Does the categorical approach used in determining whether an offense qualifies as a “violent felony” under the Armed Career Criminal Act apply to the determination of what constitutes a “serious drug offense” under the Act?
This case asks the Supreme Court to determine whether the categorical approach under the Armed Career Criminal Act (“ACCA”) should apply to “serious drug offense” determinations. Petitioner Eddie Lee Shular argues that under the ACCA, a “serious drug offense” must be considered under the same offense-matching categorical approach that is applied to a “violent felony” under the Act. Shular further argues that the “serious drug offense” provision of the statute requires a mens rea element in the prior state offense in order to qualify under the ACCA. Respondent United States counters that the categorical approach is not applicable to the “serious drug offense” provision of the ACCA, and that a mens rea element is not a requirement under the Act. The outcome of this case will affect uniformity in the criminal justice system, constitutional avoidance, and the ability of courts to limit detrimental effects and disparate impacts.
Questions as Framed for the Court by the Parties
Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.
Petitioner Eddie Shular pled guilty to possession with intent to distribute cocaine and being a felon in possession of a fire arm. U.S. v. Shular at 876. Shular was sentenced to 180-months under the Armed Career Criminal Act (“ACCA”). Id. The ACCA increases a sentence to a term of fifteen years to life if the defendant has three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e). Shular states that the felon in possession charge was based on his possession of his mother’s unloaded firearm. Brief for Petitioner, Eddie Lee Shular at 3.
The United States Probation Office determined that Shular had six prior felony convictions in the state of Florida under Florida Statute Section 893.13(1). Id. Five of these convictions were for selling cocaine, and one conviction was for possession with intent to sell cocaine. Id. Due to these previous convictions, the probation office recommended enhanced sentencing under the ACCA. Id. The court agreed to an enhanced sentence under the ACCA and subsequently sentenced Shular to 180-months imprisonment. Shular at 876.
Shular later appealed this conviction, arguing that the prior drug convictions did not qualify as “serious drug offenses” entitled to enhanced sentencing under the ACCA based on the United States Court of Appeals for the Eleventh Circuit’s (the “Eleventh Circuit”) decision in United States v. Smith. Id. at 877. In Smith, the Eleventh Circuit held that a violation of Florida statute Section 893.13(1) qualifies as a serious drug offense under the ACCA. U.S. v. Smith at 1266. Shular contends that the Court should adopt a categorical approach to determine if the elements of his prior convictions fit within Section 924(e)’s definition of “violent felony” or “serious drug offenses.” Shular at 876. The decision in Smith further explained that underlying convictions entitled to enhanced sentencing under the ACCA do not contain a mens rea requirement because the ACCA defines a serious drug offense as a state law offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance” that is punishable by at least ten years of imprisonment. U.S. v. Smith at 1267.
The Eleventh Circuit reviewed Shular’s appeal de novo. Shular at 877. The Eleventh Circuit explained that there was a “strong prior panel precedent rule” that requires a prior panel’s holding to be “binding on all subsequent panels unless or until it is overruled or undermined to the point of abrogation by the Supreme Court or [the Eleventh Circuit Court of Appeals] sitting en banc.” Id. The Eleventh Circuit determined that Shular did not make any argument besides arguing that the decision in Smith was incorrect. Id. Therefore, the court affirmed Shular’s sentence, holding that it could not deviate from the prior decision in Smith. Id.
TEXT AND CONTEXT OF SECTION 924(e)
Petitioner Eddie Shular contends that the plain text, structure, and history of Section 924(e) of the Armed Career Criminal Act (“ACCA”) mandates courts to apply an offense-matching categorical approach. Brief for Petitioner, Eddie Lee Shular at 9. First, regarding the text of the serious drug offense provision, Shular focuses on the statute’s language of “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Id. at 9. Thus, Shular explains, the statute considers serious drug offenses in terms of four categories: (1) manufacturing, (2) distributing, (3) possessing with intent to manufacture, and (4) possessing with intent to distribute. Id. at 10. Shular contends that this language reflects state and federal controlled substances laws that were in use in 1986 when the ACCA’s “serious drug offenses” provision was enacted, such as the Controlled Substances Act (“CSA”) and the Uniform Controlled Substances Act (“UCSA”). Id. at 10–12. According to Shular, when the ACCA was enacted, the majority of states used the UCSA’s standard to create their own controlled substances offenses. Id. at 12. Shular continues that while many states no longer reflect the language of the CSA, UCSA, or ACCA, these state laws still analyze drug offenses in the language of the four categories, allowing them to continue to apply the categorical approach of matching the state law drug offense to the ACCA offenses. Id. at 13. Shular, however, asserts that the Court must also consider the “involving” language of the ACCA. Id. at 13–14. He explains that Congress’s use of the word “involving” demonstrates that courts should use a generic-offense matching analysis to determine whether the prior state offense qualifies as a serious drug offense under the ACCA. Id. at 14.
Shular also contends that Section 924(e)’s structure requires courts to apply a generic-offense matching categorical approach. Id. at 16. He points to the parallel definition of serious drug offense under the Federal-offenses clause of Section 924(e)(2)(A)(i) and the State-offenses clause in Section 924(e)(2)(A)(ii). Id. at 16. Finally, Shular argues that legislative history demonstrates Congress’s intent that courts use an offense-matching categorical approach for serious drug offenses under the ACCA. Brief for Petitioner at 19. According to Shular, when Congress added “serious drug offenses” to the ACCA in 1986, its intention was to expand the statute to include more predicate offenses. Id. He argues that this means that Congress meant for courts to consider serious drug offenses under the same analysis as violent felonies under the ACCA. Id. at 19–20. He also argues that legislative history demonstrates that Congress intended for both violent felonies and serious drug offenses under the ACCA to have a mens rea element. Id. at 20.
Respondent United States argues that Section 924(e)(2)(A)(ii) encompasses state crimes as “serious drug offense[s]” if the crime comprises one of the types of conduct included in the statute itself. Brief for Respondent, United States of America (“Respondent”) at 12–13. Respondent focuses on the “involve” language of the statute and argues that the term means to “include (something) as a necessary part or result.” Id. at 13. Respondent contends that, under the text of Section 924(e)(2)(A)(ii), a state crime involves one of the four “serious drug offense” categories—manufacturing, distributing, possessing with intent to manufacture, or possessing with intent to distribute—if the action was a necessary part or result of the offense. Id. The United States draws support from the Supreme Court case Kawashima v. Holder, which concerned the offense of an “aggravated felony” and defined it as one that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Id. at 13–14. The United States asserts that the Court in that case determined that the “involves” language of the offense referred to offenses with “elements that necessarily entail” deceit or fraud. Id. at 14.
The United States also argues that the context of Section 924(e)(2)(A)(ii) demonstrates that Congress intended the statute to cover state crimes with elements that “necessarily entail” the four categories of a “serious drug offense.” Id. at 16. In analyzing the context of the statute, the United States compares the “involving” clause of Section 924(e)(2)(A)(ii) to the “enumerated-offenses clause” of Section 924(e)(2)(B)(ii). Id. at 16–17. It points out that the “enumerated-offenses clause” includes language of an offense that “is burglary, arson, extortion, [or] involves use of explosives,” and argues that the “is” phrasing of that clause contrasts with the “involves” language of the “serious drug offense” clause. Id. at 17. The United States contends that the enumerated-offenses clause uses a generic-analogue approach, as it necessitates that courts compare the generic analogue offense to a defendant’s prior crimes. Id. at 18. The United States argues that Congress purposefully chose not to use the “is” language of the enumerated-offenses clause when enacting the “serious drug offenses” provision, and that while the “is” language requires that courts employ a generic-analogue approach, the “involving” language does not. Id. The United States reiterates that instead, the “involving” language requires that courts employ the “necessarily entails” analysis. Id. at 18.
MENS REA ELEMENT
Shular argues that the Section 924(e)(2)(A)(ii) offenses that qualify under state law must include a mens rea element. Brief for Petitioner at 21. Shular claims that by 1986, the federal government as well as a majority of the states required that the defendant had knowledge that the substance was an illicit controlled substance under the four categories of crimes: manufacturing, distributing, possessing with the intent to manufacture or distribute a controlled substance. Id. at 21–22. Shular argues that because of this overwhelming understanding that there be a mens rea requirement when the serious drug offense provision of the ACCA was enacted in 1986, there must also be a mens rea requirement under the categorical approach for a serious drug offense. Id. at 22. Under current Florida law, Shular argues that there is no mens rea element necessary for the sale of controlled substances; the only requisite elements are that the defendant sells a substance, and that the substance is an illicit drug. Id.
The United States counters that Section 924(e)(2)(A)(ii) has no such mens rea requirement. Brief for Respondent at 19. It argues that the Court should look to the Kawashima approach, which does not require that the elements of an offense exactly replicate a “generic” crime, but that they “involve” certain characteristics or actions. Id. at 20–21. The United States also argues that the Federal-offenses and State-offenses clauses in Section 924(e)(2)(A) are not parallel to each other, as the language of these clauses differs. Id. at 21–22. The United States points out that the language of the Federal-offenses clause defines “serious drug offense” as an offense “under” federal statutes, whereas the State-offenses clause defines “serious drug offense” as a crime under state law “involving” certain conduct. Id. The United States argues that because the clauses have different language, with the State-offenses clause including “involving” language, the clauses need not be interpreted parallel to each other. Id. at 22. Also, the United States argues that the “involving” language does not require a generic-offense matching analogue approach, because the Court’s prior use of the generic analogue approach for the enumerated-offenses clause was specific to that clause and has no bearing on the serious drug offenses provision. Id. at 23–24.
CONCERNS WITH POSSIBLE OUTCOMES
Shular contends that the Eleventh Circuit has bifurcated “serious drug offense” under Section 924(e)(2)(A) by excluding the mens rea of the illicit nature of substances, creating confusing results in controlled substances cases. Brief for Petitioner at 24. For example, Shular asserts that the Eleventh Circuit’s decision would cause behavior not normally considered a “serious drug offense,” to become such an offense according to Section 924(e)(2)(A)(ii) if it were under Florida law or an equivalent state law. Id. Shular also argues that the Eleventh Circuit has decided that state statutes on “trafficking” of controlled substances by virtue of possession is a “serious drug offense.” Id. at 24–25. Shular contends that this allows a state possession law, which does not require intent, to be analyzed as a “serious drug offense,” thereby conflicting with Section 924(e)(2)(A)(ii)’s explicit intent language. Id. Additionally, Shular asserts that the statute’s “related to” language negates the statute’s limiting power. Id. at 25. Shular explains that giving courts the ability to determine whether a state drug offense is “related to” the four categories stretches the confines of the statute and ultimately renders it limitless. Id.
The United States counters that requiring courts to analyze Section 924(e)(2)(A)(ii) under a generic analogue approach would create difficulties for courts in practice and would result in a lack of uniformity in sentencing. Brief for Respondent at 29. The United States contends that applying a matching-generic analogue analysis to Section 924(e) would encourage defendants to argue that any state law that differs slightly from the generic federal offense would not be applicable under the ACCA. Id. at 30. Additionally, the United States invokes Kawashima to argue that interpreting Section 924(e)(2)(A)(ii) to incorporate that case’s “necessarily entails” test reduces the potential for laws to differ across states and result in different sentences for the same actions. Id. at 31. Therefore, the United States asserts that the Court should apply a generic analogue approach, thereby ensuring uniformity in sentencing and state laws. Id. at 29–31.
Famm, in support of Shular, argues that applying the categorical approach in ACCA’s serious drug offense cases supports the ACCA’s underlying purpose of uniformity and consistency across cases. Brief of Amicus Curiae Famm, in Support of Petitioner at 16. Additionally, Famm contends that the Eleventh Circuit’s approach from cases like Smith would result in “confusion and conflict” because lower courts would create different standards for determining when the ACCA applies. Id. at 17. Famm further argues that the interpretation of the ACCA’s term “involving” could be expansively applied so as to collapse the “violent felony” and “serious drug offense” categories into one another. Id. at 20. Overall, Famm argues that a categorical approach ensures fair notice to defendants as required by the Constitution and helps confine prosecutorial and judicial discretion. Id.
The United States counters that Shular’s approach would create confusion and inconsistency across cases. Brief for Respondent at 30. In particular, the United States explains that Shular’s method requires judicial discretion in determining whether certain conduct qualifies for ACCA enhanced sentencing, because instead of requiring the judge to determine only if the conduct in question “involves” the articulated conduct, the judge would have to go through the longer process of determining whether each aspect of the state offense aligns with a generic analogue offense. Id. The United States contends that this process would increase confusion for defendants and result in inconsistent sentencing outcomes. Id. at 29–30.
Famm asserts that the Eleventh Circuit’s interpretation would raise serious constitutional issues because it is ambiguous and vague. Brief of Famm at 21. Furthermore, Famm contends that the Circuit’s interpretation confuses defendants over whether their convictions qualify for ACCA sentencing enhancements, which gives this decision to individual judges and fails to give defendants proper notice. Id. at 22. Therefore, Famm argues that the rule of lenity requires courts to resolve the ACCA’s ambiguity in favor of defendants to safeguard the constitutional requirements of fair notice and separation of powers. Id. at 24.
The United States argues that the rule of lenity only applies as a last resort after all other interpretive tools have been utilized and ambiguity still remains. Brief for Respondent at 28. The United States further contends that the statute is not ambiguous or vague. Id. at 29. In particular, the United States explains that the statute clearly answers the question of what qualifies for ACCA enhancement and therefore the statute does not result in constitutional questions. Id. Finally, the United States argues that the context of the statutory history further clarifies the ACCA’s application if any confusion remains regarding the language of the statute. Id.
DETRIMENTAL EFFECTS AND DISPARATE IMPACT
Famm asserts that the Eleventh Circuit’s interpretation would not only harm defendants, but would be ineffective at incapacitating and deterring them. Brief of Famm at 27. For example, Famm explains that when the enhanced sentence’s mandatory minimums are applied to a large number of offenders, the enhancement is less effective. Id. at 27. Additionally, Famm contends that mandatory minimums do not incapacitate offenders because they primarily affect low-level drug offenders and do not target “serious drug offenses.” Id. Furthermore, Famm asserts that expansively applying the ACCA would result in longer sentences, which will prevent defendants from reentering society, cause them to distrust the justice system, and increase their recidivism rates. Id. at 28–29. Additionally, the National Association of Criminal Defense Lawyers (“NACDL”) argues that the Eleventh Circuit’s approach would cause a disparate impact across cases because similarly-situated defendants would not receive individualized sentences. Brief of Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”), in Support of Petitioner at 17–18. Overall, NACDL posits that permitting a rule that allows state law definitions for criminal offenses to determine if the ACCA applies will “exacerbate existing disparities.” Id. at 19.
The United States counters Shular’s interpretation of the ACCA by arguing that it would increase the risk of disparities in sentences for defendants because courts would have to review generic versions of drug offenses and determine if those offenses qualify under the ACCA. Brief for Respondent at 29–30. Furthermore, the United States acknowledges there was no established common understanding of the four categories—manufacturing, distributing, and possessing a controlled substance with intent to distribute or manufacture—and that their understanding differed among states. Id. at 30. It asserts, however, that Section 924(e)(2)(A)(ii) allows courts to merely determine whether a state-law offense includes particular conduct. Id. The United States contends that its approach would create uniform sentencing among similarly-situated defendants. Id. at 31. For example, the United States explains that treating state-law offenses entailing the statutorily listed conduct similarly under their approach reduces disparity across states because it makes state-law variations for offenses irrelevant. Id. Overall, the United States argues that their approach promotes equal treatment for defendants because it focuses on a single aspect of the state-law crime. Id. at 32.
- Alexander J. Segal, SCOTUS to Consider Whether Categorical Approach is Required to Determine if Conviction is a “Serious Drug Offense” Under ACCA, My Attorney USA (July 7, 2019).
- Charles Doyle, Armed Career Criminal Act (18 U.S.C. 924(e)): An Overview, Congressional Research Service (July 29, 2015).
- Jeremy Gordon, The Critical Power of the “Categorical Approach”: Shular and the Armed Career Criminal Act, Gordon Defense (Oct. 16, 2019).