United States v. Eugene JacksonUnited States v. Eugene Jackson
The Armed Career Criminal Act,
A prior state conviction satisfies ACCA‘s definition of “serious drug offense” if it is one “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act . . .), for which a maximum term of imprisonment of ten years or more is prescribed by law.”
The facts here are straightforward. Eugene Jackson pled guilty to possession of a firearm and ammunition by a convicted felon, in violation of
In Jackson‘s presentence investigation report, the probation officer concluded that Jackson qualified for a sentence enhancement under ACCA based on his prior criminal history. That is, the officer determined that, when Jackson possessed the firearm, he had at least three prior convictions for a “violent felony or a serious drug offense, or both, committed on occasions different from one another.”
Although Jackson conceded that he had two prior convictions that satisfy ACCA‘s definition of a “violent felony,”1 he objected to the probation officer‘s conclusion that his two cocaine-related convictions met ACCA‘s “serious drug offense” definition. But the district court overruled Jackson‘s objection, finding that his cocaine-related convictions did qualify. Based on that
Jackson now appeals his sentence.
II.
We review de novo the legal question whether a prior state conviction qualifies as a “serious drug offense” under ACCA. United States v. Conage, 976 F.3d 1244, 1249 (11th Cir. 2020) (citing United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009)). When we conduct our review, federal law binds our construction of ACCA, and state law governs our analysis of elements of state-law crimes. Id. (quoting United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015)).
III.
Jackson contends that neither of his prior cocaine-related convictions under
To determine whether a prior conviction under state law qualifies as a “serious drug offense,” we focus on “the statutory
Under this approach, a state conviction cannot serve as an ACCA predicate offense if the state law under which the conviction occurred is categorically broader—that is, if it punishes more conduct—than ACCA‘s definition of a “serious drug offense.” See id. So if there is conduct that would violate the state law but fall outside of ACCA‘s “serious drug offense” definition, the state law cannot serve as a predicate offense—“regardless of the actual conduct that resulted in the defendant‘s conviction.” Id. Our task here, then, is to compare the state law that defines Jackson‘s prior cocaine-related offenses with ACCA‘s definition of a “serious drug offense” to see whether the state crime is categorically broader than a “serious drug offense.”2
In conducting that analysis, we analyze “the version of state law that the defendant was actually convicted of violating.” McNeill, 563 U.S. at 821. Here, Jackson‘s two potential “serious drug offenses” include convictions for violating
The federal version of Schedule II also encompassed ioflupane in 1998 and 2004, when Jackson was convicted of his
Based on this fact, Jackson argues that
We divide our discussion into two parts. In Section A, we explain why the Supreme Court‘s and our precedents on
A.
The government identifies three decisions it says foreclose Jackson‘s argument. We think not.
In United States v. Travis Smith, 775 F.3d 1262 (11th Cir. 2014), we held that ACCA‘s definition of a “serious drug offense” does not include a mens rea element with respect to the illicit nature of the controlled substance. Id. at 1267. Rather, that definition “require[s] only that the predicate offense ‘involv[es],’ . . . certain activities related to controlled substances.” Id. (second alteration in original) (quoting
Finally, in United States v. Xavier Smith, 983 F.3d 1213 (11th Cir. 2020), relying on Travis Smith and Shular, we affirmed that “ACCA‘s definition of a serious drug offense ‘requires only that the state offense involve the conduct specified in the [ACCA]‘” and does not require a “‘generic-offense matching exercise.‘” Id. at 1223 (alteration in original) (quoting Shular, 140 S. Ct. at 782–84). And we again rejected the argument that
The government insists that these three decisions, together with our prior-panel-precedent rule, require us to conclude that Jackson‘s cocaine-related convictions under
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); see also, e.g., United States v. Edwards, 997 F.3d 1115, 1120 (11th Cir. 2021) (“[W]e weren‘t confronted with the question we face today . . . and so, of course, we had no occasion to resolve it.“). And Travis Smith, Shular, and Xavier Smith did not address, as Jackson asks us to do here, whether ACCA‘s “serious drug offense” definition incorporates the
Rather, those decisions presented two questions relating to ACCA‘s “serious drug offense” definition: first, whether the definition requires that the state offense match certain generic offenses, see Travis Smith, 775 F.3d at 1267; Shular, 140 S. Ct. at 782; and second, whether
And Travis Smith, Xavier Smith, and Shular did not address the question this appeal presents: whether ACCA‘s “serious drug offense” definition incorporates the version of the federal controlled-substances schedules in effect when the defendant was convicted of his prior state drug offenses or the version in effect when he committed his firearm offense. We consider that question now.
We apply the categorical approach in three steps. First, we identify the criteria ACCA uses to define a state “serious drug offense” under
i.
We break the first step into two parts. The first part explains our bottom-line conclusion: ACCA‘s definition of a state “serious drug offense” incorporates the version of the federal controlled-substances schedules in effect when the defendant was convicted of the prior state drug offense. The second part then addresses arguments against that conclusion.
1.
The Supreme Court has already interpreted the first and third criteria. As we‘ve explained, Shular settles the meaning of the first criterion, which the Supreme Court held “requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.” 140 S. Ct. at 782. The Supreme Court addressed the third criterion (“for which a maximum term of imprisonment of ten years or more is prescribed by law“) in McNeill, 563 U.S. at 820–21, so it is likewise not in controversy here.
That leaves the second criterion—the offense must involve a “controlled substance.” The part of the “serious drug offense” definition that deals with prior state convictions defines a “controlled substance” by reference to Section 102 of the Controlled Substances Act. See
We conclude that the Supreme Court‘s reasoning in McNeill requires us to read ACCA‘s definition of a “serious drug offense” under state law to incorporate the version of the federal controlled-substances schedules in effect when Jackson was convicted of his prior state drug offenses.
In McNeill, as we‘ve mentioned, the Supreme Court construed ACCA‘s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum term of imprisonment of ten years or more” as a punishment for that drug offense. 563 U.S. at 820 (quoting
To explain why the text is plain, the Supreme Court emphasized the term “‘previous convictions,‘” which ACCA uses in
To be sure, McNeill addresses only the third criterion for ACCA‘s “serious drug offense” definition—that is, the criterion concerning the penalty imposed under state law. And in addressing
McNeill does not address the second criterion, which requires that the prior offense involve a federally controlled substance. So McNeill does not expressly determine the answer to the question we address today. See United States v. Brown, 47 F.4th 147, 154–55 (3d Cir. 2022); United States v. Hope, 28 F.4th 487, 504–05 (4th Cir. 2022); United States v. Perez, 46 F.4th 691, 699–700 (8th Cir. 2022); United States v. Williams, 48 F.4th 1125, 1142–43 (10th Cir. 2022).7
To explain why, we begin with a 10,000-foot overview of ACCA‘s structure as it relates to the term “previous convictions” in
With that in mind, we move on to McNeill‘s reasoning. As we‘ve noted, McNeill broadly construes the term “previous convictions” to require a “backward-looking” inquiry. 563 U.S. at 819–20 (quotation marks omitted). Because “violent felon[ies]” and both kinds of “serious drug offense[s]” are kinds of “previous convictions” under ACCA,
On this score, the Supreme Court reads ACCA‘s “violent felony” definition in
ACCA defines “violent felony” in part as a crime that ”has as an element the use, attempted use, or threatened use of physical force against the person of another” or ”is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B) (emphasis added).
Despite Congress’ use of present tense in that definition, when determining whether a defendant was convicted of a “violent felony,” we have turned to the version of state law that the defendant was actually convicted of violating.
Id. at 821. In other words, under McNeill, the “backward-looking” inquiry governs ACCA‘s “violent felony” definition wholesale. See id. at 821–22.
McNeill also reads at least part of ACCA‘s definition of a “serious drug offense” involving a prior state conviction as incorporating that same “backward-looking” inquiry. See id. at 825 (holding “that a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant‘s previous drug offense at the time of the defendant‘s state conviction for that offense” (quoting
Not only is the “previous conviction” inquiry a backward-looking one, but the Supreme Court has concluded that “[i]t cannot be correct that subsequent changes in state law can erase an earlier conviction for ACCA purposes.” Id. at 823. In this respect, the Court has reasoned that “Congress based ACCA‘s sentencing enhancement on prior convictions and could not have expected courts to treat those convictions as if they had simply disappeared.” Id.
And that brings us to the first reason that we must conclude that ACCA‘s definition of a “serious drug offense” under state law incorporates the federal drug schedules in effect at the time of the prior state conviction. If we instead read ACCA‘s state “serious drug offense” definition to incorporate the federal drug schedules in effect at the time a defendant committed the firearm offense, the state drug convictions would be “erase[d]” or “disappear[]” for ACCA purposes when, as in Jackson‘s case, the federal schedules at the time he committed the firearm offense have omitted the substances that were federally controlled at the time of the prior state conviction. But we know from McNeill that that is an impermissible result.
And there‘s more. So we turn to our second reason why we hold that ACCA‘s definition of a “serious drug offense” under state law incorporates the federal drug schedules in effect at the time of the prior state conviction: what McNeill‘s reasoning tells us about
Under McNeill‘s reasoning requiring a “backward-looking” inquiry, we must read the definition of a prior federal “serious drug offense” as incorporating the version of the Controlled Substances Act (and thus the federal controlled-substances schedules) in effect at the time the defendant‘s prior federal drug conviction occurred. After all, McNeill supports a conclusion that the elements of and penalties for an offense underlying a previous conviction are set—that is, immutable—at the time of that conviction. See 563 U.S. at 820 (noting that in “assessing” a previous offense, the Court “consulted” the “statutes and penalties that applied at the time of” the defendant‘s conviction); id. at 821–22 (noting that “present-tense verbs” did not “persuade” the Court “to look anywhere other than the law under which” defendants “were actually convicted to determine the elements of their offenses“). And whether the drug
Because we must construe the definition of a federal “serious drug offense” to incorporate the Controlled Substances Act (and the federal drug schedules it mandates) in existence at the time of the prior federal drug conviction, we cannot simultaneously construe the federal “serious drug offense” definition‘s single use of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed the federal firearm offense. See, e.g., United States v. Bryant, 996 F.3d 1243, 1258 (11th Cir.) (“[W]e presume that the same words will be interpreted the same way in the same statute.“), cert. denied, 142 S. Ct. 583 (2021).
Reading the term “Controlled Substances Act” in the definition of a federal “serious drug offense” to refer to the version of the law in effect at the time of the federal firearm offense would also cause another problem under McNeill. If the drug involved in the prior federal drug conviction no longer appeared on the federal drug schedules at the time the defendant committed the federal firearm offense, the prior federal drug conviction would be “erase[d] . . . for ACCA purposes.” McNeill, 563 U.S. at 823. But
That means that if Jackson had been convicted of violating the Controlled Substances Act (rather than
We do not think Congress would require the counting of prior federal drug convictions as “serious drug offense[s]” while at the same time not counting equivalent prior state drug convictions. But that would be the result of the construction Jackson urges.
In our view, the structure of ACCA‘s parallel definitions of “serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior state drug conviction. And that we also read the definition of “violent felony” with a wholesale “backward-looking” perspective only adds support to our conclusion that ACCA‘s definitional structure for qualifying “previous convictions” requires us to read all the definitions with a “backward-looking” perspective. Were that not
In sum, then, Section 924(e)‘s requirements all turn on the law in effect when the defendant‘s prior convictions occurred. When possible, we interpret the provisions of a text harmoniously. See Scalia & Garner, supra, at 180–82; see also Hylton v. U.S. Att‘y Gen., 992 F.3d 1154, 1160 (11th Cir. 2021) (applying the harmonious-reading canon). To read the definition in Section 924(e)(2)(A)(ii) harmoniously with the rest of Section 924(e)‘s subparts, we must read that definition to incorporate the version of the federal controlled-substances schedules in effect when Jackson‘s prior state convictions occurred.
2.
Some of our sister circuits and Jackson have identified two arguments for why we should construe ACCA‘s definition of a “serious drug offense” to incorporate the version of the federal controlled-substances schedules in effect at the time the defendant committed the federal firearm offense instead of the version in effect at the time of the prior conviction: (1) due process requires such a reading; and (2) when Congress enacted ACCA, we looked to the federal controlled-substances schedules in effect at the time of the federal firearm offense because otherwise, there would have been no federal drug schedules to compare at least some of the prior state drug convictions to, since they would have predated the
First, Jackson and our sister circuits contend that reading Section 924(e)(2)(A)(ii) to incorporate the version of federal drug schedules in effect when the defendant was convicted of his prior state drug offenses raises concerns about fair notice and thus due process. See Williams, 48 F.4th at 1142; Perez, 46 F.4th at 701. But those with “previous convictions” that are federal “serious drug offenses” are charged with knowing that their federal drug convictions continue to qualify even if the controlled substances involved in their prior federal drug convictions are no longer on the federal drug schedules at the time of their federal firearms offenses. And we are aware of nothing that precludes Congress from enacting legislation that works in this manner.
As we‘ve noted, the Supreme Court has reasoned that the “only way” to determine whether a prior state drug conviction qualifies as a “previous conviction” under ACCA is by “consult[ing] the law that applied at the time of that conviction.” McNeill, 563 U.S. at 820 (alteration adopted). Doing so, the Supreme Court has explained, “permits a defendant to know even before he violates
We think the second argument against the incorporation of historical federal drug schedules also cannot succeed in the end. That argument goes like this: if Congress intended to incorporate the version of the federal drug schedules in effect at the time of a defendant‘s prior state drug offense, then convictions that predate the federal drug schedules would not qualify as ACCA predicates. Because that result would be, in Jackson‘s words, “odd,” Congress must have intended to incorporate the version of the federal drug schedules in effect at the time the defendant committed the firearm offense.
But even if a law produces a result that “may seem odd,” that oddity does not render the law “absurd.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005). And a law “must be truly absurd before” we can disregard its plain meaning. Silva-Hernandez v. U.S. Bureau of Citizenship & Immigr. Servs., 701 F.3d 356, 363 (11th Cir. 2012) (quotation marks omitted). We cannot say that is the case here. Cf. McNeill, 563 U.S. at 822 (“This natural reading of ACCA [to require consulting the law that applied at the time of the prior state conviction] also avoids the absurd results that would follow from consulting current state law to define a previous offense.“). So we must follow what the Supreme Court has found is the plain meaning of ACCA‘s text. And that plain meaning, as we‘ve noted, requires that we apply a backward-
In short, we hold that Section 924(e)(2)(A)(ii) incorporates the version of the federal drug schedules in effect when a defendant was convicted of his prior state drug offenses. When Jackson was convicted of his state cocaine-related offenses in 1998 and 2004, the federal schedules included ioflupane as a controlled substance. See supra note 3. So at step one of our categorical analysis, we conclude that ACCA‘s “serious drug offense” definition encompasses a prior state offense that involved “manufacturing, distributing, or possessing with intent to manufacture or distribute” ioflupane, “for which a maximum term of imprisonment of ten years or more is prescribed by law.”
ii.
That brings us to steps two and three. At step two, we look at the “statutory definition of the state offense at issue.” Conage, 976 F.3d at 1250. “All that counts” at this step “are ‘the elements of the statute of conviction.‘” Mathis, 579 U.S. at 509 (quoting Taylor v. United States, 495 U.S. 575, 601 (1990)). To find those elements, we consider “the version of state law that the defendant was actually convicted of violating.” McNeill, 563 U.S. at 821. Then, at step three, we compare the elements of the state offense to ACCA‘s “serious drug offense” definition to determine whether the state offense is categorically broader than ACCA‘s “serious drug offense” definition.
IV.
For these reasons, we affirm the district court‘s judgment.
AFFIRMED.
The statutory language we interpret here is yet another example of how ACCA produces “statutory questions” that “end up clogging the federal court dockets,” Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 206 (2019). Even “judges struggle” to resolve those questions. Id. Indeed, today‘s decision tallies the score at one circuit that concludes that we look to the federal controlled-substances schedules in effect at the time of the prior state conviction and four that reach the opposite conclusion and instead look to the federal controlled-substances schedules in effect at the time of the federal firearm offense. See United States v. Brown, 47 F.4th 147, 154–55 (3d Cir. 2022); United States v. Hope, 28 F.4th 487, 504–05 (4th Cir. 2022); United States v. Perez, 46 F.4th 691, 699–700 (8th Cir. 2022); United States v. Williams, 48 F.4th 1125, 1142–43 (10th Cir. 2022). And it‘s even more confusing than that, as we previously agreed with those four circuits. United States v. Jackson, 36 F.4th 1294, 1299–1301 (11th Cir. 2022) (”Jackson I“), vacated, 2022 WL 4959314 (11th Cir. 2022).
Due process requires that criminal laws notify “ordinary people” not only about the lawfulness of their conduct, but also about the penalties for engaging in conduct that is unlawful. Johnson v. United States, 576 U.S. 591, 595–96 (2015). An ordinary citizen seeking notice about whether her prior offenses qualify as ACCA predicates must, in line with today‘s decision, research the
That said, and as the panel opinion explains, the Supreme Court has said that the term “previous convictions” evidences congressional intent to read the definitions for “violent felony” and “serious drug offense” with an eye to what the law was at the time of the “previous conviction[],” so we can‘t say that the statute doesn‘t provide fair notice of what prior convictions qualify as predicate offenses under ACCA. See Maj. Op. at 16–17, 20–22 (citing McNeill v. United States, 563 U.S. 816 (2011)).
Still, it is quite remarkable to expect the “ordinary citizen,” seeking “to conform his or her conduct to the law,” City of Chicago v. Morales, 527 U.S. 41, 58 (1999), to understand the ins and outs of ACCA—especially when, as today‘s decision demands, they require historical research of the federal controlled-substance schedules. Cf. Williams, 48 F.4th at 1142. Adding to the extraordinary nature of what we find ACCA requires is the fact that ACCA may be unique in requiring application of historical federal law in this way, as opposed to the federal law in place at the time of the federal violation.1