Whether the drug conduct in the Armed Career Criminal Act's 'serious drug offense' definition in 18 U.S.C. § 924(e)(2)(A)(ii) requires knowledge of the illicit nature of the controlled substance

QUESTION PRESENTED The Armed Career Criminal Act defines a “serious drug offense” as, inter alia, a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). In Shular v. United States, 140 S. Ct. 779 (2020), the Court held that § 924(e)(2)(A)Gi) refers to drug conduct, not generic drug offenses. Thus, under the categorical approach, a state offense qualifies as a “serious drug offense” if its elements necessarily involve that conduct—i.e., manufacturing, distributing, or possessing with intent to distribute a controlled substance. Id. at 784-85. But does that conduct require knowledge of the substance’s illicit nature? The petitioner in Shular “arguel[d] in the alternative that even if § 924(e)(2)(A)Gi) does not call for a analysis,” the presumption of mens rea meant that § 924(e)(2)(A)Gi) “require[d] knowledge of the substance’s illicit nature.” Id. at 787 n.3. The Court did “not address that argument” because it was “outside the question presented,” and the petitioner “disclaimed it at the certiorari stage.” Id. The question presented is the one left open in Shular: Whether the drug conduct in the Armed Career Criminal Act’s “serious drug offense” definition in 18 U.S.C. § 924(e)(2)(A)(ii) requires knowledge of the illicit nature of the controlled substance." ' A similar question is presented in Duwayne Jones v. United States, Sup. Ct. No. 206399 (response requested Dec. 22, 2020) and Anthony Billings, Jr. v. United States, Sup. Ct. No. 20-7101 (pet. filed Feb. 4, 2021). i RELATED CASES United States v. Curry, No. 19-13893 (11th Cir. Nov. 4, 2020) United States v. Curry, No. 19-cr-80161 (S.D. Fla. Sept. 18, 2019) ii