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

No. 18-6662

IN THE

Supreme Court of the United States

___________

EDDIE LEE SHULAR,

v.

UNITED STATES,

___________

Petitioner,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

___________

REPLY BRIEF FOR PETITIONER

___________

JEFFREY T. GREEN

DAVID W. MCALOON

CHRISTOPHER S. ROSS

TJ HERRON

LAURA C. MULHERIN

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

PUBLIC DEFENDER

227 N. Bronough Street,

Suite 4200

Tallahassee, FL 32301

(850) 942-8818

richard_summa@fd.org

Counsel for Petitioner

December 20, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

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

1

I. SECTION 924(e)(2)(A)(ii) LISTS WELLKNOWN OFFENSES, NOT “ACTION

WORDS” ........................................................

2

II. THE GOVERNMENT’S RELIANCE ON

KAWASHIMA IS MISPLACED ....................

10

III. THE GOVERNMENT’S APPROACH OFFERS NEITHER UNIFORMITY NOR

SIMPLICITY .................................................

13

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

18

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

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

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

14

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

(2013) .........................................................

8

Kawashima v. Holder, 565 U.S. 478

(2012) ................................................... 8, 10, 11

Leocal v. Ashcroft, 543 U.S. 1 (2004) ........ 2, 9, 15

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

(2016) .........................................................

14

Lopez v. Gonzales, 549 U.S. 47 (2006) .........

9

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

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

5

Moncreiffe v. Holder, 569 U.S. 184 (2013) ...

9

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

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

16

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

(2019) ......................................................... 10, 17

Sanchez v. United States, 940 F.3d 526

(11th Cir. 2019), cert. denied, No. 196279, 2019 WL 6257490 (U.S. Nov. 25,

2019) ..........................................................

6

Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664

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

7

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

U.S. 393 (2003) .......................................... 1, 4

In re Standard Jury Instructions in Crim.

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

2007) (per curiam) .....................................

14

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

(1990) ................................................. 7, 8, 14, 17

Thomas v. State, 522 P.2d 528 (Alaska

1974) ..........................................................

10

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) ...................................

5

iii

TABLE OF AUTHORITIEScontinued

Page

United States v. Papia, 560 F.2d 827 (7th

Cir. 1977) ...................................................

11

United States v. Reid, 861 F.3d 523 (4th

Cir. 2017), cert. denied, 138 S. Ct. 462

(2017) ......................................................... 6, 7

United States v. Smith, 775 F.3d 1262

(11th Cir. 2014) .........................................

13

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

(2018) ......................................................... 8, 16

United States v. U.S. Gypsum Co., 438 U.S.

422 (1978) ..................................................

10

United States v. Williams, 553 U.S. 285

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

11

STATUTES AND REGULATIONS

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

6

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

5

18 U.S.C. § 924(e)(2)(A)(ii) .................... 3, 5, 6, 17

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

6

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

4

Me. Stat. tit. 17-A, § 1106 ............................

7

OTHER AUTHORITIES

Fed. R. Evid. 609(A)(2) .................................

H.R. Conf. Rep. No. 93–1597 (1975) .............

12

12

INTRODUCTION

The government offers an entirely new approach to

analyzing predicate offenses under ACCA. That approach stems from the government’s failure to analyze the entire text of 18 U.S.C. § 924(e)(2)(A)(ii). Instead, it treats one word in the statute—“involving”—

as triggering a hunt for conduct underlying a state

crime that courts can construe as a “serious drug offense.” Yet a full review of the surrounding language—“manufacturing, distributing, or possessing

with intent to manufacture or distribute” a controlled

substance—shows that Congress set forth offenses,

not conduct. And these offenses necessarily entail

mens rea as to the illicit nature of the substance.

These drug offenses have been almost universally

defined by the federal government and the States to

include a mens rea requirement. Nothing in the text

or structure of § 924(e)(2)(A)(ii) shows that Congress

intended to selectively incorporate portions of state

drug offenses, such that the near universal state law

requirement of mens rea evaporates to accommodate

an outlier state.

The word “involving” in § 924(e)(2)(A)(ii) does not

somehow transform the character of the words that

follow from bedrock drug offenses to mere “action

words,” such that no comparison of predicate offenses

to generic analogues can follow. This Court has construed similar statutes beginning with “involving” to

necessitate the generic-offense approach.

See

Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393

(2003).

Even if § 924(e)(2)(A)(ii) lists conduct rather than

offenses, that conduct necessarily entails mens rea.

Words must be given their ordinary meaning, in con-

2

text. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Here,

the text includes the substantive phrases “manufacture . . . of a controlled substance,” “distribution . . . of

a controlled substance,” and “possession with intent

to manufacture or distribute . . . a controlled substance.” In the same way that the phrase “use . . . of

physical force against the person or property of another” includes intentionality, so too does a phrase

such as “manufacture of a controlled substance” carry

with it knowledge that the substance is a controlled

substance. See id.

The government’s new analytical approach offers

neither uniformity nor simplicity. Under its approach, Florida’s outlier law—one that was virtually

nonexistent in 1986—would qualify as a “serious drug

offense,” even though the same conduct would not

satisfy the elements of federal law or the laws of the

other States.

The categorical approach Mr. Shular advances requires courts to ask a simple question: Whether the

prior conviction required knowledge of the substance’s illicit nature. That approach is faithful to

the text of the statute, consistent with the way the

Court has historically construed ACCA, and produces

uniform results for different cases and different defendants.

I. SECTION 924(e)(2)(A)(ii) LISTS WELLKNOWN

OFFENSES,

NOT

“ACTION

WORDS”

1. The government’s textual analysis begins and

ends with only one word: “involving.” That narrow

focus is misplaced because what is essential to resolving the question presented here is the meaning of the

words that follow: “manufacturing, distributing, or

3

possessing with intent to manufacture or distribute, a

controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii).

Mr. Shular’s empirical analysis showed that “manufacturing, distributing, and possession with intent

to manufacture or distribute” were well-known controlled substance offenses used at the federal level

and throughout the States at the time Congress

amended ACCA in 1986 to include “serious drug offenses.” See Pet. Br. at 9–13; Pet. Br. App. Then, as

now, those offenses almost universally carried a mens

rea requirement, even if the words used in the various statutes were (and are) not consistent. The government’s response is that these terms are “plain action words,” but even if that were correct grammar

(and it’s not—it’s not grammar at all), 1 these action

words still denote intentionality. See U.S. Br. at 15.

The government further contends that Mr. Shular’s

detailed history of the state and federal drug trafficking offenses “simply assumes the answer to the question presented in this case.” Id. at 26 (citing Pet. Br.

at 10–13, 19–23). But Mr. Shular has assumed the

truth of no premise in his argument and, obviously,

the parties in this case are squarely at odds over precisely what “manufacturing, distribution, and possession with intent to manufacture or distribute” 2

The appellation “action words” is not found in any other

opinion issued by this Court, ever.

1

2 The government’s contention that Congress’ inclusion of the

“possession with intent” offense signals a decision to exclude

mens rea from distribution and manufacture demonstrates a

misunderstanding of different criminal elements and cannot be

credited. U.S. Br. at 15. The specific intent element in “possession with intent to distribute” offenses is an entirely different

element of an offense that elevates simple possession offenses

into more serious trafficking offenses. This apples-to-oranges

comparison provides no insight into the question presented here.

4

means. Again, the government offers up the phrase

“action words,” but nowhere grapples with the definition of those words.

The government’s theory instead rests on the presumption that the term “involving” transforms the

character of the words that follow it, such that offenses become conduct, negating any need for an offense-matching inquiry. It wishes the words of the

statute read as it writes them: involving “the activity

of manufacturing, distributing, or possessing with intent to distribute a controlled substance.” U.S. Br. at

18 (emphasis added). But that is not the statute that

Congress enacted.

The Court’s precedent dispels the notion that the

term “involving” negates the need for a categorical

inquiry that matches predicate offenses to their generic analogues. See Scheidler, 537 U.S. at 410. In

Scheidler, when analyzing RICO, 18 U.S.C.

§ 1961(1)(A), where “involving” precedes the qualifying offense of “extortion,” the Court determined that

“the Model Penal Code and a majority of States recognize the crime of extortion as requiring a party to

obtain or to seek to obtain property” and thus “the

state extortion offense for purposes of RICO must have

a similar requirement.” See Scheidler, 537 U.S. at

410 (emphasis added).

The Court’s analytical approach has been consistent, and the Court’s reliance in Scheidler on Taylor to reach this conclusion confirms that it was

benchmarking the state offense against its generic

analogue. Id. at 410–11. Just as the offensematching test applies when the word “involving” precedes the offense of “extortion” in § 1961(1)(A), id. at

409–11, it likewise applies when the word “involving”

precedes “manufacturing, distributing, or possessing

with intent to manufacture or distribute,”

5

§ 924(e)(2)(A)(ii). Concessions by the parties did not

control the analysis in Scheidler. See U.S. Br. at 24.

Nor did the Court simply define “extortion” in a manner akin to consulting a “legal dictionary,” id. at 25,

without comparing the elemental components of the

crime to the generic analogue.

2. The government’s structural analysis is likewise wanting. First, it disregards the significance of

the immediately neighboring federal offense provision, which keys “serious drug offenses” to complete

offenses under the Controlled Substances Act that

have a mens rea requirement—not merely “the activity of” manufacturing, distributing, or possessing with

intent. See 18 U.S.C. § 924(e)(2)(A)(i); see also

McFadden v. United States, 135 S. Ct. 2298, 2302–07

(2015) (explaining the knowledge requirement under

the Controlled Substances Act). If the government’s

interpretation of § 924(e)(2)(A)(ii) is correct, then

§ 924(e)(2)(A)(i) is unnecessary. United States v.

Jicarilla Apache Nation, 564 U.S. 162, 185 (2011)

(“As our cases have noted in the past, we are hesitant

to adopt an interpretation of a congressional enactment which renders superfluous another portion of

that same law.”). Congress simply could have written

a single enhancement provision whereby any controlled substance conviction “involving” (which, in the

government’s view, means “involving the activity of”)

manufacturing, distributing, or possessing with intent to manufacture or distribute qualifies as a “serious drug offense.”

Second,

the

mens

rea

requirement

in

§ 924(e)(2)(A)(ii) is reinforced elsewhere in the statute. Under § 924(c)(1)(A), for example, anyone using

or possessing a firearm in furtherance of a federal

“drug trafficking crime” qualifies for a sentence enhancement. Any crime under the Controlled Sub-

6

stances Act (which each include a mens rea requirement) punishable by more than one year qualifies as

a “drug trafficking crime.” 18 U.S.C. § 924(c)(2). It is

illogical to believe that Congress would require mens

rea for a class of less egregious drug offenses under

§ 924(c), yet omit that requirement in its definition of

the most “serious drug offense[s]” punishable by ten

years or more. See 18 U.S.C. § 924(e)(2)(A)(ii).

Third, although the government calls it something

different, its approach is effectively an elementsclause test akin to those under § 924(e)(2)(B)(i). The

government argues that the described conduct need

not be listed as an express element, so long as some

element in the predicate offense “necessarily entails”

the conduct described. U.S. Br. at 22. That is no different from how the elements clause is interpreted

now, which includes as a “violent felony” any offense

that “has as an element the use, attempted use, or

threatened use of physical force against the person of

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

There are already statutes in which “use of force”

(attempted, threatened, or otherwise) is not an express element of the crime, yet they qualify under the

elements clause because an element of physical injury in a crime necessarily entails the use of force. See,

e.g., Sanchez v. United States, 940 F.3d 526, 535

(11th Cir. 2019) (holding “New York’s second-degree

murder statute, which requires the intentional causation of death, categorically requires use of physical

force,” sufficient to trigger ACCA), cert. denied, No.

19-6279, 2019 WL 6257490 (U.S. Nov. 25, 2019);

United States v. Reid, 861 F.3d 523, 526–28, 529 (4th

Cir. 2017) (holding Va. Code Ann. § 18.2-55, which

criminalizes an inmate’s intentional causation of

“bodily injury” to, among others, correctional officers,

qualifies as a “violent felony” under the elements

7

clause, even though it could be committed by means

such as intentionally spilling water to cause someone

to fall), cert. denied, 138 S. Ct. 462 (2017).

If Congress wanted to adopt a similar test for serious drug offenses, it “presumably would have done so

expressly as it did in the immediately following subparagraph.” See Sandoz Inc. v. Amgen Inc., 137 S.

Ct. 1664, 1677 (2017) (quotation marks omitted).

That it did not here underscores the conclusion that

the government’s interpretation of the statute is incorrect.

Finally, the government puts much stock in the fact

that the state drug offense clause uses “involving” to

introduce its offenses, while the violent felony’s enumerated offense clause begins with “is.” But both

parties agree on the dictionary definition of “involving,” and both agree that the term “involving” better

captures offenses lacking the deep roots of common

law crimes such as burglary. See Pet. Br. at 14; U.S.

Br. at 11, 13. As Mr. Shular previously noted, States

have defined those core drug offenses with all manner

of terminology, including: trafficking, selling, giving,

dispensing, distributing, delivering, promoting, and

producing. See Pet. Br. 13; Pet. Br. App.; e.g., Me.

Stat. tit. 17-A, § 1106 (“furnishing”).

The Court’s generic-offense analysis in Taylor did

not turn on the existence of the word “is,” such that

Congress’ use of “involving” mandates a different result. See U.S. Br. at 17 (citing Taylor v. United

States, 495 U.S. 575, 597 (1990); United States v.

Stitt, 139 S. Ct. 399 (2018); Descamps v. United

States, 570 U.S. 254 (2013)). Rather, the Court in

Taylor relied upon an exhaustive review of ACCA’s

legislative history, the common law, and the generally understood meaning of “burglary” in reaching its

generic-offense approach.

See Taylor v. United

8

States, 495 U.S. 575, 581–96 (1990). The government’s cited passage merely states that Congress’ use

of “is” and “otherwise involves” in § 924(e)(2)(B)(ii)

indicated Congress’ intent to capture a broader range

of burglary offenses than the more limited definition

of burglary advanced by Taylor (viz., burglary limited

to dwellings and at night). Taylor, 495 U.S. at 597.

This brief textual analysis offers but little support to

reject Taylor’s overarching endorsement of the generic-matching approach.

Other cases the government cites for its proposition

have nothing to do with a textual analysis of the word

“is” under § 924(e)(2)(B)(ii). See United States v.

Stitt, 139 S. Ct. 399 (2018) (analyzing the scope of the

term “burglary” in the context of vehicles adapted for

overnight use); Descamps v. United States, 570 U.S.

254 (2013) (analyzing whether the modified categorical approach applied in the context of indivisible

statutes).

3. Even if Congress used “involving” in

§ 924(e)(2)(A)(ii) to introduce “plain action words” describing conduct, such conduct “necessarily entails”

mens rea as to the illicit nature of the substance.

This is because a proper textual analysis still begins

by determining the meaning of such conduct. See

Kawashima v. Holder, 565 U.S. 478, 484 (2012) (determining what the meaning of “deceit” was at the

time the relevant provision was enacted).

Following the approach in Kawashima therefore

requires determining what “manufacturing . . . a controlled substance,” “distributing . . . a controlled substance,” or “possessing with intent to distribute or

manufacture . . . a controlled substance” means.

“When interpreting a statute, we must give words

their ordinary or natural meaning,” and must “construe language in its context and in light of the terms

9

surrounding it.” Leocal, 543 U.S. at 9 (quotation

marks omitted). For example, the phrase “use . . . of

physical force against the person or property of another” carries with it intentionality, even though no

reference to intent appears in the statute. See id.

(evaluating 18 U.S.C. § 16). “[W]e would not ordinarily say a person ‘use[s] . . . physical force against’ another by stumbling and falling into him.” Id. Only

when one acts intentionally, such as by pushing another, can we say he “used physical force” meriting

criminal punishment. See id.

The ordinary meaning of each of “manufacturing,

distributing, or possessing with intent to manufacture or distribute . . . a controlled substance” also carries with it knowledge of the illicit nature of the controlled substance. One cannot be criminally convicted of manufacturing or distributing a controlled substance without forming an antecedent belief about its

illicit nature, because one should not be liable for

“stumbling . . . into” manufacturing or distribution.

Cf. id. Likewise, being criminally liable for possession with intent to distribute or manufacture rests on

the knowledge that the thing being distributed or

manufactured was illicit in nature.

The implied mens rea is all the more appropriate

because

identical

conduct

proscribed

under

§ 924(e)(2)(A)(ii) is punishable under § 841(a)(1) of

the Controlled Substances Act only if it requires

knowledge of the illicit nature of the substance. Cf.

Lopez v. Gonzales, 549 U.S. 47, 60 (2006) (“[A] state

offense constitutes a ‘felony punishable under the

Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”)

(emphasis added); Moncreiffe v. Holder, 569 U.S. 184,

188, 192 (2013) (same).

10

This ordinary meaning was applied across the

States both at the time ACCA was amended and now:

For such conduct to be regarded as criminal, it must

include knowledge as to the illicit nature of the substance. See Pet. Br. App.; e.g., Thomas v. State, 522

P.2d 528, 530 (Alaska 1974) (“The state also concedes

that the statute prohibits only the knowing sale of or

traffic in narcotic drugs, although the statute contains no express provision for a knowledge requirement.”).

This interpretation not only accords with the ordinary meaning and general understanding of those

terms, but also because § 924(e)(1) requires “convictions” for state offenses under § 924(e)(2)(A)(ii). The

presumption of mens rea is not some “burden of proof”

issue, as the government fashions it. U.S. Br. at 28.

The existence of a mens rea as to every single element

of a complete offense is “the rule of, rather than the

exception to, Anglo-American jurisprudence.” United

States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978);

Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019)

(explaining that “Congress intends to require a defendant to possess a culpable mental state regarding

each of the statutory elements that criminalize otherwise innocent conduct.”).

II. THE GOVERNMENT’S RELIANCE ON KAWASHIMA IS MISPLACED

The government rests much of its argument on this

Court’s decision in Kawashima. U.S. Br. at 13–15,

20–22. But Kawashima supports Mr. Shular’s arguments.

There, the Court interpreted an immigration statute that triggered removal of an alien based upon a

prior conviction for an “aggravated felony,” defined as

an “offense that” “involves fraud or deceit.” See Ka-

11

washima, 565 U.S. at 481 (quoting 8 U.S.C.

§ 1101(a)(43)(M)(i)).

The Court noted that interpreting the statute required “a categorical approach.” Id. at 483. And it

conducted this analysis by defining the phrase “involves fraud or deceit” as “meaning offenses with elements that necessarily entail fraudulent or deceitful

conduct.” Id. at 484. The Court proceeded to examine a dictionary definition of deceit and use that definition to examine whether the Kawashimas’ falsetax-return offenses necessarily involved deceit. See

id.

This approach can be broken into two steps: (1) defining “involves” as examining what a prior offense

“necessarily entails”; and (2) defining the object of the

verb “involves” and comparing that to the prior offense. Kawashima’s second step shows that the key

inquiry is how to define the object of “involves.” In

Kawashima, the relevant part of the verb’s object was

“fraud or deceit.” Id. To answer this question, the

Court turned to a dictionary for a definition of “deceit” when the immigration statute was enacted.

“Deceit”—which was the Court’s main focus in light

of the Kawashimas’ prior convictions—is not an offense. And while “fraud,” standing alone, could refer

to an offense, the noscitur a sociis canon counsels interpreting “fraud” in context with “deceit.” See United States v. Williams, 553 U.S. 285, 294 (2008). Together, they require an analysis of “fraudulent or deceitful conduct.” Kawashima, 565 U.S. at 484. Indeed, the phrase “fraud or deceit” has been used to

describe a class of criminal offense known as crimen

falsi. See United States v. Papia, 560 F.2d 827, 846

n.12 (7th Cir. 1977) (describing crimen falsi as “any

crime perpetrated by means of fraud or deceit”). For

example, this same class of conduct underlies the

12

Federal Rule of Evidence allowing impeachment of

witnesses on the basis of prior convictions. Cf. Fed.

R. Evid. 609(A)(2) (allowing impeachment of witnesses previously convicted of “a dishonest act or false

statement”); H.R. Conf. Rep. No. 93–1597, at 9 (1975)

(classifying “dishonest act or false statement” as offenses falling within a class of crimes known historically as crimen falsi).

The government’s failure here to explain the meaning of “manufacturing, distributing, and possessing

with intent” is fatal to its analysis. The government

assumes that those words describe conduct, resting

on the idea that the Kawashima Court “did not construe the phrase [‘involves fraud or deceit’] to require

positing a ‘generic’ version of a ‘fraud’ or ‘deceit’

crime.” U.S. Br. at 14. But that was not a position

argued by either party in Kawashima, and the Court

did not address “generic” offenses. And, the statutory

text and context of the immigration statute do not

prompt the use of a generic analogue in the way that

§ 924(e)(2)(A)(ii) does. The phrase “fraud or deceit”

does not denote generic offenses.

By contrast, the language following “involving” in

the serious-drug-offense provision does denote generic offenses. Pet. Br. at 9–13. Thus, the relevant

question becomes whether Mr. Shular’s prior convictions “necessarily entailed” the conduct proscribed by

those generic offenses. And Mr. Shular’s prior Florida convictions for selling cocaine did not “necessarily

entail” an element of the generic offense of distribution of a controlled substance because the Florida

crime lacks a mens rea element. The same is true of

Mr. Shular’s Florida conviction for possession with

intent to distribute a controlled substance.

As this Court’s analysis in Scheidler shows, the answer in cases such as this one lies not in the word

13

“involving” but in its object. Both Scheidler and Kawashima apply a categorical approach. And both required the Court to interpret the meaning of words

following “involving” in a statute. Scheidler involved

generic offenses, so the Court looked to whether the

prior conviction had the same elements as the defined

generic offense. Kawashima described conduct, so

the Court could look to see whether the elements of

the prior conviction required that conduct.

Contrary to the government’s assertion, Mr. Shular’s objections do not “rest largely” on a “misunderstanding of the Kawashima approach adopted by the

court below.” U.S. Br. at 19. Indeed, the Eleventh

Circuit did not cite Kawashima in either the per curiam opinion on review in this Court or in the Eleventh

Circuit’s precedent it relied upon. See generally

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

2014). Moreover, neither court applied the two-step

analysis turning on conduct necessarily entailed

within an element of an offense, as the government

suggests. Rather, the Eleventh Circuit in Smith essentially agreed with Mr. Shular’s position that

§ 924(e)(2)(A)(ii) listed offenses; it just believed, contrary to a large body of statutory history and evidence, that those offenses did not include a mens rea

element. See id.

III. THE GOVERNMENT’S APPROACH OFFERS NEITHER UNIFORMITY NOR SIMPLICITY

The government’s incomplete textual analysis results in a new approach under ACCA that would have

the effect of sweeping in Florida’s outlier statutes.

The government suggests its approach offers both

uniformity and simplicity. That is wrong on both accounts.

14

1. “In terms of fundamental fairness, [ACCA]

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, 495 U.S. at

582. Mooring the sentencing enhancement to a

standard offense definition prevents the inclusion of

“bizarre or unexpected state offenses.” Lockhart v.

United States, 136 S. Ct. 958, 968 (2016).

Mr. Shular’s approach serves that purpose. That

the government makes the opposite assertion does

not make it so. See U.S. Br. at 31–32. The overwhelming majority of state drug crimes required

mens rea when the federal statute was enacted in

1986, and still require it today. See Pet. Br. App.

Florida stands apart. It does not punish individuals

for the same conduct. Evidence sufficient to convict

in Florida would not be enough to convict in a trial

under federal law nor in any other state.

The government argues that all of Mr. Shular’s prior convictions “require a particular mens rea,” i.e.,

“knowledge of the presence of the substance.” See

U.S. Br. at 27. This is a misstatement of Florida law

for two reasons: (1) knowledge of the presence of the

substance applies only to possession offenses, In re

Standard Jury Instructions in Crim. Cases (No. 20053), 969 So. 2d 245, 248 (Fla. 2007) (per curiam); and

(2) knowledge of the presence of the substance, while

it is a state of mind element, is not a mens rea or

guilty knowledge element, Chicone v. State, 684 So.

2d 736, 739–46 (Fla. 1996), superseded by Fla. Stat.

§ 893.101. In any event, the government has conceded that knowledge of the illicit nature of the substance is not an element of the Florida offense. U.S.

Br. at 27.

15

Nothing in the text of § 924(e)(2)(A)(ii) shows that

Congress somehow intended that some portion of

state drug crimes would be incorporated piecemeal

into the federal framework, so that the nearuniversal requirement of mens rea is read completely

out of the statute. Instead, the mens rea requirement

serves an important gatekeeping function under

§ 924(e)(2)(A)(ii)—it ensures that criminal defendants

are treated uniformly under ACCA regardless of the

state where they are convicted.

Without the presumption of mens rea, prior crimes

like Mr. Shular’s trigger an enhancement under federal law even though the conviction arose under Florida law, which is significantly different than Pennsylvania law, for example. This absurd result conflicts with congressional intent that the courts apply

federal statutes uniformly throughout the country,

and the Court should reject the government’s attempt

to shoehorn any state drug crime, even those without

mens rea, into “statutory sections where it does not

fit.” Leocal, 543 U.S. at 13.

Although this case is about mens rea, the government’s approach invites application in the future to

other activities it argues are “necessarily entailed” in

drug trafficking offenses, far beyond the intent of

Congress in defining “serious drug offenses.”

2. Nor does the government’s approach offer simplicity. As an initial matter, the government’s analytical framework is not one courts have ever applied

under ACCA before, nor has its “Kawashima approach” been adopted in other contexts. Should the

Court adopt the government’s approach, there will

inevitably be a new line of cases testing the bounds of

this entirely new analytical framework that will necessitate further clarification from this Court. By

contrast, the generic-offense approach espoused in

16

Taylor has been in use for almost thirty years and is

one with which courts, including this one, are intimately familiar.

Under Mr. Shular’s approach, courts will not have

difficulty “synthesiz[ing]” a generic version of these

offenses. See U.S. Br. at 30. As the government itself notes, nearly all of the elements of these offenses

are included in the name of such offenses. U.S. Br. at

15. For example, “distribution of a controlled substance,” under Mr. Shular’s formulation, contains

three elements: (1) distribution; (2) of a controlled

substance; and (3) with knowledge of the illicit nature

of the substance. Given the nature and number of

elements, these kinds of offenses do not lend themselves to the same kinds of challenges other enumerated offense have, such as what constitutes a “dwelling,” or at what point the intent to commit a felony

within a building or structure. See Stitt, 139 S. Ct. at

407; Quarles v. United States, 139 S. Ct. 1872, 1875

(2019).

It is difficult to see how Mr. Shular’s formulation

would be more challenging to apply than the government’s. To its credit, the government has adopted a

narrow definition of “involving,” and seems to have

abandoned the unmoored interpretation of “involving” that other courts have applied in the past. See

U.S. Br. at 28–29 (declining to respond to Mr. Shular’s argument about the problems with an expansive

definition of “involving,” saying only “that is not the

case here”). Under the government’s approach, any

inquiry for what constitutes the activity of “distribution of a controlled substance” would likewise satisfy

those elements under Mr. Shular’s test. 3

3 And, in any event, one of the elements—whether a substance

is controlled—will be immune from extensive litigation in courts

17

All that is left, then, is the one element the government hopes to avoid—whether the defendant had

knowledge as to the illicit nature of the substance.

This question would easily be satisfied in all but one

state, Florida, as that element is necessary for conviction in all other states. Thus, adopting the categorical approach advanced by Mr. Shular would not trigger a mass review of previously sentenced defendants. Contra Rehaif, 139 S. Ct. at 2201 (Alito, J. and

Thomas, J., dissenting) (“Today’s decision will make

it significantly harder to convict persons falling into

some of these categories, and the decision will create

a mountain of problems with respect to the thousands

of prisoners currently serving terms for § 922(g) convictions.”)

Beginning with Taylor, the Court could have simply

matched the “labels” and let the States’ definitions of

offenses control the determination of what triggers

sentencing enhancements under ACCA. Instead, the

Court concluded that ACCA should ensure that the

same kind of conduct is punished the same way. Taylor, 495 U.S. at 582. That is what Mr. Shular’s approach does.

given that question is resolved by reference to the federal controlled substances list. See 18 U.S.C. § 924(e)(2)(A)(ii).

18

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

LAURA C. MULHERIN

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

PUBLIC DEFENDER

227 N. Bronough Street,

Suite 4200

Tallahassee, FL 32301

(850) 942-8818

richard_summa@fd.org

Counsel for Petitioner

December 20, 2019

* Counsel of Record