United States v. Frank Vanoy, 957 F.3d 865

Frank Vanoy was convicted by a jury of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); the district court applied the Armed Career Criminal Act (ACCA) enhancement based on three prior serious drug convictions and sentenced him to 216 months.
Vanoy challenges two Virginia convictions under Va. Code § 18.2-248 (possession with intent to distribute) as not qualifying as ACCA "serious drug offenses," because Virginia schedules then included substances not on the federal schedules.
The Eighth Circuit reviewed de novo whether the prior convictions qualify as predicate offenses and applied the modified categorical approach per United States v. Ford.
The court found § 18.2-248 divisible: the statute’s text and structure attach different punishments to different drug types/quantities.
Virginia precedent and the model jury instruction require juries to find the specific drug identity (e.g., cocaine), and Vanoy’s certified convictions are for cocaine distribution, matching the federal definition of a serious drug offense.
The court rejected Vanoy’s mens rea mismatch argument (state mens rea differs from federal) as irrelevant under Shular; separate-date Sixth Amendment argument was foreclosed by precedent.

Issue	Vanoy's Argument	Government's Argument	Held
Is Va. Code § 18.2-248 divisible such that the drug identity is an element?	§ 18.2-248 is indivisible and only requires that the substance be listed on Virginia schedules (which are broader).	The statute is divisible because different drug types/quantities carry different punishments and the statute contains alternative elements.	Divisible: statute’s structure and Virginia practice treat drug type/quantity as elements.
Do Vanoy’s convictions necessarily involve a substance on the federal schedules (i.e., did jury find drug identity)?	The convictions did not require jury to find drug identity, so they may encompass non-federal substances.	Virginia law and jury instructions require proof of specific drug identity; certified convictions specify cocaine.	Convictions involved cocaine; they qualify as ACCA serious drug offenses.
Does a broader state mens rea prevent ACCA predicate status?	Virginia’s mens rea differs from federal, so convictions don’t match ACCA requirements.	Mens rea alignment is not required under the categorical approach after Shular.	Mens rea difference is immaterial; conviction still qualifies.
Was Vanoy’s Sixth Amendment right violated by judicial findings about different conviction dates?	Judicial finding of different dates violated his jury trial right.	Circuit precedent rejects this argument.	Argument foreclosed by prior Eighth Circuit precedent and not reconsidered.

United States v. Ford, 888 F.3d 922 (8th Cir. 2018) (applied modified categorical approach and examined divisibility based on statutory structure and sentencing differences)
Shular v. United States, 140 S. Ct. 779 (2020) (mens rea need not match federal law for a state drug offense to qualify as a federal predicate)
Descamps v. United States, 570 U.S. 254 (2013) (explains categorical vs. modified categorical approaches and divisibility inquiry)
Sierra v. Commonwealth, 722 S.E.2d 656 (Va. Ct. App. 2012) (holds specific drug identity is an element of Virginia possession offenses)
Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (found a New York provision indivisible; distinguished because New York statute lacked Virginia’s imitation element)
United States v. Melbie, 751 F.3d 586 (8th Cir. 2014) (standard of review governed: de novo review of whether a prior conviction is a predicate offense)
Bah v. Barr, 950 F.3d 203 (4th Cir. 2020) (recognizes Virginia decisions treating drug identity as an element and finds that instructive)