CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Nov 18, 2022
...l use it to manufacture a controlled sub-
stance is too far removed from the conduct of manufacturing itself
to satisfy the “necessarily entail[s]” standard.
We hold that a conviction under Florida Statutes
§ 893.149(1) for possessing a listed chemical with reasonable cause
to believe it will be used to manufacture a controlled substance is
not a “serious drug offense” under ACCA....
...Young with arson under Florida Statutes §
806.01. In lieu of an ar-
son conviction, however, Miles pleaded nolo contendere to unlaw-
ful possession of a listed chemical (pseudoephedrine) in violation
of Florida Statutes §
893.149(1), was adjudicated guilty, and re-
ceived a sentence of 36 months’ probation....
...A state offense is a “serious drug of-
fense” if it “involv[es] manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance.”
18 U.S.C. § 924(e)(2)(A)(ii). Miles contended that his conviction un-
der Section 893.149(1) was not a serious drug offense because it did
not involve the conduct of manufacturing a controlled substance.
The district court disagreed with Miles and ruled that pos-
session of a listed chemical under Section 893.149(1) is a serious
drug offense because it “involv[es] manufacturing ....
...atute’ and ask
whether that act falls within the ambit of ACCA’s definition of a
‘serious drug offense.’” Id. (quoting United States v. Stancil, 4 F.4th
1193, 1197 (11th Cir. 2021)).
In relevant part, Section 893.149(1) makes it unlawful “to
knowingly or intentionally . . . [p]ossess or distribute a listed chem-
ical knowing, or having reasonable cause to believe, that the listed
chemical will be used to unlawfully manufacture a controlled sub-
stance.” Fla. Stat. § 893.149(1). Although the district court acknowl-
edged that the relevant question under Shular is whether Section
893.149(1) necessarily entails the conduct of manufacturing, the
court also relied on United States v....
...amine. Id. at 389. The
court answered that question “yes,” reasoning that the offense “re-
lates to and is connected with the manufacture of methampheta-
mine.” Id. at 391. So the district court in this case concluded Section
893.149(1) also involves manufacturing because “possession ....
...of
[listed] chemicals is an essential first step in the methamphetamine
manufacturing process.” The court explained that Florida law en-
sures that “only conduct that involves manufacturing metham-
phetamine” is captured by Section 893.149(1) because the statute
“requires proof that the defendant possessed . . . the chemical in-
gredient, knowing, or having reasonable cause to believe that it
would be used to produce methamphetamine.” The court believed
this distinction ensured that the relationship between Section
893.149(1) and the conduct of manufacturing was not too remote
for Section 893.149(1) to be a serious drug offense because it ex-
cluded “mere inadvertent or unsuspecting possession of a listed
chemical.”
Having concluded that Section 893.149(1) gave Miles a third
qualifying conviction under ACCA, the district court sentenced
Miles to ACCA’s mandatory minimum fifteen years’ imprisonment
followed by four years of supervised release....
...“And state law governs our analysis of state-law offenses.” Id.
III.
This appeal asks us to determine whether the Florida crime
of unlawful possession of a listed chemical under Section 893.149(1)
is a “serious drug offense” under ACCA....
...11
We think the Sixth Circuit’s reasoning in Fields is persuasive
and reach the same result here. We divide our discussion into three
parts. First, we identify the least culpable conduct criminalized by
Section 893.149(1) that is relevant to Miles’s offense....
...We follow the categorical approach to define the state-law
offense that we compare to ACCA’s definition of “serious drug of-
fense” in Section 924(e)(2)(A)(ii). That approach requires us to iden-
tify the least culpable conduct prohibited by Section 893.149(1) rel-
evant to Miles’s conviction....
...elevant
to Miles’s conviction is the “[p]ossess[ion] . . . [of] a listed chemical
. . . having reasonable cause to believe[] that [it] will be used to un-
lawfully manufacture a controlled substance.” Fla. Stat.
§ 893.149(1)(b)....
...only the alternative elements on which a defendant’s state convic-
tion is based. Spaho v. U.S. Att’y Gen.,
837 F.3d 1172, 1176-77 (11th
Cir. 2016) (quoting Donawa v. U.S. Att’y Gen.,
735 F.3d 1275, 1281
(11th Cir. 2013)). And Section
893.149(1) proscribes both the pos-
session of a listed chemical (a) “with the intent to unlawfully man-
ufacture a controlled substance,” and (b) “knowing, or having rea-
sonable cause to believe, that the listed chemical will be used to
unlawfully manufacture a controlled substance.” Fla. Stat.
§
893.149(1). But even if Section
893.149(1) were divisible and the
modified categorical approach applied, the record does not reflect
any particular basis for Miles’s conviction....
...believe it will be used to manufacture a controlled substance. Nei-
ther party disputes that conclusion on appeal. And so, we work
with that conclusion too.
B.
The government’s first argument that Section 893.149(1) is
a “serious drug offense” turns on the ordinary meaning of “manu-
facturing” in Section 924(e)(2)(A)(ii)....
...§ 924(e)(2)(A)(ii) (em-
phasis added). Florida’s unlawful possession of a listed chemical of-
fense, however, covers possession with reasonable cause to believe the
listed chemical will be used to manufacture. Fla. Stat. § 893.149(1).
So, too, for that reason, Miles’s conviction under Section 893.149(1)
is not a conviction for “possess[ion] with intent to manufacture.”
C.
The government makes a second argument that Section
893.149(1) is a crime “involving manufacturing.” The government
contends that possessing a listed chemical with reasonable cause to
believe it will be used to manufacture is sufficiently related to the
cond...
...So for better or worse, we are stuck with it in this case. See In
re Lambrix,
776 F.3d 789, 794 (11th Cir. 2015) (explaining prior-
panel-precedent rule).
In Fields, the Sixth Circuit, addressing an offense materially
identical to Section
893.149(1), held that possession of a metham-
phetamine precursor with intent to manufacture does not “neces-
sarily entail” the conduct of manufacturing....
...entail[s]” standard from Shular. “[N]ecessarily entail[s]” requires a
close connection between the state offense and the conduct cov-
ered by Section 924(e)(2)(A)(ii). Whatever it means to “necessarily
entail” the conduct of manufacturing, Section 893.149(1) is too far
removed from manufacturing itself to do so....
...Among the federal of-
fenses that are “serious drug offense[s]” are all the offenses under
the Controlled Substances Act. 18 U.S.C. § 924(e)(2)(a)(i). One such
offense uses materially identical language to the language of Florida’s
Section 893.149(1)....
...But it does here.
That result is the consequence of the language that Congress chose
and the Supreme Court’s construction of that language.
Third, we cannot overlook the absurd, factual reality of our
decision. Miles was convicted under Section 893.149(1) because he
was literally manufacturing methamphetamine when he set himself
and a house on fire....
...would otherwise apply. See United States v. Garcon, 54 F.4th 1274,
1284 (11th Cir. 2022) (en banc); id. at 1307 (Brasher, J., dissenting).
IV.
We hold the offense under Florida Statutes § 893.149(1) for
“[p]ossess[ion] ....
