UNITED STATES OF AMERICA v. EUGENE JACKSON
No. 21-13963
United States Court of Appeals For the Eleventh Circuit
December 13, 2022
[PUBLISH]
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cr-20546-KMW-1
Opinion of the Court
ROSENBAUM, Circuit
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.”
I.
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 determination, the district court sentenced Jackson to ACCA‘s mandatory fifteen-year minimum.
Jackson now appeals his sentence.
II.
We review de novo the legal question whether a prior state conviction
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 definition of the state offense at issue, rather than the facts underlying the defendant‘s conviction.” Conage, 976 F.3d at 1250. We call this the “categorical approach.” Id. (quoting Robinson, 583 F.3d at 1295).
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 Section 893.13(1) offenses.4 But that changed in 2015. Then, the federal government exempted ioflupane from Schedule II because of its potential value in diagnosing Parkinson‘s disease. 80 Fed. Reg. at 54716; see also
Based on this fact, Jackson argues that Section 893.13(1), which punished ioflupane-related conduct when Jackson was convicted of his prior state drug offenses, is categorically broader than ACCA‘s definition, which no longer punished ioflupane-related conduct when Jackson committed his present § 922(g)(1) firearm offense. This argument works if ACCA‘s definition incorporates the version of the controlled-substances schedules in effect when a defendant commits the firearm offense rather than the version in effect when he was convicted of his prior state drug offense. We consider, then, which version of the federal controlled-substances schedules ACCA‘s definition of “serious drug offense” incorporates: the one in place at the time of the prior state conviction, or the one in place at the time the defendant committed the present federal firearm offense.
We divide our discussion into two parts. In Section A, we explain why the Supreme Court‘s and our precedents on Section 893.13(1) do not answer the question we must address. Section B, in contrast,
A.
The government identifies three decisions it says foreclose Jackson‘s argument. We think not.
In two of the decisions the government identifies, we addressed whether Section 893.13(1)‘s lack of a mens rea element6 with respect to the illicit nature of the controlled substance renders the state statute overbroad in comparison to ACCA‘s “serious drug offense” definition. And in all three decisions, the Supreme Court and this Court held that Section 893.13(1), which lacks a mens rea element as to the illicit nature of the controlled substance, qualifies as a “serious drug offense” under ACCA.
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
In Shular v. United States, 140 S. Ct. 779 (2020), the Supreme Court agreed. Shular argued that the definition of “serious drug offense” describes “not conduct, but [generic] offenses.” Id. at 782. In his view, courts were required to “first identify the elements of the ‘generic’ offense” before asking “whether the elements of the state offense match those of the generic crime.” Id. But the Court rejected that view, holding that ACCA‘s “serious drug offense” definition 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.” Id. Although Shular explicitly did not reach the mens rea issue we addressed in Travis Smith, see Shular, 140 S. Ct. at 787 n.3, the Court nevertheless affirmed our judgment that convictions under Section 893.13(1) do qualify as “serious drug offenses” under ACCA, id. at 784, 787; see also United States v. Shular, 736 F. App‘x 876, 877 (11th Cir. 2018) (relying on Travis Smith to hold that Shular‘s convictions under
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
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 Section 893.13 are “serious drug offense[s]” because, in the government‘s view, we have already declared that Section 893.13 is a “serious drug offense.” 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) (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)). And 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); 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 version of the 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 present firearm offense.
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 Section 893.13(1) convictions cannot qualify as ACCA predicates because that statute lacks a mens rea element with respect to the illicit nature of the controlled substance, see Travis Smith, 775 F.3d at 1267–68; Xavier Smith, 983 F.3d at 1223. In answering the two questions, the decisions construed the part of ACCA‘s “serious drug offense” definition that requires the state offense to involve the conduct of “manufacturing, distributing, or possessing with intent to manufacture or distribute.”
In contrast, this case asks us to construe the part of ACCA‘s “serious drug offense” definition that requires the state offense to involve “a controlled substance (as defined in section 102 of the Controlled Substances Act (
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.
B.
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.
We start with the three criteria ACCA uses to define a state “serious drug offense” under
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
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 that criterion, McNeill holds only that (assuming the state crime involved the manufacture, distribution, or possession with intent to manufacture or distribute a qualifying controlled substance) a prior state conviction qualifies as an ACCA predicate if at the time of that conviction the state law authorized a maximum penalty of at least ten years. See id. at 817-18.
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
But in our view, upon close consideration, McNeill‘s reasoning requires us to conclude all the same that the federal controlled-substances schedules in effect at the time of the previous state conviction govern. That is so (1) because using the federal controlled-substances schedules in effect at the time the defendant committed the federal firearm offense would “erase an earlier [state] conviction for ACCA purposes,” in violation of McNeill‘s reasoning, see McNeill, 563 U.S. at 823, and (2) because of the way McNeill informs our reading of ACCA‘s structure.
To explain why, we begin with a 10,000-foot overview of ACCA‘s structure as it relates to the term “previous convictions” in Section 924(e)(1). Again, Section 924(e)(1) applies a mandatory minimum sentence of fifteen years’ imprisonment to a defendant who possesses a firearm in violation of
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 Section 924(e)(2)(B) to incorporate the state law in effect at the time of a defendant‘s prior state convictions. McNeill, 563 U.S. at 822 (noting that the Court has “repeatedly looked to the historical statute of conviction in the context of violent felonies“). And that is so even though, as the Supreme Court noted, ACCA‘s definition of “violent felony” uses the present tense:
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
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 how to construe federal law relating to a prior federal drug offense when assessing whether that prior federal drug conviction qualifies as a “previous conviction[]” for ACCA purposes. ACCA defines prior federal “serious drug offense[s]” to include, for example, “an offense under the Controlled Substances Act . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”8
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 involved in the prior federal drug conviction was on the federal controlled-substances schedules at the time of the prior federal drug conviction is certainly an element of an offense under the Controlled Substances Act. So we must read “Controlled Substances Act” to refer to the version of the Act (along with the version of its attendant federal drug schedules) in effect at the time of the prior federal drug conviction.
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 as we‘ve noted, McNeill prohibits that result. See id. (noting that result “cannot be correct“). So under McNeill, the only way to assess whether a prior federal drug conviction is a “serious drug offense” is to apply the federal drug law and accompanying schedules in effect at the time of the prior federal drug conviction.
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 the case, the definition of a state “serious drug offense” would be the only one of the three definitions of a “previous conviction[]” that did not employ a wholesale “backward-looking” perspective.
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
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
First, Jackson and our sister circuits contend that reading
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
In short, we hold that
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.
Jackson argues that
Jackson has suggested no other reason why
IV.
For these reasons, we affirm the district court‘s judgment.
AFFIRMED.
ROSENBAUM, Circuit Judge, concurring:
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 historical versions of controlled-substances list. And that‘s a heavy lift for the ordinary citizen.
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
For these reasons, if Congress continues to retain ACCA, I respectfully urge Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect when the defendant commits his federal firearm offense.