Brown v. United States

PRELIMINARY PRINT

Volume 602 U. S. Part 1

Pages 101–142

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OF

THE SUPREME COURT

May 23, 2024

Page Proof Pending Publication

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OCTOBER TERM, 2023 101

Syllabus

BROWN v. UNITED STATES

certiorari to the united states court of appeals for

the third circuit

No. 22–6389. Argued November 27, 2023—Decided May 23, 2024*

These cases concern the application of the Armed Career Criminal Act to

state drug convictions that occurred before recent technical amend-

ments to the federal drug schedules. ACCA imposes a 15-year manda-

tory minimum sentence on defendants who are convicted for the illegal

possession of a frearm and who have a criminal history thought to dem-

onstrate a propensity for violence. As relevant here, a defendant with

“three previous convictions” for “a serious drug offense” qualifes for

ACCA's enhanced sentencing. 18 U. S. C. § 924(e)(1). For a state crime

to qualify as a “serious drug offense,” it must carry a maximum sentence

of at least 10 years' imprisonment, and it must “involv[e] . . . a controlled

substance . . . as defned in section 102 of the Controlled Substances

Act.” §§ 924(e)(1), (2)(A)(ii).

Under the categorical approach, a state drug offense counts as an

Page Proof Pending Publication

ACCA predicate only if the State's defnition of the drug in question

“matche[s]” the defnition under federal law. Shular v. United States,

589 U. S. 154, 158. The question presented is whether a state crime

constitutes a “serious drug offense” if it involved a drug that was on the

federal schedules when the defendant possessed or traffcked in it but

was later removed.

Petitioners Justin Rashaad Brown and Eugene Jackson were sepa-

rately convicted of the federal crime of possession of a frearm by a

convicted felon in violation of § 922(g)(1). In both cases, an ACCA en-

hancement was recommended based on prior state felony drug convic-

tions. And both defendants argued that their prior convictions did not

qualify as “serious drug offense[s].”

Brown's presentence report identifed several Pennsylvania drug con-

victions, including four convictions for possessing marijuana with intent

to distribute. At the time of Brown's marijuana convictions, the federal

and Pennsylvania law defnitions of marijuana matched. But while

Brown's federal § 922(g)(1) charge was pending, Congress modifed the

federal defnition of marijuana. Because the federal and state defni-

tions did not fully match when Brown was sentenced, Brown argued

*Together with No. 22–6640, Jackson v. United States, on certiorari to

the United States Court of Appeals for the Eleventh Circuit.

102 BROWN v. UNITED STATES

Syllabus

that his marijuana convictions no longer qualifed as “serious drug of-

fense[s]” for purposes of the ACCA sentencing enhancement.

Jackson's presentence report identifed several prior Florida convic-

tions, including convictions in 1998 and 2004 for possession and distribu-

tion of cocaine. In 2015, the Federal Government amended the federal

defnition of cocaine, so the federal and Florida defnitions no longer

matched when Jackson committed his § 922(g)(1) offense. Like Brown,

Jackson argued that these prior convictions no longer qualifed as “seri-

ous drug offense[s].” In both cases, the District Courts disagreed and

sentenced petitioners to enhanced sentences, and the respective appel-

late courts ultimately affrmed.

Held: A state drug conviction counts as an ACCA predicate if it involved

a drug on the federal schedules at the time of that offense. Pp. 108–123.

(a) The parties propose three different answers to the question

whether the federal and state defnitions of a drug must match when

the state crime is committed or at some later point in time. The Gov-

ernment argues that a prior state drug conviction qualifes if the federal

and state defnitions of the relevant drug matched when the defendant

committed the state crime. Jackson argues instead that the defnitions

must match when the defendant violates the federal felon-in-possession

Page Proof Pending Publication

statute. Finally, Brown contends that the defnitions must match when

the defendant is sentenced for the federal felon-in-possession offense.

Pp. 108–111.

(b) Precedent and statutory context support the Government's inter-

pretation. ACCA gauges what a defendant's “history of criminal activ-

ity” says about his or her “culpability and dangerousness.” McNeill v.

United States, 563 U. S. 816, 823. In previous cases, the Court has held

that ACCA requires sentencing courts to examine the law as it was

when the defendant violated it. This “backward-looking” approach,

id., at 820, supports the Government's interpretation. And the plain

language of the statute points to the same conclusion. Section

924(e)(2)(A)(i), which immediately precedes the provision at issue, de-

fnes a “serious drug offense” to include, among other things, “offense[s]

under the Controlled Substances Act.” A later change in a federal

drug schedule does not change the fact that an offense “under the

[CSA]” is a “serious drug offense.” The Government's interpretation

would treat state offenses “involving . . . a controlled substance (as de-

fned in [the CSA])” like those federal offenses “under the [CSA].” Peti-

tioners' interpretations, by contrast, would treat those federal and state

offenses differently, i. e., the federal offense would remain an ACCA

predicate, but the state offense would not. Pp. 111–113.

Cite as: 602 U. S. 101 (2024) 103

Syllabus

(c) The Government's interpretation also best fulflls ACCA's statu-

tory objectives. In Congress's view, defendants who have repeatedly

committed ACCA predicate offenses are “especially likely to infict

grave harm when in possession of a frearm,” so ACCA imposes a higher

punishment when they do so. Wooden v. United States, 595 U. S. 360,

375. Because a defendant's “history of criminal activity” does not

“cease to exist” merely because the crime was later redefned, McNeill,

563 U. S., at 823, it makes sense to ask whether a prior offense met

ACCA's defnition of seriousness at the time it was committed. Brown's

and Jackson's contrary arguments misunderstand the theory on which

ACCA is based. 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. Indeed, in McNeill, the

Court found “absurd” petitioner's argument that a later reduction in the

maximum sentence for his offense refected a legislative judgment that

his prior offense was less serious than previously thought. Id., at 822.

The “subsequent chang[e] in state law” did not “erase [the] earlier con-

viction.” Id., at 823. And it was the fact of that earlier conviction—

not the legislature's subsequent judgment—that ACCA was concerned

with, because that fact “demonstrate[d]” the defendant's “culpability

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and dangerousness.” Ibid. Pp. 113–115.

(d) Petitioners various other arguments are unpersuasive.

Pp. 115–123.

(1) Relying on the so-called reference canon, Jackson claims that

ACCA “incorporates [the] schedules . . . `as [they] exis[t] whenever a

question under [ACCA] arises.' ” Brief for Petitioner Jackson 32. The

reference canon provides that a statutory reference to a “general sub-

ject” incorporates “the law on that subject as it exists whenever a ques-

tion under the statute arises.” Jam v. International Finance Corp.,

586 U. S. 199, 209 (emphasis added). But a reference “to another stat-

ute by specifc title or section number”—such as ACCA's reference to

21 U. S. C. § 802—“in effect cuts and pastes the referenced statute as it

existed when the referring statute was enacted.” Ibid. Even assum-

ing that there may be contexts in which references to specifc statutory

provisions may be considered general, it is hard to see the phrase “as

defned in section 102 of the Controlled Substances Act” as anything but

a specifc reference. Jackson's alternative argument—that his reading

is required by the “settled legal principle” that “the law that sets

the penalty for a federal crime is the law in place when the crime was

committed”—simply begs the question what § 924(e)(2)(a)(ii) means.

Pp. 115–118.

104 BROWN v. UNITED STATES

Syllabus

(2) Brown suggests that present-tense language in ACCA's defni-

tion of a “serious drug crime”—language such as “involving” and “as

defned in”—indicates a present-day focus requiring courts to look to

the drug schedules in effect at the time of federal sentencing. The

Court rejected that approach in McNeill, holding that ACCA requires

a historical inquiry into the state law at the time of that prior offense

and that “[u]se of the present tense . . . d[id] not suggest otherwise.”

563 U. S., at 820. Brown also claims that his reading is required by

United States v. Schooner Peggy, 1 Cranch 103, 110, which says that

when the law changes while a case is in progress, the case must be

decided under the new law. But § 924(e)(2)(A)(ii) has not changed at

any point in the litigation. Pp. 119–120.

(3) Petitioners' additional arguments do not persuade. Petitioners

assert that this Court's interpretation is underinclusive because it would

preclude ACCA enhancements for state offenses involving drugs added

to the federal lists only after the state crimes were committed. But

none of the parties' interpretations captures all cases involving career

criminals. Petitioners next suggest that the Government's interpreta-

tion is absurd because it would exclude all state drug convictions before

the CSA's enactment in 1970. But there are reasons Congress might

have chosen not to court either federal or state drug convictions that

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occurred before 1970. Petitioners also argue that the Government's in-

terpretation would unduly burden courts and defendants by requiring

them to undertake the laborious task of digging up old federal drug

schedules and comparing those to the state laws the defendants violated,

but petitioners overstate the diffculty of this task. Finally, petitioners

contend that the rule of lenity counsels in favor of their interpretations.

But lenity applies only if a statute remains grievously ambiguous, and

here context, precedent, and statutory design adequately show “ `what

Congress intended.' ” United States v. Castleman, 572 U. S. 157, 173.

Pp. 121–123.

No. 22–6389, 47 F. 4th 147, and No. 22–6640, 55 F. 4th 846, affrmed.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,

and Thomas, Sotomayor, Kavanaugh, and Barrett, JJ., joined. Jack-

son, J., fled a dissenting opinion, post, p. 123, in which Kagan, J., joined,

and in which Gorsuch, J., joined as to Parts I, II, and III.

Jeffrey T. Green argued the cause for petitioner in No. 22–

6389. With him on the briefs were Tobias S. Loss-Eaton,

Peter A. Bruland, Heidi R. Freese, Ronald A. Krauss, Mer-

edith R. Aska McBride, and Naomi A. Igra. Andrew L.

Cite as: 602 U. S. 101 (2024) 105

Opinion of the Court

Adler argued the cause for petitioner in No. 22–6640. With

him on the briefs were Jeffrey L. Fisher, Pamela S. Karlan,

Easha Anand, and Davina T. Chen.

Austin L. Raynor argued the cause for the United States

in both cases. With him on the brief were Solicitor General

Prelogar, Acting Assistant Attorney General Argentieri,

Deputy Solici tor General Feig in, and Dav id M.

Lieberman.*

Justice Alito delivered the opinion of the Court.

These cases concern the application of the Armed Career

Criminal Act (ACCA) to state drug convictions that occurred

before recent technical amendments to the federal drug

schedules. ACCA imposes a 15-year mandatory minimum

sentence on defendants who are convicted for the illegal pos-

session of a frearm and have a criminal history that is

thought to demonstrate a propensity for violence. These

defendants are subject to ACCA's enhanced penalty if,

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among other things, they have “three previous convictions”

for “a serious drug offense.” 18 U. S. C. § 924(e)(1). For a

state crime to qualify as a “serious drug offense,” it must

carry a maximum sentence of at least 10 years' imprison-

ment, and it must “involv[e] . . . a controlled substance . . .

as defned in section 102 of the Controlled Substances Act”

(CSA). §§ 924(e)(1), (2)(A)(ii). The CSA, in turn, includes

fve schedules of controlled substances and provides that

these schedules must be updated each year by the Attorney

General. 84 Stat. 1245, 1247, 21 U. S. C. §§ 811, 812.

*Briefs of amici curiae urging reversal in No. 22–6640 were fled for

the Clause 40 Foundation by Douglas E. Litvack; and for FAMM by Chris-

topher G. Michel, Mary Price, and Peter Goldberger.

Christopher G. Michel, Mary Price, and Peter Goldberger fled a brief

for FAMM as amicus curiae urging affrmance in No. 22–6389.

Briefs of amici curiae in both cases were fled for the National Associa-

tion of Criminal Defense Lawyers by Daniel E. Jones and David Oscar

Markus; and for the National Association of Federal Defenders by Ginger

D. Anders, Keith M. Donoghue, Judith H. Mizner, and Daniel Habib.

106 BROWN v. UNITED STATES

Opinion of the Court

The two cases now before us present the question whether

a state crime constitutes a “serious drug offense” if it in-

volved a drug that was on the federal schedules when the

defendant possessed or traffcked in it but was later re-

moved. We hold that such an offense qualifes.

I

A

In 2016, Justin Rashaad Brown sold cocaine to police off-

cers in a series of controlled buys. The offcers conducted

two warrant-authorized searches of Brown's home, where

they discovered cocaine and a loaded .38-caliber revolver.

In 2018, a federal grand jury returned an indictment charg-

ing Brown with several drug offenses, as well as possession

of a frearm by a convicted felon in violation of 18 U. S. C.

§ 922(g)(1). Brown pleaded guilty in 2019 and was sen-

tenced two years later.

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At sentencing, the probation offce recommended that

Brown receive ACCA's mandatory minimum sentence be-

cause he had four prior Pennsylvania convictions for possess-

ing marijuana with intent to distribute between 2009 and

2014, as well as one Pennsylvania conviction for distributing

cocaine in 2008. Brown disputed this interpretation of

ACCA and argued that his marijuana convictions did not “in-

volv[e] . . . a controlled substance . . . as defned in [the

CSA].” § 924(e)(2)(A)(ii).

A state drug offense counts as an ACCA predicate only if

the State's defnition of the drug in question “matche[s]” the

defnition under federal law. Shular v. United States, 589

U. S. 154, 158 (2020). When Brown was convicted for pos-

sessing marijuana, both federal and Pennsylvania law de-

fned marijuana to include “all parts of the plant Cannabis

sativa L.,” so the defnitions were a categorical match. 21

U. S. C. § 802(16) (2006 ed.); Pa. Stat. Ann., Tit. 35, § 780–

102(b) (Purdon Cum. Supp. 2012) (defning marijuana to

include “all forms, species and/or varieties of the genus Can-

Cite as: 602 U. S. 101 (2024) 107

Opinion of the Court

nabis sativa L.”). But while Brown's federal charge was

pending, Congress enacted the Agriculture Improvement

Act of 2018, which exempted some hemp, a variety of Canna-

bis sativa L., from the federal defnition of marijuana. Pub.

L. 115–334, § 12619(a)(2), 132 Stat. 5018.1 Because the fed-

eral and state defnitions did not fully match when Brown

was sentenced, he argued that his marijuana convictions no

longer qualifed as “serious drug offense[s].”

The District Court disagreed and sentenced him under

ACCA, and the Third Circuit affrmed. It concluded that

the 2018 amendment did not apply retroactively to federal

offenses committed before its effective date. Under the

Third Circuit's view, Brown was “properly subject to . . .

ACCA's enhanced penalties” because he violated § 922(g)

when the federal and state defnitions of marijuana were a

categorical match. 47 F. 4th 147, 153, 155 (2022).

B

Page

In 2017, Proof Pending

Eugene Jackson Publication

noticed a police car arriving at

the Sparkle Food Market to execute an unrelated search

warrant, and he responded by feeing and discarding a loaded

.45-caliber pistol. Offcers eventually identifed Jackson as

the gun's owner, and in 2019, he was charged with possession

of a frearm by a convicted felon. He pleaded guilty and was

sentenced in 2021.

Jackson's presentence report identifed several prior Flor-

ida convictions as ACCA predicates, including convictions in

1998 and 2004 for possession and distribution of cocaine.

But Jackson, like Brown, claimed that these convictions were

not for “serious drug offense[s].” When those crimes were

committed, the Federal Government and Florida defned co-

caine the same way. 21 U. S. C. § 812(c), Schedule II, (a)(4);

Fla. Stat. §§ 893.03(2)(a)(4), 893.13(1) (1998). But in 2015,

1

Hemp is exempted if it contains less than 0.3% THC (tetrahydrocan-

nabinol), the main psychoactive constituent of cannabis. See 7 U. S. C.

§ 1639o; 21 U. S. C. § 802(16).

108 BROWN v. UNITED STATES

Opinion of the Court

the Federal Government legalized a radioactive cocaine deriv-

ative called [123I]iofupane that is the active pharmaceutical in-

gredient in a drug used to diagnose patients who are suspected

to have Parkinson's disease. See Schedules of Controlled

Substances: Removal of [123I]Iofupane From Schedule II of

the Controlled Substances Act, 80 Fed. Reg. 54717. So when

Jackson committed his federal offense, the federal and Florida

defnitions were no longer a categorical match.

The District Court found that Jackson's prior convictions

qualifed as serious drug offenses and sentenced him to

ACCA's mandatory minimum. On appeal, the Eleventh Cir-

cuit initially disagreed and vacated Jackson's sentence. 36

F. 4th 1294, 1306 (2022). But a few months later, the panel

sua sponte vacated its opinion, ordered supplemental

briefng, and in a new opinion affrmed the District Court.

55 F. 4th 846, 862 (2022). The Eleventh Circuit reasoned

that a prior drug conviction is an ACCA predicate if the

Page Proof Pending Publication

state and federal defnitions of the drug matched when the

defendant committed the state offense. Id., at 854.

We granted Brown's and Jackson's petitions for a writ of

certiorari and consolidated the two cases. 598 U. S. –––

(2023). We now affrm.

II

A

These cases ask what 18 U. S. C. § 924(e)(2) means when it

refers to a prior state drug offense “involving . . . a controlled

substance . . . as defned in section 102 of the [CSA],” and spe-

cifcally, whether the federal and state defnitions of a drug

must match when the state crime is committed or at some later

point in time. The parties propose three different answers.

The Government argues that a prior state drug conviction

qualifes if the federal and state defnitions of the relevant

drug matched when the defendant committed the state

crime. Therefore, even if the federal and state defnitions

are different when a defendant violates the federal felon-in-

possession law or is sentenced under that law, earlier state

Cite as: 602 U. S. 101 (2024) 109

Opinion of the Court

convictions that occurred during the period when the federal

and state defnitions were the same nevertheless qualify as

“serious drug offense[s].”

Jackson, by contrast, argues that the federal and state

defnitions must match when the defendant violates the fed-

eral felon-in-possession statute. In his view, it does not

matter whether the federal and state laws both criminalized

the relevant drug when a defendant possessed or traffcked

in it. If the Federal Government later narrows its defnition

of that drug, no state conviction under the broader defnition

counts against a defendant who later commits the federal

frearm offense.

This interpretation would mean that Jackson's two cocaine

convictions are no longer “serious drug offense[s]” because,

years later, the Federal Government narrowed the defnition

of cocaine in the federal schedules to legalize a Parkinson's

drug derived from cocaine. In fact, under Jackson's and the

dissent's interpretation, no Florida cocaine convictions ob-

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tained before July 1, 2017, when Florida also legalized the

derivative, would count. See 2017 Fla. Laws ch. 2017–110.

That would be true even for convictions involving the posses-

sion or distribution of huge shipments of cocaine base.2 And

as other courts have noted, cocaine convictions under the

laws of many other States would likewise be affected. See,

e.g., United States v. Perez, 46 F. 4th 691, 698–701 (CA8 2022)

(excluding an Iowa conviction under Jackson's theory);

United States v. Myrick, 2023 WL 2351693, *2 (ED Pa.,

Mar. 2, 2023) (excluding a Pennsylvania conviction).

These cocaine convictions would be excluded even though

it is highly unlikely that any were based on the possession

2

See, e.g., E. Johnson, A Sarasota Drug Sting Brings Results 10 Arrests,

and a Million-Dollar Supply of Cocaine Taken Off, Sarasota Herald-Trib-

une (Feb. 4, 2014), https://www.heraldtribune.com/story/news/2014/02/05/a-

sarasota-drug-sting-brings-results-10-arrests-and-a-million-dollar-supply-

of-cocaine-taken-off/29227445007; see also Judgment in State v. Gomez, No.

2014CF001404–004NC (12th Jud. C. C. Sarasota Cty., Fla., Oct. 8, 2015,

recorded Oct. 19, 2015).

110 BROWN v. UNITED STATES

Opinion of the Court

or sale of the Parkinson's drug. That derivative is radioac-

tive, so it can be produced only through a “highly technical

and complex synthetic route,” and the drug in which it

appears can be stored for no more than 24 hours. Dept.

of Justice, Drug Enforcement Admin., Offce of Diversion

Control, Schedule of Controlled Substances: Removal of

[123I]Iofupane From Schedule II of the Controlled Sub-

stances Act: Background, Data, and Analysis 5–6 (2015).

Furthermore, anyone attempting to become intoxicated

by using the drug would need to inject “nearly 6,000 vials,”

or “15 liters of fuid, a volume likely to cause death

if administered intravenously.” Id., at 2. Unsurprisingly,

the Federal Government has identifed “no case reports”

involving individuals who misused that drug, or any other

[123I]iofupane-containing product. Id., at 6.

Brown offers a third option. He contends that the federal

and state defnitions must match when the defendant is sen-

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tenced for the federal frearm offense. Under his interpre-

tation, it does not matter whether the two defnitions

matched when a defendant previously violated state law or

even when he or she committed the federal frearm offense.

As he sees it, if the federal authorities narrow the defnition

of a drug at any point before sentencing, the prior state con-

victions no longer count as ACCA predicates.

This interpretation would produce strange results in cases

involving long criminal investigations or prosecutions. In

this case, for example, Congress adopted the partial exemp-

tion of hemp nearly nine months after Brown was indicted,

and more than two years after he violated § 922(g). Under

his proposed interpretation, he is exempt from ACCA's man-

datory minimum only because his prosecution did not move

more quickly.

Indeed, Brown's interpretation could result in very differ-

ent sentences for co-defendants who committed the same

state marijuana offense on the same days and likewise com-

Cite as: 602 U. S. 101 (2024) 111

Opinion of the Court

mitted the felon-in-possession offense at the same time. But

see 18 U. S. C. § 3553(a)(6) (instructing sentencing courts to

“avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of

similar conduct”). Under Brown's interpretation, if one co-

defendant was sentenced on December 19, 2018, one day be-

fore the Agriculture Improvement Act was signed into law,

and the other was sentenced on December 21, the day after

enactment, ACCA's 15-year mandatory minimum would

apply to the frst but not the second.

B

We must decide which of these three proposed interpreta-

tions is correct. Standing alone, the operative phrase “in-

volving . . . a controlled substance (as defned in [the CSA])”

does not defnitively answer that question, but precedent and

statutory context show that the Government's interpretation

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is correct.

ACCA is a recidivist statute that gauges what a defend-

ant's “history of criminal activity” says about his or her “cul-

pability and dangerousness.” McNeill v. United States,

563 U. S. 816, 823 (2011). It does this through a “backward-

looking” examination, id., at 820, of “previous convictions”

that bear on dangerousness, § 924(e)(1). Thus, as we ex-

plained in McNeill, ACCA requires sentencing courts to ex-

amine the law as it was when the defendant violated it, even

if that law is subsequently amended. Id., at 820–822 (listing

cases examining the law at the time of the predicate offense).

In McNeill, the question was whether a prior state drug

conviction was for a crime that carried the maximum penalty

needed to qualify as a “serious drug offense,” i. e., imprison-

ment for 10 years or more. To answer that question, we

looked back to “the law under which the defendant was con-

victed” and concluded that a subsequent statutory amend-

ment reducing the maximum penalty below the 10-year

112 BROWN v. UNITED STATES

Opinion of the Court

threshold did not matter. Id., at 820. This “backward-

looking” approach supports the Government's interpreta-

tion here.

The plain language of 18 U. S. C. § 924(e)(2)(A)(i), the pro-

vision that immediately precedes the provision at issue here,

§ 924(e)(2)(A)(ii), points to the same conclusion. Section

924(e)(2)(A)(i) defnes a “serious drug offense” to include cer-

tain federal drug crimes, namely, “offense[s] under the Con-

trolled Substances Act (21 U. S. C. § 801 et seq.)” or two other

federal laws. (Emphasis added.) Any crime contained in

the CSA is an offense “under the [CSA].” The standard

“Judgment in a Criminal Case” used in federal courts indi-

cates whether a defendant was convicted and sentenced for

such an offense,3 and a later change in a federal drug sched-

ule cannot change that fact. The Government's interpreta-

tion would treat state offenses “involving . . . a controlled

substance (as defned in [the CSA])” like those federal of-

fenses “under the [CSA].” § 924(e)(2).

Page Proof Pending Publication

Petitioners' interpretations, by contrast, would treat those

federal and state offenses differently. Consider a defendant

who was caught distributing cocaine on back-to-back days,

was charged with a federal crime for the frst day's offense

and an identical state crime for the second, and was con-

victed of both before the 2015 amendment that deleted the

Parkinson's drug from the defnition of cocaine. Under peti-

tioners' interpretations, the federal offense would remain an

ACCA predicate, but the state offense would not, even

though the crimes and the statutes of conviction were other-

wise identical.

That is a very strange reading of §§ 924(e)(2)(A)(i) and (ii).

Both clauses refer to prior offenses relating to the CSA, and

in § 924(e)(2)(A)(i) Congress clearly indicated that past con-

duct that violated the CSA is probative of a defendant's “cul-

pability and dangerousness,” McNeill, 563 U. S., at 823, even

3

See https://www.uscourts.gov/sites/default/fles/ao245b.pdf.

Cite as: 602 U. S. 101 (2024) 113

Opinion of the Court

if the federal drug schedule is later amended. There is no

reason to think Congress reached a different judgment as to

petitioners' conduct merely because they had been convicted

under a state, rather than federal, statute. Indeed, it would

be unnatural to give back-to-back references to the CSA

starkly different interpretations. See, e. g., Brown v. Gard-

ner, 513 U. S. 115, 118 (1994); Ratzlaf v. United States, 510

U. S. 135, 143 (1994).4

C

The Government's interpretation also best fulflls ACCA's

statutory objectives. Congress's “general approach” in

ACCA was to single out “offenses of a certain level of

seriousness that involve violence or an inherent risk thereof,

and that are likely to be committed by career offenders.”

Taylor v. United States, 495 U. S. 575, 590 (1990). Because

defendants who have repeatedly committed ACCA predicate

offenses are “especially likely to infict grave harm when in

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possession of a frearm,” ACCA imposes a higher punishment

when they do so. Wooden v. United States, 595 U. S. 360,

375 (2022); United States v. Rodriquez, 553 U. S. 377, 385

(2008) (“[A] second or subsequent offense is often regarded

as more serious because it portends greater future danger

and therefore warrants an increased sentence for purposes

of deterrence and incapacitation”). A defendant's “history

of criminal activity” does not “cease to exist” merely because

4

Jackson argues that reading 18 U. S. C. § 924(e)(2) to refer to the past

would be inconsistent with other statutory references to the CSA that

“must incorporate the CSA schedules at the time of the federal offense.”

Brief for Petitioner Jackson 14. For example, he points to § 924(g)(3),

which criminalizes cross-border travel to obtain a frearm intended for use

in a state offense “relating to any controlled substance (as defned in [the

CSA]),” and § 342, which prohibits the operator of a common carrier from

operating under the infuence of “any controlled substance (as defned in

[the CSA]).” But those statutes focus entirely on present-day conduct,

while ACCA refers to “previous convictions.” § 924(e)(1). Because

ACCA is concerned with recidivism, it is not inconsistent to read it

differently.

114 BROWN v. UNITED STATES

Opinion of the Court

the crime was later redefned. McNeill, 563 U. S., at 823.

It therefore makes sense to ask, as the Government does,

whether a prior offense met ACCA's defnition of serious-

ness—and thus suggested future danger—at the time it

was committed.

Petitioners and the dissent disagree. As Brown puts it,

when the Federal Government “changes the federal drug

schedules,” it “necessarily conclude[s]” that the de-scheduled

substance “does not implicate the culpability or harm that

federal law previously attributed to it.” Reply Brief for

Petitioner Brown 1 (emphasis deleted). Of course, Brown

and Jackson were themselves convicted of crimes involving

substances that are still on the federal schedules, marijuana

and cocaine, not hemp or [123I]iofupane.5 But even setting

that aside, their argument misunderstands the theory on

which ACCA is based.

A prior drug conviction for an offense punishable by 10

years' imprisonment augurs a risk of future dangerousness

Page Proof Pending Publication

even if the drug is no longer considered dangerous. That is

because the conviction reveals that the defendant previously

engaged in illegal conduct that created a dangerous risk of

violence, either with law enforcement or with others operat-

ing in the same illegal feld. If left at large, such defendants

present a serious risk to public safety.

That risk “does not cease to exist” if the law under which

the defendant was convicted is later amended or eliminated.

McNeill, 563 U. S., at 823. For example, consider a person

who distributed alcohol during Prohibition. The later legal-

ization of alcohol did not by any means ensure that these

bootleggers would take up legitimate jobs. Instead, after

5

Latching onto this sentence, the dissent spends three pages accusing

us of departing from the categorical approach. Post, at 133–135 (opinion

of Jackson, J.). The dissent attacks a strawman. We agree that our

precedents require us to ask whether a defendant's prior conviction

matches ACCA's requirements. Post, at 133–134. The question here is

what ACCA requires.

Cite as: 602 U. S. 101 (2024) 115

Opinion of the Court

the end of Prohibition, many of them simply shifted to other

illegal enterprises. See S. Morison, The Oxford History of

the American People 901 (1965) (Prohibition led to “the

building up of a criminal class that turned to gambling and

drugs” after the Eighteenth Amendment was repealed).

Likewise, Brown's and Jackson's multiple convictions for se-

rious drug crimes are evidence that they may continue to

“ `commit a large number of fairly serious crimes as their

means of livelihood' ” in the future. Wooden, 595 U. S., at

375 (quoting Taylor, 495 U. S., at 587). And that risk re-

mains true despite the technical changes to the federal drug

schedules on which their arguments hang.

For this reason, the Court has previously rejected similar

arguments about ACCA's rationale. Like petitioners here,

the petitioner in McNeill argued that a later reduction in

the maximum sentence for his offense refected a legislative

judgment that his prior offense was less serious than pre-

viously thought. Brief for Petitioner, O. T. 2010, No. 10–

Page Proof Pending Publication

5258, pp. 15, 35. And this, he suggested, meant that the

offense should no longer be treated as “serious” under

ACCA. We termed that argument “absurd.” McNeill, 563

U. S., at 822. The “subsequent chang[e] in state law” did not

“erase [the] earlier conviction.” Id., at 823. And it was the

fact of that earlier conviction—not the legislature's subse-

quent judgment—that ACCA was concerned with, because

that fact “demonstrate[d]” the defendant's “culpability and

dangerousness.” Ibid.

III

Petitioners and the dissent make various other arguments,

but none is persuasive.

A

1

Jackson mainly relies on two interpretive tools. He be-

gins with the so-called reference canon. Brief for Petitioner

Jackson 31. This canon, he claims, means that ACCA “in-

116 BROWN v. UNITED STATES

Opinion of the Court

corporates [the] schedules . . . `as [they] exis[t] whenever a

question under [ACCA] arises.' ” Id., at 32 (quoting Jam v.

International Finance Corp., 586 U. S. 199, 209 (2019)).

“And,” he says, “the frst time a `question arises' under

ACCA is when a person commits [a] federal frearm offense.”

Brief for Petitioner Jackson 32.

The reference canon can be a helpful tool, but Jackson mis-

uses it. That canon provides that a statutory reference to a

“general subject” incorporates “the law on that subject as it

exists whenever a question under the statute arises.” Jam,

586 U. S., at 209 (emphasis added). But a reference “to an-

other statute by specifc title or section number”—such as

ACCA's reference to 21 U. S. C. § 802—“in effect cuts and

pastes the referenced statute as it existed when the refer-

ring statute was enacted, without any subsequent amend-

ments.” 586 U. S., at 209–210 (emphasis added). That part

of the reference canon undermines Jackson's position.

Page Proof Pending Publication

Jackson attempts to rescue his argument by asserting that

ACCA's mention of the CSA is actually a “general refer-

ence.” Reply Brief for Petitioner Jackson 15. To support

this argument, he cites cases that treat statutes as adopting

“the general law on [a] subject,” even though the statutes

“referred to” that general law “in terms of the sections of

the statutes in which it is to be found.” George Williams

College v. Williams Bay, 242 Wis. 311, 316, 317, 7 N. W. 2d

891, 894 (1943). But even if we assume that there may be

contexts in which references to specifc statutory provisions

may be considered “general,” see, e. g., Matter of Commit-

ment of Edward S., 118 N. J. 118, 134, n. 9, 570 A. 2d 917,

925, n. 9 (1990), it is hard to see the phrase “as defned in

section 102 of the Controlled Substances Act” as anything

but a specifc reference. 18 U. S. C. § 924(e)(2)(A)(ii).

And for reasons already set out, the “context” here does

not help Jackson. As we have explained, his reading would

treat a state offense involving a “controlled substance . . .

defned in [the CSA]” differently from a federal offense

Cite as: 602 U. S. 101 (2024) 117

Opinion of the Court

“under the [CSA],” even though both phrases make reference

to the same Act. Supra, at 112–113. That approach would

give defendants with prior state offenses the beneft of sub-

sequent amendments to the CSA but would ignore those

same amendments for prior federal offenses. In that con-

text, Jackson's reliance on the reference canon is clearly

unpersuasive.

Alternatively, Jackson says that his reading is required by

the “settled legal principle” that “the law that sets the pen-

alty for a federal crime is the law in place when the crime

was committed.” Brief for Petitioner Jackson 17 (citing

Dorsey v. United States, 567 U. S. 260, 272–273 (2012)). And

to show that this principle supports his reading of § 924(e)

(2)(A)(ii), he offers a series of hypotheticals involving amend-

ments to ACCA. Brief for Petitioner Jackson 18–20. Here

is one. If Congress deleted drug possession from the list of

“serious drug offense[s],” he argues, no one would think that

Page Proof Pending Publication

someone who “commit[ted] a federal frearm offense after

this change . . . would be subject to ACCA based on a prior

state conviction” for drug possession. Id., at 18. There-

fore, he maintains, the same should be true for amendments

to the schedules.

This argument begs the question that these cases present,

which is whether § 924(e)(2)(A)(ii) is amended with every

change in the drug schedules. Jackson imagines a version

of ACCA that plainly would not apply to a prior state offense

because that version would no longer list drug possession as

a “serious” offense, and he then reasons that the same result

should obtain here. But in his hypothetical, § 924(e) was

amended. Here, only the federal drug schedules were

changed. Jackson's argument that a change in the federal

drug schedules equates to a change in § 924(e)(2)(A)(ii) is

thus nothing more than his reference-canon argument

dressed in different garb. And for the reasons we have ex-

plained, we are convinced that the canon does not work in

the way he suggests.

118 BROWN v. UNITED STATES

Opinion of the Court

In all events, Jackson's emphasis on “the law in place when

the crime was committed” is a red herring. Section 924(e)

(2)(A)(ii) currently means that a prior state drug conviction

may constitute an ACCA predicate if the drugs on the fed-

eral and state schedules matched when the state drug of-

fense was committed. Thus, contrary to Jackson's sugges-

tion, treating his prior convictions as ACCA predicates is

entirely consistent with the “settled legal principle” that cur-

rent law “sets the penalty for a federal crime.” Id., at 17.

2

The dissent agrees with Jackson's interpretation but for

a different reason. It believes that all cross-references

“plug [in] the referenced provision” as it exists at the time

of the statute's interpretation. Post, at 126 (opinion of

Jackson, J.). Thus, ACCA's reference to the CSA must

incorporate “the current federal drug schedules—i.e., those

in effect at the time of the federal offense.” Post, at 125–

Page Proof Pending Publication

126.

The problem for the dissent is that none of the cases it

cites supports this proposition. See Yellen v. Confederated

Tr ibes of Chehalis Reservation, 594 U. S. 338, 344–348

(2021); Astrue v. Capato, 566 U. S. 541, 547–549 (2012);

Carachuri-Rosendo v. Holder, 560 U. S. 563, 566–570 (2010);

Holder v. Humanitarian Law Project, 561 U. S. 1, 8–9

(2010). For good reason: as we have explained, cross-

references sometimes refer to the law as it currently exists,

but they may also incorporate a referenced statute as it ex-

isted when the cross-reference was enacted. Supra, at 116.

Indeed, many of the dissent's cases stand for the unobjection-

able proposition that courts must carefully consider the text

and context of each statute before adopting a one-size-fts-

all approach to cross-references. See Herrmann v. Cencom

Cable Assoc., Inc., 978 F. 2d 978, 983 (CA7 1992) (attempting

to “do the least damage” to unravel “contradictory enact-

Cite as: 602 U. S. 101 (2024) 119

Opinion of the Court

ments”); United States v. Head, 552 F. 3d 640, 645 (CA7

2009) (rejecting a “categorical rule” for “statutory cross-

references”); United States v. Ho, 984 F. 3d 191, 202 (CA2

2020) (rejecting a reference-canon argument inconsistent

with plain language).

Following the approach laid out by the dissent's cases thus

brings us back to the question with which we started: What

is the best reading of ACCA's cross-reference in light of con-

text, precedent, and statutory purpose? Supra, at 111. For

the reasons we have explained, it is that a prior state drug

conviction constitutes an ACCA predicate if the drugs on the

federal and state schedules matched when the state drug

offense was committed.

B

We turn next to Brown's interpretation, which would re-

quire the state and federal defnitions to match when the

defendant is sentenced for a federal frearm offense. Brown

Page Proof Pending Publication

frst argues that his interpretation is grounded in ACCA's

text because it focuses on the “here-and-now import” of “his-

torical facts.” Brief for Petitioner Brown 8. Specifcally,

Brown notes that ACCA uses the “present participle of `in-

volve,' ” rather than “the past participle.” Reply Brief for

Petitioner Brown 2–3. And he suggests that the phrase

“ `as defned in' ” is likewise in the present tense. Id., at 3.

Unfortunately for Brown, we have already rejected this

textual argument.6 The petitioner in McNeill likewise ar-

gued that the present-tense language in ACCA's defnition

of a “serious drug offense” indicated a present-day focus.

563 U. S., at 820. Citing that language, he asked the Court

to require federal courts to “loo[k] to the state law in effect

at the time of the federal sentencing,” ibid., but we declined

6

The dissent makes a similar textual argument but does not grapple

with our reasoning in McNeill v. United States, 563 U. S. 816 (2011). See

post, at 128, and n. 2.

120 BROWN v. UNITED STATES

Opinion of the Court

to do so. Because “ACCA is concerned with convictions that

have already occurred,” we held that it requires a historical

inquiry into the state law at the time of that prior offense.

Ibid. And the “[u]se of the present tense . . . d[id] not sug-

gest otherwise.” Ibid.

McNeill's conclusion makes sense. Use of the present

tense, as opposed to the past, was likely a stylistic rather

than a substantive choice. Around the time of ACCA's en-

actment, legislative drafters were instructed, “[w]henever

possible,” to “use the present tense (rather than the past

or future).” House Offce of the Legislative Counsel, Style

Manual; Drafting Suggestions for the Trained Drafter

§ 102(c), p. 2 (1989); see also D. Hirsch, Drafting Federal Law

§ 5.6, p. 45 (2d ed. 1989) (“Various commentators on drafting

have tried, over the years, to persuade drafters to use the

present tense . . . ”). So, at least in the instant context, we

cannot place too much weight on the use of the present tense

as opposed to the past.

Page Proof Pending Publication

Brown also claims that his reading is required by United

States v. Schooner Peggy, 1 Cranch 103 (1801), which says

that when the law changes while a case is in progress, the

case must be decided under the new law.7 Id., at 110. But

that principle does nothing to advance Brown's position.

Section 924(e)(2)(A)(ii) has not changed at any point in the

litigation, from the time petitioners committed their federal

offenses until today. Then, as now, under § 924 past state

drug possession offenses may qualify as ACCA predicates

if the federal and state schedules matched when the state

crimes occurred.

7

Brown also likens his interpretation to the “ordinary practice” of

applying Guidelines sentencing enhancements as they exist at sentencing.

Tr. of Oral Arg. 4. But there is reason to doubt that the Guidelines prac-

tice is relevant here. That is because Congress has expressly directed

courts to apply the Guidelines “in effect on the date the defendant is

sentenced.” 18 U. S. C. § 3553(a)(4)(A)(ii). ACCA contains no similar

instruction.

Cite as: 602 U. S. 101 (2024) 121

Opinion of the Court

C

We conclude by addressing some additional arguments

advanced by both petitioners. First, they assert that

our interpretation should be rejected because it is under-

inclusive—specifcally, because it would preclude ACCA en-

hancements for state offenses involving drugs added to the

federal lists only after the state crimes were committed.

But none of the parties' interpretations captures all cases

involving career criminals. Indeed, Brown and Jackson are

themselves asking to be exempted from ACCA's reach even

though they both have a history of dealing drugs that remain

prohibited by federal law.

Second, petitioners suggest that the Government's inter-

pretation is absurd because it “would exclude from ACCA's

reach all state drug convictions from before 1970” when the

CSA was enacted. Brief for Petitioner Jackson 33; accord,

Brief for Petitioner Brown 16. But whether or not this con-

Page Proof Pending Publication

sequence is desirable, it is not absurd.

We can easily see a reason why Congress might have cho-

sen not to count either federal or state drug convictions that

occurred before 1970. Before that time, “Congress ha[d]

enacted more than 50 pieces of legislation relating to . . .

dangerous drugs,” and this had “given rise to a confusing

and often duplicative approach to . . . enforcement.” H. R.

Rep. No. 91–1444, pt. 1, p. 6 (1970). The CSA was designed

to replace these scattered provisions “with a single compre-

hensive statute.” Cong. Research Serv., L. Sacco, Drug En-

forcement in the United States: History, Policy, and Trends

5 (2014). It was reasonable for Congress to peg ACCA's

penalties to that new comprehensive regulatory scheme

rather than requiring courts to grapple with the welter of

federal drug laws that previously existed.

Petitioners argue that the Government's interpretation

would unduly burden courts and defendants by requiring

them to undertake the laborious task of digging up old fed-

eral drug schedules and comparing those to the state laws

122 BROWN v. UNITED STATES

Opinion of the Court

the defendants violated. But the diffculty of this task is

overstated. Most drug convictions concern just a few

drugs, and the federal and state defnitions of those drugs

do not often change. In the cases now before us, the

courts below had no apparent diffculty fnding the needed

information.

Finally, both petitioners contend that the rule of lenity

counsels us to adopt their interpretations. It does not.

Lenity applies only if a statute remains grievously ambigu-

ous after we have consulted “ `everything from which aid can

be derived.' ” Pugin v. Garland, 599 U. S. 600, 610 (2023)

(quoting Ocasio v. United States, 578 U. S. 282, 295, n. 8

(2016)). As we have explained, however, context, precedent,

and statutory design adequately show “ `what Congress in-

tended.' ” United States v. Castleman, 572 U. S. 157, 173

(2014) (quoting Barber v. Thomas, 560 U. S. 474, 488 (2010)).

In any event, neither Jackson's nor Brown's interpretation

Page Proof Pending Publication

would be preferable for all defendants. Both interpreta-

tions could hurt defendants who committed or were sen-

tenced for the felon-in-possession offense before the addition

of a drug to the federal schedules. As petitioners' own

briefs highlight, States sometimes criminalize drugs be-

fore the Federal Government does so. See Brief for Peti-

tioner Jackson 34–35; Brief for Petitioner Brown 17. For

instance, Florida banned the stimulant known as bath salts

10 months earlier than the Federal Government.8 And

Utah criminalized the hallucinogen methoxetamine nearly a

decade before the Federal Government followed suit. See

8

Florida Bans `Bath Salt' Drugs After Violent Outbursts, Sun Sentinel

(Jan. 27, 2011), https://www.sun-sentinel.com/2011/01/27/forida-bans-bath-

salt-drugs-after-violent-outbursts; Press Release, Dept. of Justice, Drug

Enforcement Admin., Chemicals Used in “Bath Salts” Now Under Federal

Control and Regulation (Oct. 21, 2011), https://www.dea.gov/press-

releases/2011/10/21/chemicals-used-bath-salts-now-under-federal-control-

and-regulation.

Cite as: 602 U. S. 101 (2024) 123

Jackson, J., dissenting

2013 Utah Laws ch. 88; Schedules of Controlled Substances:

Placement of Methoxetamine (MXE) in Schedule I, 87 Fed.

Reg. 34166 (2022). State convictions for those drugs that

predate the federal amendments would not count as ACCA

predicates under the Government's interpretation but

may under petitioners' interpretations. It would be odd

to use the rule of lenity to help petitioners but harm

others.

* * *

For these reasons, we hold that a state drug conviction

counts as an ACCA predicate if it involved a drug on the

federal schedules at the time of that offense. Accordingly,

we affrm the judgments of the Courts of Appeals.

It is so ordered.

Justice Jackson, with whom Justice Kagan joins, and

Page Proof Pending Publication

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 defnitively answer” the

question presented in these cases. Ante, at 111. Instead,

says the majority, we must look beyond the text to prece-

dent, statutory context, and purpose—which apparently con-

verge to persuade the majority that § 924(e)(2)(A)(ii) re-

quires 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 mini-

mum in the Armed Career Criminal Act (ACCA). But the

relevant text does defnitively answer the question presented

here. And it establishes that courts should apply the drug

schedules in effect at the time of the federal frearms offense

that triggers ACCA's potential application. Nothing else—

not precedent, context, or purpose—requires a different re-

sult. Therefore, I respectfully dissent.

124 BROWN v. UNITED STATES

Jackson, J., dissenting

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 defnes the term “seri-

ous 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 pos-

sessing with intent to manufacture or distribute, a controlled

substance (as defned in section 102 of the Controlled Sub-

stances 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 defned by

Page Proof Pending Publication

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

fve 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). Dur-

ing this annual review, the Attorney General may add or

remove drugs from the schedules based on various consider-

ations, such as a drug's “actual or relative potential for

abuse” or the “state of current scientifc knowledge regard-

ing 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 Sub-

Cite as: 602 U. S. 101 (2024) 125

Jackson, J., dissenting

stances Act's defnition—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 of-

fense” defnition thus incorporates those oft-changing drug

schedules by reference.

B

The majority and I are in full agreement that, conse-

quently, 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 deter-

mine whether the drug “ `involv[ed]' ” in a prior state offense

is a controlled substance under federal law. See ante,

at 105–106. 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

Page Proof Pending Publication

aforementioned statutory text plainly establishes otherwise.

First of all, ACCA expressly defnes “serious drug of-

fense,” § 924(e)(2)(A), and “[w]hen a statute includes an ex-

plicit defnition, we must follow that defnition,” Burgess v.

United States, 553 U. S. 124, 130 (2008) (internal quotation

marks omitted). Congress could have defned “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 suffciently serious to

warrant ACCA's penalty.

Second, the defnition of “serious drug offense” that ap-

pears 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” defnition necessarily directs sentenc-

ing courts to consult the current federal drug schedules—

126 BROWN v. UNITED STATES

Jackson, J., dissenting

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 fnd 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 refer-

enced provision's existence. Nor does it matter that the ref-

erenced statute is a separate pronouncement that has its own

legislative history and course of development.

Courts proceed in this straightforward plug-and-play man-

ner with respect to statutory cross-references because “the

presumed temporal application of a statute” is when “the

relevant activity that the [statute] regulates” occurs. Land-

graf v. USI Film Products, 511 U. S. 244, 291 (1994) (Sca-

lia, J., concurring in judgments). That presumption applies

Page Proof Pending Publication

with full force to any provisions cross-referenced in a stat-

ute, 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. John-

son, 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

defnition 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 al-

ways 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.

Cite as: 602 U. S. 101 (2024) 127

Jackson, J., dissenting

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 [refer-

enced provision] may be amended.” Herrmann v. Cencom

Cable Assoc., Inc., 978 F. 2d 978, 983 (CA7 1992) (Easter-

brook, 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, re-

lated, sections without rewriting all of those related sec-

tions.” Ibid.

That basic understanding of how cross-references work

easily resolves these cases. ACCA mandates that, for the

purpose of its “serious drug offense” defnition, a “controlled

substance” must be determined in accordance with the Con-

Page Proof Pending Publication

trolled 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 incor-

poration of the drug schedules by cross-reference in this

manner means that a sentencing court must plug in the drug

schedules as it fnds them based on when “the relevant activ-

ity 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

1

Brown argues that, as a sentencing statute, ACCA incorporates the

drug schedules that are in effect when a District Court gives legal effect

to its provisions—i.e., at the time of the federal sentencing. See ante, at

119. While Congress determined that the Sentencing Guidelines should

follow that approach, see 18 U. S. C. § 3553(a)(4)(A)(ii), we have recognized

that the so-called federal saving statute, 1 U. S. C. § 109, generally requires

128 BROWN v. UNITED STATES

Jackson, J., dissenting

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, in-

sofar as the statute it wrote pegs ACCA's “serious drug of-

fense” defnition to lists of substances that the Attorney Gen-

eral 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) pre-

cisely because of their dynamic nature.

The fact that ACCA's “serious drug offense” defnition

uses the present tense, as the majority concedes, see ante,

at 120, 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,

Page Proof Pending Publication

it easily could have indicated as much in the text of ACCA.

But Congress used the present tense instead, directing sen-

tencing courts to look to the meaning of “controlled sub-

stance” in effect when a defendant commits the federal crime

requiring ACCA's application, not at some previous point in

time.2

courts to apply the criminal statutes in effect at the time the defendant

committed the federal crime, see Dorsey, 567 U. S., at 272. Only Jackson's

approach is consistent with that precedent. See ante, at 109.

2

The majority attributes ACCA's use of the present tense to a mere

“stylistic” choice by Congress, relying primarily on a contemporaneous

legislative drafting manual as support for that conclusion. Ante, at 120.

But the wholly speculative suggestion that ACCA's drafters actually relied

on the cited manual's tense-related directives conveniently comes out of

nowhere. Moreover, to the extent the majority now believes that verb

tense is irrelevant when a court undertakes to interpret the text of a

statute, it has taken a strange and unwarranted departure from this

Court's ordinary interpretive practices. Before today, we have consist-

Cite as: 602 U. S. 101 (2024) 129

Jackson, J., dissenting

II

The Government rejects the foregoing description of how

statutory cross-references operate. Tr. of Oral Arg. 58 (ex-

pressing “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 in-

sertion 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 119 (ap-

pearing to adopt this temporally fexible approach to cross-

references).

That cannot be right. We have never viewed statutory

cross-references as a gateway to the multiverse. Cf. Clark

Page Proof Pending Publication

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 provi-

sion that contains a cross-reference—and neither the major-

ity nor the Government cites any. In fact, our actual prac-

tices 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 stat-

ently used all aspects of a statute's text to ascertain its meaning, including

the verbs that Congress chooses. See, e. g., Barton v. Barr, 590 U. S. 222,

236 (2020); Carr v. United States, 560 U. S. 438, 448 (2010); United States

v. Wilson, 503 U. S. 329, 333 (1992); Gwaltney of Smithfeld, Ltd. v. Chesa-

peake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). An objection to this

approach has surfaced only once before, in dissent. See Carr, 560 U. S.,

at 462–464 (opinion of Alito, J.) (relying on legislative drafting manuals

to suggest that the tense of the verbs in a statute was not relevant to the

provision's interpretation).

130 BROWN v. UNITED STATES

Jackson, J., dissenting

utory defnitions: We plug in the referenced provision as it

exists at the moment the statute's provisions become applica-

ble. See Part I–B, supra.

Any other approach risks chaos. Again, Congress often

uses cross-references in statutes “precisely because the [ref-

erenced 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 Gov-

ernment's approach, every one of those amendments would

Page Proof Pending Publication

become a jump ball, inviting competing interpretations about

which version of the referenced statute applies.

The Government claims that this disordered way of ap-

plying cross-references stems from the so-called reference

canon, which sometimes directs courts to apply a past ver-

sion of a referenced statute. See Tr. of Oral Arg. 56, 58.3

3

The reference canon has two strains, general and specifc. First,

“when a statute refers to a general subject, the statute adopts 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 (2019). Second,

when there is “a statute that refers to another statute by specifc title or

section number,” that cross-reference “in effect cuts and pastes the refer-

enced statute as it existed when the referring statute was enacted, with-

out any subsequent amendments.” Id., at 209–210; see also Hassett v.

Welch, 303 U. S. 303, 314 (1938). It is not clear that this latter, specifc

form of the canon even applies in the absence of uncertainty about what,

exactly, is being cross-referenced, such as “a facial defect with the cross-

reference or target statute being interpreted.” United States v. Head,

Cite as: 602 U. S. 101 (2024) 131

Jackson, J., dissenting

But even if the reference canon applies under these circum-

stances, it seems to cut against the Government's interpreta-

tion. The Government asserts that, because ACCA ref-

erences a specifc 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 conspicu-

ously missing from this discussion (as well as the majority's

discussion of the reference canon, see ante, at 115–116) 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 of-

fense” defnition cross-references § 102 of the Controlled Sub-

stances Act, see 18 U. S. C. § 924(e)(2)(A)(ii), and under that

provision, a “controlled substance” is “a drug or other sub-

stance, or immediate precursor, included in schedule I, II,

Page Proof Pending Publication

III, IV, or V,” 21 U. S. C. § 802(6) (emphasis added). This

juxtaposition turns what appears to be a specifc statutory

reference into a more general one, since it is impossible to

determine which substances fall under the statutory defni-

tion without knowing what the fve schedules contain. And

because those schedules are designed to change over time, it

is hard to view ACCA's reference to the controlled sub-

stances defnition of the Controlled Substances Act as any-

thing other than an instruction for courts to consult “an ex-

ternal 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).

552 F. 3d 640, 647 (CA7 2009) (collecting cases); see also United States v.

Ho, 984 F. 3d 191, 202 (CA2 2020) (forgoing “unnecessary resort to the

reference canon” and instead interpreting the statute consistent with its

plain language).

132 BROWN v. UNITED STATES

Jackson, J., dissenting

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

frearms offense—i. e., the relevant timeframe for the pur-

pose 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 111. Neither our precedents nor the context of this

statute actually compels a different conclusion than the text

does, for the reasons explained below.

Page Proof Pending

A Publication

To start, the majority misreads our precedent. In Mc-

Neill 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 111–112 (quoting McNeill, 563 U. S., at 820). But the

federal drug schedules are not “the law under which the de-

fendant was convicted.” Id., at 820. And of course Mc-

Neill was “backward-looking”; any inquiry into a defendant's

Cite as: 602 U. S. 101 (2024) 133

Jackson, J., dissenting

statute of conviction is necessarily so. Here, both the Gov-

ernment 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 qualifes as

a “serious drug offense” under federal law.

In other words, McNeill asked what state crime the de-

fendant committed, while today's cases ask how ACCA as-

sesses that conviction. The latter is an entirely distinct in-

quiry. 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 fatly contradicts other precedents from this Court out-

Page Proof Pending Publication

lining how to determine whether a prior state conviction

qualifes 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 men-

tions, 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 defnition of the drug in question

`matche[s]' the defnition under federal law.” Ante, at 106

(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 classifed or categorized

the prior offense. Nor does it matter what type of drug a

134 BROWN v. UNITED STATES

Jackson, J., dissenting

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 fxate 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]iofupane.” Ante, at 114. But, again, the entire point

Page Proof Pending Publication

of the categorical approach is that courts may consider only

the state crime's elements, not the substances actually in-

volved in that crime, when undertaking to determine

whether the state crime matches the federal standard.

This matters because ensuring adherence to the categori-

cal approach, which the majority fails to do here, serves im-

portant 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 refect 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

Cite as: 602 U. S. 101 (2024) 135

Jackson, J., dissenting

on the federal schedules). The distinction between a convic-

tion for a drug crime involving marijuana versus one involv-

ing hemp could be a signifcant one for purposes of a future

frearms prosecution that might trigger ACCA. But a de-

fendant 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 un-

likely that such a defendant could even contemplate that his

state conviction would be relevant to a future ACCA convic-

tion, because most state crimes have “no signifcance under

federal law for years to come.” Johnson v. United States,

544 U. S. 295, 305 (2005).

Unfairness arises without the categorical approach, be-

cause such a defendant's punishment would be signifcantly

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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 un-

fairness 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” defnition, and a conviction under that

statute cannot be used as an ACCA predicate. Here, how-

ever, 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 peri-

ods. Ante, at 114. 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.

136 BROWN v. UNITED STATES

Jackson, J., dissenting

B

The majority fares no better with statutory context. The

majority's opinion points to ACCA's other defnition of “seri-

ous drug offense,” 18 U. S. C. § 924(e)(2)(A)(i), which classifes

certain federal crimes as “serious drug offenses.” That pro-

vision defnes 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 maxi-

mum term of imprisonment of ten years or more is pre-

scribed by law.” § 924(e)(2)(A)(i). As the majority notes,

this defnition turns solely on “whether a defendant was con-

victed and sentenced for such an offense, and a later change

in a federal drug schedule cannot change that fact.” Ante,

at 112 (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,

Page Proof Pending Publication

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 defnition . . . makes

any divergence in their application unremarkable.” Shular,

589 U. S., at 164 (internal quotation marks omitted). Con-

gress certainly could have used the same classifcation 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

Cite as: 602 U. S. 101 (2024) 137

Jackson, J., dissenting

States, 585 U. S. 274, 279 (2018) (quoting Henson v. San-

tander Consumer USA Inc., 582 U. S. 79, 86 (2017)). Con-

gress's choice to phrase the two “serious drug offense”

defnitions in ACCA differently “requires respect, not disre-

gard.” Wisconsin Central, 585 U. S., at 279.

At any rate, unlike the frst subsection of ACCA's “serious

drug offense” defnition, the second subsection involves clas-

sifying state crimes based on federal law—a circumstance

that, as I previously explained, requires the categorical ap-

proach. See supra, at 134–135. 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 Sub-

stances Act provides that “it shall be unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or

Page Proof Pending Publication

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 ele-

ments of the crime” in this provision, meaning that the Gov-

ernment 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 differ-

ently 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 classifcation of federal and state

crimes, as the majority suggests. Instead, given some inev-

itable inconsistency between state and federal law, our in-

quiry is “which form of consistency Congress intended.”

Id., at 165. Here, Congress's use of an express cross-

138 BROWN v. UNITED STATES

Jackson, J., dissenting

reference to the Controlled Substance Act's mutating drug

schedules in the state-crime defnition—coupled with its

omission of such a cross-reference in the federal-crime def-

nition—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 fulflls

ACCA's statutory objectives.” Ante, at 113. But that as-

sertion 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 de-

fendant's prior drug-related history is indicative of that de-

fendant's future dangerousness, given the present frearms

Page Proof Pending Publication

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 man-

datory 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” spe-

cifcally “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 114–115,

thereby imposing a drastically increased penalty for illegal

frearms possession based on a “once a criminal, always a

criminal” perspective. Rather, Congress designed ACCA to

Cite as: 602 U. S. 101 (2024) 139

Jackson, J., dissenting

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 fu-

ture dangerousness that a lengthy term of incapacitation is

warranted.4

“In order to determine which offenders fall into this cate-

gory,” 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 . . . crimi-

nal 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 specifes

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

Page Proof Pending Publication

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 defend-

ant'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 incapaci-

tation of certain defendants—those whose histories of seri-

ous criminality indicate a propensity to commit future dan-

gerous crimes in light of their unlawful possession of a

weapon—how does a record that contains past crimes involv-

ing drugs that are no longer controlled substances help to

identify especially dangerous defendants? It does not.

4

“Of course, to say that Congress had reasons” to enact ACCA's sentenc-

ing scheme “is not to endorse those policy choices.” Consumer Financial

Protection Bureau v. Community Financial Services Assn. of America,

Ltd., 601 U. S. 416, 447 (2024) (Jackson, J., concurring).

140 BROWN v. UNITED STATES

Jackson, J., dissenting

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 specif-

cally updated to account for current views of dangerousness.

See Part I–A, supra. And a drug's removal from those

schedules refects 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 scien-

tifc 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 com-

mission 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 danger-

ousness' to an act that . . . Congress has concluded is not

culpable and dangerous.” United States v. Bautista, 989

Page Proof Pending Publication

F. 3d 698, 703 (CA9 2021) (Fletcher, J.).

Meanwhile, the majority's view misses the mark that Con-

gress set for ACCA's sentencing scheme in another respect

as well: It leaves out many defendants who do warrant inca-

pacitation for dangerousness—those who have prior convic-

tions for traffcking drugs that were scheduled as controlled

substances by the time their § 922(g) offenses were com-

mitted but were not on the federal drug schedules when

their prior state convictions occurred. The majority con-

cedes that its interpretation would exclude from ACCA's “se-

rious drug offense” defnition state drug crimes that occur

when “States . . . criminalize drugs before the Federal Gov-

ernment does so.” Ante, at 122. This happens not infre-

quently, 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 Fed-

eral Government); see also Brief for Petitioner Jackson 34–

35 (citing other examples); Brief for Petitioner Brown 17

(same).

Cite as: 602 U. S. 101 (2024) 141

Jackson, J., dissenting

Under the majority's approach, ACCA's intended assess-

ment 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 traf-

fcked were federally scheduled. But under the statutory

scheme Congress actually adopted, there is no reason a de-

fendant's early engagement with dangerous new drug sub-

stances 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 ma-

jority'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 objec-

tives, by essentially ignoring the link the statute draws be-

tween potential future dangerousness, as partially evidenced

by the seriousness of a defendant's past drug activity, and

Page Proof Pending Publication

the need for lengthy incapacitation, which the statute pro-

vides. Breezing past these key nuances, the majority sim-

ply announces its own apparent view that “[a] prior drug

conviction for an offense punishable by 10 years' imprison-

ment augurs a risk of future dangerousness even if the drug

is no longer considered dangerous.” Ante, at 114.5

5

The majority's opinion offers no concrete evidence for this empirical

assertion. And its strained analogy to bootleggers at the end of Prohibi-

tion, who supposedly “shifted to other illegal enterprises,” ante, at 114,

paints a woefully incomplete historical picture. Contrary to the majori-

ty's contentions, the end of Prohibition allowed many of those previously

involved in the illegal alcohol trade to transition into successful, legitimate

careers. See, e. g., D. Okrent, Last Call: The Rise and Fall of Prohibition

359–360 (2010) (discussing Samuel Bronfman, a former bootlegger who

turned his company Seagram's into one of the largest liquor-distribution

corporations in the world). Regardless, there is simply no evidence in

ACCA's legislative history or otherwise that Congress drew the same his-

torical lessons from Prohibition that the majority does, or that ACCA was

motivated in any respect by our Nation's experiences during Prohibition.

142 BROWN v. UNITED STATES

Jackson, J., dissenting

* * *

At bottom, the majority's reasoning appears to reduce to

a disagreement with Congress's legislative judgment, em-

bodied 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 pen-

alty 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 refect its own

policy view that “Brown's and Jackson's multiple convic-

tions” pose a signifcant risk of future dangerousness “de-

Page Proof Pending Publication

spite the technical changes to the federal drug schedules.”

Ante, at 115. But the choice of how to assess and address

dangerousness belongs frst and foremost to Congress. And

for the reasons I have explained, Congress designed ACCA

to take a different approach—to measure future dangerous-

ness 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.

Reporter’s Note

The attached opinion has been revised to refect the usual publication

and citation style of the United States Reports. The revised pagination

makes available the offcial United States Reports citation in advance of

publication. The syllabus has been prepared by the Reporter of Decisions

for the convenience of the reader and constitutes no part of the opinion of

the Court. A list of counsel who argued or fled briefs in this case, and

who were members of the bar of this Court at the time this case was

argued, has been inserted following the syllabus. Other revisions may

include adjustments to formatting, captions, citation form, and any errant

punctuation. The following additional edits were made:

Page Proof Pending Publication

p. 102, line 13: “conviction” is replaced with “offense”

p. 109, n. 2, line 5: “Verdict” is replaced with “Judgment”

p. 109, n. 2, line 6: “May 1, 2014” is replaced with “Oct. 8, 2015, recorded

Oct. 19, 2015”

p. 112, line 4 from bottom: “subsections” is replaced with “clauses”

p. 112, line 3 from bottom: “(A)” is inserted after “(2)”

p. 118, line 16: “current” is inserted before “federal”; “that are currently

in effect” is deleted

p. 118, line 17: “for sentencing purposes” is deleted; “that were” is replaced

with “in”; “effective” is replaced with “effect”

p. 123, line 11: “conviction” is replaced with “offense”

p. 134, line 9 from bottom: “refected” is replaced with “refect”