SUPREME COURT OF THE UNITED STATES
_________________
Nos. 22–6389 and 22–6640
_________________
Justin Rashaad Brown, PETITIONER
22–6389
v.
United States
on writ of certiorari to the united states
court of appeals for the third circuit
Eugene Jackson, PETITIONER
22–6640
v.
United States
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[May 23, 2024]
Justice Jackson, with whom Justice Kagan
joins, and with whom Justice Gorsuch joins as to Parts I, II, and
III, dissenting.
The Court maintains that, “[s]tanding alone,”
the text of 18 U. S. C. §924(e)(2)(A)(ii) “does not
definitively answer” the question presented in these cases.
Ante, at 7. Instead, says the majority, we must look beyond
the text to precedent, statutory context, and purpose—which
apparently converge to persuade the majority that §924(e)(2)(A)(ii)
requires sentencing courts to apply the drug schedules in effect at
the time of a defendant’s prior state drug conviction when
determining the applicability of the 15-year mandatory minimum in
the Armed Career Criminal Act (ACCA). But the relevant text
does definitively answer the question presented here. And it
establishes that courts should apply the drug schedules in effect
at the time of the federal firearms offense that triggers ACCA’s
potential application. Nothing else—not precedent, context, or
purpose—requires a different result. Therefore, I respectfully
dissent.
I
A
As relevant here, ACCA imposes a 15-year
mandatory minimum for defendants who commit a violation of §922(g)
while having “three previous convictions . . . for
. . . a serious drug offense.” 18 U. S. C.
§924(e)(1). Notably, Congress did not leave unanswered the question
of
which prior state convictions qualify as “a serious drug
offense” for ACCA purposes. Rather, ACCA expressly defines the term
“serious drug offense” by direct reference to another federal law.
To qualify as a “serious drug offense,” the prior state crime must
be one “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)).” §924(e)(2)(A)(ii).
The dispute in these cases arises from the fact
that the meaning of the term “controlled substance”—as defined by
federal law—can, and frequently does, change. Under the Controlled
Substances Act, a controlled substance is “a drug or other
substance, or immediate precursor, included in schedule I, II, III,
IV, or V.” 21 U. S. C. §802(6). Those five schedules,
which are not contained in the statute itself, are lists of
substances that are “updated and republished on an annual basis” by
the Attorney General. §812(a). During this annual review, the
Attorney General may add or remove drugs from the schedules based
on various considerations, such as a drug’s “actual or relative
potential for abuse” or the “state of current scientific knowledge
regarding the drug.” §811(c); see also,
e.
g., 21 CFR
pt. 1308 (2023) (setting forth the most recent drug schedules).
Congress itself can also categorically remove substances from the
schedules. See,
e.
g., 21 U. S. C.
§802(16)(B) (excluding hemp from the schedules).
By directing that the term “controlled
substance” in ACCA be determined on the basis of the Controlled
Substances Act’s definition—which itself references the federal
drug schedules—Congress has opted to rely on a federal statute that
contains its own cross-reference to a dynamic list of prohibited
substances. ACCA’s “serious drug offense” definition thus
incorporates those oft-changing drug schedules by reference.
B
The majority and I are in full agreement that,
consequently, a sentencing court deciding whether to impose ACCA’s
15-year mandatory minimum for a violation of §922(g) must consult
those external drug schedules to determine whether the drug
“ ‘involv[ed]’ ” in a prior state offense is a controlled
substance under federal law. See
ante, at 1–2. Yet, somehow,
the majority concludes that the pertinent drug schedules for ACCA’s
sentencing exercise are those that were in effect when the prior
state drug crime occurred. In my view, a straightforward
application of the aforementioned statutory text plainly
establishes otherwise.
First of all, ACCA expressly defines “serious
drug offense,” §924(e)(2)(A), and “[w]hen a statute includes an
explicit definition, we must follow that definition,”
Burgess v.
United States,
553
U.S. 124, 130 (2008) (internal quotation marks omitted).
Congress could have defined “serious drug offense” based solely on
state law. It did not. Instead, Congress made clear that only state
drug crimes that involve substances that qualify as “controlled
substance[s]” under the Controlled Substances Act are sufficiently
serious to warrant ACCA’s penalty.
Second, the definition of “serious drug offense”
that appears in ACCA
cross-references the highly mutable
federal drug schedules—a drafting device that does particular work
in the legislative context. Consistent with the operation of
cross-references elsewhere, the cross-reference in ACCA’s “serious
drug offense” definition necessarily directs sentencing courts to
consult the current federal drug schedules—
i.e., those in
effect at the time of the federal offense for which the defendant
is being sentenced—rather than some earlier version of those
lists.
That is, quite simply, how cross-references
work. When it comes time to interpret a statute, courts typically
plug the referenced provision, as they find it, into the statutory
text. They do not consider, much less account for, any amendments
that might have taken place over the course of the referenced
provision’s existence. Nor does it matter that the referenced
statute is a separate pronouncement that has its own legislative
history and course of development.
Courts proceed in this straightforward
plug-and-play manner with respect to statutory cross-references
because “the presumed temporal application of a statute” is when
“the relevant activity that the [statute] regulates” occurs.
Landgraf v.
USI Film Products,
511 U.S.
244, 291 (1994) (Scalia, J., concurring in judgments). That
presumption applies with full force to any provisions
cross-referenced in a statute, because “incorporating one statute
or system of statutes into another . . . serves to bring
into the latter all that is fairly covered by the reference.”
Panama R. Co. v.
Johnson,
264
U.S. 375, 392 (1924). And what is fairly covered is the
referenced law as it exists when the statute’s application is
required. See
Landgraf, 511 U. S., at 291.
Until today, that had been our consistent
practice. See,
e.
g.,
Yellen v.
Confederated
Tribes of Chehalis Reservation, 594 U.S. 338, 344–348 (2021)
(applying the cross-referenced definition then in effect);
Astrue v.
Capato,
566 U.S.
541, 547–549 (2012) (same);
Carachuri-Rosendo v.
Holder,
560 U.S.
563, 566–570 (2010) (same);
Holder v.
Humanitarian
Law Project,
561 U.S.
1, 8–9 (2010) (same). When a statute contains a cross-reference
to another provision, we have always simply applied the version of
the other provision in effect at the time the cross-referenced
provision was needed, even if Congress amended that provision at
some point in the past.
Of course, this way of interpreting statutes
with cross-references means that a change in the referenced
provision has the effect of changing the statute that contains the
cross-reference. But that is a feature, not a bug, of statutory
cross-references. In fact, Congress often uses the cross-reference
device in a statute “
precisely because the [referenced
provision] may be amended.”
Herr-mann v.
Cencom Cable
Assoc., Inc., 978 F.2d 978, 983 (CA7 1992) (Easterbrook, J.)
(emphasis added). Far from being problematic, one useful feature of
a statutory cross- reference from the standpoint of the legislative
drafter is that it “permits the effect of a change in one section
to propagate to other, related, sections without rewriting all of
those related sections.”
Ibid.
That basic understanding of how cross-references
work easily resolves these cases. ACCA mandates that, for the
purpose of its “serious drug offense” definition, a “controlled
substance” must be determined in accordance with the Controlled
Substances Act, 18 U. S. C. §924(e)(2)(A)(ii), and the
Controlled Substances Act, in turn, looks to the substances on the
drug schedules, 21 U. S. C. §802(6). Congress’s
incorporation of the drug schedules by cross-reference in this
manner means that a sentencing court must plug in the drug
schedules as it finds them based on when “the relevant activity
that the [statute] regulates” occurs.
Landgraf, 511
U. S., at 291. For ACCA, as with other federal criminal
statutes, that means the court must apply the drug schedules in
effect when the defendant “commits the underlying conduct that
makes the offender liable.”
Dorsey v.
United States,
567 U.S.
260, 272 (2012).[
1]
To be sure, one consequence of this approach is
that, as the drug schedules change, so does the meaning of
“controlled substance” under ACCA. See
Herrmann, 978
F. 2d, at 983. But, again, Congress seems to have intended
that result, insofar as the statute it wrote pegs ACCA’s “serious
drug offense” definition to lists of substances that the Attorney
General is required to revisit on an annual basis. Indeed, Congress
presumably chose to cross-reference those drug lists (rather than
copying them directly into ACCA) precisely because of their dynamic
nature.
The fact that ACCA’s “serious drug offense”
definition uses the present tense, as the majority concedes, see
ante, at 16, further bolsters the conclusion that Congress
was consciously incorporating the annual updates that the federal
drug schedules embody. As we have previously recognized, “the
present tense generally does not include the past.”
Carr v.
United States,
560 U.S.
438, 448 (2010). If Congress had wanted to reference a past
version of the drug schedules, it easily could have indicated as
much in the text of ACCA. But Congress used the present tense
instead, directing sentencing courts to look to the meaning of
“controlled substance” in effect when a defendant commits the
federal crime requiring ACCA’s application, not at some previous
point in time.[
2]
II
The Government rejects the foregoing
description of how statutory cross-references operate. Tr. of Oral
Arg. 58 (expressing “disagree[ment] that the background rule is
that we always look to the contemporaneous referenced law”). The
Government insists that, instead of merely calling for insertion of
the referenced law, the appearance of a cross-reference in a
statute “raises a temporal question” that requires a court to
determine “which version of [the cross-referenced provision]
Congress intend[ed] to reference.”
Id., at 56. As the
Government sees it, every statutory cross-reference can thus have
“different temporal branches depending on context.”
Id., at
58; see also
ante, at 15 (appearing to adopt this temporally
flexible approach to cross-references).
That cannot be right. We have never viewed
statutory cross-references as a gateway to the multiverse. Cf.
Clark v.
Martinez,
543 U.S.
371, 382 (2005) (rejecting an approach that “would render every
statute a chameleon”). No case that I am aware of has ever asked
whether some past version of the statute applies when the court is
interpreting a provision that contains a cross-reference—and
neither the majority nor the Government cites any. In fact, our
actual practices establish the contrary. Whenever we have addressed
a statutory cross-reference, we have always taken the same
tried-and-true approach that we employ with respect to statutory
definitions: We plug in the referenced provision as it exists at
the moment the statute’s provisions become applicable. See Part
I–B,
supra.
Any other approach risks chaos. Again, Congress
often uses cross-references in statutes “precisely because the
[referenced provision] may be amended,” thereby allowing that
amendment “to propagate to other, related, sections without
rewriting all of those related sections.”
Herrmann, 978
F. 2d, at 983. The Government’s view would unsettle that
longstanding drafting convention, injecting uncertainty into what
Congress must do to amend statutes using cross-references. What is
more, if every cross-reference raised a question about which
version of the referenced statute applies—past or
present—interpretation of federal statutes with cross-references
would become entirely unworkable. Cross-references are legion in
the U. S. Code, and cross- referenced statutes are regularly
amended. Under the Government’s approach, every one of those
amendments would become a jump ball, inviting competing
interpretations about which version of the referenced statute
applies.
The Government claims that this disordered way
of applying cross-references stems from the so-called reference
canon, which sometimes directs courts to apply a past version of a
referenced statute. See Tr. of Oral Arg. 56, 58.[
3] But even if the reference canon applies
under these circumstances, it seems to cut against the Government’s
interpretation. The Government asserts that, because ACCA
references a specific section—“section 102 of the Controlled
Substances Act,” 18 U. S. C. §924(e)(2)(A)(ii)—the
reference canon “would suggest that the ACCA incorporated the
schedules as they existed in 1986, when the cross-reference was
enacted.” Brief for United States 42. But conspicuously missing
from this discussion (as well as the majority’s discussion of the
reference canon, see
ante, at 12–13) is the actual text of
the cross-referenced provision at issue in these cases, which comes
nowhere near incorporation of a static, historical list of
substances.
Instead, as explained above, ACCA’s “serious
drug offense” definition cross-references §102 of the Controlled
Substances Act, see 18 U. S. C. §924(e)(2)(A)(ii), and
under that provision, a “controlled substance” is “a drug or other
substance, or immediate precursor,
included in schedule I, II,
III, IV, or V,” 21 U. S. C. §802(6) (emphasis added).
This juxtaposition turns what appears to be a specific statutory
reference into a more general one, since it is impossible to
determine which substances fall under the statutory definition
without knowing what the five schedules contain. And because those
schedules are designed to change over time, it is hard to view
ACCA’s reference to the controlled substances definition of the
Controlled Substances Act as anything other than an instruction for
courts to consult “an external body of potentially evolving law”
and “adop[t] the law on that subject as it exists whenever a
question under the statute arises.”
Jam v.
International
Finance Corp., 586 U.S. 199, 209–210 (2019).
The upshot is that proper application of the
reference canon here leads to the same conclusion that I reached
above. The cross-reference in ACCA incorporates drug schedules that
are updated annually and does so in the present tense, thereby
requiring sentencing courts to merely plug in the drug schedules in
effect at the time of the defendant’s federal firearms
offense—
i.e., the relevant timeframe for the purpose of the
court’s interpretation of ACCA’s “serious drug offense”
language.
III
In rejecting the typical, straightforward
understanding of ACCA’s cross-reference, the majority pivots away
from the text of the statute entirely, and purportedly bases the
Court’s conclusion on “precedent and statutory context.”
Ante, at 7. Neither our precedents nor the context of this
statute actually compels a different conclusion than the text does,
for the reasons explained below.
A
To start, the majority misreads our precedent.
In
McNeill v.
United States,
563
U.S. 816 (2011), we considered how to determine whether a state
drug crime involved “a maximum term of imprisonment of ten years or
more” under state law. §924(e)(2)(A)(ii).
McNeill instructed
sentencing courts making this determination to undertake a
“backward-looking” inquiry by “consult[ing]” “the law under which
the defendant was convicted”—that is, “the version of state law
that the defendant was actually convicted of violating.” 563
U. S., at 820–821.
The majority contends that this same
“ ‘backward- looking’ ” approach should apply to the
federal drug schedules.
Ante, at 8 (quoting
McNeill,
563 U. S., at 820). But the federal drug schedules are not
“the law under which the defendant was convicted.”
Id., at
820. And of course
McNeill was “backward-looking”; any
inquiry into a defendant’s statute of conviction is necessarily so.
Here, both the Government and petitioners take as a given “the
version of state law that the defendant was actually convicted of
violating,” as
McNeill instructs.
Id., at 821. The
question presented in these cases—on which the parties disagree—is
how to evaluate whether that prior state-law conviction qualifies
as a “serious drug offense” under federal law.
In other words,
McNeill asked what state
crime the defendant committed, while today’s cases ask how ACCA
assesses that conviction. The latter is an entirely distinct
inquiry. And for all the reasons discussed above, the federal
benchmark that Congress has selected is not “backward-looking” in
the least—it rationally incorporates the currently applicable drug
schedules, not ones from the past. See Part I,
supra.
The majority’s opinion not only misconstrues
McNeill, it also flatly contradicts other precedents from
this Court outlining how to determine whether a prior state
conviction qualifies as an ACCA predicate. See,
e.g.,
Mathis v.
United States, 579 U.S. 500, 504 (2016);
Taylor v.
United States,
495
U.S. 575, 599–602 (1990). As the majority only scantly
mentions, to determine whether a state crime is a “serious drug
offense,” courts are not supposed to rely on the actual or alleged
facts related to the prior state drug crime. Rather, they ask “if
the State’s definition of the drug in question ‘matche[s]’ the
definition under federal law.”
Ante, at 2 (quoting
Shular v.
United States, 589 U.S. 154, 158 (2020);
alteration in original). We have referred to this matching process
as the “ ‘categorical approach.’ ”
Id., at 157
(quoting
Taylor, 495 U. S., at 600).
Under that methodology, “[a] court must look
only to the state offense’s elements, not the facts of the case or
labels pinned to the state conviction.”
Shular, 589
U. S., at 160. Thus, we do not ask how the State classified or
categorized the prior offense. Nor does it matter what type of drug
a defendant actually manufactured, possessed, or sold. Such facts
are “extraneous to the crime’s legal requirements,” and “ACCA, as
we have always understood it, cares not a whit about them.”
Mathis, 579 U. S., at 504. Properly applied, the
categorical approach mandates that a court’s sole focus must be on
identifying the state crime’s statutory elements and determining
whether they categorically match the ACCA predicate.
By appearing to fixate on the facts of
petitioners’ prior state drug offenses, the majority’s opinion thus
diverges from our precedents. For example, the majority puzzlingly
suggests that our standard methodology for assessing state crimes
in relation to federal law provides a loophole for these
petitioners, because “Brown and Jackson were themselves convicted
of crimes involving substances that are still on the federal
schedules, marijuana and cocaine, not hemp or [123I]ioflupane.”
Ante, at 10. But, again, the entire point of the categorical
approach is that courts may consider only the state crime’s
elements, not the substances actually involved in that crime, when
undertaking to determine whether the state crime matches the
federal standard.
This matters because ensuring adherence to the
categorical approach, which the majority fails to do here, serves
important objectives. We employ the categorical approach not only
because Congress commanded it, see
Taylor, 495 U. S.,
at 589, but also because it “avoids unfairness to defendants,”
Mathis, 579 U. S., at 512, who may not have sought to
have the state records accurately reflected the details of the
crime they committed.
Suppose, for example, that Brown—whose
conviction was reportedly for marijuana—was, in fact, prosecuted by
the State for conduct involving hemp, as some defendants were. See,
e.
g.,
Commonwealth v.
Harrelson,
14 S.W.3d 541, 544 (Ky. 2000); see also
New Hampshire Hemp
Council, Inc. v.
Marshall,
203 F.3d 1, 5 (CA1 2000) (noting that “the threat of federal
prosecution [was] realistic” when hemp was still on the federal
schedules). The distinction between a conviction for a drug crime
involving marijuana versus one involving hemp could be a
significant one for purposes of a future firearms prosecution that
might trigger ACCA. But a defendant in Brown’s position would
likely have “no incentive to contest” that his conduct involved
hemp, not another form of marijuana, during the state prosecution
because that fact did “not matter under the law” at that time.
Mathis, 579 U. S., at 512. Indeed, he might well have
been “precluded from doing so by the [state] court.”
Ibid.
It is highly unlikely that such a defendant could even contemplate
that his state conviction would be relevant to a future ACCA
conviction, because most state crimes have “no significance under
federal law for years to come.”
Johnson v.
United
States,
544 U.S.
295, 305 (2005).
Unfairness arises without the categorical
approach, because such a defendant’s punishment would be
significantly increased under ACCA for a prior state crime
involving hemp simply due to his failure to anticipate, at the time
of his state convictions, a future change in the federal drug
schedules. The categorical approach responds to that unfairness by
relying exclusively on the elements of the state crime, rather than
the underlying facts of the crime.
So, as long as the drug substances expressly
prohibited by state law differ from those that the federal law
proscribes, then that state law is not a categorical match to
ACCA’s “serious drug offense” definition, and a conviction under
that statute cannot be used as an ACCA predicate. Here, however,
the majority suggests that the categorical mismatch is irrelevant
because, regardless, petitioners’ state crimes actually involved
types of drugs that have remained on the federal schedules during
all potentially pertinent time periods.
Ante, at 10. That
reasoning not only fails to follow our well-established
methodology, it also perpetuates the same unfairness that the
categorical approach is designed to mitigate.
B
The majority fares no better with statutory
context. The majority’s opinion points to ACCA’s other definition
of “serious drug offense,” 18 U. S. C. §924(e)(2)(A)(i),
which classifies certain
federal crimes as “serious drug
offenses.” That provision defines a “serious drug offense” as “an
offense under the Controlled Substances Act (21 U. S. C.
[§]801 et seq.), the Controlled Substances Import and Export
Act (21 U. S. C. [§]951 et seq.), or chapter 705 of
title 46 for which a maximum term of imprisonment of ten years or
more is prescribed by law.” §924(e)(2)(A)(i). As the majority
notes, this definition turns solely on “whether a defendant was
convicted and sentenced for such an offense, and a later change in
a federal drug schedule cannot change that fact.”
Ante, at 8
(footnote omitted). In the majority’s view, we should avoid
“treat[ing] . . . federal and state offenses
differently,” so the applicability of ACCA’s penalty to prior state
crimes, too, must be based simply on whether the federal drug
schedules matched state law at the time of the defendant’s prior
state conviction.
Ibid.
Whatever the merits of treating federal and
state offenses the same way might be, Congress did not draft ACCA
to achieve that result. When this Court previously addressed these
same two ACCA provisions in response to a similar argument, it
recognized that “the divergent text of the two provisions of the
serious-drug-offense definition . . . makes any
divergence in their application unremarkable.”
Shular, 589
U. S., at 164 (internal quotation marks omitted). Congress
certainly could have used the same classification metric for
federal and state priors—say, by classifying federal crimes as
“serious drug offenses” based on the particular controlled
substances involved, as it did with state crimes— but did not do
so. And we generally “ ‘presume differences in language
. . . convey differences in meaning,’ ” especially
“when the same Congress passed both statutes to handle much the
same task.”
Wisconsin Central Ltd. v.
United States,
585 U.S. 274, 279 (2018) (quoting
Henson v.
Santander
Consumer USA Inc., 582 U.S. 79, 86 (2017)). Congress’s choice
to phrase the two “serious drug offense” definitions in ACCA
differently “requires respect, not disregard.”
Wisconsin
Central, 585 U. S., at 279.
At any rate, unlike the first subsection of
ACCA’s “serious drug offense” definition, the second subsection
involves classifying state crimes
based on federal law—a
circumstance that, as I previously explained, requires the
categorical approach. See
supra, at 13–14. This means that
some federal-state discrepancy as to the kinds of crimes that are
deemed “serious drug offenses” is not at all surprising or unusual;
it is par for the course. See
Shular, 589 U. S., at
164.
To see why, consider one example. The Controlled
Substances Act provides that “it shall be unlawful for any person
knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” 21
U. S. C. §841(a)(1). We have previously recognized that
“the statute’s word ‘knowingly’ . . . appl[ies] to all
the subsequently listed elements of the crime” in this provision,
meaning that the Government must prove that a defendant knew he was
dealing with a controlled substance.
Flores-Figueroa v.
United States,
556 U.S.
646, 650 (2009). State law, by contrast, does not always
include such a knowledge requirement. See
United States v.
Smith, 983 F.3d 1213, 1223 (CA11 2020). We have nonetheless
recognized that ACCA applies differently to state and federal drug
crimes on this basis. See
Shular, 589 U. S., at
164.
Thus, the ultimate question is not whether ACCA
requires consistency between the classification of federal and
state crimes, as the majority suggests. Instead, given some
inevitable inconsistency between state and federal law, our inquiry
is “which form of consistency Congress intended.”
Id., at
165. Here, Congress’s use of an express cross-reference to the
Controlled Substance Act’s mutating drug schedules in the
state-crime definition—coupled with its omission of such a
cross-reference in the federal-crime definition—indicates that
inconsistency based on drug type was not only anticipated but
intended.
In short, the presence of a differently worded
§924(e)(2)(A)(i) does not overcome the plain meaning of
§924(e)(2)(A)(ii).
IV
Finally, the majority contends that its
reading “best fulfills ACCA’s statutory objectives.”
Ante,
at 9. But that assertion fails to appreciate ACCA’s actual goals.
Congress has plainly designated serious drug offenses in a
defendant’s criminal history as triggers for ACCA’s 15-year
mandatory minimum for a reason—because the seriousness of the
defendant’s prior drug-related history is indicative of that
defendant’s future dangerousness, given the present firearms
offense. The majority’s analysis falters because it does not, and
frankly cannot, explain how future dangerousness is best assessed
by reference to outdated drug schedules.
Congress indisputably enacted ACCA to
incapacitate what it viewed to be a class of especially dangerous
defendants—“the eponymous ‘armed career criminal.’ ”
Wooden v.
United States, 595 U.S. 360, 375 (2022).
The 15-year mandatory minimum that ACCA imposes is among the
harshest mandatory penalties in the Federal Criminal Code, and “the
length of the mandatory minimum was set at 15 years” specifically
“to incapacitate the armed career criminal for the rest of the
normal time span of his career[,] which usually starts at about age
15 and continues to about age 30.” S. Rep. No. 97–585,
p. 7 (1982). This means that ACCA is not a simple recidivist
statute that merely tallies up past offenses, as the majority
suggests, see
ante, at 10–11, thereby imposing a drastically
increased penalty for illegal firearms possession based on a “once
a criminal, always a criminal” perspective. Rather, Congress
designed ACCA to help courts identify a certain category of
defendants—those who, having a particular kind of criminal history
and now unlawfully possessing a gun, pose such a distinct risk of
future dangerousness that a lengthy term of incapacitation is
warranted.[
4]
“In order to determine which offenders fall into
this category,” ACCA directs a sentencing court to conduct a review
of a defendant’s “past crimes” under state law, looking for violent
felonies or serious drug offenses, “because . . .
criminal history is relevant . . . to the kind or degree
of danger the offender would pose were he to possess a gun.”
Begay v.
United States,
553 U.S.
137, 146 (2008). But, importantly, ACCA does not deem
every state crime a predicate for the 15-year mandatory
minimum. Instead, the statute specifies certain categories of
crimes that trigger application of the prescribed penalty, due to
the “prior crime’s relevance to the possibility of future danger
with a gun.”
Ibid.
ACCA’s focus on incapacitating certain
defendants based on their potential future dangerousness makes it
entirely sensible that the statute directs courts to identify
“serious drug offense[s]” (as well as “violent felon[ies]”) in a
defendant’s background. 18 U. S. C. §924(e)(1). What does
not make sense is the majority’s suggestion that ACCA requires the
extended incapacitation of defendants based on past criminal
conduct that federal law does not deem serious today. In other
words, if the point of ACCA is the incapacitation of certain
defendants—those whose histories of serious criminality indicate a
propensity to commit future dangerous crimes in light of their
unlawful possession of a weapon—how does a record that contains
past crimes involving drugs that are no longer controlled
substances help to identify especially dangerous defendants? It
does not.
In reality,
that goal is achieved only by
determining whether a defendant’s past crimes are considered
serious by today’s standards. The federal drug schedules are
specifically updated to account for current views of dangerousness.
See Part I–A,
supra. And a drug’s removal from those
schedules reflects a determination that the drug is no longer
deemed dangerous based on criteria such as “[i]ts actual or
relative potential for abuse” and “[t]he state of current
scientific knowledge regarding the drug.” 21 U. S. C.
§811(c). Accordingly, ACCA is best interpreted as referencing the
drug schedules that are effective as of the date of the commission
of the gun crime that triggers ACCA’s applicability, rather than
those that would have signaled seriousness at some prior time.
“Indeed, it would be illogical to conclude that federal sentencing
law attaches ‘culpability and dangerousness’ to an act that
. . . Congress has concluded is
not culpable and
dangerous.”
United States v.
Bautista, 989 F.3d 698,
703 (CA9 2021) (Fletcher, J.).
Meanwhile, the majority’s view misses the mark
that Congress set for ACCA’s sentencing scheme in another respect
as well: It leaves out many defendants who
do warrant
incapacitation for dangerousness—those who have prior convictions
for trafficking drugs that were scheduled as controlled substances
by the time their §922(g) offenses were committed but were not on
the federal drug schedules when their prior state convictions
occurred. The majority concedes that its interpretation would
exclude from ACCA’s “serious drug offense” definition state drug
crimes that occur when “States . . . criminalize drugs
before the Federal Government does so.”
Ante, at 19. This
happens not infrequently, such as when a State criminalizes new,
cutting-edge drugs. See,
e.g., ibid. (discussing the
criminalization of bath salts and methoxetamine by States before
the Federal Government); see also Brief for Petitioner Jackson
34–35 (citing other examples); Brief for Petitioner Brown 17
(same).
Under the majority’s approach, ACCA’s intended
assessment of future dangerousness via the consideration of past
state drug crimes would not apply to defendants if their prior
state convictions took place before the drugs they trafficked were
federally scheduled. But under the statutory scheme Congress
actually adopted, there is no reason a defendant’s early engagement
with dangerous new drug substances criminalized by state law should
not qualify as ACCA predicates, especially since the federal drug
schedules are frequently updated to account for precisely this sort
of newfound danger, consistent with ACCA’s broader approach.
Ultimately, then, for all its talk of statutory
goals, the majority’s opinion elides the true purpose of ACCA’s
mandatory minimum scheme in multiple ways. It also downplays the
means Congress adopted to advance its incapacitation objectives, by
essentially ignoring the link the statute draws between potential
future dangerousness, as partially evidenced by the seriousness of
a defendant’s past drug activity, and the need for lengthy
incapacitation, which the statute provides. Breezing past these key
nuances, the majority simply announces its own apparent view that
“[a] prior drug conviction for an offense punishable by 10 years’
imprisonment augurs a risk of future dangerousness even if the drug
is no longer considered dangerous.”
Ante, at 11.[
5]
* * *
At bottom, the majority’s reasoning appears to
reduce to a disagreement with Congress’s legislative judgment,
embodied in the text of the Controlled Substances Act, that a
change in the drug schedules is a change in the perceived
dangerousness of a drug that should have a material impact on the
determination whether incapacitation is warranted. See 21
U. S. C. §811(a). The Court’s ruling thus displaces
Congress’s decision to base ACCA’s 15-year mandatory penalty on the
evolving dangerousness determinations that the Controlled
Substances Act incorporates rather than on static impressions about
a defendant’s recidivist tendencies based solely on the fact that
they have previously committed crimes.
The majority’s contrary holding seems to reflect
its own policy view that “Brown’s and Jackson’s multiple
convictions” pose a significant risk of future dangerousness
“despite the technical changes to the federal drug schedules.”
Ante, at 11. But the choice of how to assess and address
dangerousness belongs first and foremost to Congress. And for the
reasons I have explained, Congress designed ACCA to take a
different approach—to measure future dangerousness by today’s drug
schedules, not outdated ones from the past. See Part I,
supra. One might harbor doubts that the sentencing policy
that Congress enacted is sensible, just, or effective. But it is
the one that Congress wrote, and we remain dutybound to apply the
law as written. In my view, the majority has failed to do so
here.