In United States v. Penn, No. 21-12420 (Mar. 24, 2023) (Lagoa, Brasher, Ed Carnes), the Court affirmed the defendant’s ACCA sentence based on prior Florida sale-of-cocaine convictions.

In holding that the prior convictions were ACCA “serious drug offenses,” the Court rejected three arguments. First, circuit precedent foreclosed the defendant’s argument that a serious drug offense have a mens rea element requiring the defendant know the illicit nature of the substance, which Fla. Stat. 893.13 lacks.  Second, and in a question of first impression resulting in an extended discussion, the Court held that, although the least culpable conduct prohibited by 893.13 was “attempted transfer,” that conduct was covered by the word “distribution” in the ACCA definition and so was not overbroad. Third, applying Wooden, the Court held that the two prior convictions occurred on separate occasions because they occurred 30 days apart, and the Court rejected under plain error the defendant’s Apprendi argument, which was raised for the first time on appeal, because there was no precedent directly resolving the issue.