TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA

United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)

From the you-can't-tell-the-players-without-a-program files:

We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1.2, nor a "controlled substance offense" under guideline §4B1.2(b), if the offense could have rested on the offer-to-sell alternative found in Texas's definition of "delivery." Which begs the obvious question: is it a "serious drug offense" for purposes of the Armed Career Criminal Act?

Yes, sayeth Vickers. Unlike the two guidelines definitions, which list specific acts that constitute a DTO or CSO, the ACCA's SDO definition extends to offenses "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . ." (emphasis added). "The word 'involving,'" the court says, "is an exceedingly broad term for a statute." And it's broad enough to encompass delivery by offer-to-sell:

The ACCA is intended to cover those individuals whose prior convictions indicate an “increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay v. United States, 128 S. Ct. 1581, 1587 (2008). The expansiveness of the word “involving” supports that Congress was bringing into the statute’s reach those who intentionally enter the highly dangerous drug distribution world. Being in the drug marketplace as a seller – even if, hypothetically, the individual did not possess any drugs at that time – is the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA.

Color me unpersuaded. Even if the court is right about Congress's understanding of "involving" in the SDO definition, that definition still doesn't reach all the conduct encompassed by a Texas delivery-by-offer-to-sell. As the court acknowledges, under Texas law "the accused need not have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell." That being the case, a conviction for delivery-by-offer-to-sell doesn't necessarily establish that the offender has "intentionally enter[ed] the highly dangerous drug distribution world." And under the Shepard categorical approach, which the court employs here, that means that delivery-by-offer-to-sell is broader than the SDO definition and doesn't qualify as an ACCA predicate.

But let's assume the court is correct that someone convicted of delivery-by-offer-to-sell has intentionally entered The Game. Is that "the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA," as the court says? I think the answer is: we don't know, and that ought to trigger the rule of lenity. As Justice Scalia pointed out in his Begay concurrence---on the question of whether DUI poses the same risk of injury that burglary does---it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year, and those statistics aren't available. Consequently, in Justice Scalia's view, because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and DUI can't be considered a "violent felony" under the ACCA. Likewise, without knowing just how frequently drug transactions erupt into violence, or even just the incidence of violence in the drug trade as a whole, it's impossible to know how likely it is that someone who offers to sell drugs is the "the kind of person who might deliberately point the gun and pull the trigger."