UNITED STATES OF AMERICA v. EUGENE JACKSON
No. 21-13963
United States Court of Appeals for the Eleventh Circuit
June 10, 2022
ROSENBAUM, Circuit Judge
[PUBLISH]
Opinion of the Court
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
Forewarned is forearmed. That‘s a common-sense notion that people have recognized for at least hundreds1 of years. In fact, Shakespeare incorporated it into Henry VI, Part 3—written around 1591 or ‘92—when King Edward IV says, “Well I will arm me, being thus forewarned.” William Shakespeare, King Henry VI, Part 3 act 4 sc. 1, l. 115, Folger Shakespeare Library, edited by Barbara A. Mowat & Paul Werstine (Simon & Schuster Paperbacks Mar. 2009).
The concept of “forewarned is forearmed” also explains why fair notice—a principle enshrined in the Constitution by the
This due-process cornerstone of fair notice drives our decision today under the Armed Career Criminal Act (“ACCA“). ACCA increases the sentence of, among others, a felon in unlawful possession of a firearm if that person has at least three prior convictions for a “violent felony,”
We hold that due-process fair-notice considerations require us to apply the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced. When we apply that iteration here, we conclude that Defendant-Appellant Eugene Jackson does not qualify for ACCA‘s sentence enhancement. Because the district court reached the opposite conclusion, we vacate Jackson‘s sentence and remand for resentencing.
I.
Jackson pled guilty to one count of being a felon in possession of a firearm, in violation of
- a 1998 Florida conviction for battery on a law enforcement officer;
- a 1998 Florida conviction for the sale of cocaine;
- a 2003 Florida conviction for armed robbery;
- a 2004 Florida conviction for possession with intent to sell cocaine; and
- 2012 Florida convictions for aggravated assault with a deadly weapon and aggravated battery with a deadly weapon, each arising out of the same incident.
The recommended ACCA enhancement increased Jackson‘s total offense level from 23 to 30, which caused his advisory guideline range to change from 92–115 months to 180–210 months.
Jackson objected to the probation officer‘s determination that ACCA applied. He conceded that he had two ACCA predicates: the 2003 Florida armed robbery and the 2012 aggravated battery.2 (Jackson disputed that the 2012 aggravated assault qualified as a “violent felony” but admitted that the accompanying aggravated battery did.)
But Jackson argued that neither of his cocaine-related convictions qualified as a third ACCA predicate offense. He acknowledged that “serious drug offense” means, as relevant here, “an offense under State law, involving . . . distributing, or possessing with intent to . . . distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (
For its part, the government conceded that Jackson‘s 1998 Florida battery conviction did not qualify as an ACCA predicate. It also agreed that the 2012 aggravated assault and aggravated battery counted as only a single “violent felony.” As to the cocaine-related
Ultimately, the district court agreed with the government. Based on that conclusion, it sentenced Jackson to ACCA‘s mandated fifteen-year minimum.
Jackson now appeals.
II.
We review de novo whether a state conviction qualifies as a “serious drug offense” for ACCA purposes. United States v. Conage, 976 F.3d 1244, 1249 (11th Cir. 2020). When conducting our review, we are “bound by federal law when we interpret terms in the ACCA” and “bound by state law when we interpret elements of state-law crimes.” Id. (internal quotation marks omitted).
III.
As we have noted, this case requires us to determine whether Jackson‘s 1998 and 2004 cocaine-related drug convictions qualify as “serious drug offense[s]” for purposes of ACCA. To accomplish that task, we employ the “categorical approach.” Conage, 976 F.3d at 1250. Under that approach, we look to the state offense of which the defendant was previously convicted and identify the elements of that crime. Id. The categorical approach requires that we do not consider the individual facts underlying the defendant‘s prior conviction—just the elements. Id. We then compare these elements of the state offense with the components of ACCA‘s definition of “serious drug offense.” See id. A conviction qualifies as a “serious drug offense” only if the state statute under which the defendant was convicted defines the offense as least as narrowly as ACCA‘s definition of “serious drug offense.” Id.
In conducting our analysis here, we proceed in three steps. First, we identify the criteria that ACCA uses to define a “serious drug offense” under
A. As relevant here, § 924(e)(2)(A)(ii) ‘s definition of “serious drug offense” requires satisfaction of three criteria: (1) the state offense must involve distributing, or possessing with intent to distribute (2) “cocaine, its salts, optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the[se] substances,” but not ioflupane; and (3) the state offense must have been punishable by a maximum term of imprisonment of at least ten years.
1. The Controlled Substance Act Schedules that were incorporated into ACCA‘s § 924(e)(2)(A)(ii) definition of “serious drug offense” as of the time Jackson committed his federal-firearm-possession violation are the ones that govern.
Before we can determine what ACCA‘s
Under the
To be sure, the Supreme Court has emphasized these principles in cases with vague statutes that did not clearly identify the conduct that violated them or the potential sentence upon conviction. See, e.g., Johnson, 576 U.S. at 593. But these concepts apply with at least as much force when a statute does unambiguously delineate the conduct that violates it, and the defendant‘s conduct does not satisfy that standard. If they did not, an ordinary person would receive no notice (let alone vague notice) that her conduct that falls outside the statute‘s parameters brings potential criminal consequences. And police and courts would be free to punish individuals for conduct that the law does not criminalize. That type of situation would do violence to the interests of “fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws” that due process protects. Rogers v. Tennessee, 532 U.S. 451, 460 (2001); see also Beckles v. United States, 137 S. Ct. 886, 892 (2017) (noting that due-process concerns require “statutes fixing sentences” to “specify the range of available sentences with ‘sufficient clarity‘“) (citations omitted).
Given these interests, the form of the Controlled Substances Act Schedules incorporated into
§ 924(e)(2)(A)(ii) as of the time Jackson possessed the firearm here necessarily required a “serious [cocaine-related] drug offense” not to have involved ioflupane.
As relevant here, ACCA defines a “serious drug offense” as “an offense under State law, involving . . . distributing, or possessing with intent to . . . distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (
The Supreme Court has already clarified the meaning of the first element. In Shular, the Court explained that “involving . . . distributing, or possessing with intent to . . . distribute” refers to “conduct” that the definition “necessarily require[s].” 140 S. Ct. at 785 (alteration omitted). And the third element—concerning the potential penalty for the offense of the prior conviction—is self-explanatory.
That leaves us with the second element: “a controlled substance (as defined in section 102 of the Controlled Substances Act (
Schedule II once included ioflupane (indeed, it did at the times Jackson was convicted of his two cocaine-related prior offenses). When that was the state of affairs, ioflupane was “by definition, a schedule II controlled substance because it is derived from cocaine via ecgonine, both of which are schedule II controlled substances.” Schedules of Controlled Substances: Removal of [123 I] Ioflupane from Schedule II of the Controlled Substances Act, 80 Fed. Reg. 54715, 54715.
But it turns out that ioflupane has value in potentially diagnosing Parkinson‘s Disease. See
those specific to schedule II controlled substances, on persons who handle or propose to handle [(123 I)] ioflupane.”
As a result, ioflupane has not been a federally “controlled substance,” as defined in
B. At the times of Jackson‘s cocaine-related prior offenses for which he sustained convictions under Fla. Stat. § 893.13 , the cocaine-related activity § 893.13 criminalized categorically included activity involving ioflupane.
Having identified the components of a “serious drug offense,” we next consider the elements of Jackson‘s prior state cocaine-related offenses under
That settled, we preface our review of the elements of the Jackson‘s state cocaine-related convictions with a brief discussion of the distinction between the elements of a crime and the means of committing a single element. See Mathis v. United States, 579 U.S. 500, 504–05 (2016). The Supreme Court has explained that “‘[e]lements’ are the ‘constituent parts’ of a crime‘s legal definition—the things the ‘prosecution must prove to sustain a conviction.‘” Id. at 504. Alternative means, on the other hand, are different ways to satisfy a single element. See id. at 505.
When a statute lists alternative “elements,” rather than alternative “means” of satisfying an element, the statute is “divisible.” See id. In that case, the “modified categorical approach” permits a court to consult a limited class of documents for the sole purpose of ascertaining the elements on which the defendant was actually convicted. Id. These documents include a plea agreement, the transcript of a plea colloquy, the charging document, jury instructions, or a “comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005).
But when a statute lists alternative means of satisfying a single element, the standard categorical approach governs. Mathis, 579 U.S. at 517. So we must consider all listed means of satisfying the elements of the state offense to be able to compare that covered conduct at the third step of our analysis to ACCA‘s definition of “serious drug offense.”
With this understanding in mind, we turn to the elements of
In Guillen v. U.S. Attorney General, 910 F.3d 1174 (11th Cir. 2018), we held that, under Florida law, each category of substance separately enumerated in Florida‘s Controlled Substance Schedules was an alternative controlled-substance “element.” See id. at 1182–83. So for example, sale of marijuana and sale of heroin were different crimes. See id.
In contrast, we explained, when a drug schedule identified different formulations of the same category of substance, the alternatives were different “means” of satisfying a particular “controlled substance” element. See id. Take the example we pointed to in Guillen: Florida courts have held that possession of marijuana is the same crime as possession of hashish, since “marijuana and hashish were defined as the same controlled substance under Florida law” in that both fell under the definition of “cannabis.” Id. at 1183 (citing Retherford v. State, 386 So. 2d 881, 882 (Fla. 1st DCA 1980)).
Guillen establishes that the enumerated categories of “controlled substances” in Florida‘s drug Schedules are alternative “elements.” For that reason, we may consult Shepard documents to identify the “controlled substance” element for which Jackson was convicted. The criminal information submitted in the district court shows that his offenses related to “cocaine.”
When Jackson was convicted of his cocaine-related offenses,
We know this because of Florida‘s actions after the United States exempted ioflupane from the federal Schedule II. As of July 1, 2017, Florida followed suit and expressly exempted ioflupane from its Schedule II. 2017 Fla. Sess. Law Serv. Ch. 2017-110 (C.S.H.B. 505).
Since that time, Florida‘s Schedule II has included “[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine, except that these substances shall not include ioflupane I 123.”
Because
C. At the times of Jackson‘s prior cocaine-related state convictions, Fla. Stat. § 893.13(a)(1) ‘s controlled-substance element was broader for cocaine-related offenses than ACCA‘s “serious drug offense” definition, so Jackson‘s 1998 and 2004 cocaine-related convictions do not qualify as “serious drug offense[s].”
We‘ve sifted through ACCA‘s definition of “serious drug offense” at the time Jackson unlawfully possessed the firearm for which he was convicted here. We‘ve also sorted out the breadth of
Everyone agrees that Jackson‘s 1998 and 2004
Because we apply the categorical approach in conducting this comparison, we must presume that Jackson‘s cocaine-related convictions “rested upon nothing more than the least of the acts criminalized or the least culpable conduct.” United States v. Kushmaul, 984 F.3d 1359, 1364 (11th Cir. 2021) (internal quotation marks omitted). Here, that means we must assume that Jackson sold and possessed with intent to sell ioflupane. But as we have explained, on September 26, 2017—when Jackson possessed the firearm here—the federal Schedule II expressly excluded ioflupane as a cocaine-related controlled substance. Because ioflupane was not a “controlled substance” under federal law when Jackson committed his
D. The two Smith cases, Shular, and McNeill do not require the conclusion that Jackson‘s prior cocaine-related convictions qualify as “serious drug offense[s].”
The government argues that United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) (”Smith 2014“), United States v. Smith, 983 F.3d 1213 (11th Cir. 2020) (”Smith 2020“), and Shular, 140 S. Ct. 779, require the conclusion that Jackson‘s prior cocaine-related convictions qualify as “serious drug offense[s].” We disagree.
We start with the two Smith cases and Shular. As relevant here, in Smith 2014, we considered whether
The government argues that the two Smith cases bind us under the prior-panel-precedent rule (and Shular binds us as Supreme Court precedent) to conclude that any conviction—including Jackson‘s 1998 and 2004 ones—under
Under our prior-panel-precedent rule, “a prior panel‘s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). True, we have “categorically rejected an overlooked reason or argument exception to the prior-panel-precedent rule.” Id. But “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511 (1925).
The question of which version of the Controlled Substance Act‘s drug Schedules governs under
Here, to the extent that Shular and Smith 2020 bind us to reach any conclusion, it‘s that Jackson‘s 1998 and 2004
As for McNeill, there, as we have mentioned, the Supreme Court held that, in evaluating whether a prior state conviction qualifies as a “serious drug offense” under
But here, we are considering the federal standard to which we compare the answer to McNeill‘s “backward-looking question” of what the defendant‘s “previous [state] conviction[]” was. And that federal standard comes into play only because of the federal firearm-possession violation to which it is attached—a violation that occurred after the “previous conviction[].” Our question was not before the Court in McNeill. And McNeill‘s reasoning, which relied on the language “previous convictions,” has no application here. As the First Circuit has explained, though McNeill holds that “the elements of the state offense of conviction are locked in at the time of that conviction,” it does “not also hold that ACCA‘s own criteria for deeming a ‘previous conviction[]’ with those locked-in characteristics to be a ‘serious drug offense,’ [a]re themselves also locked in as of the time of the ‘previous conviction[].‘” United States v. Abdulaziz, 998 F.3d 519, 525–26 (1st Cir. 2021) (citations and quotation marks omitted); see also United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021) (”McNeill nowhere implies that the court must ignore current federal law and turn to a superseded version of the United States Code.“); United States v. Hope, 28 F.4th 487, 505 (4th Cir. 2022) (”McNeill does not prohibit us from considering changes to federal law for the purposes of the ACCA.“).
In short, no prior precedent precludes our ruling today.
IV.
Because Jackson‘s cocaine-related
VACATED and REMANDED.