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FOR PUBLICATION
In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-13069 ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus
JEROME MILLER, JR., Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22-cr-00208-VMC-AAS-1 ____________________
Before JORDAN, JILL PRYOR, and HULL, Circuit Judges. JILL PRYOR, Circuit Judge: Appellant Jerome Miller, Jr., appeals the 180-month sen- tence imposed after he pleaded guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court determined USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 2 of 28
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that he had three prior convictions for serious drug offenses and imposed an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal, Miller challenges the ACCA enhancement. He argues that the district court erred in treating his three Florida state convictions for delivery of cocaine as serious drug offenses under ACCA because the Florida law under which he was convicted de- fined cocaine more broadly than federal law did. We agree. We therefore vacate Miller’s sentence and remand to the district court for resentencing. I. FACTUAL BACKGROUND In February 2022, Miller, together with two other individu- als, entered a victim’s home, pointed a firearm at him, and de- manded money and the victim’s truck. Miller and the others took the victim’s keys, forced him to sign over the title to the truck, and drove away in the truck. Two days later, law enforcement officers spotted Miller driving the stolen truck. They stopped and arrested him. When officers searched Miller, they found ammunition in his pocket. When they searched the truck, they found a firearm in its center console. Based on the evidence found in the searches, a grand jury charged Miller with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). 1 At that time, the
1 Miller faced separate state court charges for stealing the truck. In those pro-
ceedings, he pleaded guilty to grand theft. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 3 of 28
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statutory maximum sentence for possession of a firearm or ammu- nition by a felon was ten years’ imprisonment.2 See 18 U.S.C. § 924(a)(2) (2022). The government maintained that Miller faced an enhanced penalty range of 15 years to life under ACCA because he possessed the firearm and ammunition after sustaining three con- victions under state law for delivering cocaine. See id. § 924(e). Mil- ler pleaded guilty but objected to the ACCA enhancement. Before sentencing, a probation officer prepared a presen- tence investigation report (“PSR”). The PSR concluded that the ACCA enhancement applied because Miller’s three Florida convic- tions for delivering cocaine qualified as serious drug offenses. The PSR briefly described the three offenses. On February 20, 2017, Mil- ler sold 0.1 grams of cocaine to a confidential informant for $20. One week later, on February 27, 2017, he sold 0.5 grams of cocaine to a confidential informant for $20. And on March 24, 2017, he sold 0.2 grams of cocaine to a confidential informant for $20. The PSR reported that for this conduct Miller was charged in three separate cases in Florida state court with the unlawful delivery of a con- trolled substance in violation of Florida law. See Fla. Stat. § 893.13(1)(a). In August 2017, he entered a guilty plea in each case and was sentenced to a total of 60 months’ imprisonment with the sentences to run concurrently.
2 In June 2022, Congress raised the statutory maximum sentence to 15 years.
See Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 4 of 28
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After applying the ACCA enhancement, the PSR calculated Miller’s Sentencing Guidelines range as 135 to 168 months’ impris- onment. Because the enhancement made the statutory mandatory minimum sentence 15 years, longer than the maximum of this range, the PSR adjusted the guidelines range to 180 months (15 years). See U.S. Sent’g Guidelines Manual § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maxi- mum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Miller objected, arguing that his Florida convictions for de- livering cocaine did not qualify as serious drug offenses for ACCA purposes. He pointed out that, when he committed these offenses, Florida’s definition of cocaine included ioflupane, which the federal definition of cocaine excluded. Because Florida law defined cocaine more broadly than federal law, he argued that, under the categori- cal approach federal courts use to decide whether state offenses qualify as ACCA predicates, his Florida convictions did not qualify as serious drug offenses. 3 The government disagreed, arguing that Miller’s convic- tions for delivering cocaine qualified as serious drug offenses. By the time Miller pleaded guilty in state court, Florida had removed ioflupane from its definition of cocaine. Thus, the government
3 Although Miller objected to the PSR’s conclusion that his Florida convictions
qualified as ACCA predicates, he did not challenge the portion of the PSR list- ing the dates when he committed each offense and when he was convicted of each offense. The parties likewise do not challenge these dates on appeal. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 5 of 28
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argued, there was no mismatch between Florida and federal law, and Miller’s convictions qualified for the ACCA enhancement. The district court overruled Miller’s objection. Applying the categorical approach, the court concluded that his Florida cocaine convictions qualified as serious drug offenses because, when he was convicted, there was no mismatch between the definition of cocaine under Florida law and federal law. After applying the ACCA enhancement, the court imposed a sentence of 180 months. This is Miller’s appeal. II. STANDARD OF REVIEW We review de novo whether a conviction qualifies as a seri- ous drug offense under ACCA. United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016). III. DISCUSSION Federal law prohibits those who have been convicted of a felony offense from owning or possessing a firearm or ammuni- tion. See 18 U.S.C. § 922(g)(1). A defendant who violates § 922(g) faces an enhanced penalty range under ACCA if he “has three pre- vious convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Id. § 924(e)(1). The Supreme Court has explained that “Congress enacted ACCA to address the special danger posed by the eponymous ‘armed career criminal.’” Wooden v. United States, 595 U.S. 360, 375 (2022) (citation modified). “The theory of the statute is that those USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 6 of 28
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who commit a large number of fairly serious crimes as their means of livelihood are especially likely to inflict grave harm when in pos- session of a firearm.” Id. (citation modified). ACCA “targets a par- ticular subset of offenders”—those who have at least three times been convicted of violent felonies or serious drug offenses—and subjects them to a higher penalty range when they possess a fire- arm or ammunition. Id. (citation modified). The question before us is whether Miller’s three Florida con- victions for delivering cocaine qualify as serious drug offenses un- der ACCA. We hold that they do not. A. Determining Whether There Is a Mismatch Between State and Federal Law Under the Categorical Approach Under ACCA, a serious drug offense includes “an offense un- der State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§] 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). There- fore, a state offense qualifies as a serious drug offense when it meets three requirements: (1) it “involve[s] certain conduct: ‘manufactur- ing, distributing, or possessing with intent to manufacture or dis- tribute’”; (2) that conduct “involve[s] ‘a controlled substance (as de- fined in section 102 of the Controlled Substances Act (21 U.S.C. § 802))’”; and (3) the conduct involving the controlled substance is “punishable by a maximum term of imprisonment of at least ten years.” United States v. Jackson, 55 F.4th 846, 854 (11th Cir. 2022) USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 7 of 28
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(citation modified), aff’d sub nom., Brown v. United States, 602 U.S. 101, 123 (2024). This appeal turns on the second part of the definition of a serious drug offense: whether the conduct involves a controlled substance as defined in § 102 of the Controlled Substances Act.4 In assessing this requirement, we apply the categorical approach. See Shular v. United States, 589 U.S. 154, 157 (2020). With the categori- cal approach, a court “look[s] only to the state offense’s elements, not the facts of the case.” Id. at 160. 1. Whether There Is a Mismatch Here Between Federal and State Law—Making the ACCA Enhancement Inapplicable Under the Categorical Approach—Depends on When We Compare Them. Under the categorical 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 pun- ishes more conduct—than ACCA’s definition of a ‘serious drug of- fense.’” Jackson, 55 F.4th at 850. “[I]f there is conduct that would violate the state law but fall outside of ACCA’s serious drug offense definition, the state law cannot serve as a predicate offense—re- gardless of the actual conduct that resulted in the defendant’s con- viction.” Id. (citation modified). In other words, a state conviction “qualifies as a serious drug offense only if the state statute under
4 Because we conclude that the second part of ACCA’s definition of serious
drug offense is not satisfied, we do not address the other two parts. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 8 of 28
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which the defendant was convicted defines the offense in the same way as, or more narrowly than, the ACCA’s definition of a serious drug offense.” United States v. Conage, 976 F.3d 1244, 1250 (11th Cir. 2020). Our task, then, is to compare the Florida law under which Miller was convicted for his cocaine delivery offenses with ACCA’s definition of a serious drug offense to see whether the state offense is categorically broader than a serious drug offense under federal law. In making this comparison, we begin with federal law—here, the definition of “controlled substance.” ACCA defines controlled substance by reference to § 102 of the Controlled Substances Act. See 18 U.S.C. § 924(e)(2)(A)(ii). Section 102, in turn, defines a “con- trolled substance” to include any substance on the federal drug schedules. 21 U.S.C. § 802(6); see id. § 812. The “schedules are not static,” as “Congress has authorized the Attorney General to re- move drugs from (and add drugs to) those schedules.” Jackson, 55 F.4th at 855; see 21 U.S.C. § 811(a). The federal drug schedules set forth a long list of substances that qualify as controlled substances under federal law. See 21 U.S.C. § 812(c). 5 The schedules provide, in relevant part, that “[u]nless specifically excepted,” the following qualify as controlled substances: “cocaine, its salts, optical and geometric isomers, and
5 Revised versions of the federal schedules are published in the Code of Federal
Regulations, 21 C.F.R. §§ 1308.11–1308.15. See Jackson, 55 F.4th at 851 n.5. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 9 of 28
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salts of isomers,” as well as “ecgonine, its derivatives, their salts, isomers, and salts of isomers.” Id. § 812(c), Schedule II(a)(4). Before 2015, this definition covered ioflupane, which “is the active pharmaceutical ingredient in a drug used to diagnose pa- tients who are suspected to have Parkinson’s disease.” Brown, 602 U.S. at 108. We know that ioflupane was covered by the federal drug schedules because it is “derived from cocaine, a schedule II substance, via ecgonine” and was not specifically excepted. Sched- ules of Controlled Substances: Removal of Ioflupane from Sched- ule II of the Controlled Substances Act, 80 Fed. Reg. 54715, 54716 (Sept. 11, 2015); see 21 U.S.C. § 812(c), Schedule II(a)(4). In 2015, af- ter a scientific and medical evaluation of ioflupane, the administra- tor of the Drug Enforcement Administration (DEA), through final rulemaking, modified the federal schedules to remove ioflupane.6 See 80 Fed. Reg. at 54717. As a result, even though the federal schedules continue to cover cocaine and ecgonine as well as their “salts, isomers, derivatives and salts of isomers and derivatives,” they now include an express exception stating that the schedules “shall not include . . . ioflupane.” 21 C.F.R. § 1308.12(b)(4). Next, we examine the applicable state law to be compared with federal law. Florida law provides that “a person may not sell, manufacture, or deliver, or possess with intent to sell,
6 As we mentioned above, Congress authorized the Attorney General, through rulemaking, to remove any drug from the schedules. See 21 U.S.C. § 811(a)(2). The Attorney General, in turn, delegated this authority to the DEA administrator. See 28 C.F.R. § 0.100. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 10 of 28
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manufacture, or deliver, a controlled substance.” Fla. Stat. § 893.13(1)(a). A controlled substance is defined as “any substance named or described in Schedules I-V of [§] 893.03.” Id. § 893.02(4). As part of our inquiry, we must decide whether § 893.13(1)(a) is divisible as to drug type. We must determine whether the list of controlled substances sets forth alternative ele- ments—effectively creating a distinct offense for each type of sub- stance—or various factual means of committing a single offense. See Mathis v. United States, 579 U.S. 500, 505 (2016). We conclude under Florida law the drug type involved in the offense is an ele- ment and thus § 893.13(1)(a) is divisible as to drug type. See Guil- len v. U.S. Att’y Gen., 910 F.3d 1174, 1181–85 (11th Cir. 2018) (hold- ing that parallel provision in § 893.13(6) prohibiting possession of a “controlled substance” is divisible as to drug type because the iden- tity of the type of substance is an element of the offense under Flor- ida law). Accordingly, we treat Miller’s Florida convictions under § 893.13(1) as involving cocaine, not any controlled substance. And when we apply the categorical approach, we compare Florida’s def- inition of cocaine to ACCA’s serious drug offense definition. See Mathis, 579 U.S. at 506; Guillen, 910 F.3d at 1185. Accordingly, we now look at how Florida defines cocaine. Florida law generally defines cocaine to include: “[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, compound, derivative, or preparation of cocaine or ecgonine.” Fla. Stat. § 893.03(2)(a)(4) (2016). Before July 2017, this provision did not include any carveout to permit conduct involving ioflupane. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 11 of 28
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But like the federal government, Florida has changed its definition of cocaine over time. In July 2017, the Florida legislature legalized ioflupane, adding to the statutory definition of cocaine that the pro- hibited “substances shall not include ioflupane.” See 2017 Fla. Leg. Sess. Laws Serv. ch. 2017-110 § 1. 7 As we explained above, to determine whether Miller’s Flor- ida cocaine convictions qualify as serious drug offenses, we must compare the definition of cocaine set forth in Florida law to the federal drug schedules. Whether there is a mismatch between
7 As our above discussion shows, § 893.03(a)(2)(4) lists multiple substances that
qualify as “cocaine” (including ecgonine, a stereoisomer of cocaine, a stereoi- somer of ecgonine, a derivative of cocaine, or a derivative of ecgonine). See Fla. Stat. § 893.03(2)(a)(4). We thus also must consider whether Florida law is further divisible by type of cocaine. We conclude that it is not. Section 893.03(2)(a)(4) sets forth a single “statutory definition of cocaine [that] in- cludes” each of the listed substances. Chamu v. U.S. Att’y Gen., 23 F.4th 1325, 1331 (11th Cir. 2022). This understanding is consistent with decisions from the Florida state courts. See, e.g., Godfrey v. State, 947 So. 2d 565, 566–67 (Fla. Dist. Ct. App. 2006). In Godfrey, when a defendant was found in possession of both powder cocaine and a derivative of cocaine, he brought a double jeopardy challenge to his convictions. The Florida appellate court concluded that he could not be prosecuted for two separate offenses because § 893.03(2)(a)(4) did not “divide cocaine from its derivatives.” Id. at 567. Based on Godfrey, we con- clude that § 893.03(2)(a)(4) sets forth alternative means of committing a co- caine-related offense and is not further divisible by type of cocaine. See Mathis, 579 U.S. at 517–18 (directing that a federal court may look to state court deci- sions to determine whether listed items in a statute are elements or means); see also Simpson v. U.S. Att’y Gen., 7 F.4th 1046, 1056 (11th Cir. 2021) (looking to Florida state court decisions holding that conduct could result in only a sin- gle conviction for double jeopardy purposes to conclude that statutory lan- guage set forth alternative means, not elements). USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 12 of 28
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federal and state law depends on the point in time when we com- pare the relevant laws. If we compare the definitions of cocaine in place in February and March 2017, when Miller committed the state offenses, there is a mismatch because the federal schedules no longer treated ioflupane as a type of cocaine, while Florida law did. But if we take the district court’s approach and compare the defini- tions of cocaine in place when Miller was convicted of the state of- fenses, August 2017, there is no mismatch because both federal law and Florida law no longer treated ioflupane as cocaine.8 2. Supreme Court Precedent Confirms that We Look to a State Law’s Saving Provision to Determine Which Version of the State Law to Use When, Like Here, State Law Changes During the Time Between When the Defendant Commits the Offense and is Convicted. Miller contends that we should look to version of state law in place when he committed each state offense. The government now agrees. But this is a question of law, so we do not simply take
8 In other cases, defendants have argued that their Florida cocaine convictions
do not qualify as serious drug offenses because Florida law treats stereoiso- mers of cocaine as cocaine, while federal law covers only optical and geomet- ric isomers. See United States v. Laines, 69 F.4th 1221, 1233–34 (11th Cir. 2023) (rejecting defendant’s stereoisomer argument raised for the first time on ap- peal and holding that district court did not plainly err in applying ACCA en- hancement); see also Chamu, 23 F.4th at 1330–31 & n.2 (reviewing meaning of stereoisomers, optical isomers, and geometric isomers). Because Miller has not argued that his Florida cocaine convictions do not qualify as serious drug offenses based on the different treatment of stereoisomers under Florida and federal law, this issue is not before us, and we express no opinion on it. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 13 of 28
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the parties’ word for it. See United States v. Lee., 586 F.3d 859, 866 (11th Cir. 2009) (recognizing that the government’s concession that a defendant’s conviction did not qualify as an ACCA predicate “is not dispositive”). To decide which version of Florida law applies here, we consult two Supreme Court decisions for guidance. See McNeill v. United States, 563 U.S. 816, 818 (2011); Brown, 602 U.S. at 106. We begin with McNeill, where the Court confronted the question of which version of state law to consider when applying the categorical approach to determine whether an earlier state drug conviction qualified as a serious drug offense. In 2008, Clifton McNeill pleaded guilty to being a felon in possession of a firearm. McNeill, 563 U.S. at 818. At sentencing, the district court considered whether to apply an ACCA enhancement. Id. McNeill conceded that he had two convictions for violent felonies. Id. But for the en- hancement to apply, he needed to have a third conviction for a vi- olent felony or serious drug offense. McNeill argued that none of his six previous North Carolina convictions for trafficking cocaine qualified as a serious drug of- fense because each offense carried a maximum sentence of less than ten years. Id.; see 18 U.S.C. § 924(e)(2)(A)(ii) (stating that a se- rious drug offense is one “for which a maximum term of imprison- ment of ten years or more is prescribed by law”). McNeill did not dispute that when he committed these crimes between Octo- ber 1991 and September 1994, each carried a ten-year maximum sentence. McNeill, 563 U.S. at 818, 824. But he pointed out that in USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 14 of 28
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October 1994, about a month after he committed the final cocaine trafficking offense, North Carolina reduced the maximum sentence for trafficking cocaine to well below ten years. Id. at 818. McNeill argued that the sentencing court had to look to the penalties under current state law to determine whether a conviction qualified as a serious drug offense. Id. The district court disagreed. Id. Rather than look to the pen- alty range under North Carolina’s current law, the court consid- ered the “maximum sentence that applied to McNeill’s drug of- fenses at the time he committed them.” Id. at 819. Because a ten- year maximum sentence applied at the time each offense was com- mitted, the court applied an ACCA enhancement. Id. The Supreme Court affirmed but took a somewhat different approach. It explained that ACCA’s plain text “requires a federal sentencing court to consult the maximum sentence applicable to a defendant’s previous drug offense at the time of his conviction for that offense.” Id. at 820 (emphasis added). To answer the “backward- looking question” of whether an earlier conviction qualifies as a se- rious drug offense, a court must “consult the law that applied at the time of that conviction.” Id. The Supreme Court emphasized that “ACCA is concerned with convictions that have already occurred.” Id. And so, whether a “prior conviction was for an offense involv- ing manufacturing, distributing, or possessing with intent to man- ufacture or distribute[] a controlled substance can only be an- swered by reference to the law under which the defendant was con- victed.” Id. (citation modified). Similarly, the maximum sentence USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 15 of 28
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that could be imposed for an offense had to be “determined accord- ing to the law” under which the defendant was convicted. Id. The Court concluded that each of McNeill’s state convictions qualified as a serious drug offense because, under the version of state law that applied to each conviction, he faced a maximum sentence of ten years. Id. at 824. To explain how it reached this conclusion, the Court divided McNeill’s North Carolina cocaine convictions into two groups. First, it addressed his five convictions for selling cocaine that arose from offenses that McNeill committed in October 1991 and Febru- ary 1992. Id. It explained that “[a]t the time of McNeill’s Novem- ber 1992 conviction and sentencing” for these five offenses, “North Carolina law dictated that the maximum sentence for selling co- caine in 1991 and the maximum sentence for possessing cocaine with intent to sell in 1992 was 10 years in prison.” Id. As a result, these convictions qualified as serious drug offenses. Id. Second, the Court considered whether McNeill’s remaining North Carolina conviction for possessing cocaine with intent to sell qualified as a serious drug offense. The Court analyzed this convic- tion separately because, in the time between when McNeill com- mitted this offense in September 1994 and when he pleaded guilty in April 1995, North Carolina amended its law to reduce the maxi- mum penalty for the offense. Id. Given the reduced maximum pen- alty, a conviction under the new law would not qualify as a serious drug offense. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 16 of 28
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In considering whether McNeill’s sixth conviction qualified, the Court did not simply apply the penalty range that was on the books in North Carolina in April 1995 when McNeill was convicted of the offense. Instead, because state law had changed between when McNeill committed the offense and when he was convicted, it undertook a more nuanced analysis. When the Court reviewed the North Carolina law applicable to McNeill’s offense at the time of his conviction, it found that the legislation reducing the penalty range applied only to offenses “occurring on or after” the legisla- tion’s effective date of October 1, 1994. Id. at 824. The new law specified that for offenses occurring before the effective date, the amendment reducing the maximum sentence would not apply. Id. As a result, even though McNeill was convicted in April 1995—af- ter the amendment’s effective date—the Court concluded that his offense carried a maximum penalty of ten years because it was committed in September of 1994. The Court therefore concluded that “McNeill’s 1995 conviction was also for a ‘serious drug of- fense.’” Id. The Court’s analysis of this last offense showed that, despite its broad language referring to applicable state law “at the time of the defendant’s state conviction,” when state law govern- ing the offense changed between when the defendant committed the offense and when he was convicted, a federal court must follow state law on which version applied to the offense. Id. at 824–25. In Brown, the Court again grappled with the issue of which version of changing law to consult when applying the categorical approach. 602 U.S. at 106. The Supreme Court reviewed two con- solidated cases in which defendants received ACCA enhancements. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 17 of 28
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In each case, the defendant argued that at least one of his prior state convictions no longer qualified as a serious drug offense because, based on changes to the relevant drug schedules, the federal sched- ules no longer matched the applicable state law. In the first case, Justin Rashaad Brown argued that his Pennsylvania convictions for possessing marijuana with intent to distribute did not qualify as se- rious drug offenses, but the Third Circuit affirmed the application of the ACCA enhancement. Id. at 106–07. In the second case, Eu- gene Jackson argued that his Florida convictions for possession and distribution of cocaine did not qualify as serious drug offenses, but our Court affirmed the application of the ACCA enhancement. Id. at 107–08. In these cases, the Supreme Court considered “whether a state crime constitutes a ‘serious drug offense’ if it involved a drug that was on the federal schedules when the defendant possessed or trafficked in it but was later removed.” Id. at 106. To answer this question, the Court had to decide which version of the federal drug schedules to consult when determining whether a state conviction qualifies as a serious drug offense. It primarily considered two ap- proaches: consulting the federal schedules in effect (1) “when the USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 18 of 28
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defendant committed the state crime” 9 or (2) “when the defendant violate[d] the federal felon-in-possession statute.” Id. at 108–09. 10 The Court adopted the first approach, concluding that courts should look to the version of the federal schedules in place “when the state drug offense was committed,” rather than the ver- sion in place when the federal firearm offense was committed. Id. at 119; see also id. at 120 (stating that a sentencing court should con- sult the federal schedules in place “when the state crimes oc- curred”). The Court reached this conclusion despite acknowledg- ing that the operative language in § 924(e)(2)(A)(ii)—defining a se- rious drug offense as an offense under state law involving “a con- trolled substance (as defined in section 102 of the Controlled
9 In Jackson, we had held that ACCA incorporated the federal schedules in ef-
fect “when the defendant was convicted of his prior state drug offense.” 55 F.4th at 849 (emphasis added). But, in Brown, the Supreme Court described our de- cision in Jackson as holding that a court uses the federal schedules in place “when the defendant committed the state offense”—without acknowledging any difference between the date of commission of the offense and the date of conviction. Brown, 602 U.S. at 108 (emphasis added). 10 For the sake of completeness, we note that the Supreme Court also consid-
ered a third approach, offered by Brown: that a sentencing court should con- sult the federal schedules in effect when the defendant was sentenced for the federal firearm offense. See Brown, 602 U.S. at 110. The Court roundly rejected this approach. See id. at 110–11, 119–20; see also id. at 127 n.1 (Jackson, J., dis- senting) (also rejecting this approach). Because there has been no suggestion in this case that a sentencing court should consult the state schedules in effect when the defendant was sentenced for the state offense, we discuss this ap- proach no further. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 19 of 28
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Substances Act)”—“standing alone” did “not definitively answer” the question. Id. at 111 (citation modified). The Court reasoned that § 924(e)(2)(A)(ii), when read in context with other ACCA provisions, supported using the federal schedules in effect when the state offense was committed instead of when the federal offense was committed. In its analysis of statu- tory context, the Court relied on the organization of ACCA’s defi- nition of “serious drug offense.” It explained that the definition had two parts. One part, which we have discussed here, addresses when an earlier state conviction qualifies as a serious drug offense. Id. at 112 (citing 18 U.S.C. § 924(e)(2)(A)(ii)). The second part, which we have not yet discussed, addresses when an earlier federal conviction qualifies as a serious drug offense. This part of the definition says that “offenses under the Controlled Substances Act” may qualify as serious drug offenses. Id. (citing 18 U.S.C. § 924(e)(2)(A)(i)). The Court explained how to decide whether an earlier fed- eral conviction qualifies as a serious drug offense. To make this de- termination, a sentencing court consults the judgment from the earlier federal criminal case to see whether the defendant was con- victed of a serious drug offense. Id. Under this approach, “a later change in a federal drug schedule” has no effect on whether a pre- vious federal conviction qualifies as a serious drug offense. Id. The Court thus recognized that when a defendant’s previous conviction is for a federal drug offense, a court consults the version of the fed- eral drug schedules in effect at the time of the earlier drug offense (not the schedules in effect at the time of the federal firearm USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 20 of 28
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offense). The Court determined that it “would be unnatural” and “very strange” to adopt a different approach when the defendant’s previous drug conviction arose under state, not federal, law. Id. at 113. Based on this reasoning, it rejected the argument that in decid- ing whether a state offense qualifies as a serious drug offense, a sen- tencing court should look to the drug schedules in effect at the time of the federal firearm offense. The Supreme Court further concluded that using the drug schedules in place at the time of the state drug offense rather than the federal firearm offense “best fulfill[ed] ACCA’s statutory objec- tives.” Id. It explained that ACCA’s purpose is “to single out of- fenses of a certain level of seriousness.” Id. (citation modified). The Court reasoned that “[a] defendant’s history of criminal activity does not cease to exist merely because the crime was later rede- fined.” Id. at 113–14 (citation modified). A conviction for a drug of- fense that was “punishable by 10 years’ imprisonment augurs a risk of future dangerousness” even if the drug is later removed from the federal schedules. Id. at 114. Thus, the appropriate inquiry is “whether a prior offense met ACCA’s definition of seriousness— and thus suggested future danger—at the time it was committed.” Id. The Court pointed out that comparing the drug schedules in effect when the state offense was committed was consistent with its earlier decision in McNeill. It explained that McNeill recognized that ACCA requires a “backward-looking examination” of previous convictions “that bear on dangerousness.” Id. at 111 (quoting USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 21 of 28
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McNeill, 563 U.S. at 820). Given the nature of this inquiry, the Court reasoned that it “makes sense to ask . . . whether a prior offense met ACCA’s definition of seriousness—and thus suggested future danger—at the time it was committed.” Id. at 114. Looking to McNeill, the Court concluded that to decide whether a prior offense met ACCA’s definition of seriousness, a court should consider the drug schedules in effect when the underlying state offense was committed. See id. at 114–15. Given the Court’s conclusion that a sentencing court must consult the version of the federal drug schedules in effect when the defendant committed his underlying state offense, it affirmed the district courts’ application of ACCA enhancements for both Brown and Jackson. Id. at 123. With the Court’s decisions in McNeill and Brown in mind, we must decide the issue here: what happens when there is a change in state law between the defendant’s commission of the state of- fense and his conviction? At first blush, the Court’s decisions in McNeill and Brown seem to point in opposite directions. In McNeill, the Court directed that a sentencing court should “consult the law that applied at the time of [the state] conviction.” 563 U.S. at 820 (emphasis added). But in Brown, the Court said that a sentencing court should consult the schedules that applied “when the state drug offense was committed.” 602 U.S. at 119 (emphasis added). Having parsed both opinions, we conclude that they can be read in harmony. Both McNeill and Brown primarily addressed whether, when applying the categorical approach, a sentencing USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 22 of 28
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court should consider changes in the law that occurred after the defendant had committed and been convicted of the predicate of- fense. In each case, the Supreme Court’s answer was “no”—it re- soundingly rejected the defendants’ positions to the contrary. Only in McNeill did the Court address the narrower question we confront here. The Court addressed this question in McNeill when it ex- plained why McNeill’s sixth cocaine conviction qualified as a seri- ous drug offense. To review, McNeill committed this offense in September 1994—when North Carolina law applied a ten-year stat- utory maximum penalty to the offense. McNeill, 563 U.S. at 824. But by the time he pleaded guilty and was sentenced in April 1995, the state had reduced the statutory maximum. Id. Even though North Carolina’s new law reducing the penalty range for cocaine offenses was in effect when McNeill was convicted for the sixth of- fense, the Court did not apply the new penalty range when consid- ering whether this conviction qualified as an ACCA predicate. Id. Instead, it looked to a saving clause in the North Carolina legisla- tion that reduced the penalty range for cocaine offenses. See id. The saving clause clarified that the new penalty range applied only to offenses committed after the statute went into effect.11 See id.
11 Under the common law, the default rule is that a repeal or an amendment
narrowing a criminal law applies to any criminal case that was pending when the law changed. See Bell v. Maryland, 378 U.S. 226, 230 (1964) (“[W]hen the legislature repeals a criminal statute or otherwise removes the State’s condem- nation from conduct that was formerly deemed criminal, this action requires USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 23 of 28
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(explaining that according to the new legislation, “[p]rosecutions for, or sentences based on, offenses occurring before the effective date of this act are controlled by the statutes that would be applica- ble to those prosecutions or sentences but for the provisions of this act” (citation modified)). Notably, in applying the categorical ap- proach when the state law changed in the period between the com- mission of and conviction for the state law offense, the Court looked to state law and the applicable saving clause to determine what penalty range the state had applied to the conviction. We acknowledge that this analysis seems to conflict with the Court’s statements in Brown in which it appeared to adopt a bright- line rule that a sentencing court consult the federal schedules in effect when the defendant committed the predicate state offense. See 602 U.S. at 119. But, as we explained above, in Brown, the relevant drug schedules did not change between when the defendant com- mitted the state offense and when he was convicted. As a result, there was no question before the Court—and thus no holding—in Brown about what happens when the relevant law changes while the state charges were pending. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (“The holdings of a prior
the dismissal of a pending criminal proceeding charging such conduct.”). Not- withstanding the common law default rule, a saving clause in legislation may direct that a repeal of or amendment to a criminal statute does not apply to pending criminal cases. See id. at 232 (explaining that such a provision “‘saves’ state convictions from the common-law effect of supervening enactments”); see also Bradley v. United States, 410 U.S. 605, 608 (1973) (providing background on saving clauses). USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 24 of 28
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decision can reach only as far as the facts and circumstances pre- sented to the Court in the case which produced that decision.” (ci- tation modified)). * * * In sum, the Supreme Court’s decisions in McNeill and Brown, read together, tell us that when a sentencing court applies the cat- egorical approach to determine whether an earlier state drug con- viction qualifies as a serious drug offense, a court must look to the version of state law that applied at the time of the defendant’s state drug offense, not at the time of his federal firearm offense. In most cases, the state law will not have changed between when the de- fendant committed the state offense and when he was convicted of it, so it makes no difference whether a federal sentencing court looks to the state law when the defendant committed or was con- victed of the state drug offense. But when the relevant state law changes during the interval between commission and conviction of the offense, the federal sen- tencing court must perform a more nuanced analysis. It must con- sider whether, under state law, the change would apply to the of- fense. See McNeill, 563 U.S. at 824. Because nearly all states (and the federal government) have adopted general saving provisions, in ap- plying an ACCA enhancement the sentencing court usually will consult the version of the law in effect when the defendant USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 25 of 28
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committed the state offense. 12 See 1 U.S.C. § 109; United States v. Santana, 761 F. Supp. 2d 131, 143–44 (S.D.N.Y. 2011) (explaining that “most states [have] adopted general savings statutes . . . while a handful have incorporated savings provisions in their constitu- tions” (citation modified)); see also Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Crim- inal Legislation, 121 U. Pa. L. Rev. 120, 127–28 (1972) (explaining that 42 states have general saving statutes that apply to criminal prosecutions and three states have general saving clauses in their constitutions). B. Whether Miller's State Cocaine Convictions Qualify as Serious Drug Offenses Under ACCA At last, we apply these principles to determine whether Mil- ler’s state cocaine convictions qualify as serious drug offenses. When he committed these offenses in February and March 2017, Florida law treated ioflupane as a type of cocaine, while federal law did not, meaning that Florida’s definition of cocaine did not cate- gorically match federal law. But by the time he was convicted of these offenses in August 2017, Florida had legalized ioflupane, and Florida’s definition of cocaine was a categorical match. Unless there is a saving provision in Florida law that sets aside the
12 To put it more succinctly, in most cases a federal sentencing court applying
the categorical approach will look to the version of state law in effect when the defendant committed the state offense. But this will not be so if the state law changed between when the defendant committed the offense and when he was convicted of it, the change narrowed state law, and state law has no saving provision. USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 26 of 28
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common law presumption that an amendment narrowing a crimi- nal law applies to pending criminal cases, the amendment to Flor- ida law legalizing ioflupane would apply to Miller’s convictions be- cause his criminal cases were pending when the law changed. See Bell v. Maryland, 378 U.S. 226, 232 (1964). 13 When Miller committed the state cocaine offenses, Florida’s constitution had a saving provision providing that amendments to its criminal laws, such as the amendment legalizing ioflupane, did not apply to pending cases. See Fla. Const. art. X, § 9 (2017) (“Re- peal or amendment of a criminal statute shall not affect prosecu- tion or punishment for any crime previously committed.”).14 Given
13 We note that this case does not present a circumstance in which a state re-
moved a substance from its drug schedules and made that change retroactively applicable to defendants previously convicted and sentenced for that offense. We express no opinion about which version of state law we would consult for ACCA purposes in that circumstance. See McNeill, 563 U.S. at 825 n.1 (declin- ing to answer a similar question). 14 After Miller committed, was convicted of, and was sentenced for the state
cocaine offenses, Florida amended the saving provision in its state constitu- tion. It now states that the “[r]epeal of a criminal statute shall not affect pros- ecution for any crime committed before such repeal.” Fla. Const. art. X, § 9; see Jimenez v. Jones, 261 So. 3d 502, 504 (Fla. 2018) (explaining that after the amendment’s effective date on January 8, 2019, there was no longer “any pro- vision in the Florida Constitution that would prohibit the [Florida] Legislature from applying an amended criminal statute retroactively to pending prosecu- tions or sentences”). After the amendment, Florida’s legislature enacted a new saving clause, which went into effect on June 7, 2019. See 2019 Fla. Leg. Sess. Laws Serv. ch. 2019-63. The new saving clause states that an “amendment of a criminal statute” generally “operates prospectively” and does not abate “[a] USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 27 of 28
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this constitutional provision, Florida courts have held “that an amendment to a criminal statute does not affect the prosecution of, or the punishment for, a crime committed before the amendment” becomes effective. State v. Battle, 661 So. 2d 38, 39 (Fla. Dist. Ct. App. 1995). As a result, for Miller’s state cocaine offenses, we look to the version of Florida law “in effect at the time of the commis- sion of” these crimes—that is, the version that treated ioflupane as a type of cocaine. 15 Id. Under the categorical approach, we conclude that there was a mismatch between Florida’s definition of cocaine, which treated ioflupane as a form of cocaine, and the federal schedules, which did
violation of the statute based on any act or omission occurring before the ef- fective date of the act.” Fla. Stat. § 775.022(3)(b). But if the new legislation re- duces a “penalty, forfeiture, or punishment for a violation of a criminal stat- ute,” then “the penalty, forfeiture, or punishment, if not already imposed, must be imposed according to the statute as amended.” Id. § 775.022(4). The new saving clause does not apply to defendants, like Miller, who were sentenced before it went into effect on June 7, 2019. See Garnes v. State, 382 So. 3d 701, 707 (Fla. Dist. Ct. App. 2024); Pappas v. State, 346 So. 3d 1200, 1202 (Fla. Dist. Ct. App. 2022); Dean v. State, 303 So. 3d 257, 259 (Fla. Dist. Ct. App. 2020); Stapleton v. State, 286 So. 3d 837, 839 (Fla. Dist. Ct. App. 2019). 15 We recognize that the saving provision in McNeill appeared in the specific
bill that reduced the penalty range for cocaine offenses. See 563 U.S. at 824 (citing 1993 N.C. Sess. Laws, ch. 538 § 56). In contrast, Florida’s general saving provision appeared in its state constitution, see Fla. Const. art. X, § 9 (2017), rather than in the statute that legalized ioflupane, see 2017 Fla. Leg. Sess. Laws Serv. ch. 2017-110 § 1. But this distinction makes no difference. As the Su- preme Court long ago recognized, a saving provision in the specific repealing or amending statute has the same effect as a general saving provision. See United States v. Reisinger, 128 U.S. 398, 401 (1888). USCA11 Case: 23-13069 Document: 43-1 Date Filed: 11/06/2025 Page: 28 of 28
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not. Because Miller’s offense of conviction was broader than fed- eral law, we hold that his Florida convictions do not qualify as se- rious drug offenses under ACCA. The district court therefore erred as a matter of law in applying an ACCA enhancement. IV. CONCLUSION For the reasons above, we vacate Miller’s sentence and re- mand to the district court so that he may be resentenced without the ACCA enhancement. VACATED AND REMANDED.