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Serious Drug Offense Depends on Version of Controlled Substance Act

Serious drug offense case remanded to be sentenced without the ACCA enhancement by the Eleventh Circuit Court.

Serious drug offense case remanded to be sentenced without the ACCA enhancement.

United States v. Jackson, 21-13963 (11th Cir. 2022)

Jackson entered a guilty plea to one count of being a felon in possession of a firearm.  This was in violation of 18 U.S.C. 922(g). According to the factual basis in support of his plea, he unlawfully possessed the firearm in September 2017.

Presentencing Report and ACCA 

Probation subsequently found Jackson to be an armed career criminal, subjecting him to enhanced penalties under the Armed Career Criminal Act (“ACCA”). The PSR found Jackson to have three qualifying predicates of a violent felony and two of a serious drug offense. 

Jackson objected to the ACCA enhancement and argued that only two violent felonies properly qualified as predicates under the ACCA.  He maintained neither of his prior cocaine-related convictions qualified as a third ACCA predicate. 

District Court Sentenced Using ACCA Enhancement 

Jackson argued that the cocaine-related conduct that a Florida statute prohibited when Jackson was convicted included the sale or possession with intent to distribute ioflupane. However, when Jackson possessed the firearm in violation of 922(g), ioflupane was not a “controlled substance” under the definition of a “serious drug offense.” Ultimately, the district court overruled Jackson’s objection and sentenced him to the 15-year mandatory minimum under the ACCA. 

Appeal of Serious Drug Offenses

On appeal before the Eleventh Circuit, Jackson again argued his prior cocaine-related convictions failed to categorically qualify as “serious drug offenses” for ACCA purposes. The first question the court addressed was which version of 924(e)(2)(A)(ii) should be utilized the one in effect: 

  •  The one at the time of the cocaine-related convictions 
  • Or the one in effect at the time of Jackson’s possession of a firearm. 

The court concluded that due process requires the use of the Controlled Substance Act Schedules incorporated into the ACCA in effect when Jackson actually possessed the firearm.

This version of the Controlled Substance Act does not include ioflupane in its Schedule of cocaine-related substances. The Controlled Substance Act did include ioflupane at the time of Jackson’s state convictions.  Isoflupane was subsequently removed from Schedule II in 2015, and is no longer a federally controlled substance. 

Serious Drug Felony Question

The court next turned to whether Jackson’s prior drug-related convictions categorically qualified as serious drug felonies under the ACCA. Utilizing the categorical approach, the court determined that section 893.13, as it was at the time of Jackson’s convictions, included the sale and possession with intent to distribute ioflupane. When Jackson committed his federal offense, ioflupane was no longer a controlled substance. Therefore, Jackson’s cocaine-related prior convictions failed to categorically qualify as serious drug offenses.

Eleventh Circuit Remands Case for Resentencing

Accordingly, the Eleventh Circuit held Jackson’s cocaine-related section 893.13 offenses could not be utilized to enhance his sentence under the ACCA. The court vacated the district court’s judgment and remanded for resentencing without the ACCA enhancement.

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