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Con gressionaI
a Research Servi e
Armed Career Criminal Act (ACCA): When
Does a Prior Drug Offense Qualify?
November 16, 2023
Introduction
It is a federal crime for a convicted felon, among others, to possess a firearm. Under the Armed Career
Criminal Act (ACCA), the offense carries a mandatory minimum term of imprisonment when the offender
has three or more prior violent felony or serious drug (controlled substance) predicate convictions. The
ACCA defines a serious drug offense as (1) an offense punishable by a maximum term of imprisonment
of ten years or more that is (2)(i) an offense under federal controlled substance laws, 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 [federal] Controlled Substance Act (21
U.S.C. [@] 802)). According to the Supreme Court in a recent parallel violent felony case, to qualify
under the ACCA, the state law governing a prior offense must be no more inclusive than its federal
counterpart. Yet federal and state laws governing the meaning of controlled substances have ebbed and
flowed over the years, and the qualification of a prior offense as a serious drug offense may have ebbed
and flowed with them. As such, for purposes of qualifying serious drug offenses under the ACCA, timing
matters. The Supreme Court has determined that the ten-year penalty threshold for prior offenses must
have been in place at the time of the prior conviction. The lower federal courts disagree over whether a
prior offense must satisfy the other element of the definition of a serious drug offense at the time of
unlawful firearm possession (as in the Third, Eighth and Tenth Circuits), at the time of the federal firearm
offense sentencing (as in the Fourth Circuit), or at the time of the prior predicate offense (as in the
Eleventh Circuit). In Brown v. United States and Jackson v. United States, the Supreme Court has agreed
to consider the question.
ACCA: Overview of Prior Serious Drug Offense
Caselaw
The Supreme Court has had more than a few occasions to resolve disputes arising out of the ACCA.
Many cases have involved the meaning of the term violent felony, but a few have concerned the scope
Congressional Research Service
https://crsreports.congress.gov
LSB11077
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