United States v. Eugene Jackson

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13963
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE JACKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20546-KMW-1
____________________
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2 Opinion of the Court 21-13963
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
ROSENBAUM, Circuit Judge:
The Armed Career Criminal Act, 18 U.S.C. § 924(e), man-
dates a fifteen-year minimum sentence for a defendant who pos-
sesses a firearm and satisfies any of 18 U.S.C. § 922(g)(1)’s condi-
tions 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 “seri-
ous drug offense” if it is one “involving manufacturing, distrib-
uting, or possessing with intent to manufacture or distribute, a con-
trolled substance (as defined in section 102 of the Controlled Sub-
stances Act . . .), for which a maximum term of imprisonment of
ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii) (em-
phasis 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 def-
inition of “serious drug offense” incorporates: the one in effect
when the defendant violated 18 U.S.C. § 922(g)(1) (the “firearm of-
fense”) 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 (2011), requires
us to conclude that ACCA’s “serious drug offense” definition incor-
porates the version of the controlled-substances list in effect when
the defendant was convicted of his prior state drug offense.
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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 sup-
port 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 enhance-
ment 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 fire-
arm prohibition in 18 U.S.C. § 922(g).
Although Jackson conceded that he had two prior convic-
tions that satisfy ACCA’s definition of a “violent felony,”1 he ob-
jected 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
1 As relevant here, these prior offenses of Jackson’s are “violent felon[ies]” be-
cause each had “as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 924(e)(2)(B)(i).
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4 Opinion of the Court 21-13963
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 defini-
tion 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 imprison-
ment 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
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21-13963 Opinion of the Court 5
definition of the state offense at issue, rather than the facts under-
lying 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 con-
duct—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 can-
not 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 co-
caine-related offenses with ACCA’s definition of a “serious drug of-
fense” to see whether the state crime is categorically broader than
a “serious drug offense.” 2
2 Sometimes a statute is divisible, meaning it lists “elements in the alternative,
and thereby define[s] multiple crimes.” Mathis v. United States, 579 U.S. 500,
505 (2016). When that’s the case, we use the “modified categorical approach”
to assess whether a prior conviction qualifies as an ACCA predicate. Id. Under
this modified categorical approach, we look “to a limited class of documents
(for example, the indictment, jury instructions, or plea agreement and collo-
quy) to determine what crime, with what elements, a defendant was convicted
of.” Id. at 505–06 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). We
“then compare that crime, as the categorical approach commands,” with
ACCA’s “serious drug offense” definition. See id. at 506. In contrast to the
modified categorical approach, when the statute lists alternative means of
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6 Opinion of the Court 21-13963
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 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-re-
lated offenses, Section 893.13(1) criminalized selling, manufactur-
ing, delivering, or possessing with the intent to sell, manufacture,
or deliver, cocaine and cocaine-related substances, including a sub-
stance called ioflupane (123I) (“ioflupane”). 3
satisfying a single element, the standard categorical approach applies. See id.
at 517. And under that approach, we presume that the defendant’s conviction
“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) (quotation marks omitted). As we explain in greater detail below, we
assume without deciding that the standard categorical approach applies here.
See infra note 9.
3 At the time of Jackson’s convictions, Section 893.13(1) prohibited selling,
manufacturing, delivering, or possessing with the intent to sell, manufacture,
or deliver, “a controlled substance.” Fla. Stat. § 893.13(1) (1998); see also id.(2004). Florida law defined “[c]ontrolled substance” as “any substance named
or described in Schedules I through V of s. 893.03.” Id. § 893.02(4) (1998); see
also id. (2004) (“‘Controlled substance’ means any substance named or de-
scribed in Schedules I-V of s. 893.03.”). Florida’s Schedule II included
“[c]ocaine or ecgonine, including any of their stereoisomers, and any salt,
compound, derivative, or preparation of cocaine or ecgonine.” Id.
§ 893.03(2)(a)(4) (1998); see also id. (2004). It’s clear that definition encom-
passed ioflupane because the Florida Legislature has since amended Florida’s
Schedule II to expressly exempt ioflupane from that definition. Id. (2017); 2017
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21-13963 Opinion of the Court 7
The federal version of Schedule II also encompassed io-
flupane in 1998 and 2004, when Jackson was convicted of his Sec-
tion 893.13(1) offenses. 4 But that changed in 2015. Then, the fed-
eral 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 fed-
eral conviction under 18 U.S.C. § 922(g)(1) here, ioflupane was not
a controlled substance “as defined . . . [under] the Controlled Sub-
stances 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 con-
victed of his prior state drug offenses, is categorically broader than
Fla. Sess. Law Serv. Ch. 2017-110 (C.S.H.B. 505) (West); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
256–60 (2012) (explaining that “a change in the language of a prior statute pre-
sumably connotes a change in meaning”).
4 Until 2015, “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 (Sept. 11, 2015) (codified at 21 C.F.R. § 1308.12(b)(4)(ii)).
5 The Controlled Substances Act authorizes the Attorney General to “remove
any drug or other substance from the schedules if he finds that the drug or
other substance does not meet the requirements for inclusion in any sched-
ule.” 21 U.S.C. § 811(a); see also id. § 812 n.1 (“Revised schedules are published
in the Code of Federal Regulations, Part 1308 of Title 21, Food and Drugs.”).
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8 Opinion of the Court 21-13963
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” incorpo-
rates: 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, be-
fore applying that answer to the facts in this appeal.
A.
The government identifies three decisions it says foreclose
Jackson’s argument. We think not.
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21-13963 Opinion of the Court 9
In two of the decisions the government identifies, we ad-
dressed 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 na-
ture 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 Sec-
tion 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 re-
spect 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 statute . . . .” Id. at 1267.
6 Mens rea is “[t]he state of mind that the prosecution, to secure a conviction,
must prove that a defendant had when committing a crime . . . .” Mens Rea,
Black’s Law Dictionary (11th ed. 2019).
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10 Opinion of the Court 21-13963
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’ def-
inition requires only that the state offense involve the conduct
specified in the federal statute; it does not require that the state of-
fense match certain generic offenses.” Id. Although Shular explic-
itly 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) (re-
lying on Travis Smith to hold that Shular’s convictions under Fla.
Stat. § 893.13 qualify as serious drug offenses under ACCA), aff’d,
140 S. Ct. 779 (2020).
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 Section 893.13(1) cannot
qualify as a “serious drug offense” under ACCA because it lacks a
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21-13963 Opinion of the Court 11
mens rea element. See id. (“Smith’s argument that his prior con-
victions cannot qualify because the state offense lacks a mens rea
element is foreclosed by our [Travis] Smith precedent and the Su-
preme Court’s precedent in Shular.”).
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 “se-
rious drug offense[s]” because, in the government’s view, we have
already declared that Section 893.13 is a “serious drug offense.” Un-
der our prior-panel-precedent rule, “a prior panel’s holding is bind-
ing on all subsequent panels unless and until it is overruled or un-
dermined 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 over-
looked 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, Shu-
lar, and Xavier Smith did not address, as Jackson asks us to do here,
whether ACCA’s “serious drug offense” definition incorporates the
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12 Opinion of the Court 21-13963
version of the controlled-substances schedules in effect when the
defendant was convicted of his prior state drug offenses or the ver-
sion 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 defini-
tion 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 of-
fense to involve the conduct of “manufacturing, distributing, or
possessing with intent to manufacture or distribute.” 18 U.S.C.
§ 924(e)(2)(A)(ii); see Travis Smith, 775 F.3d at 1267 (holding that
ACCA’s serious drug offense definition requires “only that the
predicate offense involves . . . certain activities related to controlled
substances” (alteration adopted and quotation marks omitted));
Shular, 140 S. Ct. at 782 (holding that ACCA’s “‘serious drug of-
fense’ definition requires only that the state offense involve the
conduct specified in the federal statute”); Xavier Smith, 983 F.3d at
1223 (noting that “ACCA’s definition of a serious drug offense ‘re-
quires only that the state offense involve the conduct specified in
the ACCA’” (alteration adopted) (quoting Shular, 140 S. Ct. at
782)).
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21-13963 Opinion of the Court 13
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 (21 U.S.C. [§] 802)).” 18 U.S.C.
§ 924(e)(2)(A)(ii). At best, the Smith decisions and Shular assumed
that this part of the “serious drug offense” definition and Section
893.13(1) encompass the same universe of substances. But “as-
sumptions are not holdings.” Brown v. Electrolux Home Prods.,
Inc., 817 F.3d 1225, 1239 (11th Cir. 2016); see also Brecht v. Abra-
hamson, 507 U.S. 619, 631 (1993) (“[S]ince we have never squarely
addressed the issue, and have at most assumed [the issue], we are
free to address the issue on the merits.”); Fernandez v. Keisler, 502
F.3d 337, 343 n.2 (4th Cir. 2007) (“We are bound by holdings, not
unwritten assumptions.”); Sakamoto v. Duty Free Shoppers, Ltd.,
764 F.2d 1285, 1288 (9th Cir. 1985) (“[U]nstated assumptions on
non-litigated issues are not precedential holdings binding future de-
cisions.”); United States v. Norris, 486 F.3d 1045, 1054 (8th Cir.
2007) (en banc) (Colloton, J., concurring in the judgment) (collect-
ing decisions in which implicit assumptions, findings, or questions
were not given precedential effect).
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 con-
trolled-substances schedules in effect when the defendant was con-
victed of his prior state drug offenses or the version in effect when
he committed his firearm offense. We consider that question now.
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14 Opinion of the Court 21-13963
B.
We apply the categorical approach in three steps. First, we
identify the criteria ACCA uses to define a state “serious drug of-
fense” under 18 U.S.C. § 924(e)(2)(A)(ii). This step requires us to
decide which version of the federal controlled-substances sched-
ules that definition incorporates. Second, we turn to the “statutory
definition of the state offense at issue.” Conage, 976 F.3d at 1250.
Here, that definition resides at Florida Statute § 893.13(1), which
describes the elements of Jackson’s prior cocaine-related offenses.
Third, we compare the results of those steps to determine whether
Section 893.13(1) is categorically broader—that is, whether it pun-
ishes more conduct—than ACCA’s “serious drug offense” defini-
tion. If Section 893.13(1) is not categorically broader than ACCA’s
“serious drug offense” definition, then Jackson’s prior cocaine-re-
lated offenses qualify as “serious drug offense[s].”
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 ar-
guments against that conclusion.
1.
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21-13963 Opinion of the Court 15
We start with the three criteria ACCA uses to define a state
“serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii). First, the
prior state offense must involve certain conduct: “manufacturing,
distributing, or possessing with intent to manufacture or distrib-
ute.” Id. Second, that conduct must involve “a controlled sub-
stance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. [§] 802)).” Id. And third, that conduct involving a con-
trolled substance must be punishable by a maximum term of im-
prisonment of at least ten years. Id.
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 of-
fenses.” 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 “con-
trolled substance” by reference to Section 102 of the Controlled
Substances Act. See 18 U.S.C. § 924(e)(2)(A)(ii) (incorporating 21
U.S.C. § 802). Section 102, in turn, defines a “controlled substance”
to include any substance on the federal drug schedules. See 21
U.S.C. § 802(6). But those schedules are not static. Indeed,
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16 Opinion of the Court 21-13963
Congress has authorized the Attorney General to remove drugs
from (and add drugs to) those schedules. See supra note 5; 21
U.S.C. § 811 (authorizing the Attorney General to add substances
to, subtract them from, or transfer them between the controlled-
substances schedules). So we must decide whether ACCA’s defini-
tion of a “serious drug offense” under state law incorporates the
version of the federal drug schedules in effect when Jackson was
convicted of his prior state drug offenses or the version in effect
when Jackson committed his firearm offense.
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 con-
strued ACCA’s third criterion for qualifying prior state drug of-
fenses: 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 18 U.S.C.
§ 924(e)(2)(A)(ii)). Similar to the question here, in McNeill the Su-
preme Court considered whether, when a federal court assesses the
maximum penalty under the state statute of prior conviction,
ACCA requires the court to consider the penalties that applied un-
der the state law at the time of the prior conviction or the ones that
applied at the time of the sentencing on the firearm offense. See
id. The Supreme Court concluded that “[t]he plain text of ACCA
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21-13963 Opinion of the Court 17
requires a federal sentencing court to consult the maximum sen-
tence applicable to a defendant’s previous drug offense at the time
of his conviction for that offense.” Id.To explain why the text is plain, the Supreme Court empha-
sized the term “‘previous convictions,’” which ACCA uses in 18
U.S.C. § 924(e)(1). See id. at 819 (quoting § 924(e)(1)). As a re-
minder, Section 924(e)(1) imposes a fifteen-year mandatory mini-
mum prison sentence when a defendant possesses a firearm in vio-
lation of 18 U.S.C. § 922(g) while having at least “three previous
convictions” for a “serious drug offense” or a “violent felony.” Id.§ 924(e)(1) (emphasis added). The Supreme Court explained that
the term “previous convictions” necessarily calls for a “backward-
looking” inquiry and shows that “ACCA is concerned with convic-
tions that have already occurred.” McNeill, 563 U.S. at 819–20
(quotation marks omitted). So, the Court continued, the “only
way” to determine whether a prior state conviction qualifies as a
“serious drug offense” is “to consult the law that applied at the time
of that conviction.” Id. For that reason, the Court concluded, “the
maximum sentence that ‘is prescribed by law’ for [a previous state
conviction] must also be determined according to the law applica-
ble at that time.” Id. And as a result, changes in state law after a
previous conviction occurs cannot “erase” that “earlier conviction
for ACCA purposes.” Id. at 823.
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
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18 Opinion of the Court 21-13963
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 re-
quires that the prior offense involve a federally controlled sub-
stance. 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
7 The First, Second, Sixth, and Ninth Circuits have addressed a similar ques-
tion arising under the Sentencing Guidelines. See United States v. Abdulaziz,
998 F.3d 519, 521–22, 525–27 (1st Cir. 2021); United States v. Bautista, 989 F.3d
698, 701, 703 (9th Cir. 2021); United States v. Clark, 46 F.4th 404, 406 (6th Cir.
2022); United States v. Gibson, ___ F.4th ____, No. 20-3049, 2022 WL
17419595, at *1, 6–7 (2d Cir. Dec. 6, 2022). But “longstanding principles of
statutory interpretation allow different results under the Guidelines as op-
posed to under the ACCA.” Brown, 47 F.4th at 154. The Guidelines provide,
for example, that “court[s] shall use the Guidelines Manual in effect on the
date that the defendant is sentenced.” U.S.S.G. § 1B1.11(a). So while we ex-
press no opinion about the correctness of the First, Second, Sixth, and Ninth
Circuits’ opinions in Abdulaziz, Bautista, Clark, and Gibson, we conclude that
reliance on them here would be “misplaced.” Brown, 47 F.4th at 154.
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21-13963 Opinion of the Court 19
But in our view, upon close consideration, McNeill’s reason-
ing requires us to conclude all the same that the federal controlled-
substances schedules in effect at the time of the previous state con-
viction 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] convic-
tion for ACCA purposes,” in violation of McNeill’s reasoning, see
McNeill, 563 U.S. at 823, and (2) because of the way McNeill in-
forms 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 18 U.S.C. § 922(g) and who
“has three previous convictions . . . for a violent felony or a serious
drug offense, or both.” Section 924(e)(2) then defines the terms
“violent felony” and “serious drug offense.” The definition of “se-
rious drug offense” separately specifies the conditions under which
prior federal drug-related convictions qualify (§ 924(e)(2)(A)(i)) and
prior state drug-related convictions qualify (§ 924(e)(2)(A)(ii)).
Meanwhile, the definition of “violent felony” in Section
924(e)(2)(B) applies uniformly to both prior federal convictions and
prior state convictions. So as relevant here, “serious drug offense”
has two definitions (that pertain separately to prior federal convic-
tions and prior state convictions), and “violent felony” has one
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20 Opinion of the Court 21-13963
definition, for a total of three ways Section 924(e)(2) defines “pre-
vious convictions” in Section 924(e)(1).
With that in mind, we move on to McNeill’s reasoning. As
we’ve noted, McNeill broadly construes the term “previous con-
victions” 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 con-
victions” under ACCA, 18 U.S.C. § 924(e), McNeill’s reasoning re-
quires us to view these definitions through a backward-looking per-
spective.
On this score, the Supreme Court reads ACCA’s “violent fel-
ony” 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 vio-
lent 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 threat-
ened use of physical force against the person of an-
other” 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).
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21-13963 Opinion of the Court 21
Despite Congress’ use of present tense in that defini-
tion, 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 “se-
rious drug offense” involving a prior state conviction as incorporat-
ing that same “backward-looking” inquiry. See id. at 825 (holding
“that a federal sentencing court must determine whether ‘an of-
fense under State law’ is a ‘serious drug offense’ by consulting the
‘maximum term of imprisonment’ applicable to a defendant’s pre-
vious drug offense at the time of the defendant’s state conviction
for that offense” (quoting § 924(e)(2)(A)(ii))); id. at 820 (noting that
because “ACCA is concerned with convictions that have already
occurred,” “[w]hether the prior conviction was for an offense ‘in-
volving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance’ can only be an-
swered by reference to the law under which the defendant was con-
victed”). “Having repeatedly looked to the historical statute of con-
viction in the context of violent felonies,” the Court saw “no reason
to interpret ‘serious drug offenses’ in the adjacent section of the
same statute any differently” because in “both definitions,
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22 Opinion of the Court 21-13963
Congress used the present tense to refer to past convictions.” Id.
at 822 (alteration adopted).
Not only is the “previous conviction” inquiry a backward-
looking one, but the Supreme Court has concluded that “[i]t can-
not 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 sub-
stances that were federally controlled at the time of the prior state
conviction. But we know from McNeill that that is an impermissi-
ble 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
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21-13963 Opinion of the Court 23
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 maxi-
mum term of imprisonment of ten years or more is prescribed by
law.” 8 18 U.S.C. § 924(e)(2)(A)(i).
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 “con-
sulted” 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 de-
termine the elements of their offenses”). And whether the drug
8 Under Section 924(e)(2)(A)(i), a prior federal conviction is a “serious drug
offense” if it is “an offense under the Controlled Substances Act (21 U.S.C. 801
et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et
seq.), or chapter 705 of title 46 for which a maximum term of imprisonment
of ten years or more is prescribed by law.”
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24 Opinion of the Court 21-13963
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 Sub-
stances Act” to refer to the version of the Act (along with the ver-
sion 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 “seri-
ous 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 fed-
eral 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. de-
nied, 142 S. Ct. 583 (2021).
Reading the term “Controlled Substances Act” in the defini-
tion 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
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21-13963 Opinion of the Court 25
as we’ve noted, McNeill prohibits that result. See id. (noting that
result “cannot be correct”). So under McNeill, the only way to as-
sess whether a prior federal drug conviction is a “serious drug of-
fense” 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 Florida Statute
§ 893.13(1)) for his cocaine-related activity in 1998 and 2004, his
prior convictions would qualify as “serious drug offense[s]” under
ACCA. See 18 U.S.C. § 924(e)(2)(A)(i). And that is so even though
the federal definition of “cocaine” was broader in 1998 and in 2004
than it was in 2017, when Jackson possessed the firearm in violation
of 18 U.S.C. § 922(g).
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 logi-
cally requires the conclusion that the state-offense definition incor-
porates the federal drug schedules in effect at the time of the prior
state drug conviction. And that we also read the definition of “vi-
olent felony” with a wholesale “backward-looking” perspective
only adds support to our conclusion that ACCA’s definitional struc-
ture for qualifying “previous convictions” requires us to read all the
definitions with a “backward-looking” perspective. Were that not
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26 Opinion of the Court 21-13963
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 harmoni-
ous-reading canon). To read the definition in Section
924(e)(2)(A)(ii) harmoniously with the rest of Section 924(e)’s sub-
parts, 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 “se-
rious drug offense” to incorporate the version of the federal con-
trolled-substances schedules in effect at the time the defendant
committed the federal firearm offense instead of the version in ef-
fect 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
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21-13963 Opinion of the Court 27
federal drug schedules. While these are thoughtful arguments, we
ultimately must reject them.
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 of-
fenses” are charged with knowing that their federal drug convic-
tions 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
§ 922(g) whether ACCA would apply.” Id. at 823. That reasoning
applies as much to the statutory language we consider here as it did
to the language the Court addressed in McNeill. Put simply, the
ACCA term “previous convictions” puts a defendant on notice
when he is convicted of a drug offense for conduct involving a con-
trolled substance that at that time appears on the federal drug
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28 Opinion of the Court 21-13963
schedules that his conviction qualifies as a “serious drug offense”
under ACCA. And in this way, a person has a means of knowing
“before he violates § 922(g) whether ACCA would apply.” Id.
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 can-
not say that is the case here. Cf. McNeill, 563 U.S. at 822 (“This
natural reading of ACCA [to require consulting the law that ap-
plied at the time of the prior state conviction] also avoids the ab-
surd 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-
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21-13963 Opinion of the Court 29
looking perspective to the entirety of the “serious drug offense”
definition.
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 con-
clude 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.” 18 U.S.C. § 924(e)(2)(A)(ii).
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 Tay-
lor v. United States, 495 U.S. 575, 601 (1990)). To find those ele-
ments, 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.
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30 Opinion of the Court 21-13963
Jackson argues that Florida Statute § 893.13(1), the statute
he was convicted of violating in 1998 and 2004, is categorically
overbroad because in 1998 and 2004, Section 893.13(1) encom-
passed conduct involving ioflupane while the definition of “serious
drug offense” did not. 9 But as we have explained, the federal drug
schedules included ioflupane in 1998 and 2004, when Jackson was
convicted of his prior state drug offenses. And McNeill’s reasoning
requires us to conclude that the 1998 and 2004 versions of the fed-
eral drug schedules are what govern. So Section 893.13(1) did not
reach more conduct with respect to cocaine than does ACCA’s “se-
rious drug offense” definition as it relates to Jackson’s 1998 and
2004 prior state drug convictions.
9 Jackson asks us to find that ioflupane and cocaine are alternative means of
satisfying the same element. In other words, he asks us to find that Section
893.13(1) is indivisible for each form of a given drug. When a statute lists al-
ternative means of satisfying the same element (unlike when a statute lists al-
ternative elements), the standard categorical approach applies, meaning that
“ACCA disregards the means by which the defendant committed his crime,
and looks only to that offense’s elements.” Mathis, 579 U.S. at 517; see also
supra note 2. As a result, we must assume those offenses involved the least
culpable conduct—here, conduct involving ioflupane rather than cocaine. But
because we hold that ACCA’s “serious drug offense” definition incorporates
the version of the federal drug schedules in effect when Jackson was convicted
of his prior state drug offenses, and because that version of the federal sched-
ules listed ioflupane, it makes no difference whether Jackson’s convictions in-
volved ioflupane or cocaine. We therefore assume without deciding that Sec-
tion 893.13(1) is divisible for each form of a given drug, meaning we also as-
sume that Jackson’s prior state drug convictions could have been for conduct
involving ioflupane.
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21-13963 Opinion of the Court 31
Jackson has suggested no other reason why Section
893.13(1) might be categorically broader than ACCA’s definition
for a “serious drug offense.” We therefore conclude that Jackson’s
1998 and 2004 Section 893.13(1) cocaine convictions qualify as “se-
rious drug offense[s]” under 18 U.S.C. § 924(e)(1).
IV.
For these reasons, we affirm the district court’s judgment.
AFFIRMED.
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21-13963 ROSENBAUM, J., Concurring 1
ROSENBAUM, Circuit Judge, concurring:
The statutory language we interpret here is yet another ex-
ample 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 con-
cludes 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 of-
fense. 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. John-
son v. United States, 576 U.S. 591, 595–96 (2015). An ordinary citi-
zen seeking notice about whether her prior offenses qualify as
ACCA predicates must, in line with today’s decision, research the
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2 ROSENBAUM, J., Concurring 21-13963
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 con-
gressional intent to read the definitions for “violent felony” and “se-
rious 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 re-
quire historical research of the federal controlled-substance sched-
ules. 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
1 The immigration context fails to supply a helpful analogue here. To be sure,
we have looked to the federal drug schedules in effect at the time of a prior
conviction to determine whether that conviction renders a non-citizen remov-
able. See, e.g., Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1351 n.4 (11th Cir.
2020). But in the immigration context, a prior conviction immediately triggers
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21-13963 ROSENBAUM, J., Concurring 3
For the reasons we explain in the panel opinion, the law
mandates an affirmance in this case. But I am deeply concerned
that our reading seemingly requires the “ordinary person” to be an
expert in ACCA and in historical knowledge of the federal drug
schedules. Incorporating the federal drug schedules in effect at the
time of the federal firearm offense (and for prior federal convic-
tions, at both the times of the prior conviction and the federal fire-
arm offense) would be far more consistent with how we generally
construe statutes. It would also provide the “ordinary person” with
more accessible and realistic notice. And finally, as our sister cir-
cuits have observed, incorporating the federal drug schedules in ef-
fect at the time of the federal firearm offense would be far more
consistent with Congress’s determination to decriminalize certain
substances. See Williams, 48 F.4th at 1144 (“[I]f Congress has de-
cided hemp should not be criminalized, then surely Congress
would not intend for it to continue to be included within the nar-
row class of serious crimes that contributes to a 15-year mandatory
minimum prison sentence.”); see also Perez, 46 F.4th at 700.
removal consequences. In contrast, a prior state conviction carries no federal
consequences under § 924(e) unless and until the person with that conviction
is convicted of carrying a firearm in violation of § 922(g)(1). For that reason,
“it makes sense” in the immigration context, unlike in the ACCA context, “to
determine whether the conviction is a removable offense at the time of that
controlled-substance conviction.” Williams, 48 F.4th at 1143; see also Brown,
47 F.4th at 155; Perez, 46 F.4th at 700.
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4 ROSENBAUM, J., Concurring 21-13963
For these reasons, if Congress continues to retain ACCA, I
respectfully urge Congress to consider amending the statute to in-
corporate the version of the controlled-substances list in effect
when the defendant commits his federal firearm offense.