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| Molly Parmer |
In the consolidated cases Brown v. U.S.[1] and Jackson v. U.S.,[2] the question before the court was whether a previous state conviction counts as a serious federal drug offense to qualify for a 15-year sentencing enhancement under the Armed Career Criminal Act.
In a 6-3 decision, the justices upheld the lower courts and answered in the affirmative, with Justice Samuel Alito writing for the majority, joined by Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson wrote the dissent, joined by Justice Elena Kagan, and joined in part by Justice Neil Gorsuch.
The ruling resolves a circuit split and removes a significant sentencing hurdle for federal prosecutors.
One of the petitioners, Justin Rashaad Brown, was previously convicted of state marijuana offenses, "including four Pennsylvania convictions for possessing marijuana with intent to distribute." The other petitioner, Eugene Jackson, had 1998 and 2004 convictions from Florida for possession and distribution of cocaine. Both argued their convictions did not qualify as a serious drug offense under the ACCA.
Their cases involved an important and recurring question about the interplay between provisions of the ACCA and the Controlled Substances Act, and how to employ the "categorical approach" established by the Supreme Court in its 1990 Taylor v. U.S. decision[3] in the face of ever-changing federal drug laws.
The ACCA imposes a 15-year mandatory minimum penalty on defendants convicted of certain firearms violations if they have three or more prior convictions for a violent felony or a serious drug offense. The categorical approach is a method used to determine if an offense fits the specific definition of "violent felony" or "serious drug offense," and examines the statutory elements of an offense, rather than the facts of a defendant's actions when determining the nature of a predicate conviction.
Because the categorical approach looks to the elements of an offense when evaluating statutes, rather than the facts in the underlying case, sentencing courts may not look behind the elements of the statute of conviction to identify the means by which the defendant committed an offense.
Instead, courts must look to the least serious conduct encompassed by the statutory elements to determine if an overbroad statute qualifies as a predicate offense. If a state statute criminalizes a broader range of conduct than the applicable definition requires, the entire statute is categorically disqualified as a predicate offense.
As the court noted, "[a]t the time of Brown's marijuana convictions, the federal and Pennsylvania law definitions of marijuana matched. But while Brown's federal [firearm] charge was pending, Congress modified the federal definition of marijuana" through the Agricultural Improvement Act in 2018, which excluded hemp from the federal definition of marijuana.
Because Pennsylvania's definition of marijuana does not exclude hemp, and was therefore broader than the federal definition at the time of Brown's federal sentencing, "Brown argued that his [state] marijuana convictions no longer qualified as 'serious drug offense[s]' for purposes of the ACCA sentencing enhancement."
Similarly, by the time Jackson committed his federal firearm offense, Congress had amended the federal definition of cocaine by "legaliz[ing] a radioactive cocaine derivative called [123I]ioflupane that is the active pharmaceutical ingredient in a drug used to diagnose patients suspected to have Parkinson's disease."
Because "the federal and Florida definitions [of cocaine] were no longer a categorical match" at the time Jackson committed his federal firearms offense, he "argued that these prior convictions no longer qualified as 'serious drug offense[s].'"
In Brown's case and in Jackson's case, the U.S. District Court for the Middle District of Pennsylvania and the U.S. District Court for the Southern District of Florida, respectively, disagreed with their arguments and enhanced their sentences with the ACCA mandatory minimum.
Lower federal courts have struggled to determine which legal standard to apply to ACCA cases like Brown's and Jackson's, creating a three-way split among the appellate courts.
The U.S. Court of Appeals for the Eleventh Circuit was alone in using federal drug schedules that were in effect at the time of the prior state drug offense. The U.S. Courts of Appeals for the Third, Eighth and Tenth Circuits found the applicable schedules to be those in effect at the time of the federal firearms offense, while the U.S. Courts of Appeals for the First, Second, Fourth and Ninth Circuits instructed courts to look to the schedules in effect at the time of federal sentencing.
Here, the Supreme Court explained, "[t]he Government argue[d] that a prior state drug conviction qualifies if the federal and state definitions of the relevant drug matched when the defendant committed the state crime." Meanwhile, "Jackson argue[d] ... that the definitions must match when the defendant violates the federal" firearm statute. Brown argued "that the definitions must match when the defendant is sentenced for the federal" firearm offense.
The Supreme Court found that precedent, statutory context and the plain language of the statute supported the government's interpretation. The court explained that the "ACCA gauges what a defendant's 'history of criminal activity' says about his or her 'culpability and dangerousness,'" and thus "[t]he Government's interpretation ... best fulfills [the] ACCA's statutory objectives."
The court stated,
In Congress's view, defendants who have repeatedly committed ACCA predicate offenses are "especially likely to inflict grave harm when in possession of a firearm," so [the] ACCA imposes a higher punishment when they do so. Because a defendant's "history of criminal activity" does not "cease to exist" merely because the crime was later redefined ... it makes sense to ask whether a prior offense met ACCA's definition of seriousness at the time it was committed.
The court also noted that "the plain language of the statute points to the same conclusion," given that Title 18 of the U.S. Code, Section 924(e)(2)(A)(i), "defines a 'serious drug offense' to include, among other things, 'offense[s] under the Controlled Substances Act,'" and a "later change in a federal drug schedule does not change the fact that an offense 'under the [CSA]' is a 'serious drug offense.'"
The court also explained that "[t]he Government's interpretation would treat state offenses 'involving ... a controlled substance (as defined in [the CSA])' like those federal offenses 'under the [CSA],'" whereas the defendants' interpretations "would treat those federal and state offenses differently" — "the federal offense would remain an ACCA predicate, but the state offense would not."
In reaching its decision, the majority relied heavily on McNeill v. U.S.,[4] a 2011 case in which the court unanimously decided that federal sentencing courts should consult the maximum term of imprisonment applicable to a defendant's prior state drug offense at the time of the defendant's conviction when determining whether it is a serious drug offense under the ACCA.
The opinion stated, "As we explained in McNeill, ACCA requires sentencing courts to examine the law as it was when the defendant violated it, even if that law is subsequently amended."
The majority also cited a contemporaneous legislative drafting manual for the proposition that "[u]se of the present tense [in the ACCA], as opposed to the past, was likely a stylistic rather than a substantive choice."
Justice Jackson's dissent disagreed with the majority's interpretation of McNeill, arguing that "McNeill asked what state crime the defendant committed, while today's cases ask how ACCA assesses that conviction," and adding that "[t]he majority's opinion not only misconstrues McNeill, it also flatly contradicts other precedents from this Court outlining how to determine whether a prior state conviction qualifies as an ACCA predicate."
As to the legislative drafting of the ACCA, Justice Jackson wrote that the "wholly speculative suggestion that ACCA's drafters actually relied on the cited manual's tense-related directives conveniently comes out of nowhere," and "to the extent the majority now believes that verb tense is irrelevant when a court undertakes to interpret the text of a statute, it has taken a strange and unwarranted departure from this Court's ordinary interpretive practices."
In the part of her dissent not joined by Justice Gorsuch, Justice Jackson also provided the policy reasons behind tying the "serious drug offense" definition to the current schedule of controlled substances, noting that future dangerousness should not be assessed by reference to outdated drug schedules, and that sentencing courts should determine "whether a defendant's past crimes are considered serious by today's standards."
She also emphasized that the "15-year mandatory minimum that ACCA imposes is among the harshest mandatory penalties in the Federal Criminal Code."
The ruling resolves the circuit split and also removes a significant hurdle for federal prosecutors with the burden to prove that a defendant's prior convictions qualify under the categorical analysis for purposes of an ACCA enhancement.
Despite the dynamic nature of the CSA — which requires federal drug schedules to be updated and republished on an annual basis, and establishes a detailed process for substances to be added to, transferred between or removed from the federal drug schedules to account for scientific and medical developments — sentencing courts can now enhance a defendant's sentence by turning to outdated or superseded federal drug schedules that were in effect at the time of a prior state drug offense.
Even if the government later decriminalizes a substance, defendants charged with possessing a weapon and facing sentencing under the ACCA will be penalized for a conviction involving the decriminalized drug.
The ruling could also have implications for whether a defendant is considered a career offender under the U.S. sentencing guidelines, a designation that results in a higher sentencing calculation if someone commits a federal crime of violence or a controlled substance offense after two prior felony convictions for those crimes.
As they do when determining whether a prior conviction counts for an ACCA enhancement, sentencing courts engage in the categorical approach to assess whether a predicate offense is a controlled substance offense for purposes of a career offender enhancement.
While the circuits remain divided as to whether the time-of-consequences or time-of-the-conviction approach governs sentencing under the career offender guidelines, the Brown and Jackson decision bolsters federal prosecutors' arguments that a sentencing court can rely on an outdated drug schedule that was in place at the time of the predicate offense, rather than look to the drug schedule in effect at the time the defendant was sentenced for the federal crime.
Congress is free to enact legislation establishing the interpretation that it prefers, subject to constitutional limitations. It could respond legislatively that, in future federal firearm prosecutions, the definition of a controlled substance in effect at time of the unlawful possession controls instead.
For now, however, the court has removed an obstacle for the government in obtaining lengthy prison sentences for those with multiple convictions facing a federal prosecution.
Molly Parmer is the founder at Parmer Law.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] No. 22-6389.
[2] No. 22-6640.
[3] 495 U.S. 575 (1990).
[4] 563 US 816 (2011).