Under 18 U.S.C. § 924(e)(2)(A)(ii), the term “serious drug offense” is defined in relevant part as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” (Emphasis added).
In order to determine whether a prior conviction constitutes a “serious drug offense,” the Supreme Court in McNeill v. United States, 131 S. Ct. 2218, 180 L. Ed. 2d 35 (2011) explained that "[t]he plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant's previous drug offense at the time of his conviction for that offense." Under this holding, if an applicable prior drug conviction was punishable by ten years or more at the time of the offense, then it would count as a "serious drug offense" and help trigger the ACCA.
So how does State v. McAdam fit into all of this?
If you remember State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), you probably see where I'm going with this. In McAdam, the KSC held that the Kansas severity level 1 drug offense of manufacturing methamphetamine (K.S.A. 65-4159[a] [repealed]) was identical to the severity level 3 drug offense of compounding methamphetamine (K.S.A. 65-4161[a] [repealed]). 277 Kan. at 146-47. Thus, under the identical offense doctrine, the court held: "we agree with McAdam's contention that 65–4161(a) and 65–4159(a) are identical and thus he can be sentenced only under the lesser penalty provision of 65–4161(a)." This overlapping language in the statutes was modified by the legislature on May 20, 2004. See K.S.A. 2005 Supp. 65-4161(a) (removing the word "compounding").
The McAdam holding effectively required any Kansas state manufacturing methamphetamine conviction, committed pre-May 20, 2004, to be sentenced as a Kansas severity level 3 drug offense. And as the KSC later clarified, the "McAdam rule" was not some new constitutional rule that retroactively applied, but rather it was a sentencing rule that pre-May 20, 2004 drug offenders should have received if the law was applied correctly at the time of their sentencing. See Bryant v. State, 280 Kan. 2, 10, 118 P.3d 685 (2005).
Application to Federal Sentencing
Looking back at the ACCA and federal sentencing, if a federal defendant is facing application of the fifteen-year mandatory minimum in 18 U.S.C. § 924(e) based on a prior Kansas conviction for manufacturing methamphetamine, you should look at the date of the prior offense. If it was before May 20, 2004, under the correct Kansas law at the time, the manufacturing offense should have been sentenced as a Kansas severity level 3 drug offense. And of course, the sentencing range for a Kansas severity level 3 drug offense at that time was far short of the ten-year maximum sentence needed to qualify as "serious drug offense" under 18 U.S.C. § 924(e)(2)(A)(ii). In contrast, any Kansas severity level 1 drug offense at the time would carry a sentence of at least 10 years imprisonment.