United States v. Jackson

• Citation: 36 F.4th 1294
• Decision Date: 10 June 2022
• Docket Number: 21-13963
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene JACKSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

36 F.4th 1294

UNITED STATES of America, Plaintiff-Appellee,

v.Eugene JACKSON, Defendant-Appellant.

No. 21-13963

United States Court of Appeals, Eleventh Circuit.

Filed June 10, 2022

Michael Benjamin Brenner, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney's Office, Jason Wu, Assistant U.S. Attorney, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

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

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

ROSENBAUM, Circuit Judge Forewarned is forearmed. That's a common-sense notion that people have recognized for at least hundreds¹ of years. In fact, Shakespeare incorporated it into Henry VI, Part 3 —written around 1591 or ’92—when King Edward IV says, "Well I will arm me, being thus forewarned." William Shakespeare, King Henry VI, Part 3 act 4 sc. 1, l. 115, Folger Shakespeare Library, edited by Barbara A. Mowat & Paul Werstine (Simon & Schuster Paperbacks Mar. 2009).

The concept of "forewarned is forearmed" also explains why fair notice—a principle enshrined in the Constitution by the Fifth Amendment's Due Process clause—is so important. Knowing that certain conduct violates the law and will result in a specified minimum penalty (or perhaps a maximum penalty), a person may decide to avoid engaging in that conduct. And even if she goes ahead, anyway, and violates the law, she knows in advance what the potential consequences could be.

This due-process cornerstone of fair notice drives our decision today under the Armed Career Criminal Act ("ACCA"). ACCA increases the sentence of, among others, a felon in unlawful possession of a firearm if that person has at least three prior convictions for a "violent felony," 18 U.S.C. § 924(e)(2)(B), or a "serious drug offense," 18 U.S.C. § 924(e)(2)(A), or both. This appeal requires us to decide which version of the Controlled Substance Act Schedules incorporated into ACCA's definition of "serious drug offense" applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the defendant's federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his predicate state crimes that we are evaluating to see whether they satisfy ACCA's definition of "serious drug offense."

We hold that due-process fair-notice considerations require us to apply the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced. When we apply that iteration here, we conclude that Defendant-Appellant Eugene Jackson does not qualify for ACCA's sentence enhancement. Because the district court reached the opposite conclusion, we vacate Jackson's sentence and remand for resentencing.

I.

Jackson pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). According to the factual proffer supporting Jackson's guilty plea, he unlawfully possessed the firearm on September 26, 2017.

In Jackson's presentence investigation report ("PSI"), the probation officer determined that Jackson's prior criminal history qualified him for an ACCA sentencing enhancement. ACCA applies to a conviction under 18 U.S.C. § 922(g) for firearm possession by a prohibited person if the defendant has three qualifying convictions for "a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). In support of the ACCA enhancement the probation officer recommended for Jackson, the PSI concluded Jackson had five qualifying predicate convictions:

(1) a 1998 Florida conviction for battery on a law enforcement officer;

(2) a 1998 Florida conviction for the sale of cocaine;

(3) a 2003 Florida conviction for armed robbery;

(4) a 2004 Florida conviction for possession with intent to sell cocaine; and

(5) 2012 Florida convictions for aggravated assault with a deadly weapon and aggravated battery with a deadly weapon, each arising out of the same incident.

The recommended ACCA enhancement increased Jackson's total offense level from 23 to 30, which caused his advisory guideline range to change from 92–115 months to 180–210 months.

Jackson objected to the probation officer's determination that ACCA applied. He conceded that he had two ACCA predicates: the 2003 Florida armed robbery and the 2012 aggravated battery.² (Jackson disputed that the 2012 aggravated assault qualified as a "violent felony" but admitted that the accompanying aggravated battery did.)

But Jackson argued that neither of his cocaine-related convictions qualified as a third ACCA predicate offense. He acknowledged that "serious drug offense" means, as relevant here, "an offense under State law, involving ... distributing, or possessing with intent to ... distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 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). But Jackson contended that the cocaine-related conduct that Fla. Stat. § 893.13 prohibited when both of Jackson's cocaine-related convictions occurred encompassed, among other things, the sale of, or possession with intent to distribute, ioflupane (¹²³ I) ("ioflupane"). Yet when Jackson possessed the firearm here, ioflupane was not a "controlled substance" for purposes of the "serious drug offense" definition in § 924(e)(2)(A)(ii). So Jackson urged that, categorically, a cocaine-related offense under Fla. Stat. § 893.13 at the times of his cocaine-related convictions could not qualify as a "serious drug offense" under ACCA.

For its part, the government conceded that Jackson's 1998 Florida battery conviction did not qualify as an ACCA predicate. It also agreed that the 2012 aggravated assault and aggravated battery counted as only a single "violent felony." As to the cocaine-related § 893.13 offenses, the government did not address Jackson's ioflupane argument on the merits. Instead, it argued that Jackson's convictions necessarily are "serious drug offenses" under our decision in United States v. Smith , 775 F.3d 1262 (11th Cir. 2014), and the Supreme Court's decision in Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 206 L.Ed.2d 81 (2020).

Jackson disagreed.

Ultimately, the district court agreed with the government. Based on that conclusion, it sentenced Jackson to ACCA's mandated fifteen-year minimum.

Jackson now appeals.

II.

We review de novo whether a state conviction qualifies as a "serious drug offense" for ACCA purposes. United States v. Conage , 976 F.3d 1244, 1249 (11th Cir. 2020). When conducting our review, we are "bound by federal law when we interpret terms in the ACCA" and "bound by state law when we interpret elements of state-law crimes." Id. (internal quotation marks omitted).

III.

As we have noted, this case requires us to determine whether Jackson's 1998 and 2004 cocaine-related drug convictions qualify as "serious drug offense[s]" for purposes of ACCA. To accomplish that task, we employ the "categorical approach." Conage , 976 F.3d at 1250. Under that approach, we look to the state offense of which the defendant was previously convicted and identify the elements of that crime. Id. The categorical approach requires that we do not consider the individual facts underlying the defendant's prior conviction—just the elements. Id. We then compare these elements of the state offense with the components of ACCA's definition of "serious drug offense." See id. A conviction qualifies as a "serious drug offense" only if the state statute under which the defendant was convicted defines the offense as least as narrowly as ACCA's definition of "serious drug offense." Id.

In conducting our analysis here, we proceed in three steps. First, we identify the criteria that ACCA uses to define a "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii). Second, we analyze the outer bounds of the elements that would have satisfied Fla. Stat. § 893.13 ’s requirements for a cocaine-related conviction at the time of each of Jackson's convictions. And third, we compare the results of the first two steps to see whether § 893.13 ’s "elements ‘necessarily entail one of the types of conduct’ " set forth in ACCA's definition of "serious drug offense." Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 784, 206 L.Ed.2d 81 (2020) (emphasis and citation omitted). If so, we count the conviction as a "serious drug offense." But if not, the conviction does not qualify as a "serious drug offense." Finally, after we conduct our analysis, we explain why the precedent on which the government relies does not alter our conclusion.

A. As relevant here, § 924(e)(2)(A)(ii) ’s definition of "serious drug offense" requires satisfaction of three criteria: (1) the state offense must involve distributing, or possessing with intent to distribute (2) "cocaine, its salts, optical and geometric isomers, and salts of isomers; ecgonine, its derivatives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the[se] substances," but not ioflupane; and (3) the state offense must have been punishable by a maximum term of imprisonment of at least ten years.

1. The Controlled Substance Act Schedules that were incorporated into ACCA's § 924(e)(2)(A)(ii) definition of "serious drug offense" as of the time Jackson committed his federal-firearm-possession violation are the ones that govern.

Before we can determine what ACCA's § 924(e)(2)(A)(ii) definition of "serious drug offense" "necessarily require[s]," we must first decide the version of the statute we must consult: the one in effect at the times of Jackson's...