DePierre v. United States

(Slip Opinion) OCTOBER TERM, 2010 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

DEPIERRE v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

No. 09–1533. Argued February 28, 2011—Decided June 9, 2011

In 1986, increasing public concern over the dangers of illicit drugs—in

particular, the new phenomenon of crack cocaine—prompted Con

gress to revise the penalties for criminal offenses involving cocaine

related substances. Following several hearings, Congress enacted

the Anti-Drug Abuse Act of 1986 (ADAA). The statute provides a

mandatory 10-year minimum sentence for certain drug offenses in

volving “(ii) 5 kilograms or more of a mixture or substance containing

a detectable amount of . . . (II) cocaine, its salts, optical and geometric

isomers, and salts of isomers, [or] (iii) 50 grams or more of a mixture

or substance described in clause (ii) which contains cocaine base.” 21

U. S. C. §841(b)(1)(A). The statute similarly provides a 5-year sen

tence for offenses involving 500 grams of a substance enumerated in

clause (ii) or 5 grams of one outlined in clause (iii). §841(b)(1)(B).

In 2005, petitioner DePierre was indicted for distribution of 50

grams or more of cocaine base under §§841(a)(1) and (b)(1)(A)(iii).

The District Court declined DePierre’s request that the jury be in

structed that, in order to find DePierre guilty of distribution of “co

caine base,” it must find that his offense involved crack cocaine.

DePierre was convicted, and the court sentenced him to the 120

months in prison mandated by the statute. The First Circuit af

firmed, rejecting DePierre’s argument that §841(b)(1)(A)(iii) should

be read only to apply to offenses involving crack cocaine. Instead, it

adhered to its precedent holding that “cocaine base” refers to all

forms of cocaine base.

Held: “[C]ocaine base,” as used in §841(b)(1), means not just “crack co

caine,” but cocaine in its chemically basic form. Pp. 7–18.

(a) The most natural reading of “cocaine base” in clause (iii) is co

caine in its chemically basic form—i.e., the molecule found in crack

2 DEPIERRE v. UNITED STATES

Syllabus

cocaine, freebase, and coca paste. On its plain terms, then, “cocaine

base” reaches more broadly than just crack cocaine. In arguing to the

contrary, DePierre urges the Court to stray far from the statute’s

text, which nowhere contains the term “crack cocaine.” The Govern

ment’s reading, on the other hand, follows the words Congress chose

to use. DePierre is correct that “cocaine base” is technically redun

dant—chemically speaking, cocaine is a base. But Congress had good

reason to use “cocaine base”—to make clear that clause (iii) does not

apply to offenses involving cocaine hydrochloride (i.e., powder co

caine) or other nonbasic cocaine-related substances. At the time the

statute was enacted, “cocaine” was commonly used to refer to powder

cocaine, and the scientific and medical literature often uses “cocaine”

to refer to all cocaine-related substances, including ones that are not

chemically basic. Pp. 7–10.

(b) This reading of “cocaine base” is also consistent with

§841(b)(1)’s somewhat confusing structure. Subsection (b)(1)(A)(ii)(II)

lists “cocaine,” along with “its salts, optical and geometric isomers,

and salts of isomers,” as elements subject to clause (ii)’s higher quan

tity threshold. DePierre is correct that, because “cocaine” and “co

caine base” both refer to chemically basic cocaine, offenses involving

a substance containing such cocaine will always be penalized accord

ing to the lower quantity threshold of clause (iii), and never the

higher threshold clause (ii) establishes for mixtures and substances

containing “cocaine.” But the Court does not agree that the term “co

caine” in clause (ii) is therefore superfluous—in light of the structure

of subclause (II), “cocaine” is needed as the reference point for “salts”

and “isomers,” which would otherwise be meaningless.

The term “cocaine” in clause (ii) also performs another critical func

tion. Clause (iii) penalizes offenses involving a mixture or substance

“described in clause (ii) which contains cocaine base.” Thus, clause

(ii) imposes a penalty for offenses involving cocaine-related sub

stances generally, and clause (iii) imposes a higher penalty for a sub

set of those substances—the ones that “contai[n] cocaine base.” For

this structure to work, however, §841(b)(1) must “describ[e] in clause

(ii)” substances containing chemically basic cocaine, which then com

prise the subset described in clause (iii). Congress thus had good

reason to include the term “cocaine” in clause (ii), and the slight in

consistency created by its use of “cocaine base” in clause (iii) is insuf

ficient reason to adopt DePierre’s interpretation. Pp. 10–13.

(c) DePierre’s additional arguments are unpersuasive. First, the

records of the 1986 congressional hearings do not support his conten

tion that Congress was exclusively concerned with offenses involving

crack cocaine. Second, reading “cocaine base” to mean chemically ba

sic cocaine, rather than crack cocaine, does not lead to an absurd re

Cite as: 564 U. S. ____ (2011) 3

Syllabus

sult. Third, the fact that “cocaine base” in the Federal Sentencing

Guidelines is defined as “crack” does not require that the statutory

term be interpreted the same way. Fourth, the statute is sufficiently

clear that the rule of lenity does not apply in DePierre’s favor.

Pp. 13–18.

599 F. 3d 25, affirmed.

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

C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN,

JJ., joined, and in which SCALIA, J., joined except for Part III–A.

SCALIA, J., filed an opinion concurring in part and concurring in the

judgment.

Cite as: 564 U. S. ____ (2011) 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. 09–1533

_________________

FRANTZ DEPIERRE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 9, 2011]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

At the time of petitioner’s conviction and sentence,

federal law mandated a minimum 10-year sentence for

persons convicted of certain drug offenses, 21 U. S. C.

§841(a), including those involving 50 grams or more of

“a mixture or substance . . . which contains cocaine base,”

§841(b)(1)(A)(iii), and a minimum 5-year sentence for

offenses involving 5 grams or more of the same,

§841(b)(1)(B)(iii). This case requires us to decide whether

the term “cocaine base” as used in this statute refers

generally to cocaine in its chemically basic form or exclu

sively to what is colloquially known as “crack cocaine.” We

conclude that “cocaine base” means the former.

I

A

As a matter of chemistry, cocaine is an alkaloid with the

molecular formula C17H21NO4. Webster’s Third New In

ternational Dictionary 434 (2002). An alkaloid is a base—

that is, a compound capable of reacting with an acid to

form a salt.1 Id., at 54, 180; see also Brief for Individual

——————

1 There are more detailed theories of how acids and bases interact.

2 DEPIERRE v. UNITED STATES

Opinion of the Court

Physicians and Scientists as Amici Curiae 2–3 (herein

after Physicians Brief). Cocaine is derived from the coca

plant native to South America. The leaves of the coca

plant can be processed with water, kerosene, sodium car

bonate, and sulphuric acid to produce a paste-like sub

stance. R. Weiss, S. Mirin, & R. Bartel, Cocaine 10 (2d

ed. 1994). When dried, the resulting “coca paste” can be

vaporized (through the application of heat) and inhaled,

i.e., “smoked.” See United States Sentencing Commission,

Special Report to the Congress: Cocaine and Federal

Sentencing Policy 11–12 (1995) (hereinafter Commission

Report). Coca paste contains C17H21NO4—that is, cocaine

in its base form.

Dissolving coca paste in water and hydrochloric acid

produces (after several intermediate steps) cocaine hydro

chloride, which is a salt with the molecular formula

C17H22NO4+Cl-. Id., at 12; Physicians Brief 3. Cocaine

hydrochloride, therefore, is not a base. It generally comes

in powder form, which we will refer to as “powder cocaine.”

It is usually insufflated (breathed in through the nose),

though it can also be ingested or diluted in water and

injected. Because cocaine hydrochloride vaporizes at a

much higher temperature than chemically basic cocaine

(at which point the cocaine molecule tends to decompose),

it is generally not smoked. See Commission Report 11,

n. 15, 12–13.

Cocaine hydrochloride can be converted into cocaine in

its base form by combining powder cocaine with water and

a base, like sodium bicarbonate (also known as baking

soda). Id., at 14. The chemical reaction changes the

cocaine hydrochloride molecule into a chemically basic

——————

For our purposes, it is sufficient to note the fundamental proposition

that a base and an acid can combine to form a salt, and all three are

different types of compounds. See generally Brief for Individual Physi

cians and Scientists as Amici Curiae 8; A Dictionary of Chemistry 6–7,

62–63, 496 (J. Dainith ed., 5th ed. 2004).

Cite as: 564 U. S. ____ (2011) 3

Opinion of the Court

cocaine molecule, Physicians Brief 4, and the resulting

solid substance can be cooled and broken into small pieces

and then smoked, Commission Report 14. This substance

is commonly known as “crack” or “crack cocaine.”2 Alter

natively, powder cocaine can be dissolved in water and

ammonia (also a base); with the addition of ether, a solid

substance—known as “freebase”—separates from the solu

tion, and can be smoked. Id., at 13. As with crack cocaine,

freebase contains cocaine in its chemically basic form.

Ibid.

Chemically, therefore, there is no difference between the

cocaine in coca paste, crack cocaine, and freebase—all are

cocaine in its base form. On the other hand, cocaine in its

base form and in its salt form (i.e., cocaine hydrochloride)

are chemically different, though they have the same active

ingredient and produce the same physiological and psy

chotropic effects. See id., at 14–22. The key difference

between them is the method by which they generally enter

the body; smoking cocaine in its base form—whether as

coca paste, freebase, or crack cocaine—allows the body to

absorb the active ingredient quickly, thereby producing a

shorter, more intense high than obtained from insufflating

cocaine hydrochloride. Ibid.; see generally Kimbrough v.

United States, 552 U. S. 85, 94 (2007).

B

In 1986, increasing public concern over the dangers

associated with illicit drugs—and the new phenomenon

of crack cocaine in particular—prompted Congress to re

vise the penalties for criminal offenses involving cocaine

related substances. See id., at 95–96. At the time, federal

law generally tied the penalties for drug offenses to both

the type of drug and the quantity involved, with no pro

——————

2 Though the terms “crack” and “crack cocaine” are interchangeable,

in this opinion we adopt DePierre’s practice and generally employ the

latter.

4 DEPIERRE v. UNITED STATES

Opinion of the Court

vision for mandatory minimum sentences. See, e.g.,

§841(b)(1) (1982 ed., Supp. III). After holding several

hearings specifically addressing the emergence of crack

cocaine, Congress enacted the Anti-Drug Abuse Act of

1986 (ADAA), 100 Stat. 3207, which provided mandatory

minimum sentences for controlled-substance offenses in

volving specific quantities of drugs.

As relevant here, the ADAA provided a mandatory 10

year sentence for certain drug offenses involving 5 kilo

grams or more of “a mixture or substance containing a

detectable amount of ” various cocaine-related elements,

including coca leaves, cocaine, and cocaine salts; it also

called for the same sentence for offenses involving only

50 grams or more of “a mixture or substance . . . which

contains cocaine base.” ADAA, §1002, 100 Stat. 3207–2

(amending §§841(b)(1)(A)(ii)–(iii)) (emphasis added). The

ADAA also stipulated a mandatory 5-year sentence for

offenses involving 500 grams of a mixture or substance

containing coca leaves, cocaine, and cocaine salts, or 5

grams of a mixture or substance containing “cocaine base.”

Id., at 3207–3 (amending §§841(b)(1)(B)(ii)–(iii)).

Thus, the ADAA established a 100-to-1 ratio for the

threshold quantities of cocaine-related substances that

triggered the statute’s mandatory minimum penalties.

That is, 5 grams or more of “a mixture or substance . . .

which contains cocaine base” was penalized as severely as

100 times that amount of the other cocaine-related ele

ments enumerated in the statute. These provisions were

still in effect at the time of petitioner’s conviction and

sentence.3 See §§841(b)(1)(A)–(B) (2000 ed. and Supp. V).

——————

3 Due to a recent amendment, the quantity ratio in §841(b)(1) is now

roughly 18-to-1, but otherwise the relevant statutory provisions are

unchanged from those in effect at the time DePierre was sentenced.

See Fair Sentencing Act of 2010 (FSA), §2, 124 Stat. 2372 (changing the

quantity in §841(b)(1)(A)(iii) from 50 to 280 grams and in subparagraph

(B)(iii) from 5 to 28 grams).

Cite as: 564 U. S. ____ (2011) 5

Opinion of the Court

The United States Sentencing Commission subsequently

promulgated Sentencing Guidelines for drug-trafficking

offenses. Under the Guidelines, the offense levels for drug

crimes are tied to the drug type and quantity involved.

See United States Sentencing Commission, Guidelines

Manual §2D1.1(c) (Nov. 2010) (USSG). The Commission

originally adopted the ADAA’s 100-to-1 ratio for offenses

involving “cocaine” and “cocaine base,” though instead of

setting only two quantity thresholds, as the ADAA did, the

Guidelines “set sentences for the full range of possible

drug quantities.” Commission Report 1; see generally

Kimbrough, 552 U. S., at 96–97.4

The original version of §2D1.1(c) did not define “cocaine

base” as used in that provision, but in 1993 the Commis

sion issued an amendment to explain that “ ‘[c]ocaine

base,’ for the purposes of this guideline, means ‘crack,’ ”

that is, “the street name for a form of cocaine base, usually

prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike

form.” USSG App. C, Amdt. 487 (effective Nov. 1, 1993);

see also USSG §2D1.1(c), n. (D). The Commission noted

that “forms of cocaine base other than crack (e.g., coca

paste . . .) will be treated as cocaine.” USSG App. C,

Amdt. 487.5

C

In April 2005, petitioner Frantz DePierre sold two bags

——————

4 In 2007 the Commission increased the quantity of cocaine base re

quired to trigger each offense level, reducing the cocaine base-to-cocaine

sentencing ratio under the Guidelines. See USSG Supp. App. C, Amdt.

706 (effective Nov. 1, 2007). Unless otherwise noted, we cite to the

current versions of the relevant Guidelines provisions.

5 The Guidelines’ Drug Quantity Table only lists “cocaine” and “co

caine base” among its enumerated controlled substances, but the

application notes make clear that the term “cocaine” includes “ecgonine

and coca leaves,” as well as “salts, isomers, and salts of isomers” of

cocaine. §2D1.1(c), and comment., n. 5.

6 DEPIERRE v. UNITED STATES

Opinion of the Court

of drugs to a Government informant. DePierre was subse

quently indicted on a charge of distributing 50 grams or

more of cocaine base under §§841(a)(1) and (b)(1)(A)(iii).6

At trial, a Government chemist testified that the sub

stance in the bags, which weighed 55.1 grams, was “co

caine base.” Tr. 488, 490. She was not able to identify any

sodium bicarbonate. Id., at 499. A police officer testified

that the substance in question was “off-white [and]

chunky.” Id., at 455.

DePierre asked the District Court to instruct the jury

that, in order to find him guilty of distribution of cocaine

base, it must find that his offense involved “the form

of cocaine base known as crack cocaine.” App. in No. 08–

2101 (CA1), p. 43. His proposed jury instruction defined

“crack” identically to the Guidelines definition. See id., at

43–44; see also USSG §2D1.1(c), n. (D). In addition, De-

Pierre asked the court to instruct the jury that “[c]hemi

cal analysis cannot establish a substance as crack because

crack is chemically identical to other forms of cocaine base,

although it can reveal the presence of sodium bicarbonate,

which is usually used in the processing of crack.” App. in

No. 08–2101, at 44.

The court, however, instructed the jury that “the statute

that’s relevant asks about cocaine base. Crack cocaine is a

form of cocaine base, so you’ll tell us whether or not what

was involved is cocaine base . . . .” Tr. 585 (paragraph

break omitted). The jury form asked whether the offense

involved “over 50 grams of cocaine base.” App. to Pet. for

Cert. 17a. The jury found DePierre guilty of distributing

50 grams or more of cocaine base, and the court sentenced

DePierre to 120 months in prison as required by the statute.

——————

6 DePierre

was also indicted for distribution of powder cocaine under

§841(a)(1) and possession of a firearm with an obliterated serial num

ber under 18 U. S. C. §922(k). He was convicted by jury of the former

offense and pleaded guilty to the latter prior to trial.

Cite as: 564 U. S. ____ (2011) 7

Opinion of the Court

The United States Court of Appeals for the First Cir

cuit affirmed, rejecting DePierre’s argument that

§841(b)(1)(A)(iii) should be read only to apply to offenses

involving crack cocaine. 599 F. 3d 25, 30–31 (2010).

While noting the division on this question among the

Courts of Appeals, id., at 30–31, and nn. 3, 4, the First

Circuit adhered to its own precedent and “read the statute

according to its terms,” holding that “ ‘cocaine base’ refers

to ‘all forms of cocaine base, including but not limited to

crack cocaine.’ ” Id., at 30–31 (quoting United States v.

Anderson, 452 F. 3d 66, 86–87 (CA1 2006)). We granted

certiorari to resolve the longstanding division in authority

among the Courts of Appeals on this question. 562 U. S.

___ (2010).

II

A

We begin with the statutory text. See United States

v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989).

Section 841(b)(1)(A) provides a mandatory 10-year mini

mum sentence for certain drug offenses involving

“(ii) 5 kilograms or more of a mixture or substance

containing a detectable amount of—

“(I) coca leaves, except coca leaves and extracts of

coca leaves from which cocaine, ecgonine, and de

rivatives of ecgonine or their salts have been

removed;

“(II) cocaine, its salts, optical and geometric iso

mers, and salts of isomers;

“(III) ecgonine, its derivatives, their salts, isomers,

and salts of isomers; or

“(IV) any compound, mixture, or preparation which

contains any quantity of any of the substances re

ferred to in subclauses (I) through (III); [or]

“(iii) 50 grams or more of a mixture or substance de

8 DEPIERRE v. UNITED STATES

Opinion of the Court

scribed in clause (ii) which contains cocaine base.”7

We agree with the Government that the most natural

reading of the term “cocaine base” is “cocaine in its base

form”—i.e., C17H21NO4, the molecule found in crack co

caine, freebase, and coca paste. On its plain terms, then,

“cocaine base” reaches more broadly than just crack co

caine. In arguing to the contrary, DePierre asks us to

stray far from the statute’s text, as the term “crack co

caine” appears nowhere in the ADAA (or the United States

Code, for that matter). While the Government’s reading is

not without its problems,8 that reading follows from the

words Congress chose to include in the text. See United

States v. Rodriquez, 553 U. S. 377, 384 (2008) (eschewing

an interpretation that was “not faithful to the statutory

text”). In short, the term “cocaine base” is more plausibly

read to mean the “chemically basic form of cocaine,” Brief

for United States 15, than it is “crack cocaine,” Brief for

——————

7 As noted earlier, §841(b)(1)(B) calls for a mandatory minimum 5

year sentence for offenses involving exactly the same substances; the

only difference in subparagraph (B) is that the threshold quantity in

clause (ii) is 500 grams, and in clause (iii) it is 5 grams. Because the

100-to-1 ratio is a feature of both §§841(b)(1)(A) and (B), and those

subparagraphs are identical in all other respects, throughout this

opinion we use the terms “clause (ii)” and “clause (iii)” to refer to those

clauses as present in either subparagraph.

8 The Government urges us to give “cocaine base” its “settled, unam

biguous scientific meaning,” i.e., “the form of cocaine classified chemi

cally as a base, with the chemical formula C17H21NO4 and a particular

molecular structure.” Brief for United States 20; cf. McDermott Int’l,

Inc. v. Wilander, 498 U. S. 337, 342 (1991) (“In the absence of contrary

indication, we assume that when a statute uses . . . a term [of art],

Congress intended it to have its established meaning”). But the scien

tifically proper appellation for C17H21NO4 is “cocaine” tout court, and

the Government cites no source that uses “cocaine base” to refer to

C17H21NO4 (save lower-court opinions construing the statute at issue

in this case). Therefore, there is no “settled meaning”—scientific or

otherwise—of “cocaine base” for us to apply to §841(b)(1).

Cite as: 564 U. S. ____ (2011) 9

Opinion of the Court

Petitioner 24, 28.9

We agree with DePierre that using the term “cocaine

base” to refer to C17H21NO4 is technically redundant; as

noted earlier, chemically speaking cocaine is a base. If

Congress meant in clause (iii) to penalize more severely

offenses involving “a mixture or substance . . . which

contains” cocaine in its base form it could have simply

(and more correctly) used the word “cocaine” instead. But

Congress had good reason to use “cocaine base” in the

ADAA—to distinguish the substances covered by clause

(iii) from other cocaine-related substances. For example,

at the time Congress enacted the statute, the word “co

caine” was commonly used to refer to cocaine hydrochlo

ride, i.e., powder cocaine. See, e.g., United States v. Mon

toya de Hernandez, 473 U. S. 531, 536, 544 (1985)

(repeatedly referring to cocaine hydrochloride as “co

caine”); “Crack” Cocaine, Hearing before the Permanent

Subcommittee on Investigations of the Senate Committee

on Governmental Affairs, 99th Cong., 2d Sess., 94 (1986)

(hereinafter Crack Cocaine Hearing) (prepared statement

of David L. Westrate, Assistant Administrator, Drug

Enforcement Admin., Dept. of Justice) (discussing produc

tion of “a white, crystalline powder, cocaine hydrochloride,

otherwise known simply as cocaine”).

To make things more confusing, in the scientific and

medical literature the word “cocaine” is often used to refer

to all cocaine-related substances, including powder co

caine. See, e.g., J. Fay, The Alcohol/Drug Abuse Diction

ary and Encyclopedia 26–27 (1988); Weiss et al., Cocaine,

at 15–25; R. Lewis, Hawley’s Condensed Chemical Dic

——————

9 The statute itself gives us good reason to reject DePierre’s reading.

Substituting “crack cocaine” for “cocaine base” would mean that clause

(iii) only applies to a “mixture or substance . . . which contains [crack

cocaine].” But crack cocaine is itself a “substance” involved in drug

offenses; it is the end product that is bought, sold, and consumed. We

are aware of no substance that “contains” crack cocaine.

10 DEPIERRE v. UNITED STATES

Opinion of the Court

tionary 317 (15th ed. 2007). Accordingly, Congress’ choice

to use the admittedly redundant term “cocaine base” to

refer to chemically basic cocaine is best understood as an

effort to make clear that clause (iii) does not apply to

offenses involving powder cocaine or other nonbasic

cocaine-related substances.

B

Notwithstanding DePierre’s arguments to the contrary,

reading “cocaine base” to mean chemically basic cocaine is

also consistent with §841(b)(1)’s somewhat confounding

structure. DePierre is correct that the interpretation we

adopt today raises the question why Congress included the

word “cocaine” in subclause (II) of clause (ii). That sub

clause lists “cocaine, its salts, optical and geometric iso

mers, and salts of isomers” as elements subject to clause

(ii)’s higher quantity threshold. §§841(b)(1)(A)(ii)(II),

(B)(ii)(II) (emphasis added). If, as we conclude, the terms

“cocaine” and “cocaine base” both mean chemically basic

cocaine, offenses involving a mixture or substance which

contains such cocaine will always be penalized according

to the lower quantity thresholds of clause (iii), and never

the higher quantity thresholds clause (ii) establishes for

mixtures and substances containing “cocaine.”10

While this much is true, we do not agree with DePierre

that the word “cocaine” in subclause (II) is therefore su

perfluous. For without the word “cocaine” subclause (II)

makes no sense: It would provide a minimum sentence for

offenses involving a specified quantity of simply “its salts,

optical and geometric isomers, and salts of isomers.” In

——————

10 DePierre makes a similar argument with respect to coca leaves:

Because they contain chemically basic cocaine, he contends, under the

Government’s interpretation offenses involving coca leaves will never

be subject to the lower quantity threshold associated with subclause (I),

rendering that provision superfluous. For reasons discussed later, see

infra, at 15–16, we are not convinced.

Cite as: 564 U. S. ____ (2011) 11

Opinion of the Court

light of the structure of the subclause, the word “cocaine”

is needed as the reference point for “salts” and “isomers.”

The word “cocaine” in subclause (II) also performs an

other critical function. Clause (iii) penalizes offenses

involving “a mixture or substance described in clause (ii)

which contains cocaine base.” §§841(b)(1)(A)(iii), (B)(iii)

(emphasis added). In other words, clause (ii) imposes a

penalty for offenses involving cocaine-related substances

generally, and clause (iii) imposes a higher penalty for

a subset of those substances—the ones that “contai[n]

cocaine base.” For this structure to work, however,

§841(b)(1) must “describ[e] in clause (ii)” substances con

taining chemically basic cocaine, which then comprise the

subset described in clause (iii). If such substances were

not present in clause (ii), clause (iii) would only apply to

substances that contain both chemically basic cocaine and

one of the other elements enumerated in clause (ii). Pre

sumably, the result would be that clause (iii) would not

apply to crack cocaine, freebase, or coca paste offenses, as

there is no indication that, in addition to “cocaine base”

(i.e., C17H21NO4), those substances contain cocaine “salts”

(e.g., cocaine hydrochloride), ecgonine, or any of the other

elements enumerated in clause (ii). In short, the exclusion

of “cocaine” from clause (ii) would result in clause (iii)

effectively describing a null set, which obviously was not

Congress’ intent.

Of course, this redundancy could have been avoided by

simply drafting clause (iii) to penalize offenses involving

“a mixture or substance which contains cocaine base,”

without reference to clause (ii)—that is, Congress could

have drafted clause (iii) to specify a separate set of cocaine

related substances, not a subset of those in clause (ii).

That we may rue inartful legislative drafting, however,

does not excuse us from the responsibility of construing a

12 DEPIERRE v. UNITED STATES

Opinion of the Court

statute as faithfully as possible to its actual text.11 And as

noted earlier, there is no textual support for DePierre’s

interpretation of “cocaine base” to mean “crack cocaine.”

We also recognize that our reading of “cocaine” in sub

clause (II) and “cocaine base” in clause (iii) to both refer to

chemically basic cocaine is in tension with the usual rule

that “when the legislature uses certain language in one

part of the statute and different language in another, the

court assumes different meanings were intended.” Sosa v.

Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (internal

quotation marks omitted). However, because “Congress

sometimes uses slightly different language to convey the

same message,” Deal v. United States, 508 U. S. 129, 134

(1993) (internal quotation marks omitted), we must be

careful not to place too much emphasis on the marginal

semantic divergence between the terms “cocaine” and

“cocaine base.” As we have already explained, Congress

had good reason to employ the latter term in clause (iii),

and the slight inconsistency in nomenclature is insuffi

cient reason to adopt DePierre’s interpretation. Cf. Public

Lands Council v. Babbitt, 529 U. S. 728, 746–747 (2000)

——————

11 At the time the ADAA was enacted, the definition of “narcotic drug”

in the same subchapter of the United States Code included, as relevant,

the following:

“(C) Coca leaves, except coca leaves and extracts of coca leaves from

which cocaine, ecgonine, and derivatives of ecgonine or their salts have

been removed.

“(D) Cocaine, its salts, optical and geometric isomers, and salts of

isomers.

“(E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers.

“(F) Any compound, mixture, or preparation which contains any quan

tity of any of the substances referred to in [the preceding] subpara

graphs . . . . ” 21 U. S. C. §802(17) (1982 ed., Supp. III).

Accordingly, the likely explanation for the ADAA’s curious structure is

that Congress simply adopted this preexisting enumeration of cocaine

related controlled substances, and then engrafted clause (iii) to provide

enhanced penalties for the subset of offenses involving chemically basic

cocaine.

Cite as: 564 U. S. ____ (2011) 13

Opinion of the Court

(suggesting that a “statute’s basic purpose” might support

the conclusion that “two sets of different words mean the

same thing”).

III

DePierre offers four additional arguments in support of his

view that the term “cocaine base” in clause (iii) is best read

to mean “crack cocaine.” We do not find them convincing.

A

DePierre first argues that we should read “cocaine base”

to mean “crack cocaine” because, in passing the ADAA,

Congress in 1986 intended to penalize crack cocaine

offenses more severely than those involving other sub

stances containing C17H21NO4. As is evident from the pre

ceding discussion, this position is not supported by the

statutory text. To be sure, the records of the contempora

neous congressional hearings suggest that Congress was

most concerned with the particular dangers posed by the

advent of crack cocaine. See, e.g., Crack Cocaine Hearing

1 (statement of Chairman Roth) (“[We] mee[t] today to

examine a frightening and dangerous new twist in the

drug abuse problem—the growing availability and use of a

cheap, highly addictive, and deadly form of cocaine known

on the streets as ‘crack’ ”); see generally Commission Re

port 116–118; Kimbrough, 552 U. S., at 95–96.

It does not necessarily follow, however, that in passing

the ADAA Congress meant for clause (iii)’s lower quantity

thresholds to apply exclusively to crack cocaine offenses.

Numerous witnesses at the hearings testified that the

primary reason crack cocaine was so dangerous was

because—contrary to powder cocaine—cocaine in its base

form is smoked, which was understood to produce a faster,

more intense, and more addictive high than powder co

caine. See, e.g., Crack Cocaine Hearing 20 (statement of

Dr. Robert Byck, Yale University School of Medicine)

14 DEPIERRE v. UNITED STATES

Opinion of the Court

(stating that the ability to inhale vapor “is the reason why

crack, or cocaine free-base, is so dangerous”). This is not,

however, a feature unique to crack cocaine, and freebase

and coca paste were also acknowledged as dangerous,

smokeable forms of cocaine. See, e.g., id., at 70 (prepared

statement of Dr. Charles R. Schuster, Director, National

Institute on Drug Abuse) (reporting on the shift from

snorting powder cocaine to “newer more dangerous routes

of administration, such as freebase smoking”); id., at 19–

20 (statement of Dr. Byck) (describing the damaging ef

fects of cocaine smoking on people in Peru).

Moreover, the testimony of witnesses before Congress

did not clearly distinguish between these base forms of

cocaine; witnesses repeatedly used terms like “cocaine

base,” “freebase,” or “cocaine freebase” in a manner that

grouped crack cocaine with other substances containing

chemically basic forms of cocaine. See, e.g., Trafficking

and Abuse of “Crack” in New York City, House Select

Committee on Narcotics Abuse and Control, 99th Cong.,

2d Sess., 258 (1986) (statement of Robert M. Stutman,

Special Agent in Charge, Drug Enforcement Admin., Dept.

of Justice) (“[C]ocaine in its alkaloid form [is] commonly

known on the street as crack, rock, base, or freebase”);

Crack Cocaine Hearing 71 (statement of Dr. Schuster) (“In

other words, ‘crack’ is a street name for cocaine freebase”).

In fact, prior to passage of the ADAA, multiple bills were

introduced in Congress that imposed enhanced penalties

on those who trafficked in “cocaine base,” e.g., S. 2787,

99th Cong., 2d Sess., §1 (1986), as well as “cocaine free

base,” e.g., H. R. 5394, 99th Cong., 2d Sess., §101 (1986);

H. R. 5484, 99th Cong., 2d Sess., §608(a) (1986).

Given crack cocaine’s sudden emergence and the simi

larities it shared with other forms of cocaine, this lack of

clarity is understandable, as is Congress’ desire to adopt a

statutory term that would encompass all forms. Congress

faced what it perceived to be a new threat of massive

Cite as: 564 U. S. ____ (2011) 15

Opinion of the Court

scope. See, e.g., Crack Cocaine Hearing 4 (statement of

Sen. Nunn) (“[C]ocaine use, particularly in the more pure

form known as crack, is at near epidemic proportions”);

id., at 21 (statement of Dr. Byck) (“We are dealing with

a worse drug . . . than we have ever dealt with, or that

anybody has ever dealt with in history”). Accordingly, Con

gress chose statutory language broad enough to meet

that threat. As we have noted, “statutory prohibitions

often go beyond the principal evil to cover reasonably

comparable evils.” Oncale v. Sundowner Offshore Ser

vices, Inc., 523 U. S. 75, 79 (1998). In the absence of any

indication in the statutory text that Congress intended

only to subject crack cocaine offenses to enhanced penal

ties, we cannot adopt DePierre’s narrow construction. See

Lewis v. Chicago, 560 U. S. ___, ___ (2010) (slip op., at 9)

(“It is not for us to rewrite [a] statute so that it covers only

what we think is necessary to achieve what we think

Congress really intended”).

B

DePierre also argues that we should read the term “co

caine base” to mean “crack cocaine,” rather than chemi

cally basic cocaine, because the latter definition leads to

an absurd result. Cf. EEOC v. Commercial Office Prod

ucts Co., 486 U. S. 107, 120 (1988) (plurality opinion). He

contends that, because coca leaves themselves contain

cocaine, under the Government’s approach an offense

involving 5 grams of coca leaves will be subject to the 5

year minimum sentence in §841(b)(1)(B)(iii), even though

those leaves would produce only .05 grams of smokeable

cocaine. See Brief for Petitioner 41–42. While we agree that

it would be questionable to treat 5 grams of coca leaves as

equivalent to 500 grams of powder cocaine for minimum

sentence purposes, we are not persuaded that such a

result would actually obtain in light of our decision today.

To begin with, it is a matter of dispute between the

16 DEPIERRE v. UNITED STATES

Opinion of the Court

parties whether coca leaves in their natural, unprocessed

form actually contain chemically basic cocaine. Compare

Brief for Petitioner 15, 17, n. 10, with Brief for United

States 43. Even assuming that DePierre is correct as a

matter of chemistry that coca leaves contain cocaine in its

base form,12 see Physicians Brief 2, 11, the Government

has averred that it “would not be able to make that show

ing in court,” Tr. of Oral Arg. 27, and that “coca leaves

should not be treated as containing ‘cocaine base’ for

purposes of Clause (iii),” Brief for United States 45.

It is unsurprising, therefore, that the Government in its

brief disclaimed awareness of any prosecution in which

it had sought, or the defendant had received, a statutory

minimum sentence enhanced under clause (iii) for an of

fense involving coca leaves. Id., at 44. And although

this question is not before us today, we note that Congress’

deliberate choice to enumerate “coca leaves” in clause (ii)

strongly indicates its intent that offenses involving such

leaves be subject to the higher quantity thresholds of that

clause. Accordingly, there is little danger that the statute

will be read in the “absurd” manner DePierre fears.

C

In addition, DePierre suggests that because the Sen

tencing Commission has, since 1993, defined “cocaine

base” to mean “crack” for the purposes of the Federal

Sentencing Guidelines, we should do the same with re

spect to §841(b)(1). We do not agree. We have never held

that, when interpreting a term in a criminal statute,

deference is warranted to the Sentencing Commission’s

definition of the same term in the Guidelines. Cf. Neal v.

United States, 516 U. S. 284, 290–296 (1996). And we

——————

12 It appears that Congress itself is of the view that coca leaves con

tain “cocaine,” as subclause (I) exempts offenses involving “coca leaves

from which cocaine . . . ha[s] been removed.” §§841(b)(1)(A)(ii)(I),

(B)(ii)(I).

Cite as: 564 U. S. ____ (2011) 17

Opinion of the Court

need not decide now whether such deference would be

appropriate, because the Guidelines do not purport to

interpret §841(b)(1). See USSG §2D1.1(c), n. (D) (“ ‘Co

caine base,’ for the purposes of this guideline, means

‘crack’ ” (emphasis added)).13

We recognize that, because the definition of “cocaine

base” in clause (iii) differs from the Guidelines definition,

certain sentencing anomalies may result. For example, an

offense involving 5 grams of crack cocaine and one involv

ing 5 grams of coca paste both trigger a minimum 5

year sentence under §841(b)(1)(B)(iii). But defendants

convicted of offenses involving only 4 grams of each sub

stance—which do not trigger the statutory minimums—

would likely receive different sentences, because of the

Guidelines’ differential treatment of those substances with

respect to offense level.14 Compare USSG §2D1.1(c)(9)

(providing an offense level of 22 for at least 4 grams of

“cocaine base,” i.e., “crack”) with §2D1.1(c)(14) (providing

an offense level of 12 for less than 25 grams of “cocaine,”

which, under the Guidelines, includes coca paste). As we

have noted in previous opinions, however, such disparities

are the inevitable result of the dissimilar operation of the

fixed minimum sentences Congress has provided by stat-

——————

13 We also disagree with DePierre’s contention that Congress’ failure

to reject the Guidelines definition of “cocaine base” means that it has

effectively adopted that interpretation with respect to the statute. See

Kimbrough v. United States, 552 U. S. 85, 106 (2007) (“Ordinarily, we

resist reading congressional intent into congressional inaction”).

14 In defining “cocaine base” as “crack,” the Commission explained

that “forms of cocaine base other than crack” are treated as “cocaine”

for purposes of the Guidelines. USSG App. C, Amdt. 487 (effective Nov.

1, 1993). This includes coca paste, which the Commission described as

“an intermediate step in the processing of coca leaves into cocaine

hydrochloride.” Ibid. As we have explained, however, coca paste is a

smokeable form of cocaine in its own right, and we see no reason why,

as a statutory matter, it should be subject to lesser penalties than crack

or freebase.

18 DEPIERRE v. UNITED STATES

Opinion of the Court

ute and the graduated sentencing scheme established

by the Guidelines. See Kimbrough, 552 U. S., at 107–108;

Neal, 516 U. S., at 291–292. Accordingly, we reject De-

Pierre’s suggestion that the term “cocaine base” as used in

clause (iii) must be given the same definition as it has

under the Guidelines.

D

Finally, DePierre argues that, because §841(b)(1) is at

the very least ambiguous, the rule of lenity requires us to

interpret the statute in his favor. See United States v.

Santos, 553 U. S. 507, 514 (2008) (“The rule of lenity

requires ambiguous criminal laws to be interpreted in

favor of the defendants subjected to them”). As evinced by

the preceding discussion, we cannot say that the statute is

crystalline. The rule, however, is reserved for cases

where, “after seizing everything from which aid can be

derived, the Court is left with an ambiguous statute.”

Smith v. United States, 508 U. S. 223, 239 (1993) (internal

quotation marks and alterations omitted). Applying the

normal rules of statutory construction in this case, it is

clear that Congress used the term “cocaine base” in clause

(iii) to penalize more severely not only offenses involving

“crack cocaine,” but those involving substances containing

chemically basic cocaine more generally. There is no per

suasive justification for reading the statute otherwise.

Because the statutory text allows us to make far more

than “a guess as to what Congress intended,” Reno v.

Koray, 515 U. S. 50, 65 (1995) (internal quotation marks

omitted), the rule of lenity does not apply in DePierre’s

favor.

* * *

We hold that the term “cocaine base” as used in

§841(b)(1) means not just “crack cocaine,” but cocaine in

its chemically basic form. We therefore affirm the judg

ment of the Court of Appeals.

It is so ordered.

Cite as: 564 U. S. ____ (2011) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–1533

_________________

FRANTZ DEPIERRE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 9, 2011]

JUSTICE SCALIA, concurring in part and concurring in

the judgment.

I concur in the Court’s judgment and in all of its opinion

except for Part III–A, which needlessly contradicts De-

Pierre’s version of legislative history. Our holding today

is that the statutory term “cocaine base” refers to cocaine

base, rather than, as DePierre contends, one particular

type of cocaine base. This holding is in my view obvious,

and the Court does not disagree. It begins its discussion of

the legislative history by saying that DePierre’s position

“is not supported by the statutory text,” ante, at 13; and

ends the discussion by saying that “[i]n the absence of any

indication in the statutory text that Congress intended

only to subject crack cocaine offenses to enhanced penal

ties, we cannot adopt DePierre’s narrow construction,”

ante, at 15.

Everything in-between could and should have been

omitted. Even if Dr. Byck had not lectured an unde-

termined number of likely somnolent Congressmen on “the

damaging effects of cocaine smoking on people in Peru,”

ante, at 14, we would still hold that the words “cocaine

base” mean cocaine base. And here, as always, the need

less detour into legislative history is not harmless. It con

veys the mistaken impression that legislative history

could modify the text of a criminal statute as clear as this.

2 DEPIERRE v. UNITED STATES

Opinion of SCALIA, J.

In fact, however, even a hypothetical House Report ex

pressing the Committee’s misunderstanding (or perhaps

just the Committee staff’s misunderstanding, who knows?)

that “cocaine base means crack cocaine” could not have

changed the outcome of today’s opinion.