The Supreme Court has granted certiorari in another pair of ACCA cases. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a defendant who possesses a gun faces a minimum 15-year sentence if he has three prior state or federal convictions that qualify as “violent” felonies or “serious drug offenses.” We have talked a lot recently about what qualifies as a “violent” felony. Now it is time to consider “serious drug offenses.”
Under § 924(e)(2)(A), a “serious drug offense” includes offenses “under 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.”
Courts use the categorical approach to decide if a prior state conviction involves a “controlled substance,” comparing the elements of that state drug offense to its federal counterpart. If the state offense is broader (meaning the state law covers drugs that are not federally scheduled) then the state offense does not qualify as a “serious drug offense.”
In other words, if the relevant state drug law criminalizes distributing a variety of drugs, including both cocaine and hemp, but federal law does not criminalize hemp, then the laws are not a categorical match and the state prior drug offense does not qualify as an ACCA predicate (even if, in fact, the defendant had cocaine).
But federal drug laws change. Hemp used to be a federally controlled substance, but then Congress decriminalized hemp. Which version of the federal drug law should a sentencing court consider to decide if a defendant qualifies for ACCA?
That is the exciting question the Supreme Court will take up in Brown v. United States, No. 22-6389, and Jackson v. United States, No. 22-6640. The cert petitions are available here and here. This question has divided the circuit courts, with some using federal law in effect at the time of the firearm offense, one using the law in effect at the time of the federal sentencing, and others using the federal law in effect at the time of the defendant’s prior state drug offense. Stay tuned!