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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 ____________________ USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 2 of 23
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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 hundreds 1 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, be- ing 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 mini- mum penalty (or perhaps a maximum penalty), a person may de- cide to avoid engaging in that conduct. And even if she goes ahead, anyway, and violates the law, she knows in advance what the po- tential consequences could be. This due-process cornerstone of fair notice drives our deci- sion today under the Armed Career Criminal Act (“ACCA”).
1 Ancient Romans apparently identified the principle thousands of years ago. “Praemonitus, praemunitus” is a Latin proverb that translates loosely to “fore- warned, forearmed.” The Phrase Finder, https://www.phrases.org.uk/meanings/forewarned-is-forearmed.html (last visited June 9, 2022). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 3 of 23
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ACCA increases the sentence of, among others, a felon in unlawful possession of a firearm if that person has at least three prior convic- tions 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 re- quires us to decide which version of the Controlled Substance Act Schedules incorporated into ACCA’s definition of “serious drug of- fense” applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the de- fendant’s federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his pred- icate 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-posses- sion offense for which he is being sentenced. When we apply that iteration here, we conclude that Defendant-Appellant Eugene Jack- son does not qualify for ACCA’s sentence enhancement. Because the district court reached the opposite conclusion, we vacate Jack- son’s sentence and remand for resentencing. I. Jackson pled guilty to one count of being a felon in posses- sion of a firearm, in violation of 18 U.S.C. § 922(g)(1). According to the factual proffer supporting Jackson’s guilty plea, he unlaw- fully possessed the firearm on September 26, 2017. USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 4 of 23
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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 ap- plies to a conviction under 18 U.S.C. § 922(g) for firearm possession by a prohibited person if the defendant has three qualifying convic- tions for “a violent felony or a serious drug offense, or both, com- mitted on occasions different from one another.” 18 U.S.C. § 924(e)(1). In support of the ACCA enhancement the probation of- ficer recommended for Jackson, the PSI concluded Jackson had five qualifying predicate convictions: (1) a 1998 Florida conviction for battery on a law en- forcement 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 in- tent 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 guide- line 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 USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 5 of 23
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predicates: the 2003 Florida armed robbery and the 2012 aggra- vated 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 con- victions qualified as a third ACCA predicate offense. He acknowl- edged that “serious drug offense” means, as relevant here, “an of- fense 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 pre- scribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). But Jackson con- tended that the cocaine-related conduct that Fla. Stat. § 893.13 pro- hibited when both of Jackson’s cocaine-related convictions oc- curred encompassed, among other things, the sale of, or possession with intent to distribute, ioflupane (123I) (“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-
2 As relevant here, these offenses qualified as “violent felon[ies]” because they each were a felony that “has as an element the use, attempted use, or threat- ened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 6 of 23
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related convictions could not qualify as a “serious drug offense” un- der 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 io- flupane argument on the merits. Instead, it argued that Jackson’s convictions necessarily are “serious drug offenses” under our deci- sion in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), and the Supreme Court’s decision in Shular v. United States, 140 S. Ct. 779 (2020). Jackson disagreed. Ultimately, the district court agreed with the government. Based on that conclusion, it sentenced Jackson to ACCA’s man- dated 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). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 7 of 23
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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 ac- complish 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 com- pare 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 ana- lyze 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, 140 S. Ct. 779, 784 (2020) (emphasis and citation omitted). If so, we count the conviction as a “serious drug offense.” But if not, the USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 8 of 23
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conviction does not qualify as a “serious drug offense.” Finally, af- ter 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 geomet- ric 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 incor- porated into ACCA’s § 924(e)(2)(A)(ii) definition of “seri- ous 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) def- inition 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 cocaine-related convictions, the one in effect at the time of Jackson’s firearm possession for which he is being sentenced, or some other version. We conclude that due- process considerations require us to use the iteration of the Con- trolled Substances Act Schedules incorporated into § USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 9 of 23
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924(e)(2)(A)(ii)’s definition of “serious drug offense” in effect when Jackson possessed the firearm that undergirds his federal convic- tion pending before us. Under the Fifth Amendment, “[n]o person shall . . . be de- prived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “[C]onsonant . . . with ordinary notions of fair play and the settled rules of law,” due process contemplates criminal laws that “give ordinary people fair notice of the conduct [they] punish[].” Johnson v. United States, 576 U.S. 591, 595 (2015) (citation and quotation marks omitted). Fair notice allows “the or- dinary citizen to conform his or her conduct to the law.” City of Chicago v. Morales, 527 U.S. 41, 58 (1999). It also ensures uni- formity of enforcement by police and courts. See Giaccio v. Penn- sylvania, 382 U.S. 399, 403 (1966). And if an individual decides to break the law, anyway, the fair notice that due process requires ad- vises him of the maximum (and depending on the statute, mini- mum) statutory penalty he can expect, so he knows what he risks before he undertakes his crime. See Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989). After all, forewarned is forearmed. To be sure, the Supreme Court has emphasized these prin- ciples in cases with vague statutes that did not clearly identify the conduct that violated them or the potential sentence upon convic- tion. See, e.g., Johnson, 576 U.S. at 593. But these concepts apply with at least as much force when a statute does unambiguously de- lineate the conduct that violates it, and the defendant’s conduct does not satisfy that standard. USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 10 of 23
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If they did not, an ordinary person would receive no notice (let alone vague notice) that her conduct that falls outside the stat- ute’s parameters brings potential criminal consequences. And po- lice and courts would be free to punish individuals for conduct that the law does not criminalize. That type of situation would do vio- lence to the interests of “fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws” that due process protects. Rogers v. Tennessee, 532 U.S. 451, 460 (2001); see also Beckles v. United States, 137 S. Ct. 886, 892 (2017) (noting that due-process concerns require “statutes fixing sentences” to “specify the range of available sentences with ‘sufficient clarity’”) (citations omitted). Given these interests, the form of the Controlled Substances Act Schedules incorporated into § 924(e)(2)(A)(ii)’s definition of “serious drug offense” that was in place on September 26, 2017, when Jackson possessed the firearm here, must govern. That way, Jackson had notice at the time of his firearm-possession offense not only that his conduct violated federal law, but also of his potential minimum and maximum penalty for his violation and whether his prior felony convictions could affect those penalties. 2. The Controlled Substance Act Schedules that were incor- porated into § 924(e)(2)(A)(ii) as of the time Jackson pos- sessed the firearm here necessarily required a “serious [cocaine-related] drug offense” not to have involved io- flupane. USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 11 of 23
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As relevant here, ACCA defines a “serious drug offense” as “an offense under State law, involving . . . distributing, or pos- sessing with intent to . . . distribute, a controlled substance (as de- fined 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). This defi- nition requires a state crime to meet three criteria: (1) the offense under state law must “involve[e] . . . distributing, or possessing with intent to . . . distribute” (2) “a controlled substance (as defined in section 102 of the Controlled Substances Act . . .)”, (3) and the state offense must be punishable by a maximum term of imprison- ment of at least ten years. Id. The Supreme Court has already clarified the meaning of the first element. In Shular, the Court explained that “involving . . . distributing, or possessing with intent to . . . distribute” refers to “conduct” that the definition “necessarily require[s].” 140 S. Ct. at 785 (alteration omitted). And the third element—concerning the potential penalty for the offense of the prior conviction—is self-ex- planatory. That leaves us with the second element: “a controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)).” 18 U.S.C. § 924(e)(2)(A)(ii). Section 102, in turn, defines a “controlled substance” to “mean[ ] a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6). For its part, on September 26, 2017 (and currently), Schedule II included USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 12 of 23
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the following cocaine-related substances: “cocaine, its salts, optical and geometric isomers, and salts of isomers; ecgonine, its deriva- tives, their salts, isomers, and salts of isomers; or any compound, mixture, or preparation which contains any quantity of any of the substances referred to in this paragraph.” 21 U.S.C. § 812(c), Sched- ule II(a)(4). But it did not include ioflupane. Schedule II once included ioflupane (indeed, it did at the times Jackson was convicted of his two cocaine-related prior of- fenses). When that was the state of affairs, ioflupane was “by defi- nition, a schedule II controlled substance because it is derived from cocaine via ecgonine, both of which are schedule II controlled sub- stances.” Schedules of Controlled Substances: Removal of [123 I] Ioflupane from Schedule II of the Controlled Substances Act, 80 Fed. Reg. 54715, 54715. But it turns out that ioflupane has value in potentially diag- nosing Parkinson’s Disease. See id. at 54716–17. So in September 2015, under 21 U.S.C. § 811 3, the United States Attorney General “remove[d] the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including
3 Section 811(a)(2) 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 schedule.” See also 21 U.S.C. § 812(c), Schedule II(a) (listing controlled substances “[u]nless specifi- cally excepted”); id. § 812 Note (“For updated and republished schedules of controlled substances established by this section, see Code of Federal Regula- tions, Part 1308 of Title 21, Food and Drugs.”). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 13 of 23
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those specific to schedule II controlled substances, on persons who handle or propose to handle [(123 I)] ioflupane.” Id. at 54716. Since then, ioflupane has not been included on any federal drug Sched- ule. See 21 C.F.R. § 1308.12(b)(4)(ii) (2021) (“except[ing]” ioflupane from current Schedule II). As a result, ioflupane has not been a federally “controlled substance,” as defined in 21 U.S.C. § 802, since September 2015. And consequently, also since that time, a cocaine-related offense that involved only ioflupane has not involved a federally “con- trolled substance” for purposes of § 924(e)(2)(A)(ii). B. At the times of Jackson’s cocaine-related prior offenses for which he sustained convictions under Fla. Stat. § 893.13, the cocaine-related activity § 893.13 criminalized categorically included activity involving ioflupane. Having identified the components of a “serious drug of- fense,” we next consider the elements of Jackson’s prior state co- caine-related offenses under Fla. Stat. § 893.13. When we examine prior state convictions under the categorical approach, we analyze “the version of state law that the defendant was actually convicted of violating.” McNeill v. United States, 563 U.S. 816, 821 (2011). That is so because § 924(e)(2)(A)(ii)’s definition of “serious drug of- fense” refers to the term “previous conviction[]” in ACCA’s § 924(e)(1) enhancement language. See 18 U.S.C. § 924(e)(1) (apply- ing the enhancement to those “who violate[] section 922(g) of this title and ha[ve] three previous convictions . . . for . . . a serious drug offense, . . . committed on occasions different from one another”) USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 14 of 23
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(emphasis added). And “previous conviction[]” is a “backward- looking” term that requires us “to consult the law that applied at the time of that conviction.” McNeill, 563 U.S. at 820. That settled, we preface our review of the elements of the Jackson’s state cocaine-related convictions with a brief discussion of the distinction between the elements of a crime and the means of committing a single element. See Mathis v. United States, 579 U.S. 500, 504–05 (2016). The Supreme Court has explained that “‘[e]lements’ are the ‘constituent parts’ of a crime’s legal defini- tion—the things the ‘prosecution must prove to sustain a convic- tion.’” Id. at 504. Alternative means, on the other hand, are differ- ent ways to satisfy a single element. See id. at 505. When a statute lists alternative “elements,” rather than al- ternative “means” of satisfying an element, the statute is “divisi- ble.” See id. In that case, the “modified categorical approach” per- mits a court to consult a limited class of documents for the sole purpose of ascertaining the elements on which the defendant was actually convicted. Id. These documents include a plea agree- ment, the transcript of a plea colloquy, the charging document, jury instructions, or a “comparable judicial record of this infor- mation.” Shepard v. United States, 544 U.S. 13, 26 (2005). But when a statute lists alternative means of satisfying a sin- gle element, the standard categorical approach governs. Mathis, 579 U.S. at 517. So we must consider all listed means of satisfying the elements of the state offense to be able to compare that covered USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 15 of 23
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conduct at the third step of our analysis to ACCA’s definition of “serious drug offense.” With this understanding in mind, we turn to the elements of Fla. Stat. § 893.13 at the times of Jackson’s convictions. In 1998 and 2004, § 893.13(1)(a) prohibited, as relevant here, the sale of or pos- session with intent to sell a “controlled substance,” as defined in Schedules I through V, Fla. Stat. § 893.02(4). The only element of that crime in question is the meaning of “controlled substance.”4 In Guillen v. U.S. Attorney General, 910 F.3d 1174 (11th Cir. 2018), we held that, under Florida law, each category of substance separately enumerated in Florida’s Controlled Substance Schedules was an alternative controlled-substance “element.” See id. at 1182– 83. So for example, sale of marijuana and sale of heroin were dif- ferent crimes. See id. In contrast, we explained, when a drug schedule identified different formulations of the same category of substance, the alter- natives were different “means” of satisfying a particular “controlled substance” element. See id. Take the example we pointed to in Guillen: Florida courts have held that possession of marijuana is the same crime as possession of hashish, since “marijuana and
4 The Supreme Court has discussed other elements of § 893.13(1)(a), but they are not relevant here. See Shular, 140 S. Ct. at 784 (noting that under Section 893.13(1)(a), “‘knowledge of the illicit nature of a controlled substance is not an element,’ but lack of such knowledge ‘is an affirmative defense’”) (quoting Fla. Stat. § 893.101(2)). USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 16 of 23
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hashish were defined as the same controlled substance under Flor- ida law” in that both fell under the definition of “cannabis.” Id. at 1183 (citing Retherford v. State, 386 So. 2d 881, 882 (Fla. 1st DCA 1980)). Guillen establishes that the enumerated categories of “con- trolled substances” in Florida’s drug Schedules are alternative “ele- ments.” For that reason, we may consult Shepard documents to identify the “controlled substance” element for which Jackson was convicted. The criminal information submitted in the district court shows that his offenses related to “cocaine.” When Jackson was convicted of his cocaine-related offenses, § 893.03(2)(a)(4) set forth the formulations encompassed within the category of cocaine, according to Florida’s Schedule II: “[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine.” That description also included ioflupane. We know this because of Florida’s actions after the United States exempted ioflupane from the federal Schedule II. As of July 1, 2017, Florida followed suit and expressly exempted ioflupane from its Schedule II. 2017 Fla. Sess. Law Serv. Ch. 2017-110 (C.S.H.B. 505). Since that time, Florida’s Schedule II has included “[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine, ex- cept that these substances shall not include ioflupane I 123.” Fla. USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 17 of 23
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Stat. § 893.03(2)(a)(4) (2017) (emphasis added). This amended ver- sion of the statute expressly excepts ioflupane from qualifying as a Schedule II substance even though it implicitly acknowledges that ioflupane otherwise qualifies as “[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine.” So the amendment confirms that, before the addition of the emphasized phrase—when Jackson committed his § 893.13 offenses—Florida law criminalized sale and possession of ioflupane as a part of its prohibition on the sale and possession of “[c]ocaine or ecgonine, including any of their stereo- isomers, and any salt, compound, derivative, or preparation of co- caine or ecgonine.” Fla. Stat. § 893.03(2)(a)(4). Because § 893.03(2)(a)(4) identified “means,” not “ele- ments,” in 1998 and 2004, when Jackson was convicted under § 893.13(a)(1), a cocaine-related conviction could have been based on any one of these several formulations, including sale of or posses- sion with intent to distribute ioflupane. C. At the times of Jackson’s prior cocaine-related state convic- tions, Fla. Stat. § 893.13(a)(1)’s controlled-substance element was broader for cocaine-related offenses than ACCA’s “seri- ous drug offense” definition, so Jackson’s 1998 and 2004 co- caine-related convictions do not qualify as “serious drug of- fense[s].” We’ve sifted through ACCA’s definition of “serious drug of- fense” at the time Jackson unlawfully possessed the firearm for which he was convicted here. We’ve also sorted out the breadth USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 18 of 23
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of Fla. Stat. § 893.13(1)(a) at the times of Jackson’s cocaine-related convictions. Now, we must compare the two to see whether Jack- son’s prior cocaine-related convictions qualify as “serious drug of- fense[s]” under ACCA. Everyone agrees that Jackson’s 1998 and 2004 § 893.13 co- caine-related convictions satisfy the first and third criteria of a “se- rious drug offense”: they involve sale or possession with intent to distribute, and they are punishable by at least ten years’ imprison- ment. So we turn to the second criterion: whether Jackson’s con- victions involved a “controlled substance.” Because we apply the categorical approach in conducting this comparison, we must presume that Jackson’s cocaine-related convictions “rested upon nothing more than the least of the acts criminalized or the least culpable conduct.” United States v. Kush- maul, 984 F.3d 1359, 1364 (11th Cir. 2021) (internal quotation marks omitted). Here, that means we must assume that Jackson sold and possessed with intent to sell ioflupane. But as we have explained, on September 26, 2017—when Jackson possessed the firearm here—the federal Schedule II expressly excluded ioflupane as a cocaine-related controlled substance. Because ioflupane was not a “controlled substance” under federal law when Jackson com- mitted his § 922(g) firearm-possession offense, his state offenses did not “necessarily entail” the conduct set out in ACCA’s “serious drug offense” definition. See Shular, 140 S. Ct. at 784. As a result, Jackson’s cocaine-related prior convictions do not qualify under ACCA as “serious drug offense[s].” USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 19 of 23
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D. The two Smith cases, Shular, and McNeill do not require the conclusion that Jackson’s prior cocaine-related convictions qualify as “serious drug offense[s].” The government argues that United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) (“Smith 2014”), United States v. Smith, 983 F.3d 1213 (11th Cir. 2020) (“Smith 2020”), and Shular, 140 S. Ct. 779, require the conclusion that Jackson’s prior cocaine-related convictions qualify as “serious drug offense[s].” We disagree. We start with the two Smith cases and Shular. As relevant here, in Smith 2014, we considered whether Fla. Stat. § 893.13(1) was a “serious drug offense” under ACCA’s § 924(e)(2)(A)(ii), given that § 893.13(1) included no mens rea element on the illicit nature of the controlled substance. See Smith 2014, 775 F.3d at 1268. We concluded it was. A few years later, in Shular, the Supreme Court agreed. See Shular, 140 S. Ct. at 784–85. It explained that, when evaluating whether a state offense qualifies as a “serious drug of- fense,” we “should ask whether the state offense’s elements ‘neces- sarily entail one of the types of conduct’ identified in § 924(e)(2)(A)(ii).” Id. at 784 (emphasis omitted). Later in 2020, the same issue came before us again. Relying on Shular (and Smith 2014), we confirmed that Fla. Stat. § 893.13(1)’s lack of a mens rea element does not prevent it from qualifying as a “serious drug of- fense.” Smith 2020, 983 F.3d at 1223. The government argues that the two Smith cases bind us under the prior-panel-precedent rule (and Shular binds us as Su- preme Court precedent) to conclude that any conviction— USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 20 of 23
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including Jackson’s 1998 and 2004 ones—under § 893.13(1) satisfies the definition of “serious drug offense” in § 924(e)(2)(A)(ii). Not so. Under our prior-panel-precedent rule, “a prior panel’s hold- ing is binding on all subsequent panels unless and until it is over- ruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015). True, 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). The question of which version of the Controlled Substance Act’s drug Schedules governs under § 924(e)(2)(A)(ii)’s definition of “serious drug offense” was not even a twinkle in our eyes or in those of the Supreme Court in the Smith cases and in Shular. Ra- ther, in those three cases, the issue was whether Fla. Stat. § 893.13(1)’s lack of a mens rea element precluded it from qualifying as a “serious drug offense.” At most, the Smith panels and the Su- preme Court in Shular implicitly assumed all the other criteria to satisfy the federal definition of “serious drug offense” were met. But “assumptions are not holdings, Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1239 (11th Cir. 2016). Indeed, the Su- preme Court has recognized that where it has “never squarely ad- dressed [an] issue, and ha[d] at most assumed [the issue], [it is] free to address the issue on the merits” in a later case presenting it. USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 21 of 23
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Brecht v. Abrahamson, 507 U.S. 619, 631 (1993); see also United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (“The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point.”) (footnote omitted). Our sister circuits adhere to this principle as well. See, e.g., Fernandez v. Keisler, 502 F.3d 337, 343 (4th Cir. 2007) (“We are bound by hold- ings, not unwritten assumptions.”); Sakamoto v. Duty Free Shop- pers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985) (“In those cases, this court simply assumed that the commerce clause applied, but the issue was never raised or discussed. Such unstated 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) (citing cases finding that sub silentio holdings, unstated assumptions, and implicit rejections of arguments by prior panel are not binding cir- cuit precedent). Here, to the extent that Shular and Smith 2020 bind us to reach any conclusion, it’s that Jackson’s 1998 and 2004 § 893.13(1) cocaine-related convictions cannot qualify as “serious drug of- fense[s]” under § 924(e)(2)(A)(ii). That is so because Shular holds that we “should ask whether the state offense’s elements ‘neces- sarily entail one of the types of conduct’ identified in § 924(e)(2)(A)(ii)” to determine whether the state offense meets the definition of “serious drug offense.” 140 S. Ct. at 784 (emphasis omitted). And conduct involving the sale of or possession with USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 22 of 23
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intent to distribute cocaine-related substances under § 924(e)(2)(A)(ii) does not include conduct involving the sale of or possession with intent to distribute ioflupane. As for McNeill, there, as we have mentioned, the Supreme Court held that, in evaluating whether a prior state conviction qualifies as a “serious drug offense” under § 924(e)(2)(A)(ii), we must consider the offense under state law as it existed at the time of that prior state conviction, not later. 563 U.S. at 820. The Court grounded its analysis in the “previous convictions” language in § 924(e), which necessarily asks a “backward-looking question.” Id. But here, we are considering the federal standard to which we compare the answer to McNeill’s “backward-looking question” of what the defendant’s “previous [state] conviction[]” was. And that federal standard comes into play only because of the federal firearm-possession violation to which it is attached—a violation that occurred after the “previous conviction[].” Our question was not before the Court in McNeill. And McNeill’s reasoning, which relied on the language “previous convictions,” has no application here. As the First Circuit has explained, though McNeill holds that “the elements of the state offense of conviction are locked in at the time of that conviction,” it does “not also hold that ACCA’s own criteria for deeming a ‘previous conviction[]’ with those locked-in characteristics to be a ‘serious drug offense,’ [a]re themselves also locked in as of the time of the ‘previous conviction[].’” United States v. Abdulaziz, 998 F.3d 519, 525–26 (1st Cir. 2021) (citations and quotation marks omitted); see also United States v. Bautista, USCA11 Case: 21-13963 Date Filed: 06/10/2022 Page: 23 of 23
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989 F.3d 698, 703 (9th Cir. 2021) (“McNeill nowhere implies that the court must ignore current federal law and turn to a superseded version of the United States Code.”); United States v. Hope, 28 F.4th 487, 505 (4th Cir. 2022) (“McNeill does not prohibit us from considering changes to federal law for the purposes of the ACCA.”). In short, no prior precedent precludes our ruling today. IV. Because Jackson’s cocaine-related § 893.13 offenses do not qualify as “serious drug offenses” under ACCA, we vacate Jackson’s sentence and remand to the district court for sentencing without the ACCA enhancement. VACATED and REMANDED.