In United States v. White, No. 14-14044 (Aug. 24, 2017), the full Court voted not to rehear en banc a case presenting the question whether Alabama cocaine trafficking was a "serious drug offense" under the Armed Career Criminal Act.
Judge Martin, joined by Judge Jill Pryor, dissented from the denial of rehearing. In a lengthy opinion, she argued that "mere possession" offenses do not qualify as a serious drug offense for two reasons. "First, it forces federal judges to make empirical determinations that are beyond our institutional competence. And second, it directly contradicts the Supreme Court's interpretation of the ACCA in Taylor, because it causes federal judges in this circuit to rely on widely varying state labels and policy judgments when they impose ACCA sentences. The result is that the exact same conduct can support ACCA sentences that are more (or possibly less) harsh based solely on the state where the conduct occurred."