The Supreme Court Looks to Settle the Prominent Three-Way Circuit Split Behind the Armed Career Criminals Act

Written By: Alexis Takashima

On Monday, November 27, the Supreme Court will hear oral arguments in the consolidated case of Brown v. United States and Jackson v. United States—two cases concerning the sentencing enhancement mandated by the Armed Career Criminals Act of 1984 (“ACCA” or the “Act”). Both Brown and Jackson dispute their enhanced sentencing under the ACCA, reasoning that prior drug convictions should not be considered “serious drug offenses” under the applicable law. The question before the Court is whether a “serious drug offense,” as defined by the Act, incorporates the federal drug schedules in place at the time of (1) the prior state drug offense; (2) the federal firearm offense or (3) federal sentencing.

Background: The Armed Career Criminals Act

Under the ACCA, a conviction for being a felon in possession of a firearm carries a mandatory minimum federal prison sentence of 15 years for individuals who have at least three prior convictions for “violent felonies” or “serious drug offenses.” The ACCA defines a “serious drug offense” as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance…for which a maximum term of imprisonment of ten years or more is prescribed by law.” Federal courts use the categorical approach to determine whether a prior state conviction qualifies as a strike under the ACCA. Under the categorical approach, courts compare the elements of the prior state offense to the current federal definition of the offense. The court is to presume that the conviction was premised on the minimum acts necessary to convict the defendant, and the facts underlying the prior conviction should not be considered. If the scope of the federal offense encompasses the minimum acts necessary for a state conviction, the defendant’s prior offense will be recognized as a strike under the Act.

The Dispute Between the Circuits

The Supreme Court will focus on the term “controlled substance” as it is used in the Act’s definition of “serious drug offenses.” Pursuant to the Controlled Substances Act, the U.S. government regularly modifies the federal drug schedules to keep consistent with current scientific knowledge of the effects of different drugs. Though these modifications are important for the ongoing health and safety of the public, they also complicate the practical application of the ACCA. When the drug schedules are altered between the defendant’s state drug offense and his federal gun charge, the question arises as to which version of the federal schedules the court should use to determine a defendant’s “three strikes.”

The growing issue culminated in a three-way circuit split as to which federal drug schedules should apply under the ACCA. The Eleventh Circuit stands alone in arguing for the use of federal drug schedules that were in effect at the time of the prior state drug offense. Despite a lack of support from any of its sister circuits, the Eleventh Circuit is supposedly acting on the strong suggestion of the government in taking this position. The Third, Eighth, and Tenth Circuits conclude that the applicable schedules are those in effect at the time of the federal firearm offense. These courts reason that the schedules at the time of the relevant firearm offense better reflect Congress’s view on which substances should be criminalized and which should not. Finally, the First, Second, Fourth, and Ninth Circuits are of the opinion that courts should look to the schedules in effect at the time of federal sentencing. This approach would ensure that courts are applying federal sentencing laws in accordance with Congress’s most up-to-date classification of “culpable and dangerous” acts.

How Will the Supreme Court Rule?

The anticipation surrounding this case is underscored by the unpredictability of the outcome. Very little can be discerned from looking at prior ACCA opinions to come in front of the Supreme Court, as Justices across the political spectrum have split in a variety of ways. Regardless, there is no doubt that the ultimate ruling will have a large impact on the structure and frequency of ACCA litigation in the future.


18 U.S.C. § 922

18 U.S.C. § 924

Jeff Overley, Triple Trouble: Justices Set to Scrutinize 3-Strikes Circuit Split, Law 360 (Nov. 22, 2023)

Marco Poggio, Justices To Hear Cases On Gun Sentencing For Repeat Felons, Law 360 (May 15, 2023)

Petition for Writ of Certiorari, Jackson v. United States, Jan. 24, 2023 (No. 22-6640; renumbered No. 22-6389)

Petition for Writ of Certiorari, Brown v. United States, Dec. 21, 2022 (No. 22-6389)