Lopez v. Gonzales

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOPEZ v. GONZALES, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 05–547. Argued October 3, 2006—Decided December 5, 2006

The Immigration and Nationality Act (INA) lists as an “aggravated

felony” “illicit trafficking in a controlled substance . . . including a

drug trafficking crime (as defined in section 924(c) of title 18),” 8

U. S. C. §1101(a)(43)(B), but does not define “illicit trafficking.” Title

18 U. S. C. §924(c)(2) defines “drug trafficking crime” to include “any

felony punishable under the Controlled Substances Act” (CSA). Peti

tioner Lopez, a legal permanent resident alien, pleaded guilty to

South Dakota charges of aiding and abetting another person’s pos

session of cocaine, which state law treated as the equivalent of pos

sessing the drug, a state felony. The Immigration and Naturalization

Service (INS) began removal proceedings on the ground, inter alia,

that Lopez’s state conviction was for an aggravated felony. The Im

migration Judge ultimately ruled that despite the CSA’s treatment of

Lopez’s crime as a misdemeanor, see 21 U. S. C. §844(a), it was an

aggravated felony under the INA owing to its being a felony under

state law. The judge ordered Lopez removed in light of 8 U. S. C.

§1229b(a)(3), which provides that the Attorney General’s discretion to

cancel the removal of a person otherwise deportable does not reach a

convict of an aggravated felony. The Board of Immigration Appeals

(BIA) affirmed, and the Eighth Circuit affirmed the BIA.

Held: Conduct made a felony under state law but a misdemeanor under

the CSA is not a “felony punishable under the Controlled Substances

Act” for INA purposes. A state offense comes within the quoted

phrase only if it proscribes conduct punishable as a felony under the

CSA. The Government argues that possession’s felonious character

as a state crime is enough to turn it into an aggravated felony under

the INA because the CSA punishes possession, albeit as a misde

meanor, while §924(c)(2) requires only that the offense be punishable,

2 LOPEZ v. GONZALES

Syllabus

not that it be punishable as a federal felony, so that a prior conviction

in state court will satisfy the felony element because the State treats

possession that way. This argument is incoherent with any common

sense conception of “illicit trafficking,” the term ultimately being de

fined. Because the statutes in play do not define “trafficking,” the

Court looks to the term’s everyday meaning, FDIC v. Meyer, 510 U. S.

471, 476, which ordinarily connotes some sort of commercial dealing.

Commerce, however, was no part of Lopez’s South Dakota offense of

helping someone else to possess, and certainly it is no element of

simple possession, with which the State equates that crime. Nor is

the anomaly of the Government’s reading limited to South Dakota

cases: while federal law typically treats trafficking offenses as felo

nies and nontrafficking offenses as misdemeanors, several States de

viate significantly from this pattern. Reading §924(c) the Govern

ment’s way, then, would often turn simple possession into trafficking,

just what the English language counsels not to expect, and that re

sult makes the Court very wary of the Government’s position. Al

though the Government might still be right, there would have to be

some indication that Congress meant to define an aggravated felony

of illicit trafficking in an unorthodox and unexpected way. There are

good reasons to think it was doing no such thing here. First, an of

fense that necessarily counts as “illicit trafficking” under the INA is a

“drug trafficking crime” under §924(c), i.e., a “felony punishable un

der the Controlled Substances Act,” §924(c)(2). To determine what

felonies might qualify, the Court naturally looks to the definitions of

crimes punishable as felonies under the CSA. If Congress had meant

the Court to look to state law, it would have found a much less mis

leading way to make its point. The Government’s argument to the

contrary contravenes normal ways of speaking and writing, which

demonstrate that “felony punishable under the . . . Act” means “fel

ony punishable as such under the Act” or “felony as defined by the

Act,” and does not refer to state felonies, so long as they would be

punishable at all under the CSA. The Government’s argument is not

supported by the INA’s statement that the term “aggravated felony”

“applies to an offense described in this paragraph whether in viola

tion of Federal or State law.” 8 U. S. C. §1101(a)(43). Rather than

wrenching the expectations raised by normal English usage, this pro

vision has two perfectly straightforward jobs to do. First, it provides

that a generic description of “an offense . . . in this paragraph,” one

not specifically couched as a state offense or a federal one, covers ei

ther one, and, second, it confirms that a state offense whose elements

include the elements of a felony punishable under the CSA is an ag

gravated felony. Thus, if Lopez’s state crime actually fell within the

general term “illicit trafficking,” the state felony conviction would

Cite as: 549 U. S. ____ (2006) 3

Syllabus

count as an “aggravated felony,” regardless of the existence of a fed

eral felony counterpart; and a state offense of possessing more than

five grams of cocaine base is an aggravated felony because it is a fel

ony under the CSA, 21 U. S. C. §844(a). Nothing in the provision in

question suggests that Congress changed the meaning of “felony pun

ishable under the [CSA]” when it took that phrase from Title 18 of

the U. S. Code and incorporated it into Title 8’s definition of “aggra

vated felony.” Yet the Government admits that it has never begun a

prosecution under 18 U. S. C. §924(c)(1)(A) where the underlying

“drug trafficking crime” was a state felony but a federal misde

meanor. This telling failure in the very context in which the phrase

“felony punishable under the [CSA]” appears in the Code belies the

Government’s claim that its interpretation is the more natural one.

Finally, the Government’s reading would render the law of alien re

moval, see 8 U. S. C. §1229b(a)(3), and the law of sentencing for ille

gal entry into the country, see United States Sentencing Commission,

Guidelines Manual §2L1.2, dependent on varying state criminal clas

sifications even when Congress has apparently pegged the immigra

tion statutes to the classifications Congress itself chose. Congress

would not have incorporated its own statutory scheme of felonies and

misdemeanors if it meant courts to ignore it whenever a State chose

to punish a given act more heavily. Pp. 4–12.

417 F. 3d 934, reversed and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO,

JJ., joined. THOMAS, J., filed a dissenting opinion.

Cite as: 549 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–547

_________________

JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO

R. GONZALES, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 5, 2006]

JUSTICE SOUTER delivered the opinion of the Court.

The question raised is whether conduct made a felony

under state law but a misdemeanor under the Controlled

Substances Act is a “felony punishable under the Con

trolled Substances Act.” 18 U. S. C. §924(c)(2). We hold it

is not.

I

A

The Immigration and Nationality Act (INA) defines the

term “aggravated felony” by a list that mentions “illicit

trafficking in a controlled substance . . . including a drug

trafficking crime (as defined in section 924(c) of title 18).”

§101(a)(43)(B), as added by §7342, 102 Stat. 4469, and as

amended by §222(a), 108 Stat. 4320, 8 U. S. C.

§1101(a)(43)(B). The general phrase “illicit trafficking” is

left undefined, but §924(c)(2) of Title 18 identifies the

subcategory by defining “drug trafficking crime” as “any

felony punishable under the Controlled Substances Act” or

under either of two other federal statutes having no bear

ing on this case. Following the listing, §101(a)43 of the

INA provides in its penultimate sentence that “[t]he term

2 LOPEZ v. GONZALES

Opinion of the Court

[aggravated felony] applies to an offense described in this

paragraph whether in violation of Federal or State law” or,

in certain circumstances, “the law of a foreign country.” 8

U. S. C. §1101(a)(43).

An aggravated felony on a criminal record has worse

collateral effects than a felony conviction simple. Under

the immigration statutes, for example, the Attorney Gen

eral’s discretion to cancel the removal of a person other

wise deportable does not reach a convict of an aggravated

felony. §1229b(a)(3). Nor is an aggravated felon eligible

for asylum. §§1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And

under the sentencing law, the Federal Guidelines attach

special significance to the “aggravated felony” designation:

a conviction of unlawfully entering or remaining in the

United States receives an eight-level increase for a prior

aggravated felony conviction, but only four levels for “any

other felony.” United States Sentencing Commission,

Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter

USSG); id., comment., n. 3 (adopting INA definition of

aggravated felony).

B

Although petitioner Jose Antonio Lopez entered the

United States illegally in 1986, in 1990 he became a legal

permanent resident. In 1997, he was arrested on state

charges in South Dakota, pleaded guilty to aiding and

abetting another person’s possession of cocaine, and was

sentenced to five years’ imprisonment. See S. D. Codified

Laws §22–42–5 (1988); §22–6–1 (Supp. 1997); §22–3–3

(1988). He was released for good conduct after 15 months.

After his release, the Immigration and Naturalization

Service (INS)1 began removal proceedings against Lopez,

——————

1 TheINS’s immigration-enforcement functions are now handled by

the Bureau of Immigration and Customs Enforcement in the Depart

ment of Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374,

n. 1 (2005).

Cite as: 549 U. S. ____ (2006) 3

Opinion of the Court

on two grounds: that his state conviction was a controlled

substance violation, see 8 U. S. C. §1227(a)(2)(B)(i), and

was also for an aggravated felony, see §1227(a)(2)(A)(iii).

Lopez conceded the controlled substance violation but

contested the aggravated felony determination, which

would disqualify him from discretionary cancellation of

removal. See §1229b(a)(3). At first, the Immigration

Judge agreed with Lopez that his state offense was not an

aggravated felony because the conduct it proscribed was

no felony under the Controlled Substances Act (CSA). But

after the Board of Immigration Appeals (BIA) switched its

position on the issue, the same judge ruled that Lopez’s

drug crime was an aggravated felony after all, owing to its

being a felony under state law. See Matter of Yanez-

Garcia, 23 I. & N. Dec. 390 (2002) (announcing that BIA

decisions would conform to the applicable Circuit law);

United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997)

(per curiam) (holding state felony possession offenses are

aggravated felonies). That left Lopez ineligible for cancel

lation of removal, and the judge ordered him removed.

The BIA affirmed, and the Court of Appeals affirmed the

BIA, 417 F. 3d 934 (CA8 2005).2

We granted certiorari to resolve a conflict in the Circuits

about the proper understanding of conduct treated as a

felony by the State that convicted a defendant of commit

ting it, but as a misdemeanor under the CSA.3 547 U. S.

——————

2 Although the Government has deported Lopez, we agree with the

parties that the case is not moot. Lopez can benefit from relief in this

Court by pursuing his application for cancellation of removal, which the

Immigration Judge refused to consider after determining that Lopez

had committed an aggravated felony.

3 Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state

law felony is an aggravated felony); United States v. Simon, 168 F. 3d

1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d

691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308

(CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d

998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d

4 LOPEZ v. GONZALES

Opinion of the Court

___ (2006). We now reverse.

II

The INA makes Lopez guilty of an aggravated felony if

he has been convicted of “illicit trafficking in a controlled

substance . . . including,” but not limited to, “a drug traf

ficking crime (as defined in section 924(c) of title 18).” 8

U. S. C. §1101(a)(43)(B). Lopez’s state conviction was for

helping someone else possess cocaine in South Dakota,

which state law treated as the equivalent of possessing the

drug, S. D. Codified Laws §22–3–3, a state felony, §22–42–

5. Mere possession is not, however, a felony under the

federal CSA, see 21 U. S. C. §844(a), although possessing

more than what one person would have for himself will

support conviction for the federal felony of possession with

intent to distribute, see §841 (2000 ed. and Supp. III);

United States v. Kates, 174 F. 3d 580, 582 (CA5 1999) (per

curiam) (“Intent to distribute may be inferred from the

possession of a quantity of drugs too large to be used by

the defendant alone”).

Despite this federal misdemeanor treatment, the Gov

ernment argues that possession’s felonious character as a

state crime can turn it into an aggravated felony under

the INA. There, it says, illicit trafficking includes a drug

trafficking crime as defined in federal Title 18. Title 18

defines “drug trafficking crime” as “any felony punishable

——————

361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F. 3d 532

(CA7 2006) (state-law felony is not an aggravated felony); United States

v. Palacios-Suarez, 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes,

280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the

aggravated felony definition one way in the sentencing context and

another in the immigration context. Compare United States v. Ibarra-

Galindo, 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law

felony is an aggravated felony); United States v. Pornes-Garcia, 171

F. 3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft, 382

F. 3d 905 (CA9 2004) (in immigration case, state-law felony is not an

aggravated felony); Aguirre v. INS, 79 F. 3d 315 (CA2 1996) (same).

Cite as: 549 U. S. ____ (2006) 5

Opinion of the Court

under the Controlled Substances Act (21 U. S. C. 801 et

seq.),” §924(c)(2), and the CSA punishes possession, albeit

as a misdemeanor, see §405(a), 102 Stat. 4384, as renum

bered and amended by §1002(g), 104 Stat. 4828, 21

U. S. C. §844(a). That is enough, says the Government,

because §924(c)(2) requires only that the offense be pun

ishable, not that it be punishable as a federal felony.

Hence, a prior conviction in state court will satisfy the

felony element because the State treats possession that

way.

There are a few things wrong with this argument, the

first being its incoherence with any commonsense concep

tion of “illicit trafficking,” the term ultimately being de

fined. The everyday understanding of “trafficking” should

count for a lot here, for the statutes in play do not define

the term, and so remit us to regular usage to see what

Congress probably meant. FDIC v. Meyer, 510 U. S. 471,

476 (1994). And ordinarily “trafficking” means some sort

of commercial dealing. See Black’s Law Dictionary 1534

(8th ed. 2004) (defining to “traffic” as to “trade or deal in

(goods, esp. illicit drugs or other contraband)”); see also

Urena-Ramirez v. Ashcroft, 341 F. 3d 51, 57 (CA1 2003)

(similar definition); State v. Ezell, 321 S. C. 421, 425, 468

S. E. 2d 679, 681 (App. 1996) (same). Commerce, however,

was no part of Lopez’s South Dakota offense of helping

someone else to possess, and certainly it is no element of

simple possession, with which the State equates that

crime. Nor is the anomaly of the Government’s reading

limited to South Dakota cases: while federal law typically

treats trafficking offenses as felonies and nontrafficking

offenses as misdemeanors, several States deviate signifi

cantly from this pattern.4

——————

4 Several States punish possession as a felony. See, e. g., S. D. Codi

fied Laws §§22–42–5 (2004), 22–6–1 (2005 Supp.); Tex. Health & Safety

Code Ann. §481.115 (West 2003); Tex. Penal Code Ann. §§12.32–12.35

6 LOPEZ v. GONZALES

Opinion of the Court

Reading §924(c) the Government’s way, then, would

often turn simple possession into trafficking, just what the

English language tells us not to expect, and that result

makes us very wary of the Government’s position. Cf.

Leocal v. Ashcroft, 543 U. S. 1, 11 (2004) (“[W]e cannot

forget that we ultimately are determining the meaning of

the term ‘crime of violence’ ”). Which is not to deny that

the Government might still be right; Humpty Dumpty

used a word to mean “ ‘just what [he chose] it to mean—

neither more nor less,’ ”5 and legislatures, too, are free to

be unorthodox. Congress can define an aggravated felony

of illicit trafficking in an unexpected way. But Congress

would need to tell us so, and there are good reasons to

think it was doing no such thing here.6

First, an offense that necessarily counts as “illicit traf

ficking” under the INA is a “drug trafficking crime” under

——————

(West 2003); see also n. 10, infra. In contrast, with a few exceptions,

the CSA punishes drug possession offenses as misdemeanors (that is,

by one year’s imprisonment or less, cf. 18 U. S. C. §3559(a)), see 21

U. S. C. §844(a) (providing for “a term of imprisonment of not more

than 1 year” for possession offenses except for repeat offenders, persons

who possess more than five grams of cocaine base, and persons who

possess flunitrazepam), and trafficking offenses as felonies, see §841

(2000 ed. and Supp. III).

5 L. Carroll, Alice in Wonderland and Through the Looking Glass 198

(Messner 1982).

6 Of course, we must acknowledge that Congress did counterintui

tively define some possession offenses as “illicit trafficking.” Those

state possession crimes that correspond to felony violations of one of the

three statutes enumerated in §924(c)(2), such as possession of cocaine

base and recidivist possession, see 21 U. S. C. §844(a), clearly fall

within the definitions used by Congress in 8 U. S. C. §1101(a)(43)(B)

and 18 U. S. C. §924(c)(2), regardless of whether these federal posses

sion felonies or their state counterparts constitute “illicit trafficking in

a controlled substance” or “drug trafficking” as those terms are used in

ordinary speech. But this coerced inclusion of a few possession offenses

in the definition of “illicit trafficking” does not call for reading the

statute to cover others for which there is no clear statutory command to

override ordinary meaning.

Cite as: 549 U. S. ____ (2006) 7

Opinion of the Court

§924(c), that is, a “felony punishable under the [CSA],”

§924(c)(2). And if we want to know what felonies might

qualify, the place to go is to the definitions of crimes pun

ishable as felonies under the Act; where else would one

naturally look? Although the Government would have us

look to state law, we suspect that if Congress had meant

us to do that it would have found a much less misleading

way to make its point. Indeed, other parts of §924 ex

pressly refer to guilt under state law, see §§924(g)(3),

(k)(2), and the implication confirms that the reference

solely to a “felony punishable under the [CSA]” in

§924(c)(2) is to a crime punishable as a felony under the

federal Act. See Russello v. United States, 464 U. S. 16, 23

(1983) (“[W]here Congress includes particular language in

one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion” (alteration in original; internal quotation marks

omitted)). Unless a state offense is punishable as a federal

felony it does not count.

The Government stresses that the text does not read

“punishable as a felony,” and that by saying simply “pun

ishable” Congress left the door open to counting state

felonies, so long as they would be punishable at all under

the CSA. But we do not normally speak or write the Gov

ernment’s way. We do not use a phrase like “felony pun

ishable under the [CSA]” when we mean to signal or allow

a break between the noun “felony” and the contiguous

modifier “punishable under the [CSA],” let alone a break

that would let us read the phrase as if it said “felony

punishable under the CSA whether or not as a felony.”

Regular usage points in the other direction, and when we

read “felony punishable under the . . . Act,” we instinc

tively understand “felony punishable as such under the

8 LOPEZ v. GONZALES

Opinion of the Court

Act” or “felony as defined by the Act.”7 Without some

further explanation, using the phrase to cover even a

misdemeanor punishable under the Act would be so much

trickery, violating “the cardinal rule that statutory lan

guage must be read in context.” General Dynamics Land

Systems, Inc. v. Cline, 540 U. S. 581, 596 (2004) (internal

quotation marks and brackets omitted). That is why our

interpretive regime reads whole sections of a statute

together to fix on the meaning of any one of them, and the

last thing this approach would do is divorce a noun from

the modifier next to it without some extraordinary reason.

The Government thinks it has a good enough reason for

doing just that, in the INA provision already mentioned,

that the term “aggravated felony” “applies to an offense

described in this paragraph whether in violation of Fed

eral or State law.” 8 U. S. C. §1101(a)(43). But before this

provision is given the Government’s expansive treatment,

it makes sense to ask whether it would have some use

short of wrenching the expectations raised by normal

English usage, and in fact it has two perfectly straightfor

ward jobs to do: it provides that a generic description of

“an offense . . . in this paragraph,” one not specifically

couched as a state offense or a federal one, covers either

one, and it confirms that a state offense whose elements

include the elements of a felony punishable under the CSA

is an aggravated felony. Thus, if Lopez’s state crime

actually fell within the general term “illicit trafficking,”

——————

7 With respect to this last possibility, for purposes of §924(c)(2) the

crimes the CSA defines as “felonies” are those crimes to which it

assigns a punishment exceeding one year’s imprisonment. As the

Government wisely concedes, see Brief for Respondent 25, although for

its own purposes the CSA defines the term “felony” standing alone as

“any Federal or State offense classified by applicable Federal or State

law as a felony,” 21 U. S. C. §802(13), that definition does not apply

here: §924(c)(2) refers to a felony “punishable under the [CSA],” not to

conduct punishable under some other law but defined as a felony by the

CSA.

Cite as: 549 U. S. ____ (2006) 9

Opinion of the Court

the state felony conviction would count as an “aggravated

felony,” regardless of the existence of a federal felony

counterpart; and a state offense of possessing more than

five grams of cocaine base is an aggravated felony because

it is a felony under the CSA, 21 U. S. C. §844(a).8

The Government’s reliance on the penultimate sentence

of 8 U. S. C. §1101(a)(43) is misplaced for a second reason.

The Government tries to justify its unusual reading of a

defined term in the criminal code on the basis of a single

sentence in the INA. But nothing in the penultimate

sentence of §1101(a)(43) suggests that Congress changed

the meaning of “felony punishable under the [CSA]” when

it took that phrase from Title 18 and incorporated it into

Title 8’s definition of “aggravated felony.” Yet the Gov

ernment admits it has never begun a prosecution under 18

U. S. C. §924(c)(1)(A) where the underlying “drug traffick

ing crime” was a state felony but a federal misdemeanor.

See Tr. of Oral Arg. 33–36. This is telling: the failure of

even a single eager Assistant United States Attorney to

act on the Government’s interpretation of “felony punish

able under the [CSA]” in the very context in which that

phrase appears in the United States Code belies the Gov

ernment’s claim that its interpretation is the more natural

one.9

——————

8 Although the parties agree that Congress added the provision that

both state and federal offenses qualify as aggravated felonies to codify

the BIA’s decision in Matter of Barrett, 20 I. & N. Dec. 171 (1990), see

also H. R. Rep. No. 101–681, pt. 1, p. 147 (1990) (noting that the provi

sion reflects congressional approval of Barrett), our enquiry requires

looking beyond Congress’s evident acceptance of Barrett. In Barrett,

the BIA held only that the phrase “ ‘drug trafficking crime’ ” includes

state “crimes analogous to offenses under the Controlled Substances

Act,” Barrett, supra, at 177, 178, without specifying whether a state

crime must be “analogous” to a CSA felony, as opposed to a CSA mis

demeanor, to count.

9 Contrary to the Government’s response at oral argument, such a

prosecution should be possible under the Government’s proffered

10 LOPEZ v. GONZALES

Opinion of the Court

Finally, the Government’s reading would render the law

of alien removal, see 8 U. S. C. §1229b(a)(3), and the law

of sentencing for illegal entry into the country, see USSG

§2L1.2, dependent on varying state criminal classifications

even when Congress has apparently pegged the immigra

tion statutes to the classifications Congress itself chose. It

may not be all that remarkable that federal consequences

of state crimes will vary according to state severity classi

fication when Congress describes an aggravated felony in

generic terms, without express reference to the definition

of a crime in a federal statute (as in the case of “illicit

trafficking in a controlled substance”). But it would have

been passing strange for Congress to intend any such

result when a state criminal classification is at odds with

a federal provision that the INA expressly provides as a

specific example of an “aggravated felony” (like the

§924(c)(2) definition of “drug trafficking crime”). We

cannot imagine that Congress took the trouble to incorpo

rate its own statutory scheme of felonies and misdemean

ors if it meant courts to ignore it whenever a State chose

to punish a given act more heavily.

Two examples show the untoward consequences of the

Government’s approach. Consider simple possession of

marijuana. Not only is it a misdemeanor under the CSA,

see 21 U. S. C. §844(a), but the INA expressly excludes “a

single offense involving possession for one’s own use of 30

grams or less” from the controlled substance violations

——————

interpretation because this subset of “drug trafficking crime[s]” still

“may be prosecuted in a court of the United States,” 18 U. S. C.

§924(c)(1)(A), albeit at the misdemeanor level. For the same reason,

the dissent’s argument that our reading renders superfluous the

requirement in §924(c)(1)(A) that the crime “may be prosecuted in a

court of the United States” misses the mark. Post, at 3 (opinion of

THOMAS, J.). That phrase would be no less superfluous under the

dissent’s preferred reading, which would still require that the offense

be “capable of punishment under the Controlled Substances Act,” post,

at 1, and therefore subject to prosecution in federal court.

Cite as: 549 U. S. ____ (2006) 11

Opinion of the Court

that are grounds for deportation, 8 U. S. C. §1227(a)

(2)(B)(i). Yet by the Government’s lights, if a State makes

it a felony to possess a gram of marijuana the congres

sional judgment is supplanted, and a state convict is

subject to mandatory deportation because the alien is

ineligible for cancellation of removal. See §1229b(a)(3).10

There is no hint in the statute’s text that Congress was

courting any such state-by-state disparity.

The situation in reverse flouts probability just as much.

Possessing more than five grams of cocaine base is a fel

ony under federal law. See 21 U. S. C. §844(a). If a State

drew the misdemeanor-felony line at six grams plus, a

person convicted in state court of possessing six grams

would not be guilty of an aggravated felony on the Gov

ernment’s reading, which makes the law of the convicting

jurisdiction dispositive. See Brief for Respondent 48.

Again, it is just not plausible that Congress meant to

authorize a State to overrule its judgment about the con

sequences of federal offenses to which its immigration law

expressly refers.

True, the argument is not all one-sided. The Govern

ment points out that some States graduate offenses of

drug possession from misdemeanor to felony depending on

quantity, whereas Congress generally treats possession

alone as a misdemeanor whatever the amount (but leaves

it open to charge the felony of possession with intent to

distribute when the amount is large). Thus, an alien

——————

10 Indeed, several States treat possession of less than 30 grams of

marijuana as a felony. See Fla. Stat. §§893.13(6)(a)–(b), 775.082(3)(d)

(2006) (punishing possession of over 20 grams of marijuana as a felony);

Nev. Rev. Stat. §§453.336(1)–(2) (2004), §§453.336(4), 193.130 (2003)

(punishing possession of more than one ounce, or 28.3 grams, of mari

juana as a felony); N. D. Cent. Code Ann. §§19–03.1–23(6) (Lexis Supp.

2005), 12.1–32–01(4) (Lexis 1997) (same); Ore. Rev. Stat. §161.605(3)

(2003), Act Relating to Controlled Substances, §33, 2005 Ore. Laws p.

2006 (same).

12 LOPEZ v. GONZALES

Opinion of the Court

convicted by a State of possessing large quantities of drugs

would escape the aggravated felony designation simply for

want of a federal felony defined as possessing a substan

tial amount. This is so, but we do not weigh it as heavily

as the anomalies just mentioned on the other side. After

all, Congress knows that any resort to state law will impli

cate some disuniformity in state misdemeanor-felony

classifications, but that is no reason to think Congress

meant to allow the States to supplant its own classifica

tions when it specifically constructed its immigration law

to turn on them.

In sum, we hold that a state offense constitutes a “felony

punishable under the Controlled Substances Act” only if it

proscribes conduct punishable as a felony under that

federal law. The judgment of the Court of Appeals is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 549 U. S. ____ (2006) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–547

_________________

JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO

R. GONZALES, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 5, 2006]

JUSTICE THOMAS, dissenting.

Jose Antonio Lopez pleaded guilty to aiding and abet

ting the possession of cocaine, a felony under South Da

kota law. The Court holds that Lopez’s conviction does not

constitute an “aggravated felony” because federal law

would classify Lopez’s possession offense as a misde

meanor. I respectfully dissent.

I

The Immigration and Nationality Act (INA) provides

that “[a]ny alien who is convicted of an aggravated felony

at any time after admission is deportable.” 8 U. S. C.

§1227(a)(2)(A)(iii). As relevant to this case, the INA defines

an “aggravated felony” as “illicit trafficking in a controlled

substance . . . including a drug trafficking crime (as defined in

section 924(c) of title 18).” §1101(a)(43)(B). And “the term

‘drug trafficking crime’ means any felony punishable

under the Controlled Substances Act . . . .” 18 U. S. C.

§924(c)(2).

Lopez’s state felony offense qualifies as a “drug traffick

ing crime” as defined in §924(c)(2). A plain reading of this

definition identifies two elements: First, the offense must

be a felony; second, the offense must be capable of pun

ishment under the Controlled Substances Act (CSA). No

one disputes that South Dakota punishes Lopez’s crime as

2 LOPEZ v. GONZALES

THOMAS, J., dissenting

a felony. See S. D. Codified Laws §22–42–5 (1988). Like

wise, no one disputes that the offense was capable of

punishment under the CSA. See 21 U. S. C. §844(a).

Lopez’s possession offense therefore satisfies both ele

ments, and the inquiry should end there.

The Court, however, takes the inquiry further by rea

soning that only federal felonies qualify as drug trafficking

crimes. According to the Court, the definition of drug

trafficking crime contains an implied limitation: “any

felony punishable [as a felony] under the” CSA. The text

does not support this interpretation. Most obviously, the

language “as a felony” appears nowhere in §924(c)(2).

Without doubt, Congress could have written the definition

with this limitation, but it did not.

Furthermore, Lopez’s suggested addition conflicts with

the clear meaning of §924(c)(2), which extends to both

state and federal felonies. Specifically, the definition

broadly encompasses “any felony” capable of being pun

ished under the CSA. 18 U. S. C. §924(c)(2) (emphasis

added). “Read naturally, the word ‘any’ has an expansive

meaning . . . .” United States v. Gonzales, 520 U. S. 1, 5

(1997) (plurality opinion); see also Small v. United States,

544 U. S. 385, 397 (2005) (THOMAS, J., dissenting) (“The

broad phrase ‘any court’ unambiguously includes all judi

cial bodies with jurisdiction to impose the requisite convic

tion . . .” (footnote omitted)). The term “felony” takes its

meaning from Title 18, which classifies crimes as felonies

when punishable by death or greater than one year of

imprisonment. §3559(a). “[A]ny felony” therefore includes

both federal and state felonies: The classification depends

only on the authorized term of imprisonment. Accord

ingly, by the plain terms of §924(c)(2), conduct prohibited

by the CSA may qualify as a “drug trafficking crime” if

under either federal law or state law the conduct is pun

ishable by more than one year of imprisonment.

This interpretation finds support in other provisions in

Cite as: 549 U. S. ____ (2006) 3

THOMAS, J., dissenting

which Congress placed limits on the types of drug traffick

ing crimes eligible for consideration. In particular,

§924(c)(1)(A) proscribes the use or possession of a firearm

“during and in relation to any . . . drug trafficking crime

. . . for which the person may be prosecuted in a court of the

United States . . . .” (emphasis added); see also 18

U. S. C. A. §924(c)(5) (Supp. 2006) (using identical lan

guage in proscribing the use or possession of “armor pierc

ing ammunition”). The Court has previously interpreted

this language to limit “any . . . drug trafficking crime” to

federal crimes. Gonzales, supra, at 5. This language,

therefore, acts as a jurisdictional limitation, carving out

the subset of federal drug trafficking crimes and making

only those eligible for use in §§924(c)(1)(A) and 924(c)(5).

No similar federal-crime limitation appears in §924(c)(2).

Interpreting the term “drug trafficking crime,” as defined

in §924(c)(2), to reach only federal felonies would render

superfluous the federal-crime limitations in these other

provisions. See Duncan v. Walker, 533 U. S. 167, 174

(2001) (plurality opinion) (counseling against interpreta

tions that result in surplus language).1

This interpretation also finds support in the INA, which

lists “illicit trafficking” and its subset of “drug trafficking

crime[s]” as aggravated felonies. 8 U. S. C. §1101(a)(43)(B).

The INA considers these offenses aggravated felonies

“whether in violation of Federal or State law . . . .”

§1101(a)(43) (penultimate sentence). Thus, by incorporat

ing §924(c)(2)’s definition of “drug trafficking crime,” the

——————

1 The majority mistakenly contends that my interpretation also ren

ders this language superfluous. Ante, at 10 n. 9. As I have stated, the

plain meaning of “drug trafficking crime” includes two categories of

felonies—state and federal. For the limiting language in §924(c)(1)(A)

to have meaning, it must exclude one of those categories. As a state

felony, Lopez’s possession offense does not fall within the category of

federal drug trafficking crimes. Consequently, it is not eligible for use

under §924(c)(1)(A).

4 LOPEZ v. GONZALES

THOMAS, J., dissenting

INA supports and confirms the conclusion that the defini

tion of “drug trafficking crime” applies to both federal and

state felonies.

Moreover, the INA isolates the relevant inquiry to the

prosecuting jurisdiction. Section 1227(a)(2)(A)(iii) of Title

8 makes an alien eligible for deportation only upon a

conviction for an “aggravated felony.” The conviction

requirement suggests that the jurisdiction issuing the

conviction determines whether the offense is a felony.

This result makes sense. When faced with an actual

conviction, it would be unusual to ask, hypothetically,

whether that conviction would have been a felony in a

different jurisdiction. Furthermore, that hypothetical

inquiry could cause significant inconsistencies. For in

stance, where a State convicts an alien of a misdemeanor

drug crime, but federal law classifies the crime as a felony,

the misdemeanor conviction would constitute an aggra

vated felony. This anomaly does not arise when relying on

the prosecuting jurisdiction’s classification of the crime.

II

The Court’s approach is unpersuasive. At the outset of

its analysis, the Court avers that it must look to the ordi

nary meaning of “illicit trafficking” because “the statutes

in play do not define the term.” Ante, at 5. That state

ment is incorrect. Section 1101(a)(43)(B) of Title 8 clearly

defines “illicit trafficking in a controlled substance,” at

least in part, as “a drug trafficking crime (as defined in

section 924(c) of title 18).” (Emphasis added.) Therefore,

whatever else “illicit trafficking” might mean, it must

include anything defined as a “drug trafficking crime” in

§924(c)(2). Rather than grappling with this definition of

the relevant term, the Court instead sets up a conflicting

strawman definition.

The majority states that the ordinary meaning of “illicit

trafficking” involves “some sort of commercial dealing.”

Cite as: 549 U. S. ____ (2006) 5

THOMAS, J., dissenting

Ante, at 5. Because mere possession does not constitute

commercial dealing, the Court concludes that Lopez’s

possession offense cannot qualify as an “illicit trafficking”

offense—or, by implication, a “drug trafficking crime.” Yet

even the Court admits that the term “drug trafficking

crime” includes federal drug felonies, several of which are

mere possession offenses. See 21 U. S. C. §844(a) (posses

sion of more than five grams of cocaine base, possession of

flunitrazepam, and repeat possession offenses). If the

Court recognizes, in light of §924(c)(2), some mere posses

sion offenses under the umbrella of “illicit trafficking,” it

cannot reject Lopez’s conviction out of hand. Yet the

Court downplays these “few exceptions” in two footnotes,

concluding that “this coerced inclusion of a few possession

offenses” gives no reason to “override [the] ordinary mean

ing” of “illicit trafficking.” Ante, at 6, nn. 4 and 6.

The inconsistency deserves more than the Court’s pass

ing reference. By encompassing repeat possession of

fenses, the term “illicit trafficking” includes far more than

“a few” offenses outside of its ordinary meaning. It must

include every type of possession offense under the CSA, so

long as the offender has had a previous possession offense.

If defining “illicit trafficking” to include the entire range of

unlawful possession does not provide a “clear statutory

command to override ordinary meaning,” I do not know

what would.2

——————

2 Inits discussion of whether possession may constitute “trafficking,”

the Court takes its own trip “through the looking glass.” See ante, at 6.

“Commerce,” according to the Court, “certainly . . . is no element of

simple possession . . . .” Ante, at 5. Not long ago, the Court found the

opposite to be true when interpreting the scope of Congress’ power

under the Commerce Clause. See Gonzales v. Raich, 545 U. S. 1, 22

(2005) (plurality opinion) (concluding that Congress may regulate the

mere possession of marijuana as affecting “commerce”). In Raich, the

Court fell into the very trap it purports to identify today by “turn[ing]

simple possession into [commerce], just what the English language tells

us not to expect.” Ante, at 6; see also Raich, supra, at 57–58 (THOMAS,

6 LOPEZ v. GONZALES

THOMAS, J., dissenting

The Court, however, gives only fleeting consideration to

the text of §924(c)(2) itself. After referencing the phrase

“felony punishable under” the CSA, the Court asks “where

else would one naturally look” other than the CSA to

determine whether a felony qualifies as a drug trafficking

crime. Ante, at 7. In response to the Court’s rhetorical

question, I suggest that one might naturally look to the

conviction itself to determine whether it is a felony. When

presented with an actual conviction, one would not expect

to look to a hypothetical prosecution to determine whether

an offender has committed a felony.

Continuing to avoid the text of §924(c)(2), the Court

instead focuses on what the statute does not say. It con

cludes that Congress could have expressly referenced state

law as in §924(g)(3) and (k)(2). Ante, at 7. The response,

of course, is that Congress could just as well have defined

a “drug trafficking crime” as “any felony punishable as a

felony under the CSA.” Rejoining, the Court resorts to an

“instinctiv[e] understand[ing]” that the statutory defini

tion actually means “felony as defined by the Act.” Ibid.

Instinct notwithstanding, we must interpret what Con

gress actually wrote, not what it could have written.

Furthermore, the Court’s “instinct” to interpret §924(c)(2)

to mean “felony as defined by” the CSA creates an unnec

essary ambiguity in the meaning of “felony.” The CSA

defines “felony” as “any Federal or State offense classified

by applicable Federal or State law as a felony.” 21 U. S. C.

§802(13).3 Under the Court’s interpretation, that defini

——————

J., dissenting). The Court’s broadening of the Commerce Clause stands

in tension with its present narrow interpretation of “trafficking,” which

8 U. S. C. §1101(a)(43)(B) explicitly alters to include at least some

possession offenses.

3 Several Courts of Appeals looked to this definition of “felony” when

construing the meaning of “drug trafficking crime.” See, e.g., United

States v. Wilson, 316 F. 3d 506, 512 (CA4 2003). Although the Govern

ment would clearly prevail under 21 U. S. C. §802(13), it has conceded

Cite as: 549 U. S. ____ (2006) 7

THOMAS, J., dissenting

tion seemingly should apply. The Court concludes other

wise but never resolves the ambiguity it creates: It instead

explains that “felony” is defined by the CSA as something

other than the CSA’s definition of “felony.” Ante, at 8, n. 7.

That explanation is, at best, unsatisfying.

After gliding past the statutory text, the Court ex

presses concern over the fact that the Government’s inter

pretation allows federal immigration law to turn on vary

ing state criminal classifications. Congress apparently did

not share this concern because some definitions of “aggra

vated felony” explicitly turn on the State’s authorized term

of imprisonment, not a uniform federal classification. See

8 U. S. C. §1101(a)(43)(F), (G), (J), (P)–(T). Even the Court

finds this variance “not . . . all that remarkable.” Ante, at

10. The Court’s real concern therefore has little to do with

variations in state law. Rather, it worries that “a state

criminal classification [may be] at odds with a federal

provision.” Ibid. But, obviously, if a state offense does not

qualify under the definitions in §1101(a)(43), then the

offense cannot be an “aggravated felony.” As shown in

Part I, though, nothing about Lopez’s offense conflicts with

the plain language of §924(c)(2) as incorporated into

§1101(a)(43)(B). He was convicted of a “felony,” and his

offense was “punishable under the” CSA.

The Court also notes apparent anomalies in the Gov

ernment’s approach. It asserts that, under the Govern

ment’s interpretation, a state felony conviction for simple

possession of less than 30 grams of marijuana could be an

“aggravated felony” even though the INA expressly ex

cludes such an offense as grounds for deportation under 8

U. S. C. §1227(a)(2)(B)(i). Ante, at 10–11. The Court’s

——————

that this definition does not apply. This concession makes good sense:

The definition of “drug trafficking crime” resides in Title 18, and it is

therefore most natural to construe “felony” as used in that title. See,

n. 1, supra. As discussed above, that definition as well requires that a

crime be considered a felony if the State defines it as a felony.

8 LOPEZ v. GONZALES

THOMAS, J., dissenting

concern has little basis in reality. Only one State author

izes more than one year of imprisonment for possession of

over 20 grams. See Fla. Stat. §§893.13(6)(a)–(b),

775.082(3)(a)(3) (2006). A few others classify possession of

one ounce (or 28.3 grams) as a felony. See, e.g., Nev. Rev.

Stat. §§453.336(1)–(2) (2004), (4), 193.130 (2003). The

mere possibility that a case could fall into this small gap

and lead to removal provides no ground for the Court to

depart from the plain meaning of §924(c)(2).

In fact, it is the Court’s interpretation that will have a

significant effect on removal proceedings involving state

possession offenses. Federal law treats possession of large

quantities of controlled substances as felonious possession

with intent to distribute. States frequently treat the same

conduct as simple possession offenses, which would escape

classification as aggravated felonies under the Court’s

interpretation. Thus, the Court’s interpretation will result

in a large disparity between the treatment of federal and

state convictions for possession of large amounts of drugs.

And it is difficult to see why Congress would “authorize a

State to overrule its judgment” about possession of large

quantities of drugs any more than it would about other

possession offenses. Ante, at 11.

Finally, the Court admits that its reading will subject

an alien defendant convicted of a state misdemeanor to

deportation if his conduct was punishable as a felony

under the CSA. Accordingly, even if never convicted of an

actual felony, an alien defendant becomes eligible for

deportation based on a hypothetical federal prosecution.

It is at least anomalous, if not inconsistent, that an actual

misdemeanor may be considered an “aggravated felony.”

III

Because a plain reading of the statute would avoid the

ambiguities and anomalies created by today’s majority

opinion, I respectfully dissent.