Jackson: Court Reverses Course and Applies Version of CSA Schedules in Place When Defendant Was Convicted of Prior State Drug Offense

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."              

Garcon: En Banc Court Holds Disqualifying Safety-Valve Criteria in 3553(f)(1)(A)-(C) Are Conjunctive, Not Disjunctive

In United States v. Garcon, No. 19-14650 (Dec. 6, 2022), the en banc Court--in an opinion authored by Chief Judge Pryor--considered whether, in the First Step Act, the word "and" means "and" with regard to a grant of safety-valve relief.  More specifically, the en banc Court considered the language of 18 U.S.C. § 3553(f)(1), which empowers a court to grant a criminal defendant relief from a mandatory minimum sentence only if "the defendant does not have" "more than 4 criminal history points," "a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense."    

The Majority--in an opinion drafted by Chief Judge Pryor and joined in full by Judges Wilson, Jill Pryor, Newsom, Luck, and Lagoa--after considering the text of the statute and applying the ordinary-meaning canon, held that because the conjunctive "and" joins together the enumerated criminal history characteristics in (A)-(C), a defendant must have all three before he is ineligible for safety-valve relief.  In so holding, the Majority specifically rejected the government's distributive reading of the word "and," declining "to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome."      

Judge Rosenbaum concurred in the judgment only, noting that she would have resolved the issue by applying the rule of lenity.  

Judge Newsom, joined by Judge Lagoa, filed a separate concurrence to note that no canon of construction can make the word "and" mean "or" because the text is unambiguous.  If Congress made a mistake, it should exercise its authority to amend the statute; "Article III doesn't empower [the Court] to do Congress's job for it."

Judge Jordan dissented, explaining that, depending on the context, the word "and" can be read disjunctively in legal texts.  He also set out the views of the Senators who proposed the provision that became § 3553(f)(1) as further support.  

Judge Branch, joined in full by Judges Grant and Brasher, and in part by Judge Jordan, dissented.  She noted the circuit split on this issue before reasoning that the Majority's interpretation was contrary to the structure and context of the statute, and created two surplusage problems--first, it renders an entire subsection, (f)(1)(A), redundant; and second, it disregards Congress's plain instruction that all pertinent statutory determinations for purposes of § 3553(f)(1) are to be made "as determined under the sentencing guidelines."  After consideration of context and structural cues, in her opinion, the best reading of § 3553(f)(1) is that it bars safety-valve relief for defendants who have any one of the enumerated criminal history characteristics in (A)-(C).      

Judge Brasher authored a separate dissent to comment on criminal-history-based sentencing and to "give some advice to district judges about how to deal with the majority's decision."