In United States v. Jackson, No. 21-13963 (Dec. 13, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court reversed course and held that the Supreme Court’s reasoning in McNeill v. United States, 563 U.S. 816 (2011), requires the conclusion that ACCA’s “serious drug offense” definition incorporates the version of the controlled-substances list in effect when the defendant was convicted of his prior state drug offense.

Mr. Jackson’s prior convictions included convictions for violating Fla. Stat. § 893.13 in 1998 and in 2004 with conduct involved cocaine.  In 1998 and in 2004, § 893.13 criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, or deliver, cocaine and cocaine-related substances, including a substance called ioflupane.  The federal version of Schedule II of the Controlled Substances Act (“CSA”) also encompassed ioflupane in 1998 and 2004.  The federal government only exempted ioflupane from Schedule II in 2015.  So, in 2017, when Mr. Jackson possessed the firearm that resulted in his federal conviction, ioflupane was not a controlled substance “as defined . . . [under] the Controlled Substances Act.”

Be that as it may, however, the Court ultimately held that ACCA’s definition of “serious drug offense” incorporates the version of the controlled-substances schedules in effect when the defendant was convicted of his prior state drug offense.  The Court so held because of the Supreme Court’s reasoning in McNeill, wherein the Supreme Court construed ACCA’s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum term of imprisonment of ten years or more” as a punishment for that drug offense.  In line with McNeill, the Court reasoned that it could not be correct that subsequent changes in state law could erase an earlier conviction for ACCA purposes.  The Court also reasoned that because it must construe the definition of a federal “serious drug offense” to incorporate the CSA in existence at the time of the prior federal drug conviction, it could not simultaneously construe the federal “serious drug offense” definition’s single use of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed the federal firearm offense.  In the Court’s view, the structure of ACCA’s parallel definitions of “serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior state drug conviction.  As such, Mr. Jackson’s prior cocaine convictions qualify as “serious drug offenses” under the ACCA.

Judge Rosenbaum filed a separate concurrence to express “deep[] concern[] that [the Court’s] reading seemingly requires the ‘ordinary person’ to be an expert in the ACCA and in historical knowledge of the federal drug schedules.”  She noted that incorporating the federal drug schedules in effect at the time of the federal firearm offense “would be far more consistent with how [courts] generally construe statutes,” as well as consistent with “Congress’s determination to decriminalize certain substances.”  As a result, she “urge[d]” Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect when the defendant commits his federal firearm offense.”