Posted by Written by Nicole M. Kaplan
In December, the Eleventh Circuit decided the Jackson case, which tells us how to decide whether a state prior conviction is an ACCA serious drug offense. US v. Jackson, 55 F.4th 846 (11th Cir. 2022). Disappointingly, the court held that we must compare the state controlled-substance definition (and whether it includes or excludes hemp, certain isomers, ioflupane, etc.) to the federal controlled-substance schedules in effect at the time of the state conviction, and not the schedules in place at the time of the federal crime or sentencing hearing. The opinion creates a circuit split on this question. All hope is not lost, however. Jackson’s lawyer, Andy Adler of the fantastic defenders in the Southern District of Florida, has filed for certiorari. Stay tuned for updates!
The opinion had one consolation prize which may mean the good in Jackson ends up outweighing the bad. The prior-panel-precedent (PPP) rule, which the court has historically read broadly, gets tailored here. The appeals court has always “rejected an overlooked reason or argument exception” to the PPP. Id. at 853. However, the Jackson panel reminds us that “questions which merely lurk in the record,” and were not argued to or decided by the court, do not count as “precedents.” Id. “[A]ssumptions are not holdings.” Id. at 854. So, when we attack a different element in a predicate offense, we raise a different “question” or issue, and will not be barred by the dreaded PPP rule.
There are great quotes to be mined in Jackson when you need them. The even sleepier sleeper issue comes in Judge Rosenbaum’s concurrence to her own majority opinion. She reminds us that ordinary people are entitled to notice about what the law forbids and the penalty for breaking it. Is the public really on notice where there is a circuit split on the “serious drug offense” issue and historical analysis of drug statutes is required? Judge Rosenbaum suggests not. Given that seven ACCA cases have been decided by the Supreme Court just since Johnson v. United States arrived eight years ago, I think she is right.
The Blue Notes 