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

No. 18-6662

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

EDDIE LEE SHULAR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether a state drug offense must categorically match the

elements of a generic analogue offense in order to qualify as a

“serious drug offense” under the Armed Career Criminal Act of 1984,

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

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-6662

EDDIE LEE SHULAR, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

OPINION BELOW

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

published in the Federal Reporter but is reprinted at 736 Fed.

Appx. 876.

JURISDICTION

The judgment of the court of appeals was entered on September

5, 2018.

The petition for a writ of certiorari was filed on

November 8, 2018.

28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked under

2

STATEMENT

Following a guilty plea in the United States District Court

for the Northern District of Florida, petitioner was convicted on

one count of possessing with intent to distribute cocaine and

cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C);

and one count of possession of a firearm by a felon, in violation

of 18 U.S.C. 922(g)(1) and 924(e).

Judgment 1.

He was sentenced

to 180 months of imprisonment, to be followed by three years of

supervised release.

Judgment 2-3.

The court of appeals affirmed.

Pet. App. A1-A2.

1.

Law

enforcement

received

trafficking cocaine from his home.

Report (PSR) ¶ 12.

a

tip

that

petitioner

was

Presentence Investigation

With assistance from a confidential source,

investigators conducted three cocaine purchases there.

Ibid.

Based on that information, investigators obtained a warrant to

search petitioner’s residence, which was executed on March 31,

2017.

PSR ¶¶ 12-13.

During the course of the search, officers

located a .32-caliber revolver in the pocket of a man’s jacket

hanging in a closet.

PSR ¶ 14.

stub in petitioner’s name.

That jacket also contained a pay

Ibid.

Officers additionally seized

22.6 grams of cocaine base, 46.2 grams of powder cocaine, $510 in

currency,

a

digital

scale,

empty

small

baggies,

and

various

measuring cups, spoons, and cooking utensils with cocaine residue.

Ibid.

3

A federal grand jury in the Northern District of Florida

charged petitioner with one count of possessing with intent to

distribute cocaine and cocaine base, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(C); and one count of possession of a firearm

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

Indictment 1-3; PSR ¶¶ 1-2.

counts.

2.

Petitioner pleaded guilty to both

Judgment 1; PSR ¶ 5.

The

default

term

of

imprisonment

for

a

felon-in-

possession offense is zero to 120 months. See 18 U.S.C. 924(a)(2).

The Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(1),

increases that penalty to a term of 15 years to life if the

defendant has “three previous convictions

felony or a serious drug offense.”

Ibid.

* * *

for a violent

The ACCA defines a

“serious drug offense” as either

(i) an offense under the Controlled Substances Act

(21 U.S.C. 801 et seq.), the Controlled Substances Import and

Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title

46 for which a maximum term of imprisonment of ten years or

more is prescribed by law; or

(ii)

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).

The Probation Office determined that

petitioner had six prior convictions under Florida law for either

sale of cocaine or possession of cocaine with intent to sell.

¶ 32; see also PSR ¶¶ 48-49.

PSR

It accordingly determined that

4

petitioner qualified for sentencing under the ACCA and calculated

petitioner’s advisory Guidelines range for both counts to be 188

to 235 months.

PSR ¶ 32, 76-77.

Petitioner objected to the Probation Office’s determination

that his Florida drug convictions under Fla. Stat. § 893.13(1)

(2012) constituted “serious drug offense[s]” for purposes of the

ACCA.

D. Ct. Doc. 29 (Dec. 29, 2017).

Petitioner 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 prohibiting

the sale of drugs and possession with intent to sell drugs under

which petitioner had been convicted omitted that mens rea element.

Ibid.; see Sent. Tr. 4-5.

Petitioner acknowledged, however, that

his argument was foreclosed by the Eleventh Circuit’s decision in

United

States v.

Smith,

775

F.3d

1262

(2014),

cert. denied,

135 S. Ct. 2827 (2015); see D. Ct. Doc. 29; Sent. Tr. 5.

In Smith,

the Eleventh Circuit had explained that the ACCA “require[s] only

that the predicate offense ‘involves’

* * *

certain activities

related to controlled substances”; that “[n]o element of mens rea

with respect to the illicit nature of the controlled substance is

expressed or implied by [that] definition”; and that a conviction

under Fla. Stat. § 893.13(1) accordingly qualified as a “serious

5

drug offense” under the ACCA.

775 F.3d at 1267-1268 (quoting

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

Applying Smith, the district court “f[ou]nd that the Florida

drug convictions at issue do qualify as serious drug offenses for

purposes of the [ACCA]” and overruled petitioner’s objection to

the

Probation

Office’s

determination

sentencing under the ACCA.

that

Sent. Tr. 5.

petitioner to 180 months of imprisonment.

3.

he

qualified

for

The court sentenced

Id. at 10.

The court of appeals affirmed in an unpublished per

curiam opinion.

Pet. App. A1-A2.

The court held that its prior

decision in Smith foreclosed petitioner’s contention that his

Florida drug convictions under Fla. Stat. § 893.13(1) (2012) did

not qualify as “serious drug offenses” under the ACCA.

A2.

Pet. App.

Petitioner contended on appeal that Smith “[wa]s incorrect,”

but the court explained that it was bound by Smith’s holding.

Ibid.

ARGUMENT

Petitioner contends (Pet. 23-24) that the district court

erred in concluding that his Florida drug offenses constitute

“serious

drug

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

offenses”

under

the

and

only

state

that

ACCA,

drug

18

U.S.C.

offenses

that

categorically match the elements of “their generic analogues”

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

rejected that contention.

The court of appeals correctly

The question presented, however, has

6

divided the courts of appeals, and this Court’s review is warranted

to resolve this frequently recurring issue.

1.

The

court

of

appeals

correctly

determined

that

petitioner’s convictions under Fla. Stat. § 893.13(1) (2012) were

convictions for a “serious drug offense” under the ACCA.

Pet.

App. A1-A2.

a.

As relevant here, the ACCA defines a “serious drug

offense”

to

include

manufacturing,

“an

offense

distributing,

or

under

State

possessing

law,

with

involving

intent

to

manufacture or distribute, a controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

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

The Florida statute under which

petitioner was convicted provided that “it is unlawful for any

person to sell, manufacture, or deliver, or possess with intent to

sell,

manufacture,

specifically cocaine.

or

deliver,

a

controlled

substance,”

Fla. Stat. § 893.13(1)(A)(1) (2012).

As the court of appeals correctly determined, a conviction

under Fla. Stat. § 893.13(1)(A)(1) (2012) is a conviction for an

offense

that

“involv[es]

manufacturing,

distributing,

or

possessing with intent to manufacture or distribute, a controlled

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

See United States v.

Smith, 775 F.3d 1262, 1267-1268 (2014), cert. denied, 135 S. Ct.

2827 (2015).

The word “involve[]” means to “include (something)

as a necessary part or result.”

The New Oxford Dictionary of

7

English 962 (2001); see Random House Dictionary of the English

Language

1005

(2d

circumstance,

ed.

1987)

condition,

(“1.

or

to

include

consequence”);

as

a

necessary

Oxford

American

Dictionary 349 (1980) (“1. to contain within itself, to make

necessary as a condition or result”); Webster’s New International

Dictionary 1307 (2d ed. 1949) (“to contain by implication; to

require,

as

implied

etc.”).

And

a

elements,

violation

of

antecedent

conditions,

Florida’s

statute

effect,

“necessarily

entail[s],” Kawashima v. Holder, 565 U.S. 478, 484 (2012), one of

the types of conduct specified in 18 U.S.C. 924(e)(2)(A)(ii).

See

Kawashima, 565 U.S. at 484 (construing the term “involve”).

To be

convicted of violating the Florida statute, a person must have

engaged

in

either

delivering),

or

manufacturing,

possessing

distributing

with

intent

to

(by

selling

or

manufacture

or

distribute a controlled substance.

b.

Petitioner contends (Pet. 23-24) that only state-law

offenses that contain a specific mens rea element -- that the

individual

had

“knowledge

controlled

substance,”

that

Pet.

24

he

--

or

she

is

constitute

offense[s]” under Section 924(e)(2)(A)(ii).

dealing

with

“serious

a

drug

He argues (Pet. 5,

23) that, under the “categorical approach” this Court has applied

in Taylor v. United States, 495 U.S. 575 (1990), and subsequent

cases “to determine whether a prior conviction constitutes a

‘violent felony’” under Section 924(e)(2)(B), courts must identify

8

a “generic analogue” of a state offense and that a state-law

offense

does

categorical

not

constitute

approach

analogue[].”

if

it

a

is

“violent

“broader

felony”

th[a]n

under

[its]

the

generic

Petitioner additionally contends (Pet. 24) that “a

survey of federal and state law shows that the generic offenses of

sale of cocaine and possession with intent to sell cocaine include

a mens rea element.”

Petitioner’s argument lacks merit.

The text of the definition of “serious drug offense” in

Section 924(e)(2)(A)(ii) requires comparing a state-law offense to

a federal-law analogue in only one respect:

it requires that the

state-law offense regulate a “controlled substance (as defined in

[21 U.S.C. 802]).”

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

Petitioner does

not dispute that his prior convictions satisfy that requirement.

The remainder of the definition requires only a determination

whether

the

distribution,

state-law

or

offense

possession

“involv[es]”

with

intent

the

to

manufacture,

distribute

or

manufacture those substances. “No element of mens rea with respect

to the illicit nature of the controlled substance is expressed or

implied.”

Smith, 775 F.3d at 1267.

Petitioner does not, for

example, suggest that “distribut[ion]” of a substance inherently

requires

a

precise

characteristics.

“to

deliver

controlled

understanding

of

the

substance’s

Cf. 21 U.S.C. 802(11) (defining “distribute” as

(other

than

by

administering

substance

or

listed

chemical”);

or

dispensing)

21

U.S.C.

a

802(8)

9

(defining

“deliver”

to

include

any

“actual,

constructive,

or

attempted transfer of a controlled substance”).

Section

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

differs

from

Section

924(e)(2)(B)(ii), the part of the definition of “violent felony”

at issue in Taylor, which states that a state-law crime is a

violent felony if (inter alia) that crime “is burglary, arson, or

extortion.” 18 U.S.C. 924(e)(2)(B)(ii) (emphasis added).

definition,

the

Court

held

identifying

the

“generic

in

Taylor,

meaning”

of

necessarily

the

That

required

enumerated

crimes.

495 U.S. at 598; see United States v. Stitt, 139 S. Ct. 399, 405

(2018).

By contrast, Section 924(e)(2)(A)(ii) does not call for

courts to identify any generic crime to serve as the analogue for

particular state-law offenses. A court need only determine whether

a state-law offense of which a defendant was convicted “involv[es]”

the conduct set forth in Section 924(e)(2)(A)(ii).

18 U.S.C.

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

Contrary to petitioner’s contention (Pet. 6, 11, 14, 17, 19,

23), the court of appeals does not “reject[]” the “categorical

approach”

in

classifying

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

prior

convictions

under

Section

Although the word “involves” can be consistent

with either a circumstance-specific or a categorical approach,

compare Kawashima, 565 U.S. at 484 (categorical), with Nijhawan v.

Holder, 557 U.S. 29, 33-40 (2009) (circumstance-specific), the

court of appeals agrees with petitioner that the latter approach

10

is required here.

Like this Court in Taylor, the court of appeals

“look[s]

the

only

to

fact

of

conviction

and

the

statutory

definition” of the prior offense, 495 U.S. at 600 -- not to the

specific facts of the underlying offenses.

States

v.

White,

837

F.3d

1225,

1229

See, e.g., United

(11th

Cir.

2016)

(“In

determining whether a state conviction qualifies as a predicate

under” Section 924(e)(2)(A)(ii), “we follow what is described as

a categorical approach.

Under this approach, we are concerned

only with the fact of the conviction and the statutory definition

of the offense, rather than with the particular facts of the

defendant’s crime.” (citing Smith, 775 F.3d at 1267; other citation

and internal quotation marks omitted)).

The court of appeals

simply determines on a categorical basis whether the state-law

predicate offense “involves” the conduct specified in Section

924(e)(2)(A)(ii), rather than whether the state-law offense “is”

completely equivalent to (or subsumed by) the definition of a

generic crime, 18 U.S.C. 924(e)(2)(B)(ii).

1267;

cf.

Sessions

(explaining

that

an

v.

Dimaya,

approach

138

that

S.

See Smith, 775 F.3d at

Ct.

1204,

1211

(2018)

examines

“what

is

legally

necessary for a conviction” is a “categorical” approach).

2.

Although the court of appeals correctly resolved the

question presented, its decision implicates a circuit conflict

that warrants resolution by this Court.

11

In addition to the Eleventh Circuit, at least seven other

circuits have adopted similar constructions of the ACCA’s “serious

drug offense” definition.

See United States v. McKenney, 450 F.3d

39, 42-43 (1st Cir.), cert. denied, 549 U.S. 1011 (2006); United

States v. King, 325 F.3d 110, 113-114 (2d Cir.), cert. denied,

540 U.S. 920 (2003); United States v. Gibbs, 656 F.3d 180, 185-186

(3d Cir. 2011), cert. denied, 565 U.S. 1170 (2012); United States

v. Brandon, 247 F.3d 186, 190-191 (4th Cir. 2001); United States

v. Winbush, 407 F.3d 703, 707-708 (5th Cir. 2005); United States

v. Bynum, 669 F.3d 880, 886 (8th Cir.), cert. denied, 568 U.S. 857

(2012); United States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir.),

cert. denied, 552 U.S. 939 (2007).

For example, the Eighth Circuit has determined that “[the

ACCA] uses the term ‘involving,’ an expansive term that requires

only that the conviction be ‘related to or connected with’ drug

manufacture, distribution, or possession.”

886.

Bynum, 669 F.3d at

Similarly, the Third Circuit has observed that “Congress

used broad terminology -- ‘involving’ -- to define the category of

serious state drug offenses,” and it has accordingly instructed

sentencing courts to examine the definition of the state offense

only to discern whether the offense is “related to or connected

with manufacturing, distributing, or possessing, with intent to

12

manufacture or distribute, a controlled substance or if it is too

remote or tangential.”

Gibbs, 656 F.3d at 185-186. 1

By contrast, the Ninth Circuit held in United States v.

Franklin, 904 F.3d 793, 800-802 (2018), that the state-law drug

offense must categorically match the elements of a federal analogue

offense in order to qualify as a “serious drug offense” under the

ACCA.

See

ibid.

In

the

Ninth

Circuit’s

view,

Section

924(e)(2)(A)(ii) lists full “crimes,” rather than conduct that can

form part of a crime, and courts must “give content to the listed

crimes

* * *

and determine whether elements of the state crime

* * *

match the elements” of a generic federal crime.

Id. at

802.

On

because

that

“Washington’s

basis,

accomplice

the

court

liability

concluded

statute”

was

that,

“broader

than

generic federal drug trafficking laws,” a Washington drug offense

Petitioner mistakenly contends that the Third Circuit

requires a categorical match between the state drug offense and a

federal analogue.

Pet. 20 (citing United States v. Henderson,

841 F.3d 623, 627-628 (3d Cir. 2016), cert. denied, 138 S. Ct. 210

(2017)). In Henderson, the Third Circuit applied a categorical

approach in concluding that a Pennsylvania drug statute regulated

a list of controlled substances longer than the substances

enumerated in the Controlled Substances Act, 21 U.S.C. 802 (2012

& Supp. V 2017).

Because the ACCA’s “serious drug offense”

definition expressly ties the state-law offense to the analogue

federal offense on that one element -- the identity of the

controlled substance -- the Third Circuit’s analysis was correct.

That conclusion casts no doubt on the court’s earlier determination

in Gibbs that a state-law offense need not categorically match a

federal analogue offense to satisfy 18 U.S.C. 924(e)(2)(A)(ii).

See 656 F.3d at 184-186.

1

13

was “thus not categorically a ‘serious drug offense’ under the

ACCA.”

Id. at 803.

As petitioner observes (Pet. 10, 22), the government filed a

petition

for

disagreement

rehearing

between

en

the

multiple other circuits.

banc

panel’s

in

Franklin,

reasoning

identifying

and

decisions

See generally Pet. App. D.

the

of

The Ninth

Circuit denied that petition, foreclosing the possibility that the

circuit conflict will resolve itself in the immediate future. 2

3.

The question presented is important because state drug

offenses are frequently recurring ACCA predicates.

In addition,

the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194,

incorporated the definition of “serious drug offense” at issue

here into the Controlled Substances Act for purposes of identifying

prior convictions that will trigger recidivism enhancements for

various drug crimes.

Tit. IV, § 401(a)(1).

Petitioner notes (Pet. 20-21) that the Sixth Circuit has

also suggested that a state drug offense must categorically fit

within the elements of a “generic definition of the crime” in order

to qualify as a “serious drug offense” under the ACCA. See United

States v. Goldston, 906 F.3d 390, 393 (6th Cir. 2018).

In its

actual analysis, however, it simply compared the conduct covered

by the Tennessee drug statute at issue to the definition of

“distribute” in 21 U.S.C. 802(11).

See 906 F.3d at 394-397.

Whether or not that was the correct definition of distribute, see

18 U.S.C. 924(e)(2)(A)(ii) (defining “controlled substance” by

reference to 21 U.S.C. 802 (2012 & Supp. V 2017)), the court did

not expressly require that the Tennessee statute match the full

set of elements of a generic crime.

2

14

This case presents a suitable vehicle for resolving the

question, and certiorari on that question is warranted.

The

government also intends to file a petition for a writ of certiorari

in Franklin, and the same question is additionally presented in

the petition for a writ of certiorari in Hunter v. United States,

No. 18-7105 (filed Dec. 6, 2018).

The Court may therefore wish to

consider those cases together with this one before granting review

on the question presented.

CONCLUSION

The petition for a writ of certiorari should either be granted

or held pending this Court’s disposition of the petition for a

writ of certiorari in Hunter v. United States, No. 18-7105 (filed

Dec. 6, 2018) and the forthcoming petition for a writ of certiorari

seeking review of United States v. Franklin, 904 F.3d 793 (9th

Cir. 2018).

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

FEBRUARY 2019