Petition for Writ of Certiorari — Shamar Cortez Womack, Petitioner v. United States

Supreme Court briefOct 20, 2022

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No. 22IN THE

Supreme Court of the United States

_____________

SHAMAR CORTEZ WOMACK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_____________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

ADAM NICHOLSON

Assistant Federal

Public Defender

FEDERAL PUBLIC

DEFENDER’S OFFICE

NORTHERN DISTRICT OF

TEXAS

525 S. Griffin Street

Suite 629

Dallas, TX 75202

(214) 767-2746

XIAO WANG

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

NICOLE M. BAADE

SIDLEY AUSTIN LLP

555 West Fifth Street

Suite 4000

Los Angeles, CA 90013

MEREDITH R. ASKA

MCBRIDE

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

Counsel for Petitioner

October 20, 2022

* Counsel of Record

QUESTION PRESENTED

Under the categorical approach to classifying a prior

conviction, a state offense is nongeneric or overbroad

if it covers conduct that its federal counterpart does

not reach. In Gonzales v. Duenas-Alvarez, 549 U.S. 183

(2007), this Court held that—when no apparent daylight exists between the statutory elements of the state

and generic offenses—a defendant arguing that a state

conviction is nongeneric “must at least point to his own

case or other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner

for which he argues.” Id. at 193. The question presented is:

When a state statute is facially broader than its federal counterpart, must a defendant still offer examples

of overbroad state prosecutions to confirm the statute’s

scope?

(i)

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is Shamar Cortez Womack.

Respondent is the United States of America.

There are no corporate parties involved in this case.

iii

RULE 14.1(B)(iii) STATEMENT

This case arises from the following proceedings in

the United States District Court for the Northern District of Texas and the United States Court of Appeals

for the Fifth Circuit:

United States v. Womack, No. 21-10942, 2022 WL

1073860 (5th Cir. Apr. 11, 2022);

United States v. Womack, No. 4:21-CR-50-Y(1) (N.D.

Tex. Sept. 14, 2021).

There are no other proceedings directly related to

this case.

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT .......................................

RULE 14.1(B)(iii) STATEMENT.........................

iii

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

PETITION FOR A WRIT OF CERTIORARI ......

OPINIONS AND ORDERS BELOW ..................

STATEMENT OF JURISDICTION ....................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......................

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

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

REASONS FOR GRANTING THE PETITION ..

There is an entrenched, lopsided split on

whether Duenas-Alvarez’s “actual case”

requirement applies when a state statute

is facially broader than its federal counterpart .......................................................

A. The Fifth Circuit alone reads Duenas-Alvarez to require an “actual

case” despite clear statutory language ...............................................

B. Ten circuits reject the Fifth Circuit’s outlier rule ............................

II.

The Fifth Circuit’s decision is wrong .......

III.

The question presented is important and

recurring ....................................................

TABLE OF CONTENTS—continued

Page

IV.

This case is an ideal vehicle to resolve the

split ............................................................

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

APPENDICES

APPENDIX A: Opinion, United States v. Womack, No. 21-10942, 2022 WL 1073860 (5th Cir.

Apr. 11, 2022) ......................................................

APPENDIX B: Judgment, United

States

Womack, No. 4:21-CR-050-Y(1) (N.D. Tex. Sept.

14, 2021) ...............................................................

APPENDIX C: Rehearing

Banc

Denial, United States v. Womack, No. 21-10942

(5th Cir. May 23, 2022)........................................

TABLE OF AUTHORITIES

CASES

Page

Alejos-Perez v. Garland,

991 F.3d 642 (5th Cir. 2021) ..................... 10, 27

Alexis v. Barr,

960 F.3d 722 (5th Cir. 2020) ......... 10, 11, 20, 27

Bedroc Ltd. v. United States,

541 U.S. 176 (2004) ...................................

Beltran-Aguilar v. Whitaker,

912 F.3d 420 (7th Cir. 2019) .....................

Betansos v. Barr,

928 F.3d 1133 (9th Cir. 2019) ...................

Chavez-Solis v. Lynch,

803 F.3d 1004 (9th Cir. 2015) ...................

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ...................

Da Graca v. Garland,

23 F.4th 106 (1st Cir. 2022) ......................

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) ..............................

Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007) ............................ 4, 7, 8, 19

Gonzalez v. Wilkinson,

990 F.3d 654 (8th Cir. 2021) ......... 12, 13, 19, 20

Gordon v. Barr,

965 F.3d 252 (4th Cir. 2020) ..................... 14, 15

In re Hall,

979 F.3d 339 (5th Cir. 2020) ................ 10, 11, 27

Hylton v. Sessions,

897 F.3d 57 (2d Cir. 2018) ............

13, 14, 19

Jean-Louis v. Att’y Gen.,

582 F.3d 462 (3d Cir. 2009) ......................

vii

TABLE OF AUTHORITIES—continued

Page

Mathis v. United States,

579 U.S. 500 (2016) .................... 4, 18, 20, 21, 24

Mellouli v. Lynch,

575 U.S. 798 (2015) ..................................

Mendieta-Robles v. Gonzales,

226 F. App’x 564 (6th Cir. 2007)...............

Moncreiffe v. Holder,

569 U.S. 184 (2013) ...................................

Ortiz v. Barr,

962 F.3d 1045 (8th Cir. 2020) ...................

Pereida v. Wilkinson,

141 S. Ct. 754 (2021) .................................

Ramos v. U.S. Att’y. Gen.,

709 F.3d 1066 (11th Cir. 2013) .................

Salmoran v. Att’y Gen. U.S.,

909 F.3d 73 (3rd Cir. 2018) .......................

Shular v. United States,

140 S. Ct. 779 (2020) ................................. 18, 4

Singh v. Att’y Gen.,

839 F.3d 273 (3d Cir. 2016) ................. 14, 19, 21

Swaby v. Yates,

847 F.3d 62 (1st Cir. 2017) .......................

Taylor v. United States,

495 U.S. 575 (1990) .......................... 3, 18, 21, 22

United States v. Abdulaziz,

998 F.3d 519 (1st Cir. 2021) .....................

United States v. Castillo-Rivera,

853 F.3d 218 (5th Cir. 2017) (en banc)….. 5, 8, 9

10, 22, 23, 26

United States v. Elizalde-Perez,

727 F. App’x 806 (5th Cir. 2018)............... 11, 27

United States v. Espinoza-Bazaldua,

711 F. App’x 737 (5th Cir. 2017)............... 11, 27

United States v. Gracia-Cantu,

920 F.3d 252 (5th Cir. 2019) ..................... 10, 27

viii

TABLE OF AUTHORITIES—continued

Page

United States v. Herrold,

941 F.3d 173 (2019) (en banc)...................

United States v. Jennings,

860 F.3d 450 (7th Cir. 2017) .....................

United States v. Lara,

590 F. App’x 574 (6th Cir. 2014)...............

United States v. Maldonado,

864 F.3d 893 (8th Cir. 2017) .....................

United States v. Maxwell,

823 F.3d 1057 (7th Cir. 2016) ...................

United States v. O’Connor,

874 F.3d 1147 (10th Cir. 2017) .................

United States v. Redrick,

841 F.3d 478 (D.C. Cir. 2016) ...................

United States v. Reyes-Contreras,

910 F.3d 169 (2018) ..................................

United States v. Taylor,

142 S. Ct. 2015 (2022) .......................... 22, 23, 26

United States v. Titties,

852 F.3d 1257 (10th Cir. 2017) ..... 16, 17, 19, 25

United States v. Williams,

No. 21-11263 (5th Cir. Oct. 12, 2022) .......

United States v. Young,

872 F.3d 742 (5th Cir. 2017) ..................... 11, 27

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) .....................

Vazquez v. Sessions,

885 F.3d 862 (5th Cir. 2018) ..................... 10, 27

Vetcher v. Barr,

953 F.3d 361 (5th Cir. 2020) ..................... 10, 27

STATE CODES

Ark. Code Ann. § 5-64-101(15)(A)(i) (West)

(eff. July 31, 2007 to June 30, 2019) ........ 3, 25

Ark. Code Ann. § 5-64-101(15)(B) ................

TABLE OF AUTHORITIES—continued

Page

Ark. Code Ann. § 5-64-214 ...........................

Ark. Code Ann. § 5-64-215 ...........................

Ark. Code Ann. § 5-64-215(a)(4) ..................

Ark. Code. Ann. § 5-64-436(a) ................. 6, 24, 28

FEDERAL STATUTES

7 U.S.C. § 1639o(1) ....................................... 3, 25

8 U.S.C. §1101(a)(43)(G) ..............................

8 U.S.C. § 1229a(c)(3)(A) ..............................

18 U.S.C. § 922(g)(1) .................................... 1, 2, 5

18 U.S.C. § 924(a)(2) .................................... 5, 28

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

18 U.S.C. § 924(e)(1) ...................... 2, 6, 18, 28

18 U.S.C. § 924(e)(2)(A)(ii)................ 2, 18, 24

21 U.S.C. § 801 .............................................

21 U.S.C. § 802(16) ....................................... 2, 3

21 U.S.C. § 802(16)(A) ..................................

21 U.S.C. § 802(16)(B) ..................................

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

USSG § 4B1.4 ...............................................

OTHER AUTHORITIES

U.S.S.C., Federal Armed Career Criminals:

Prevalence, Patterns, and Pathways

(Mar. 2021), https://www.ussc.gov/

sites/default/files/pdf/research-andpublications/research-publications/

2021/20210303_ACCA-Report.pdf ............

PETITION FOR A WRIT OF CERTIORARI

Shamar Cortez Womack respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (Pet. App. 1a–2a)

is not reported but is available at 2022 WL 1073860.

The judgment imposing sentence (Pet. App. 3a–5a) is

not published in the Federal Supplement or on

Westlaw.

STATEMENT OF JURISDICTION

The court of appeals entered judgment on April 11,

2022. Pet. App. 1a. Mr. Womack filed a timely petition

for rehearing, which the Fifth Circuit denied on May

23, 2022. Pet. App. 6a. Justice Alito then issued two

orders extending the deadline to file this petition by 30

days each, for a total of 150 days from the order denying the petition for rehearing. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

18 U.S.C. § 922(g)(1) provides:

It shall be unlawful for any person . . .

who has been convicted in any court of, a

crime punishable by imprisonment for a

term exceeding on year . . . to ship or

transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which

has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to

in section 922(g)(1) of this title for a violent felony or a serious drug offense, or

both, committed on occasions different

from one another, such person shall be

fined under this title and imprisoned not

less than fifteen years, and, notwithstanding any other provision of law, the

court shall not suspend the sentence of,

or grant a probationary sentence to, such

person with respect to the conviction under section 922(g).

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

As used in this subsection . . . the term

“serious drug offense” means . . . 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 . . . .

21 U.S.C. § 802(16) provides, in relevant part:

(A) Subject to subparagraph (B), the

term “marihuana” means all parts of

the plant Cannabis sativa L.,

whether growing or not; the seeds

thereof; the resin extracted from any

part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such

plant, its seeds or resin.

(B) The term “marihuana” does not include—

(i)

hemp, as defined in section

1639o of title 7 . . . .

7 U.S.C. § 1639o(1) provides:

The term “hemp” means the plant Cannabis sativa L. and any part of that plant,

including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,

acids, salts, and salts of isomers, whether

growing or not, with a delta-9 tetrahydrocannabinol concentration of not more

than 0.3 percent on a dry weight basis.

Ark. Code Ann. § 5-64-101(15)(A)(i) (West) (eff. July

31, 2007 to June 30, 2019) provides:

“Marijuana” means . . . [a]ny part and

any variety or species, or both, of the

Cannabis plant that contains THC (Tetrahydrocannabinol) whether growing or

not . . . .

INTRODUCTION

This Court has long applied the “categorical approach” to classify a criminal conviction for various

purposes. For example, the categorical approach determines whether a defendant’s prior conviction qualifies

as a “violent felony” or “serious drug offense” under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), with significant sentencing implications. See

Taylor v. United States, 495 U.S. 575, 600 (1990). The

categorical approach has always “involve[d], and involve[d] only, comparing elements. Courts must ask

whether the crime of conviction is the same as, or narrower than, the relevant generic offense” or other federal law comparator. Mathis v. United States, 579 U.S.

500, 519 (2016). In making this comparison, the state

statute’s text is the obvious starting point—and, if it is

facially broader than its federal counterpart, it is the

end point as well.

This Court has looked beyond the statutory text only

when a party has urged an unintuitive reading of that

language. In Gonzales v. Duenas-Alvarez, 549 U.S. 183

(2007), a categorical-approach case in the immigration

context, the state theft statute’s elements were identical to those of the generic offense. Id. at 187, 189. The

noncitizen, however, argued that his offense was nongeneric because the state courts had applied the statute more broadly. Id. at 190. Since this broader interpretation was in no way apparent from the statutory

text, this Court required him to “at least point to his

own case or other cases in which the state courts in

fact did apply the statute in the special (nongeneric)

manner for which he argues.” Id. at 193.

Ten circuits correctly apply Duenas-Alvarez’s “actual

case” requirement only when the state statute’s scope

is unclear. In that situation, the defendant must substantiate his claim that the state law is broader than

its federal counterpart. But, in keeping with the most

basic principles of statutory interpretation, no such

showing is necessary when the state law’s plain language is facially broader. When the statute’s sweep is

clear on its face, requiring example prosecutions that

confirm what the statute already says is pointless,

wasteful, and unjust.

Yet the Fifth Circuit requires application of the “actual case” test even where divergence in statutory language is plain. By an 8-to-7 vote, the en banc court

read Duenas-Alvarez to mean that a party arguing

that a state statute is broader than its federal counterpart must always produce an actual case demonstrating the overbreadth. See United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017) (en banc). In

the Fifth Circuit’s view, and in open disagreement

with the other circuits, there is “no exception” to this

requirement even “where a court concludes a state

statute is broader on its face.” Id. (emphasis added).

The court has rejected repeated invitations to reconsider this nonsensical rule.

The Fifth Circuit again has applied this rule—and

again rejected a plea to reconsider it en banc—to uphold Mr. Womack’s ACCA sentencing enhancement.

The court thus brushed aside his showing that his

state offense of conviction is facially broader than its

federal counterpart because it covers substances that

are not federally controlled. As a result, Mr. Womack

faced at least five additional years in prison, which he

would not face in any other circuit.

This Court should resolve this open, entrenched, and

lopsided split. Alternatively, because the Fifth Circuit’s outlier rule is so plainly wrong, the Court should

summarily reverse the decision below.

STATEMENT OF THE CASE

1. Mr. Womack was indicted by a federal grand jury

on one count of possessing a firearm as a convicted

felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). ROA.10–12. This offense carries a maximum

sentence of ten years in prison. See 18 U.S.C.

§ 924(a)(2).

However, after Mr. Womack pled guilty (see

ROA.73), the district court applied the ACCA based on

Mr. Womack’s convictions in Arkansas for (1) robbery;

(2) murder II; and (3) possession of a schedule VI controlled substance (marijuana) with purpose to deliver

in violation of Ark. Code. Ann. § 5-64-436(a). ROA.180,

201–11. 1 Because of the ACCA enhancement, Mr.

Womack was subject to a mandatory minimum sentence of fifteen years’ imprisonment. ROA.195; 18

U.S.C. § 924(e)(1). Also, because of his ACCA designation, Mr. Womack’s offense level was increased under

USSG § 4B1.4. ROA.180. This designation caused increases to both his total offense level (30, instead of 21)

and guideline range (168–210 months, increased from

77–96 months). See ROA.180, 195, 217.

Mr. Womack objected, arguing that his drug-possession offense was not categorically a “serious drug offense” under the ACCA because the Arkansas statute

covers a broader set of substances than federal law.

ROA.156–58, 214–17; see also ECF Sealed Doc. 40.

The government agreed that “certain drugs identified

in Arkansas’s Schedule VI . . . are not controlled substances in section 102 of the Controlled Substances

Act.” ROA.222. The district court, however, overruled

the objection based on the Fifth Circuit’s requirement

that Mr. Womack show an “actual case” that would

demonstrate “a realistic probability” that Arkansas

would prosecute someone for an offense under that

statute for offenses involving substances not found

among the federal list of controlled substances.

1 Mr.

Womack also had additional convictions in Arkansas for

possession of controlled substances with purpose to deliver.

ROA.186. However, the parties agreed that these could not qualify as ACCA predicates because they occurred on the same occasion as the qualifying murder conviction. See ROA.158.

ROA.158; see also ROA.223–24. That the statutory

text lists such substances was not enough. The district

court thus sentenced Mr. Womack to 210 months’ imprisonment. Pet. App. 4a.

2. On appeal, Mr. Womack reiterated his arguments

but conceded that he could not show an actual example

of an Arkansas prosecution involving a non-federallycontrolled substance. The Fifth Circuit agreed, affirming the district court’s decision based on Castillo-Rivera’s inflexible “actual case” requirement. Pet. App.

2a. The Fifth Circuit denied Mr. Womack’s timely petition for rehearing en banc. Pet. App. 6a.

REASONS FOR GRANTING THE PETITION

I. There is an entrenched, lopsided split on

whether Duenas-Alvarez’s “actual case” requirement applies when a state statute is facially broader than its federal counterpart.

The decision below conflicts with the decisions of ten

other circuits, which all interpret Duenas-Alvarez to

require an “actual case” only when a state statute is

not facially broader than its federal counterpart.

In Duenas-Alvarez, the petitioner tried to show that

his prior conviction under a California theft statute

was broader than the generic federal definition of “a

theft offense,” and so was not an “aggravated felony”

under the Immigration and Nationality Act (“INA”).

549 U.S. at 185, 193–94; 8 U.S.C. § 1101(a)(43)(G). Although the California law’s text closely resembled generic theft offenses in other jurisdictions, the petitioner argued that “California’s doctrine, unlike that

of most other States, makes a defendant criminally liable for conduct that the defendant did not intend, not

even as a known or almost certain byproduct of the defendant’s intentional acts.” Duenas-Alvarez, 549 U.S.

at 187, 189–191.

This Court concluded that, to support the petitioner’s against-the-grain reading, more was required

“than the application of legal imagination to [the] state

statute’s language.” Id. at 193. Instead, the petitioner

had to show “a realistic probability, not a theoretical

possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a

crime.” Id. “To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his

own case or other cases in which the state courts in

fact did apply the statute in the special (nongeneric)

manner for which he argues.” Id.

The Fifth Circuit alone reads Duenas-Alvarez to require a party to point to an actual overly broad state

prosecution in every case—even if the “state statute is

broader on its face.” Castillo-Rivera, 853 F.3d at 223.

Ten other circuits explicitly disagree.

A. The Fifth Circuit alone reads Duenas-Alvarez to require an “actual case” despite

clear statutory language.

The circuit split here stems from the Fifth Circuit’s

fragmented en banc decision in United States v. Castillo-Rivera, 853 F.3d 218. By a bare 8-to-7 majority,

with six total opinions, the court held that a defendant

must always produce an actual example of an overly

broad prosecution.

The Castillo-Rivera defendant argued that his prior

conviction under Texas’s felon-in-possession statute

was “substantively broader” than the federal felon-inpossession statute—so was “not an ‘aggravated felony’

under the sentencing guidelines”—because the Texas

definition of “felony” was facially broader. Id. at 220–

222. The Texas definition of “felony” included an offense “‘punishable by confinement for one year or more

in a penitentiary,’” while the federal statute defined

felony as “‘a crime punishable by imprisonment for a

term exceeding one year.’” Id. at 222 (citations omitted). The defendant thus argued that “crimes that are

punishable for exactly one year are considered felonies

for purposes of [the Texas statute], but not for [the federal statute].” Id.

Interpreting Duenas-Alvarez, the en banc majority

held that the defendant could not “simply point to certain crimes that may be included in one [statute] but

not the other.” Id. Instead, the majority required that

the defendant “also show that Texas courts have actually applied [the Texas statute] in this way.” Id. Because the defendant “ma[de] no attempt” to do so, his

argument failed. Id. at 222, 225.

The majority explicitly rejected the argument that

“because the Texas statute’s definition of felon is

plainly broader than its federal counterpart, [the defendant] is not required to point to an actual case.” Id.

at 223. It reasoned: “There is no exception to the actual

case requirement articulated in Duenas-Alvarez where

a court concludes a state statute is broader on its

face.” Id. Turning the most basic interpretive principles on their head, the majority said that, “without

supporting state case law, interpreting a state statute’s text alone is simply not enough.” Id.

Judge Dennis’s dissent, for himself and six other

judges, rejoined that the majority had “distorted” Duenas-Alvarez’s rule, “stretching it far beyond its original meaning and inserting additional requirements of

the majority’s own creation.” Id. at 237 (Dennis, J., dissenting). Judge Dennis explained that “Duenas-Alvarez is concerned with the defendant who tries to

demonstrate that a statute is overbroad by hypothesizing that it might be applied in some fanciful or unlikely

way—through ‘the application of legal imagination.’”

Id. at 239 (quoting Duenas-Alvarez, 549 U.S. at 193).

He noted, however, that the defendant in Castillo-Rivera was not relying on “legal imagination” but instead

was “relying on the statute’s plain language.” Id.

Judge Dennis thus concluded “it is clear that DuenasAlvarez does not, as the majority opinion holds, require

a defendant to disprove the inclusion of a statutory element that the statute plainly does not contain using

a state case.” Id. Judge Dennis further noted that the

majority’s holding was in conflict with (at the time)

five other circuits. Id. at 2441.

Judge Higginson agreed, writing separately to note

that “the majority’s absolute requirement . . . places an

impractical burden on defendants without access to

the required information.” Id. at 244–45 (Higginson,

J., concurring in part and dissenting in part). “With

most criminal prosecutions ending in plea agreements

and putative charges driving plea negotiations, the

conduct states define as criminal may not be expressed

in appellate-level decisions, and the evidence required

to satisfy the majority’s rule may thus be unavailable.”

Id. at 245. In closing, Judge Higginson commented

that the Fifth Circuit’s “ongoing struggle to apply the

categorical approach . . . may justify Supreme Court

intervention yet again.” Id. at 244.

Since Castillo-Rivera, the Fifth Circuit has repeatedly applied its extreme rule. See, e.g., Alejos-Perez v.

Garland, 991 F.3d 642, 648 (5th Cir. 2021); In re Hall,

979 F.3d 339, 345 (5th Cir. 2020); Alexis v. Barr, 960

F.3d 722, 727 (5th Cir. 2020); Vetcher v. Barr, 953 F.3d

361, 367–68 (5th Cir. 2020); United States v. GraciaCantu, 920 F.3d 252, 254–55 (5th Cir. 2019); Vazquez

v. Sessions, 885 F.3d 862, 872–74 (5th Cir. 2018);

United States v. Elizalde-Perez, 727 F. App’x 806, 810

(5th Cir. 2018); United States v. Espinoza-Bazaldua,

711 F. App’x 737, 744–45 (5th Cir. 2017); United States

v. Young, 872 F.3d 742, 746–47 (5th Cir. 2017).

These cases persist despite repeated pleas from some

judges to “interpret Castillo-Rivera more narrowly and

realistically to avoid creating . . . unreasonable and

unsurmountable hurdle[s]” for petitioners. Alexis, 960

F.3d at 735 (Dennis, J., dissenting); see also id. at 731–

32 (Graves, J., concurring) (noting that Castillo-Rivera’s “‘actual case’ requirement” is “simply illogical

and unfair . . . where the statutory elements of a state

offense alone are broader than the corresponding federal offense”); Hall, 979 F.3d at 355 (Dennis, J., dissenting) (“The realistic probability test is a judgemade rule designed by a badly fractured court of appeals to legalistically but illogically fit more state offenses into federal generic offense definitions to enhance punishments. It ill-fits the ends for which it was

conceived . . . .” (citation omitted)). And, as in Mr.

Womack’s case, Pet. App. 6a, the Fifth Circuit recently

denied another petition for rehearing challenging Castillo-Rivera without further comment, see United

States v. Williams, No. 21-11263 (5th Cir. Oct. 12,

2022).

The Fifth Circuit’s rule is thus deeply entrenched.

B. Ten circuits reject the Fifth Circuit’s outlier rule.

Every other circuit to address this issue reads Duenas-Alvarez to require an actual example of an overly

broad state prosecution only if the state statute is not

facially broader than its federal counterpart. The

Eighth Circuit’s cases most thoroughly describe this

approach. The other circuits to consider the question—

the First, Second, Third, Fourth, Sixth, Seventh,

Ninth, Tenth, and Eleventh—have likewise rejected

the Fifth Circuit’s approach. 2

1. The Eighth Circuit has explained that DuenasAlvarez’s “actual case” requirement applies only

where— as in Duenas-Alvarez itself—a party asserts

an “against-the-grain” or hypothetical “reading of the

statutory language.” See Gonzalez v. Wilkinson, 990

F.3d 654, 659 (8th Cir. 2021); see also United States v.

Maldonado, 864 F.3d 893, 899–900 (8th Cir. 2017) (rejecting argument that terms in two state statutes

“could be construed” more broadly than federal counterpart where no case supported that hypothetical

reading). On the other hand, if the “realistic probability [is] evident from the language of the statute itself,”

there is “no need to provide evidence regarding how

[the state] in fact applied it.” Gonzalez 990 F.3d at 660;

see also Ortiz v. Barr, 962 F.3d 1045, 1050 (8th Cir.

2020) (realistic probability test satisfied where “plain

language” of state statute was broader than federal

counterpart).

In support of this distinction, the Eighth Circuit explained that “the focus of the realistic probability inquiry is on how a state statute might be applied.” Gonzalez, 990 F.3d at 660. Where “‘a statute has indeterminate reach,’” a “petitioner may be required to

demonstrate through examples that the statute in

question has the reach she ascribes to it.” Id. (quoting

Hylton v. Sessions, 897 F.3d 57, 63 (2d Cir. 2018)). “But

when the statute’s reach is clear on its face, it takes no

‘legal imagination’ or ‘improbable hypotheticals’ to understand how it may be applied and to determine

2 The D.C. Circuit has required an actual case where the state

statute was not facially broader than its federal counterpart,

United States v. Redrick, 841 F.3d 478, 484–85 (D.C. Cir. 2016),

but has not addressed a facially broader state law.

whether it covers conduct an analogous federal statute

does not.” Id.

Thus, in that case, the Eighth Circuit found that “the

plain language of the [state] statute makes clear that

it applies to conduct not covered by the federal statute”

and was, therefore, “unambiguously broader than the

federal [counterpart].” Id. at 661. The court concluded

that was “all that [the noncitizen] was required to

show under the categorical approach.” Id. This approach, of course, conflicts directly with the Fifth Circuit’s rule that a defendant or petitioner must always

identify an actual case—no matter how clear the state

statute’s language.

2. Other circuits agree. The First Circuit has likewise rejected a reading of Duenas-Alvarez that requires a party to present an actual case where the

state statute is facially broader. Swaby v. Yates, 847

F.3d 62, 65–66 (1st Cir. 2017); see also Da Graca v.

Garland, 23 F.4th 106, 113–14 (1st Cir. 2022). The

First Circuit reasoned that “Duenas-Alvarez made no

reference to the state’s enforcement practices. It discussed only how broadly the state criminal statute applied.” Swaby, 847 F.3d at 66. Further, Duenas-Alvarez’s “sensible caution against crediting speculative assertions regarding the potentially sweeping scope of

ambiguous state law crimes has no relevance” when

the “state crime at issue clearly does apply more

broadly than the federally defined offense.” Id. Indeed,

“[n]othing in Duenas-Alvarez . . . indicates that [a]

state law crime may be treated as if it is narrower than

it plainly is.” Id.

The Second Circuit concurs: Duenas-Alvarez’s “requirement that a defendant show a ‘realistic probability’ . . . operates as a backstop when a statute has indeterminate reach, and where minimum conduct analysis invites improbable hypotheticals.” Hylton, 897

F.3d at 63 (quoting Duenas-Alvarez, 549 U.S. at 193).

But that backstop is unnecessary where the “plain language” of the state statute determinately reaches conduct beyond the federal statute. Id. (“The realistic

probability test is obviated by the wording of the state

statute, which on its face extends to conduct beyond

the definition of the corresponding federal offense.”)

“Duenas-Alvarez does not require . . . a separate realistic probability test . . . to illustrate what the statute

makes punishable by its text . . . .” Id. at 64.

The Third Circuit has similarly recognized that Duenas-Alvarez applies only where “the relevant elements [a]re identical,” Singh v. Att’y Gen., 839 F.3d

273, 286 n.10 (3d Cir. 2016), and “the hypothetical conduct asserted” is “not clearly a violation of [the state]

law,” Jean-Louis v. Att’y Gen., 582 F.3d 462, 481 (3d

Cir. 2009). If “the elements of the crime of conviction

are not the same as the elements of the generic federal

offense,” Singh, 839 F.3d at 286 n.10, or the elements

of the state statute are “clear” and undisputedly apply

more broadly than the federal counterpart, JeanLouis, 582 F.3d at 481, “the ‘realistic probability’ language is simply not meant to apply,” Singh, 839 F.3d

at 286 n.10; see also Salmoran v. Att’y Gen. U.S., 909

F.3d 73, 81–82 (3d Cir. 2018) (explicitly rejecting Fifth

Circuit’s approach and concluding that, because the

state statute “plainly encompasses more conduct than

its federal counterpart, [the noncitizen] d[id] not need

to identify cases in which [the state] actually prosecuted overbroad conduct”).

So too has the Fourth Circuit recognized that “when

the state, through plain statutory language, has defined the reach of a state statute to include conduct

that the federal offense does not, the categorical analysis is complete; there is no categorical match.” Gordon

v. Barr, 965 F.3d 252, 260 (4th Cir. 2020). “In such circumstances, the burden does not shift to the respondent to ‘find a case’ in which the state successfully prosecuted a defendant for the overbroad conduct.” Id.

Thus, in an immigration case, the Fourth Circuit held

that because “the plain language” of the relevant state

statute encompassed broader conduct than its federal

counterpart, the noncitizen “was not required to identify a prosecution” adopting the overbroad reading. Id.

at 254.

And the Sixth Circuit, when urged by the government to require a noncitizen to produce an actual case,

refused. The government’s position would “require[]

[the court] to ignore the clear language” of the state

statute, which “expressly and unequivocally punishe[d]” conduct beyond its federal counterpart.

Mendieta-Robles v. Gonzales, 226 F. App’x 564, 572

(6th Cir. 2007). In another case, the Sixth Circuit recognized that no state cases applied a state burglary

statute in the overbroad way advanced by a defendant

but still found the state crime was not “categorically a

crime of violence,” noting that the court “should not ignore the plain meaning of the statute.” United States

v. Lara, 590 F. App’x 574, 584–85 (6th Cir. 2014).

In an ACCA case subsequent to, but without citing,

Duenas-Alvarez, the Seventh Circuit conducted a categorical-approach analysis following the basic principles of the state statutory text, consistent with all

other circuits who have rejected an “actual case” requirement. Van Cannon v. United States, 890 F.3d

656, 662–65 (7th Cir. 2018). Because the language of

the state burglary statute “cover[ed] a broader swath

of conduct than generic burglary,” it could not serve as

an ACCA violent felony predicate. Id. at 658, 664–65.

Like the Eighth Circuit, the Seventh Circuit has only

required an actual case where a party relies on “hypothetical” interpretations of state offenses that are not

apparent from their text. See, e.g., United States v.

Jennings, 860 F.3d 450, 459–60 (7th Cir. 2017); Beltran-Aguilar v. Whitaker, 912 F.3d 420, 421–22 (7th

Cir. 2019); United States v. Maxwell, 823 F.3d 1057,

1062–63 (7th Cir. 2016).

Further, the Ninth Circuit has concluded that Duenas-Alvarez merely provided “[o]ne way a petitioner

can show the requisite ‘realistic probability’ of prosecution for conduct that falls outside the generic definition.” Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th

Cir. 2015) (quoting Duenas-Alvarez, 549 U.S. at 193).

“But,” the Ninth Circuit has explained, “if a state statute explicitly defines a crime more broadly than the

generic definition, no legal imagination is required to

hold that a realistic probability exists that the state

will apply its statute to conduct that falls outside the

generic definition of the crime.” Id. at 1009–10 (internal quotation marks omitted) (quoting United States v.

Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc), abrogated on other grounds by United States v. Stitt, 139

S. Ct. 399 (2018)). Thus, in an immigration aggravated-felony case where the “statutory language” of

the state “statute of conviction . . . explicitly prohibit[ed]” conduct that was “neither included in nor

fairly encompassed by the [relevant] federal definition,” there was “no need to point to any actual prosecution.” Id. at 1010.

The Tenth Circuit has also rejected the government’s

argument for an inflexible “actual case” requirement.

United States v. Titties, 852 F.3d 1257, 1274 (10th Cir.

2017); see also United States v. O’Connor, 874 F.3d

1147, 1154 (10th Cir. 2017). In an ACCA violent-felony

case, it held: “Where . . . the statute lists means to

commit a crime that would render the crime non-violent under the ACCA’s force clause, any conviction under the statute does not count as an ACCA violent felony.” Titties, 852 F.3d at 1275. It reasoned that the

state statute reached non-violent conduct “because the

statute specifically sa[id] so. The Government g[ave]

no persuasive reason why [the court] should ignore

this plain language to pretend the statute is narrower

than it [was].” Id. at 1274. The Tenth Circuit concluded that the state statute was “therefore not categorically a violent felony.” Id. at 1275.

Lastly, the Eleventh Circuit has agreed, holding:

“Duenas-Alvarez does not require [an ‘actual case’]

showing when the statutory language itself, rather

than ‘the application of legal imagination’ to that language, creates the ‘realistic probability’ that a state

would apply the statute to conduct beyond the generic

definition.” Ramos v. U.S. Att’y. Gen., 709 F.3d 1066,

1071–72 (11th Cir. 2013). Thus, in an immigration

case in the same theft context as Duenas-Alvarez, the

court held that “Duenas-Alvarez d[id] not control” because the state statute “expressly” included an “alternate intent[]” that did not “fall[] under the generic definition of theft.” Id.

In short, the Fifth Circuit’s approach is an extreme

outlier. All ten other circuits to consider this issue

agree that Duenas-Alvarez’s “realistic probability” test

does not trump clear statutory language.

II. The Fifth Circuit’s decision is wrong.

The Fifth Circuit’s rule violates basic interpretive

principles, contravenes this Court’s precedents, and

creates pointless and unjust practical barriers and

complications for defendants and noncitizens alike.

1. The ACCA imposes a fifteen-year mandatory

minimum sentence if a defendant is convicted of being

a felon in possession of a firearm following three prior

convictions for “violent felon[ies]” or “serious drug offense[s].” 18 U.S.C. § 924(e)(1). A state offense is a “serious drug offense” only if it “involv[es] 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)).” 18 U.S.C. § 924(e)(2)(A)(ii).

To determine whether a defendant’s prior convictions qualify under the ACCA, this Court uses a “categorical approach,” looking “only to the statutory definitions of the prior offenses.” Taylor, 495 U.S. at 600.

“Under this approach, [courts] consider neither ‘the

particular facts underlying the prior convictions’ nor

‘the label a State assigns to the crimes.’” Shular v.

United States, 140 S. Ct. 779, 783 (2020) (cleaned up)

(quoting Mathis, 579 U.S. at 509–10).

“For more than 25 years,” this Court “ha[s] repeatedly made clear that application of [the] ACCA involves, and involves only, comparing elements” between the state offense and the relevant federal comparator or generic offense. Mathis, 579 U.S. at 519.

Those elements come from the “statutory definition of

the prior offense,” Taylor, 495 U.S. at 602—that is,

how the statutory text defines the state offense’s elements. This inquiry is thus governed by the “preeminent canon of statutory interpretation”: the analysis

“begins with the statutory text, and ends there as well

if the text is unambiguous.” E.g., Bedroc Ltd. v. United

States, 541 U.S. 176, 183 (2004).

The Fifth Circuit’s approach violates this basic principle. The categorical analysis is, at bottom, an exercise in statutory interpretation. This Court has held

countless times, in countless contexts, that when a

statute is clear, a court’s only task is to apply its plain

language. There is no warrant to insist that a party

produce example cases to resolve a question that the

plain statutory text already answers. When a state law

is facially broader than its federal counterpart, the categorical analysis is over: the offense is nongeneric. A

court cannot “ignore [a statute’s] plain language” by

demanding more. Titties, 852 F.3d at 1274.

2. Nothing in Duenas-Alvarez altered these basic

principles. There, “the relevant elements were identical” across “the crime of conviction” and “the generic

federal offense.” Singh, 839 F.3d at 286 n.10; see Duenas-Alvarez, 549 U.S. at 187, 189–90. Unable to argue

that the statutory text of his state offense was facially

broader than a generic theft offense, the noncitizen argued that it was broader as applied by California

courts. Duenas-Alvarez, 549 U.S. at 190–93.

It was in this context, where the noncitizen’s

“against-the-grain reading of the statutory language,”

Gonzalez, 990 F.3d at 659, was supported only by “legal imagination” or a “theoretical possibility,” that this

Court required him to “at least point to his own case or

other cases in which the state courts in fact did apply

the statute in the special (nongeneric) manner for

which he argue[d],” Duenas-Alvarez, 549 U.S. at 193. 3

Because “‘[l]egal imagination’ may conjure up scenarios that lurk in the indeterminacy of statutory wording,” (quoting Duenas-Alvarez, 549 U.S. at 193), Duenas-Alvarez’s “actual case” requirement operates “as

a backstop when a statute has indeterminate reach,

and where minimum conduct analysis invites improbable hypotheticals.” Hylton, 897 F.3d at 63 (quoting

3 This Court’s reference to this language in Duenas-Alvarez in

dicta in Moncreiffe v. Holder, 569 U.S. 184, 205–06 (2013), where

“the relevant elements were [also] identical” in “the crime of conviction” and “the generic federal offense,” Singh, 839 U.S. at 286

n.10, did not alter the narrow context in which Duenas-Alvarez

applies.

Duenas-Alvarez, 549 U.S. at 193). It does not apply

where “the plain language of the [state] statute makes

clear that it applies to conduct not covered by the federal statute.” Gonzalez, 990 F.3d at 661.

This Court has made clear in multiple cases after

Duenas-Alvarez that the Fifth Circuit’s requirement

that a party provide an actual case in every context

under the categorical approach is wrong. In Mellouli v.

Lynch, 575 U.S. 798 (2015), this Court held that a petitioner’s Kansas conviction for hiding unnamed pills

in his sock did not qualify as a “controlled substance

offense” under the Controlled Substances Act (“CSA”),

21 U.S.C. § 801 et seq., that would trigger removal. 575

U.S. at 808, 813. “At the time of [the noncitizen’s] conviction, Kansas’ schedules included at least nine substances not included in the federal lists.” Id. at 802.

Mellouli “did not mention the realistic probability test

or require the petitioner to cite a Kansas case prosecuting one of the nine controlled substances not included on the Federal Schedule.” Alexis, 960 F.3d at

732 (Graves, J., concurring). “In fact, the Court found

that [the] petitioner’s state conviction did not trigger

removal . . . based on the statutory comparisons alone,

indicating that the Court did not consider the realistic

probability [test] necessary.” Id. (citing Mellouli, 575

U.S. at 813).

Likewise, in Mathis v. United States, 579 U.S. 500,

this Court considered whether a defendant’s conviction for Iowa burglary “cover[ed] a greater swath of

conduct than the elements of the relevant ACCA offense (generic burglary).” Id. at 509. Again, this “Court

did not apply or even mention the realistic probability

test but instead it found that the statute at issue listed

alternative means and that some of those means did

not satisfy the ACCA’s generic burglary definition.”

Alexis, 960 F.3d at 732 (Graves, J., concurring) (citing

Mathis, 579 U.S. at 506–08). The Court concluded

that, under its precedents, “that undisputed disparity

[of alternative means] resolve[d] th[e] case.” Mathis,

579 U.S. at 509.

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

1562 (2017), this Court considered whether a conviction under California’s statutory rape statute qualified

as a “sexual abuse of a minor” under the INA. Id. at

1567–68. The California statute defined “minor” as “a

person under the age of 18.” Id. at 1567 (citation omitted). The Court concluded that “the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Id. at 1568. Noting that

courts “begin, as always, with the text,” id., the Court

held that the petitioner “ha[d] ‘shown something special about California’s version of the doctrine’—that

the age of consent is 18, rather than 16—and needs no

more to prevail.” Id. at 1572 (alteration adopted) (quoting Duenas-Alvarez, 549 U.S. at 191). That EsquivelQuintana directly quoted Duenas-Alvarez, but nowhere mentioned or applied any “actual case” requirement, shows Duenas-Alvarez’s limited scope.

In fact, this Court “has never conducted a ‘realistic

probability’ inquiry” where “the elements of the crime

of conviction are not the same as the elements of the

generic federal offense.” Singh, 839 F.3d at 286 n.10.

Nor has it conducted a “realistic probability” inquiry

in any case other than Duenas-Alvarez, showing the

unique circumstances where such an inquiry is proper.

3. Applying an “actual case” requirement in every

situation undoes some of the reasons this Court first

adopted the categorical approach, as opposed to a factual approach. Over 30 years ago this Court noted the

“daunting” “practical difficulties and potential unfairness of a factual approach” to ACCA predicates. Taylor, 495 U.S. at 601. Difficulties would be encountered,

this Court noted, both in cases that went to trial where

“the indictment or other charging paper” did not “reveal the theory or theories of the case presented to the

jury” leaving “only the Government’s actual proof at

trial [to] indicate whether the defendant’s conduct constituted” a generic offense, and “where the defendant

pleaded guilty” and there was “no record of the underlying facts.” Id.

Mr. Womack’s own prior conviction demonstrates

these difficulties. In theory, he could have “‘point[ed]

to his own case’” to show that his Arkansas marijuana

offense covered more types of marijuana than the federal offense. Castillo-Rivera, 853 F.3d at 222 (quoting

Duenas-Alvarez, 549 U.S. at 193). But, as in so many

cases, his plea, indictment, and sentencing documents

do not specify the exact type of marijuana at issue.

ROA.203–06. Like many defendants, he lacked the

specific information needed to use his own case as an

example.

Recently, in United States v. Taylor, 142 S. Ct. 2015

(2022), this Court acknowledged some of the “practical

challenges” an “actual case” requirement can present.

Id. at 2024. Taylor addressed whether “attempted

Hobbs Act robbery qualif[ies] as a ‘crime of violence’

under 18 U.S.C. § 924(c)(3)(A).” Id. at 2018. Comparing the statutory elements, the Court concluded that

“no element of attempted Hobbs Act robbery requires

proof that the defendant used, attempted to use, or

threatened to use force” as required by the definition

of “crime of violence.” Id. at 2019–21.

Despite this natural conclusion, the government argued that the defendant had “fail[ed] to identify a single case in which it has prosecuted someone for attempted Hobbs Act robbery without proving a communicated threat.” Id. at 2024. The Court asked: “But

what does that prove?” Id. The Court noted “the oddity

of placing a burden on the defendant to present empirical evidence about the government’s own prosecutorial habits,” and “the practical challenges such a burden would present in a world where most cases end in

plea agreements, and not all of those cases make their

way into easily accessible commercial databases.” Id.

A dissent in Castillo-Rivera also noted the difficulty

of “most criminal prosecutions ending in plea agreements and putative charges driving plea negotiations.”

Castillo-Rivera, 853 F.3d at 244–45 (Higginson, J.,

concurring in part and dissenting in part). As a result,

“the conduct states define as criminal may not be expressed in appellate-level decisions, and the evidence

required to satisfy the [Fifth Circuit’s] rule may thus

be unavailable.” Id. at 245; see also Betansos v. Barr,

928 F.3d 1133, 1146–47 (9th Cir. 2019) (Murguia, J.,

specially concurring) (explaining that the “vast majority” of state prosecutions “are resolved through plea

bargains” and “are not published, nor are they readily

accessible through review”).

The Fifth Circuit’s rule also inappropriately and unfairly shifts the burden of proving a predicate offense

to a defendant or noncitizen. The Government bears

the burden of proving sentencing enhancements like

the ACCA. Pereida v. Wilkinson, 141 S. Ct. 754, 765–

66 (2021). And, in some immigration contexts, the Government also bears the burden of proving removability. 8 U.S.C. § 1229a(c)(3)(A) (the Government “has the

burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable”). The

Fifth Circuit’s rule, however, shifts these burdens onto

the defendant or noncitizen to affirmatively demonstrate the state’s prosecutorial practices.

For all of these reasons, the Fifth Circuit’s rule is

wrong and should be overturned.

4. Under the correct approach, the Arkansas statute

under which Mr. Womack was convicted is not a “serious drug offense” because, on its face, it does not “necessarily require” the conduct specified in the ACCA’s

“serious drug offense” definition. See Shular, 140 S.

Ct. at 785 (cleaned up). As relevant, the ACCA 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)).” 18 U.S.C.

§ 924(e)(2)(A)(ii).

Mr. Womack’s Arkansas drug offense does not count.

A “state crime cannot qualify as an ACCA predicate if

its elements are broader than those of” the relevant

federal counterpart, Mathis, 579 U.S. at 509—here the

CSA. The Arkansas statute under which Mr. Womack

was convicted for possession with intent to deliver a

controlled substance provides: “Except as provided by

this chapter, it is unlawful if a person possesses a

Schedule VI controlled substance with the purpose to

deliver the Schedule VI controlled substance.” Ark.

Code. Ann. § 5-64-436(a).

A separate statute, Ark. Code Ann. § 5-64-214, sets

the criteria necessary for a substance to be placed in

Schedule VI, while Ark. Code Ann. § 5-64-215 sets

forth a list of controlled substances that qualify as

Schedule VI substances. Arkansas’s Schedule VI list is

currently broader than the substances controlled by

federal statute. For example, Arkansas’s Schedule VI

includes Salvia divinorum and Salvinorin A (forms of

hallucinogenic mint). Ark. Code Ann. § 5-64-215(a)(4).

Neither is a controlled substance under federal law.

Moreover, in April 2013, when Mr. Womack committed his marijuana-based offense (ROA.203), the Arkansas statute defined marijuana more broadly than

did its federal counterpart: “[a]ny part and any variety

or species, or both, of the Cannabis plant that contains

THC (Tetrahydrocannabinol) whether growing or not.”

Ark. Code Ann. § 5-64-101(15)(A)(i) (West) (eff. July

31, 2007 to June 30, 2019).

The CSA similarly defines marijuana as “all parts

of the plant Cannabis sativa L., whether growing or

not.” 21 U.S.C. § 802(16)(A). But the CSA expressly excludes “hemp” as defined in 7 U.S.C. § 1639o, see 21

U.S.C. § 802(16)(B), which defines “hemp” as “the

plant Cannabis sativa L. and any part of that plant”

with a THC “concentration of not more than 0.3 percent on a dry weight basis,” 7 U.S.C. § 1639o(1). Thus,

the CSA excludes Cannabis sativa L. plant, and all its

parts, that have a THC concentration of less than 0.3

percent. 7 U.S.C. § 1639o(1). The Arkansas statute

makes no such exclusion. See Ark. Code Ann. § 5-64101(15)(B) (listing exceptions but none based on THC

concentration). It is thus facially broader than the

CSA.

Because, when Mr. Womack engaged in the conduct underlying his conviction, Arkansas law was facially broader than federal law, his conviction does not

qualify as a “serious drug offense” under 18 U.S.C.

§ 924(e). See United States v. Abdulaziz, 998 F.3d 519,

521, 531 (1st Cir. 2021) (holding that a Massachusetts

conviction for possession with intent to distribute marijuana under a statute which included hemp did not

qualify as a controlled substance under USSG

§ 4B1.2). Only by “ignor[ing] this plain language to

pretend the statute is narrower than it is,” Titties, 852

F.3d at 1274, could the Fifth Circuit hold otherwise.

Pet. App. 2a.

In short, the Fifth Circuit’s holding is meritless. In

no context does this Court allow—let alone require—

“empirical evidence” of government practice to override plain statutory text. Taylor, 142 S. Ct. at 2024.

The Fifth Circuit’s sole justification for such a requirement is that Duenas-Alvarez admits of “no exception[s].” Castillo-Rivera, 853 F.3d at 223. But that

view violates the maxim that “general expressions, in

every opinion, are to be taken in connection with the

case in which those expressions are used,” and “ought

not to control the judgment in a subsequent suit when

the very point is presented for decision.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (Marshall,

C.J.). Duenas-Alvarez did not purport to address the

question presented here.

III. The question presented is important and recurring.

Without this Court’s intervention, defendants across

the country face disparate outcomes. In 2019 alone,

312 people were sentenced under the ACCA, and 3,572

people in the Federal Bureau of Prisons custody as of

June 2020 were sentenced pursuant to the ACCA. See

U.S.S.C., Federal Armed Career Criminals: Prevalence, Patterns, and Pathways 29 (Mar. 2021). 4 And

those numbers do not capture the many defendants

who, while not ultimately sentenced under the ACCA,

face the threat of ACCA enhancements during charge

bargaining. Although not all of these convictions involve a discrepancy between the applicable state and

federal definitions, the prevalence of ACCA enhancements highlights the need for clarity. Anyone under

4 https://www.ussc.gov/sites/default/files/pdf/research-andpublications/research-publications/2021/20210303_ACCA-Report.pdf.

the Fifth Circuit’s jurisdiction and subjected to a similar issue as Mr. Womack faces a substantial sentencing increase. Anywhere else in the country, a defendant would have more leverage at the plea bargaining

table and would not spend this time behind bars.

Nor is this problem limited to the specific drug offense here, or even to the ACCA. The categorical approach applies in many situations. Thus, the Fifth Circuit has applied its extreme reading of Duenas-Alvarez

in criminal cases to other drug offenses when determining if they qualify as “drug trafficking offenses” under the Sentencing Guidelines. Espinoza-Bazaldua,

711 F. App’x at 744–45; Elizalde-Perez, 727 F. App’x at

810. It has also applied it to the “violent felony” definition under the ACCA, United States v. Herrold, 941

F.3d 173, 178 (2019) (en banc), and to the terms “crime

of violence,” Gracia-Cantu, 920 F.3d at 254–55; United

States v. Reyes-Contreras, 910 F.3d 169, 184–86

(2018), abrogated in part on other grounds by Borden

v. United States, 141 S. Ct. 1817 (2021); Hall, 979 F.3d

at 345, and “abusive sexual contact,” Young, 872 F.3d

at 746–47, in the Sentencing Guidelines.

The Fifth Circuit’s erroneous reading of Duenas-Alvarez also applies in the immigration context. The

Fifth Circuit has found noncitizens removable for controlled-substance violations even where the state statute is facially broader than the federal CSA. Alexis,

960 F.3d at 726–29; Vazquez, 885 F.3d at 872–74;

Alejos-Perez, 991 F.3d at 648; Vetcher, 953 F.3d at 367–

68. A noncitizen may thus face deportation for failing

to show an actual case, which would not happen in any

other circuit. The Fifth Circuit’s rule therefore produces disparate outcomes involving both the deprivation of liberty for people convicted of crimes and the

ability to stay in this country for noncitizens.

This question also has a serious impact on Mr. Womack’s own life. Mr. Womack went from a ten-year maximum to a fifteen-year mandatory minimum.

ROA.195; 18 U.S.C. § 924(a)(2), (e)(1). In any other circuit, that would not be the case.

IV. This case is an ideal vehicle to resolve the

split.

This case arrives on direct appeal and presents a single question. That question was preserved at the district court level (ROA.156–58, 214–17) and on appeal.

Appellant’s Initial Br. at 1.

Moreover, the question is both squarely presented

and dispositive. No serious factual disputes exist. Mr.

Womack concedes that he has been convicted of two

ACCA predicate offenses (Appellant’s Initial Br. 2–3),

and the parties agree that only one of his prior convictions, his 2013 conviction under Ark. Code. Ann. § 564-436(a), could qualify as a third. ROA.158, 186.

Thus, whether his 2013 conviction qualifies determines whether Mr. Womack is subject to the maximum sentence of ten years in prison under 18 U.S.C.

§ 924(a)(2) or the ACCA’s mandatory minimum sentence of fifteen years. ROA.195; 18 U.S.C. § 924(e)(1).

Because the government conceded in the district court

that the Arkansas statute is facially broader than its

federal counterpart, whether Mr. Womack must provide an actual case determines the outcome here. See

ROA.222 (“Womack correctly points out that certain

drugs identified in Arkansas’s Schedule VI . . . are not

controlled substances in section 102 of the Controlled

Substances Act.”).

CONCLUSION

For these reasons, the Court should summarily reverse the decision below and remand for resentencing.

Alternatively, the Court should grant this petition and

set this case for argument.

ADAM NICHOLSON

Assistant Federal

Public Defender

FEDERAL PUBLIC

DEFENDER’S OFFICE

NORTHERN DISTRICT OF

TEXAS

525 S. Griffin Street

Suite 629

Dallas, TX 75202

(214) 767-2746

XIAO WANG

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

Respectfully submitted,

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8291

jgreen@sidley.com

NICOLE M. BAADE

SIDLEY AUSTIN LLP

555 West Fifth Street

Suite 4000

Los Angeles, CA 90013

MEREDITH R. ASKA

MCBRIDE

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, IL 60603

Counsel for Petitioner

October 20, 2022

* Counsel of Record

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