[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13963

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EUGENE JACKSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cr-20546-KMW-1

____________________

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2 Opinion of the Court 21-13963

Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.

ROSENBAUM, Circuit Judge:

The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a fifteen-year minimum sentence for a defendant who possesses a firearm and satisfies any of 18 U.S.C. § 922(g)(1)’s conditions while having at least three qualifying “previous convictions.” 

“[P]revious convictions” qualify if they are for a “violent felony or 

a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). This appeal 

concerns ACCA’s definition of “serious drug offense.”

A prior state conviction satisfies ACCA’s definition of “serious drug offense” if it is one “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act . . .), for which a maximum term of imprisonment of 

ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii) (emphasis added). Not surprisingly, the Controlled Substances Act’s 

list of controlled substances changes from time to time. We must 

decide which version of the controlled-substances list ACCA’s definition of “serious drug offense” incorporates: the one in effect 

when the defendant violated 18 U.S.C. § 922(g)(1) (the “firearm offense”) or the one in effect when the defendant was convicted of

his prior state drug offense. We hold that the Supreme Court’s 

reasoning in McNeill v. United States, 563 U.S. 816 (2011), requires 

us to conclude that ACCA’s “serious drug offense” definition incorporates the version of the controlled-substances list in effect when 

the defendant was convicted of his prior state drug offense. 

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I. 

The facts here are straightforward. Eugene Jackson pled

guilty to possession of a firearm and ammunition by a convicted 

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). In support of his guilty plea, the factual proffer shows that he unlawfully 

possessed a loaded firearm on September 26, 2017. 

In Jackson’s presentence investigation report, the probation 

officer concluded that Jackson qualified for a sentence enhancement under ACCA based on his prior criminal history. That is, the 

officer determined that, when Jackson possessed the firearm, he 

had at least three prior convictions for a “violent felony or a serious 

drug offense, or both, committed on occasions different from one 

another.” Id. § 924(e)(1). And under those circumstances, ACCA 

mandates a fifteen-year minimum sentence for violation of the firearm prohibition in 18 U.S.C. § 922(g).

Although Jackson conceded that he had two prior convictions that satisfy ACCA’s definition of a “violent felony,”1 he objected to the probation officer’s conclusion that his two cocainerelated convictions met ACCA’s “serious drug offense” definition. 

But the district court overruled Jackson’s objection, finding that his 

cocaine-related convictions did qualify. Based on that 

1 As relevant here, these prior offenses of Jackson’s are “violent felon[ies]” because each had “as an element the use, attempted use, or threatened use of 

physical force against the person of another.” Id. § 924(e)(2)(B)(i).

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determination, the district court sentenced Jackson to ACCA’s 

mandatory fifteen-year minimum. 

Jackson now appeals his sentence. 

II. 

We review de novo the legal question whether a prior state 

conviction qualifies as a “serious drug offense” under ACCA. 

United States v. Conage, 976 F.3d 1244, 1249 (11th Cir. 2020) (citing 

United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009)). 

When we conduct our review, federal law binds our construction 

of ACCA, and state law governs our analysis of elements of statelaw crimes. Id. (quoting United States v. Braun, 801 F.3d 1301, 1303 

(11th Cir. 2015)). 

III. 

Jackson contends that neither of his prior cocaine-related 

convictions under Florida Statute § 893.13 meets ACCA’s definition of a “serious drug offense.” So we turn to that definition. As 

we have noted, ACCA defines a “serious drug offense” to include 

“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.” 18 U.S.C. 

§ 924(e)(2)(A)(ii). 

To determine whether a prior conviction under state law 

qualifies as a “serious drug offense,” we focus on “the statutory 

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definition of the state offense at issue, rather than the facts underlying the defendant’s conviction.” Conage, 976 F.3d at 1250. We 

call this the “categorical approach.” Id. (quoting Robinson, 583 

F.3d at 1295). 

Under this approach, a state conviction cannot serve as an 

ACCA predicate offense if the state law under which the conviction 

occurred is categorically broader—that is, if it punishes more conduct—than ACCA’s definition of a “serious drug offense.” See id. 

So if there is conduct that would violate the state law but fall outside of ACCA’s “serious drug offense” definition, the state law cannot serve as a predicate offense—“regardless of the actual conduct 

that resulted in the defendant’s conviction.” Id. Our task here, 

then, is to compare the state law that defines Jackson’s prior cocaine-related offenses with ACCA’s definition of a “serious drug offense” to see whether the state crime is categorically broader than 

a “serious drug offense.”2

2 Sometimes a statute is divisible, meaning it lists “elements in the alternative,

and thereby define[s] multiple crimes.” Mathis v. United States, 579 U.S. 500, 

505 (2016). When that’s the case, we use the “modified categorical approach” 

to assess whether a prior conviction qualifies as an ACCA predicate. Id. Under 

this modified categorical approach, we look “to a limited class of documents 

(for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted 

of.” Id. at 505–06 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). We 

“then compare that crime, as the categorical approach commands,” with 

ACCA’s “serious drug offense” definition. See id. at 506. In contrast to the 

modified categorical approach, when the statute lists alternative means of 

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In conducting that analysis, we analyze “the version of state 

law that the defendant was actually convicted of violating.” 

McNeill, 563 U.S. at 821. Here, Jackson’s two potential “serious 

drug offenses” include convictions for violating Florida Statute 

§ 893.13 in 1998 and in 2004 with conduct involving cocaine. In 

1998 and in 2004, when Jackson was convicted of his cocaine-related offenses, Section 893.13(1) criminalized selling, manufacturing, delivering, or possessing with the intent to sell, manufacture, 

or deliver, cocaine and cocaine-related substances, including a substance called ioflupane (123I) (“ioflupane”).3 

satisfying a single element, the standard categorical approach applies. See id. 

at 517. And under that approach, we presume that the defendant’s conviction 

“rested upon nothing more than the least of the acts criminalized or the least 

culpable conduct.” United States v. Kushmaul, 984 F.3d 1359, 1364 (11th Cir. 

2021) (quotation marks omitted). As we explain in greater detail below, we 

assume without deciding that the standard categorical approach applies here. 

See infra note 9.

3 At the time of Jackson’s convictions, Section 893.13(1) prohibited selling, 

manufacturing, delivering, or possessing with the intent to sell, manufacture, 

or deliver, “a controlled substance.” Fla. Stat. § 893.13(1) (1998); see also id.

(2004). Florida law defined “[c]ontrolled substance” as “any substance named 

or described in Schedules I through V of s. 893.03.” Id. § 893.02(4) (1998); see 

also id. (2004) (“‘Controlled substance’ means any substance named or described in Schedules I-V of s. 893.03.”). Florida’s Schedule II included 

“[c]ocaine or ecgonine, including any of their stereoisomers, and any salt, 

compound, derivative, or preparation of cocaine or ecgonine.” Id. 

§ 893.03(2)(a)(4) (1998); see also id. (2004). It’s clear that definition encompassed ioflupane because the Florida Legislature has since amended Florida’s 

Schedule II to expressly exempt ioflupane from that definition. Id. (2017); 2017 

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The federal version of Schedule II also encompassed ioflupane in 1998 and 2004, when Jackson was convicted of his Section 893.13(1) offenses.4 But that changed in 2015. Then, the federal government exempted ioflupane from Schedule II because of 

its potential value in diagnosing Parkinson’s disease. 80 Fed. Reg. 

at 54716; see also 21 C.F.R. § 1308.12(b)(4)(ii) (2017); id. (2021).5 So 

in 2017, when Jackson possessed the firearm that resulted in his federal conviction under 18 U.S.C. § 922(g)(1) here, ioflupane was not 

a controlled substance “as defined . . . [under] the Controlled Substances Act,” id. § 924(e)(2)(A)(ii).

Based on this fact, Jackson argues that Section 893.13(1), 

which punished ioflupane-related conduct when Jackson was convicted of his prior state drug offenses, is categorically broader than 

Fla. Sess. Law Serv. Ch. 2017-110 (C.S.H.B. 505) (West); see also Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

256–60 (2012) (explaining that “a change in the language of a prior statute presumably connotes a change in meaning”). 

4 Until 2015, “ioflupane was, by definition, a schedule II controlled substance 

because it is derived from cocaine via ecgonine, both of which are schedule II 

controlled substances.” Schedules of Controlled Substances: Removal of [123 

I] Ioflupane from Schedule II of the Controlled Substances Act, 80 Fed. Reg. 

54715, 54715 (Sept. 11, 2015) (codified at 21 C.F.R. § 1308.12(b)(4)(ii)). 

5 The Controlled Substances Act authorizes the Attorney General to “remove 

any drug or other substance from the schedules if he finds that the drug or 

other substance does not meet the requirements for inclusion in any schedule.” 21 U.S.C. § 811(a); see also id. § 812 n.1 (“Revised schedules are published 

in the Code of Federal Regulations, Part 1308 of Title 21, Food and Drugs.”).

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ACCA’s definition, which no longer punished ioflupane-related 

conduct when Jackson committed his present § 922(g)(1) firearm 

offense. This argument works if ACCA’s definition incorporates 

the version of the controlled-substances schedules in effect when a 

defendant commits the firearm offense rather than the version in 

effect when he was convicted of his prior state drug offense. We 

consider, then, which version of the federal controlled-substances 

schedules ACCA’s definition of “serious drug offense” incorporates: the one in place at the time of the prior state conviction, or 

the one in place at the time the defendant committed the present 

federal firearm offense.

We divide our discussion into two parts. In Section A, we 

explain why the Supreme Court’s and our precedents on Section 

893.13(1) do not answer the question we must address. Section B, 

in contrast, shows why the Supreme Court’s reasoning in McNeill

does. Section B then answers the question this case presents, before applying that answer to the facts in this appeal.

A.

The government identifies three decisions it says foreclose 

Jackson’s argument. We think not.

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In two of the decisions the government identifies, we addressed whether Section 893.13(1)’s lack of a mens rea element6

with respect to the illicit nature of the controlled substance renders 

the state statute overbroad in comparison to ACCA’s “serious drug 

offense” definition. And in all three decisions, the Supreme Court 

and this Court held that Section 893.13(1), which lacks a mens rea 

element as to the illicit nature of the controlled substance, qualifies 

as a “serious drug offense” under ACCA. 

In United States v. Travis Smith, 775 F.3d 1262 (11th Cir. 

2014), we held that ACCA’s definition of a “serious drug offense” 

does not include a mens rea element with respect to the illicit nature of the controlled substance. Id. at 1267. Rather, that definition 

“require[s] only that the predicate offense ‘involv[es],’ . . . certain 

activities related to controlled substances.” Id. (second alteration 

in original) (quoting 18 U.S.C. § 924(e)(2)(A)(ii)). And because Section 893.13(1) involves those activities, we held that a violation of 

the statute qualifies as a “serious drug offense” under ACCA—

despite the fact that the statute lacks a mens rea element with respect to the illicit nature of the controlled substance. Id. at 1268. 

In so holding, we made clear that “[w]e need not search for the 

elements of” a generic definition of “serious drug offense” because 

that term is “defined by a federal statute . . . .” Id. at 1267. 

6 Mens rea is “[t]he state of mind that the prosecution, to secure a conviction, 

must prove that a defendant had when committing a crime . . . .” Mens Rea, 

Black’s Law Dictionary (11th ed. 2019).

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In Shular v. United States, 140 S. Ct. 779 (2020), the Supreme 

Court agreed. Shular argued that the definition of “serious drug 

offense” describes “not conduct, but [generic] offenses.” Id. at 782.

In his view, courts were required to “first identify the elements of 

the ‘generic’ offense” before asking “whether the elements of the 

state offense match those of the generic crime.” Id. But the Court 

rejected that view, holding that ACCA’s “‘serious drug offense’ definition requires only that the state offense involve the conduct 

specified in the federal statute; it does not require that the state offense match certain generic offenses.” Id. Although Shular explicitly did not reach the mens rea issue we addressed in Travis Smith, 

see Shular, 140 S. Ct. at 787 n.3, the Court nevertheless affirmed 

our judgment that convictions under Section 893.13(1) do qualify 

as “serious drug offenses” under ACCA, id. at 784, 787; see also

United States v. Shular, 736 F. App’x 876, 877 (11th Cir. 2018) (relying on Travis Smith to hold that Shular’s convictions under Fla. 

Stat. § 893.13 qualify as serious drug offenses under ACCA), aff’d, 

140 S. Ct. 779 (2020). 

Finally, in United States v. Xavier Smith, 983 F.3d 1213 (11th 

Cir. 2020), relying on Travis Smith and Shular, we affirmed that 

“ACCA’s definition of a serious drug offense ‘requires only that the 

state offense involve the conduct specified in the [ACCA]’” and 

does not require a “‘generic-offense matching exercise.’” Id. at

1223 (alteration in original) (quoting Shular, 140 S. Ct. at 782–84). 

And we again rejected the argument that Section 893.13(1) cannot 

qualify as a “serious drug offense” under ACCA because it lacks a 

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mens rea element. See id. (“Smith’s argument that his prior convictions cannot qualify because the state offense lacks a mens rea 

element is foreclosed by our [Travis] Smith precedent and the Supreme Court’s precedent in Shular.”). 

The government insists that these three decisions, together 

with our prior-panel-precedent rule, require us to conclude that 

Jackson’s cocaine-related convictions under Section 893.13 are “serious drug offense[s]” because, in the government’s view, we have 

already declared that Section 893.13 is a “serious drug offense.” Under our prior-panel-precedent rule, “a prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by 

this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th 

Cir. 2015) (quoting United States v. Archer, 531 F.3d 1347, 1352 

(11th Cir. 2008)). And we have “categorically rejected an overlooked reason or argument exception to the prior-panel-precedent 

rule.” Id. 

But “[q]uestions which merely lurk in the record, neither 

brought to the attention of the court nor ruled upon, are not to be 

considered as having been so decided as to constitute precedents.” 

Webster v. Fall, 266 U.S. 507, 511 (1925); see also, e.g., United 

States v. Edwards, 997 F.3d 1115, 1120 (11th Cir. 2021) (“[W]e 

weren’t confronted with the question we face today . . . and so, of 

course, we had no occasion to resolve it.”). And Travis Smith, Shular, and Xavier Smith did not address, as Jackson asks us to do here, 

whether ACCA’s “serious drug offense” definition incorporates the 

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version of the controlled-substances schedules in effect when the 

defendant was convicted of his prior state drug offenses or the version in effect when he committed his present firearm offense. 

Rather, those decisions presented two questions relating to

ACCA’s “serious drug offense” definition: first, whether the definition requires that the state offense match certain generic offenses, 

see Travis Smith, 775 F.3d at 1267; Shular, 140 S. Ct. at 782; and 

second, whether Section 893.13(1) convictions cannot qualify as 

ACCA predicates because that statute lacks a mens rea element 

with respect to the illicit nature of the controlled substance, see 

Travis Smith, 775 F.3d at 1267–68; Xavier Smith, 983 F.3d at 1223. 

In answering the two questions, the decisions construed the part of 

ACCA’s “serious drug offense” definition that requires the state offense to involve the conduct of “manufacturing, distributing, or 

possessing with intent to manufacture or distribute.” 18 U.S.C. 

§ 924(e)(2)(A)(ii); see Travis Smith, 775 F.3d at 1267 (holding that 

ACCA’s serious drug offense definition requires “only that the 

predicate offense involves . . . certain activities related to controlled 

substances” (alteration adopted and quotation marks omitted)); 

Shular, 140 S. Ct. at 782 (holding that ACCA’s “‘serious drug offense’ definition requires only that the state offense involve the 

conduct specified in the federal statute”); Xavier Smith, 983 F.3d at 

1223 (noting that “ACCA’s definition of a serious drug offense ‘requires only that the state offense involve the conduct specified in 

the ACCA’” (alteration adopted) (quoting Shular, 140 S. Ct. at 

782)). 

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In contrast, this case asks us to construe the part of ACCA’s 

“serious drug offense” definition that requires the state offense to 

involve “a controlled substance (as defined in section 102 of the 

Controlled Substances Act (21 U.S.C. [§] 802)).” 18 U.S.C. 

§ 924(e)(2)(A)(ii). At best, the Smith decisions and Shular assumed 

that this part of the “serious drug offense” definition and Section 

893.13(1) encompass the same universe of substances. But “assumptions are not holdings.” Brown v. Electrolux Home Prods., 

Inc., 817 F.3d 1225, 1239 (11th Cir. 2016); see also Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (“[S]ince we have never squarely 

addressed the issue, and have at most assumed [the issue], we are 

free to address the issue on the merits.”); Fernandez v. Keisler, 502 

F.3d 337, 343 n.2 (4th Cir. 2007) (“We are bound by holdings, not 

unwritten assumptions.”); Sakamoto v. Duty Free Shoppers, Ltd., 

764 F.2d 1285, 1288 (9th Cir. 1985) (“[U]nstated assumptions on 

non-litigated issues are not precedential holdings binding future decisions.”); United States v. Norris, 486 F.3d 1045, 1054 (8th Cir. 

2007) (en banc) (Colloton, J., concurring in the judgment) (collecting decisions in which implicit assumptions, findings, or questions 

were not given precedential effect). 

And Travis Smith, Xavier Smith, and Shular did not address 

the question this appeal presents: whether ACCA’s “serious drug 

offense” definition incorporates the version of the federal controlled-substances schedules in effect when the defendant was convicted of his prior state drug offenses or the version in effect when 

he committed his firearm offense. We consider that question now. 

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B.

We apply the categorical approach in three steps. First, we 

identify the criteria ACCA uses to define a state “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii). This step requires us to 

decide which version of the federal controlled-substances schedules that definition incorporates. Second, we turn to the “statutory 

definition of the state offense at issue.” Conage, 976 F.3d at 1250. 

Here, that definition resides at Florida Statute § 893.13(1), which 

describes the elements of Jackson’s prior cocaine-related offenses. 

Third, we compare the results of those steps to determine whether 

Section 893.13(1) is categorically broader—that is, whether it punishes more conduct—than ACCA’s “serious drug offense” definition. If Section 893.13(1) is not categorically broader than ACCA’s 

“serious drug offense” definition, then Jackson’s prior cocaine-related offenses qualify as “serious drug offense[s].” 

i.

We break the first step into two parts. The first part explains 

our bottom-line conclusion: ACCA’s definition of a state “serious 

drug offense” incorporates the version of the federal controlledsubstances schedules in effect when the defendant was convicted 

of the prior state drug offense. The second part then addresses arguments against that conclusion.

1.

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We start with the three criteria ACCA uses to define a state 

“serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii). First, the 

prior state offense must involve certain conduct: “manufacturing, 

distributing, or possessing with intent to manufacture or distribute.” Id. Second, that conduct must involve “a controlled substance (as defined in section 102 of the Controlled Substances Act 

(21 U.S.C. [§] 802)).” Id. And third, that conduct involving a controlled substance must be punishable by a maximum term of imprisonment of at least ten years. Id.

The Supreme Court has already interpreted the first and 

third criteria. As we’ve explained, Shular settles the meaning of the 

first criterion, which the Supreme Court held “requires only that 

the state offense involve the conduct specified in the federal statute; 

it does not require that the state offense match certain generic offenses.” 140 S. Ct. at 782. The Supreme Court addressed the third 

criterion (“for which a maximum term of imprisonment of ten 

years or more is prescribed by law”) in McNeill, 563 U.S. at 820–21,

so it is likewise not in controversy here.

That leaves the second criterion—the offense must involve 

a “controlled substance.” The part of the “serious drug offense” 

definition that deals with prior state convictions defines a “controlled substance” by reference to Section 102 of the Controlled 

Substances Act. See 18 U.S.C. § 924(e)(2)(A)(ii) (incorporating 21 

U.S.C. § 802). Section 102, in turn, defines a “controlled substance” 

to include any substance on the federal drug schedules. See 21 

U.S.C. § 802(6). But those schedules are not static. Indeed, 

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Congress has authorized the Attorney General to remove drugs 

from (and add drugs to) those schedules. See supra note 5; 21 

U.S.C. § 811 (authorizing the Attorney General to add substances 

to, subtract them from, or transfer them between the controlledsubstances schedules). So we must decide whether ACCA’s definition of a “serious drug offense” under state law incorporates the 

version of the federal drug schedules in effect when Jackson was 

convicted of his prior state drug offenses or the version in effect 

when Jackson committed his firearm offense. 

We conclude that the Supreme Court’s reasoning in McNeill 

requires us to read ACCA’s definition of a “serious drug offense” 

under state law to incorporate the version of the federal controlledsubstances schedules in effect when Jackson was convicted of his 

prior state drug offenses.

In McNeill, as we’ve mentioned, the Supreme Court construed ACCA’s third criterion for qualifying prior state drug offenses: the requirement that the state law prescribe “a maximum 

term of imprisonment of ten years or more” as a punishment for 

that drug offense. 563 U.S. at 820 (quoting 18 U.S.C. 

§ 924(e)(2)(A)(ii)). Similar to the question here, in McNeill the Supreme Court considered whether, when a federal court assessesthe 

maximum penalty under the state statute of prior conviction, 

ACCA requires the court to consider the penalties that applied under the state law at the time of the prior conviction or the ones that 

applied at the time of the sentencing on the firearm offense. See 

id. The Supreme Court concluded that “[t]he plain text of ACCA 

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requires a federal sentencing court to consult the maximum sentence applicable to a defendant’s previous drug offense at the time 

of his conviction for that offense.” Id.

To explain why the text is plain, the Supreme Court emphasized the term “‘previous convictions,’” which ACCA uses in 18 

U.S.C. § 924(e)(1). See id. at 819 (quoting § 924(e)(1)). As a reminder, Section 924(e)(1) imposes a fifteen-year mandatory minimum prison sentence when a defendant possesses a firearm in violation of 18 U.S.C. § 922(g) while having at least “three previous 

convictions” for a “serious drug offense” or a “violent felony.” Id. 

§ 924(e)(1) (emphasis added). The Supreme Court explained that 

the term “previous convictions” necessarily calls for a “backwardlooking” inquiry and shows that “ACCA is concerned with convictions that have already occurred.” McNeill, 563 U.S. at 819–20

(quotation marks omitted). So, the Court continued, the “only 

way” to determine whether a prior state conviction qualifies as a 

“serious drug offense” is “to consult the law that applied at the time 

of that conviction.” Id. For that reason, the Court concluded, “the 

maximum sentence that ‘is prescribed by law’ for [a previous state 

conviction] must also be determined according to the law applicable at that time.” Id. And as a result, changes in state law after a 

previous conviction occurs cannot “erase” that “earlier conviction 

for ACCA purposes.” Id. at 823. 

To be sure, McNeill addresses only the third criterion for 

ACCA’s “serious drug offense” definition—that is, the criterion 

concerning the penalty imposed under state law. And in addressing 

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that criterion, McNeill holds only that (assuming the state crime 

involved the manufacture, distribution, or possession with intent 

to manufacture or distribute a qualifying controlled substance) a 

prior state conviction qualifies as an ACCA predicate if at the time 

of that conviction the state law authorized a maximum penalty of 

at least ten years. See id. at 817–18.

McNeill does not address the second criterion, which requires that the prior offense involve a federally controlled substance. So McNeill does not expressly determine the answer to the 

question we address today. See United States v. Brown, 47 F.4th 

147, 154–55 (3d Cir. 2022); United States v. Hope, 28 F.4th 487, 504–

05 (4th Cir. 2022); United States v. Perez, 46 F.4th 691, 699–700 (8th 

Cir. 2022); United States v. Williams, 48 F.4th 1125, 1142–43 (10th 

Cir. 2022).7 

7 The First, Second, Sixth, and Ninth Circuits have addressed a similar question arising under the Sentencing Guidelines. See United States v. Abdulaziz, 

998 F.3d 519, 521–22, 525–27 (1st Cir. 2021); United States v. Bautista, 989 F.3d 

698, 701, 703 (9th Cir. 2021); United States v. Clark, 46 F.4th 404, 406 (6th Cir. 

2022); United States v. Gibson, ___ F.4th ____, No. 20-3049, 2022 WL 

17419595, at *1, 6–7 (2d Cir. Dec. 6, 2022). But “longstanding principles of 

statutory interpretation allow different results under the Guidelines as opposed to under the ACCA.” Brown, 47 F.4th at 154. The Guidelines provide, 

for example, that “court[s] shall use the Guidelines Manual in effect on the 

date that the defendant is sentenced.” U.S.S.G. § 1B1.11(a). So while we express no opinion about the correctness of the First, Second, Sixth, and Ninth 

Circuits’ opinions in Abdulaziz, Bautista, Clark, and Gibson, we conclude that 

reliance on them here would be “misplaced.” Brown, 47 F.4th at 154. 

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But in our view, upon close consideration, McNeill’s reasoning requires us to conclude all the same that the federal controlledsubstances schedules in effect at the time of the previous state conviction govern. That is so (1) because using the federal controlledsubstances schedules in effect at the time the defendant committed

the federal firearm offense would “erase an earlier [state] conviction for ACCA purposes,” in violation of McNeill’s reasoning, see 

McNeill, 563 U.S. at 823, and (2) because of the way McNeill informs our reading of ACCA’s structure.

To explain why, we begin with a 10,000-foot overview of 

ACCA’s structure as it relates to the term “previous convictions” 

in Section 924(e)(1). Again, Section 924(e)(1) applies a mandatory 

minimum sentence of fifteen years’ imprisonment to a defendant 

who possesses a firearm in violation of 18 U.S.C. § 922(g) and who 

“has three previous convictions . . . for a violent felony or a serious 

drug offense, or both.” Section 924(e)(2) then defines the terms 

“violent felony” and “serious drug offense.” The definition of “serious drug offense” separately specifies the conditions under which 

prior federal drug-related convictions qualify (§ 924(e)(2)(A)(i)) and 

prior state drug-related convictions qualify (§ 924(e)(2)(A)(ii)). 

Meanwhile, the definition of “violent felony” in Section 

924(e)(2)(B) applies uniformly to both prior federal convictions and 

prior state convictions. So as relevant here, “serious drug offense” 

has two definitions (that pertain separately to prior federal convictions and prior state convictions), and “violent felony” has one 

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20 Opinion of the Court 21-13963

definition, for a total of three ways Section 924(e)(2) defines “previous convictions” in Section 924(e)(1).

With that in mind, we move on to McNeill’s reasoning. As 

we’ve noted, McNeill broadly construes the term “previous convictions” to require a “backward-looking” inquiry. 563 U.S. at 819–

20 (quotation marks omitted). Because “violent felon[ies]” and 

both kinds of “serious drug offense[s]” are kinds of “previous convictions” under ACCA, 18 U.S.C. § 924(e), McNeill’s reasoning requires us to view these definitions through a backward-looking perspective. 

On this score, the Supreme Court reads ACCA’s “violent felony” definition in Section 924(e)(2)(B) to incorporate the state law 

in effect at the time of a defendant’s prior state convictions. 

McNeill, 563 U.S. at 822 (noting that the Court has “repeatedly 

looked to the historical statute of conviction in the context of violent felonies”). And that is so even though, as the Supreme Court 

noted, ACCA’s definition of “violent felony” uses the present tense:

ACCA defines “violent felony” in part as a crime that 

“has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that 

presents a serious potential risk of physical injury to 

another.” § 924(e)(2)(B) (emphasis added). 

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Despite Congress’ use of present tense in that definition, when determining whether a defendant was 

convicted of a “violent felony,” we have turned to the 

version of state law that the defendant was actually 

convicted of violating.

Id. at 821. In other words, under McNeill, the “backward-looking”

inquiry governs ACCA’s “violent felony” definition wholesale. See 

id. at 821–22. 

McNeill also reads at least part of ACCA’s definition of a “serious drug offense” involving a prior state conviction as incorporating that same “backward-looking” inquiry. See id. at 825 (holding 

“that a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the 

‘maximum term of imprisonment’ applicable to a defendant’s previous drug offense at the time of the defendant’s state conviction 

for that offense” (quoting § 924(e)(2)(A)(ii))); id. at 820 (noting that 

because “ACCA is concerned with convictions that have already 

occurred,” “[w]hether the prior conviction was for an offense ‘involving manufacturing, distributing, or possessing with intent to 

manufacture or distribute, a controlled substance’ can only be answered by reference to the law under which the defendant was convicted”). “Having repeatedly looked to the historical statute of conviction in the context of violent felonies,” the Court saw “no reason 

to interpret ‘serious drug offenses’ in the adjacent section of the 

same statute any differently” because in “both definitions, 

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Congress used the present tense to refer to past convictions.” Id.

at 822 (alteration adopted).

Not only is the “previous conviction” inquiry a backwardlooking one, but the Supreme Court has concluded that “[i]t cannot be correct that subsequent changes in state law can erase an 

earlier conviction for ACCA purposes.” Id. at 823. In this respect, 

the Court has reasoned that “Congress based ACCA’s sentencing 

enhancement on prior convictions and could not have expected 

courts to treat those convictions as if they had simply disappeared.” 

Id. 

And that brings us to the first reason that we must conclude 

that ACCA’s definition of a “serious drug offense” under state law 

incorporates the federal drug schedules in effect at the time of the 

prior state conviction. If we instead read ACCA’s state “serious 

drug offense” definition to incorporate the federal drug schedules 

in effect at the time a defendant committed the firearm offense, the 

state drug convictions would be “erase[d]” or “disappear[]” for 

ACCA purposes when, as in Jackson’s case, the federal schedules at 

the time he committed the firearm offense have omitted the substances that were federally controlled at the time of the prior state 

conviction. But we know from McNeill that that is an impermissible result.

And there’s more. So we turn to our second reason why we 

hold that ACCA’s definition of a “serious drug offense” under state 

law incorporates the federal drug schedules in effect at the time of 

the prior state conviction: what McNeill’s reasoning tells us about 

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how to construe federal law relating to a prior federal drug offense 

when assessing whether that prior federal drug conviction qualifies 

as a “previous conviction[]” for ACCA purposes. ACCA defines 

prior federal “serious drug offense[s]” to include, for example, “an 

offense under the Controlled Substances Act . . . for which a maximum term of imprisonment of ten years or more is prescribed by 

law.”8 18 U.S.C. § 924(e)(2)(A)(i).

Under McNeill’s reasoning requiring a “backward-looking” 

inquiry, we must read the definition of a prior federal “serious drug 

offense” as incorporating the version of the Controlled Substances

Act (and thus the federal controlled-substances schedules) in effect 

at the time the defendant’s prior federal drug conviction occurred. 

After all, McNeill supports a conclusion that the elements of and 

penalties for an offense underlying a previous conviction are set—

that is, immutable—at the time of that conviction. See 563 U.S. at 

820 (noting that in “assessing” a previous offense, the Court “consulted” the “statutes and penalties that applied at the time of” the 

defendant’s conviction); id. at 821–22 (noting that “present-tense 

verbs” did not “persuade” the Court “to look anywhere other than 

the law under which” defendants “were actually convicted to determine the elements of their offenses”). And whether the drug

8 Under Section 924(e)(2)(A)(i), a prior federal conviction is a “serious drug 

offense” if it is “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.”

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involved in the prior federal drug conviction was on the federal 

controlled-substances schedules at the time of the prior federal 

drug conviction is certainly an element of an offense under the 

Controlled Substances Act. So we must read “Controlled Substances Act” to refer to the version of the Act (along with the version of its attendant federal drug schedules) in effect at the time of 

the prior federal drug conviction.

Because we must construe the definition of a federal “serious drug offense” to incorporate the Controlled Substances Act 

(and the federal drug schedules it mandates) in existence at the time 

of the prior federal drug conviction, we cannot simultaneously 

construe the federal “serious drug offense” definition’s single use 

of that term—Controlled Substances Act—to incorporate the federal drug schedules in effect at the time the defendant committed 

the federal firearm offense. See, e.g., United States v. Bryant, 996 

F.3d 1243, 1258 (11th Cir.) (“[W]e presume that the same words 

will be interpreted the same way in the same statute.”), cert. denied, 142 S. Ct. 583 (2021).

Reading the term “Controlled Substances Act” in the definition of a federal “serious drug offense” to refer to the version of the 

law in effect at the time of the federal firearm offense would also 

cause another problem under McNeill. If the drug involved in the 

prior federal drug conviction no longer appeared on the federal 

drug schedules at the time the defendant committed the federal 

firearm offense, the prior federal drug conviction would be 

“erase[d] . . . for ACCA purposes.” McNeill, 563 U.S. at 823. But 

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as we’ve noted, McNeill prohibits that result. See id. (noting that 

result “cannot be correct”). So under McNeill, the only way to assess whether a prior federal drug conviction is a “serious drug offense” is to apply the federal drug law and accompanying schedules 

in effect at the time of the prior federal drug conviction. 

That means that if Jackson had been convicted of violating 

the Controlled Substances Act (rather than Florida Statute 

§ 893.13(1)) for his cocaine-related activity in 1998 and 2004, his 

prior convictions would qualify as “serious drug offense[s]” under 

ACCA. See 18 U.S.C. § 924(e)(2)(A)(i). And that is so even though 

the federal definition of “cocaine” was broader in 1998 and in 2004 

than it was in 2017, when Jackson possessed the firearm in violation 

of 18 U.S.C. § 922(g).

We do not think Congress would require the counting of 

prior federal drug convictions as “serious drug offense[s]” while at 

the same time not counting equivalent prior state drug convictions. 

But that would be the result of the construction Jackson urges. 

In our view, the structure of ACCA’s parallel definitions of 

“serious drug offense” for state and federal prior convictions logically requires the conclusion that the state-offense definition incorporates the federal drug schedules in effect at the time of the prior 

state drug conviction. And that we also read the definition of “violent felony” with a wholesale “backward-looking” perspective 

only addssupport to our conclusion that ACCA’s definitional structure for qualifying “previous convictions” requires us to read all the 

definitions with a “backward-looking” perspective. Were that not 

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26 Opinion of the Court 21-13963

the case, the definition of a state “serious drug offense” would be 

the only one of the three definitions of a “previous conviction[]”

that did not employ a wholesale “backward-looking” perspective.

In sum, then, Section 924(e)’s requirements all turn on the 

law in effect when the defendant’s prior convictions occurred. 

When possible, we interpret the provisions of a text harmoniously. 

See Scalia & Garner, supra, at 180–82; see also Hylton v. U.S. Att’y 

Gen., 992 F.3d 1154, 1160 (11th Cir. 2021) (applying the harmonious-reading canon). To read the definition in Section 

924(e)(2)(A)(ii) harmoniously with the rest of Section 924(e)’s subparts, we must read that definition to incorporate the version of the 

federal controlled-substances schedules in effect when Jackson’s 

prior state convictions occurred.

2.

Some of our sister circuits and Jackson have identified two 

arguments for why we should construe ACCA’s definition of a “serious drug offense” to incorporate the version of the federal controlled-substances schedules in effect at the time the defendant 

committed the federal firearm offense instead of the version in effect at the time of the prior conviction: (1) due process requires 

such a reading; and (2) when Congress enacted ACCA, we looked 

to the federal controlled-substances schedules in effect at the time 

of the federal firearm offense because otherwise, there would have 

been no federal drug schedules to compare at least some of the 

prior state drug convictions to, since they would have predated the 

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federal drug schedules. While these are thoughtful arguments, we 

ultimately must reject them.

First, Jackson and our sister circuits contend that reading 

Section 924(e)(2)(A)(ii) to incorporate the version of federal drug 

schedules in effect when the defendant was convicted of his prior 

state drug offenses raises concerns about fair notice and thus due 

process. See Williams, 48 F.4th at 1142; Perez, 46 F.4th at 701. But 

those with “previous convictions” that are federal “serious drug offenses” are charged with knowing that their federal drug convictions continue to qualify even if the controlled substances involved 

in their prior federal drug convictions are no longer on the federal 

drug schedules at the time of their federal firearms offenses. And 

we are aware of nothing that precludes Congress from enacting 

legislation that works in this manner.

As we’ve noted, the Supreme Court has reasoned that the 

“only way” to determine whether a prior state drug conviction 

qualifies as a “previous conviction” under ACCA is by “consult[ing] 

the law that applied at the time of that conviction.” McNeill, 563 

U.S. at 820 (alteration adopted). Doing so, the Supreme Court has 

explained, “permits a defendant to know even before he violates 

§ 922(g) whether ACCA would apply.” Id. at 823. That reasoning 

applies as much to the statutory language we consider here as it did 

to the language the Court addressed in McNeill. Put simply, the 

ACCA term “previous convictions” puts a defendant on notice 

when he is convicted of a drug offense for conduct involving a controlled substance that at that time appears on the federal drug 

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28 Opinion of the Court 21-13963

schedules that his conviction qualifies as a “serious drug offense” 

under ACCA. And in this way, a person has a means of knowing

“before he violates § 922(g) whether ACCA would apply.” Id.

We think the second argument against the incorporation of 

historical federal drug schedules also cannot succeed in the end. 

That argument goes like this: if Congress intended to incorporate 

the version of the federal drug schedules in effect at the time of a 

defendant’s prior state drug offense, then convictions that predate 

the federal drug schedules would not qualify as ACCA predicates. 

Because that result would be, in Jackson’s words, “odd,” Congress 

must have intended to incorporate the version of the federal drug 

schedules in effect at the time the defendant committed the firearm 

offense. 

But even if a law produces a result that “may seem odd,” 

that oddity does not render the law “absurd.” Exxon Mobil Corp. 

v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005). And a law “must 

be truly absurd before” we can disregard its plain meaning. SilvaHernandez v. U.S. Bureau of Citizenship & Immigr. Servs., 701 

F.3d 356, 363 (11th Cir. 2012) (quotation marks omitted). We cannot say that is the case here. Cf. McNeill, 563 U.S. at 822 (“This 

natural reading of ACCA [to require consulting the law that applied at the time of the prior state conviction] also avoids the absurd results that would follow from consulting current state law to 

define a previous offense.”). So we must follow what the Supreme 

Court has found is the plain meaning of ACCA’s text. And that 

plain meaning, as we’ve noted, requires that we apply a backwardUSCA11 Case: 21-13963 Document: 63-1 Date Filed: 12/13/2022 Page: 28 of 35
21-13963 Opinion of the Court 29

looking perspective to the entirety of the “serious drug offense” 

definition.

In short, we hold that Section 924(e)(2)(A)(ii) incorporates 

the version of the federal drug schedules in effect when a defendant 

was convicted of his prior state drug offenses. When Jackson was 

convicted of his state cocaine-related offenses in 1998 and 2004, the 

federal schedules included ioflupane as a controlled substance. See 

supra note 3. So at step one of our categorical analysis, we conclude that ACCA’s “serious drug offense” definition encompasses a 

prior state offense that involved “manufacturing, distributing, or 

possessing with intent to manufacture or distribute” ioflupane, “for 

which a maximum term of imprisonment of ten years or more is 

prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

ii.

That brings us to steps two and three. At step two, we look 

at the “statutory definition of the state offense at issue.” Conage, 

976 F.3d at 1250. “All that counts” at this step “are ‘the elements 

of the statute of conviction.’” Mathis, 579 U.S. at 509 (quoting Taylor v. United States, 495 U.S. 575, 601 (1990)). To find those elements, we consider “the version of state law that the defendant was 

actually convicted of violating.” McNeill, 563 U.S. at 821. Then, at 

step three, we compare the elements of the state offense to ACCA’s 

“serious drug offense” definition to determine whether the state 

offense is categorically broader than ACCA’s “serious drug offense” 

definition. 

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Jackson argues that Florida Statute § 893.13(1), the statute 

he was convicted of violating in 1998 and 2004, is categorically

overbroad because in 1998 and 2004, Section 893.13(1) encompassed conduct involving ioflupane while the definition of “serious 

drug offense” did not.9 But as we have explained, the federal drug 

schedules included ioflupane in 1998 and 2004, when Jackson was 

convicted of his prior state drug offenses. And McNeill’s reasoning 

requires us to conclude that the 1998 and 2004 versions of the federal drug schedules are what govern. So Section 893.13(1) did not 

reach more conduct with respect to cocaine than does ACCA’s “serious drug offense” definition as it relates to Jackson’s 1998 and 

2004 prior state drug convictions.

9 Jackson asks us to find that ioflupane and cocaine are alternative means of 

satisfying the same element. In other words, he asks us to find that Section 

893.13(1) is indivisible for each form of a given drug. When a statute lists alternative means of satisfying the same element (unlike when a statute lists alternative elements), the standard categorical approach applies, meaning that 

“ACCA disregards the means by which the defendant committed his crime, 

and looks only to that offense’s elements.” Mathis, 579 U.S. at 517; see also 

supra note 2. As a result, we must assume those offenses involved the least 

culpable conduct—here, conduct involving ioflupane rather than cocaine. But 

because we hold that ACCA’s “serious drug offense” definition incorporates 

the version of the federal drug schedules in effect when Jackson was convicted 

of his prior state drug offenses, and because that version of the federal schedules listed ioflupane, it makes no difference whether Jackson’s convictions involved ioflupane or cocaine. We therefore assume without deciding that Section 893.13(1) is divisible for each form of a given drug, meaning we also assume that Jackson’s prior state drug convictions could have been for conduct 

involving ioflupane. 

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Jackson has suggested no other reason why Section 

893.13(1) might be categorically broader than ACCA’s definition 

for a “serious drug offense.” We therefore conclude that Jackson’s 

1998 and 2004 Section 893.13(1) cocaine convictions qualify as “serious drug offense[s]” under 18 U.S.C. § 924(e)(1). 

IV. 

For these reasons, we affirm the district court’s judgment.

AFFIRMED. 

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21-13963 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, concurring:

The statutory language we interpret here is yet another example of how ACCA produces “statutory questions” that “end up 

clogging the federal court dockets,” Rachel E. Barkow, Categorical 

Mistakes: The Flawed Framework of the Armed Career Criminal 

Act and Mandatory Minimum Sentencing, 133 HARV. L. REV. 200, 

206 (2019). Even “judges struggle” to resolve those questions. Id. 

Indeed, today’s decision tallies the score at one circuit that concludes that we look to the federal controlled-substances schedules 

in effect at the time of the prior state conviction and four that reach 

the opposite conclusion and instead look to the federal controlledsubstances schedules in effect at the time of the federal firearm offense. See United States v. Brown, 47 F.4th 147, 154–55 (3d Cir. 

2022); United States v. Hope, 28 F.4th 487, 504–05 (4th Cir. 2022); 

United States v. Perez, 46 F.4th 691, 699–700 (8th Cir. 2022); United 

States v. Williams, 48 F.4th 1125, 1142–43 (10th Cir. 2022). And it’s 

even more confusing than that, as we previously agreed with those 

four circuits. United States v. Jackson, 36 F.4th 1294, 1299–1301 

(11th Cir. 2022) (“Jackson I”), vacated, 2022 WL 4959314 (11th Cir. 

2022). 

Due process requires that criminal laws notify “ordinary 

people” not only about the lawfulness of their conduct, but also 

about the penalties for engaging in conduct that is unlawful. Johnson v. United States, 576 U.S. 591, 595–96 (2015). An ordinary citizen seeking notice about whether her prior offenses qualify as 

ACCA predicates must, in line with today’s decision, research the 

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2 ROSENBAUM, J., Concurring 21-13963

historical versions of controlled-substances list. And that’s a heavy 

lift for the ordinary citizen.

That said, and as the panel opinion explains, the Supreme 

Court has said that the term “previous convictions” evidences congressional intent to read the definitions for “violent felony” and “serious drug offense” with an eye to what the law was at the time of 

the “previous conviction[],” so we can’t say that the statute doesn’t 

provide fair notice of what prior convictions qualify as predicate 

offenses under ACCA. See Maj. Op. at 16–17, 20–22 (citing McNeill 

v. United States, 563 U.S. 816 (2011)).

Still, it is quite remarkable to expect the “ordinary citizen,” 

seeking “to conform his or her conduct to the law,” City of Chicago 

v. Morales, 527 U.S. 41, 58 (1999), to understand the ins and outs of 

ACCA—especially when, as today’s decision demands, they require historical research of the federal controlled-substance schedules. Cf. Williams, 48 F.4th at 1142. Adding to the extraordinary 

nature of what we find ACCA requires is the fact that ACCA may 

be unique in requiring application of historical federal law in this 

way, as opposed to the federal law in place at the time of the federal 

violation.1

1 The immigration context fails to supply a helpful analogue here. To be sure, 

we have looked to the federal drug schedules in effect at the time of a prior 

conviction to determine whether that conviction renders a non-citizen removable. See, e.g., Gordon v. U.S. Att’y Gen., 962 F.3d 1344, 1351 n.4 (11th Cir. 

2020). But in the immigration context, a prior conviction immediately triggers 

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21-13963 ROSENBAUM, J., Concurring 3

For the reasons we explain in the panel opinion, the law 

mandates an affirmance in this case. But I am deeply concerned

that our reading seemingly requires the “ordinary person” to be an 

expert in ACCA and in historical knowledge of the federal drug 

schedules. Incorporating the federal drug schedules in effect at the 

time of the federal firearm offense (and for prior federal convictions, at both the times of the prior conviction and the federal firearm offense) would be far more consistent with how we generally 

construe statutes. It would also provide the “ordinary person” with 

more accessible and realistic notice. And finally, as our sister circuits have observed, incorporating the federal drug schedules in effect at the time of the federal firearm offense would be far more 

consistent with Congress’s determination to decriminalize certain 

substances. See Williams, 48 F.4th at 1144 (“[I]f Congress has decided hemp should not be criminalized, then surely Congress 

would not intend for it to continue to be included within the narrow class of serious crimes that contributes to a 15-year mandatory 

minimum prison sentence.”); see also Perez, 46 F.4th at 700. 

removal consequences. In contrast, a prior state conviction carries no federal 

consequences under § 924(e) unless and until the person with that conviction 

is convicted of carrying a firearm in violation of § 922(g)(1). For that reason, 

“it makes sense” in the immigration context, unlike in the ACCA context, “to 

determine whether the conviction is a removable offense at the time of that 

controlled-substance conviction.” Williams, 48 F.4th at 1143; see also Brown, 

47 F.4th at 155; Perez, 46 F.4th at 700.

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4 ROSENBAUM, J., Concurring 21-13963

For these reasons, if Congress continues to retain ACCA, I 

respectfully urge Congress to consider amending the statute to incorporate the version of the controlled-substances list in effect 

when the defendant commits his federal firearm offense.

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