February 25, 2020

Shular v. United States

CRIMINAL LAW

Must a State Drug Offense Match the Elements of a Generic Federal Offense to Qualify for Armed Career Criminal Act Enhancement?

CASE AT A GLANCE

The Armed Career Criminal Act (ACCA) allows for the enhancement of federal sentences if the defendant has three prior offenses involving “serious drug offenses.” Applicable federal law has a mens rea component, meaning that the defendant knew he was distributing an illegal substance. The question in this case is whether convictions under a Florida drug law, which doesn’t have a similar mens rea requirement, qualify as predicate offenses under the ACCA.

Docket No. 18-6662
Argument Date: January 21, 2020
From: The Eleventh Circuit
by David L. Hudson Jr.
Belmont Law School, Nashville, TN

ISSUE

Must a state drug offense match the elements of a generic federal offense in order to qualify for enhancement purposes under the Armed Career Criminal Act?

FACTS

Eddie Lee Shular (petitioner) pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The standard sentence for this offense is zero to 120 months imprisonment. However, the Armed Career Criminal Act (ACCA) increases the penalty to a term of 15 years to life if the defendant has “three previous convictions…for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).

Petitioner had six previous Florida state law convictions—five for the sale of cocaine and one for possession with intent to sell cocaine. The United States Probation Office thus recommended that petitioner receive enhanced sentencing under the ACCA. The Probation Office recommended his sentence to fall within 188 to 235 months imprisonment. Without the ACCA enhancement, the sentencing range presumably would have been between 46 to 57 months.

Petitioner objected that his prior state law drug offenses qualified as “serious drug offenses” under the ACCA, because Florida law does not require a particular mens rea. In other words, Florida law does not require the prosecution to prove that a defendant knew he was trafficking in cocaine or a similar illegal substance.

A federal district court found that petitioner’s previous Florida state law convictions qualified as serious drug offenses and sentenced petitioner to 180 months imprisonment. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed based on its previous decision in United States v. Smith, 775 F.3d 1262 (11th Cir. 2014).

CASE ANALYSIS

Congress initially passed the ACCA in 1984 to target those career criminals who commit robbery or burglary with a firearm. Under the ACCA, a person who has committed several previous offenses could get a much-expanded criminal sentence. In 1986, Congress expanded the ACCA significantly by broadening the list of prior convictions that could serve as enhancements. Congress expanded the law from “robbery” and “burglary” to “violent felony” and “serious drug offense.”

Congress defined “serious drug offense” to include a federal conviction under the Controlled Substances Act, 21 U.S.C. § 801 et seq., or offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”

Under the ACCA, courts generally apply what is known as a categorical approach to determine whether previous state law convictions can be used to enhance a federal sentence. This categorical approach requires that a previous state offense categorically fit within the generic definition of the corresponding federal crime.

The ACCA generally allows for greater penalties for certain career criminals or recidivist offenders. The ACCA provides for a 15-year minimum sentence for any person who has “three previous convictions by any court…for a violent felony or a serious drug offense, or both…” 18 U.S.C. § 924(e)(1). The law further defines  a “serious drug offense” in part as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance for which a maximum term of imprisonment of ten years or more is prescribed by law.”

Petitioner’s previous Florida convictions for selling cocaine and for possessing cocaine with intent to sell provided for maximum prison terms of at least 10 years. Thus, at first blush, these state law convictions qualify as “serious drug offenses” within the meaning of the ACCA and can be used for enhancement purposes.

However, Florida’s drug laws were amended in 2002 to dispense with the traditional common law mens rea requirement. Under Florida law, a person could be convicted of dispensing a controlled substance even if he did not know that the substance was illegal. In other words, Florida presumes that the defendant had knowledge. Florida’s law is unique in this regard.

Petitioner asserts that, because Florida’s drug law is broader and encompasses more criminal conduct than does federal law, convictions under this Florida law cannot serve as the predicate three offenses necessary for enhancement. Petitioner points to the language in the ACCA that defines an applicable state offense as one “involving manufacturing, distributing, or possessing with intent to manufacture or distribute.” In other words, petitioner says that Congress intended for the state offenses to include a mens rea element.

Petitioner points out that “[t]he States’ various penal codes are replete with provisions prohibiting manufacturing, distributing, and possession with intent to manufacture or distribute controlled substances.” These state laws have a mens rea component that is not present in the Florida law in question. Thus, petitioner posits that under the categorical—or same elements analysis—convictions under the Florida law cannot serve as predicate offenses for an ACCA enhancement because the Florida law is too broad and covers more conduct.

Petitioner points to the legislative history of the 1986 ACCA amendment that led to the “serious drug offense language.” At that time, petitioner suggests, Congress contemplated that both federal and state laws would involve similar crimes with a similar mens rea. Petitioner argues that “Congress could not reasonably have intended to carve out an entirely different standard that would sweep in outlier state offenses.”

Respondent focuses on petitioner’s actual criminal conduct and says that these state offenses involved “distributing” and “possessing…with intent to distribute.” Respondent asserts that “the proper inquiry is whether the state offense’s elements necessarily entail manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance.”

Respondent points out that states routinely use different language with regard to the same criminal conduct. According to respondent, it would have “been much more difficult for courts to attempt to synthesize generic versions of those offenses from the motley raw material of state and federal laws.”

In his reply brief, petitioner responds that “[n]othing in the text or structure of § 924(e)(2)(A)(ii) shows that Congress intended to selectively incorporate portions of state drug offenses, such that the near universal state law requirement of mens rea evaporates to accommodate an outlier state.”

SIGNIFICANCE

Petitioner asserts that the case is significant to quote the Court in an earlier ACCA case involving “violent felonies”—that the “same type of conduct is punishable on the Federal level in all cases.” According to petitioner, to allow an outlier state statute to serve as prior offenses for enhancement purposes will lead to disparate punishments geographically across the country.

The case could be significant because the Roberts Court, and particularly Chief Justice John Roberts Jr., has emphasized the importance of mens rea in Anglo-American criminal justice. In their amicus brief in support of petitioners, the American Immigration Lawyers Association and other groups note that in McFadden v. United States, (2015), the chief justice wrote in a concurring opinion that “the defendant needs to know more than the identity of the substance; he needs to know that the substance is controlled.” That same year, in the true threat decision Elonis v. United States, 135 S. Ct. 2001 (2015), the chief justice reiterated that “a defendant must be blameworthy in mind before he can be found guilty” and “a guilty mind is a necessary element in the indictment and proof of every crime.” With these premonitions and adherence to the strong common law tradition of a mens rea requirement, members of the Court may have a hard time accepting that a state law that does not require mens rea serves as an enhancer for a sentence under federal law.

The National Association for Criminal Defense Lawyers (NACDL), in its brief supporting petitioner, emphasizes the significance of the case as an opportunity for the Court to address the lack of uniformity of ACCA sentence enhancements. According to the NACDL, a March 2018 study by the U.S. Sentencing Commission shows that “defendants receive disparate treatment under [the ACCA] depending on the state in which they are convicted.” They add in a footnote that “ACCA enhancements disproportionately impact people of color.”

 

David L. Hudson Jr. is a visiting associate professor of legal practice at Belmont Law School in Nashville, Tennessee. He is also the author, coauthor, or coeditor of more than 40 books, including a coeditor of The Encyclopedia of the Fourth Amendment (2013). He can be reached at davidlhudsonjr@gmail.com.

PREVIEW of United States Supreme Court Cases 47, no. 4 (January 13, 2020): 22–24. © 2020 American Bar Association

ATTORNEYS FOR THE PARTIES

  • For Petitioner Eddie Shular (Richard Michael Summa, 850.942.8818)
  • For Respondent United States (Noel J. Francisco, Solicitor General, 202.514.2217)

AMICUS BRIEFS

In Support of Petitioner Eddie Shular

  • American Immigration Lawyers Association; Catholic Legal Services, Archdiocese of Miami; and Americans for Immigrant Justice (Michael Scott Vastine, 305.623.2340)
  • FAMM (David John Debold, 202.955.8551)
  • National Association of Criminal Defense Lawyers (Caitlin Joan Halligan, 212.390.9000)