Lockhart v. United States

(Slip Opinion) OCTOBER TERM, 2015 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

LOCKHART v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 14–8358. Argued November 3, 2015—Decided March 1, 2016

Petitioner Avondale Lockhart pleaded guilty to possessing child por-

nography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart

had a prior state-court conviction for first-degree sexual abuse involv-

ing his adult girlfriend, his presentence report concluded that he was

subject to the 10-year mandatory minimum sentence enhancement

provided in §2252(b)(2), which is triggered by, inter alia, prior state

convictions for crimes “relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or ward.” Lock-

hart argued that the limiting phrase “involving a minor or ward” ap-

plied to all three state crimes, so his prior conviction did not trigger

the enhancement. Disagreeing, the District Court applied the man-

datory minimum. The Second Circuit affirmed.

Held: Lockhart’s prior conviction is encompassed by §2252(b)(2). Pp. 2–

15.

(a) A natural reading of the text supports that conclusion. The

“rule of the last antecedent,” a canon of statutory interpretation stat-

ing that “a limiting clause or phrase . . . should ordinarily be read as

modifying only the noun or phrase that it immediately follows,”

Barnhart v. Thomas, 540 U. S. 20, 26, clarifies that the phrase “in-

volving a minor or ward” modifies only the immediately preceding

noun phrase “abusive sexual conduct” and that the phrases “aggra-

vated sexual abuse” and “sexual abuse” are not so restricted. The

rule “can . . . be overcome by other indicia of meaning,” ibid., but

§2252(b)(2)’s context reinforces its application in this case. Pp. 2–5.

(b) Section 2252(b)(2)’s enhancement can also be triggered by, inter

alia, a prior federal sexual abuse offense enumerated in Chapter

109A of the Federal Criminal Code. Interpreting §2252(b)(2) using

the “rule of the last antecedent,” the headings in Chapter 109A mir-

2 LOCKHART v. UNITED STATES

Syllabus

ror precisely the order, precisely the divisions, and nearly precisely

the words used to describe the state sexual-abuse predicates. Apply-

ing the modifier “involving a minor or ward” to all three items in

§2252(b)(2)’s list, by contrast, would require this Court to interpret

the state predicates in a way that departs from the federal template.

If Congress had intended that result, it is doubtful that Congress

would have followed so closely the structure and language of Chapter

109A. Pp. 5–7.

(c) Lockhart’s counterarguments are rejected. Pp. 7–14.

(1) Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345,

United States v. Bass, 404 U. S. 336, and Jama v. Immigration and

Customs Enforcement, 543 U. S. 335, do not require this Court to ap-

ply Lockhart’s countervailing series-qualifier principle. In those cas-

es, the Court simply observed that the last-antecedent rule may be

overcome by contextual indicia of meaning. Lockhart’s attempts to

identify such indicia are unavailing. He claims that the state predi-

cates are so similar that a limiting phrase could apply equally to all

three. But by transforming a list of separate predicates into a set of

near-synonyms, Lockhart’s reading results in too much redundancy

and risks running headlong into the rule against superfluity. Pp. 7–

10.

(2) Lockhart contends that the existence of other disparities be-

tween §2252(b)(2)’s state and federal sexual-abuse predicates indi-

cate that parity was not Congress’ concern. However, this Court’s

construction relies on contextual cues particular to the sexual-abuse

predicates, not on a general assumption that Congress sought full

parity between all state and federal predicates. Pp. 10–11.

(3) The provision’s legislative history “hardly speaks with [a]

clarity of purpose,” Universal Camera Corp. v. NLRB, 340 U. S. 474,

483, and does nothing to explain why Congress would have wanted to

structure §2252(b)(2) to treat state and federal predicates differently.

Pp. 11–14.

(4) Finally, Lockhart suggests the rule of lenity is triggered here,

where applying his series-qualifier principle would lead to an alter-

native construction of §2252(b)(2). The rule of lenity is used to re-

solve ambiguity only when the ordinary canons have revealed no sat-

isfactory construction. Here, however, the rule of the last antecedent

is well supported by context, and Lockhart’s alternative is not. P. 14.

749 F. 3d 148, affirmed.

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

C. J., and KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. KAGAN,

J., filed a dissenting opinion, in which BREYER, J., joined.

Cite as: 577 U. S. ____ (2016) 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. 14–8358

_________________

AVONDALE LOCKHART, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[March 1, 2016]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

Defendants convicted of possessing child pornography in

violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year

mandatory minimum sentence and an increased maxi­

mum sentence if they have “a prior conviction . . . under

the laws of any State relating to aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor

or ward.” §2252(b)(2).

The question before us is whether the phrase “involving

a minor or ward” modifies all items in the list of predicate

crimes (“aggravated sexual abuse,” “sexual abuse,” and

“abusive sexual conduct”) or only the one item that imme­

diately precedes it (“abusive sexual conduct”). Below, the

Court of Appeals for the Second Circuit joined several

other Courts of Appeals in holding that it modifies only

“abusive sexual conduct.” The Eighth Circuit has reached

the contrary result. We granted certiorari to resolve that

split. 575 U. S. ___ (2015). We affirm the Second Circuit’s

holding that the phrase “involving a minor or ward” in

§2252(b)(2) modifies only “abusive sexual conduct.”

2 LOCKHART v. UNITED STATES

Opinion of the Court

I

In April 2000, Avondale Lockhart was convicted of

sexual abuse in the first degree under N. Y. Penal Law

Ann. §130.65(1) (West Cum. Supp. 2015). The crime

involved his then-53-year-old girlfriend. Presentence

Investigation Report (PSR), in No. 11–CR–231–01, p. 13,

¶¶47–48. Eleven years later, Lockhart was indicted in the

Eastern District of New York for attempting to receive

child pornography in violation of 18 U. S. C. §2252(a)(2)

and for possessing child pornography in violation of

§2252(a)(4)(b). Lockhart pleaded guilty to the possession

offense and the Government dismissed the receipt offense.

Lockhart’s presentence report calculated a guidelines

range of 78 to 97 months for the possession offense. But

the report also concluded that Lockhart was subject to

§2252(b)(2)’s mandatory minimum because his prior New

York abuse conviction related “to aggravated sexual abuse,

sexual abuse, or abusive sexual conduct involving a minor

or ward.” PSR ¶¶87–88.

Lockhart objected, arguing that the statutory phrase

“involving a minor or ward” applies to all three listed

crimes: “aggravated sexual abuse,” “sexual abuse,” and

“abusive sexual conduct.” He therefore contended that his

prior conviction for sexual abuse involving an adult fell

outside the enhancement’s ambit. The District Court

rejected Lockhart’s argument and applied the mandatory

minimum. The Second Circuit affirmed his sentence. 749

F. 3d 148 (CA2 2014).

II

Section 2252(b)(2) reads in full:

“Whoever violates, or attempts or conspires to vio­

late [18 U. S. C. §2252(a)(4)] shall be fined under this

title or imprisoned not more than 10 years, or both,

but . . . if such person has a prior conviction under

this chapter, chapter 71, chapter 109A, or chapter

Cite as: 577 U. S. ____ (2016) 3

Opinion of the Court

117, or under section 920 of title 10 (article 120 of the

Uniform Code of Military Justice), or under the laws

of any State relating to aggravated sexual abuse, sex­

ual abuse, or abusive sexual conduct involving a mi­

nor or ward, or the production, possession, receipt,

mailing, sale, distribution, shipment, or transporta­

tion of child pornography, such person shall be fined

under this title and imprisoned for not less than 10

years nor more than 20 years.”

This case concerns that provision’s list of state sexual-

abuse offenses. The issue before us is whether the limit­

ing phrase that appears at the end of that list—“involving

a minor or ward”—applies to all three predicate crimes

preceding it in the list or only the final predicate crime.

We hold that “involving a minor or ward” modifies only

“abusive sexual conduct,” the antecedent immediately

preceding it. Although §2252(b)(2)’s list of state predicates

is awkwardly phrased (to put it charitably), the provision’s

text and context together reveal a straightforward read­

ing. A timeworn textual canon is confirmed by the struc­

ture and internal logic of the statutory scheme.

A

Consider the text. When this Court has interpreted

statutes that include a list of terms or phrases followed by

a limiting clause, we have typically applied an interpretive

strategy called the “rule of the last antecedent.” See

Barnhart v. Thomas, 540 U. S. 20, 26 (2003). The rule

provides that “a limiting clause or phrase . . . should ordi­

narily be read as modifying only the noun or phrase that it

immediately follows.” Ibid.; see also Black’s Law Diction­

ary 1532–1533 (10th ed. 2014) (“[Q]ualifying words or

phrases modify the words or phrases immediately preced­

ing them and not words or phrases more remote, unless

the extension is necessary from the context or the spirit of

the entire writing”); A. Scalia & B. Garner, Reading Law:

4 LOCKHART v. UNITED STATES

Opinion of the Court

The Interpretation of Legal Texts 144 (2012).

This Court has applied the rule from our earliest deci­

sions to our more recent. See, e.g., Sims Lessee v. Irvine, 3

Dall. 425, 444, n. (1799); FTC v. Mandel Brothers, Inc.,

359 U. S. 385, 389, n. 4 (1959); Barnhart, 540 U. S., at 26.

The rule reflects the basic intuition that when a modifier

appears at the end of a list, it is easier to apply that modi­

fier only to the item directly before it. That is particularly

true where it takes more than a little mental energy to

process the individual entries in the list, making it a

heavy lift to carry the modifier across them all. For exam­

ple, imagine you are the general manager of the Yankees

and you are rounding out your 2016 roster. You tell your

scouts to find a defensive catcher, a quick-footed shortstop,

or a pitcher from last year’s World Champion Kansas City

Royals. It would be natural for your scouts to confine

their search for a pitcher to last year’s championship

team, but to look more broadly for catchers and shortstops.

Applied here, the last antecedent principle suggests that

the phrase “involving a minor or ward” modifies only the

phrase that it immediately follows: “abusive sexual con­

duct.” As a corollary, it also suggests that the phrases

“aggravated sexual abuse” and “sexual abuse” are not so

constrained.

Of course, as with any canon of statutory interpretation,

the rule of the last antecedent “is not an absolute and can

assuredly be overcome by other indicia of meaning.”

Barnhart, 540 U. S., at 26; see also Davis v. Michigan

Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a fun­

damental canon of statutory construction that the words of

a statute must be read in their context and with a view to

their place in the overall statutory scheme”). For instance,

take “ ‘the laws, the treaties, and the constitution of the

United States.’ ” Post, at 7, n. 1 (KAGAN, J., dissenting). A

reader intuitively applies “of the United States” to “the

laws,” “the treaties” and “the constitution” because (among

Cite as: 577 U. S. ____ (2016) 5

Opinion of the Court

other things) laws, treaties, and the constitution are often

cited together, because readers are used to seeing “of the

United States” modify each of them, and because the listed

items are simple and parallel without unexpected internal

modifiers or structure. Section 2252(b)(2), by contrast,

does not contain items that readers are used to seeing

listed together or a concluding modifier that readers are

accustomed to applying to each of them. And the varied

syntax of each item in the list makes it hard for the reader

to carry the final modifying clause across all three.

More importantly, here the interpretation urged by the

rule of the last antecedent is not overcome by other indicia

of meaning. To the contrary, §2252(b)(2)’s context fortifies

the meaning that principle commands.

B

Our inquiry into §2252(b)(2)’s context begins with the

internal logic of that provision. Section 2252(b)(2) estab­

lishes sentencing minimums and maximums for three

categories of offenders. The first third of the section im­

poses a 10-year maximum sentence on offenders with no

prior convictions. The second third imposes a 10-year

minimum and 20-year maximum on offenders who have

previously violated a federal offense listed within various

chapters of the Federal Criminal Code. And the last third

imposes the same minimum and maximum on offenders

who have previously committed state “sexual abuse,

aggravated sexual abuse, or abusive sexual conduct in­

volving a minor or ward” as well as a number of state

crimes related to the possession and distribution of child

pornography.

Among the chapters of the Federal Criminal Code that

can trigger §2252(b)(2)’s recidivist enhancement are

crimes “under . . . chapter 109A.” Chapter 109A criminal-

6 LOCKHART v. UNITED STATES

Opinion of the Court

izes a range of sexual-abuse offenses involving adults or

minors and wards.1 And it places those federal sexual-

abuse crimes under headings that use language nearly

identical to the language §2252(b)(2) uses to enumerate

the three categories of state sexual-abuse predicates. The

first section in Chapter 109A is titled “Aggravated sexual

abuse.” 18 U. S. C. §2241. The second is titled “Sexual

abuse.” §2242. And the third is titled “Sexual abuse of a

minor or ward.” §2243. Applying the rule of the last

antecedent, those sections mirror precisely the order,

precisely the divisions, and nearly precisely the words

used to describe the three state sexual-abuse predicate

crimes in §2252(b)(2): “aggravated sexual abuse,” “sexual

abuse,” and “abusive sexual conduct involving a minor or

ward.”

This similarity appears to be more than a coincidence.

We cannot state with certainty that Congress used Chap­

ter 109A as a template for the list of state predicates set

out in §2252(b)(2), but we cannot ignore the parallel,

particularly because the headings in Chapter 109A were

in place when Congress amended the statute to add

§2252(b)(2)’s state sexual-abuse predicates.2

If Congress had intended to limit each of the state pred­

icates to conduct “involving a minor or ward,” we doubt it

would have followed, or thought it needed to follow, so

closely the structure and language of Chapter 109A.3 The

——————

1 For example, §2241(a) of Chapter 109A prohibits forced sexual acts

against “another person”—not just a person under a certain age.

Section 2241(c) specially criminalizes sexual acts “with another person

who has not attained the age of 12 years,” and §2243(b) does the same

for sexual acts with wards who are “in official detention” or “under the

custodial, supervisory, or disciplinary authority of the person so engag­

ing.”

2 See 18 U. S. C. §2241 (1994 ed.) (“Aggravated sexual abuse”); §2242

(“Sexual abuse”); §2243 (“Sexual abuse of a minor or ward”).

3 The dissent points out that §2252(b)(2) (2012 ed.) did not also bor­

Cite as: 577 U. S. ____ (2016) 7

Opinion of the Court

conclusion that Congress followed the federal template is

supported by the fact that Congress did nothing to indi­

cate that offenders with prior federal sexual-abuse convic­

tions are more culpable, harmful, or worthy of enhanced

punishment than offenders with nearly identical state

priors. We therefore see no reason to interpret §2252(b)(2)

so that “[s]exual abuse” that occurs in the Second Circuit

courthouse triggers the sentence enhancement, but “sexual

abuse” that occurs next door in the Manhattan munici-

pal building does not.

III

A

Lockhart argues, to the contrary, that the phrase “in­

volving a minor or ward” should be interpreted to modify

all three state sexual-abuse predicates. He first contends,

as does our dissenting colleague, that the so-called series-

qualifier principle supports his reading. This principle,

Lockhart says, requires a modifier to apply to all items in

a series when such an application would represent a natu­

ral construction. Brief for Petitioner 12; post, at 4.

This Court has long acknowledged that structural or

contextual evidence may “rebut the last antecedent infer­

ence.” Jama v. Immigration and Customs Enforcement,

543 U. S. 335, 344, n. 4 (2005). For instance, in Porto Rico

——————

row from the heading of the fourth section in Chapter 109A (or, we

note, from the fifth, sixth, seventh, or eighth sections) in defining its

categories of state sexual-abuse predicates. Post, at 14-15 (KAGAN, J.

dissenting). But the significance of the similarity between the three

state predicates in §2252(b)(2) and the wording, structure, and order of

the first three sections of Chapter 109A is not diminished by the fact

that Congress stopped there (especially when the remaining sections

largely set out derivations from, definitions of, and penalties for the

first three). See, e.g., §2244 (listing offenses derived from §§2241, 2242,

and 2243); §2245 (creating an enhancement for offenses under Chapter

109A resulting in death); §2246 (listing definitions).

8 LOCKHART v. UNITED STATES

Opinion of the Court

Railway, Light & Power Co. v. Mor, 253 U. S. 345 (1920),

on which Lockhart relies, this Court declined to apply the

rule of the last antecedent where “[n]o reason appears

why” a modifying clause is not “applicable as much to the

first and other words as to the last” and where “special

reasons exist for so construing the clause in question.” Id.,

at 348. In United States v. Bass, 404 U. S. 336 (1971), this

Court declined to apply the rule of the last antecedent

where “there is no reason consistent with any discernable

purpose of the statute to apply” the limiting phrase to the

last antecedent alone. Id., at 341. Likewise, in Jama, the

Court suggested that the rule would not be appropriate

where the “modifying clause appear[s] . . . at the end of a

single, integrated list.” 543 U. S., at 344, n. 4. And, most

recently, in Paroline v. United States, 572 U. S. ___ (2014),

the Court noted that the rule need not be applied “in a

mechanical way where it would require accepting ‘unlikely

premises.’ ” Id., at ___ (slip op., at 9).

But in none of those cases did the Court describe, much

less apply, a countervailing grammatical mandate that

could bear the weight that either Lockhart or the dissent

places on the series qualifier principle. Instead, the Court

simply observed that sometimes context weighs against

the application of the rule of the last antecedent. Barn-

hart, 540 U. S., at 26. Whether a modifier is “applicable

as much to the first . . . as to the last” words in a list,

whether a set of items form a “single, integrated list,” and

whether the application of the rule would require ac­

ceptance of an “unlikely premise” are fundamentally

contextual questions.

Lockhart attempts to identify contextual indicia that he

says rebut the rule of the last antecedent, but those indicia

hurt rather than help his prospects. He points out that

the final two state predicates, “sexual abuse” and “abusive

sexual conduct,” are “nearly synonymous as a matter of

everyday speech.” Brief for Petitioner 17. And, of course,

Cite as: 577 U. S. ____ (2016) 9

Opinion of the Court

anyone who commits “aggravated sexual abuse” has also

necessarily committed “sexual abuse.” So, he posits, the

items in the list are sufficiently similar that a limiting

phrase could apply equally to all three of them.

But Lockhart’s effort to demonstrate some similarity

among the items in the list of state predicates reveals far

too much similarity. The three state predicate crimes are

not just related on Lockhart’s reading; they are hopelessly

redundant. Any conduct that would qualify as “aggravated

sexual abuse . . . involving a minor or ward” or “sexual

abuse . . . involving a minor or ward” would also qualify as

“abusive sexual conduct involving a minor or ward.” We

take no position today on the meaning of the terms “ag­

gravated sexual abuse,” “sexual abuse,” and “abusive

sexual conduct,” including their similarities and differ­

ences. But it is clear that applying the limiting phrase to

all three items would risk running headlong into the rule

against superfluity by transforming a list of separate

predicates into a set of synonyms describing the same

predicate. See Bailey v. United States, 516 U. S. 137, 146

(1995) (“We assume that Congress used two terms because

it intended each term to have a particular, nonsuperfluous

meaning”).

Applying the limiting phrase “involving a minor or

ward” more sparingly, by contrast, preserves some distinc­

tion between the categories of state predicates by limiting

only the third category to conduct “involving a minor or

ward.” We recognize that this interpretation does not

eliminate all superfluity between “aggravated sexual

abuse” and “sexual abuse.” See United States v. Atlantic

Research Corp., 551 U. S. 128, 137 (2007) (“[O]ur hesitancy

to construe statutes to render language superfluous

does not require us to avoid surplusage at all costs. It is

appropriate to tolerate a degree of surplusage”). But there

is a ready explanation for the redundancy that remains: It

follows the categories in Chapter 109A’s federal template.

10 LOCKHART v. UNITED STATES

Opinion of the Court

See supra, at 6. We see no similar explanation for Lock­

hart’s complete collapse of the list.

The dissent offers a suggestion rooted in its impressions

about how people ordinarily speak and write. Post, at 1–4.

The problem is that, as even the dissent acknowledges,

§2252(b)(2)’s list of state predicates is hardly intuitive. No

one would mistake its odd repetition and inelegant phras­

ing for a reflection of the accumulated wisdom of everyday

speech patterns. It would be as if a friend asked you to get

her tart lemons, sour lemons, or sour fruit from Mexico. If

you brought back lemons from California, but your friend

insisted that she was using customary speech and obvi-

ously asked for Mexican fruit only, you would be forgiven

for disagreeing on both counts.

Faced with §2252(b)(2)’s inartful drafting, then, do we

interpret the provision by viewing it as a clear, com­

monsense list best construed as if conversational English?

Or do we look around to see if there might be some prove­

nance to its peculiarity? With Chapter 109A so readily at

hand, we are unpersuaded by our dissenting colleague’s

invocation of basic examples from day-to-day life. What­

ever the validity of the dissent’s broader point, this simply

is not a case in which colloquial practice is of much use.

Section 2252(b)(2)’s list is hardly the way an average

person, or even an average lawyer, would set about to

describe the relevant conduct if they had started from

scratch.

B

Lockhart next takes aim at our construction of

§2252(b)(2) to avoid disparity between the state and federal

sexual-abuse predicates. He contends that other dispar-

ities between state and federal predicates in §2252(b)(2)

indicate that parity was not Congress’ concern. For exam­

ple, §2252(b)(2) imposes the recidivist enhancement on

offenders with prior federal convictions under Chapter 71

Cite as: 577 U. S. ____ (2016) 11

Opinion of the Court

of Title 18, which governs obscenity. See §§1461–1470.

Yet §2252(b)(2) does not impose a similar enhancement

for offenses under state obscenity laws. Similarly,

§2252(b)(2)’s neighbor provision, §2252(b)(1), creates a

mandatory minimum for sex trafficking involving chil­

dren, but not sex trafficking involving adults.

However, our construction of §2252(b)(2)’s sexual-abuse

predicates does not rely on a general assumption that

Congress sought full parity between all of the federal and

state predicates in §2252(b)(2). It relies instead on contex­

tual cues particular to the sexual-abuse predicates. To

enumerate the state sexual-abuse predicates, Congress

used language similar to that in Chapter 109A of the

Federal Criminal Code, which describes crimes involving

both adults and children. See supra, at 6. We therefore

assume that the same language used to describe the state

sexual-abuse predicates also describes conduct involving

both adults and children.

C

Lockhart, joined by the dissent, see post, at 9–11, next

says that the provision’s legislative history supports the

view that Congress deliberately structured §2252(b)(2) to

treat state and federal predicates differently. They rely on

two sources. The first is a reference in a Report from the

Senate Judiciary Committee on the Child Pornography

Prevention Act of 1996, 110 Stat. 3009–26. That Act was

the first to add the language at issue here—“aggravated

sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor or ward”—to the U. S. Code. (It was

initially added to §2252(b)(1), then added two years later

to §2252(b)(2)).

The Report noted that the enhancement applies to

persons with prior convictions “under any State child

abuse law or law relating to the production, receipt or

distribution of child pornography.” See S. Rep. No. 104–

12 LOCKHART v. UNITED STATES

Opinion of the Court

358, p. 9 (1996). But that reference incompletely describes

the state pornography production and distribution predi­

cates, which cover not only “production, receipt, or distrib­

uting of child pornography,” as the Report indicates, but

also “production, possession, receipt, mailing, sale, distri­

bution, shipment, or transportation of child pornography,”

§2252(b)(2). For the reasons discussed, we have no trouble

concluding that the Report also incompletely describes the

state sexual-abuse predicates.

Lockhart and the dissent also rely on a letter sent from

the Department of Justice (DOJ) to the House of Repre­

sentative’s Committee on the Judiciary commenting on the

proposed “Child Protection and Sexual Predator Punish­

ment Act of 1998.” H. R. Rep. No. 105–557, pp. 26–34

(1998). In the letter, DOJ provides commentary on the

then-present state of §§2252(b)(1) and 2252(b)(2), noting

that although there is a “5-year mandatory minimum

sentence for individuals charged with receipt or distribu­

tion of child pornography and who have prior state convic­

tions for child molestation” pursuant to §2252(b)(1), there

is “no enhanced provision for those individuals charged

with possession of child pornography who have prior

convictions for child abuse” pursuant to §2252(b)(2). Id.,

at 31. That letter, they say, demonstrates that DOJ un­

derstood the language at issue here to impose a sentencing

enhancement only for prior state convictions involving

children.

We doubt that DOJ was trying to describe the full reach

of the language in §2252(b)(1), as the dissent suggests. To

the contrary, there are several clues that the letter was

relaying on just one of the provision’s many salient fea­

tures. For instance, the letter’s references to “child moles­

tation” and “child abuse” do not encompass a large number

of state crimes that are unambiguously covered by “abu­

sive sexual conduct involving a minor or ward”—namely,

crimes involving “wards.” Wards can be minors, but they

Cite as: 577 U. S. ____ (2016) 13

Opinion of the Court

can also be adults. See, e.g., §2243(b) (defining “wards” as

persons who are “in official detention” and “under . . .

custodial, supervisory, or disciplinary authority”). More­

over, we doubt that DOJ intended to express a belief that

the potentially broad scope of serious crimes encompassed

by “aggravated sexual abuse, sexual abuse, and abusive

sexual conduct” reaches no further than state crimes that

would traditionally be characterized as “child molestation”

or “child abuse.”

Thus, Congress’ amendment to the provision did give

“DOJ just what it wanted,” post, at 10. But the amend­

ment also did more than that. We therefore think it un­

necessary to restrict our interpretation of the provision to

the parts of it that DOJ chose to highlight in its letter.

Just as importantly, the terse descriptions of the provision

in the Senate Report and DOJ letter do nothing to explain

why Congress would have wanted to apply the mandatory

minimum to individuals convicted in federal court of sex­

ual abuse or aggravated sexual abuse involving an adult,

but not to individuals convicted in state court of the same.

The legislative history, in short, “hardly speaks with [a]

clarity of purpose” through which we can discern Con­

gress’ statutory objective. Universal Camera Corp. v.

NLRB, 340 U. S. 474, 483 (1951).

The best explanation Lockhart can muster is a basic

administrability concern: Congress “knew what conduct it

was capturing under federal law and could be confident

that all covered federal offenses were proper predicates.

But Congress did not have the same familiarity with the

varied and mutable sexual-abuse laws of all fifty states.”

Brief for Petitioner 27. Perhaps Congress worried that

state laws punishing relatively minor offenses like public

lewdness or indecent exposure involving an adult would be

swept into §2252(b)(2). Id., at 28. But the risk Lockhart

identifies is minimal. Whether the terms in §2252(b)(2)

are given their “generic” meaning, see Descamps v. United

14 LOCKHART v. UNITED STATES

Opinion of the Court

States, 570 U. S. ___ (2013); Taylor v. United States, 495

U. S. 575 (1990), or are defined in light of their federal

counterparts—which we do not decide—they are unlikely

to sweep in the bizarre or unexpected state offenses that

worry Lockhart.

D

Finally, Lockhart asks us to apply the rule of lenity. We

have used the lenity principle to resolve ambiguity in

favor of the defendant only “at the end of the process of

construing what Congress has expressed” when the ordi­

nary canons of statutory construction have revealed no

satisfactory construction. Callanan v. United States, 364

U. S. 587, 596 (1961). That is not the case here. To be

sure, Lockhart contends that if we applied a different

principle of statutory construction—namely, his “series­

qualifier principle”—we would arrive at an alternative

construction of §2252(b)(2). But the arguable availability

of multiple, divergent principles of statutory construction

cannot automatically trigger the rule of lenity. Cf. Llewel­

lyn, Remarks on the Theory of Appellate Decision and the

Rules or Canons About How Statutes Are To Be Con­

strued, 3 Vand. L. Rev. 395, 401 (1950) (“[T]here are two

opposing canons on almost every point”). Here, the rule of

the last antecedent is well supported by context and Lock­

hart’s alternative is not. We will not apply the rule of

lenity to override a sensible grammatical principle but­

tressed by the statute’s text and structure.

* * *

We conclude that the text and structure of §2252(b)(2)

confirm that the provision applies to prior state convic­

tions for “sexual abuse” and “aggravated sexual abuse,”

whether or not the convictions involved a minor or ward.

We therefore hold that Lockhart’s prior conviction for

sexual abuse of an adult is encompassed by §2252(b)(2).

Cite as: 577 U. S. ____ (2016) 15

Opinion of the Court

The judgment of the Court of Appeals, accordingly, is

affirmed.

So ordered.

Cite as: 577 U. S. ____ (2016) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–8358

_________________

AVONDALE LOCKHART, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[March 1, 2016]

JUSTICE KAGAN, with whom JUSTICE BREYER joins,

dissenting.

Imagine a friend told you that she hoped to meet “an

actor, director, or producer involved with the new Star

Wars movie.” You would know immediately that she

wanted to meet an actor from the Star Wars cast—not an

actor in, for example, the latest Zoolander. Suppose a real

estate agent promised to find a client “a house, condo, or

apartment in New York.” Wouldn’t the potential buyer be

annoyed if the agent sent him information about condos in

Maryland or California? And consider a law imposing a

penalty for the “violation of any statute, rule, or regulation

relating to insider trading.” Surely a person would have

cause to protest if punished under that provision for vio-

lating a traffic statute. The reason in all three cases is the

same: Everyone understands that the modifying phrase—

“involved with the new Star Wars movie,” “in New York,”

“relating to insider trading”—applies to each term in the

preceding list, not just the last.

That ordinary understanding of how English works, in

speech and writing alike, should decide this case. Avon-

dale Lockhart is subject to a 10-year mandatory minimum

sentence for possessing child pornography if, but only if,

he has a prior state-law conviction for “aggravated sexual

abuse, sexual abuse, or abusive sexual conduct involving a

2 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

minor or ward.” 18 U. S. C. §2252(b)(2). The Court today,

relying on what is called the “rule of the last antecedent,”

reads the phrase “involving a minor or ward” as modifying

only the final term in that three-item list. But properly

read, the modifier applies to each of the terms—just as in

the examples above. That normal construction finds

support in uncommonly clear-cut legislative history, which

states in so many words that the three predicate crimes all

involve abuse of children. And if any doubt remained, the

rule of lenity would command the same result: Lockhart’s

prior conviction for sexual abuse of an adult does not

trigger §2252(b)(2)’s mandatory minimum penalty. I

respectfully dissent.

I

Begin where the majority does—with the rule of the last

antecedent. See ante, at 3. This Court most fully dis-

cussed that principle in Barnhart v. Thomas, 540 U. S. 20

(2003), which considered a statute providing that an indi-

vidual qualifies as disabled if “he is not only unable to do

his previous work but cannot, considering his age, educa-

tion, and work experience, engage in any other kind of

substantial gainful work which exists in the national

economy.” Id., at 21–22 (quoting 42 U. S. C. §423(d)(2)(A))

(emphasis added). The Court held, invoking the last-

antecedent rule, that the italicized phrase modifies only

the term “substantial gainful work,” and not the term

“previous work” occurring earlier in the sentence. Two

points are of especial note. First, Barnhart contained a

significant caveat: The last-antecedent rule “can assuredly

be overcome by other indicia of meaning.” 540 U. S., at 26;

see, e.g., Nobelman v. American Savings Bank, 508 U. S.

324, 330–331 (1993) (refusing to apply the rule when a

contrary interpretation was “the more reasonable one”).

Second, the grammatical structure of the provision in

Barnhart is nothing like that of the statute in this case:

Cite as: 577 U. S. ____ (2016) 3

KAGAN, J., dissenting

The modifying phrase does not, as here, immediately

follow a list of multiple, parallel terms. That is true as

well in the other instances in which this Court has fol-

lowed the rule. See, e.g., Jama v. Immigration and Cus-

toms Enforcement, 543 U. S. 335 (2005); Batchelor v.

United States, 156 U. S. 426 (1895); Sims Lessee v. Irvine,

3 Dall. 425 (1799).

Indeed, this Court has made clear that the last-

antecedent rule does not generally apply to the grammati-

cal construction present here: when “[t]he modifying

clause appear[s] . . . at the end of a single, integrated list.”

Jama, 543 U. S., at 344, n. 4. Then, the exact opposite is

usually true: As in the examples beginning this opinion,

the modifying phrase refers alike to each of the list’s

terms. A leading treatise puts the point as follows: “When

there is a straightforward, parallel construction that

involves all nouns or verbs in a series,” a modifier at the

end of the list “normally applies to the entire series.” A.

Scalia & B. Garner, Reading Law: The Interpretation of

Legal Texts 147 (2012); compare id., at 152 (“When the

syntax involves something other than [such] a parallel

series of nouns or verbs,” the modifier “normally applies

only to the nearest reasonable referent”). That interpre-

tive practice of applying the modifier to the whole list

boasts a fancy name—the “series-qualifier canon,” see

Black’s Law Dictionary 1574 (10th ed. 2014)—but, as my

opening examples show, it reflects the completely ordinary

way that people speak and listen, write and read.1

——————

1 The majority’s baseball example, see ante, at 4, reads the other way

only because its three terms are not parallel. The words “catcher” and

“shortstop,” but not “pitcher,” are qualified separate and apart from the

modifying clause at the end of the sentence: “Pitcher” thus calls for a

modifier of its own, and the phrase “from the Kansas City Royals”

answers that call. Imagine the sentence is slightly reworded to refer to

a “defensive catcher, quick-footed shortstop, or hard-throwing pitcher

from the Kansas City Royals.” Or, alternatively, suppose the sentence

4 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

Even the exception to the series-qualifier principle is

intuitive, emphasizing both its common-sensical basis and

its customary usage. When the nouns in a list are so

disparate that the modifying clause does not make sense

when applied to them all, then the last-antecedent rule

takes over. Suppose your friend told you not that she

wants to meet “an actor, director, or producer involved

with Star Wars,” but instead that she hopes someday to

meet “a President, Supreme Court Justice, or actor in-

volved with Star Wars.” Presumably, you would know

that she wants to meet a President or Justice even if that

person has no connection to the famed film franchise. But

so long as the modifying clause “is applicable as much to

the first and other words as to the last,” this Court has

stated, “the natural construction of the language demands

that the clause be read as applicable to all.” Paroline v.

United States, 572 U. S. ___, ___ (2014) (slip op., at 9)

(quoting Porto Rico Railway, Light & Power Co. v. Mor,

253 U. S. 345, 348 (1920)). In other words, the modifier

then qualifies not just the last antecedent but the whole

series.

As the majority itself must acknowledge, see ante, at 7–

8, this Court has repeatedly applied the series-qualifier

rule in just that manner. In Paroline, for example, this

Court considered a statute requiring possessors of child

pornography to pay restitution to the individuals whose

abuse is recorded in those materials. The law defines such

a victim’s losses to include “medical services relating to

physical, psychiatric, or psychological care; physical and

occupational therapy or rehabilitation; necessary trans-

portation, temporary housing, and child care expenses;

——————

referred simply to a “catcher, shortstop, or pitcher from the Kansas City

Royals.” Either way, all three players must come from the Royals—

because the three terms (unlike in the majority’s sentence) are a

parallel series with a modifying clause at the end.

Cite as: 577 U. S. ____ (2016) 5

KAGAN, J., dissenting

lost income; attorneys’ fees, as well as other costs in-

curred; and any other losses suffered by the victim as a

proximate result of the offense.” 18 U. S. C.

§§2259(b)(3)(A)–(F) (lettering omitted). The victim bring-

ing the lawsuit invoked the last-antecedent rule to argue

that the modifier at the end of the provision—“as a proxi-

mate result of the offense”—pertained only to the last item

in the preceding list, and not to any of the others. See 572

U. S., at ___ (slip op., at 9). But the Court rejected that

view: It recited the “canon[ ] of statutory construction,”

derived from the “natural” use of language, that “[w]hen

several words are followed by a clause” that can sensibly

modify them all, it should be understood to do so. Ibid.

Thus, the Court read the proximate-cause requirement to

cover each and every term in the list.

United States v. Bass, 404 U. S. 336 (1971), to take just

one other example, followed the same rule. There, the

Court confronted a statute making it a crime for a convicted

felon to “receive[ ], possess[ ], or transport[ ] in commerce or

affecting commerce . . . any firearm.” 18 U. S. C. App.

§1202(a) (1970 ed.) (current version at 18 U. S. C. §922(g)).

The Government contended that the modifying clause—

“in commerce or affecting commerce”—applied only to

“transport” and not to “receive” or “possess.” But the

Court rebuffed that argument. “[T]he natural construc-

tion of the language,” the Court recognized, “suggests that

the clause ‘in commerce or affecting commerce’ qualifies

all three antecedents in the list.” 404 U. S., at 339 (some

internal quotation marks omitted). Relying on longstand-

ing precedents endorsing such a construction, the Court

explained: “Since ‘in commerce or affecting commerce’

undeniably applies to at least one antecedent, and since it

makes sense with all three, the more plausible construc-

tion here is that it in fact applies to all three.” Id., at 339–

340 (citing United States v. Standard Brewery, Inc., 251

U. S. 210, 218 (1920); Porto Rico Railway, 253 U. S., at

6 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

348); see also, e.g., Jones v. United States, 529 U. S. 848,

853 (2000) (similarly treating the interstate commerce

element in the phrase “any building, vehicle, or other real

or personal property used in interstate or foreign com-

merce” as applying to buildings and vehicles).

That analysis holds equally for §2252(b)(2), the sentenc-

ing provision at issue here. The relevant language—

“aggravated sexual abuse, sexual abuse, or abusive sexual

conduct involving a minor or ward”—contains a “single,

integrated list” of parallel terms (i.e., sex crimes) followed

by a modifying clause. Jama, 543 U. S., at 344, n. 4.

Given the close relation among the terms in the series, the

modifier makes sense “as much to the first and other

words as to the last.” Paroline, 572 U. S., at ___ (slip op.,

at 9). In other words, the reference to a minor or ward

applies as well to sexual abuse and aggravated sexual

abuse as to abusive sexual conduct. (The case would be

different if, for example, the statute established a manda-

tory minimum for any person previously convicted of

“arson, receipt of stolen property, or abusive sexual con-

duct involving a minor or ward.”) So interpreting the

modifier “as applicable to all” the preceding terms is what

“the natural construction of the language” requires. Ibid.;

Bass, 404 U. S., at 339.

The majority responds to all this by claiming that the

“inelegant phrasing” of §2252(b)(2) renders it somehow

exempt from a grammatical rule reflecting “how people

ordinarily” use the English language. Ante, at 10. But to

begin with, the majority is wrong to suggest that the

series-qualifier canon is only about “colloquial” or “conver-

sational” English. Ibid. In fact, it applies to both speech

and writing, in both their informal and their formal varie-

ties. Here is a way to test my point: Pick up a journal, or a

book, or for that matter a Supreme Court opinion—most of

which keep “everyday” colloquialisms at a far distance.

Ibid. You’ll come across many sentences having the struc-

Cite as: 577 U. S. ____ (2016) 7

KAGAN, J., dissenting

ture of the statutory provision at issue here: a few nouns

followed by a modifying clause. And you’ll discover, again

and yet again, that the clause modifies every noun in the

series, not just the last—in other words, that even (espe-

cially?) in formal writing, the series-qualifier principle

works.2 And the majority is wrong too in suggesting that

the “odd repetition” in §2252(b)(2)’s list of state predicates

causes the series-qualifier principle to lose its force. Ibid.

The majority’s own made-up sentence proves that much.

If a friend asked you “to get her tart lemons, sour lemons,

or sour fruit from Mexico,” you might well think her list of

terms perplexing: You might puzzle over the difference

between tart and sour lemons, and wonder why she had

specifically mentioned lemons when she apparently would

be happy with sour fruit of any kind. But of one thing, you

——————

2 Too busy to carry out this homework assignment? Consider some

examples (there are many more) from just the last few months of this

Court’s work. In OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___

(2015) (slip op., at 5–6), this Court described a lawsuit as alleging

“wrongful arrest, imprisonment, and torture by Saudi police.” In

James v. Boise, 577 U. S. ___, ___ (2016) (per curiam) (slip op., at 2)

(quoting Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816)), this

Court affirmed that state courts must follow its interpretations of “the

laws, the treaties, and the constitution of the United States.” In Musac-

chio v. United States, 577 U. S. ___, ___ (2016) (slip op., at 8) (quoting

Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 166 (2010)), this Court

noted that in interpreting statutes it looks to the “text, context, and

relevant historical treatment of the provision at issue.” In FERC v.

Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (slip op., at 15),

this Court applied a statute addressing “any rule, regulation, practice,

or contract affecting [a wholesale] rate [or] charge.” And in Montanile v.

Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577

U. S. ___, ___ (2016) (slip op., at 2), this Court interpreted an employee

benefits plan requiring reimbursement “for attorneys’ fees, costs,

expenses or damages claimed by the covered person.” In each case, of

course, the italicized modifying clause refers to every item in the

preceding list. That is because the series-qualifier rule reflects how all

of us use language, in writing and in speech, in formal and informal

contexts, all the time.

8 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

would have no doubt: Your friend wants some produce

from Mexico; it would not do to get her, say, sour lemons

from Vietnam. However weird the way she listed fruits—

or the way §2252(b)(2) lists offenses—the modifying clause

still refers to them all.

The majority as well seeks refuge in the idea that apply-

ing the series-qualifier canon to §2252(b)(2) would violate

the rule against superfluity. See ante, at 9–10. Says the

majority: “Any conduct that would qualify as ‘aggravated

sexual abuse . . . involving a minor or ward’ or ‘sexual

abuse . . . involving a minor or ward’ would also qualify as

‘abusive sexual conduct involving a minor or ward.’ ” Ante,

at 9. But that rejoinder doesn’t work. “[T]he canon

against superfluity,” this Court has often stated, “assists

only where a competing interpretation gives effect to every

clause and word of a statute.” Microsoft Corp. v. i4i Ltd.

Partnership, 564 U. S. 91, 106 (2011) (internal quotation

marks omitted); see, e.g., Bruesewitz v. Wyeth LLC, 562

U. S. 223, 236 (2011). And the majority’s approach (as it

admits, see ante, at 9) produces superfluity too—and in

equal measure. Now (to rearrange the majority’s sen-

tence) any conduct that would qualify as “abusive sexual

conduct involving a minor or ward” or “aggravated sexual

abuse” would also qualify as “sexual abuse.” In other

words, on the majority’s reading as well, two listed crimes

become subsets of a third, so that the three could have

been written as one. And indeed, the majority’s superfluity

has an especially odd quality, because it relates to the

modifying clause itself: The majority, that is, makes the

term “involving a minor or ward” wholly unnecessary.

Remember the old adage about the pot and the kettle?

That is why the rule against superfluity cannot excuse the

majority from reading §2252(b)(2)’s modifier, as ordinary

usage demands, to pertain to all the terms in the preced-

Cite as: 577 U. S. ____ (2016) 9

KAGAN, J., dissenting

ing series.3

II

Legislative history confirms what the natural construc-

tion of language shows: Each of the three predicate of-

fenses at issue here must involve a minor. The list of

those crimes appears in two places in §2252(b)—both in

§2252(b)(1), which contains a sentencing enhancement for

those convicted of distributing or receiving child pornogra-

phy, and in §2252(b)(2), which includes a similar en-

hancement for those (like Lockhart) convicted of pos-

sessing such material. Descriptions of that list of offenses,

made at the time Congress added it to those provisions,

belie the majority’s position.

The relevant language—again, providing for a manda-

tory minimum sentence if a person has a prior state-law

conviction for “aggravated sexual abuse, sexual abuse, or

abusive sexual conduct involving a minor or ward”—first

made its appearance in 1996, when Congress inserted it

into §2252(b)(1). See Child Pornography Prevention Act of

1996, §121(5), 110 Stat. 3009–30, 18 U. S. C. §2251 note.

At that time, the Senate Report on the legislation ex-

plained what the new language meant: The mandatory

minimum would apply to an “offender with a prior convic-

tion under . . . any State child abuse law.” S. Rep. No.

104–358, p. 9 (1996) (emphasis added). It is hard to imag-

ine saying any more directly that the just-added state

sexual-abuse predicates all involve minors, and minors

only.4

——————

3 The majority asserts that it has found, concealed within

§2252(b)(2)’s structure, an “explanation” for its own superfluity, ante, at

9, but that claim, as I’ll soon show, collapses on further examination.

See infra, at 13–16.

4 And it makes no difference that the Senate Report accompanied

§2252(b)(1)’s, rather than §2252(b)(2)’s, amendment. No one can

possibly think (and the majority therefore does not try to argue) that

10 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

Two years later, in urging Congress to include the same

predicate offenses in §2252(b)(2), the Department of Jus-

tice (DOJ) itself read the list that way. In a formal bill

comment, DOJ noted that proposed legislation on child

pornography failed to fix a statutory oddity: Only

§2252(b)(1), and not §2252(b)(2), then contained the state

predicates at issue here. DOJ described that discrepancy

as follows: Whereas §2252(b)(1) provided a penalty en-

hancement for “individuals charged with receipt or distri-

bution of child pornography and who have prior state

convictions for child molestation,” the adjacent §2252(b)(2)

contained no such enhancement for those “charged with

possession of child pornography who have prior convictions

for child abuse.” H. R. Rep. No. 105–557, p. 31 (1998)

(emphasis added). That should change, DOJ wrote: A

possessor of child pornography should also be subject to a

2-year mandatory minimum if he had “a prior conviction

for sexual abuse of a minor.” Ibid. (emphasis added). DOJ

thus made clear that the predicate offenses it recom-

mended adding to §2252(b)(2)—like those already in

§2252(b)(1)—related not to all sexual abuse but only to

sexual abuse of children. And Congress gave DOJ just

what it wanted: Soon after receiving the letter, Congress

added the language at issue to §2252(b)(2), resulting in

the requested 2-year minimum sentence. See Protection of

Children From Sexual Predators Act of 1998, §202(a)(2),

112 Stat. 2977, 18 U. S. C. §1 note. So every indication, in

1998 no less than in 1996, was that all the predicate

crimes relate to children alone.

The majority’s response to this history fails to blunt its

force. According to the majority, the reference to “any

state child abuse law” in the Senate Report is simply an

“incomplete[ ] descri[ption]” of “the state sexual-abuse

——————

the disputed language means something different in §2252(b)(2) than in

its neighbor and model, §2252(b)(1).

Cite as: 577 U. S. ____ (2016) 11

KAGAN, J., dissenting

predicates.” Ante, at 12. And similarly, the majority

ventures, the DOJ letter was merely noting “one of the

provision’s many salient features.” Ibid. But suppose that

you (like the Senate Report’s or DOJ letter’s authors) had

to paraphrase or condense the statutory language at issue

here, and that you (like the majority) thought it captured

all sexual-abuse crimes. Would you then use the phrase

“any state child abuse law” as a descriptor (as the Senate

Report did)? And would you refer to the whole list of state

predicates as involving “sexual abuse of a minor” (as the

DOJ letter did)? Of course not. But you might well use

such shorthand if, alternatively, you understood the statu-

tory language (as I do) to cover only sexual offenses

against children. And so the authors of the Report and

letter did here. Such documents of necessity abridge

statutory language; but they do not do so by conveying an

utterly false impression of what that language is most

centrally about—as by describing a provision that (sup-

posedly) covers all sexual abuse as one that reaches only

child molestation.5

——————

5 The majority tries to bolster its “incomplete description” claim by

highlighting another summary statement in the Senate Report, but

that reference merely illustrates my point. In amending §2252(b)(1)

(and later §2252(b)(2)), Congress added not only the child sexual-abuse

predicates at issue here, but also a set of predicate state offenses

relating to child pornography. Specifically, Congress provided a man-

datory minimum sentence for individuals previously convicted of the

“production, possession, receipt, mailing, sale, distribution, shipment,

or transportation of child pornography.” Child Pornography Prevention

Act, §121(5), 110 Stat. 3009–30. The Senate Report described those

predicate crimes in an abbreviated fashion as “relating to the produc-

tion, receipt or distribution of child pornography.” S. Rep. No. 104–358,

p. 9 (1996). That synopsis doubtless leaves some things out, as any

synopsis does; but no reader of the Report would be terribly surprised

to see the fuller statutory list. The same cannot be said of the phrase

“any state child abuse law” if that in fact refers to laws prohibiting all

rape, sexual assault, and similar behavior.

The majority makes the identical mistake in asserting that the DOJ

12 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

Further, the majority objects that the Senate Report’s

(and DOJ letter’s) drafters did “nothing to explain why”

Congress would have limited §2252(b)’s state sexual-abuse

predicates to those involving children when the provision’s

federal sexual-abuse predicates (as all agree) are not so

confined. Ante, at 13 (emphasis in original). But Congress

is under no obligation to this Court to justify its choices.

(Nor is DOJ obliged to explain them to Congress itself.)

Rather, the duty is on this Court to carry out those deci-

sions, regardless of whether it understands all that lay

behind them. The Senate Report (and DOJ letter too) says

what it says about §2252(b)’s meaning, confirming in no

uncertain terms the most natural reading of the statutory

language. Explanation or no, that is more than sufficient.

And the majority (as it concedes) cannot claim that

Congress simply must have wanted §2252(b)(2)’s federal

and state predicates to be the same. See ante, at 11

(“[O]ur construction of §2252(b)(2)’s sexual-abuse predi-

cates does not rely on a general assumption that Congress

sought full parity between all of the federal and state

predicates”). That is because both §2252(b)(1) and

§2252(b)(2) contain many federal predicates lacking state

matches. Under §2252(b)(1), for example, a person is

subject to a mandatory minimum if he previously violated

——————

letter merely “highlight[s]” one of §2252(b)(1)’s many features. Ante, at

13. To support that claim, the majority notes that the letter omits any

discussion of sexual crimes against adult wards, even though the

statute covers those offenses on any theory. But that elision is perfectly

natural. The number of sex crimes against adult wards pales in com-

parison to those against children: In discussing the latter, DOJ was

focused on the mine-run offense. (For the same reason, this opinion’s

descriptions of §2252(b) often skip any reference to wards. See supra,

at 9, 11; infra, at 13. Count that as a writer’s choice to avoid extrane-

ous detail.) The majority cannot offer any similar, simple explanation

of why DOJ would have repeatedly referred only to sex crimes against

children if the statutory language it was explicating—and proposing to

add to another provision—also covered sex crimes against all adults.

Cite as: 577 U. S. ____ (2016) 13

KAGAN, J., dissenting

18 U. S. C. §1591, which prohibits “[s]ex trafficking of

children or [sex trafficking] by force, fraud, or coercion.”

But if the prior conviction is under state law, only sex

trafficking of children will trigger that minimum; traffick-

ing of adults, even if by force, fraud, or coercion, will not.

That mismatch—trafficking of both adults and children on

the federal side, trafficking of children alone on the state

side—precisely parallels my view of the sexual-abuse

predicates at issue here. More generally, ten federal

obscenity crimes trigger both §2252(b)(1)’s and

§2252(b)(2)’s enhanced punishments; but equivalent state

crimes do not do so. And five federal prostitution offenses

prompt mandatory minimums under those provisions; but

no such state offenses do. Noting those disparities, the

Government concedes: “[W]hen Congress adds state-law

offenses to the lists of predicate offenses triggering child-

pornography recidivist enhancements, it sometimes adds

state offenses corresponding to only a subset of the federal

offenses” previously included. Brief for United States 43.

Just so. And this Court ought to enforce that choice.

III

As against the most natural construction of §2252(b)(2)’s

language, plus unusually limpid legislative history, the

majority relies on a structural argument. See ante, at 5–7.

The federal sexual-abuse predicates in §2252(b)(2), the

majority begins, are described as crimes “under . . . Chap-

ter 109A,” and that chapter “criminalizes a range of sexual-

abuse offenses involving adults or minors.” Ante, at 5–6

(emphasis in original). Once again, the majority cannot

say that this fact alone resolves the question presented,

given the many times (just discussed) that Congress opted

to make federal crimes, but not equivalent state crimes,

predicates for §2252(b)(2)’s mandatory minimums. But

the majority claims to see more than that here: The head-

ings of the sections in Chapter 109A, it contends, “mirror

14 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

precisely the order . . . and nearly precisely the words used

to describe” the state predicate crimes at issue. Ante, at 6.

The majority “cannot state with certainty,” but hazards a

guess that Congress thus used Chapter 109A “as a tem-

plate for the list of state predicates”—or, otherwise said,

that Congress “followed” the “structure and language of

Chapter 109A” in defining those state-law offenses. Ibid.

But §2252(b)(2)’s state predicates are not nearly as

similar to the federal crimes in Chapter 109A as the ma-

jority claims. That Chapter includes the following offenses:

“Aggravated sexual abuse,” §2241, “Sexual abuse,”

§2242, “Sexual abuse of a minor or ward,” §2243, and

“Abusive sexual contact,” §2244. The Chapter thus con-

tains four crimes—one more than found in §2252(b)(2)’s

list of state offenses. If the drafters of §2252(b)(2) meant

merely to copy Chapter 109A, why would they have left

out one of its crimes? The majority has no explanation.6

And there is more. Suppose Congress, for whatever hard-

to-fathom reason, wanted to replicate only Chapter 109A’s

first three offenses. It would then have used the same

language, referring to “the laws of any State relating to

aggravated sexual abuse, sexual abuse, or sexual abuse of

a minor or ward.” (And had Congress used that language,

the phrase “of a minor or ward” would clearly have applied

only to the third term, to differentiate it from the other-

wise identical second.) But contra the majority, see ante,

at 6, 9–10, that is not what §2252(b)(2)’s drafters did.

——————

6 In a footnote, the majority intimates that Chapter 109A contains

only three crimes—but that reading is unambiguously wrong. Unlike

the fifth through eighth sections of that chapter (which the majority

invokes to no purpose), the fourth—again, entitled “[a]busive sexual

contact”—sets out an independent substantive offense, criminalizing

acts not made illegal in the first three sections. §§2244(a)–(c); see also

42 U. S. C. §16911 (separately listing this offense in identifying who

must register as a sex offender). The majority, as noted above, gives no

reason why Congress would have ignored that fourth crime had it been

using Chapter 109A as a template.

Cite as: 577 U. S. ____ (2016) 15

KAGAN, J., dissenting

Rather than repeating the phrase “sexual abuse,” they

used the phrase “abusive sexual conduct” in the list’s last

term—which echoes, if anything, the separate crime of

“abusive sexual contact” (included in Chapter 109A’s

fourth offense, as well as in other places in the federal

code, see, e.g., 10 U. S. C. §920(d)). The choice of those

different words indicates, yet again, that Congress did not

mean, as the majority imagines, to duplicate Chapter

109A’s set of offenses.

Indeed, even the Government has refused to accept the

notion that the federal and state sexual-abuse predicates

mirror each other. The Government, to be sure, has ar-

gued that it would be “anomalous” if federal, but not

state, convictions for sexually abusing adults trigger

§2252(b)(2)’s enhanced penalty. Brief for United States

23. (I have discussed that more modest point above:

Anomalous or not, such differences between federal and

state predicates are a recurring feature of the statute. See

supra, at 12–13.) But the Government, in both briefing

and argument, rejected the idea that Congress wanted the

list of state predicates in §2252(b)(2) to mimic the crimes

in Chapter 109A; in other words, it denied that Congress

meant for the state and federal offenses to bear the same

meaning. See Brief for United States 22, n. 8; Tr. of Oral

Arg. 26. Even in the face of sustained questioning from

Members of this Court, the Government held fast to that

position. See, e.g., Tr. of Oral Arg. 25–26 (JUSTICE ALITO:

“[W]hy do you resist the argument that what Congress

was doing was picking up basically the definitions of the

Federal offenses [in Chapter 109A] that are worded almost

identically?” Assistant to the Solicitor General: “[W]e

don’t think that Congress was trying” to do that). The

listed state and federal offenses, the Government made

clear, are not intended to be copies.

The majority seems to think that view somehow con-

sistent with its own hypothesis that Chapter 109A served

16 LOCKHART v. UNITED STATES

KAGAN, J., dissenting

as a “template” for §2252(b)(2)’s state predicates, ante, at

6; in responding to one of Lockhart’s arguments, the ma-

jority remarks that the state predicates might have a

“generic” meaning, distinct from Chapter 109A’s, ante, at

14. But if that is so, the majority’s supposed template is

not much of a template after all. The predicate state

offenses would “follow” or “parallel” Chapter 109A in a

single respect, but not in any others—that is, in including

sexual abuse of adults, but not in otherwise defining

wrongful sexual conduct (whether concerning adults or

children). Ante, at 6. The template, one might say, is good

for this case and this case only. And the majority has no

theory for why that should be so: It offers not the slimmest

explanation of how Chapter 109A can resolve today’s

question but not the many issues courts will face in the

future involving the meaning of §2252(b)(2)’s state predi-

cate offenses. That is because no rationale would make

sense. The right and consistent view is that Chapter

109A, like the other federal predicates in §2252(b)(2), is

across-the-board irrelevant in defining that provision’s

state predicates. Thus, the federal chapter’s four differ-

ently worded crimes are independent of the three state

offenses at issue here—all of which, for the reasons I’ve

given, must “involv[e] a minor or ward.”

IV

Suppose, for a moment, that this case is not as clear as

I’ve suggested. Assume there is no way to know whether

to apply the last-antecedent or the series-qualifier rule.

Imagine, too, that the legislative history is not quite so

compelling and the majority’s “template” argument not

quite so strained. Who, then, should prevail?

This Court has a rule for how to resolve genuine ambi-

guity in criminal statutes: in favor of the criminal defend-

ant. As the majority puts the point, the rule of lenity

insists that courts side with the defendant “when the

Cite as: 577 U. S. ____ (2016) 17

KAGAN, J., dissenting

ordinary canons of statutory construction have revealed no

satisfactory construction.” Ante, at 14 (citing Callanan v.

United States, 364 U. S. 587, 596 (1961)); see also Bifulco

v. United States, 447 U. S. 381, 387 (1980) (holding that

the rule of lenity “applies not only to interpretations of the

substantive ambit of criminal prohibitions, but also to the

penalties they impose”). At the very least, that principle

should tip the scales in Lockhart’s favor, because nothing

the majority has said shows that the modifying clause in

§2252(b)(2) unambiguously applies to only the last term in

the preceding series.

But in fact, Lockhart’s case is stronger. Consider the

following sentence, summarizing various points made

above: “The series-qualifier principle, the legislative history,

and the rule of lenity discussed in this opinion all point

in the same direction.” Now answer the following ques-

tion: Has only the rule of lenity been discussed in this

opinion, or have the series-qualifier principle and the

legislative history been discussed as well? Even had you

not read the preceding 16-plus pages, you would know the

right answer—because of the ordinary way all of us use

language. That, in the end, is why Lockhart should win.