When State Drug Law Changes Mid-Prosecution, ACCA Looks to the Offense-Date Law Preserved by State Saving Provisions: Eleventh Circuit Vacates Enhancement in United States v. Miller

Introduction

This published Eleventh Circuit decision addresses a recurring and consequential question in Armed Career Criminal Act (ACCA) litigation: when state drug law changes between the date a defendant commits the state drug offense and the date of conviction, which version of state law controls the “categorical” comparison for determining whether that prior qualifies as a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)?

In United States v. Jerome Miller, Jr. (No. 23-13069, decided Nov. 6, 2025), the panel (Judge Jill Pryor, joined by Judges Jordan and Hull) vacated a 180-month ACCA sentence for a § 922(g)(1) conviction. Miller’s three Florida convictions for delivery of cocaine were deemed non-qualifying ACCA predicates because, at the time he committed those offenses (February–March 2017), Florida’s definition of “cocaine” still included ioflupane, whereas federal schedules had excluded ioflupane since 2015. The court held that when state law changes mid-prosecution, a federal sentencing court must consult the version of state law that applied to the offense by reference to state saving provisions. Florida’s then-operative constitutional saving clause preserved the offense-date law, creating a categorical mismatch and defeating ACCA.

The decision synthesizes and extends Supreme Court guidance in McNeill v. United States and Brown v. United States, clarifies divisibility under Florida law, and delineates a clear temporal rule for the state-law side of the categorical analysis when statutory amendments occur during pending state prosecutions.

Summary of the Opinion

• The court vacated Miller’s 180-month ACCA-enhanced sentence and remanded for resentencing without ACCA.
• Key holding: Under ACCA’s categorical approach, when the relevant state drug law changes between commission and conviction of the state offense, the federal court must apply the version of state law governing the offense at the time it was committed as preserved by the state’s saving provision. Here, Florida’s constitution then provided that amendments do not affect pending prosecutions, so the offense-date definition controlled.
• Applying that law, Florida’s definition of “cocaine” (then including ioflupane) was broader than the federal schedules (which excepted ioflupane since 2015). Because the state statute was categorically broader, the convictions were not ACCA “serious drug offenses.”
• The court reaffirmed divisibility of Fla. Stat. § 893.13(1)(a) by drug type but found that Florida’s statutory definition of “cocaine” in § 893.03(2)(a)(4) is not further divisible by sub-type (e.g., cocaine vs. its derivatives), so the categorical comparison is made at the level of “cocaine” as defined by Florida law.

Analysis

Precedents Cited and Their Roles

• Brown v. United States, 602 U.S. 101 (2024): Brown resolved which version of the federal drug schedules to consult for § 924(e)(2)(A)(ii): the schedules in effect when the defendant committed the state drug offense, not when he committed the federal firearm offense or was federally sentenced. Brown also emphasized ACCA’s “backward-looking” inquiry into the seriousness of prior conduct. Miller applies Brown’s temporal rule on the federal side of the comparison and harmonizes it with McNeill on the state-law side.
• McNeill v. United States, 563 U.S. 816 (2011): McNeill held that ACCA’s serious-drug-offense definition requires consulting the maximum sentence “at the time of [the] conviction” for the prior offense, but—crucially—when the state law changed between offense and conviction, the Court looked to the state statute’s saving clause to determine which penalty applied to the defendant’s case. Miller draws from this nuanced part of McNeill: when state law changes midstream, state saving provisions dictate whether offense-date or conviction-date law governs the prior.
• Shular v. United States, 589 U.S. 154 (2020): Confirmed that ACCA’s “serious drug offense” inquiry looks to the elements of the state offense, not a generic offense definition; the categorical approach applies to elements. Miller uses this framework.
• United States v. Jackson, 55 F.4th 846 (11th Cir. 2022), aff’d sub nom. Brown: Framed the categorical comparison and the “mismatch” concept; Brown later affirmed the temporal rule regarding federal schedules. Miller follows Jackson’s categorical approach and integrates Brown’s timing rule.
• Mathis v. United States, 579 U.S. 500 (2016): Provided the method to determine divisibility (elements vs. means). Miller uses Mathis to hold § 893.13(1)(a) divisible by drug type, but § 893.03(2)(a)(4)’s definition of “cocaine” is not further divisible.
• Guillen v. U.S. Att’y Gen., 910 F.3d 1174 (11th Cir. 2018): Held Florida’s “controlled substance” statutes divisible by drug type, supporting the panel’s analysis of § 893.13(1)(a).
• Chamu v. U.S. Att’y Gen., 23 F.4th 1325 (11th Cir. 2022) and Godfrey v. State, 947 So. 2d 565 (Fla. 2d DCA 2006): Support that Florida’s statutory definition of “cocaine” aggregates multiple forms (cocaine, ecgonine, derivatives) as alternative means, not separate elements; hence not further divisible.
• United States v. Laines, 69 F.4th 1221 (11th Cir. 2023): Addressed (under plain error review) a different mismatch theory regarding stereoisomers; Miller notes but does not reach that issue.
• Wooden v. United States, 595 U.S. 360 (2022): Cited to describe ACCA’s purpose—targeting the risks posed by armed recidivists—framing the statute’s backward-looking design.
• Bell v. Maryland, 378 U.S. 226 (1964) and United States v. Reisinger, 128 U.S. 398 (1888): Supply background on the common-law abatement rule and how statutory/constitutional saving provisions displace it. Miller relies on Florida’s then-constitutional saving clause to choose offense-date state law.

Legal Reasoning

The opinion proceeds in a structured sequence faithful to the categorical approach:

1. Identify the statutory yardstick (ACCA): A state conviction is a “serious drug offense” if it involves manufacturing, distributing, or possessing with intent to distribute a “controlled substance (as defined in section 102 of the CSA)” and is punishable by a maximum term of at least 10 years (18 U.S.C. § 924(e)(2)(A)(ii)). Only the “controlled substance” component is at issue.
2. Apply the categorical approach: The court compares elements, not facts. A predicate qualifies only if the state statute is the same as or narrower than ACCA’s definition. A broader state statute creates a categorical “mismatch” and cannot serve as a predicate.
3. Divisibility under Florida law:
   • Fla. Stat. § 893.13(1)(a) is divisible by drug type (citing Guillen), so Miller’s convictions are treated as “cocaine” convictions, not generic “controlled substance” offenses.
   • Florida’s definition of “cocaine,” § 893.03(2)(a)(4), is not further divisible by sub-type (e.g., cocaine vs. ecgonine vs. derivatives); it lists alternative means of committing the offense under a single “cocaine” definition (citing Godfrey; Chamu; Mathis).
4. Establish the federal comparator and timing (Brown): The federal “controlled substance” definition incorporates the federal schedules. Under Brown, courts consult the federal schedules in effect when the defendant committed the state drug offense—not at the time of the federal firearm offense or federal sentencing. Since 2015, the DEA removed ioflupane from Schedule II via rulemaking (80 Fed. Reg. 54715), and 21 C.F.R. § 1308.12(b)(4) expressly excepts ioflupane.
5. Select the applicable version of state law when state law changes mid-prosecution (McNeill + state saving clauses):
   • Between Miller’s offense dates (Feb.–Mar. 2017) and his convictions (Aug. 2017), Florida amended § 893.03(2)(a)(4) to legalize ioflupane (effective July 2017).
   • McNeill teaches that if state law changes between offense and conviction, courts must determine which version applied to the defendant’s case by reference to state saving provisions. At the time, Florida’s constitution provided a saving clause: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed” (Fla. Const. art. X, § 9 (2017)).
   • Because Florida’s saving clause preserved the offense-date law for pending prosecutions, the controlling state definition is the pre-July 2017 version—which included ioflupane.
6. Conduct the categorical comparison: On the offense dates, Florida’s “cocaine” included ioflupane; the federal schedules excluded it. Florida’s statute was therefore categorically broader. Result: Miller’s Florida cocaine convictions do not qualify as ACCA serious drug offenses.

The court rejects the district court’s approach of using the law at the time of state conviction because, in light of the saving clause, that is not the law Florida applied to these offenses. It harmonizes Brown’s offense-date rule for the federal schedules with McNeill’s saving-clause analysis for state-law changes, articulating a coherent two-sided temporal framework for ACCA’s categorical analysis.

Impact

This decision sets an important and practical rule for ACCA cases within the Eleventh Circuit and offers persuasive guidance nationally:

• Temporal framework clarified:
  • Federal side: Use the federal schedules in effect when the state drug offense was committed (Brown).
  • State side (when law changes midstream): Use the version of state law that applied to the offense as determined by the state’s saving provisions (McNeill as applied here). In jurisdictions with general saving statutes or constitutional clauses (as most have), this will typically mean offense-date law governs.
• Concrete Florida window: For Florida cocaine offenses committed between September 11, 2015 (DEA removal of ioflupane) and July 1, 2017 (Florida’s legalization of ioflupane), § 893.03(2)(a)(4) was categorically broader than the federal schedules. Convictions for “cocaine” offenses in that window do not qualify as ACCA serious drug offenses under this reasoning.
• Screening and litigation posture:
  • Defense counsel should closely examine offense dates versus conviction dates and the presence of state saving provisions when arguing categorical mismatches.
  • Prosecutors should be prepared to establish the applicable version of state law under saving clauses and, if necessary, rely on alternative predicates or different offense periods.
  • Probation officers drafting PSRs should identify offense dates, statutory texts in force on those dates, and any intervening amendments and saving provisions relevant to predicates.
• Beyond Florida and ACCA:
  • The opinion’s methodology will inform ACCA analyses involving other states that amended controlled-substance definitions during pending prosecutions.
  • Although this case addresses ACCA, similar timing-and-mismatch questions arise under the Sentencing Guidelines’ career offender provision and in immigration “controlled substance” removability cases; the court’s divisibility and timing analysis may be persuasive in those contexts, subject to differing textual frameworks.
• Open questions preserved:
  • The panel does not reach the “stereoisomer” mismatch theory (Florida’s inclusion of all stereoisomers vs. federal coverage of optical and geometric isomers), leaving that issue for future cases.
  • The opinion also flags but does not decide scenarios where a state later makes a drug de-scheduling retroactive to prior convictions or sentences—McNeill likewise reserved that question.

Complex Concepts Simplified

• Categorical approach: A method requiring courts to compare the legal elements of the prior offense to the federal definition, ignoring the case-specific facts. If the state statute criminalizes any conduct outside the federal definition (i.e., is “broader”), the prior cannot qualify as a predicate.
• Divisible vs. indivisible statutes: A statute is “divisible” if it lists alternative elements (creating multiple distinct crimes). Courts may then consult limited records (Shepard documents) to identify the specific element. If a statute lists alternative means of committing the same element, it is “indivisible” and must be compared as a whole. Florida’s § 893.13(1)(a) is divisible by drug type, but the definition of “cocaine” in § 893.03(2)(a)(4) is not further divisible.
• Saving clauses: Provisions that prevent new, more lenient criminal laws from retroactively changing the legal consequences of already-committed offenses. They displace the common-law presumption that an ameliorative amendment applies to pending cases. Florida’s then-constitutional saving clause required applying the offense-date version of the drug law to Miller’s pending prosecutions.
• Ioflupane: A diagnostic radiopharmaceutical derived from cocaine via ecgonine, formerly encompassed by broadly phrased cocaine scheduling. The DEA removed it from the federal schedules in 2015; Florida followed in 2017. This removal/exception created a temporary federal–state mismatch that is central to Miller’s outcome.
• Isomers: Chemical variants with the same formula but different structures/arrangements. Federal schedules for “cocaine” include “salts, optical and geometric isomers, and salts of isomers,” whereas Florida’s text refers to “stereoisomers.” The opinion notes but does not resolve whether that difference creates a categorical mismatch.

Conclusion

United States v. Miller establishes a clear and administrable rule in the Eleventh Circuit for ACCA’s categorical analysis when state drug law changes during the interval between offense and conviction. Synthesizing Brown and McNeill, the court holds that:

• Sentencing courts consult the federal schedules as of the date the defendant committed the state drug offense (Brown); and
• When state law changed mid-prosecution, courts apply the version of state law that governed the offense as preserved by the state’s saving provisions (McNeill).

Applied to Florida’s 2017 amendment legalizing ioflupane, the saving clause required using the offense-date definition of “cocaine,” which was broader than federal law (because federal law had already excepted ioflupane). That categorical mismatch meant Miller’s Florida cocaine priors were not “serious drug offenses,” compelling vacatur of the ACCA sentence.

The opinion meaningfully clarifies temporal reference points for both sides of the categorical comparison and provides a roadmap for courts and practitioners confronting midstream changes to state drug laws. Its immediate practical effect is significant for Florida cocaine convictions during the 2015–2017 window and more broadly for any jurisdiction where saving provisions preserve offense-date law for pending prosecutions. As ACCA litigation continues to grapple with evolving drug schedules and disparate state definitions, Miller offers a principled, textually grounded, and administrable approach.