[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 22-10928

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

BRANDON MASON, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 2:20-cr-00004-RWS-JCF-1

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2 Opinion of the Court 22-10928

Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRANCH, Circuit Judges.

PER CURIAM:

Brandon Mason appeals his sentence of 180 months of imprisonment for possessing a firearm as a convicted felon. 18 U.S.C. 

§§ 922(g)(1), 924(e). Mason argues that he lacks sufficient predicate 

offenses to qualify for his mandatory-minimum sentence as an 

armed career criminal. Mason argues that his prior state conviction

for attempting to distribute cocaine, O.C.G.A. § 16-13-30, does not 

count as a “serious drug offense.” The government argues that, under our intervening precedent, United States v. Jackson, 55 F.4th 

846 (11th Cir. 2022), Mason’s prior state conviction for possessing 

with intent to distribute marijuana, O.C.G.A. § 16-13-30(j)(1),

serves as an alternative predicate offense. We affirm.

Mason pleaded guilty to possessing a firearm as a felon. 18 

U.S.C. §§ 922(g)(1), 924(e). Mason’s presentence investigation report classified him as an armed career criminal based on four 2010 

Georgia convictions for possessing with intent to distribute cocaine, selling and possessing with intent to distribute cocaine, attempting to distribute cocaine, and possessing with intent to distribute marijuana. Mason objected to the use of his convictions for 

attempting to distribute cocaine and for possessing with intent to 

distribute marijuana.

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22-10928 Opinion of the Court 3

At Mason’s sentencing hearing in March 2022, the district 

court sustained Mason’s objection that the 2010 Georgia definition 

of marijuana was categorically overbroad because it included 

hemp, which was delisted from the federal drug schedules in 2018.

The district court explained in a post-sentencing order that it compared the Georgia definition to the current federal drug schedules, 

instead of those in effect at the time of Mason’s state conviction.

The district court overruled Mason’s objection to counting his conviction for attempting to distribute cocaine and ruled that it was a 

third qualifying conviction for a serious drug offense under the 

Armed Career Criminal Act. The district court sentenced Mason to 

the mandatory minimum sentence of 15 years of imprisonment.

We review the determination that a prior state conviction is 

a predicate offense under the Act de novo. United States v. Conage, 

976 F.3d 1244, 1249 (11th Cir. 2020). Federal law governs our interpretation of the Act, and state law governs our analysis of state offenses. Id. “[W]e may affirm for any reason supported by the record, even if not relied upon by the district court.” United States v. 

Chitwood, 676 F.3d 971, 975 (11th Cir. 2012) (quotation marks 

omitted).

The Act mandates a minimum sentence of 15 years of imprisonment when the defendant has three prior convictions for either violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). 

The Act provides that a state law offense is a serious drug offense 

if it is one “involving manufacturing, distributing, or possessing 

with intent to manufacture or distribute, a controlled substance (as 

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4 Opinion of the Court 22-10928

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.” Id. § 924(e)(2)(A)(ii).

Regardless of whether Mason’s prior conviction for attempting to distribute cocaine serves as a predicate conviction under the 

Act, Mason’s sentence was correctly enhanced under the Act. Mason’s conviction for possessing with intent to distribute marijuana 

qualifies as a third predicate offense. The parties agree that the issue whether Georgia’s definition of marijuana was categorically 

overbroad because it included hemp, see O.C.G.A. § 16-13-21(16) 

(2009), turns on whether the Act incorporates the version of the 

federal drug schedules at the time of the prior state conviction or 

at the time of federal sentencing. Our decision in United States v. 

Jackson, issued while Mason’s appeal was pending, decides this issue in favor of the government. 55 F.4th 846.

Jackson ruled that the definition of a serious drug offense under the Act “incorporates the federal drug schedules in effect at the 

time of the prior state conviction.” Id. at 858. At the time of Mason’s state conviction, hemp was included in both the state and federal definitions of marijuana. Compare 21 U.S.C. § 802(16)(B)

(2009), with O.C.G.A. § 16-13-21(16) (2009). Because Mason identifies no categorical mismatch between the state and federal definitions of marijuana at the time of his state conviction, we hold based 

on Jackson that the Georgia statue did not sweep more broadly 

than the federal offense. 55 F.4th at 861.

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Mason argues that Jackson was incorrectly decided and asks 

us to compare instead the Georgia definition of marijuana at the 

time of his state conviction with the federal definition of marijuana 

at the time of his federal sentencing, after hemp was delisted from 

the federal drug schedules. See 21 U.S.C. § 802(16)(B) (specifying

that “[t]he term ‘marihuana’ does not include—(i) hemp, as defined 

in section 1639o of Title 7”). But, as Mason acknowledges, we are 

bound to apply Jackson “unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this 

court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 

(11th Cir. 2008). Because Mason has three predicate offenses to support his mandatory minimum sentence under the Act, we need not 

decide whether his conviction for attempting to distribute cocaine 

also qualifies as a serious drug offense. Chitwood, 676 F.3d at 975.

We AFFIRM Mason’s mandatory-minimum sentence.

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