Armed Career Criminal Act (ACCA): When Does a Prior Drug Offense Qualify?

Armed Career Criminal Act (ACCA): When Does a Prior Drug Offense Qualify?

Legal Sidebari

Armed Career Criminal Act (ACCA): When
Does a Prior Drug Offense Qualify?
November 16, 2023
Introduction
It is a federal crime for a convicted felon, among others, to possess a firearm. Under the Armed Career
Criminal Act (ACCA), the offense carries a mandatory minimum term of imprisonment when the offender
has three or more prior violent felony or serious drug (controlled substance) predicate convictions. The
ACCA defines a “serious drug offense” as (1) an offense punishable by a maximum term of imprisonment
of ten years or more that is (2)(i) an offense under federal controlled substance laws, or (ii) “an offense
under State law, involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of the [federal] Controlled Substance Act (21
U.S.C. [§] 802)).” According to the Supreme Court in a recent parallel “violent felony” case, to qualify
under the ACCA, the state law governing a prior offense must be no more inclusive than its federal
counterpart. Yet federal and state laws governing the meaning of controlled substances have ebbed and
flowed over the years, and the qualification of a prior offense as a serious drug offense may have ebbed
and flowed with them. As such, for purposes of qualifying serious drug offenses under the ACCA, timing
matters. The Supreme Court has determined that the ten-year penalty threshold for prior offenses must
have been in place at the time of the prior conviction. The lower federal courts disagree over whether a
prior offense must satisfy the other element of the definition of a “serious drug offense” at the time of
unlawful firearm possession (as in the Third, Eighth and Tenth Circuits), at the time of the federal firearm
offense sentencing (as in the Fourth Circuit), or at the time of the prior predicate offense (as in the
Eleventh Circuit). In Brown v. United States and Jackson v. United States, the Supreme Court has agreed
to consider the question.
ACCA: Overview of Prior “Serious Drug Offense”
Caselaw
The Supreme Court has had more than a few occasions to resolve disputes arising out of the ACCA.
Many cases have involved the meaning of the term “violent felony,” but a few have concerned the scope
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of the term “serious drug offense.” In Shular v. United States, the Court explained that the phrase “State
law, involving . . . a controlled substance” in the definition of “serious drug offense” refers to the statutory
elements of a prior state predicate offense rather than those of some composite, generic controlled
substance offense. Additionally, a unanimous Court in McNeill v. United States held that the “ten-year-
maximum penalty” element in the definition of a prior “serious drug offense” means the maximum
penalty available at the time of the prior conviction. However, the Court has not previously addressed
whether the definition of the controlled substance at issue must also be the definition in effect at the time
of prior conviction, at the time of unlawful firearm possession, or at the time of sentencing for the
unlawful firearm possession.
United States v. Brown and United States v. Jackson
Before the Supreme Court
This term, the Supreme Court is scheduled to hear United States v. Brown and United States v. Jackson,
which come from the Third and Eleventh Circuits, respectively. In 2019, a federal district court convicted
defendant Brown of being a felon in possession of a firearm in 2016, sentencing him in 2021. When
convicted, Brown had five prior state drug trafficking convictions, one involving cocaine and four
involving marijuana. Prior to 2018, state and federal law defined marijuana in much the same way. In
2018, however, Congress removed hemp from the federal definition, making state law, which continued
to include hemp, more inclusive and thus no longer an ACCA predicate. Brown argued that the federal
definition of marijuana at the time of sentencing (2021, after the 2018 amendment to the definition)
applied; the government argued for the definition at the time of the unlawful firearm possession (2016).
The Third Circuit accepted the government’s position.
A separate federal district court convicted defendant Jackson of felony possession of a firearm in 2017.
Jackson argued that two prior cocaine convictions, one in 1998 and the other in 2004, did not qualify as
“serious drug offenses” under the ACCA because in 2015 federal law changed, dropping ioflupane from
the class of cocaine-related controlled substances and making the state statutory provision more inclusive.
The Eleventh Circuit rejected Jackson’s argument, concluding that the qualifying dates for ACCA
purposes were the dates of Jackson’s prior convictions in 1998 and 2004 (i.e., before the disqualifying
shift in federal law in 2015).
Positions of the Parties
The Supreme Court granted review to consider whether the “serious drug offense” definition depends on
the federal drug schedules that were in effect at the time of the prior state drug offense, the time of the
federal firearm offense, or the time of federal sentencing for the firearm offense.
The government contends that the schedules in effect at the time of a defendant’s prior drug offense are
the proper reference point. Brown prefers the schedules in effect at the time of the defendant’s sentencing
for the firearm offense; Jackson favors the schedules in effect at the time the defendant commits the
firearm offense.
In amicus or “friend of the court” briefs, several stakeholder organizations take varying positions. At least
two organizations urge the Court to reject the Eleventh Circuit’s time-of-prior-drug-offense approach.
Another recommends the Court adopt either the firearm offense’s time-of-commission or time-of-
sentencing approach. Yet another suggests a time-of-sentencing approach and contends that “the ACCA’s
text forecloses application of a mandatory minimum in these cases.”

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In its Supreme Court brief, the government claims support from the Court’s McNeill and Mellouli v.
Lynch decisions, each of which endorsed a time-of-prior-conviction approach—McNeill with respect to
the ACCA’s ten-year penalty element and Mellouli for a comparably worded immigration offense. Brown
and Jackson respond that McNeill addresses a different element and should be treated differently, and that
the Mellouli statute is not materially comparable to the ACCA.
Brown, Jackson, and some of the amici also urge the Court to apply the rule of lenity as a last resort. The
rule calls for the Court to opt for the least punitive interpretation of a criminal statute in cases of
ambiguity. The government answers that an election in favor of the defendants here would disadvantage
defendants differently situated, and in any event, there is no ambiguity.
Congressional Options
The cases involve a matter of statutory interpretation. Subject to constitutional limitations, Congress is
free to enact legislation establishing the interpretation that it prefers. For example, should the Supreme
Court hold that the definition of a controlled substance in effect at the time of the defendant’s unlawful
firearm possession governs, Congress, if it disagrees with that interpretation, may declare statutorily that
going forward the definition of controlled substance in effect at the time of the defendant’s prior drug
conviction should govern. By the same token, should the Court hold that the definition of a controlled
substance in effect at the time of the defendant’s prior conviction governs, Congress might respond
legislatively that in future unlawful firearm possession prosecutions the definition of a controlled
substance in effect at time of the unlawful possession controls instead.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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