                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             NOV 19, 2008
                              No. 08-12237                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 07-00307-CR-VEH-PWG

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellant,

                                   versus

COURTNEY MAYS,

                                                           Defendant-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                            (November 19, 2008)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     The government appeals appellee Courtney Mays’s 51-month sentence for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

challenging the district court’s determination that Mays was not an armed career

criminal, pursuant to 18 U.S.C. § 924(e). The government argues that the district

court erred in deciding that Mays's prior Alabama convictions for first-degree

possession of marijuana for other than personal use were not "serious drug

offense[s]," for purposes of Armed Career Criminal Act (“ACCA”) enhancement.

Specifically, the government argues that, pursuant to our unpublished opinion in

United States v. Barnes, No. 06-14840 (11th Cir. June 6, 2008) (unpublished),

possession of marijuana for other than personal use is a serious drug offense under

the ACCA. It further argues that the plain meaning of possession of marijuana "for

other than personal use," under Ala. Code § 13A-12-213(a)(1), is possession for

someone else's use. The government contends that the intent to distribute may be

inferred from possession of a certain amount of drugs under both United States v.

James, 430 F.3d 1150, 1154-55 (11th Cir. 2005), and United States v.

Madera-Madera, 333 F.3d 1228, 1232-33 (11th Cir. 2003), as well as from

possession for other than personal use. Finally, the government argues that Mays

cannot invoke the rule of lenity because the Alabama statute is unambiguous.

      We review de novo whether a prior conviction is a serious drug offense

within the meaning of the ACCA. James, 430 F.3d at 1153. Section 922(g)



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prohibits possession of firearms by any person, who has been convicted of a crime

punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g).

Section 924 sets forth the penalties for § 922 violations. See 18 U.S.C. § 924. If a

defendant has three previous convictions for a violent felony or serious drug

offense, the defendant must be imprisoned for not less than 15 years (180 months).

18 U.S.C. § 924(e). A serious drug offense includes offenses “under State law,

involving manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance . . ., for which a maximum term of imprisonment

of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

       Pursuant to Ala. Code § 13A-12-213, a person commits the crime of

unlawful possession of marijuana in the first degree if: (1) marijuana is possessed

for other than personal use; or (2) marijuana is possessed for personal use after a

previous conviction for unlawful possession of marijuana in the second degree or

unlawful possession for personal use. Ala. Code § 13A-12-213. The offense is

punished as a Class C felony, with an imprisonment range of not more than ten

years, nor less than one year and one day. Ala. Code §§13A-5-6(a)(3), 13A-12-

213.

       After reviewing the record and reading the parties’ briefs, we conclude that

the district court erred in finding that Mays’s prior convictions for first-degree



                                           3
marijuana possession were not “serious drug offenses” for purposes of the ACCA.

As we recently held in United States v. Barnes, supra, possession of marijuana for

other than personal use necessarily implies intent to distribute marijuana for

someone else’s use. Because this offense categorically involves possession with

intent to distribute and is punishable by up to ten years of imprisonment, it is a

serious drug offense for purposes of the ACCA. Therefore, we conclude that the

district court should have adopted the sentencing guidelines calculation in the pre-

sentence report and should have imposed a sentence of at least 180 months of

imprisonment.

      Accordingly, we vacate Mays’s sentence and remand this case for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




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