United States v. Emory Austin Carter

Opinion

USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 1 of 17

FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13430 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

EMORY AUSTIN CARTER, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:22-cr-00058-HL-TQL-1 ____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges. ED CARNES, Circuit Judge: USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 2 of 17

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Emory Austin Carter pleaded guilty to possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At sentencing his four prior Georgia convictions, each involving co- caine distribution crimes, were classified as “serious drug offenses” that triggered a 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e). Carter challenges the ACCA sentence enhancement on two grounds. Both depend on his assertion that Georgia’s definition of cocaine is broader than the federal definition of it.1 I. Facts and Procedural History Carter was indicted on one count of possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Section 924(e)(1) requires a 15-year mandatory minimum sentence when a person convicted of a § 922(g) offense has at least three qualifying prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Id. § 924(e)(1). The indictment alleged that Carter had four prior serious drug offense convictions under Georgia law and that the offenses had been committed on occasions different from one another.

1 Carter also challenges his conviction for possessing a firearm as a

felon, contending that 18 U.S.C. § 922(g)(1) violates the Second Amendment. We will not mention it further because our precedent forecloses that conten- tion. See United States v. Hicks, 166 F.4th 933, 939 (11th Cir. 2026); United States v. Dubois, 139 F.4th 887, 889 (11th Cir. 2025), cert. denied, 2026 WL 135685 (U.S. Jan. 20, 2026). USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 3 of 17

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According to the indictment, Carter had been convicted of these four crimes: (1) Sale of cocaine, committed Oct. 8, 2005, and convicted July 11, 2006 (2) Sale of cocaine, committed Dec. 14, 2012, and convicted Jan. 9, 2014 (3) Sale of cocaine, committed Dec. 21, 2012, and convicted Jan. 9, 2014 (4) Possession with intent to distribute cocaine, committed Jan. 21, 2016, and convicted Oct. 6, 2016 Carter pleaded guilty to the federal charge as a felon in possession of a firearm. He also admitted to the four prior drug convictions under Georgia law as they were alleged in the indictment. All four of Carter’s predicate convictions were based on violations of O.C.G.A. § 16-13-30, which makes it a crime “to manufacture, de- liver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” 2 O.C.G.A. § 16-13-30(b). The

2 There’s no dispute about the fact of these convictions and the fact

that the crimes that led to them occurred on different occasions, which are 18 U.S.C. § 924(e)(1) requirements. The only issue is whether they are “serious drug offense[s].” See 18 U.S.C. § 924(e)(1). For the sake of simplicity, even though one of them is the crime of possession with intent to distribute, we refer to them collectively as cocaine distribution offenses because in the same statutory provision Georgia criminalizes distribution of controlled substances and possession of a controlled substance with the intent to distribute. See O.C.G.A. § 16-13-30(b). USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 4 of 17

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court accepted Carter’s guilty plea and entered a judgment of con- viction. Carter’s presentence investigation report (PSR) classified his four prior cocaine distribution offenses (the four listed above) as “serious drug offense[s]” as the term is used in the ACCA. Because of that, under U.S.S.G. § 4B1.4(a), the PSR classified him as an “armed career criminal.” That classification resulted in a base of- fense level of 33. 3 See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(b)(3)(B). Three levels were shaved off for accepting responsibility and pleading guilty, making his total offense level 30. With a criminal history of VI, his guidelines range would have been 168 to 210 months of imprisonment, but the ACCA’s 15-year mandatory min- imum increased the low end of it by twelve months, and his range became 180 to 210 months.

3 The PSR first calculated a base offense level of 24 under § 2K2.1(a)(2)

because Carter had at least two prior felony “controlled substance offense[s].” But under U.S.S.G. § 4B1.4(a), “[a] defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career crimi- nal.” Armed career criminals are assigned a higher base offense level under the guidelines. See U.S.S.G. § 4B1.4(a)–(b). As we’ve mentioned, Carter was as- signed a base offense level of 33 because he was classified as an armed career criminal. His guidelines calculations were based on that number. Because we conclude that the district court properly applied the ACCA sentence enhance- ment, we need not and do not address Carter’s arguments about the applica- bility of U.S.S.G. § 2K2.1(a)(2). USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 5 of 17

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Carter objected to the PSR, arguing that he shouldn’t be classified as an armed career criminal under U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e) because Georgia’s definition of cocaine was cat- egorically broader than the federal definition of it. When Carter committed his O.C.G.A. § 16-13-30 cocaine distribution crimes, Georgia defined “cocaine” as: [C]oca leaves, any salt, compound, derivative, stereo- isomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of co- caine, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extrac- tions which do not contain cocaine or ecgonine. O.C.G.A. § 16-13-26(1)(D) (emphasis added). At the same time, federal law defined cocaine as “[c]oca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed,” 21 U.S.C. § 802(17)(C), and as “salts, optical and ge- ometric isomers, and salts of isomers” of cocaine, id. § 802(17)(D) (emphasis added). Carter’s argument focused on the difference between the “any . . . stereoisomers” in Georgia’s definition of cocaine, O.C.G.A. § 16-13-26(1)(D) (emphasis added), and the more specific “optical and geometric isomers” in the federal definition, 21 U.S.C. § 802(17)(D). He asserts that the language “any . . . stereoisomers” includes more than just optical and geometric isomers. USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 6 of 17

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To support his position that this definitional difference makes a difference, he included a declaration from an expert he had hired, chemistry professor Neil Garg. In his declaration, Garg ex- plains that “cocaine is often formulated with different adulterants or diluents.” And “[a]dulterants, diluents, or impurities can be ex- pected to impact a compound’s conformation, leading to confor- mational isomers.” Garg’s declaration focuses on these “conforma- tional isomers,” which he defines as a “class of stereoisomer[]” of cocaine that does in fact exist. He explains that conformational iso- mers are chemical compounds that differ “in torsion angle or an- gles” from other stereoisomers. And he describes conformational isomers as “a third form of stereoisomer that is distinct from optical and geometric isomers of cocaine.” Optical isomers, according to Garg, are compounds whose structures mirror one another’s, and geometric isomers are compounds that differ in terms of the posi- tions of their atoms relative to the reference plane. 4 Garg’s declaration points out that the federal definition of cocaine includes only “optical and geometric isomers” of cocaine while the Georgia definition includes all “stereoisomers of co- caine.” And while he admits that he isn’t able to “comment on the legal ramifications of conformational isomers with regard to co- caine,” his opinion is that “different adulterants or diluents” in

4 Garg notes that the International Union of Pure and Applied Chem-

istry considers the terms “optical” and “geometric” isomers “obsolete.” But those terms appear in the federal definition of cocaine. See 21 U.S.C. § 802(17)(D). USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 7 of 17

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cocaine result in “differing levels of purity,” which can create con- formational isomers of the drug. All of that leads Garg to conclude that, “the Georgia definition, which includes all ‘stereoisomers of cocaine,’ may be broader than the federal definition,” which in- cludes only geometric and optical isomers. He did say “may be,” not is. And he is a chemistry professor, not someone with any ex- pertise interpreting or applying statutes or court decisions. Based on Garg’s report, Carter objected to the ACCA en- hancement recommended in the PSR. The probation officer re- sponded by adding an addendum to the report stating that the Georgia and federal definitions of cocaine “appear[ed] to align.” The addendum also explained, however, that if the court agreed with Carter that the ACCA enhancement didn’t apply, he would not be subject to a mandatory minimum sentence of 15 years, and his guidelines range would be 77–96 months based on a total of- fense level of 21 and a criminal history category of VI. At the sentence hearing, Carter’s counsel reiterated the ob- jection to the application of the ACCA enhancement based on Garg’s declaration, arguing that the Georgia definition of cocaine was broader than the federal definition. The court overruled Carter’s objection, concluding that the ACCA enhancement ap- plied. The district court accepted the PSR and its recommended guidelines range of 180–210 months of imprisonment. It sentenced Carter to 210 months to run consecutively to the state court sen- tences he was serving for probation violations. The court USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 8 of 17

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explained that it chose that sentence “to adequately reflect the na- ture of [Carter’s] criminal history, promote respect for the law, af- ford adequate deterrence, and protect the public from further crimes [he] might commit.” The court asked Carter (personally, not through counsel) if he objected to the sentence, and Carter said he felt he had been “over-sentenced.” The court told him that he had an “extensive criminal record,” he had committed the current offense while on probation for other crimes, and nothing his counsel had said justi- fied or excused Carter’s actions. The court said: “Your situation is such that every time you break the law and are caught, and if you plead guilty and/or are found guilty and are sentenced, your sen- tences are going to get longer and longer and longer.” Carter’s counsel objected to the procedural and substantive reasonableness of the sentence. II. Discussion Carter contends here, as he did in the district court, that with Garg’s declaration, he has established that Georgia’s definition of cocaine is broader than the federal definition of it. On that basis he insists that his Georgia cocaine distribution convictions cannot count as “serious drug offenses,” and the ACCA sentence enhance- ment cannot apply to him. He doesn’t write it out this way, but the syllogism of his argument is: Major premise: Prior convictions for violating a state’s drug laws involving cocaine do not count USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 9 of 17

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under the ACCA if state law defines “cocaine” more broadly than federal law does. Minor premise: Georgia law’s definition of cocaine is broader than the federal definition of cocaine. Conclusion: Therefore, Carter’s four prior Georgia convictions for cocaine crimes do not count under the ACCA. The structural logic of that syllogism is valid, meaning that the con- clusion does follow from the premises. But the syllogism is un- sound, and hence unpersuasive, because the minor premise is false. The major premise is correct about the way the ACCA gen- erally works. If Carter’s Georgia convictions are based on laws that criminalize more conduct than the federal law counterpart does, those convictions cannot serve as predicate offenses for an ACCA mandatory minimum sentence. See United States v. Jackson, 55 F.4th 846, 850 (11th Cir. 2022), aff’d sub nom., Brown v. United States, 602 U.S. 101 (2024). That’s settled. It is also settled that Georgia law sets the metes and bounds of the conduct covered by, and hence criminalized by, Georgia criminal statutes. See id. (explaining that “federal law binds our construction of ACCA, and state law governs our analysis of ele- ments of state-law crimes”). Georgia law is what the Georgia ap- pellate courts say it is. See EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d 1099, 1105 (11th Cir. 2017) (“When we address issues of state law, we are therefore bound by decisions issued by that state’s appellate courts.”); see also Mullaney v. Wilbur, 421 U.S. USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 10 of 17

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684, 691 (1975) (explaining that the Supreme Court “repeatedly has held that state courts are the ultimate expositors of state law”); Pinkney v. Secretary, DOC, 876 F.3d 1290, 1299 (11th Cir. 2017) (“[S]tate law is what the state courts say it is. As the Supreme Court and this Court have repeatedly acknowledged, it is not a federal court’s role to examine the propriety of a state court’s determina- tion of state law.”) (citation omitted); In re Cassell, 688 F.3d 1291, 1292 (11th Cir. 2012) (recognizing that the state supreme court is “the one true and final arbiter” of state law); United States v. Rosales- Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012) (“[W]e are bound by [state] courts’ determination and construction of the substantive elements of th[e] state offense.”). Carter’s minor premise is wrong about Georgia law regard- ing cocaine crimes. For reasons we will explain, he could not have been prosecuted under Georgia law for cocaine distribution crimes if the substance involved didn’t also meet the federal definition of cocaine. A. The ACCA, Georgia’s Definition of a Controlled Substance, and Carter’s Serious Drug Offenses Whether a conviction qualifies as a serious drug offense un- der the ACCA is a question of law that we review de novo. See United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016). Federal law governs our interpretation of the ACCA, but as we’ve men- tioned, state law defines the elements of a state-law crime. Jackson, 55 F.4th at 850. USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 11 of 17

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Under the ACCA, a state conviction counts as a “serious drug offense” when it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” as defined on the federal drug schedule, 21 U.S.C. § 802, and also carries “a maximum term of imprisonment of ten years or more.” 18 U.S.C. § 924(e)(2)(A)(ii). We use what’s known as the categorical approach to determine whether a defendant’s prior state conviction qualifies as a serious drug offense under the ACCA. Jackson, 55 F.4th at 850. “[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 [the] ACCA’s definition of a ‘serious drug offense.’” Id. When comparing the state conviction to the ACCA’s defini- tion of a “serious drug offense,” we look at the statutory definition of the state offense and not at the facts of the crime. Id. A state drug offense is “an ACCA predicate only if,” at the time the defend- ant committed his state-law drug crime, “the State’s definition of the drug in question matches the definition under federal law.” Brown, 602 U.S. at 123 (alteration adopted and quotation marks omitted); see Jackson, 55 F.4th at 850 (explaining that a prior convic- tion qualifies only if the state statute of conviction defines the of- fense in the same way as, or more narrowly than, the ACCA’s def- inition of a serious drug offense). To count as an ACCA predicate conviction, “the least culpable conduct prohibited under the state [statute] must qualify as a predicate offense, and all the controlled substances covered by the state [statute] must also be controlled USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 12 of 17

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substances under federal law.” United States v. Laines, 69 F.4th 1221, 1233 (11th Cir. 2023). But even assuming that Carter has shown a mismatch — that Georgia’s definition of cocaine was broader than the federal definition of the drug when he committed his cocaine distribution crimes in Georgia — in this situation, it doesn’t matter for purposes of the ACCA enhancement. Here’s why. As mentioned, all four of Carter’s convictions for cocaine distribution crimes in Georgia were violations of O.C.G.A. § 16-13- 30, which makes it “unlawful for any person to manufacture, de- liver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” O.C.G.A. § 16-13-30(b). The Georgia Controlled Substances Act defines a “controlled sub- stance” as “a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Sched- ules I through V of 21 C.F.R. Part 1308.” O.C.G.A. § 16-13-21(4) (emphasis added). The “and” is important. The Court of Appeals of Georgia has concluded that the “plain language” of that Georgia statute dictates that “a drug is a ‘controlled substance’ as defined in OCGA § 16-13-21 only if it is listed as such in both Georgia and federal schedules.” C.W. v. Dep’t of Human Servs., 836 S.E.2d 836, 837 (Ga. Ct. App. 2019) (first em- phasis added). That means a drug isn’t a “controlled substance” under Georgia law unless it is a controlled substance under federal USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 13 of 17

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law. 5 If the Georgia schedules more broadly define cocaine and its isomers than the federal schedules do, then any cocaine isomer not listed in the federal schedules isn’t a controlled substance as a mat- ter of Georgia law, and Carter wouldn’t have been convicted for selling or possessing cocaine with the intent to distribute it. In Duenas-Alvarez the Supreme Court explained: [T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal stat- ute requires more than the application of legal imagi- nation to a state statute’s language. It requires a

5 C.W. is a decision of the Court of Appeals of Georgia, and because

there is no indication that the Supreme Court of Georgia would interpret O.C.G.A. § 16-13-21 any differently, we are bound by the C.W. decision’s in- terpretation of it. See King v. Ord. of United Com. Travelers of Am., 333 U.S. 153, 158 (1948) (holding that on questions of state law “federal courts are bound by decisions of a state’s intermediate appellate courts unless there is persuasive evidence that the highest state court would rule otherwise”); United States v. Hill, 799 F.3d 1318, 1322–23 (11th Cir. 2015) (following for ACCA purposes a state intermediate court’s decision about “the elements of the underlying state offense” because there was no “persuasive indication that the highest court of the state would decide the issue differently”) (quotation marks omitted); see also CSX Transp., Inc. v. Gen. Mills, Inc., 82 F.4th 1315, 1326 n.6 (11th Cir. 2023) (“Absent certainty from the state’s highest court, we apply the decisions of the state’s intermediate court—here, the Georgia Court of Appeals—unless there is persuasive indication that the Georgia Supreme Court would rule other- wise.”) (alteration adopted and quotation marks omitted); Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982). USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 14 of 17

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realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). We’ve recog- nized that “[t]he simplest way” for a defendant to show a realistic probability that a state statute would be applied to conduct falling outside the definition of the federal crime “is to point to a case in which the state statute was used to prosecute such conduct.” Chamu v. U.S. Att’y Gen., 23 F.4th 1325, 1330 (11th Cir. 2022). But that’s not the only way, according to our precedent. See id. We’ve held that “an offender need not produce a sample pros- ecution ‘when the statutory language itself, rather than the appli- cation of legal imagination to that language, creates the realistic probability that a state would apply the statute to conduct beyond the generic definition.’” Id. (quoting Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013)). Even so, it’s still necessary to “show that any textual differences carry actual legal conse- quences.” Id. “[W]hen a state statute with different terminology is nonetheless no broader than the federal standard—no realistic probability of broader prosecution exists.” Id. (quotation marks omitted). We emphasized in Chamu that “[d]ifferent words alone are not enough.” Id. What we have in this case isn’t enough for Carter to prevail. See id. Even assuming that he has established some “textual differ- ences” in the federal and Georgia definitions of cocaine, there is no possibility of “actual legal consequences” under state law based on USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 15 of 17

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any difference in the definitions. See id. That’s because, as the code provision plainly states and the Court of Appeals of Georgia has authoritatively decided, as a matter of state law, cocaine that is not on the federal schedules is not a “controlled substance” in Georgia. See O.C.G.A. § 16-13-21; C.W., 836 S.E.2d at 837. We recognize that Duenas-Alvarez, Chamu, and Ramos are all immigration law decisions involving petitioners who bore the bur- den of establishing their entitlement to relief. See Duenas-Alvarez, 549 U.S. at 191 (discussing what Duenas–Alvarez had to show in order to establish entitlement to relief); Chamu, 23 F.4th at 1331 (recognizing petitioner Chamu’s burden and concluding that he failed to meet it); Ramos, 709 F.3d at 1071–72 (recognizing a peti- tioner’s burden and concluding that the plain language of the stat- ute under which Ramos was convicted “create[d] the ‘realistic probability’” that his prior conviction for shoplifting didn’t qualify as an “aggravated felony”). In the present case, by contrast, the government bore the burden at sentencing to show that Carter was subject to an ACCA enhancement. See United States v. Harris, 941 F.3d 1048, 1051 (11th Cir. 2019) (“The government bears the burden of establishing that an ACCA sentencing enhancement is warranted.”). But Carter does not contend that the government failed to establish the fact that he has four prior Georgia convictions for cocaine distribution crimes and that they occurred on separate occasions. See supra n.2. That’s undisputed. USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 16 of 17

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Regardless of the party shouldering the burden, in this case the Georgia statute and the C.W. decision interpreting it establish that there’s no possibility, much less a “realistic probability,” Du- enas-Alvarez, 549 U.S. at 193; Chamu, 23 F.4th at 1330, Ramos, 709 F.3d at 1072, that Carter was convicted of drug distribution crimes based on cocaine containing conformational isomers not on the federal drug schedule. If cocaine with conformational isomers isn’t on the federal drug schedules — and Carter insists that it isn’t — then cocaine with conformational isomers is not a controlled sub- stance under Georgia law, and it couldn’t have been the basis for any of Carter’s prior controlled substance distribution convictions. See O.C.G.A. § 16-13-30(b); id. § 16-13-21; C.W., 836 S.E.2d at 837. B. Our Precedent Forecloses Carter’s Other Definition-Based Argument Carter also argues that the inclusion of “ioflupane” in Geor- gia’s definition of cocaine mismatches Georgia drug convictions with the ACCA “serious drug offense” requirement. The basis for that argument is that in 2015 the federal drug schedules changed to exclude ioflupane. But three of Carter’s ACCA predicate drug offenses were committed in 2005 and 2012, which is before ioflupane was excluded from the federal drug schedules. And the ACCA requires only three qualifying prior con- victions, not four. See 18 U.S.C. § 924(e). To get around that problem, Carter wants us to consider only the federal schedules in effect at the time he was sentenced for his § 922(g) felon-in-possession offense in 2023. We can’t. Binding precedent requires us to look to the federal schedules in effect USCA11 Case: 23-13430 Document: 36-1 Date Filed: 07/06/2026 Page: 17 of 17

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when the defendant committed his state drug offense to determine whether his prior crime is a “serious drug offense” under the ACCA. See Brown, 602 U.S. at 123. That forecloses Carter’s argu- ment. Carter’s ioflupane argument also fails for the same reason his argument about conformational isomers fails. See supra at 1–16. AFFIRMED.