United States v. Hicks: “Mature Stalk” Wording Does Not Create ACCA Marijuana Overbreadth; § 922(g)(1) Remains Constitutional Under Binding Circuit Precedent

Court: United States Court of Appeals for the Eleventh Circuit
Date: February 10, 2026
Case: United States v. Tomario Ricardo Hicks, No. 23-13940 (per curiam)

1. Introduction

This appeal concerns whether prior Georgia drug convictions qualify as predicates for the Armed Career Criminal Act (“ACCA”), triggering a 15-year mandatory minimum for a felon-in-possession conviction under 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). The defendant, Tomario Ricardo Hicks, pleaded guilty after a traffic stop in which he admitted he discarded ecstasy pills and possessed a firearm; officers recovered pills later tested as methamphetamine, a handgun, and packaging paraphernalia.

The central issues on appeal were: (1) whether Hicks’s Georgia marijuana convictions are “serious drug offenses” under ACCA given claimed categorical “overbreadth” in Georgia’s marijuana definition; (2) whether guideline calculations regarding “controlled substance offenses” were erroneous; and (3) whether § 922(g)(1) is unconstitutional after modern Second Amendment decisions.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that Hicks failed to show Georgia’s marijuana definition is categorically broader than the federal definition based on the statutory wording difference concerning “mature stalks.” Because his marijuana convictions qualify as ACCA “serious drug offenses,” the ACCA enhancement was proper, and the guideline-level challenge became moot. The court also rejected Hicks’s facial and as-applied Second Amendment challenges to § 922(g)(1) as foreclosed by binding circuit precedent.

3. Analysis

3.1. Precedents Cited

  • United States v. Miles, 75 F.4th 1213 (11th Cir. 2023): Cited for the de novo standard of review for ACCA “serious drug offense” determinations. This frames the appellate posture for the ACCA predicate analysis.
  • United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019) and United States v. Bennett, 472 F.3d 825 (11th Cir. 2006): Cited to distinguish de novo review from plain-error review when a defendant fails to preserve a guidelines objection below. While the panel ultimately mooted the guideline-base-level dispute, these cases define the consequences of forfeiture.
  • United States v. Smith, 775 F.3d 1262 (11th Cir. 2014) and United States v. Wright, 607 F.3d 708 (11th Cir. 2010): Cited for review standards on constitutional sentencing issues and for applying plain-error review when constitutional arguments are first raised on appeal.
  • United States v. Laines, 69 F.4th 1221 (11th Cir. 2023): Supplies the operative categorical-approach framework: courts compare elements, presume conviction for the “least culpable conduct,” and require that all substances covered by the state law also be federally controlled.
  • United States v. Dixon, 874 F.3d 678 (11th Cir. 2017): Critical to the decision’s disposition of Hicks’s overbreadth claim. Dixon is cited for two propositions: (1) the defendant bears the burden to establish overbreadth; and (2) the “realistic probability” requirement—that a defendant must show the state actually prosecutes the asserted non-federal conduct, not merely that it is imaginably covered by text.
  • United States v. Jackson, 55 F.4th 846 (11th Cir. 2022): Relevant in the background briefing. Hicks conceded Jackson foreclosed his “hemp” timing argument by adopting a date-of-previous-conviction comparison rule for matching state and federal schedules/definitions.
  • Brown v. United States, 602 U.S. 101 (2024): Hicks conceded in his reply brief that Brown eliminated certain overbreadth theories he had raised (including, as the opinion describes, hemp and certain cocaine-isomer arguments), narrowing the appeal to the “mature stalks” theory.
  • United States v. Fiore, 983 F.2d 1 (1st Cir. 1992): Used analogically to rebut Hicks’s implied reading of federal law as excluding mature stalks even when leaves remain. The opinion invokes Fiore’s “swallow the rule” logic: excluding foliated stalks would effectively negate marijuana’s inclusion of leaves.
  • United States v. Rozier, 598 F.3d 768 (11th Cir. 2010): The foundational Eleventh Circuit precedent holding that § 922(g)(1) is a constitutional restriction on the Second Amendment rights of felons, relying in part on Heller’s assurance about “longstanding prohibitions.”
  • District of Columbia v. Heller, 554 U.S. 570 (2008): Cited via Rozier for the Supreme Court’s statement that nothing in Heller should cast doubt on “longstanding prohibitions on the possession of firearms by felons.”
  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) and United States v. Rahimi, 602 U.S. 680 (2024): Invoked by Hicks as intervening authority. The panel treats these as addressed by later binding circuit precedent, particularly Rahimi’s language about legislatures disarming dangerous categories and the “presumptively lawful” carveout.
  • United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) ("Dubois II"): The controlling post-Bruen, post-Rahimi decision holding Rozier remains binding and that § 922(g)(1) withstands Second Amendment challenge in this circuit absent “clearer instruction” from the Supreme Court.
  • Laguna Rivera v. U.S. Att'y Gen., 130 F.4th 915 (11th Cir. 2025): Cited for the “prior panel precedent rule,” explaining why the panel must follow Dubois II (and thus Rozier) even if Hicks contends those cases were wrongly decided.

3.2. Legal Reasoning

A. ACCA and the categorical approach: the “mature stalks” overbreadth claim

ACCA applies if the defendant has three prior convictions for a “violent felony” or a “serious drug offense.” Hicks targeted ACCA’s predicate requirement by arguing that Georgia marijuana offenses cannot qualify because Georgia’s statutory definition allegedly covers more than federal marijuana.

The panel applied the categorical approach (as described in United States v. Laines): it compares statutory elements/definitions rather than underlying facts, assumes the least culpable conduct, and asks whether the state statute necessarily fits within the federal definition.

Hicks’s remaining theory focused on textual differences in what is excluded from “marijuana”:

  • Georgia excludes “the completely defoliated mature stalks of such plant.” Ga. Code Ann. § 16-13-21(16)
  • Federal law excludes “the mature stalks of such plant.” 21 U.S.C. § 802(16)(B)(ii)

Hicks contended that because Georgia excludes only completely defoliated mature stalks, Georgia must criminalize possession of mature stalks that still have leaves (“foliated” stalks), while federal law would not—creating overbreadth.

The panel rejected this in two steps:

  1. Burden and “realistic probability”: Under United States v. Dixon, Hicks bore the burden to show a “realistic probability” that Georgia prosecutes conduct outside federal coverage. The mere presence of different words is not enough without a showing the state in practice reaches uniquely non-federal conduct.
  2. Factual/structural implausibility: The court reasoned that the supposed gap is illusory because neither statute excludes marijuana leaves, and a “mature foliated stalk” necessarily includes leaves. Thus, even if stalks are excluded, the leaves are still covered; a defendant found with a stalk and attached leaves would be prosecutable under both regimes. The court noted Hicks cited no case adopting his proposed federal interpretation and added that such an interpretation would “swallow the rule” (citing United States v. Fiore).

Result: Georgia’s marijuana definition was not shown to be categorically broader; Hicks’s marijuana convictions therefore qualify as ACCA “serious drug offenses.”

B. Guidelines issue mooted by ACCA offense level

Hicks separately argued he lacked two prior “controlled substance offenses” for the initial guidelines base offense level of 24. The panel held this became immaterial because the armed-career-criminal guideline offense level (34 under U.S.S.G. § 4B1.4(b)(3)(A)) governed once ACCA applied.

C. Second Amendment challenges: foreclosed by binding precedent

Hicks argued § 922(g)(1) is facially unconstitutional and unconstitutional as applied to him, claiming New York State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi undermined Eleventh Circuit precedent.

The panel treated the claim as foreclosed. It relied on:

  • United States v. Rozier, which upheld felon disarmament under the Second Amendment and treated Heller’s “longstanding prohibitions” language as authoritative in this circuit; and
  • United States v. Dubois (“Dubois II”), which specifically held that Rahimi confirms rather than abrogates Rozier, emphasizing Rahimi’s statements that the Court was not suggesting the Second Amendment bars laws disarming categories considered dangerous and reiterating that felon prohibitions are “presumptively lawful.”

Under the prior panel precedent rule (citing Laguna Rivera v. U.S. Att'y Gen.), the panel could not revisit those holdings absent Supreme Court abrogation or en banc overruling.

3.3. Impact

  • ACCA litigation—marijuana definition attacks narrowed: The decision adds a practical limitation on overbreadth arguments based on fine textual differences in statutory exclusions. Even where state and federal definitions differ in wording, defendants must connect that difference to prosecutable, real-world conduct that falls outside federal coverage (the “realistic probability” requirement).
  • “Mature stalk” exclusion arguments likely disfavored: By characterizing the foliated-stalk theory as factually incorrect and structurally incompatible with leaves remaining criminalized, the opinion makes similar arguments harder to sustain without specific state cases demonstrating non-federal prosecutions.
  • Second Amendment challenges to § 922(g)(1) remain blocked in the Eleventh Circuit: The opinion reinforces that, after Dubois II, defendants generally cannot obtain relief on Bruen/Rahimi-based attacks on the felon-in-possession statute in this circuit unless the Supreme Court provides clearer contrary guidance.
  • Sentencing strategy: Because ACCA can moot guideline disputes, defendants may focus litigation resources on ACCA predicate status; conversely, the government can treat successful ACCA predicate arguments as dispositive for many guideline-range disputes.

4. Complex Concepts Simplified

  • ACCA (“Armed Career Criminal Act”): A federal statute that increases the minimum sentence to 15 years for a felon-in-possession conviction if the defendant has three qualifying prior convictions (including “serious drug offenses”).
  • Categorical approach: A method of comparing crimes by looking only at statutory elements/definitions, not the defendant’s actual conduct in the prior case. The question is whether the state statute always fits within the federal category.
  • Overbreadth (in this context): A state statute is “overbroad” if it criminalizes more conduct (or more substances) than the federal definition used for the enhancement—meaning someone could be convicted under state law for something that would not qualify federally.
  • “Realistic probability” requirement: Not enough to hypothesize unusual applications from statutory text; the defendant must show the state actually applies its statute to the extra conduct in practice (often via case examples).
  • Prior panel precedent rule: A later appellate panel must follow earlier binding circuit decisions unless the Supreme Court clearly overrules them or the circuit overrules them en banc.

5. Conclusion

United States v. Hicks confirms that minor textual differences in state and federal marijuana exclusions—here, Georgia’s “completely defoliated mature stalks” versus the federal “mature stalks”—do not establish categorical overbreadth absent a realistic showing that the state prosecutes conduct beyond federal reach. The decision also reiterates that, in the Eleventh Circuit, § 922(g)(1) remains constitutional against facial and as-applied Second Amendment challenges under United States v. Rozier and United States v. Dubois (“Dubois II”), notwithstanding Bruen and Rahimi.