In United States v. Jackson, No. 21-13963 (June 10, 2022) (Rosenbaum, Jill Pryor, Ed Carnes), the Court vacated Mr. Jackson’s ACCA-enhanced sentence and remanded for resentencing without the ACCA sentence enhancement.

In this appeal, the Court considered which version of the Controlled Substance Act Schedules incorporated into ACCA’s definition of “serious drug offense” applies when a defendant is convicted of being a felon in possession of a firearm: the version in effect at the time of the defendant’s federal firearm-possession violation (for which he is being sentenced), or the ones in effect when he was convicted of his predicate state crimes that we are evaluating to see whether they satisfy ACCA’s definition of “serious drug offense.”

The Court held that due-process fair-notice considerations require the application of the version of the Controlled Substance Act Schedules in place when the defendant committed the federal firearm-possession offense for which he is being sentenced.

With that in mind, the Court found that Mr. Jackson’s 1998 and 2004 cocaine-related convictions under Fla. Stat. § 893.13 did not qualify as “serious drug offense[s]” because they encompassed the sale of, or possession with intent to distribute, ioflupane, which was not a “controlled substance” for purposes of the “serious drug offense” definition in the ACCA at the time of Mr. Jackson’s federal firearms offense.  Ioflupane was removed from the federal drug Schedules in September 2015 because of its value in potentially diagnosing Parkinson’s Disease.  Florida, however, did not remove ioflupane from its drug schedules until July 2017.

The Court further noted that prior precedents in Smith (2014), Smith (2020), Shular, and McNeill did not preclude relief here.  It noted that the question of which version of the Controlled Substance Act’s drug Schedules governed under the ACCA’s definition of “serious drug offense” was “not even a twinkle in [the Court’s] eyes or in those of the Supreme Court in the Smith cases and in Shular.”  That is, where a court has never addressed an issue, and had at most assumed the issue, the court is free to address the issue on the merits in a later case presenting it.  As for McNeill, it only answers the backward-looking question of what the defendant’s previous state conviction was.  It does not the question presented here.

CONGRATULATIONS to Kate Mollison, Julie Holt, and Andy Adler!