supreme Court considered when "burglary" constituted a "violent
felony" and thus a proper basis to enhance a sentence under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e) (2006).
After examination of § 924(e) and its legislative history, the Court
concluded "that Congress meant by ‘burglary’ the generic sense in
which the term is now used in the criminal codes of most States" and
so a prior burglary offense would count for the purpose of the ACCA
enhancement if the person had been convicted of "any crime, regard-
less of its exact definition or label, having th[ese] basic elements."
Taylor, 495 U.S. at 598-99. If a court cannot determine from a statu-
tory definition that a crime substantially corresponds to "generic" bur-
glary, it can consider whether "the charging paper and jury
UNITED STATES v. NELSON 13
instructions actually required the jury to find all the elements of
generic burglary in order to convict the defendant," id. at 602, or if
the defendant pleaded guilty to such an offense, Shepard, 544 U.S. at
19.
Neither the Supreme Court nor this court has ever suggested that
the Shepard-Taylor approach can be applied generally to federal sen-
tencing enhancements or particularly to the question of whether a law
"restricts or prohibits conduct relating to drugs" for the purposes of
a 21 U.S.C. § 841(b) enhancement. That said, if the language of
§ 802(44), the felony drug offense definition at issue here, was similar
to § 924(e), the provision considered in Shepard and Taylor, then
those cases would provide authority for the Government’s contention
that we should examine the conduct underlying the predicate
§ 924(c)(1)(A) violation to determine if it is a felony drug offense.
In fact, however, the statutory language in § 802(44) differs mark-
edly from that in § 924(e). These differences in statutory language
clearly demonstrate why the Shepard-Taylor approach does not apply
here. Section 924(e)(2)(B), the statute at issue in Shepard and Taylor,
defines a "violent felony" as "any crime punishable by imprisonment
for a term exceeding one year . . . that . . . is burglary." 18 U.S.C.
§ 924(e)(2)(B) (emphasis added). This definition focuses on the
"crime" that formed the basis for the prior conviction; that is, the
criminal conduct for which the individual was convicted. Hence, once
the Court in Shepard and Taylor identified the elements of the
"crime" of "burglary," sentencing courts were free to look to whether
the individual’s conduct included all of these elements. In contrast,
the statutory definition of a "felony drug offense," at issue here,
directs judges not to the criminal conduct underlying the prior convic-
tion, but to the law under which the individual was convicted. 21
U.S.C. § 802(44). Accordingly, it would be inconsistent with that stat-
utory language to apply the Shepard and Taylor approach here.2
2
Cf. United States v. Brandon, 247 F.3d 186, 191-92 (4th Cir. 2001)
(applying the Taylor approach to a different subsection of the ACCA
itself only because the relevant statutory definition, like that in Taylor,
focused on "the generic conduct proscribed by the statute"). But see
United States v. Curry, 404 F.3d 316, 320 (5th Cir. 2005) (per curiam)
(assuming, in dicta and without explanation, that Shepard allows refer-
ence to the "underlying facts" to determine whether a prior conviction
constitutes a predicate "felony drug offense").
14 UNITED STATES v. NELSON
In sum, the plain language of the statutory definition of "felony
drug offense" in § 802(44) does not permit sentencing judges to look
to the conduct underlying a previous conviction under § 924(c)(1)(A)
— as the majority must here — in order to determine whether that
conviction qualifies as a "felony drug offense." Rather, a court must
determine whether or not all violations of that law constitute "felony
drug offense[s]."
II.
To hold that all violations of § 924(c)(1)(A) are "felony drug offen-
se[s]" when some of these violations have nothing to do with drugs
would be an absurd result that no court should countenance when a
"reasonable application can be given which is consistent with the leg-
islative purpose." See United States v. Ryan, 284 U.S. 167, 175
(1931). Here, a "reasonable application" that "is consistent with the
legislative purpose" is certainly possible. Section 924(c)(1)(A) always
"prohibits or restricts conduct relating to" firearms and so violations
of it can more reasonably (and accurately) be viewed as felony fire-
arm offenses rather than felony drug offenses.3
The legislative history of § 924(c)(1)(A) makes clear that Congress
intended the statute as a restriction on firearm conduct, not drug con-
duct. As we have previously observed, the "unmistakable objective"
of § 924(c)(1)(A) is to "‘persuad[e] the man who is tempted to com-
mit a federal Felony to leave his gun at home,’" United States v.
Camps, 32 F.3d 102, 108 (4th Cir. 1994) (quoting Busic v. United
States, 446 U.S. 398, 414 (1980) (quoting 114 Cong. Rec. 22231
(1968) (statement of Rep. Poff, the sponsor of the amendment
embodied in § 924(c)(1)))). Consistent with this purpose, we have
explained that "the plain language of section 924(c)(1) very clearly
does not criminalize the underlying predicate offense, whether it be
a crime of violence or a drug trafficking crime." Id. Perhaps for this
reason, unlike federal statutes that target drug-related conduct, which
are located in the Controlled Substances Act in title 21 of the United
3
Of course, Congress could enact a statute that created both a felony
firearm offense and a felony drug offense, but such a statute would pro-
hibit both firearm and drug activity in all instances, something that
§ 924(c)(1)(A) does not do.
UNITED STATES v. NELSON 15
States Code, § 924(c)(1)(A) is located in title 18 of the United States
Code.
Furthermore, treating violations of § 924(c)(1)(A) as "felony drug
offense[s]" leads to troubling results that Congress could not have
intended. As one example, a conviction based on a single underlying
drug offense could lead to an enhancement for having two predicate
felony drug offenses — one for the drug conviction and one for the
§ 924(c)(1)(A) conviction — and thus one prior criminal incident
could result in a mandatory life sentence. See 21 U.S.C.
§ 841(b)(1)(A). Although the Government represents that this is not
their practice, our precedent holding that a defendant, possessing mul-
tiple firearms in connection with a single drug trafficking or violent
crime incident, can be convicted of multiple counts of § 924(c)(1)(A),
see Camps, 32 F.3d at 108, provides the basis for another troubling
example. If a violation of § 924(c)(1)(A) constitutes a "felony drug
offense," a defendant convicted of multiple violations of that law for
possessing multiple firearms could face a mandatory life sentence
even if the § 924(c)(1)(A) convictions arose from a single incident
having nothing at all to do with drugs.
Finally, of course, the rule of lenity counsels against treating viola-
tions of § 924(c)(1)(A) as "felony drug offense[s]." The Supreme
Court has instructed that "ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity." Cleveland v. United
States, 531 U.S. 12, 25 (2000) (internal quotation marks omitted). To
be sure, the Court has carefully "reserved lenity for those situations
in which a reasonable doubt persists about a statute’s intended scope
even after resort to the language and structure, legislative history, and
motivating policies of the statute." Moskal v. United States, 498 U.S.
103, 108 (1990) (internal quotation marks omitted). In my view, Nel-
son need not rely on the rule of lenity in this case. For I believe that
the plain language, structure, legislative history, and motivating pol-
icy of 18 U.S.C. § 924(c)(1)(A) all indicate that violations of it do not
constitute "felony drug offense[s]." However, if there were any "rea-
sonable doubt" as to this, we must apply the rule of lenity. Moskal,
498 U.S. at 108.
III.
For all of these reasons, I would hold that violations of
§ 924(c)(1)(A) are not "felony drug offense[s]" and reverse the judge-
ment of the district court.