Petitioners Brief — Eddie Lee Shular, Petitioner v. United States

Supreme Court briefSep 25, 2019

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No. 18-6662

IN THE

Supreme Court of the United States

___________

EDDIE LEE SHULAR,

UNITED STATES,

___________

Petitioner,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

___________

BRIEF FOR PETITIONER

___________

JEFFREY T. GREEN

DAVID W. MCALOON

CHRISTOPHER S. ROSS

TJ HERRON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

SUSAN E. PROVENZANO

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

RANDOLPH P. MURRELL

FEDERAL PUBLIC

DEFENDER

RICHARD M. SUMMA*

ASSISTANT FEDERAL

DEFENDER

227 N. Bronough Street,

Suite 4200

Tallahassee, FL 32301

(850) 942-8818

richard_summa@fd.org

Counsel for Petitioner

September 25, 2019

* Counsel of Record

QUESTION PRESENTED

Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires

the same categorical approach used in the determination of a “violent felony” under the Act.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

TABLE OF AUTHORITIES .................................

INTRODUCTION .................................................

OPINIONS BELOW .............................................

JURISDICTION ...................................................

STATUTORY PROVISIONS INVOLVED ...........

STATEMENT OF THE CASE..............................

SUMMARY OF THE ARGUMENT .....................

ARGUMENT .........................................................

I. THE TEXT, STRUCTURE, AND HISTORY OF § 924(e) REQUIRE COURTS TO

APPLY AN OFFENSE-MATCHING CATEGORICAL APPROACH TO DETERMINE

WHETHER A STATE OFFENSE QUALIFIES AS A “SERIOUS DRUG OFFENSE”

UNDER ACCA ..............................................

A. Through § 924(e)’s Plain Text, Congress

Indicated That Certain State Drug Offenses Would Be ACCA Predicates ..........

B. Section 924(e)(2)’s Structure Supports

the Plain-Text Reading .............................

C. Legislative History Confirms Congress’s

Intent .........................................................

D. The Rule of Lenity Favors Mr. Shular’s

Interpretation............................................

iii

TABLE OF CONTENTScontinued

II. SECTION 924(e)(2)(A)(ii)’S LIST OF

QUALIFYING

OFFENSES

UNDER

STATE LAW MUST INCLDE A MENS

REA REQUIREMENT ..................................

Page

III. THE ELEVENTH CIRCUIT’S APPROACH

HAS NO CLEAR BOUNDARIES AND

LEADS TO INDETERMINDATE OUTCOMES ..........................................................

IV. THE CATEGORICAL APPROACH EXCLUDES MR. SHULAR’S FLORIDA

CONVICTIONS AS “SERIOUS DRUG

OFFENSES” ..................................................

CONCLUSION .....................................................

APPENDIX

TABLE OF AUTHORITIES

CASES

Page

Begay v. United States, 553 U.S. 137

(2008) .........................................................

Chambers v. United States, 555 U.S. 122

(2009) .........................................................

Chicone v. State, 684 So. 2d 736 (Fla.

1996) ..........................................................

Dawkins v. State, 547 A.2d 1041 (Md.

1988) ..........................................................

Descamps v. United States, 570 U.S. 254

(2013) ......................................................... 5, 8

Erlengbaugh v. United States, 409 U.S. 239

(1972) .........................................................

Esquivel-Quintana v. Sessions, 137 S. Ct.

1562 (2017) ................................................

Gonzales v. Oregon, 546 U.S. 243 (2006).....

Gustafson v. Alloyd Co., Inc., 513 U.S. 561

(1995) .........................................................

James v. United States, 550 U.S. 192

(2007) .........................................................

Johnson v. United States, 135 S. Ct. 2551

(2015) ......................................................... 8, 27

Leocal v. Ashcroft, 543 U.S. 1 (2004) ...........

Lockhart v. United States, 136 S. Ct. 958

(2016) ......................................................... 16, 29

McFadden v. United States, 135 S. Ct. 2298

(2015) ......................................................... 22, 24

Mellouli v. Lynch, 135 S. Ct. 1980

(2015) ........................................................ passim

Moncrieffe v. Holder, 569 U.S. 184 (2013) ... 5, 14

Quarles v. United States, 139 S. Ct. 1872

(2019) ......................................................... 7, 22

Rehaif v. United States, 139 S. Ct. 2191

(2019) ......................................................... 7, 23

TABLE OF AUTHORITIEScontinued

Page

Russello v. United States, 464 U.S. 16

(1983) .........................................................

Scheidler v. Nat’l Org. for Women, Inc., 537

U.S. 393 (2003) ......................................... 5, 15

Sessions v. Dimaya, 138 S. Ct. 1204

(2018) ......................................................... 27, 28

In re Standard Jury Instructions in Crim.

Cases (No. 2005-3), 969 So. 2d 245 (Fla.

2007) ..........................................................

Staples v. United States, 511 U.S. 600

(1994) ......................................................... 7, 23

State v. Dominguez, 509 So. 2d 917 (Fla.

1987) ..........................................................

Sykes v. United States, 564 U.S. 1 (2011)....

Taylor v. United States, 495 U.S. 575

(1990) ....................................................... passim

United States v. Alaska, 521 U.S. 1

(1997) .........................................................

United States v. Brandon, 247 F.3d 186

(4th Cir. 2001) ........................................... 28, 29

United States v. Davis, 139 S. Ct. 2319

(2019) ........................................................ passim

United States v. Eason, 919 F.3d 385 (6th

Cir. 2019) ................................................... 25, 26

United States v. Gibbs, 656 F.3d 180 (3d

Cir. 2011) ...................................................

United States v. Hayes, 555 U.S. 415

(2009) .........................................................

United States v. Mulkern, 854 F.3d 87 (1st

Cir. 2016) ...................................................

United States v. Stitt, 139 S. Ct. 399

(2018) ......................................................... 7, 22

TABLE OF AUTHORITIEScontinued

Page

United States v. White, 837 F.3d 1225 (11th

Cir.

2016)

(per

curiam),

cert.

denied ............................................ 8, 24, 25, 28

Whitman v. Am. Trucking Ass’ns, 531 U.S.

457 (2001) ..................................................

COURT DOCUMENTS

Judgment, United States v. Shular, No.

4:17-CR-37 (N.D. Fla. Jan. 22, 2018),

ECF No. 32 ................................................

Presentence Investigation Report, United

States v. Shular, No. 4:17-CR-37 (N.D.

Fla. Jan. 12, 2018), ECF No. 30 (under

seal)............................................................

Response Letter to Presentence Investigation Report, United States v. Shular, No.

4:17-CR-37 (N.D. Fla. Dec. 29, 2017),

ECF No. 29 (under seal) ...........................

Transcript of Sentencing, United States v.

Shular, No. 4:17-CR-37 (N.D. Fla. Jan.

19, 2018) .................................................... 3, 4

STATUTES

18 U.S.C. § 924(a)(2) ....................................

18 U.S.C. § 924(e)(1).....................................

18 U.S.C. § 924(e)(2).....................................

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

18 U.S.C. § 924(e)(2)(B)(i) ............................

18 U.S.C. § 924(e)(2)(B)(ii) ........................... 14, 17

18 U.S.C. § 1961(1)(A) ..................................

vii

TABLE OF AUTHORITIEScontinued

Page

21 U.S.C. § 802 .............................................

21 U.S.C. § 841(a) ............................. 10, 17, 21, 22

21 U.S.C. § 959(b)(1) .................................... 10, 17

46 U.S.C. § 70501 .........................................

46 U.S.C. § 70502 .........................................

46 U.S.C. § 70503 .................................... 10, 16, 17

46 U.S.C. § 70504 .........................................

46 U.S.C. § 70505 .........................................

46 U.S.C. § 70506 .........................................

46 U.S.C. § 70507 .........................................

46 U.S.C. § 70508 .........................................

1970 Uniform Controlled Substance Act,

§ 401(a) ......................................................

Ala. Code § 13a-12-211.................................

Ala. Code § 13a-12-217.................................

Ala. Code § 13a-12-218.................................

Alaska Stat. § 11.71.021 ..............................

Alaska Stat. § 11.71.030 ..............................

Alaska Stat. § 11.71.040 ..............................

Alaska Stat. § 11.71.050 ..............................

Alaska Stat. § 11.71.060 ..............................

Ariz. Stat. § 13-3407(A) ................................

Cal. Health & Safety Code § 11351 .............

Cal. Health & Safety Code § 11379.6 ..........

Controlled Substances Act, 21 U.S.C. § 801

et seq. ......................................................... 16, 24

Controlled Substances Import and Export

Act, 21 U.S.C. § 951 et seq. .......................

D.C. Code § 48-904.1(a)(1) ...........................

Del. Code Ann. tit. 16, § 4753(1) ..................

Del. Code Ann. tit. 16, § 4754(1) ..................

Fla. Stat. § 893.101 ......................................

viii

TABLE OF AUTHORITIEScontinued

Ga. Code Ann. § 16-13-30.............................

Haw. Rev. Stat. Ann. § 712-1241 .................

Haw. Rev. Stat. Ann. § 712-1242 .................

Haw. Rev. Stat. Ann. § 712-1243 .................

Idaho Code § 37-2732(a)...............................

720 Ill. Comp. Stat. Ann. 570/401 ...............

Me. Rev. Stat. Ann. tit. 17-A, § 1103.1-A ....

Me. Rev. Stat. Ann. tit. 17-A, § 1101.17 ......

21 R.I. Gen. Laws § 21-28-4.01 ....................

Page

OTHER AUTHORITIES

H.R. Rep. No. 99-849 (1986) ................... 6, 19, 20

Federal and State Controlled Substances

Acts (CSAs), in Handbook of Drug Control in the United States 349 (James A.

Inciardi, ed., 1990) ....................................

Involve, The Random House Dictionary of

the English Language (2d ed., unabr.

1987) ..........................................................

U.S. Dep’t of Justice, Meth Awareness,

https://www.justice.gov/archive/olp/meth

awareness/ (Sept. 23, 2019) ......................

INTRODUCTION

Time and again, the Court has been asked to determine whether a prior state conviction qualifies as

a predicate offense under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e). And time and again

the Court has affirmed the same analytical approach:

Identify the elements of the state crime of conviction,

compare those elements to the generic definition of

the offense listed under § 924(e), and determine

whether the state offense either matches or is narrower than the generic offense. That is because “the

Act should ensure, to the extent that it is consistent

with the prerogatives of the States in defining their

own offenses, that the same type of conduct is punishable on the Federal level in all cases.” Taylor v.

United States, 495 U.S. 575, 582 (1990).

Florida’s controlled substances offenses are inconsistent with federal law and the laws of the vast majority of states. Since 2002, Florida has chosen to deviate from the common law presumption of mens rea

by expanding its drug offenses to cover, for example,

a person who distributes a substance that turns out

to be controlled, even though the person had no

knowledge of its illicit nature. Nonetheless, the Eleventh Circuit, in casting aside the categorical approach described above, concluded that Mr. Shular’s

prior Florida convictions should be regarded as “serious drug offenses,” even though the conduct established would not even be criminal under federal law,

much less under the law of the overwhelming majority of the states.

The court of appeals reached this conclusion by

deciding it need not define the generic version of the

offenses under § 924(e)(2)(A)(ii) at all, and instead

reasoned that drug offenses punishable by ten years

or more of imprisonment were sufficiently defined to

exclude mens rea. Yet the text does not support such

a departure from this Court’s uniform construction of

§ 924(e).

Rather, the text, structure, and history of ACCA

make clear that § 924(e)(2)(A)(ii) defines a class of

state offenses, each to be compared to a generic

standard, to determine whether the offense constitutes a “serious drug offense.” Congress recognized

that States have used a wide variety of differently

worded provisions to proscribe the conduct that Congress intended to identify as predicate offenses for

purposes of ACCA. Thus, those generic predicate offenses are “offense[s] under State law involving manufacturing, distributing, or possessing with intent to

manufacture or distribute” controlled substances,

which are punishable by ten or more years’ imprisonment. 18 U.S.C. § 924(e)(2)(A)(ii).

Because Mr. Shular’s prior Florida convictions for

sale of cocaine and possession with intent to sell cocaine sweep more broadly than the generic versions

of the offenses identified in § 924(e)(2)(A)(ii), they do

not qualify as serious drug offenses.

OPINIONS BELOW

The unpublished opinion of the United States

Court of Appeals for the Eleventh Circuit, United

States v. Eddie Lee Shular, 736 F. App’x 876 (11th

Cir. 2018) (per curiam), was issued on September 5,

2018 and is reproduced in the Appendix for the Petition for Writ of Certiorari at Pet. App. A.

JURISDICTION

The Court of Appeals entered judgment on September 5, 2018, and Mr. Shular did not move for rehearing. The petition for writ of certiorari was filed

on November 8, 2018, and granted on June 28, 2019.

The Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant portions of the Armed Career Criminal Act, 18 U.S.C. § 924(e), are reproduced at Pet.

App. D at 51–52.

STATEMENT OF THE CASE

Petitioner Eddie Lee Shular pleaded guilty to being a felon in possession of a firearm under 18 U.S.C.

§ 922(g)(1). The basis for the charge was Mr. Shular’s

possession of his mother’s unloaded firearm. Transcript of Sentencing at 7, United States v. Shular, No.

4:17-CR-37 (N.D. Fla. Jan. 19, 2018) (“Sentencing

Tr.”). His mother had asked that he hold it while her

home was being rebuilt. Id.

The default term of imprisonment for a felon-inpossession offense is zero to 120 months. See 18

U.S.C. § 924(a)(2). ACCA increases that penalty to a

term of 15 years to life if the defendant has “three

previous convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1) (emphasis

added).

The United States Probation Office determined

that Mr. Shular had six prior Florida convictions—

five for sale of cocaine and one for possession with intent to sell cocaine. Presentence Investigation Report

¶ 32, United States v. Shular, No. 4:17-CR-37 (N.D.

Fla. Jan. 12, 2018), ECF No. 30 (under seal). The

Probation Office therefore recommended that

Mr. Shular receive enhanced sentencing under ACCA

because each of his six prior convictions qualified as a

“serious drug offense,” and calculated Mr. Shular’s

advisory Guidelines range to be 188 to 235 months.

Id. ¶¶ 32, 76-77. Without the ACCA enhancement,

the advisory Guidelines range would have been fortysix to fifty-seven months. Sentencing Tr. at 7.

Mr. Shular objected to the Probation Office’s determination that his prior Florida drug convictions

constituted “serious drug offense[s]” under ACCA.

See Response Letter to Presentence Investigation

Report, United States v. Shular, No. 4:17-CR-37 (N.D.

Fla. Dec. 29, 2017), ECF No. 29 (under seal). Mr.

Shular contended that “Congress intended ‘serious

drug offense’ as defined in 18 U.S.C. § 924(e)(2)(A) to

be those offenses that require” a particular “mens rea

element,” namely, that “the defendant knew he was

selling a controlled substance,” and that the Florida

statutes under which Mr. Shular was convicted omitted the necessary mens rea. Id.

Applying Eleventh Circuit precedent in United

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

district court found that the Florida drug convictions

at issue qualified as serious drug offenses for purposes of ACCA. The district court rejected Mr. Shular’s

objection to the Probation Office’s determination that

he qualified for enhanced sentencing under ACCA as

foreclosed by Smith. See Judgment, United States v.

Shular, No. 4:17-CR-37 (N.D. Fla. Jan. 22, 2018),

ECF No. 32. The court sentenced Mr. Shular to 180

months of imprisonment. See id.

The Eleventh Circuit affirmed in an unpublished

per curiam opinion. Pet. App. A. The court of appeals agreed that Smith foreclosed Mr. Shular’s contention that his Florida drug convictions under Fla.

Stat. § 893.13(1) (2012) did not qualify as “serious

drug offenses” under ACCA. Id. at 5–6. Mr. Shular

argued that Smith was incorrect, but the court held

that it was bound. Id.

SUMMARY OF THE ARGUMENT

Every tool of statutory interpretation demonstrates that § 924(e)(2)(A)(ii) enumerates a class of

sufficiently serious generic offenses triggering a sentencing enhancement. As the Court has done each

time before when presented with such generic offenses, it “compare[s] the elements of the defendant’s

conviction with the elements of the ‘generic’ crime—

i.e., the offense as commonly understood” to determine whether the state offense is the same as, or narrower than, the generic offense. Descamps v. United

States, 570 U.S. 254, 257 (2013).

Section 924(e)(2)(A)(ii) provides a list of generic offenses—manufacturing of a controlled substance, distribution of a controlled substance, possession with

intent to manufacture a controlled substance, and

possession with intent to distribute a controlled substance—that were well-established in States’ laws in

1986. By that year, nearly all of the States had

adopted the Uniform Controlled Substances Act,

which likewise relied on the same core offenses.

These offenses remain the building blocks of the

States’ controlled substances laws, even while their

laws have grown more complex.

Congress’s use of the word “involving” to introduce

these generic offenses reinforces that courts should

“examine what the state conviction necessarily involved, not the facts underlying the case” when it determines whether a state offense is an ACCA predicate. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)

(emphasis added). That is why the Court has engaged in the same generic offense inquiry when analyzing another statute “involving” a list of offenses.

See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S.

393 (2003). Because controlled substance offenses do

not have the same common law lexicon as those enu-

merated in the violent felony provision (burglary, arson, and extortion), Congress’s use of “involving” better denotes what categories of offenses qualify as

predicates for purposes of ACCA.

Section 924(e)’s larger structure reinforces the

need for this categorical approach. The parallel

structure of § 924(e)(2)(A)(i)’s Federal-offenses provision and § 924(e)(2)(A)(ii)’s State-offenses provision

indicates Congress’s intent to identify similarly serious offenses. Each provision defines qualifying offenses based on the penalty incurred, the nature of

the substance involved, and the seriousness of the

prior offense. This parallel within § 924(e)(2)(A) reflects the broader structure of § 924(e). Like the violent felony provision, the serious drug offense provision lists generic offenses. Reading the serious drug

offenses provision as anything but a list of generic offenses would create disharmony within § 924(e). See

Mellouli v. Lynch, 135 S. Ct. 1980, 1989 (2015).

Finally, the legislative history confirms the textual and structural understanding that in amending

ACCA in 1986 to include “serious drug offenses,”

Congress intended to expand the list of predicate offenses by “adding as predicate offenses State and

Federal laws for which a maximum term of imprisonment of 10 years or more is prescribed for manufacturing, distributing or possessing with intent to

manufacture or distribute controlled substances and

violent felonies.” H.R. Rep. No. 99-849, at 3 (1986).

This history shows that Congress intended to bring

certain drug offenses into ACCA, and therefore confirms that the categorical approach applies here, as it

does throughout the statute.

To the extent ambiguity remained regarding the

text of § 924(e)(2)(A)(ii) following application of the

tools of statutory interpretation, the rule of lenity

would favor Mr. Shular’s narrower interpretation.

See United States v. Davis, 139 S. Ct. 2319, 2333

(2019).

The generic offenses listed in § 924(e)(2)(A)(ii)

must include a mens rea requirement. When Congress added the “serious drug offense” provision to

ACCA in 1986, nearly all the states and the federal

government had established that knowledge of the

illicit nature of the substance was an element of the

crimes of manufacturing, distributing, or possessing

with intent to manufacture or distribute. Such a

broad consensus therefore requires that the “serious

drug offenses” provision likewise includes a mens rea

requirement. Cf. Quarles v. United States, 139 S. Ct.

1872, 1878 (2019); United States v. Stitt, 139 S. Ct.

399, 405–06 (2018). This conclusion accords not only

with the analytical framework of the categorical approach, but also the foundational principle that “the

requirement of some mens rea for a crime . . . is the

rule of, rather than the exception to, Anglo-American

criminal jurisprudence.” Staples v. United States,

511 U.S. 600, 605 (1994); Rehaif v. United States, 139

S. Ct. 2191, 2195 (2019).

The Eleventh Circuit’s conclusion that it need not

define the generic offenses under § 924(e)(2)(A)(ii)

treated what are essentially strict liability crimes as

“serious drug offenses.” That decision does violence

to the statute. It creates different definitions for serious drug offenses under state and federal law, given

that conduct that would not amount to a drug offense

under federal criminal law (which requires mens rea)

nonetheless qualifies as a serious drug offense if occurring in an outlier state like Florida.

Animating the reasoning of the Eleventh Circuit

and other courts of appeals is the notion that the

word “involving” expands the scope of the categorical

inquiry to include as predicate offenses any convictions that “relate to” the statute’s generic offenses.

See United States v. White, 837 F.3d 1225, 1233 (11th

Cir. 2016) (per curiam), cert. denied, 138 S. Ct. 1282

(2018). Courts engaging in this broad, indeterminate

inquiry strip the statute of any limiting principle

while also rendering language redundant. Such an

approach shares similarities to the residual clause

inquiries this Court has invalidated, along with the

same vagueness and ambiguity concerns. See Johnson v. United States, 135 S. Ct. 2551 (2015).

Because none of Mr. Shular’s convictions under

Florida law match the generic offenses specified in

ACCA, reversal is warranted and the Court may remand Mr. Shular’s case for resentencing without the

ACCA enhancement.

ARGUMENT

I. THE TEXT, STRUCTURE, AND HISTORY

OF § 924(e) REQUIRE COURTS TO APPLY

AN OFFENSE-MATCHING CATEGORICAL

APPROACH TO DETERMINE WHETHER A

STATE OFFENSE QUALIFIES AS A “SERIOUS DRUG OFFENSE” UNDER ACCA

Since Taylor, the Court has applied the categorical

approach uniformly in its ACCA cases. Cf. Taylor,

495 U.S. at 588; Descamps, 570 U.S. at 257. And it

has applied the same approach in statutes that parallel ACCA, such as 18 U.S.C. § 924(c) and the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2).

E.g., Davis, 139 S. Ct. at 2323; Esquivel-Quintana v.

Sessions, 137 S. Ct. 1562, 1567–68 (2017) (determining whether a state offense “categorically fits within

the ‘generic’ federal definition of a corresponding aggravated felony”); Mellouli, 135 S. Ct. at 1990.

ACCA’s serious drug offenses provision compels the

same approach as a matter of text, statutory structure, and legislative history. There is no logical reason to apply the categorical approach in all other aspects of ACCA and to extend it to other sentenceenhancement statutes, but to set it aside for purposes

of serious drug offenses.

A. Through § 924(e)’s Plain Text, Congress

Indicated That Certain State Drug Offenses Would Be ACCA Predicates.

Section 924(e)(2)(A)(ii) defines a “serious drug offense” as “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 Controlled Substances

Act (21 U.S.C. 802)), 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).

The key statutory phrase is “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Congress used this particular phrase to reflect the controlled substance offenses that were on the books in

the overwhelming majority of states by 1986. And

the word “involving” signals Congress’s recognition

that not every state had used the same labels to proscribe the same offenses. In conjunction with the

phrase signaling which offenses can trigger the ACCA enhancement, the word “involving” brings the serious drug offenses provision into harmony with the

approach Congress took in the rest of § 924(e).

1. The most natural reading of the serious drug offenses provision is as an enumeration of generic offenses. The key language in the statute designates

manufacturing, distributing, and possession with in-

tent to manufacture or distribute drugs—four types

of drug offenses—as predicate offenses. 1

See

§ 924(e)(2)(A)(ii).

These are more than simply four offenses. These

are generic terms for offenses widely recognized

throughout the country at the time of ACCA’s

amendment. Congress used the language of existing

state and federal drug offenses to indicate which offenses were sufficiently serious to warrant an ACCA

sentence enhancement. First, the language used to

describe these offenses reflects the phrasing of the

general offense provision of the federal Controlled

Substances Act (CSA). See 21 U.S.C. § 841(a)(1) (“[I]t

shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance.”).

The same language is used elsewhere in federal law

to define drug offenses. See 21 U.S.C. § 959(b)(1) (“It

shall be unlawful for any person to manufacture or

distribute a listed chemical . . . intending or knowing

that the listed chemical will be used to manufacture a

controlled substance”); 46 U.S.C. § 70503(a)(1) (prohibiting “[w]hile on board a covered vessel” a person

from “knowingly or intentionally . . . manufactur[ing]

or distribut[ing], or possess[ing] with intent to manufacture or distribute, a controlled substance”).

Second, by the time Congress enacted ACCA in

1986, the States had “[a]lmost all” adopted “the

As a simple matter of the distributive property,

§ 942(e)(2)(A)(ii)

expresses

four

generic

offenses:

(1) manufacture of a controlled substance; (2) distribution of a

controlled substance; (3) possession with intent to manufacture

a controlled substance; and (4) possession with intent to distribute a controlled substance. 18 U.S.C. § 942(e)(2)(A)(ii).

mechanism used in the federal [Controlled Substances Act] to establish” their own offenses. See Federal

and State Controlled Substances Acts (CSAs), in

Handbook of Drug Control in the United States 349,

358 (James A. Inciardi, ed., 1990). That mechanism

was also used by the model Uniform Controlled Substances Act (“UCSA”) that was later adopted by all of

the States. See 1970 Uniform Controlled Substance

Act, § 401(a) (“[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.”). These laws

involve “two general categories of offenses,” which

can be described as simple “possession” offenses and

more serious “manufacturing, delivery, and sale” offenses. Id.; compare Ariz. Stat. § 13-3407(A)(1) (“Possess or use a dangerous drug”), with id. § 133407(A)(2) (“Possess a dangerous drug for sale”), and

§ 13-3407(A)(3) (“Manufactur[e] a dangerous drug”).

ACCA’s text indicates that only categories of offenses

including manufacturing, distributing, and selling

constitute eligible predicate offenses.

The States’ various penal codes are replete with

provisions prohibiting manufacturing, distributing,

and possession with intent to manufacture or distribute controlled substances. Some use that precise

formulation. 2 Others vary, for example, by prohibiting the same core conduct under different monikers

or breaking up prohibited acts across different sections of their criminal codes. E.g., Haw. Rev. Stat.

Ann. §§ 712-1241 to 1243 (naming controlled substances offenses arising from possession and distribu-

2 See, e.g., D.C. Code Ann. § 48-904.1(a)(1); Idaho Code Ann.

§ 37-2732(a); 720 Ill. Comp. Stat. Ann. 570/401; 21 R.I. Gen.

Laws § 21-28-4.01.

tion conduct as “[p]romoting a dangerous drug”). 3

Nevertheless, when Congress defined which conduct

called for a sentence enhancement, it would have understood that the States overwhelmingly targeted the

same core conduct, even if they used slightly different

language to accomplish their goals. In other words,

the States’ penal codes reflect the same conduct Congress chose to warrant the ACCA enhancement.

Almost all states have followed the approach of the

UCSA to some degree. By 1986, all of the states and

the District of Columbia had adopted the UCSA. Notably, like the federal controlled-substance law, forty-

3 See also Cal. Health & Safety Code § 11351 (“every person

who possesses for sale or purchases for purposes of sale . . . [a

specified] controlled substance”); Id. § 11379.6 (“every person

who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, . . . [a

specified] controlled substance”); Ga. Code Ann. § 16-13-30 (“it is

unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any

controlled substance.”); Me. Rev. Stat. Ann. tit. 17-A, § 1103.1-A

(“[A] person is guilty of unlawful trafficking in a scheduled drug

if the person intentionally or knowingly trafficks in what the

person knows or believes to be a scheduled drug, which is in fact

a scheduled drug . . . .”); Id. § 1101.17 (“Traffick” means “[t]o

make, create manufacture;” or “[t]o sell barter, trade, exchange

or otherwise furnish for consideration;” or “[t]o possess with the

intent to do any . . . .” of those acts); Del. Code Ann. tit. 16,

§ 4753(1) (Drug Dealing—Aggravated Possession; Class C Felony) (“Except as authorized in this chapter, any person who: . . .

[m]anufactures, delivers, or possess with the intent to manufacture or deliver a controlled substance in a Tier 2 quantity”); Id.

§ 4754(1) (Drug Dealing—Aggravated Possession; Class D Felony) (“Except as authorized by this chapter, any person who: . . .

[m]anufactures, delivers, or possesses with the intent to manufacture or deliver a controlled substance.”).

seven states required mens rea for these types of offenses either by statute or decision. 4

Nearly thirty years later, however, not all of the

states’ provisions mirror the language of the federal

CSA, the UCSA, or ACCA’s serious drug offense provision. While the UCSA defined the offenses relevant

here in one section, some states’ criminal laws are

now more numerous while maintaining the same core

offenses. Many now codify serious drug offenses

across several sections of their statutes or use different terms other than “manufacture” or “distribute”

such as “unlawful manufacture” or “misconduct.” 5

At their core, however, these statutes continue to

define certain state drug offenses in terms of manufacturing, distribution, or possession with intent to

manufacture or distribute. Thus, there is every reason to apply the categorical approach by matching the

prior offense under state law with the offenses listed

in ACCA.

2. Congress’s use of the word “involving” to introduce these offenses reinforces the conclusion that a

4 See Appendix. The Appendix cites each state’s legislative

enactment adopting the UCSA, and includes a citation to a statute or case explaining the mens rea requirement for the relevant

offenses.

5 E.g., Ala. Code § 13a-12-211 (“Unlawful Distribution of Con-

trolled Substances; Possession with Intent to Distribute a Controlled Substance”); Id. § 13a-12-217 (“Unlawful Manufacture of

Controlled Substance in the Second Degree”); Id. § 13a-12-218

(“Unlawful Manufacture of Controlled Substance in the First

Degree”); cf. Alaska Stat. §§ 11.71.021, 11.71.030, 11.71.040,

11.71.050, 11.71.060 (based on the controlled substance’s schedule, stating that “a person commits the crime of misconduct involving a controlled substance” in various degrees when the person commits an act of manufacturing, distributing, or possessing

with intent to manufacture or distribute the substance).

generic-offense matching exercise is warranted here.

In conducting the categorical approach a court “examine[s] what the state conviction necessarily involved,

not the facts underlying the case” when it determines

whether a state offense is an ACCA predicate.

Moncrieffe, 569 U.S. at 191. The word “involving” in

the serious drug offenses provision requires the Court

to examine whether the state offense necessarily requires proof of the facts that would prove one of the

generic offenses. See Involve, The Random House

Dictionary of the English Language (2d ed., unabr.

1987) (“to include as a necessary circumstance, condition, or consequence”).

While the word prefacing the list of generic offenses

in the serious drug offense provision (“involving”) differs from the language introducing the list of violent

felonies in § 924(e)(2)(B)(ii) (“is”), Congress would not

have simply repeated the word “is.” The violent felonies provision defines the predicate offenses, in part,

by introducing a list of common law offenses—

burglary, arson, and extortion. Like drug crimes,

those offenses also have a variety of state-law counterparts. But they also have a deeply rooted, common-law heritage. Cf. Taylor, 495 U.S. at 590–98

(discussing the common-law definition of burglary in

addition to the Model Penal Code and state laws at

the time of ACCA’s passage to determine the generic

definition of the offense). The drug offenses that

Congress deemed “serious”—manufacturing, distributing, or possessing with intent to manufacture or

distribute a controlled substance—did not have the

same heritage and the same established lexicon. And

these offenses did not exist in the same form in all of

the states.

Accordingly, “involving” better denotes categories of

drug crimes because not every state uses identical

terminology to describe its own drug offenses. See

supra note 3; cf. Taylor, 495 U.S. at 592 (ACCA does

not turn on labels). Its word choice does not transform this particular provision into something entirely

out of step with the larger statute in which it is

housed, for Congress “does not . . . hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 468 (2001); Gonzales v. Oregon, 546 U.S.

243, 267 (2006).

Indeed, elsewhere in the United States Code, when

a list of offenses begins with “involving,” the Court

nonetheless has concluded that “the conduct must be

capable of being generically classified” as the listed

offenses. Scheidler, 537 U.S. at 393. There the question was whether the defendants had violated Section

1961 of the Racketeer Influenced and Corrupt Organizations Act (RICO) by virtue of convictions for state

extortion offenses. Section 1961 defined “racketeering activity” as “any act or threat involving murder,

kidnapping, gambling, arson, robbery, bribery, extortion . . . which is chargeable under State law and

punishable by imprisonment for more than one year.”

18 U.S.C. § 1961(1)(A) (emphasis added).

Even though the word “involving” preceded the list

of qualifying offenses, the Court followed the same

categorical analysis prescribed in Taylor: It defined

the generic crime of extortion and compared the elements of that generic offense to the elements of the

state extortion offense. Ultimately, there was no categorical match because the state offense did not include the element that the party obtain or seek to obtain property. Scheidler, 537 U.S. at 410 (citing Taylor, 495 U.S. at 598).

The Court has even endorsed the generic offensematching approach, albeit in dicta, to enumerated offenses preceded by arguably broader language. See

Lockhart v. United States, 136 S. Ct. 958 (2016).

Evaluating 18 U.S.C. § 2252(b)(2), which triggers a

ten-year mandatory minimum sentence if the individual has “a prior conviction . . . under the laws of

any State relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or

ward,” this Court explained that those terms would

either be defined by their “generic” definition or

would otherwise be “defined in light of their federal

counterparts.” Id. at 968 (emphasis added).

B. Section 924(e)(2)’s Structure Supports

the Plain-Text Reading.

The Federal-offenses clause in § 924(e)(2)(A)(i) and

the State-offenses clause in § 924(e)(2)(A)(ii) define

“serious drug offenses” in parallel fashion. Each

clause defines the type of drug offense that qualifies

as an ACCA predicate by the penalty incurred—“a

maximum term of imprisonment of ten years or

more.” 18 U.S.C. § 924(e)(2). Each clause also limits

the type of drug offense that qualifies as an ACCA

predicate by the nature of the substance involved—“a

controlled substance” as defined by the Controlled

Substances Act, 21 U.S.C. § 802. 6

Each clause also defines the predicate offenses that

trigger ACCA’s sentence enhancement. The Federaloffenses clause enumerates which federal crimes constitute ACCA predicate offenses, and it includes a

panoply of distribution, manufacturing, and posses6 Subsection (e)(2)(A)(i) incorporates offenses under the Con-

trolled Substances Act, 21 U.S.C. § 801 et seq., the Controlled

Substances Import and Export Act, 21 U.S.C. § 951 et seq., and

maritime drug enforcement laws, 46 U.S.C. §§ 70501–70508.

The latter two laws in this category incorporate 21 U.S.C. § 802,

which defines controlled substances for purposes of the Controlled Substances Act.

sion-with-intent-to-distribute-or-manufacture offenses (each with a mens rea component). See, e.g., 21

U.S.C. § 841(a)(1) (making it “unlawful for any person knowingly or intentionally . . . to manufacture,

distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled

substance); 21 U.S.C. § 959(b)(1) (“It shall be unlawful for any person to manufacture or distribute a

listed chemical . . . intending or knowing that the

listed chemical will be used to manufacture a controlled substance”); 46 U.S.C. § 70503(a)(1) (prohibiting “[w]hile on board a covered vessel” a person from

“knowingly or intentionally . . . manufactur[ing] or

distribut[ing], or possess[ing] with intent to manufacture or distribute, a controlled substance”). Likewise,

the State-offense clause defines the class of state-law

crimes that constitute predicate offenses for purposes

of ACCA.

Two further aspects of § 924(e)’s structure indicate

that Congress used the phrase “manufacturing, distributing, or possessing with intent to manufacture or

distribute” as generic offenses to indicate which state

laws get swept into ACCA.

First, the parallel between the Federal-offenses and

State-offenses clauses in § 924(e)(2)(A) reflects the

broader structure of § 924(e) and, specifically, its use

of generic offenses. Just as § 924(e)(2)(A)(ii) provides

a list of generic offenses to determine whether a state

conviction qualifies as a “serious drug offense,” so too

does subsection (e)(2)(B)(ii) provide a list of generic

offenses qualifying as “violent felonies.”

Second, the contrast between the offenses listed in

the serious drug offenses provision and the violent

felony provision’s elements clause compels a different

construction

for

each

phrase.

U.S.C.

§ 924(e)(2)(B)(i) (“‘violent felony’ means any crime

punishable by imprisonment for a term exceeding one

year . . . that (i) has as an element the use, attempted

use, or threatened use of physical force against the

person of another.”). Congress’s intentional use of

the phrase “has as an element” in that section counsels against a conclusion that it implicitly adopted

that construction in § 924(e)(2)(A)(ii). If it wanted

courts to consider the listed terms as elements, it

could have said so. See Russello v. United States, 464

U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits

it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (citation omitted)).

A contrary interpretation would strike a dissonant

chord in the larger ACCA framework. Through the

elements clause, Congress intended that the categorical inquiry focus only on an individual element of a

previous offense, rather than all the elements (much

less the facts) of a state conviction. Here, by contrast,

Congress focused on the nature of the drug activity as

defined by state law, not by a narrow element.

To read § 924(e)(2)(A)(ii) as anything but describing

generic offenses against which a state conviction

should be compared would be to displace the categorical approach entirely. Such a reading would render

§ 924(e)(2)(A)(ii) anomalous in the broader statutory

context of ACCA. This cannot be. Mellouli, 135 S.

Ct. at 1989 (“Statutes should be interpreted as ‘a

symmetrical and coherent regulatory scheme.’”); Erlengbaugh v. United States, 409 U.S. 239, 243–44

(1972) (sections of a statute passed by the same Congress must be read “in pari materia”).

C. Legislative History Confirms Congress’s

Intent.

As the Court detailed in Taylor, the legislative history showed that Congress “intended that the enhancement provision be triggered by crimes having

certain elements,” not by crimes labeled a certain

way under the vagaries of state law. 495 U.S. at

588–89. When Congress made the amendments in

1986, which included adding the “serious drug offenses,” the goal was simply to add additional predicate

offenses, not to create a new class of offenses that

might be subject to a different test. Representative

Wyden: “I think we can all agree that we should expand the predicate offenses”; Senator Specter: “The

time seems ripe in many quarters, including the Department of Justice, to expand the armed career

criminal bill to include other offenses.” See id. at

583–84 (quoting hearings before House and Senate

Committees). Thus:

[A] consensus developed in support of an expansion of the predicate offenses to include

serious drug trafficking offenses under both

State and Federal law and violent felonies,

generally. This concept was encompassed in

H.R. 4885 by deleting the specific predicate

offenses for robbery and burglary and adding

as predicate offenses State and Federal laws

for which a maximum term of imprisonment

of 10 years or more is prescribed for manufacturing, distributing or possessing with intent to manufacture or distribute controlled

substances and violent felonies . . . .

H.R. Rep. No. 99-849, at 3 (1986). Nothing about

this uncontroverted history suggests that Congress

intended for “serious drug offenses” to somehow be

interpreted differently from the violent felonies,

which require a match between the state offense and

its generic analogue. To the contrary, this history

supports the idea that the “serious drug offenses”

provision was merely an expansion of the violent felonies, and thus they should be construed the same

way under the statute.

In addition, this legislative history shows that Congress intended for both sets of crimes to have a mens

rea component. Congress drew a parallel between

federal and state offenses involving manufacture, distribution, or possession with intent to distribute or

manufacture, controlled substances. Because Congress contemplated that both the federal and state

offenses would involve similar crimes, Congress could

not reasonably have intended to carve out an entirely

different standard that would sweep in outlier state

offenses.

Likewise, Congress had in mind the same RICO

provision targeting conduct “involving” enumerated

offenses that the Court evaluated in Scheidler when

it drafted the list of generic offenses qualifying as “serious drug offenses.” The House Report explained

that the serious-drug-offense provision “describes in

general terms (similar to the Racketeer Influenced

and Corrupt Organizations Act, 18 U.S.C. § 1961)

those State drug trafficking offenses for which a maximum confinement of 10 years or more is prescribed

which would be predicate offenses under the new definition of serious drug offense.” H.R. Rep. No. 99-849,

at 4 (1986). “Involving,” therefore, cannot mean anything different in ACCA than it does in RICO without

directly contravening this legislative history.

D. The Rule of Lenity Favors Mr. Shular’s

Interpretation.

Even if, after applying each of the tools of statutory

construction above, ambiguity remained regarding

whether the term “involving” somehow changed the

nature of the categorical approach, the rule of lenity

would favor Mr. Shular’s interpretation. See United

States v. Hayes, 555 U.S. 415, 429 (2009) (lenity applies “only when, after consulting traditional canons

of statutory construction, we are left with an ambiguous statute”). The rule teaches that “ambiguities

about the breadth of a criminal statute should be resolved in the defendant’s favor.” Davis, 139 S. Ct. at

2333. As Mr. Shular’s case demonstrates, contrary

interpretations of § 924(e)(2)(A)(ii) broaden the scope

of the statute—and thus, the application of its significant consequences—by including in its ambit criminal defendants with no mens rea as to the illicit nature of the substance.

II. SECTION 924(e)(2)(A)(ii)’S LIST OF QUALIFYING OFFENSES UNDER STATE LAW

MUST INCLUDE A MENS REA REQUIREMENT

In 1986, nearly every state’s controlled substances

offenses—including Florida’s—were modeled after

the Uniform Controlled Substances Act (UCSA). See

Appendix. In adopting those provisions, an overwhelming majority of states had by 1986, either by

statute or judicial decision, determined that

knowledge of the illicit nature of the substance was

an element of the crimes of manufacture, distribution

or possession with intent to manufacture or distribute. 7 So too had the federal government. See 21

7 Indeed, even for the crime of simple possession, nearly every

state had included a requirement of mens rea as to the illicit na-

U.S.C. § 841(a); McFadden v. United States, 135 S.

Ct. 2298, 2304 (2015)

Given the nearly universal agreement on a mens

rea requirement for such offenses in 1986, the categorical approach likewise requires that the “serious

drug offenses” also include a mens rea requirement.

Cf. Quarles, 139 S. Ct. at 1878; Taylor, 495 U.S. at

598 (interpreting burglary by “the generic sense in

which the term is now used in the criminal codes of

most States”); Stitt, 139 S. Ct. at 406 (evaluating

whether states in 1986 included vehicles converted to

lodging in their burglary statutes).

Mr. Shular’s prior convictions under Florida law—

contrary to the current federal law and the law in

every other state—required no mens rea as to the illicit nature of the substance sold. The crime of sale of

cocaine had only two elements: (1) the defendant sold

a certain substance, and (2) the substance was cocaine. See In re Standard Jury Instructions in Crim.

Cases (No. 2005-3), 969 So. 2d 245 (Fla. 2007). This

was not always the case. In 1987, the Florida Supreme Court held that knowledge of the nature of the

substance was an element of trafficking in cocaine

(including sale). See State v. Dominguez, 509 So. 2d

917 (Fla. 1987); see also Chicone v. State, 684 So. 2d

736, 744 (Fla. 1996) (holding that knowledge of the

illicit nature of the substance was an element of Florida’s controlled substance offenses, rejecting the

State’s argument that such knowledge was an affirmative defense), superseded by Fla. Stat. § 893.101.

The Florida legislature responded in 2002 by declaring that Florida’s controlled substances offenses had

no such element. See Fla. Stat. § 893.101. Yet the

ture of the substance. See Dawkins v. State, 547 A.2d 1041, 1044

n.6 (Md. 1988) (compiling standard in fifty states).

Eleventh Circuit concluded that what are essentially

strict liability crimes qualify as “serious drug offenses” as defined under 924(e)(2)(A)(ii), triggering a

mandatory fifteen-year sentence.

This position runs headlong into the bedrock presumption that “the requirement of some mens rea for

a crime is . . . the rule of, rather than the exception

to, Anglo-American criminal jurisprudence.” Staples,

511 U.S. at 605–06. The requirement applies absent

some indication from Congress, either express or implied, that it meant to do away with mens rea. Id.

Furthermore, such intent to do away with mens rea

cannot be implied when the penalty is particularly

harsh. Id. at 616. Here, Congress amended ACCA

against a uniform backdrop that included a mens rea

component in the generic versions of serious drug

crimes. And Congress ensured that the penalties for

eligible predicates would be undeniably harsh (up to

ten years’ incarceration or more).

Even if the serious drug offenses provision listed

only elements, rather than complete offenses, the

same presumption of mens rea would apply. The

“longstanding presumption, traceable to the common

law” is that a defendant “possess a culpable mental

state regarding each of the statutory elements that

criminalize otherwise innocent conduct.” Rehaif, 139

S. Ct. at 2195 (internal quotation omitted). The same

presumption applies here. The manufacture of a controlled substance implies knowledge of the nature of

the substance, as does the distribution of a controlled

substance. Cf. Leocal v. Ashcroft, 543 U.S. 1, 8–9

(2004) (use of physical force against the person of another implies “intentional availment” of force).

III. THE ELEVENTH CIRCUIT’S APPROACH

HAS NO CLEAR BOUNDARIES AND

LEADS TO INDETERMINATE OUTCOMES

1. The Eleventh Circuit’s decision in Smith, by failing to define generically the offenses provided in

§ 924(e)(2)(A)(ii), wrongly excluded mens rea as to the

illicit nature of the substance. Such a conclusion creates a bizarre bifurcation of the meaning of “serious

drug offense” under § 924(e)(2)(A). All of the analogous federal drug offenses cross-referenced in

§ 924(e)(2)(A)(i) require proof of mens rea as an element. See 21 U.S.C. § 801 et seq.; see also McFadden,

135 S. Ct. at 2304–05. Under the Eleventh Circuit’s

formulation, however, “serious drug offenses” under

(A)(ii) require no mens rea.

In other words, conduct that would not amount to a

drug offense at all under federal criminal law—much

less a “serious drug offense” under (A)(i)—would

nonetheless equal a “serious drug offense” under

(A)(ii) if charged under laws like Florida’s. Courts

cannot read the statute in such a way as to render it

inconsistent. See Mellouli, 135 S. Ct. at 1989.

Worse yet, the Eleventh Circuit has concluded in a

subsequent opinion that a state statute criminalizing

“trafficking” by virtue of possession of a certain quantity of a controlled substance qualified as the “serious

drug offense” of possession with intent to distribute

or manufacture under § 924(e)(2)(A)(ii). White, 837

F.3d at 1235. The conclusion that the simple possession of a certain amount of a controlled substance—

without any finding of intent to distribute—qualified

as a “serious drug offense” directly contradicts the

language of § 924(e)(2)(A)(ii) defining the offense as:

“[P]ossessing with intent to distribute or manufacture” a controlled substance.

The court in White reasoned that the term “involving” means that a serious drug offense “might include

state offenses that do not have as an element the

manufacture, distribution, or possession of drugs

with intent to manufacture or distribute.” Id. at

1233. Endorsing this “expansive interpretation of the

word ‘involving’” from its sister courts, the import of

the Eleventh Circuit’s decision is that the crime need

only “be sufficiently related to” distribution. Id. But

that would render other language in the statute superfluous: If possession with intent to distribute only

needs to be “related to” distribution, Congress’s inclusion of “possession with intent to distribute” as a

predicate offense would have no purpose or meaning.

See Gustafson v. Alloyd Co., 513 U.S. 561, 574–75

(1995); United States v. Alaska, 521 U.S. 1, 59 (1997).

2. Allowing courts to determine whether a state offense is “related to” drug manufacture, distribution,

or possession with intent to distribute or manufacture strips the statute of any limiting principle or

guidance upon which courts might rely. This is because “related to” is a “broad” and “indeterminate”

term—one that could extend “to the furthest stretch

of indeterminacy” and ultimately “stop nowhere.”

Mellouli, 135 S. Ct. at 1990.

Recent case law demonstrates how this is so. In

United States v. Eason, for example, the Sixth Circuit

evaluated a Tennessee controlled substances statute,

which required the court to determine whether “purchasing an ingredient that could be used to manufacture methamphetamine with a reckless disregard of

its intended use” constituted the “serious drug offense” of manufacturing a controlled substance under

924(e)(2)(A)(ii). 919 F.3d 385, 391 (6th Cir. 2019).

The Sixth Circuit rightly began its categorical inquiry by defining the elements of the crime of convic-

tion and determining whether the crime was divisible

or not. Id. at 388–89 (citing Mathis, 136 S. Ct. at

2256–57. Next, the court determined what the least

culpable conduct punished would be under the statute. Id. at 389 (citing Moncrieffe, 569 U.S. at 190–

91).

At this point, however, the court reasoned it had

only to determine whether that conduct—purchasing

a product that could be used to manufacture methamphetamine with reckless disregard for its intended

use—sufficiently “related to” manufacturing a controlled substance. Without the crucial final step in

the categorical inquiry of matching the elements of

the state crime of conviction to the generic definition,

the test offers no real guidance.

Thus, while the court acknowledged that ingredients used in methamphetamine can be purchased

over the counter, and that “as culpability diminishes”—in this case reckless disregard—“so too does the

connection to manufacturing,” it nonetheless concluded that such conduct was a “serious drug offense.” Id.

at 391.

To be clear, the kinds of ingredients that can be

purchased over the counter that could be used to

manufacture methamphetamine include: Cold medicine, paint thinner, drain cleaner, and nail polish remover (acetone). See U.S. Dep’t of Justice Archive,

Meth Awareness, https://www.justice.gov/archive/olp/

methawareness/ (Sept. 23, 2019). Yet, under the “related to” approach, a purchaser’s “reckless disregard”

(the least culpable act criminalized) for the intended

use of nail polish remover, or cold medicine, amounts

to a serious drug offense meriting the harshest punishment.

Applying that definition of “involving” to the categorical inquiry “might well encompass convictions for

offenses related to drug activity more generally, such

as gun possession, even if those convictions do not actually involve drugs.” Mellouli, 135 S. Ct. at 1990.

See, e.g., United States v. Gibbs, 656 F.3d 180, 189

(3d Cir. 2011) (determining that wearing body armor

while in commission of a felony constituted a “serious

drug offense” because the underlying felony (for

which the defendant was not convicted) was possession with intent to deliver cocaine). A court might

“consider the possibility that the person possessing

the [firearm] will later use it to commit a crime” related to drug manufacture, distribution, or possession

with intent. See Johnson, 135 S. Ct. at 2559.

3. Judicial attempts to determine whether a state

offense is merely “related to” the generic offenses under § 924(e)(2)(A)(ii) bear more than a passing resemblance to the residual clause inquiries this Court

declared unconstitutionally vague. Such inquiries tie

the assessment to judicial imagination, “not to realworld facts or statutory elements,” see id., and invite

the same kind of challenges the Court struggled with

for years under the residual clause inquiry. See, e.g.,

James v. United States, 550 U.S. 192, 220 (2007);

Chambers v. United States, 555 U.S. 122, 128–29

(2009); Begay v. United States, 553 U.S. 137 (2008);

Sykes v. United States, 564 U.S. 1 (2011). The Court

rightly, and repeatedly, closed the door on those inquiries. See Johnson, 135 S. Ct. at 2258–60; Sessions

v. Dimaya, 138 S. Ct. 1204, 1216 (2018); Davis, 139 S.

Ct. at 2335–36.

Again, recent case law demonstrates that this is no

imagined danger. The Fourth Circuit looked past the

statutory elements of defendant’s predicate offense

(possession of twenty-eight grams of cocaine) to ask

at what quantity it was “natural and reasonable” to

assume that mere possession “involved” possession

with intent. United States v. Brandon, 247 F.3d 186,

193 (4th Cir. 2001). Yet such an inquiry introduces

vagueness into a statute where it need not exist, and

in doing so undermines the separation of powers by

assigning responsibility for defining crimes to judges

rather than the representatives authorized by election to “make an act a crime.” Davis, 139 S. Ct. at

2325 (quoting United States v. Hudson, 7 Cranch 32,

34 (1812)). The analysis would invariably “‘devolve[]

into guesswork and intuition’, invite[] arbitrary enforcement, and fail[] to provide fair notice.” Dimaya,

138 S. Ct. at 1223.

Unsurprisingly then, courts of appeals applying the

same approach have reached opposite conclusions regarding whether possession (without intent) of twenty-eight grams of cocaine was sufficiently related to

“possession with intent to distribute” as defined under 924(e)(2)(A)(ii) to constitute a “serious drug offense.” Compare White, 837 F.3d at 1235 (Alabama

conviction for trafficking by possession of at least

twenty-eight grams of cocaine constitutes a serious

drug offense and a valid predicate under ACCA), with

Brandon, 247 F.3d at 195–97 (North Carolina conviction for trafficking by possession of at least twentyeight grams of cocaine is not a serious drug offense

under ACCA).

As noted previously, courts in these cases addressed state crimes labeled as “trafficking,” which

criminalized, among other things, possession of a certain quantity of various controlled substances. At

first blush, a crime labeled “trafficking” might appear

to qualify as distribution or possession with intent to

distribute under ACCA. But this is the precise logic

that the Court rejected in Taylor, in which individu-

als would receive sentencing enhancements “depending on [how] the State of [the] prior conviction” labeled the crime. See 495 U.S. at 590–91. State labels

should not govern courts’ inquiries into predicate offenses.

Moreover, even though it may be “sensible ‘to assume’ that persons possessing ‘very large’ drug quantities ‘intend to distribute’ them . . . the difficult question is what is the right amount of drugs a person

must possess ‘before this presumption of an intent to

distribute is appropriate.’” United States v. Mulkern,

854 F.3d 87, 96 (1st Cir. 2016). States have variously

specified what quantities of drugs transform mere

possession into trafficking. As the Fourth Circuit

noted, in Delaware a defendant who possessed five

grams or more of cocaine is trafficking, while in Missouri the threshold is 150 grams, and in North Carolina the threshold is twenty-eight grams. Brandon,

247 F.3d at 192.

States obviously can target certain drugs and certain quantities in light of their own priorities and circumstances, but in the ACCA context such variability

cannot be tolerated. Requiring judges to look past

the elements of the generic offenses and make inferences of intent to determine what “relates to” the “serious drug offenses” would leave outcomes to the individual sensibilities of judges and “sweep in the bizarre or unexpected state offenses.” Lockhart, 136 S.

Ct. at 968. Such a lack of predictability fails to provide defendants “fair notice of what the law demands

of them.” Davis, 139 S. Ct. at 2325.

IV. THE CATEGORICAL APPROACH EXCLUDES MR. SHULAR’S FLORIDA CONVICTIONS AS “SERIOUS DRUG OFFENSES”

Because Mr. Shular’s prior convictions under Florida law required no showing of mens rea, Florida’s law

is broader than the generic offenses of distribution

and possession with intent to distribute a controlled

substance. Accordingly, the Eleventh Circuit’s opinion should be reversed, and the case remanded for resentencing without an ACCA enhancement.

CONCLUSION

For the foregoing reasons, the Court should reverse

the decision below and reinstate a categorical analysis comparing state law crimes and generic analogues

when determining sentencing enhancements under

§ 924(e)(2)(A)(ii).

Respectfully submitted,

JEFFREY T. GREEN

DAVID W. MCALOON

CHRISTOPHER S. ROSS

TJ HERRON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

SUSAN E. PROVENZANO

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

RANDOLPH P. MURRELL

FEDERAL PUBLIC

DEFENDER

RICHARD M. SUMMA*

ASSISTANT FEDERAL

DEFENDER

227 N. Bronough Street,

Suite 4200

Tallahassee, FL 32301

(850) 942-8818

Counsel for Petitioner

September 25, 2019

* Counsel of Record

Appendix

The following table illustrates the nature of controlled substance offenses in the States at the time

Congress amended ACCA in 1986. The column titled

“UCSA Enactment” cites the session law through

which each state adopted its version of the Uniform

Controlled Substances Act. The column titled “Mens

Rea” provides case law from each state applying a

mens rea element to controlled substances offenses

(generally drug trafficking or one of manufacturing,

distributing, or possessing with intent to manufacture

or distribute a controlled substance), either by the

plain terms of the statute or through judicial interpretation.

State

UCSA

Enactment

Mens Rea

Alabama

No. 1407, § 401,

1971 Ala. Laws

2378, 2395

E.g., Harris v.

State, 826 So. 2d

897,

898

(Ala.

2000) (quoting Ala.

Code

§ 13A-12231(2) (1975))

Alaska

Ch. 45,

§§ 11.71.030–

.050, 1982

Alaska Sess.

Laws 1, 3-7

E.g., Carranza v.

State, No. A-2216,

1989 WL 1594957

(Alaska Ct. App.

May 31, 1989)

Arizona

Ch. 103, § 362531, 1979 Ariz.

Sess. Laws 294,

317-318

E.g., State v. Salinas, 887 P.2d

985, 987 (Ariz.

1994) (In Banc)

(citing State v.

State

UCSA

Enactment

Mens Rea

Arce, 483 P.2d

1395, 1399 (Ariz.

1971)

Arkansas

No. 590, art. IV,

§ 1, 1971 Ark.

Acts 1321, 134042

[no pre-1986 case

identified]

California

Ch. 1407,

§§ 11351–52,

1972 Cal. Stat.

2986, 3011-13

E.g., People v. Daniels, 537 P.2d 1232,

1235 (Calif. 1975)

(In Bank)

Colorado

Ch. 128, § 18-18105, 1981 Colo.

Sess. Laws 707,

730

E.g., People v. Cagle, 751 P.2d 614,

619 (Colo. 1988)

(en banc) (quoting

8 C.R.S. § 18-18105(1)(a)

(Supp.

1983))

Connecticut

No. 555, § 8,

1967 Conn. Pub.

Acts 770, 775

E.g., State v. Avila,

353 A.2d 776, 779–

80 (Conn. 1974)

Delaware

Ch. 424,

§§ 4751–4756, 58

Del. Laws. 1279,

1302-04 (1971)

E.g. Pyror v. State,

453 A.2d 98, 100

(Del. 1982); see

also Traylor v.

State, 458 A.2d

1170, 1176 n.6

(Del. 1983) (quoting 16 Del. Code

State

UCSA

Enactment

Mens Rea

Ann.

§ 4753A(a)(3))

District of

Columbia

No. 4-51, § 401,

28 D.C. Reg.

3081, 3102-03

(July 10, 1981)

E.g., Briscoe v.

United States, 528

A.2d 1243, 1245

(D.C. 1987) (quoting D.C.Code § 33541(a)(1)–(2), (D)

(1986 Supp.))

Florida

Ch. 73-331, § 13,

1973 Fla. Laws

783, 799–800

E.g.,

State

Dominguez,

509

So. 2d 917, 917–18

(Fla. 1987) (citing

Fla.

Stat.

§ 893.135(1)(b),

(1985))

Georgia

No. 823, § 79A811, 1974 Ga.

Laws 221, 243

E.g., Blount v.

State, 352 S.E.2d

220, 222 (Ga. Ct.

App. 1986) (quoting OCGA § 16-1331)

Hawaii

No. 10, §§ 27–29, E.g., State v. Sho1972 Haw. Sess. fill, 621 P.2d 364,

Laws 142, 157-58 368 (Haw. 1980)

(citing Haw. Rev.

Stat. § 712-1241

(1976 & Supp.

1979))

State

UCSA

Enactment

Mens Rea

Idaho

Ch. 215, § 372732, 1971 Idaho

Sess. Laws 939,

957–58

[no pre-1986 case

identified]

Illinois

No. 77-757,

§ 401, 1971 Ill.

Laws 1538,

1559–60

E.g., People v. Lev,

519 N.E.2d 1168,

1171 (Ill. Ct. App.

1988) (quoting Ill.

Rev. Stat. ch. 56½,

par. 1401 (1985)).

Indiana

No. 148, ch. 4,

§§ 1–6, 1976 Ind.

Acts 718, 783–84

E.g., Sherlis v.

State, 498 N.E.2d

973,

975

(Ind.

1986) (quoting Ind.

Code 35–48–4–1)

Iowa

Ch. 148, § 401,

1971 Iowa Acts

305, 318–19

E.g., State v. Luter,

346 N.W.2d 802,

811 (Iowa 1984),

superseded

other grounds by

statute as noted in

State v. Swaim,

412 N.W.2d 568

(Iowa 1982); see

also State v. Osmundson,

241

N.W.2d 892, 893

(Iowa 1976)

Kansas

Ch. 234, §§ 24,

26, 1972 Kan.

E.g.,

State

Faulkner, 551 P.2d

State

UCSA

Enactment

Mens Rea

Sess. Laws 941,

954–55

1247,

1251–52

(Kan. 1976); State

v. Justice, 704 P.2d

1012, 1018 (Kan.

Ct. App. 1985)

Kentucky

Ch. 226, §§ 15–

16, 31, 1972 Ky.

Acts 941, 949-50,

960-65.

E.g., Byrd v. Commonwealth,

709

S.W.2d 844, 845

(Ky. Ct. App. 1986)

(quoting Ky. Rev.

Stat. 218A.990(1))

Louisiana

No. 633, §§ 966–

971, 1972 La.

Acts 1406, 1418–

E.g.,

State

Banks, 307 So. 2d

594, 596–97 (La.

1975) (quoting La.

Rev. Stat. 40:966)

Maine

Ch. 499, § 1103,

1975 Me. Laws

1273, 1347-49

E.g.,

State

Mansir, 440 A.2d

6, 6 n.1 (Me. 1982)

(quoting

17A.M.R.S.A. § 1103

(Supp. 1981))

Maryland

Ch. 403, § 286,

1970 Md. Laws

896-97.

E.g., Waller v.

State, 284 A.2d

446, 447–48 (Md.

1971)

Massachusetts

Ch. 1071, §§ 32,

34, 1971 Mass.

E.g.,

Commonwealth v. Perry,

464 N.E.2d 389,

State

UCSA

Enactment

Mens Rea

Acts 1019, 1043–

392 n.2 (Mass.

1984)

(quoting

Mass. Gen L. c.

94c, §§ 32-32G)

Michigan

No. 368,

§§ 333.7401,

.7403, 1978

Mich. Pub. Acts

865, 975–76

E.g., People v. Delgado, 273 N.W.2d

395, 399 (Mich.

1978)

Minnesota

Ch. 937,

§ 152.09, 1971

Minn. Laws

1923, 1932

E.g., State v. Dick,

253 N.W.2d 277,

279 (Minn. 1977)

Mississippi

Ch. 521, § 20

1971 Miss. Laws

802, 819–21

E.g., Applegate v.

State, 301 So. 2d

853, 855 (Miss.

1974); see also

Coyne v. State, 484

So. 2d 1018, 1021

(Miss. 1986) (quoting Miss. Code

Ann. § 41-29-139

(Supp. 1985))

Missouri

No. 69 § 195.020,

1971 Mo. Laws

237, 247

E.g., State v. Pilchak, 655 S.W.2d

646, 650–51 (Mo.

Ct. App. 1983)

Montana

Ch. 412, sec. 24,

§§ 54-132 to 133,

E.g., State v. Starr,

664 P.2d 893, 897–

State

UCSA

Enactment

Mens Rea

1973 Mont. Laws

969, 984–85

98 (Mont. 1983);