SCOTUS to Consider Whether Categorical Approach is Required to Determine if Conviction is a "Serious Drug Offense" Under ACCA

On June 28, 2019, the Supreme Court of the United States granted a petition for certiorari in Shular v. United States, 18-6662 [PDF version].

Shular concerns the Armed Career Criminals Act (ACCA), a Federal sentence-enhancement statute. Although the ACCA is a criminal law rather than a civil immigration law, several Supreme Court decisions on how to interpret the ACCA have been influential in the immigration context [see index]. The question in most ACCA cases is whether a State or Federal criminal conviction may serve as a predicate offense for sentence enhancement. In immigration law, the question in removal proceedings involving criminal offenses is often whether a State or Federal criminal conviction is a predicate offense under the immigration laws.

In Shular, the Court will consider the following question:

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?

Under 18 U.S.C. 924(e), an individual with three previous convictions for a “violent felony” or a “serious drug offense” who then commits a criminal offense set forth in 18 U.S.C. 922(g) is subject to a mandatory minimum term of imprisonment of 15 years. The term “serious drug offense” is defined in 18 U.S.C. 924(e)(2)(A) as:

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law…

The Supreme Court will consider whether the “categorical approach” must be used in determining whether a conviction is for a “serious drug offense.” That is, when evaluating whether a conviction is a “serious drug offense,” must a court look solely at whether the minimum conduct proscribed by statute is for a “serious drug offense,” or may it look beyond the language of the statute to determine whether the conduct that led to the conviction was conduct that would fall under 18 U.S.C. 924(e)(2)(A)? The former approach is already used for determining whether a conviction is a “violent felony” under 18 U.S.C. 924(e)(2)(B).

In United States v. Shular, 736 Fed.Appx. 876 (Mem) (11th Cir. 2018) [PDF version], the United States Court of Appeals for the Eleventh Circuit followed its existing precedent from U.S. v. Smith, 775 F.3d 1262 (11th Cir. 2014) [PDF version], that courts may look beyond the language of the statute of conviction. In Smith, the petitioner argued that based on the Eleventh Circuit's prior decision in Donawa v. U.S. Attorney General, 735 F.3d 1275 (11th Cir. 2013) [PDF version] — wherein the Eleventh Circuit applied the categorical approach to determine whether a Florida marijuana conviction was a drug offense under the Immigration and Nationality Act (INA) — required the categorical approach in determining whether a Florida conviction was a “serious drug offense” under the ACCA. Writing for the court in Smith, Judge William Pryor found that the cases were distinguishable:

We need not search for the elements of the 'generic' definition[] of 'serious drug offense' … because [this] term[] [is] defined by federal statute and the Sentencing Guidelines, respectively.” U.S. v. Smith, 775 F.3d at 1267

It will be worth watching the Supreme Court's consideration of whether the categorical approach is needed to determine whether a conviction is for a “serious drug offense.” No matter which way the Court rules, its decision will potentially affect how courts and adjudicators across the country read certain provisions of the INA.