In United States v. Conage, No. 17-13975 (Sept. 30,
2020) (Julie Carnes, Ed Carnes, Clevenger), the Court certified a question
to the Florida Supreme Court about the Florida trafficking statute in 893.135.
The question was whether cocaine trafficking under
893.135(1)(b)1 is a “serious drug offense” under the ACCA. That Florida statute is indivisible, and it prohibits
“purchasing” a trafficking quantity of drugs. To satisfy the ACCA’s definition of a “serious
drug offense,” the offense must “involve” certain acts, one of which is possession
with intent to distribute. Thus, the
question was whether purchasing a trafficking quantity under 893.15 “involves”
actual or constructive “possession” of the drug being purchased. If not, then the statute is categorically
overbroad, and it will never qualify as an ACCA predicate. However, because Florida law did not specify
the elements of trafficking by purchase, and did not otherwise define the term “purchase,”
the Court certified that issue to the Florida Supreme Court.
