Order — United States v. Brandon Mason (N.D. Ga., Dkt. 74, March 28, 2022)

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An Order dated March 28, 2022, signed by Richard W. Story, Document 74 in United States of America v. Brandon Mason, Criminal Action No. 2:20-cr-4-RWS, in the U.S. District Court for the Northern District of Georgia, Gainesville Division. It supplements the record after the March 14, 2022 sentencing hearing on the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2), and whether Defendant's prior state convictions are "serious drug offenses." It states that the Attempted Distribution of Cocaine conviction qualified and the Possession with Intent to Distribute Marijuana conviction did not, discussing the word "involving" and the federal definition of marijuana excluding hemp. The conclusion overrules Defendant's objection as to the cocaine conviction and sustains it as to the marijuana conviction.

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“Order — United States v. Brandon Mason (N.D. Ga., Dkt. 74, March 28, 2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-20-cr-00004-dkt-74-n-d-ga-405a440ae6/, SHA-256 2e58e5bb15680c14e40352494c418ebeeb255f7bee314323799686f0ff5482b3.

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Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION

UNITED STATES OF AMERICA Criminal Action No.
v. 2:20-cr-4-RWS
BRANDON MASON,
Defendant.

ORDER

This matter is before the Court following the March 14, 2022 sentencing

hearing to supplement the record concerning application of the Armed Career

Criminal Act, 18 U.S.C. § 924(e)(2), and whether Defendant’s prior state court

convictions are sufficient to establish the three requisite “serious drug offenses” for

enhancing sentence. 1 § 924(e)(2)(A)(ii).

It is undisputed that two of Defendant’s four prior felony drug convictions

qualify as ACCA predicate offenses. [Presentence Investigation Report (“PSR”),

¶¶ 25, 26]. Defendant objected to reliance on his convictions for Attempted

Distribution of Cocaine, in the Superior Court of Jackson County, Georgia, on or

1
The parties submitted sentencing memoranda in advance of the hearing. [Dkts.
55, 64, 65].
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 2 of 13

about September 23, 2010 [PSR, ¶ 27], and Possession with Intent to Distribute

Marijuana, in the Superior Court of Jackson County, Georgia, on or about

September 23, 2010 [PSR, ¶ 28]. The Court found that the Attempted Distribution

of Cocaine conviction [PSR, ¶ 27] qualified as an ACCA predicate but not the

Possession with Intent to Distribute (“PWID”) Marijuana conviction [PSR, ¶ 28].

Because the Court ruled from the bench during the sentencing hearing, and

because the legal issues presented are questions that have yet to be squarely

decided by the Eleventh Circuit in a published opinion (and are matters of first

impression for the undersigned as well), the Court will briefly highlight its

reasoning and rationale.

DISCUSSION

Under Section 924(e)(2)(A), “serious drug offense” is defined as either:

(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[.]

Id.

2
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 3 of 13

Here, the relevant statutory provision is § 924(e)(2)(A)(ii), which identifies

the types of state offenses that come within the ACCA.

1. Attempted Distribution of Cocaine

Defendant Mason, through counsel, presents a thoughtful legal argument

concerning whether an attempted distribution of cocaine conviction is a “serious

drug offense” for purposes of the ACCA. His strongest argument relies on the

canon of statutory construction expressio unius exclusio alterius. 2 [Dkt. 65 at 4-7].

Defendant posits that the omission of “attempt” in the statutory definition of

“serious drug offense” was purposeful and a deliberate policy decision by

Congress.

The Government, on the other hand, argues that the ACCA’s use of the term

“involving” before identifying enumerated offenses (i.e., offenses “involving

manufacturing, distributing, or possessing with intent to manufacture or

distribute”) makes it clear that “a serious drug offense might include ‘state offenses

that do not have as an element the manufacture, distribution, or possession of drugs

with intent to manufacture or distribute.’” United States White, 837 F.3d 1225,

2
Counsel argues that inclusion of attempt (i.e., “attempted use of force”) in the
definition of “violent felony” as supporting, by negative inference, a policy choice
by Congress to omit crimes charging attempt from the definition of “serious drug
offenses.” [Dkt. 65 at 4-7 (contrasting with definition of “violent felony” in §
924(e)(2)(B)(i))].

3
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 4 of 13

1233 (11th Cir. 2016) (quoting § 924(e)(2)(A)(ii)). In other words, the statutory

language, including the word “involving,” is so broad that the definition must

encompass attempt. [Dkt. 64 at 4-5]. And see White, 837 F.3d at 1233-35. The

Government points to caselaw from other circuits supporting this view. See United

States v. King, 325 F.3d 110, 115 (2nd Cir. 2003) (conviction for attempted

possession of cocaine with intent to sell held to be serious drug offense within

meaning of ACCA); United States v. Whindleton, 797 F.3d 105, 111 (1st Cir.

2015) (offer to sell controlled substance under New York law, like an attempt to

sell, held to constitute serious drug offense for purposes of ACCA); United States

v. Vickers, 540 F.3d 356, 366 (5th Cir. 2008) (offer to sell under Texas statute is

serious drug offense under ACCA); United States v. Bynum, 669 F.3d 880, 887

(8th Cir. 2012) (offer to sell under Minnesota statute is serious drug offense under

ACCA).

The Court found that this conviction satisfied the statutory definition for a

“serious drug offense” primarily because the term “involving” is universally

defined broadly and because the rationale applied by other courts arriving at the

same conclusion is sound and persuasive. For instance, this Court relies heavily on

the most recent case applying King. See United States v. Ojeda, 951 F.3d 66, 73-

76 (2nd Cir. 2020). In Ojeda, the Second Circuit explained that the term

4
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“involving” reasonably identifies inchoate (attempt and conspiracy) as well as

substantive drug crimes for several reasons. Ojeda, 951 F.3d at 75. First, the court

noted that, in defining federal drug offenses in § 924(e)(2)(A)(i), the ACCA refers

to the Controlled Substances Act (“CSA”), 21 U.S.C. § 801, et seq., which

criminalizes substantive offenses as well as related attempts and conspiracies to

manufacture, distribute, or possess controlled substances. Id. (citing 21 U.S.C. §

846). In addition, the court observed that the punishments for substantive and

inchoate offenses are identical under the CSA, “signaling Congress’s view that

[convictions for attempt and conspiracy] are equally serious drug offenses.” Id.

The court also concluded, by choosing to use the word “involving” in §

924(e)(2)(A)(ii), Congress meant for the definition to encompass “substantive

crimes of actual manufacture, distribution, and possession, and inchoate attempt or

conspiracy crimes of intended manufacture, distribution, and possession.” Id.

(citation omitted).

Lastly, Ojeda is a post-Johnson 3 decision and found that construing §

924(e)(2)(A)(ii) in this manner did not pose a vagueness or fair notice problem or

3
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that
the residual clause within the violent felony portion of the ACCA was
unconstitutionally vague. The Ojeda court held that Johnson did not undercut a
broad construction of the term “involving” and the ACCA’s definition of “serious
drug offense.” 951 F.3d at 76.

5
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 6 of 13

undermine pre-Johnson authorities characterizing state drug offenses of attempt).

Ojeda, 951 F.3d at 75-76; and see United States v. Cain, 877 F.3d 562, 563 (5th

Cir. 2017) (stating in dicta that Johnson, which involved a different provision of

ACCA, does not undermine sentencing court’s analysis and treatment of Texas

conviction for possession with intent to sell controlled substance as “serious drug

offense”).

2. Possession with Intent to Distribute Marijuana

Determining whether Defendant’s PWID Marijuana Conviction qualifies as

an ACCA predicate presents a different issue. The parties disagree about whether

marijuana meets the definition of a controlled substance for purposes of the ACCA

and the definition of “controlled substance offense” for purposes of the United

States Sentencing Guidelines (“Guidelines”) in light of changes in the law since

2010. Specifically, at the time of Defendant’s state PWID conviction in 2010, the

CSA definition of marijuana included hemp. See 21 U.S.C. § 802(16); 21 U.S.C. §

812, Schedule I(c)(10) (2010). Effective December 2018, upon enactment of the

Agricultural Improvement Act of 2018 (or Farm Bill), the federal definition of

marijuana within the CSA (“federal CSA”) expressly excluded hemp. See 21

6
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 7 of 13

U.S.C. § 802(16)(B). 4 The State of Georgia followed in 2019. See O.C.G.A. § 16-

13-21(16).

Defendant contends that the 2018 amendment to the federal CSA definition

of marijuana precludes treating his 2010 Georgia state court conviction for PWID

Marijuana as an ACCA predicate. See United States v. Abdulaziz, 998 F.3d 519,

522–23 (1st Cir. 2021); see also United States v. Bautista, 989 F.3d 698, 703–04

(9th Cir. 2021).5

The Government represents that Defendant’s argument is foreclosed by

binding Eleventh Circuit precedent. [Dkt. 64 at 8-9]. See United States v. Bates,

960 F.3d 1278, 1292–93 (11th Cir. 2020); United States v. Peraza, 754 F. App’x

908, 909–10 (11th Cir. 2018) (non-precedential) (considering Florida marijuana

conviction and applying the prior precedent rule in denying similar argument that

the state definition of marijuana was overbroad in that it covered hemp).

4
Section 802(16)(B)(i) expressly states that “[t]he term “marihuana” does not
include-- hemp[.]”
5
The Government objected to the Court’s sentence and suggested that the
authorities relied upon by the Court were inapposite because they involved
different guidelines. Although factually correct, this is a distinction without a
difference because the relevant guidelines both rely upon the CSA definition of a
controlled substance. See, e.g., Abdulaziz, 998 F.3d at 523 (§ 2K2.1(a)(2) refers to
§ 4B1.2(b) for definition of “controlled substance offense” and § 4B1.2(b) relies
upon CSA definition of “controlled substance”).

7
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 8 of 13

In determining whether prior convictions qualify for ACCA enhancement or

as a predicate controlled substance offense under the Guidelines, the Court

employs a categorical approach. See Hollis v. United States, 958 F.3d 1120, 1123

(11th Cir. 2020) (citing Shular v. United States, 140 S. Ct. 779, 783 (2020)). Under

this approach, the Court considers “only the fact of the prior conviction and the

elements of the offense, not the particular facts of the defendant’s crime.” Hollis,

958 F.3d at 1123; Taylor v. United States, 110 S. Ct. 2143, 2159 (1990). Under

the categorical approach, the Court looks to “the least of the acts” criminalized by

the statute of conviction. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)

(citations omitted).

The parties agree that, as of 2010, “the least of the acts” criminalized under

the Georgia statute was PWID hemp. See Abdulaziz, 998 F.3d at 522 (citations

omitted) (treating PWID marijuana conviction as PWID hemp for purposes of

U.S.S.G. § 2K2.1(a)(2) even though record did not establish whether defendant

perpetrated crime by possessing hemp).

a. Defendant’s Objection Is Not Foreclosed by Binding Eleventh
Circuit Precedent

Pursuant to the prior panel precedent rule, the Eleventh Circuit is bound by

its prior decisions “unless and until [they are] overruled or undermined to the point

of abrogation by the Supreme Court or by this court sitting en banc.” United States

8
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 9 of 13

v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). “A prior panel precedent cannot

be circumvented or ignored on the basis of arguments not made to or considered by

the prior panel.” Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234

(11th Cir. 2006).

The Government cites to Bates and Peraza for the proposition that

Defendant’s objection is foreclosed by binding Eleventh Circuit precedent. [Dkt.

64 at 8-9]. In terms of the existence of “binding precedent,” Defendant has the

better argument. [Dkt. 65 at 10-12]. “Questions 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.” Gann v. United

States, 142 S. Ct. 1, 2 (2021) (citations omitted).

As framed by defense counsel, the issue presented is “the effect of the

change in the federal definition of marijuana on past Georgia marijuana

convictions.” [Dkt. 65 at 10]. Stated differently, the Court was asked “whether the

sentencing court should determine the relevance of [defendant’s] prior state

conviction under the federal sentencing law that exists at the time of sentencing or

under federal sentencing law that no longer exists[.]” Bautista, 989 F.3d at 703. In

Bautista, the Ninth Circuit reasoned that the goal of uniformity favored applying

9
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 10 of 13

current federal law and that looking to prior federal law would result in sentencing

disparities. Id.

In short, Bates did not speak to the specific legal issue being raised here. In

Bates, the defendant argued that the district court erred in determining that his

Georgia convictions for PWID Marijuana qualified as “serious drug offenses,”

under the ACCA, and “controlled substance offenses,” under the Guidelines.

Bates, 960 F.3d at 1293. As a general matter, Defendant argued that because the

Georgia statute, § 16-13-30(j)(1), is broader than the federal definitions, his state

court convictions failed the categorical test. Id. The court succinctly stated that

the elements of defendant’s state conviction aligned with the ACCA and

Guidelines’ definitions of “serious drug offense” and “controlled substance

offense.” Id. at 1293. The Bates panel did not consider the definitional argument

concerning marijuana or decide the impact, if any, the 2018 amendments to the

federal CSA has on Georgia state convictions for PWID marijuana.6

For these reasons, the Court concludes that the prior-panel-precedent rule

does not apply.

6
Peraza, which is unpublished and non-binding, is cited for the proposition that
Section 4B1.2(b) does not explicitly refer to or reference the CSA. See, e.g.,
United States v. Rafael Batiz-Torres, ___ F. Supp. 3d ___, ___, 2021 WL
5324906, at *4 (D. Ariz. Nov. 16, 2021).

10
Case 2:20-cr-00004-RWS-JCF Document 74 Filed 03/28/22 Page 11 of 13

b. Merits of Defense Objection

The Government argues that the ACCA governs the question and that “[t]he

Court should not be distracted” by the recent Guidelines argument. [Dkt. 64 at 9].

However, the ACCA incorporates the “controlled substance” definition from

Section 802, which is the same statutory provision precipitating the Guidelines

debate.7 See, e.g., Rafael Batiz-Torres, 2021 WL 5324906, at *4 (discussing

circuit split on whether federal CSA informs Section 4B1.2 definition of

“controlled substance offense”; sustaining defense objection to application of

career offender enhancement pursuant to § 4B1.2 and explaining that, “[b]ecause

hemp is no longer a controlled substance, Defendant’s prior federal convictions are

overbroad, and do not count as controlled substance offenses” under current

guidelines). Significantly, the Government concedes that the courts that have

found the Guidelines limited to the CSA schedules “generally have held that it is

the CSA schedules at the time of the federal sentencing that matter.” [Dkt. 64 at

10 (citing Bautista, 989 F.3d at 703-704)].

7
The Sentencing Guidelines define a “controlled substance offense” as “an offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance ... or the possession of a controlled substance ... with intent to
manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).

11
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Moreover, the First Circuit determined that resolving whether a conviction

of a hemp-based offense was a conviction of “a controlled substance offense”

within the meaning of § 2K2.1(a)(2) “necessarily turns on the proper interpretation

of the Guidelines. See Abdulaziz, 998 F.3d at 525 (finding that the definition of

“controlled substance offense” under § 4B1.2(b) must reference the version of

CSA at time of the instant federal sentencing, not a prior version); accord United

States v. Miller, 2020 WL 4812711 (M.D. Pa. Aug. 19, 2020) (stating that, under

the categorical approach, it “makes intuitive sense” to look to elements of the state

statute as it existed at the time of the prior conviction and the federal offense as it

presently exists) (internal citations omitted).

Absent binding Eleventh Circuit precedent on this issue, the Court agrees

that application of current federal sentencing law is required. Therefore, at

Defendant Mason’s sentencing, the undersigned looked to the Georgia state law

that governed at the time of Defendant’s PWID Marijuana conviction in 2010 and

applied the 2018 Guidelines Manual and current federal CSA definition for

marijuana.

Since the federal CSA no longer criminalizes hemp, the Court determined

that, in applying the Guidelines in effect at the time of his federal sentencing, the

Georgia 2010 PWID Marijuana conviction was not an ACCA predicate offense.

12
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CONCLUSION

For the foregoing reasons, the Court overrules Defendant’s objection to

treatment of his 2010 Attempted Distribution of Cocaine Georgia conviction as an

ACCA predicate and sustains Defendant’s objection as to classification of his 2010

PWID Marijuana Georgia conviction as an ACCA predicate. 8

SO ORDERED this 28th day of March, 2022.

________________________________
RICHARD W. STORY
United States District Judge

8
Given the Court’s finding that Defendant’s Attempted Distribution of Cocaine
conviction was a predicate, this ruling did not affect the Guidelines at sentencing.

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