United States v. Thirkield – Re-confirming ACCA Predicate Status of Georgia Marijuana Convictions & The Continuing Constitutionality of 18 U.S.C. § 922(g)(1)

United States v. Thirkield – Re-confirming ACCA Predicate Status of Georgia Marijuana Convictions & The Continuing Constitutionality of 18 U.S.C. § 922(g)(1)

Introduction

The Eleventh Circuit’s unpublished decision in United States v. Megail Thirkield, No. 23-13796 (11th Cir. July 10, 2025), tackles two recurring themes in federal criminal practice:

  • Whether certain state drug convictions—here, Georgia marijuana offenses—qualify as “serious drug offenses” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e); and
  • Whether 18 U.S.C. § 922(g)(1), the felon-in-possession statute, survives Second Amendment scrutiny after New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi.

On appeal, Mr. Thirkield challenged both his conviction and the 210-month sentence imposed after the district court applied the ACCA enhancement. The Eleventh Circuit affirmed in full, providing new gloss on previously unsettled questions about the breadth of the federal “marijuana” definition pre-2018 and the scope of plain-error review of Second Amendment challenges.

Summary of the Judgment

The panel (Luck, Brasher & Abudu, JJ.) held:

  1. Constitutionality of §922(g)(1) – Binding circuit precedent (United States v. Rozier) squarely forecloses a facial Second Amendment challenge to §922(g)(1). Subsequent cases (Dubois, post-Rahimi) reaffirmed that Rozier remains intact; therefore, the court rejected Thirkield’s facial challenge.
  2. As-applied Second Amendment challenge – Because the issue was not raised below, it was reviewed for plain error. The defendant could not identify any controlling authority recognizing an as-applied Second Amendment bar where the defendant had similar criminal history; therefore, no plain error existed.
  3. ACCA Enhancement – Three Georgia convictions for possession with intent to distribute marijuana under O.C.G.A. §16-13-30(j) categorically qualify as “serious drug offenses.” The Georgia definition of marijuana was not broader than the federal definition in effect when the state offenses occurred (2011 & 2017), even accounting for the “hemp” carve-out added to federal law in 2018.

Analysis

Precedents Cited

  • United States v. Rozier, 598 F.3d 768 (11th Cir. 2010) – Upheld §922(g)(1) against Second Amendment attack pre-Bruen.
  • United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024) (“Dubois I”) & 139 F.4th 887 (11th Cir. 2025) (“Dubois II”) – Found Rozier unaffected by Bruen or Rahimi.
  • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) – Introduced the historical-tradition test for firearm regulation.
  • United States v. Rahimi, 602 U.S. 680 (2024) – Confirmed that §922(g)(8) (DV restraining orders) comports with the Second Amendment under the Bruen framework.
  • United States v. Brown, 602 U.S. 101 (2024) – Held that a state drug conviction counts under ACCA if the substance was on the federal schedules at the time of the state offense.
  • United States v. Jackson, 55 F.4th 846 (11th Cir. 2022) – Adopted the “time-of-state-offense” rule later affirmed in Brown.
  • United States v. Gaines, 489 F.2d 690 (5th Cir. 1974) & United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980) – Interpreted “Cannabis sativa L.” in §802(16) to encompass all cannabis species.
  • In re Lambrix, 776 F.3d 789 (11th Cir. 2015) – Sets forth the prior-panel-precedent rule.
  • United States v. Wright, 607 F.3d 708 (11th Cir. 2010) & United States v. Peters, 403 F.3d 1263 (11th Cir. 2005) – Apply plain-error review to unpreserved constitutional arguments.

Legal Reasoning

1. Second Amendment Issues

The panel applied the Eleventh Circuit’s prior-panel-precedent rule (Lambrix). Rozier remains binding because neither the Supreme Court nor the en banc Eleventh Circuit has expressly overruled it. Although Bruen re-formulated the standard for firearm regulations, Dubois held that Rozier survives Bruen. The Supreme Court’s remand post-Rahimi did not change that conclusion, so the court summarily rejected the facial attack.

For the as-applied challenge, the panel invoked the four-part plain-error test: (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness of the proceedings. Because no controlling authority recognized the asserted error, it could not be “plain.” The court firmly distinguished a jurisdictional defect from a waived (but non-jurisdictional) constitutional claim, noting that Class v. United States, 583 U.S. 174 (2018), which allowed a defendant to raise a preserved constitutional claim after a guilty plea, does not dispense with the preservation requirement itself.

2. ACCA Predicate Question

Under the categorical approach, a state conviction is a “serious drug offense” if (a) it involves manufacturing, distributing, or possessing with intent to distribute a controlled substance, and (b) the state definition of the substance fits within the federal definition in effect at the time of the state offense (Brown). The panel addressed three alleged mismatches:

  1. “Genus Cannabis” vs. “Cannabis sativa L.” – Prior Fifth-Circuit precedents (binding pre-1981) interpret §802(16) to include all cannabis species. Hence no mismatch.
  2. “Completely defoliated stalks” caveat – Even partially defoliated stalks contain leaves, and leaves fall squarely within “all parts of the plant,” so the federal definition still covers the conduct.
  3. Hemp exclusion – Federal law excluded hemp only after the 2018 Farm Bill. At the time of both Georgia offenses (2011, 2017), hemp remained within the federal schedules; therefore, Georgia’s definition was not broader.

Because each Georgia conviction carried a maximum ten-year penalty, §16-13-30(j) satisfied the ACCA’s “serious drug offense” criterion. With three predicate offenses committed on different occasions, the 15-year mandatory minimum and corresponding guideline increase were correctly applied.

Impact of the Judgment

  • Clarifies the Marijuana “Mismatch” Debate Post-Brown – Defendants indicting pre-2018 marijuana convictions in Georgia (and arguably other states with similar statutory text) face an uphill battle in arguing overbreadth. The panel’s reliance on Brown/Jackson significantly narrows outstanding arguments rooted in the 2018 hemp amendment.
  • Stabilizes §922(g)(1) Litigation Within the Circuit – By reaffirming Rozier and rejecting creative as-applied strategies under plain-error review, the decision signals that ordinary felon-in-possession prosecutions remain constitutionally sound absent en banc or Supreme Court intervention.
  • Guides District Courts on Preservation Requirements – The opinion underscores that novel Second Amendment theories must be clearly raised below to escape the stringent plain-error standard.
  • Practical Sentencing Consequences – Because the Eleventh Circuit treats Georgia marijuana convictions as ACCA predicates, defendants with such histories will continue to receive 15-year mandatory minimums unless future en banc precedent or legislative reform intervenes.

Complex Concepts Simplified

Armed Career Criminal Act (ACCA)

A federal statute that mandates enhanced penalties for §922(g) offenders with three qualifying prior convictions (violent felonies or serious drug offenses) “committed on occasions different from one another.” A qualifying drug offense must involve a controlled substance under federal schedules and carry a maximum sentence of ≥10 years.

Categorical Approach

Courts ask: looking only at the statutory elements, could a defendant have been convicted for conduct not covered federally? If so, the statute is too broad and the conviction does not count. No facts from police reports or plea colloquies are considered—only the least-culpable conduct criminalized.

Prior-panel-precedent Rule

In the Eleventh Circuit, once a published panel has decided an issue, later panels must follow it unless the Supreme Court or the court sitting en banc overturns it. Unpublished decisions, like Thirkield, are not themselves binding, but they must still obey earlier published authority.

Plain-error Review

If an argument was not raised in the trial court, the defendant must show an obvious error that affected substantial rights and undermines confidence in the proceedings. Absent precedent establishing the error, relief is exceedingly rare.

Conclusion

United States v. Thirkield is an unpublished yet instructive opinion that does four important things: (1) it reinforces the continued vitality of §922(g)(1) despite modern Second Amendment jurisprudence; (2) it expressly applies Brown and Jackson to dispose of hemp-mismatch arguments; (3) it clarifies that Georgia marijuana convictions remain ACCA predicates; and (4) it highlights preservation pitfalls for defense counsel advancing constitutional objections. While not ground-breaking, the decision closes several lingering doctrinal loopholes and furnishes practitioners with clear guidance on ACCA eligibility and Second Amendment challenges within the Eleventh Circuit.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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