The “Johnny Appleseed” Myth Debunked: Eleventh Circuit Affirms that Free Transfers of Drugs Are “Distribution” under 21 U.S.C. § 841 and Re-validates Georgia Burglary as an ACCA Predicate

1. Introduction

United States v. Robert Scott Kennedy, No. 21-14181 (11th Cir. July 25, 2025), is a sprawling opinion that touches almost every hot-button issue in contemporary federal criminal sentencing: Rule 404(b), expert testimony under Rule 704(b), sufficiency of evidence on drug-firearm nexus, Armed Career Criminal Act (ACCA) predicates, the career-offender guideline, and reasonableness of sentences. The opinion is most notable for two clarifications that will echo through future prosecutions in the Eleventh Circuit:

“Distribution” of a controlled substance under 21 U.S.C. § 841(a)(1) includes gratis transfers—refuting what the panel labels the “Johnny Appleseed” defense that one is not a distributor when sharing drugs for free.
The pre-2012 Georgia burglary statute remains divisible and matches generic burglary, preserving its status as an ACCA enumerated offense.

The appeal arose after Robert Kennedy received a 360-month sentence for felon-in-possession, possession of heroin with intent to distribute, and possession of a firearm in furtherance of drug trafficking. He challenged evidentiary rulings, the jury instructions, the classification of his prior Georgia crimes, and the length of his sentence. The Eleventh Circuit (Carnes, J.) affirmed across the board.

2. Summary of the Judgment

Evidentiary Rulings Upheld. Text messages between Kennedy and his girlfriend were intrinsic to the charged heroin offense and not subject to Rule 404(b). Expert testimony on drug-distribution indicators did not violate Rule 704(b) because the expert stopped short of opining on Kennedy’s specific intent.
Sufficiency of Evidence. The totality of testimony and physical evidence (3.63 g heroin, five scales, baggies, firearm and magazines within arm’s reach) supported each conviction. The Court expressly held that giving heroin away still constitutes “distribution.”
ACCA Enhancement. Kennedy’s 1998 and 1999 Georgia burglary convictions, together with a 2011 methamphetamine-distribution conviction, yielded the required three predicates—even without relying on a 2015 marijuana conviction.
Career-Offender Enhancement. Georgia’s marijuana-distribution conviction also qualified under U.S.S.G. § 4B1.1(a), following the Court’s recent precedent that state-law definitions govern “controlled substance.”
Sentence Reasonable. A 360-month term (60 months below the Guidelines minimum) was procedurally and substantively sound even after considering Kennedy’s threats to a cooperating witness and courtroom conduct.

3. Analysis

3.1 Precedents Cited and Their Influence

United States v. Jiminez, 224 F.3d 1243 (11th Cir. 2000) – Intrinsic-evidence doctrine used to bypass Rule 404(b).
United States v. Alvarez, 837 F.2d 1024 (11th Cir. 1988) – Experts may state facts implying intent if final inference is left to jury; governs Rule 704(b) discussion.
United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016) – Held Georgia burglary statute divisible; dispositive on ACCA issue.
Borden v. United States, 593 U.S. 420 (2021) – Distinguishes reckless crimes from violent felonies. Court rejects Kennedy’s attempt to extend Borden to property crimes.
United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024), reinstated 139 F.4th 887 (11th Cir. 2025) – State law controls what counts as a “controlled substance” for career-offender predicates; relied upon to uphold marijuana conviction.

3.2 Legal Reasoning in Depth

a) Drug “Distribution” Includes Free Sharing

The panel confronts Kennedy’s argument that he merely “shared” or “gave” heroin to his girlfriend, equating that with non-commercial conduct outside § 841(a)(1). The Court quotes its own colorful phrase—“illegal drugs are not apple trees”—and surveys sister-circuit authority (Cortes-Caban, Fregoso, Washington, Vincent, Ramirez) to hold that any transfer, whether or not remunerative, is “distribution.” This aligns with the statutory definitions of “dispense” and “distribute” (both “deliver”) in 21 U.S.C. § 802. The ruling soundly forecloses a defense occasionally raised in “social sharing” cases.

b) Rule 404(b) Not Triggered by Intrinsic Evidence

Text messages showing Kennedy instructing Galindo to retrieve heroin from his “sack” were intrinsic because they (i) occurred during the charged conduct window (“on or about” Aug. 21 2020), and (ii) directly proved his possession and intent to distribute. Under Jiminez, intrinsic acts are outside Rule 404(b). Hence, notice requirements and propensity prohibitions never came into play.

c) Expert Boundaries under Rule 704(b)

Agent Luke’s testimony that 3.63 g is a “distribution quantity” and that drug traffickers keep firearms for protection or barter suggested intent but did not explicitly answer the legal question—Kennedy’s mens rea—thereby respecting Rule 704(b). The Court reiterates the permissibility of “obvious inference” testimony.

d) ACCA Predicate Status of Georgia Burglary

Relying on Gundy, the panel reiterates that Georgia’s pre-2012 burglary statute is divisible by location category. Kennedy’s indictments specified “dwelling” (1998) and “building” (1999), each satisfying generic burglary. The Court dismisses Kennedy’s Borden/Descamps arguments: burglary is a specific-intent crime under Georgia law (intent to commit a theft or felony), and Borden’s recklessness holding is limited to the ACCA “elements clause,” not the enumerated “burglary” clause.

e) Career-Offender Enhancement and the Controlled-Substance Definition

Kennedy claimed that Georgia’s marijuana definition exceeds the federal Controlled Substances Act because it lacks a hemp carve-out (<0.3% Δ-9 THC). The panel, tethered to Dubois, holds that state law governs whether the state conviction involved a controlled substance. Because Georgia scheduled marijuana in 2015, the conviction is a qualifying predicate.

f) Sentencing Reasonableness

Procedurally, hearsay is admissible at sentencing if reliable. Substantively, a sentence well below both the Guidelines minimum (420 months) and statutory maximum (life) easily survives abuse-of-discretion review, especially given Kennedy’s post-verdict threats and lack of remorse.

3.3 Likely Impact on Future Litigation

Drug “give-away” prosecutions. Defendants within the Eleventh Circuit can no longer credibly argue that sharing narcotics for free avoids § 841 liability. Expect prosecutors to cite Kennedy whenever “social sharing” surfaces.
Georgia burglary remains viable for ACCA. After Borden and the “recklessness” debate, some practitioners predicted renewed attacks on Georgia burglary. Kennedy shuts that door for pre-2012 convictions.
Career-offender definition of controlled substance. The Court’s reliance on Dubois (while the Supreme Court considers the split) signals the panel’s commitment to the state-definition approach—at least until the High Court definitively rules.
Evidentiary strategy. Intrinsic-evidence doctrine remains a potent tool for prosecutors to introduce texts, calls, or surveillance contemporaneous with the offense without 404(b) hurdles.

4. Complex Concepts Simplified

Generic vs. State Burglary.
“Generic” burglary is the Supreme Court’s standardized definition (unlawful entry into a building/structure with intent to commit a crime) used for federal enhancement statutes. A state burglary statute “matches” if its elements are no broader. If a state statute covers extra places (e.g., cars), courts may use the “modified categorical” approach to look at charging documents to see which place was actually burglarized.

Divisible Statute.
A statute is “divisible” when it lists alternative elements creating multiple crimes. Courts may consult limited documents (indictment, plea colloquy) to identify which alternative formed the basis of conviction.

ACCA vs. Career-Offender.
ACCA (§ 924(e)) is a statute that raises the minimum and maximum penalties for felon-in-possession when the defendant has three prior violent-felony or serious-drug convictions. The career-offender guideline (§ 4B1.1) increases the advisory Guideline range for any federal felony if the defendant has two such priors.

Rule 404(b) vs. Intrinsic Evidence.
Rule 404(b) governs “other acts” offered to show propensity. Evidence “inextricably intertwined” with the charged conduct is intrinsic and bypasses 404(b). Think of 404(b) as applying to “remote” or “separate” misdeeds, not to the core chain of events.

5. Conclusion

United States v. Kennedy cements two practical rules: (1) handing out drugs, even lovingly and for free, is still federal “distribution,” and (2) Georgia burglary convictions from the pre-2012 statute continue to count under ACCA. The opinion tightens prosecutors’ evidentiary playbook while giving defense counsel a clear roadmap of pitfalls—especially any attempt to re-litigate state burglary or claim that non-commercial transfers are innocuous. By reaffirming existing precedent and articulating them with memorable color (“drugs and guns go together like peas and carrots”), the Eleventh Circuit delivers a precedent poised to influence plea negotiations, evidentiary motions, and sentencing briefs throughout the Southeast.