[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-12609 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CHRISTOPHER E. MILES,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:20-cr-00082-MCR-1 ____________________ USCA11 Case: 21-12609 Document: 44-1 Date Filed: 07/31/2023 Page: 2 of 21

2 Opinion of the Court 21-12609

Before LAGOA and BRASHER, Circuit Judges, and BOULEE,* District Judge. BRASHER, Circuit Judge: This appeal requires us to decide whether the state crime of possessing a listed chemical with reasonable cause to believe it will be used to manufacture a controlled substance is a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii). Several years ago, Christopher Miles was con- victed of such an offense under Florida law. In this federal case, he pleaded guilty to one count of being a felon in possession of a fire- arm in violation of 18 U.S.C. § 922(g)(1). ACCA imposes a fifteen- year mandatory minimum sentence on violators of Section 922(g)(1) if they have three previous qualifying felonies. Because Miles has two other qualifying felonies, Miles’s eligibility for ACCA’s mandatory minimum turns on whether his Florida con- viction for unlawful possession of a listed chemical is a “serious drug offense” because it “involv[es] manufacturing . . . a controlled substance.” See id. § 924(e)(2)(A)(ii). The district court counted the Florida conviction and sentenced Miles to the mandatory mini- mum sentence. We disagree. We have held that an offense is a “serious drug offense” under Section 924(e)(2)(A)(ii) if it proscribes one of the kinds of conduct listed in that section, i.e., “manufacturing,

* Honorable J. P. Boulee, United States District Judge for the Northern District

of Georgia, sitting by designation. USCA11 Case: 21-12609 Document: 44-1 Date Filed: 07/31/2023 Page: 3 of 21

21-12609 Opinion of the Court 3

distributing, or possessing with intent to manufacture or distrib- ute.” United States v. Penn, 63 F.4th 1305, 1316 (11th Cir. 2023). But possessing a listed chemical with reasonable cause to believe it will be used to manufacture is not itself “manufacturing.” Likewise, this offense does not “involv[e] manufacturing” as we have previously defined that term. An offense “involv[es] manufacturing” if it “nec- essarily entail[s]” the conduct of manufacturing, see, e.g., United States v. Smith, 983 F.3d 1213, 1223 (11th Cir. 2020) (quoting Shular v. United States, 140 S. Ct. 779, 783-84 (2020)), but the elements of the crime of unlawful possession of a listed chemical do not “nec- essarily entail” the conduct of manufacturing. Possessing one in- gredient to make a controlled substance with “reasonable cause to believe” that some person will use it to manufacture a controlled sub- stance is too far removed from the conduct of manufacturing itself to satisfy the “necessarily entail[s]”