Whether the determination of a 'controlled substance offense' under the Guidelines requires the same categorical approach used in the determination of a 'serious drug offense' under the Armed Career Criminal Act

QUESTIONS PRESENTED In Shular v. United States, 18-6662, this Court granted certiorari to resolve whether “the determination of a ‘serious drug offense’ under the Armed Career Criminal Act requires the same categorical approach used in the determination of a ‘violent felony’ under the Act?” The government recasts it as whether, “in conducting a categorical analysis under [the ‘serious drug offense’] provision, a sentencing court is required to compare the state-law offense to a ‘generic’ analogue crime.” Daniels v. United States, No. 19-28, Gov’t Resp. to Pet. 11. This Petition asks the same for the Guidelines “controlled substance offense” following argument below from authorities cited in Shular and Daniels. In United States v. Smith, where the approach reviewed in Shular arose, the court of appeals held it applied to both the “serious drug offense” and the “controlled substance offense.” 775 F.3d 1262, 1267 (11th Cir. 2014). The questions presented are: 1. Whether it is at least debatable by reasonable jurists that counsel provides ineffective assistance at a sentencing conducted after Mathis v. United States, 136 S. Ct. 2243 (2016), by making no objection to a career offender enhancement that depends on convictions for a state drug offense that is categorically broader than the Guidelines “controlled substance offense” because, inter alia, it encompasses a mens rea of recklessness. 2 Whether counsel provides constitutionally ineffective assistance under Roe v. Flores—Ortega, 528 U.S. 470 (2000), by overbearing a defendant’s manifest desire to appeal with erroneous advice that there are no meritorious issues to raise, securing no decision about appeal, and noticing no appeal. ii 3. Whether the determination of a “controlled substance offense” under the Guidelines requires the same categorical approach used in the determination of a “serious drug offense” under the Armed Career Criminal Act. 4. Whether the Court should hold this Petition pending decision in Shular v. United States, 18-6662. * eK OK OK OK If the Court grants review, counsel anticipates enlisting an experienced member of this Court’s bar as counsel of record for merits briefing and argument. PARTIES INVOLVED All parties are reflected in the case caption.