63 F.4th 1305
11th Cir.2023Background:
- Defendant Keith Penn pleaded guilty to multiple counts including two 18 U.S.C. § 922(g) convictions; district court applied the Armed Career Criminal Act (ACCA) based on three prior qualifying convictions.
- Prior convictions relied on by the PSR: one Florida armed-robbery conviction and two Florida convictions for “sale of cocaine” under Fla. Stat. § 893.13(1)(a) (convictions specifically for sale).
- The two controlled buys occurred at Penn’s home on March 25, 2013 (7 g) and April 24, 2013 (14 g) from a confidential informant; Florida convictions entered in 2015.
- District court treated each § 893.13(1)(a) conviction as a § 924(e)(2)(A)(ii) “serious drug offense” and as committed on occasions different from one another, imposing ACCA’s 15-year mandatory minimum plus a consecutive 5-year § 924(c) term.
- Penn appealed, arguing (1) ACCA predicates require mens rea as to illegality which § 893.13 lacks, (2) § 893.13(1)(a) criminalizes attempted transfers that are not “distributing,” and (3) the two sales were not on separate occasions; he also raised a late Fifth/ Sixth Amendment jury-finding challenge.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a state drug offense must have mens rea as to the substance’s illicit nature to be an ACCA “serious drug offense” | Penn: § 893.13(1)(a) lacks a knowledge-of-illegality element, so it cannot qualify | Gov: Precedent holds ACCA’s definition does not require mens rea as to illicit nature | Held: Rejected Penn; precedent (Travis Smith, Shular, Xavier Smith) forecloses mens rea requirement |
| Whether § 893.13(1)(a) criminalizes conduct broader than ACCA’s “involving ... distributing” (i.e., whether attempted transfer is not “distributing”) | Penn: The statute’s least culpable conduct—attempted transfer—does not necessarily equal “distributing” under ACCA | Gov: Ordinary meaning, state statutes, and federal drug law show “distribute” includes attempted transfers | Held: Rejected Penn; “distributing” includes attempted transfers, so § 893.13(1)(a) qualifies as a serious drug offense |
| Whether the two drug convictions were committed on the same “occasion” | Penn: both sales were at same location to same CI and thus not different occasions | Gov: 30-day gap shows separate occasions | Held: Rejected Penn; 30 days apart are separate occasions under Wooden factors |
| Whether Fifth/Sixth Amendment requires jury finding (or admission) that priors occurred on different occasions | Penn: constitutional right to jury determination | Gov: issue not preserved; no controlling precedent for plain-error relief | Held: Rejected on plain-error review (no controlling Supreme Court/Eleventh Circuit precedent) |
Key Cases Cited
- Shular v. United States, 140 S. Ct. 779 (2020) (ACCA § 924(e)(2)(A)(ii) focuses on conduct described, not matching generic offense elements)
- United States v. Travis Smith, 775 F.3d 1262 (11th Cir. 2014) (no mens rea as to illicit nature is required for a § 924(e) serious drug offense)
- United States v. Xavier Smith, 983 F.3d 1213 (11th Cir. 2020) (applied Travis Smith and Shular to reject mens rea challenge)
- United States v. Jackson, 55 F.4th 846 (11th Cir. 2022) (clarified the scope of prior-panel precedent regarding § 893.13)
- Wooden v. United States, 142 S. Ct. 1063 (2022) (defines “occasion” as ordinary episode/event and lists time/location/scheme factors)
- United States v. Prentice, 956 F.3d 295 (5th Cir. 2020) (possession with intent to deliver is part of distribution; supports including attempted transfers within distributing)
- McNeill v. United States, 563 U.S. 816 (2011) (elements of prior conviction assessed as of time of conviction under categorical approach)