United States v. Jackson

55 F.4th 846

UNITED STATES of America, Plaintiff-Appellee,

v.Eugene JACKSON, Defendant-Appellant.

No. 21-13963

United States Court of Appeals, Eleventh Circuit.

Filed: December 13, 2022

Michael Benjamin Brenner, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Laura Thomas Rivero, Lisa Tobin Rubio, Jason Wu, Assistant U.S. Attorney, U.S. Attorney Service - Southern District of Florida, Miami, FL, for Plaintiff-Appellee.

Andrew L. Adler, Julie Erin Holt, Michael Caruso, Federal Public Defender, Kathleen E. Mollison, Federal Public Defender's Office, Miami, FL, for Defendant-Appellant.

Edmund Gerard LaCour, Jr., Alabama Attorney General's Office, Montgomery, AL, for Amici Curiae State of Alabama, State of Georgia, State of Florida.

Before Rosenbaum, Jill Pryor, and Ed Carnes, Circuit Judges.

ROSENBAUM, Circuit Judge:

The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a fifteen-year minimum sentence for a defendant who possesses a firearm and satisfies any of 18 U.S.C. § 922(g)(1) ’s conditions while having at least three qualifying "previous convictions." "[P]revious convictions" qualify if they are for a "violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). This appeal concerns ACCA's definition of "serious drug offense."

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." Id . § 924(e)(2)(A)(ii) (emphasis added). Not surprisingly, the Controlled Substances Act's list of controlled substances changes from time to time. We must decide which version of the controlled-substances list ACCA's definition of "serious drug offense" incorporates: the one in effect when the defendant violated 18 U.S.C. § 922(g)(1) (the "firearm offense") or the one in effect when the defendant was convicted of his prior state drug offense. We hold that the Supreme Court's reasoning in McNeill v. United States , 563 U.S. 816, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011), requires us to conclude that ACCA's "serious drug offense" definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.

I.

The facts here are straightforward. Eugene Jackson pled guilty to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). In support of his guilty plea, the factual proffer shows that he unlawfully possessed a loaded firearm on September 26, 2017.

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." Id . § 924(e)(1). And under those circumstances, ACCA mandates a fifteen-year minimum sentence for violation of the firearm prohibition in 18 U.S.C. § 922(g).

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 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 Florida Statute § 893.13 meets ACCA's definition of a "serious drug offense." So we turn to that definition. As we have noted, ACCA defines a "serious drug offense" to include "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. [§] 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).

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 out-side 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, 131 S.Ct. 2218. Here, Jackson's two potential "serious drug offenses" include convictions for violating Florida Statute § 893.13 in 1998 and in 2004 with conduct involving cocaine. In 1998 and in 2004, when Jackson was convicted of his cocaine-related offenses, Section 893.13(1) criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, or deliver, cocaine and cocaine-related substances, including a substance called ioflupane (123I) ("ioflupane").³

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 21 C.F.R. § 1308.12(b)(4)(ii) (2017) ; id. (2021).⁵ So in 2017, when Jackson possessed the firearm that resulted in his federal conviction under 18 U.S.C. § 922(g)(1) here, ioflupane was not a controlled substance "as defined ... [under] the Controlled Substances Act," id. § 924(e)(2)(A)(ii).

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, shows why the Supreme Court's reasoning in McNeill does. Section B then answers the question this case presents, before applying that answer to the facts in this appeal.

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 18 U.S.C. § 924(e)(2)(A)(ii) ). And because Section 893.13(1) involves those activities, we held that a violation of the statute qualifies as a "serious drug offense" under ACCA—despite the fact that the statute lacks a mens rea element with respect to the illicit nature of the controlled substance. Id . at 1268. In so holding, we made clear that "[w]e need not search for the elements of" a generic definition of "serious drug offense" because that term is "defined by a federal s...