Opposition Brief — Kedrick Howard Hughes, Petitioner v. United States

Supreme Court briefJan 5, 2018

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No. 17-6015

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

KEDRICK HOWARD HUGHES, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

ELIZABETH D. COLLERY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTION PRESENTED

Whether petitioner’s two prior convictions for possession

with intent to sell or deliver cocaine, in violation of Fla. Stat.

§ 893.13(1) (2009), qualified as convictions for “serious drug

offense[s]” for purposes of the Armed Career Criminal Act of 1984,

18 U.S.C. 924(e)(2)(A)(ii).

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-6015

KEDRICK HOWARD HUGHES, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A2) is not

published in the Federal Reporter but is reprinted at 688 Fed.

Appx. 889.

JURISDICTION

The judgment of the court of appeals was entered on June 8,

2017.

The petition for a writ of certiorari was filed on September

6, 2017.

1254(1).

The jurisdiction of this Court is invoked under 28 U.S.C.

STATEMENT

Following a guilty plea in the United States District Court

for the Southern District of Florida, petitioner was convicted of

unlawful possession of a firearm and ammunition following a felony

conviction, in violation of 18 U.S.C. 922(g)(1) and 924(e)(1), and

possession with intent to distribute cocaine base, in violation of

21 U.S.C. 841(a)(1).

Pet. App. A1, A3.

He was sentenced to 262

months of imprisonment, to be followed by three years of supervised

release.

Id. at A4-A5.

The court of appeals affirmed.

Id. at

A1-A2.

On November 23, 2015, police officers on patrol in Miami,

Florida observed petitioner jogging while holding a clear bag

containing a green, leafy substance that appeared to be marijuana.

Presentence Investigation Report (PSR) ¶ 8.

Petitioner shouted “I

got it!

Ibid.

I got it!” to an unknown female.

foot chase, petitioner was detained.

PSR ¶ 9.

After a brief

During his arrest,

a loaded nine-millimeter Taurus pistol fell from petitioner’s

waistband.

Ibid.

A search incident to arrest uncovered baggies

containing 16.8 grams of cocaine base and 11.7 grams of marijuana,

as well as $621 in U.S. currency.

PSR ¶¶ 9, 11.

Petitioner pleaded guilty pursuant to a plea agreement to

unlawful possession of a firearm and ammunition following a felony

conviction, in violation of 18 U.S.C. 922(g)(1) and 924(e)(1), and

possession with intent to distribute cocaine base, in violation of

21 U.S.C. 841(a)(1).

Plea Agreement 1; see PSR ¶ 1.

In the plea

agreement, petitioner stipulated that he was subject to a mandatory

minimum term of 15 years of imprisonment on the felon-in-possession

charge

under

the

Armed

Career

Criminal

Act

1984

(ACCA),

18 U.S.C. 924(e).

Although the default statutory maximum term of

imprisonment

that

for

offense

ten

years,

see

U.S.C.

924(a)(2), the ACCA provides for a sentence of 15 years to life

where

the

“violent

defendant

has

three

felon[ies]

“serious

drug

prior

convictions

offense[s],”

for

U.S.C.

924(e)(1).

As relevant here, the ACCA defines a “serious drug

offense”

include

manufacturing,

“an

offense

distributing,

under

State

possessing

law,

with

involving

intent

manufacture or distribute, a controlled substance * * * 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).

As part of the plea

agreement, petitioner also waived any right to appeal his sentence

unless,

inter

statute.”

alia,

“exceed[ed]

the

maximum

permitted

Plea Agreement 5.

Prior to sentencing, the U.S. Probation Office prepared a

PSR.

As recounted in the PSR, petitioner’s criminal history

includes two prior convictions for possession with intent to sell

or deliver cocaine, in violation of Fla. Stat. § 893.13(1) (2009),

and one conviction for aggravated assault with a firearm or deadly

weapon, in violation of Fla. Stat. § 784.021 (1991).

PSR ¶¶ 28,

38, 39. 1

Consistent with petitioner’s stipulation in the plea

agreement, the PSR concluded that petitioner was subject to a

minimum sentence of 15 years of imprisonment under the ACCA because

his two prior convictions for possession with intent to sell or

deliver cocaine were “serious drug offense[s]” and his conviction

for aggravated assault with a deadly weapon was a “violent felony.”

PSR

¶¶ 44,

97;

Addendum

PSR

4-6.

addition,

given

petitioner’s criminal history category of VI and his adjusted

offense level of 34, the PSR calculated an advisory sentencing

range under the Sentencing Guidelines of 262 to 327 months of

imprisonment.

Petitioner

PSR ¶¶ 26, 43, 98.

objected

the

PSR.

Notwithstanding

his

stipulation in the plea agreement that he was subject to a 15-year

mandatory minimum under the ACCA, petitioner contended, inter

alia, that his two prior convictions for possession with intent to

sell or deliver cocaine, in violation of Fla. Sta. § 893.13(1)

(2009), did not qualify as predicate offenses for purposes of the

Petitioner’s other adult convictions include two

convictions for carrying a concealed firearm; two convictions for

resisting an officer without violence; two convictions for

unlawful possession of a firearm; one conviction for petit larceny;

two convictions for possession of cocaine; one conviction for theft

of service; one conviction for uttering a forged instrument; one

conviction for grand theft; two convictions for carrying a

concealed firearm; two convictions for violating career criminal

registration; one conviction for possession of marijuana; and two

convictions for knowingly driving with a suspended license.

PSR ¶¶ 29-37, 40-42.

ACCA.

Pet. Objections to PSR 2, 6-7.

In particular, petitioner

argued that a conviction under Section 893.13(1) is not a “serious

drug offense[]” because the Florida statute “does not require proof

that the defendant knew the illicit nature of the substance” he

intended to distribute.

Id. at 7. 2

At sentencing, the district court applied the ACCA’s 15-year

mandatory

minimum,

petitioner’s

relying

objections.

circuit

Sent.

Tr.

precedent

13-18.

The

rejecting

court

then

sentenced petitioner to 262 months of imprisonment on the felonin-possession charge and 240 months of imprisonment on the drug

possession charge, to run concurrently.

Id. at 21.

While noting

that petitioner’s sentence was at the bottom of the advisory

Guidelines range, the court clarified that it would “impose the

same sentence independent of these Sentencing Guidelines

based on the [18 U.S.C.] 3553(a) factors.”

* * *

Id. at 21-22.

The court of appeals affirmed in an unpublished per

curiam opinion.

Pet. App. A1-A2.

Relying on its decision in

Petitioner also objected to the PSR’s conclusion that he

was a career offender under the Sentencing Guidelines.

Pet.

Objections to PSR 2-7; see Sentencing Guidelines § 4B1.1(a).

Petitioner’s plea agreement waived any right to appeal the

determination of his sentencing guidelines range, Plea Agreement

5, and he does not renew his guidelines-related arguments in this

Court. In addition, in the district court and court of appeals,

petitioner contended that his conviction for Florida aggravated

assault is not a “violent felony” for purposes of the ACCA. Pet.

App. A1.

The petition for a writ of certiorari does not renew

that contention. See Pet. ii.

United States v. Smith, 775 F.3d 1262 (11th Cir. 2014), cert.

denied, 135 S. Ct. 2827 (2015), which held that “drug crimes

without an element of mens rea can be ‘serious drug offenses,’”

id. at 1264 (brackets and citation omitted), under the “plain

language”

the

ACCA,

id.

1267,

the

court

held

that

petitioner’s Florida convictions for possession with intent to

sell or deliver cocaine qualify as “serious drug offense[s].” Pet.

App. A1-A2 (citation omitted; brackets in original).

Thus, “[t]he

district court properly determined that [petitioner] had three

predicate

offenses

enhancement.”

and

therefore

qualified

for

the

ACCA

Id. at A2.

ARGUMENT

Petitioner renews his contention (Pet. 6-29) that his prior

Florida convictions for possession with intent to sell or deliver

cocaine are not “serious drug offense[s]” under the ACCA because

the Florida statute lacks a requirement that the defendant know

the illicit nature of the substance.

The court of appeals’

decision is correct and does not conflict with any decision of

this Court or of any other court of appeals.

This Court has

repeatedly and recently denied certiorari on the same or similar

issues involving Fla. Stat. § 893.13(1), and the same result is

warranted

here. 3

Moreover,

even

the

question

presented

See Kelly v. United States, 137 S. Ct. 2317 (2017) (No.

16-9320); Durham v. United States, 137 S. Ct. 2264 (2017) (No.

16-7756); Telusme v. United States, 137 S. Ct. 2091 (2017) (No.

warranted this Court’s review, this case presents a poor vehicle

for considering it because it is unlikely that petitioner would

receive a shorter sentence even if this Court were to hold that he

is not subject to the ACCA.

Petitioner’s convictions for possession with intent to

sell or deliver cocaine arise under Fla. Stat. § 893.13(1) (2009).

2002,

“the

[Florida]

Legislature

eliminated

from

the

definitions of the offenses in chapter 893 the element that the

defendant has knowledge of the illicit nature of the controlled

substance.”

State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012).

Section 893.13(1) does, however, require that the defendant have

“knowledge of the presence of the substance” for a conviction.

Id. at 416. Further, a separate section of Florida’s drug statutes

provides that “[l]ack of knowledge of the illicit nature of a

controlled substance is an affirmative defense.”

Fla. Stat. Ann.

§ 893.101(2) (2009); see also Adkins, 96 So. 3d at 415-416, 420421.

The ACCA defines a “serious drug offense” to include “an

offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled

16-6476);

15-9533);

15-7046);

15-6614);

14-9713);

14-9258).

Johnson v. United States, 136 S. Ct. 2531 (2016)

Chatman v. United States, 136 S. Ct. 852 (2016)

Bullard v. United States, 136 S. Ct. 523 (2015)

Smith v. United States, 135 S. Ct. 2827 (2015)

Smith v. United States, 135 S. Ct. 2333 (2015)

(No.

substance

* * *

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).

On its face, that definition covers Section 893.13(1), which

prohibits, inter alia, “possess[ing] with intent to sell,

or deliver, a controlled substance.”

* * *

As the Eleventh Circuit

explained in United States v. Smith, 775 F.3d 1262 (2014), cert.

denied, 135 S. Ct. 2827 (2015), “[n]o element of mens rea with

respect to the illicit nature of the controlled substance is

expressed

implied”

the

924(e)(2)(A)(ii)’s definition.

Petitioner

dictionary

meaning

appears

the

“plain

language”

Section

Id. at 1267.

words

acknowledge

that

used

924(e)(2)(A)(ii)”

“the

plain

supports the court of appeals’ conclusion that to qualify as a

“serious drug offense,” a statute need not require the State to

prove that the defendant knew the illicit nature of the substance

he possessed and intended to sell or deliver.

omitted).

Pet. 20 (emphasis

He contends (Pet. 17-23), however, that the context and

legislative history of the ACCA’s definition of a “serious drug

offense,” as well as the rule of lenity, cast doubt on the Eleventh

Circuit’s resolution of the question presented.

Petitioner is

incorrect.

Petitioner

first

argues

(Pet.

20)

that

the

ACCA’s

definition of “serious drug offense” in Section 924(e)(2)(A)(ii),

which applies to state convictions, must be read “in pari materia”

with the definition in Section 924(e)(2)(A)(i), which applies to

certain federal drug offenses punishable by “a maximum term of

imprisonment of ten years or more.”

Petitioner contends (Pet. 17,

19-20) that because the cross-referenced federal offenses require

proof

that

the

defendant

substance,

the

same

knew

the

requirement

controlled

must

nature

read

into

the

Section

924(e)(2)(A)(ii).

Petitioner’s

argument

disregards

Congress’s

decision to provide distinct definitions.

deliberate

Congress could have

drafted Section 924(e)(2)(A)(ii) to require that the elements of

state offenses match federal drug crimes; indeed, it did just that

in defining the term “aggravated felony” in the Immigration and

Nationality Act (INA), 8 U.S.C. 1101 et seq.

See Moncrieffe v.

Holder, 569 U.S. 184, 188 (2013); 8 U.S.C. 1101(a)(43)(B); 18

U.S.C. 924(c); 21 U.S.C. 802 (2012 & Supp. IV 2016).

Instead,

Congress defined “serious drug offense” in the ACCA to include all

state offenses that “involv[e] manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled

substance” so long as they have a maximum term of imprisonment of

ten years or more.

18 U.S.C. 924(e)(2)(A)(ii).

Because Section

893.13(1) meets that definition, it is a “serious drug offense”

regardless of whether it has a precise analogue in the federal

criminal code.

The

legislative

likewise

does

not

history

support

Section

petitioner’s

924(e)(2)(A)(ii)

argument.

Petitioner

points out (Pet. 18) that a House Report described the offenses

identified in Section 924(e)(2)(A)(ii) as “State drug trafficking

offenses.”

H.R. Rep. 99-849 at 4, 99th Cong., 2d Sess. 4 (1986).

Contrary to petitioner’s suggestion (Pet. 18-19), the Report’s use

of the term “trafficking” does not manifest any clear intent by

Congress

limit

Section

924(e)(2)(A)(ii)

only

those

possession with intent to distribute offenses that make knowledge

the

substance’s

illicit

nature

element

rather

than

affirmative defense.

The rule of lenity also has no application here.

Pet. 22-23.

See

That rule applies only in “situations in which a

reasonable doubt persists about a statute’s intended scope even

after resort to ‘the language and structure, legislative history,

and motivating policies’ of the statute.” Moskal v. United States,

498 U.S. 103, 108 (1990) (quoting Bifulco v. United States, 447

U.S. 381, 387 (1980)) (emphasis omitted).

The “plain language” of

Section 924(e)(2)(A)(ii), however, is “unambiguous.”

Smith, 775

F.3d at 1267.

Petitioner also is incorrect in arguing (Pet. 10-17, 23-

29) that the decision below conflicts with this Court’s decisions

or those of the other courts of appeals.

Petitioner first contends (Pet. 10-11) that the court of

appeals’ decision “disregards and conflicts with this Court’s

reasoning and holding in” Begay v. United States, 553 U.S. 137

(2008).

Begay addressed the ACCA’s definition of a “violent

felony,” rather than its definition of a “serious drug offense.”

Id. at 139.

Section 924(e)(2)(B) defines a “violent felony” to

include an offense that “has as an element the use, attempted use,

or threatened use of physical force against the person of another”

(the elements clause); “is burglary, arson, or extortion, [or]

involves use of explosives” (the enumerated-offense clause); or

“otherwise involves conduct that presents a serious potential risk

of physical injury to another” (the residual clause).

924(e)(2)(B)(i) and (ii).

18 U.S.C.

Begay held that a felony conviction for

driving under the influence of alcohol did not qualify as a violent

felony under the residual clause, 553 U.S. at 148, which this Court

subsequently invalidated on vagueness grounds in Johnson v. United

States, 135 S. Ct. 2551, 2556-2560 (2015).

In Begay, the Court explained that to qualify as a violent

felony

under

the

ACCA’s

residual

clause,

offense

must

“roughly similar, in kind as well as in degree of risk posed, to

the

[statutory]

examples”

burglary,

arson,

extortion,

and

offenses involving the use of explosives. 553 U.S. at 143.

The

Court described those listed offenses as “typically involv[ing]

purposeful, ‘violent,’ and ‘aggressive’ conduct,” id. at 144-145

(citation omitted), and it concluded that recidivist drunk driving

did not constitute a violent felony because it does not involve

“purposeful” conduct, see id. at 144-148. Contrary to petitioner’s

suggestion (Pet. 11), the decision below does not “conflict[]

directly with Begay.”

Begay is irrelevant here because Section

924(e)(2)(A)(ii) does not define a “serious drug offense” by

reference to the “example crimes” of “burglary, arson, extortion,

and crimes involving the use of explosives,” or any other crimes

requiring a particular mental state.

553 U.S. at 144.

Petitioner errs in contending (Pet. 11-13) that this

Court’s decision in Taylor v. United States, 495 U.S. 575 (1990),

requires an analysis of the “generic” definition of “serious drug

offense,” rather than an application of the ACCA’s statutory

definition of the term.

In Taylor, this Court considered the

definition of burglary, an undefined term in the ACCA’s enumeratedoffense clause, 18 U.S.C. 924(e)(2)(B)(ii), that “has not been

given a single accepted meaning by the state courts.”

580.

495 U.S. at

The Court adopted a “generic” definition of that crime.

at 598.

Id.

It has similarly considered the “generic” definition of

other crimes listed in Section 924(e)(2)(B)(ii) of the ACCA because

it has found that “[i]n listing those crimes,

* * *

Congress

referred only to their usual or (in our terminology) generic

versions -- not to all variants of the offenses.”

States, 136 S. Ct. 2243, 2248 (2016).

Mathis v. United

Contrary to petitioner’s argument (Pet. 11), Taylor does not

“compel[]” the same analysis here.

Unlike the ACCA’s enumerated

offenses, the ACCA’s definition of a “serious drug offense” does

not refer to the generic versions of specific substantive offenses.

Instead, it broadly covers offenses “under State law involving” a

set

listed

activities

“manufacturing,

distributing,

possessing with intent to manufacture or distribute, a controlled

substance.”

therefore

18 U.S.C. 924(e)(2)(A)(ii) (emphasis added).

“need

not

for

the

elements

Courts

‘generic’

definitions of ‘serious drug offense’ * * * because th[at] term[]

[is already] defined by a federal statute.”

Smith, 775 F.3d at

1267. 4

Petitioner further errs (Pet. 13-17, 26-29) in asserting

that the court of appeals’ decision conflicts with this Court’s

decisions in Staples v. United States, 511 U.S. 600 (1994), Elonis

v. United States, 135 S. Ct. 2001 (2015), and McFadden v. United

States, 135 S. Ct. 2298 (2015).

that

defendant

illegal,”

Staples

Relying on “the usual presumption

must

know

the

facts

that

held

that

the

federal

make

firearm

his

conduct

registration

For this reason, it is not relevant that at the time the

ACCA was enacted, most States defined the offense of possession

with intent to deliver to include a mens rea element. See Pet.

21. Nothing in the ACCA’s text suggests that Congress intended to

define a “serious drug offense” in reference to the prevailing

content of state statutes, rather than based on the statute’s own

clear definition.

offense requires proof that the defendant knew his weapon fell

within the statutory definition of a machine gun.

619.

511 U.S. at

This Court’s decision in Elonis, which held that the federal

threat statute requires a showing that the defendant intended to

issue threats or knew that his communications would be viewed as

threats, 135 S. Ct. at 2011, similarly rested on the principle

that, where a substantive criminal statute is “silent on the

required mental state,” the Court will “read into the statute” the

“mens rea which is necessary to separate wrongful conduct from

‘otherwise innocent conduct,’” id. at 2010 (citations and internal

quotation

marks

omitted);

accord

United

Video, Inc., 513 U.S. 64, 72 (1994).

States

X-Citement

And in McFadden, this Court

interpreted a federal drug statute -- the Controlled Substance

Analogue Enforcement Act of 1986, Pub. L. No. 99-570, Tit. I,

Subtit. E, 100 Stat. 3207-13 -- to require proof that the defendant

“knew he was dealing with ‘a controlled substance.’”

at 2302.

135 S. Ct.

Each of those decisions determined what mens rea is

required by a substantive federal criminal statute.

No comparable

principles apply in determining whether the ACCA requires a state

offense to have a particular mens rea in order to qualify as a

“serious drug offense” for purposes of enhancing the punishment

for a subsequent federal crime.

That determination does not

“separate wrongful conduct from ‘otherwise innocent conduct.’”

Elonis, 135 S. Ct. at 2010 (citations and internal quotation marks

omitted).

Contrary to petitioner’s suggestion (Pet. 15-17, 28), Dean v.

United States, 556 U.S. 568 (2009), did not hold that the Staples

presumption

must

applied

interpreting

enhancements like Section 924(e)(2)(A)(ii).

held

that

the

enhanced

sentence

sentencing

To the contrary, Dean

provided

U.S.C.

924(c)(1)(A)(iii) for certain firearms offenses “if the firearm is

discharged” did not require proof that the defendant intended to

discharge the weapon.

556 U.S. at 577.

Eleventh Circuit’s decision:

Dean thus supports the

it rejected application of the

presumption applied in Staples where the defendant was already

“guilty

unlawful

conduct

twice

over”

underlying

trafficking offense and the use, carrying, or possession of a

firearm in the course of that offense.

Id. at 576.

As Dean

explained, the accidental nature of the firearm discharge did not

render the defendant “blameless.”

Ibid.

The same is true here.

Petitioner was already guilty of being a felon in possession of a

firearm

and

offenses.

ammunition,

well

his

underlying

state

Even if his prior drug offenses made knowledge of the

controlled substance’s nature an affirmative defense, that fact

did not render him “blameless.”

Ibid.

Nor does the decision below conflict with any decision

of any other court of appeals.

See Pet. 23-26.

Petitioner points

(Pet. 23) to the Second Circuit's decision in United States v.

Savage, 542 F.3d 959 (2008), which held that a Connecticut drug

statute did not categorically qualify as a “controlled substance

offense” under Sentencing Guidelines § 4B1.2(b).

966.

542 F.3d at 964-

In Savage, the court concluded that the Connecticut statute

was too broad to categorically satisfy the Guidelines definition

because it encompassed fraudulent offers to sell a controlled

substance

where

distribute it.

the

defendant

lacked

See id. at 965-966.

any

actual

intent

The decision did not address

what, if any, mens rea the ACCA requires as to the illicit nature

of the substance.

Petitioner also is incorrect (Pet. 23-25) that the Fifth

Circuit’s treatment of the similar definition of a felony “drug

trafficking

offense”

Guidelines

the

commentary

2L1.2(b)(1)(A)(i),

conflicts with the decision below.

comment.

former

Sentencing

(n.1(B)(iv))

(2015)

In United States v. Fuentes-

Oyervides, 541 F.3d 286(2008) (per curiam), the Fifth Circuit

concluded that to constitute a predicate under that now-repeaeled

Guideline, a state statute must include “a mens rea requirement

concerning distribution,” and not proscribe only “mere possession

or transportation.”

Id. at 289.

That decision did not address

the defendant’s knowledge of the illicit nature of the substance

itself or the ACCA.

And as petitioner acknowledges (Pet. 25), the

Fifth Circuit’s decision in United States v. Martinez-Lugo, 782

F.3d 198 (per curiam), cert. denied, 136 S. Ct. 533 (2015), “did

not specifically address the implied mens rea requirement in the

[former Guidelines] definition of ‘drug trafficking offense,’”

much less the definition of “serious drug offense” under the ACCA.

Although

Martinez-Lugo

interpreted

possession

with

intent

distribute for purposes of the Guidelines in light of the offense’s

“generic,

contemporary

meaning,”

concluded

only

that

the

definition was satisfied even if the defendant lacked intent to

sell the substance for remuneration.

782 F.3d at 202 (citations

omitted). 5

Finally, even if review of the question presented were

otherwise warranted, petitioner’s case presents a poor vehicle for

considering it.

A decision in petitioner’s favor would likely

have no effect on the length of his sentence.

The district court

sentenced

petitioner

concurrent

terms

262

months

imprisonment on the felon-in-possession charge and 240 months of

Petitioner’s reliance (Pet. 24) on the Fifth Circuit’s

decisions in United States v. Medina, 589 Fed. Appx. 277 (2015)

(per curiam), and Sarmientos v. Holder, 742 F.3d 624 (2014), is

misplaced.

Those decisions involved the INA’s definition of

“aggravated felony,” which defines “drug trafficking crime[s]” to

include state laws that “proscribe[] conduct [that would be]

punishable as a felony under” the federal Controlled Substances

Act, 21 U.S.C. 801 et seq. Moncrieffe, 569 U.S. at 188 (citations

omitted); see Medina, 589 Fed. Appx. At 278; Sarmientos, 742 F.3d

at 627-631. Those decisions thus do not inform the interpretation

of the ACCA’s definition of “serious drug offense,” which is not

defined by analogy to the federal drug laws.

See 18 U.S.C.

924(e)(2)(A)(ii); pp. 8-9, supra.

imprisonment

the

drug

possession

charge

(which

20-year statutory maximum, see 21 U.S.C. 841(b)(1)(C)).

A4.

carries

Pet. App.

At sentencing, the court stated that it viewed petitioner’s

sentence as appropriate under 18 U.S.C. 3553(e), regardless of his

advisory Sentencing Guidelines range.

Court

were

conviction

had

hold

that

10-year

Accordingly, even if this

petitioner’s

statutory

felon-in-possession

maximum,

see

U.S.C.

924(a)(2), the district court would likely resentence him to the

same aggregate 262-month sentence by running the new, lower felonin-possession sentence consecutively with part of the 240-month

sentence on the federal drug charge.

See Sentencing Guidelines

§ 5G1.2(d) (“If the sentence imposed on the count carrying the

highest statutory maximum is less than the total punishment, then

the sentence imposed on one or more of the other counts shall run

consecutively, but only to the extent necessary to produce a

combined sentence equal to the total punishment.”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

ELIZABETH D. COLLERY

Attorney

JANUARY 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.