Brown v. United States

(Slip Opinion) OCTOBER TERM, 2023 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

BROWN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

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

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

state drug convictions that occurred before recent technical amend-

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

tory minimum sentence on defendants who are convicted for the illegal

possession of a firearm and who have a criminal history thought to

demonstrate a propensity for violence. As relevant here, a defendant

with “three previous convictions” for “a serious drug offense” qualifies

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

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

sentence of at least 10 years’ imprisonment, and it must “involv[e] . . .

a controlled substance . . . as defined in section 102 of the Controlled

Substances Act.” §§924(e)(1), (2)(A)(ii).

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

ACCA predicate only if the State’s definition of the drug in question

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

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

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

the federal schedules when the defendant possessed or trafficked in it

but was later removed.

Petitioners Justin Rashaad Brown and Eugene Jackson were sepa-

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

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

hancement was recommended based on prior state felony drug convic-

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

qualify as “serious drug offense[ s].”

——————

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

the United States Court of Appeals for the Eleventh Circuit.

2 BROWN v. UNITED STATES

Syllabus

Brown’s presentence report identified several Pennsylvania drug

convictions, including four convictions for possessing marijuana with

intent to distribute. At the time of Brown’s marijuana convictions, the

federal and Pennsylvania law definitions of marijuana matched. But

while Brown’s federal §922(g)(1) charge was pending, Congress modi-

fied the federal definition of marijuana. Because the federal and state

definitions did not fully match when Brown was sentenced, Brown ar-

gued that his marijuana convictions no longer qualified as “serious

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

Jackson’s presentence report identified several prior Florida convic-

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

bution of cocaine. In 2015, the Federal Government amended the fed-

eral definition of cocaine, so the federal and Florida definitions no

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

Brown, Jackson argued that these prior convictions no longer qualified

as “serious drug offense[s].” In both cases, the District Courts disa-

greed and sentenced petitioners to enhanced sentences, and the re-

spective appellate courts ultimately affirmed.

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

a drug on the federal schedules at the time of that conviction. Pp. 4–

19.

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

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

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

ernment argues that a prior state drug conviction qualifies if the fed-

eral and state definitions of the relevant drug matched when the de-

fendant committed the state crime. Jackson argues instead that the

definitions must match when the defendant violates the federal felon-

in-possession statute. Finally, Brown contends that the definitions

must match when the defendant is sentenced for the federal felon-in-

possession offense. Pp. 4–7.

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

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

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

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

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

was when the defendant violated it. This “backward-looking” ap-

proach, id., at 820, supports the Government’s interpretation. And the

plain language of the statute points to the same conclusion. Section

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

fines a “serious drug offense” to include, among other things, “of-

fense[s] under the Controlled Substances Act.” A later change in a

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

Cite as: 602 U. S. ____ (2024) 3

Syllabus

the [CSA]” is a “serious drug offense.” The Government’s interpreta-

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

defined in [the CSA])” like those federal offenses “under the [CSA].”

Petitioners’ interpretations, by contrast, would treat those federal and

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

ACCA predicate, but the state offense would not. Pp. 7–9.

(c) The Government’s interpretation also best fulfills ACCA’s statu-

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

committed ACCA predicate offenses are “especially likely to inflict

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

higher punishment when they do so. Wooden v. United States, 595

U. S. 360, 375. Because a defendant’s “history of criminal activity”

does not “cease to exist” merely because the crime was later redefined,

McNeill, 563 U. S., at 823, it makes sense to ask whether a prior of-

fense met ACCA’s definition of seriousness at the time it was commit-

ted. Brown’s and Jackson’s contrary arguments misunderstand the

theory on which ACCA is based. A prior drug conviction for an offense

punishable by 10 years’ imprisonment augurs a risk of future danger-

ousness even if the drug is no longer considered dangerous. Indeed, in

McNeill, the Court found “absurd” petitioner’s argument that a later

reduction in the maximum sentence for his offense reflected a legisla-

tive judgment that his prior offense was less serious than previously

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

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

earlier conviction—not the legislature’s subsequent judgment—that

ACCA was concerned with, because that fact “demonstrate[d]” the de-

fendant’s “culpability and dangerousness.” Ibid. Pp. 9–12.

(d) Petitioners various other arguments are unpersuasive. Pp. 12–

19.

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

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

question under [ACCA] arises.’ ” Brief of Petitioner Jackson 32. The

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

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

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

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

ute by specific title or section number”—such as ACCA’s reference to

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

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

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

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

defined in section 102 of the Controlled Substances Act” as anything

but a specific reference. Jackson’s alternative argument—that his

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

4 BROWN v. UNITED STATES

Syllabus

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

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

means. Pp. 12–14.

(2) Brown suggests that present-tense language in ACCA’s defini-

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

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

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

Court rejected that approach in McNeill, holding that ACCA requires

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

and that “[u]se of the present tense . . . did not suggest otherwise.” 563

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

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

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

the new law. But §924(e)(2)(A)(ii) has not changed at any point in the

litigation. Pp. 15–17.

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

assert that this Court’s interpretation is underinclusive because it

would preclude ACCA enhancements for state offenses involving drugs

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

But none of the parties’ interpretations captures all cases involving

career criminals. Petitioners next suggest that the Government’s in-

terpretation is absurd because it would exclude all state drug convic-

tions before the CSA’s enactment in 1970. But there are reasons Con-

gress might have chosen not to court either federal or state drug

convictions that occurred before 1970. Petitioners also argue that the

Government’s interpretation would unduly burden courts and defend-

ants by requiring them to undertake the laborious task of digging up

old federal drug schedules and comparing those to the state laws the

defendants violated, but petitioners overstate the difficulty of this

task. Finally, petitioners contend that the rule of lenity counsels in

favor of their interpretations. But lenity applies only if a statute re-

mains grievously ambiguous, and here context, precedent, and statu-

tory design adequately show “ ‘what Congress intended.’ ” United

States v. Castleman, 572 U. S. 157, 173. Pp 17–19.

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

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and THOMAS, SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined. JACK-

SON, J., filed a dissenting opinion, in which KAGAN, J., joined, and in

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

Cite as: 602 U. S. ____ (2024) 1

Opinion of the Court

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

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 22–6389 and 22–6640

_________________

JUSTIN RASHAAD BROWN, PETITIONER

22–6389 v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

EUGENE JACKSON, PETITIONER

22–6640 v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 23, 2024]

JUSTICE ALITO delivered the opinion of the Court.

These cases concern the application of the Armed Career

Criminal Act (ACCA) to state drug convictions that oc-

curred before recent technical amendments to the federal

drug schedules. ACCA imposes a 15-year mandatory mini-

mum sentence on defendants who are convicted for the ille-

gal possession of a firearm and have a criminal history that

is thought to demonstrate a propensity for violence. These

defendants are subject to ACCA’s enhanced penalty if,

among other things, they have “three previous convictions”

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

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

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

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

as defined in section 102 of the Controlled Substances Act”

2 BROWN v. UNITED STATES

Opinion of the Court

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

five schedules of controlled substances and provides that

these schedules must be updated each year by the Attorney

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

The two cases now before us present the question

whether a state crime constitutes a “serious drug offense” if

it involved a drug that was on the federal schedules when

the defendant possessed or trafficked in it but was later re-

moved. We hold that such an offense qualifies.

I

A

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

ficers in a series of controlled buys. The officers conducted

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

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

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

ing Brown with several drug offenses, as well as possession

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

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

tenced two years later.

At sentencing, the probation office recommended that

Brown receive ACCA’s mandatory minimum sentence be-

cause he had four prior Pennsylvania convictions for pos-

sessing marijuana with intent to distribute between 2009

and 2014, as well as one Pennsylvania conviction for dis-

tributing cocaine in 2008. Brown disputed this interpreta-

tion of ACCA and argued that his marijuana convictions did

not “involv[e] . . . a controlled substance . . . as defined in

[the CSA].” §924(e)(2)(A)(ii).

A state drug offense counts as an ACCA predicate only if

the State’s definition of the drug in question “matche[s]” the

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

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

sessing marijuana, both federal and Pennsylvania law de-

fined marijuana to include “all parts of the plant Cannabis

Cite as: 602 U. S. ____ (2024) 3

Opinion of the Court

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

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

102(b) (Purdon Cum. Supp. 2012) (defining marijuana to in-

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

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

pending, Congress enacted the Agriculture Improvement

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

nabis sativa L., from the federal definition of marijuana.

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

federal and state definitions did not fully match when

Brown was sentenced, he argued that his marijuana convic-

tions no longer qualified as “serious drug offense[s].”

The District Court disagreed and sentenced him under

ACCA, and the Third Circuit affirmed. It concluded that

the 2018 amendment did not apply retroactively to federal

offenses committed before its effective date. Under the

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

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

when the federal and state definitions of marijuana were a

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

B

In 2017, Eugene Jackson noticed a police car arriving at

the Sparkle Food Market to execute an unrelated search

warrant, and he responded by fleeing and discarding a

loaded .45-caliber pistol. Officers eventually identified

Jackson as the gun’s owner, and in 2019, he was charged

with possession of a firearm by a convicted felon. He

pleaded guilty and was sentenced in 2021.

Jackson’s presentence report identified several prior

Florida convictions as ACCA predicates, including convic-

tions in 1998 and 2004 for possession and distribution of

——————

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

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

§1639o; 21 U. S. C. §802(16).

4 BROWN v. UNITED STATES

Opinion of the Court

cocaine. But Jackson, like Brown, claimed that these con-

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

crimes were committed, the Federal Government and Flor-

ida defined cocaine the same way. 21 U. S. C. §812(c),

Schedule II, (a)(4); Fla. Stat. §§893.03(2)(a)(4), 893.13(1)

(1998). But in 2015, the Federal Government legalized a

radioactive cocaine derivative called [123I]ioflupane that is

the active pharmaceutical ingredient in a drug used to di-

agnose patients who are suspected to have Parkinson’s dis-

ease. See Schedules of Controlled Substances: Removal of

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

stances Act, 80 Fed. Reg. 54717. So when Jackson commit-

ted his federal offense, the federal and Florida definitions

were no longer a categorical match.

The District Court found that Jackson’s prior convictions

qualified as serious drug offenses and sentenced him to

ACCA’s mandatory minimum. On appeal, the Eleventh

Circuit initially disagreed and vacated Jackson’s sentence.

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

panel sua sponte vacated its opinion, ordered supplemental

briefing, and in a new opinion affirmed the District Court.

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

that a prior drug conviction is an ACCA predicate if the

state and federal definitions of the drug matched when the

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

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

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

(2023). We now affirm.

II

A

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

it refers to a prior state drug offense “involving . . . a con-

trolled substance . . . as defined in section 102 of the [CSA],”

and specifically, whether the federal and state definitions

of a drug must match when the state crime is committed or

Cite as: 602 U. S. ____ (2024) 5

Opinion of the Court

at some later point in time. The parties propose three dif-

ferent answers.

The Government argues that a prior state drug conviction

qualifies if the federal and state definitions of the relevant

drug matched when the defendant committed the state

crime. Therefore, even if the federal and state definitions

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

possession law or is sentenced under that law, earlier state

convictions that occurred during the period when the fed-

eral and state definitions were the same nevertheless qual-

ify as “serious drug offense[s].”

Jackson, by contrast, argues that the federal and state

definitions must match when the defendant violates the

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

matter whether the federal and state laws both criminal-

ized the relevant drug when a defendant possessed or traf-

ficked in it. If the Federal Government later narrows its

definition of that drug, no state conviction under the

broader definition counts against a defendant who later

commits the federal firearm offense.

This interpretation would mean that Jackson’s two co-

caine convictions are no longer “serious drug offense[s]” be-

cause, years later, the Federal Government narrowed the

definition of cocaine in the federal schedules to legalize a

Parkinson’s drug derived from cocaine. In fact, under Jack-

son’s and the dissent’s interpretation, no Florida cocaine

convictions obtained before July 1, 2017, when Florida also

legalized the derivative, would count. See 2017 Fla. Laws

ch. 2017–110. That would be true even for convictions in-

volving the possession or distribution of huge shipments of

cocaine base.2 And as other courts have noted, cocaine con-

victions under the laws of many other States would likewise

——————

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

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

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

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

6 BROWN v. UNITED STATES

Opinion of the Court

be affected. See, e.g., United States v. Perez, 46 F. 4th 691,

698–701 (CA8 2022) (excluding an Iowa conviction under

Jackson’s theory); United States v. Myrick, 2023 WL

2351693, *2 (ED Pa., Mar. 2, 2023) (excluding a Pennsylva-

nia conviction).

These cocaine convictions would be excluded even though

it is highly unlikely that any were based on the possession

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

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

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

pears can be stored for no more than 24 hours. Dept. of

Justice, Drug Enforcement Admin., Office of Diversion Con-

trol, Schedule of Controlled Substances: Removal of [123I]Io-

flupane From Schedule II of the Controlled Substances Act:

Background, Data, and Analysis 5–6 (2015). Furthermore,

anyone attempting to become intoxicated by using the drug

would need to inject “nearly 6,000 vials,” or “15 liters of

fluid, a volume likely to cause death if administered intra-

venously.” Id., at 2. Unsurprisingly, the Federal Govern-

ment has identified “no case reports” involving individuals

who misused that drug, or any other [123I]ioflupane-contain-

ing product. Id., at 6.

Brown offers a third option. He contends that the federal

and state definitions must match when the defendant is

sentenced for the federal firearm offense. Under his inter-

pretation, it does not matter whether the two definitions

matched when a defendant previously violated state law or

even when he or she committed the federal firearm offense.

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

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

victions no longer count as ACCA predicates.

This interpretation would produce strange results in

——————

-of-cocaine-taken-off/29227445007; see also Verdict in State v. Gomez,

No. 2014CF001404–004NC (12th Jud. C. C. Sarasota Cty., Fla., May 1,

2014).

Cite as: 602 U. S. ____ (2024) 7

Opinion of the Court

cases involving long criminal investigations or prosecu-

tions. In this case, for example, Congress adopted the par-

tial exemption of hemp nearly nine months after Brown was

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

Under his proposed interpretation, he is exempt from

ACCA’s mandatory minimum only because his prosecution

did not move more quickly.

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

ent sentences for co-defendants who committed the same

state marijuana offense on the same days and likewise com-

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

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

courts to “avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty

of similar conduct”). Under Brown’s interpretation, if one

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

before the Agriculture Improvement Act was signed into

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

after enactment, ACCA’s 15-year mandatory minimum

would apply to the first but not the second.

B

We must decide which of these three proposed interpre-

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

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

does not definitively answer that question, but precedent

and statutory context show that the Government’s interpre-

tation is correct.

ACCA is a recidivist statute that gauges what a defend-

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

pability and dangerousness.” McNeill v. United States, 563

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

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

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

plained in McNeill, ACCA requires sentencing courts to ex-

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

8 BROWN v. UNITED STATES

Opinion of the Court

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

(listing cases examining the law at the time of the predicate

offense).

In McNeill, the question was whether a prior state drug

conviction was for a crime that carried the maximum pen-

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

prisonment for 10 years or more. To answer that question,

we looked back to “the law under which the defendant was

convicted” and concluded that a subsequent statutory

amendment reducing the maximum penalty below the 10-

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

looking” approach supports the Government’s interpreta-

tion here.

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

vision that immediately precedes the provision at issue

here, §924(e)(2)(A)(ii), points to the same conclusion. Sec-

tion 924(e)(2)(A)(i) defines a “serious drug offense” to in-

clude certain federal drug crimes, namely, “offense[s] under

the Controlled Substances Act (21 U. S. C. §801 et seq.)” or

two other federal laws. (Emphasis added.) Any crime con-

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

standard “Judgment in a Criminal Case” used in federal

courts indicates whether a defendant was convicted and

sentenced for such an offense,3 and a later change in a fed-

eral drug schedule cannot change that fact. The Govern-

ment’s interpretation would treat state offenses “involving

. . . a controlled substance (as defined in [the CSA])” like

those federal offenses “under the [CSA].” §924(e)(2).

Petitioners’ interpretations, by contrast, would treat

those federal and state offenses differently. Consider a de-

fendant who was caught distributing cocaine on back-to-

back days, was charged with a federal crime for the first

day’s offense and an identical state crime for the second,

and was convicted of both before the 2015 amendment that

——————

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

Cite as: 602 U. S. ____ (2024) 9

Opinion of the Court

deleted the Parkinson’s drug from the definition of cocaine.

Under petitioners’ interpretations, the federal offense

would remain an ACCA predicate, but the state offense

would not, even though the crimes and the statutes of con-

viction were otherwise identical.

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

Both subsections refer to prior offenses relating to the CSA,

and in §924(e)(2)(i) Congress clearly indicated that past

conduct that violated the CSA is probative of a defendant’s

“culpability and dangerousness,” McNeill, 563 U. S., at 823,

even if the federal drug schedule is later amended. There

is no reason to think Congress reached a different judgment

as to petitioners’ conduct merely because they had been con-

victed under a state, rather than federal, statute. Indeed,

it would be unnatural to give back-to-back references to the

CSA starkly different interpretations. See, e.g., Brown v.

Gardner, 513 U. S. 115, 118 (1994); Ratzlaf v. United

States, 510 U. S. 135, 143 (1994).4

C

The Government’s interpretation also best fulfills

ACCA’s statutory objectives. Congress’s “general ap-

proach” in ACCA was to single out “offenses of a certain

level of seriousness that involve violence or an inherent risk

——————

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

would be inconsistent with other statutory references to the CSA that

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

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

which criminalizes cross-border travel to obtain a firearm intended for

use in a state offense “relating to any controlled substance (as defined in

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

from operating under the influence of “any controlled substance (as de-

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

conduct, while ACCA refers to “previous convictions.” §924(e)(1). Be-

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

it differently.

10 BROWN v. UNITED STATES

Opinion of the Court

thereof, and that are likely to be committed by career of-

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

Because defendants who have repeatedly committed ACCA

predicate offenses are “especially likely to inflict grave

harm when in possession of a firearm,” ACCA imposes a

higher punishment when they do so. Wooden v. United

States, 595 U. S. 360, 375 (2022); United States v. Rodri-

quez, 553 U. S. 377, 385 (2008) (“[A] second or subsequent

offense is often regarded as more serious because it por-

tends greater future danger and therefore warrants an in-

creased sentence for purposes of deterrence and incapacita-

tion”). A defendant’s “history of criminal activity” does not

“cease to exist” merely because the crime was later rede-

fined. McNeill, 563 U. S., at 823. It therefore makes sense

to ask, as the Government does, whether a prior offense met

ACCA’s definition of seriousness—and thus suggested fu-

ture danger—at the time it was committed.

Petitioners and the dissent disagree. As Brown puts

it, when the Federal Government “changes the federal

drug schedules,” it “necessarily conclude[s]” that the

de-scheduled substance “does not implicate the culpability

or harm that federal law previously attributed to it.” Reply

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

Brown and Jackson were themselves convicted of crimes in-

volving substances that are still on the federal schedules,

marijuana and cocaine, not hemp or [123I]ioflupane.5 But

even setting that aside, their argument misunderstands the

theory on which ACCA is based.

A prior drug conviction for an offense punishable by 10

years’ imprisonment augurs a risk of future dangerousness

——————

5 Latching onto this sentence, the dissent spends three pages accusing

us of departing from the categorical approach. Post, at 11–14 (opinion of

JACKSON, J.). The dissent attacks a strawman. We agree that our prec-

edents require us to ask whether a defendant’s prior conviction matches

ACCA’s requirements. Post, at 11–12. The question here is what ACCA

requires.

Cite as: 602 U. S. ____ (2024) 11

Opinion of the Court

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

because the conviction reveals that the defendant previ-

ously engaged in illegal conduct that created a dangerous

risk of violence, either with law enforcement or with others

operating in the same illegal field. If left at large, such de-

fendants present a serious risk to public safety.

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

the defendant was convicted is later amended or elimi-

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

person who distributed alcohol during Prohibition. The

later legalization of alcohol did not by any means ensure

that these bootleggers would take up legitimate jobs. In-

stead, after the end of Prohibition, many of them simply

shifted to other illegal enterprises. See S. Morison, The Ox-

ford History of the American People 901 (1965) (Prohibition

led to “the building up of a criminal class that turned to

gambling and drugs” after the Eighteenth Amendment was

repealed). Likewise, Brown’s and Jackson’s multiple con-

victions for serious drug crimes are evidence that they may

continue to “ ‘commit a large number of fairly serious crimes

as their means of livelihood’ ” in the future. Wooden, 595

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

risk remains true despite the technical changes to the fed-

eral drug schedules on which their arguments hang.

For this reason, the Court has previously rejected similar

arguments about ACCA’s rationale. Like petitioners here,

the petitioner in McNeill argued that a later reduction in

the maximum sentence for his offense reflected a legislative

judgment that his prior offense was less serious than previ-

ously thought. Brief for Petitioner in No. 10–5258 (CA4),

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

should no longer be treated as “serious” under ACCA. We

termed that argument “absurd.” McNeill, 563 U. S., at 822.

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

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

12 BROWN v. UNITED STATES

Opinion of the Court

earlier conviction—not the legislature’s subsequent judg-

ment—that ACCA was concerned with, because that fact

“demonstrate[d]” the defendant’s “culpability and danger-

ousness.” Ibid.

III

Petitioners and the dissent make various other argu-

ments, but none is persuasive.

A

1

Jackson mainly relies on two interpretive tools. He be-

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

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

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

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

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

“And,” he says, “the first time a ‘question arises’ under

ACCA is when a person commits [a] federal firearm of-

fense.” Brief for Petitioner Jackson 32.

The reference canon can be a helpful tool, but Jackson

misuses it. That canon provides that a statutory reference

to a “general subject” incorporates “the law on that subject

as it exists whenever a question under the statute arises.”

Jam, 586 U. S., at 209 (emphasis added). But a reference

“to another statute by specific title or section number”—

such as ACCA’s reference to 21 U. S. C. §802—“in effect

cuts and pastes the referenced statute as it existed when

the referring statute was enacted, without any subsequent

amendments.” 586 U. S., at 209–210 (emphasis added).

That part of the reference canon undermines Jackson’s po-

sition.

Jackson attempts to rescue his argument by asserting

that ACCA’s mention of the CSA is actually a “general ref-

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

this argument, he cites cases that treat statutes as adopting

Cite as: 602 U. S. ____ (2024) 13

Opinion of the Court

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

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

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

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

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

contexts in which references to specific statutory provisions

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

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

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

section 102 of the Controlled Substances Act” as anything

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

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

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

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

defined in [the CSA]” differently from a federal offense “un-

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

to the same Act. Supra, at 8–9. That approach would give

defendants with prior state offenses the benefit of subse-

quent amendments to the CSA but would ignore those same

amendments for prior federal offenses. In that context,

Jackson’s reliance on the reference canon is clearly unper-

suasive.

Alternatively, Jackson says that his reading is required

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

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

crime was committed.” Brief for Petitioner Jackson 17 (cit-

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

And to show that this principle supports his reading of

§924(e)(2)(A)(ii), he offers a series of hypotheticals involving

amendments to ACCA. Brief for Petitioner Jackson 18–20.

Here is one. If Congress deleted drug possession from the

list of “serious drug offense[s],” he argues, no one would

think that someone who “commit[ted] a federal firearm of-

fense after this change . . . would be subject to ACCA based

on a prior state conviction” for drug possession. Id., at 18.

Therefore, he maintains, the same should be true for

14 BROWN v. UNITED STATES

Opinion of the Court

amendments to the schedules.

This argument begs the question that these cases pre-

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

every change in the drug schedules. Jackson imagines a

version of ACCA that plainly would not apply to a prior

state offense because that version would no longer list drug

possession as a “serious” offense, and he then reasons that

the same result should obtain here. But in his hypothetical,

§924(e) was amended. Here, only the federal drug sched-

ules were changed. Jackson’s argument that a change in

the federal drug schedules equates to a change in

§924(e)(2)(A)(ii) is thus nothing more than his reference-

canon argument dressed in different garb. And for the rea-

sons we have explained, we are convinced that the canon

does not work in the way he suggests.

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

when the crime was committed” is a red herring. Section

924(e)(2)(A)(ii) currently means that a prior state drug con-

viction may constitute an ACCA predicate if the drugs on

the federal and state schedules matched when the state

drug offense was committed. Thus, contrary to Jackson’s

suggestion, treating his prior convictions as ACCA predi-

cates is entirely consistent with the “settled legal principle”

that current law “sets the penalty for a federal crime.” Id.,

at 17.

2

The dissent agrees with Jackson’s interpretation but for

a different reason. It believes that all cross-references

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

of the statute’s interpretation.” Post, at 4–5 (opinion of

JACKSON, J.). Thus, ACCA’s reference to the CSA must in-

corporate “the federal drug schedules that are currently in

effect for sentencing purposes—i.e., those that were effec-

tive at the time of the federal offense.” Post, at 4.

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

Cite as: 602 U. S. ____ (2024) 15

Opinion of the Court

cites supports this proposition. See Yellen v. Confederated

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

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

Carachuri-Rosendo v. Holder, 560 U. S. 563, 566–570

(2010); Holder v. Humanitarian Law Project, 561 U. S. 1,

8–9 (2010). For good reason: as we have explained, cross-

references sometimes refer to the law as it currently exists,

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

isted when the cross-reference was enacted. Supra, at 12.

Indeed, many of the dissent’s cases stand for the unobjec-

tionable proposition that courts must carefully consider the

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

fits-all approach to cross-references. See Herrmann v. Cen-

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

tempting to “do the least damage” to unravel “contradictory

enactments”); United States v. Head, 552 F. 3d 640, 645

(CA7 2009) (rejecting a “categorical rule” for “statutory

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

(CA2 2020) (rejecting a reference-canon argument incon-

sistent with plain language).

Following the approach laid out by the dissent’s cases

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

What is the best reading of ACCA’s cross-reference in light

of context, precedent, and statutory purpose? Supra, at 7.

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

drug conviction constitutes an ACCA predicate if the drugs

on the federal and state schedules matched when the state

drug offense was committed.

B

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

quire the state and federal definitions to match when the

defendant is sentenced for a federal firearm offense. Brown

first argues that his interpretation is grounded in ACCA’s

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

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

16 BROWN v. UNITED STATES

Opinion of the Court

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

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

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

defined in’ ” is likewise in the present tense. Id., at 3.

Unfortunately for Brown, we have already rejected this

textual argument.6 The petitioner in McNeill likewise ar-

gued that the present-tense language in ACCA’s definition

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

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

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

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

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

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

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

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

gest otherwise.” Ibid.

McNeill’s conclusion makes sense. Use of the present

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

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

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

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

future).” House Office of the Legislative Counsel, Style

Manual; Drafting Suggestions for the Trained Drafter

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

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

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

use the present tense . . . ”). So, at least in the instant con-

text, we cannot place too much weight on the use of the pre-

sent tense as opposed to the past.

Brown also claims that his reading is required by United

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

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

——————

6 The dissent makes a similar textual argument but does not grapple

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

post, at 6, and n. 2.

Cite as: 602 U. S. ____ (2024) 17

Opinion of the Court

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

that principle does nothing to advance Brown’s position.

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

litigation, from the time petitioners committed their federal

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

drug possession offenses may qualify as ACCA predicates if

the federal and state schedules matched when the state

crimes occurred.

C

We conclude by addressing some additional arguments

advanced by both petitioners. First, they assert that our

interpretation should be rejected because it is underinclu-

sive—specifically, because it would preclude ACCA en-

hancements for state offenses involving drugs added to the

federal lists only after the state crimes were committed.

But none of the parties’ interpretations captures all cases

involving career criminals. Indeed, Brown and Jackson are

themselves asking to be exempted from ACCA’s reach even

though they both have a history of dealing drugs that re-

main prohibited by federal law.

Second, petitioners suggest that the Government’s inter-

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

reach all state drug convictions from before 1970” when the

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

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

sequence is desirable, it is not absurd.

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

sen not to count either federal or state drug convictions that

——————

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

plying Guidelines sentencing enhancements as they exist at sentencing.

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

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

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

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

struction.

18 BROWN v. UNITED STATES

Opinion of the Court

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

acted more than 50 pieces of legislation relating to . . . dan-

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

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

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

replace these scattered provisions “with a single compre-

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

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

5 (2014). It was reasonable for Congress to peg ACCA’s pen-

alties to that new comprehensive regulatory scheme rather

than requiring courts to grapple with the welter of federal

drug laws that previously existed.

Petitioners argue that the Government’s interpretation

would unduly burden courts and defendants by requiring

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

eral drug schedules and comparing those to the state laws

the defendants violated. But the difficulty of this task is

overstated. Most drug convictions concern just a few drugs,

and the federal and state definitions of those drugs do not

often change. In the cases now before us, the courts below

had no apparent difficulty finding the needed information.

Finally, both petitioners contend that the rule of lenity

counsels us to adopt their interpretations. It does not. Len-

ity applies only if a statute remains grievously ambiguous

after we have consulted “ ‘everything from which aid can be

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

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

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

and statutory design adequately show “ ‘what Congress in-

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

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

(2010)).

In any event, neither Jackson’s nor Brown’s interpreta-

tion would be preferable for all defendants. Both interpre-

tations could hurt defendants who committed or were sen-

tenced for the felon-in-possession offense before the

Cite as: 602 U. S. ____ (2024) 19

Opinion of the Court

addition of a drug to the federal schedules. As petitioners’

own briefs highlight, States sometimes criminalize drugs

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

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

instance, Florida banned the stimulant known as bath salts

10 months earlier than the Federal Government.8 And

Utah criminalized the hallucinogen methoxetamine nearly

a decade before the Federal Government followed suit. See

2013 Utah Laws ch. 88; Schedules of Controlled Sub-

stances: Placement of Methoxetamine (MXE) in Schedule I,

87 Fed. Reg. 34166 (2022). State convictions for those drugs

that predate the federal amendments would not count as

ACCA predicates under the Government’s interpretation

but may under petitioners’ interpretations. It would be odd

to use the rule of lenity to help petitioners but harm others.

* * *

For these reasons, we hold that a state drug conviction

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

federal schedules at the time of that conviction. Accord-

ingly, we affirm the judgments of the Courts of Appeals.

It is so ordered.

——————

8 Florida Bans ‘Bath Salt’ Drugs After Violent Outbursts, Sun Sentinel

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

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

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

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

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

control-and-regulation.

Cite as: 602 U. S. ____ (2024) 1

JACKSON, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 22–6389 and 22–6640

_________________

JUSTIN RASHAAD BROWN, PETITIONER

22–6389 v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

EUGENE JACKSON, PETITIONER

22–6640 v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[May 23, 2024]

JUSTICE JACKSON, with whom JUSTICE KAGAN joins, and

with whom JUSTICE GORSUCH joins as to Parts I, II, and III,

dissenting.

The Court maintains that, “[s]tanding alone,” the text of

18 U. S. C. §924(e)(2)(A)(ii) “does not definitively answer”

the question presented in these cases. Ante, at 7. Instead,

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

dent, statutory context, and purpose—which apparently

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

quires sentencing courts to apply the drug schedules in ef-

fect at the time of a defendant’s prior state drug conviction

when determining the applicability of the 15-year manda-

tory minimum in the Armed Career Criminal Act (ACCA).

But the relevant text does definitively answer the question

presented here. And it establishes that courts should apply

the drug schedules in effect at the time of the federal fire-

arms offense that triggers ACCA’s potential application.

Nothing else—not precedent, context, or purpose—requires

2 BROWN v. UNITED STATES

JACKSON, J., dissenting

a different result. Therefore, I respectfully dissent.

I

A

As relevant here, ACCA imposes a 15-year mandatory

minimum for defendants who commit a violation of §922(g)

while having “three previous convictions . . . for . . . a seri-

ous drug offense.” 18 U. S. C. §924(e)(1). Notably, Congress

did not leave unanswered the question of which prior state

convictions qualify as “a serious drug offense” for ACCA

purposes. Rather, ACCA expressly defines the term “seri-

ous drug offense” by direct reference to another federal law.

To qualify as a “serious drug offense,” the prior state crime

must be one “involving manufacturing, distributing, or pos-

sessing with intent to manufacture or distribute, a con-

trolled substance (as defined in section 102 of the Con-

trolled Substances Act (21 U. S. C. [§]802)).”

§924(e)(2)(A)(ii).

The dispute in these cases arises from the fact that the

meaning of the term “controlled substance”—as defined by

federal law—can, and frequently does, change. Under the

Controlled Substances Act, a controlled substance is “a drug

or other substance, or immediate precursor, included in

schedule I, II, III, IV, or V.” 21 U. S. C. §802(6). Those five

schedules, which are not contained in the statute itself, are

lists of substances that are “updated and republished on an

annual basis” by the Attorney General. §812(a). During

this annual review, the Attorney General may add or re-

move drugs from the schedules based on various considera-

tions, such as a drug’s “actual or relative potential for

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

ing the drug.” §811(c); see also, e.g., 21 CFR pt. 1308 (2023)

(setting forth the most recent drug schedules). Congress

itself can also categorically remove substances from the

schedules. See, e.g., 21 U. S. C. §802(16)(B) (excluding

hemp from the schedules).

Cite as: 602 U. S. ____ (2024) 3

JACKSON, J., dissenting

By directing that the term “controlled substance” in

ACCA be determined on the basis of the Controlled Sub-

stances Act’s definition—which itself references the federal

drug schedules—Congress has opted to rely on a federal

statute that contains its own cross-reference to a dynamic

list of prohibited substances. ACCA’s “serious drug offense”

definition thus incorporates those oft-changing drug sched-

ules by reference.

B

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

quently, a sentencing court deciding whether to impose

ACCA’s 15-year mandatory minimum for a violation of

§922(g) must consult those external drug schedules to de-

termine whether the drug “ ‘involv[ed]’ ” in a prior state of-

fense is a controlled substance under federal law. See ante,

at 1–2. Yet, somehow, the majority concludes that the per-

tinent drug schedules for ACCA’s sentencing exercise are

those that were in effect when the prior state drug crime

occurred. In my view, a straightforward application of the

aforementioned statutory text plainly establishes other-

wise.

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

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

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

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

marks omitted). Congress could have defined “serious drug

offense” based solely on state law. It did not. Instead, Con-

gress made clear that only state drug crimes that involve

substances that qualify as “controlled substance[s]” under

the Controlled Substances Act are sufficiently serious to

warrant ACCA’s penalty.

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

pears in ACCA cross-references the highly mutable federal

drug schedules—a drafting device that does particular

4 BROWN v. UNITED STATES

JACKSON, J., dissenting

work in the legislative context. Consistent with the opera-

tion of cross-references elsewhere, the cross-reference in

ACCA’s “serious drug offense” definition necessarily directs

sentencing courts to consult the current federal drug sched-

ules—i.e., those in effect at the time of the federal offense

for which the defendant is being sentenced—rather than

some earlier version of those lists.

That is, quite simply, how cross-references work. When

it comes time to interpret a statute, courts typically plug

the referenced provision, as they find it, into the statutory

text. They do not consider, much less account for, any

amendments that might have taken place over the course

of the referenced provision’s existence. Nor does it matter

that the referenced statute is a separate pronouncement

that has its own legislative history and course of develop-

ment.

Courts proceed in this straightforward plug-and-play

manner with respect to statutory cross-references because

“the presumed temporal application of a statute” is when

“the relevant activity that the [statute] regulates” occurs.

Landgraf v. USI Film Products, 511 U. S. 244, 291 (1994)

(Scalia, J., concurring in judgments). That presumption ap-

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

statute, because “incorporating one statute or system of

statutes into another . . . serves to bring into the latter all

that is fairly covered by the reference.” Panama R. Co. v.

Johnson, 264 U. S. 375, 392 (1924). And what is fairly cov-

ered is the referenced law as it exists when the statute’s

application is required. See Landgraf, 511 U. S., at 291.

Until today, that had been our consistent practice. See,

e.g., Yellen v. Confederated Tribes of Chehalis Reservation,

594 U. S. 338, 344–348 (2021) (applying the cross-refer-

enced definition then in effect); Astrue v. Capato, 566 U. S.

541, 547–549 (2012) (same); Carachuri-Rosendo v. Holder,

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

tarian Law Project, 561 U. S. 1, 8–9 (2010) (same). When a

Cite as: 602 U. S. ____ (2024) 5

JACKSON, J., dissenting

statute contains a cross-reference to another provision, we

have always simply applied the version of the other provi-

sion in effect at the time the cross-referenced provision was

needed, even if Congress amended that provision at some

point in the past.

Of course, this way of interpreting statutes with cross-

references means that a change in the referenced provision

has the effect of changing the statute that contains the

cross-reference. But that is a feature, not a bug, of statu-

tory cross-references. In fact, Congress often uses the cross-

reference device in a statute “precisely because the [refer-

enced provision] may be amended.” Herr-mann v. Cencom

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

brook, J.) (emphasis added). Far from being problematic,

one useful feature of a statutory cross-

reference from the standpoint of the legislative drafter is

that it “permits the effect of a change in one section to prop-

agate to other, related, sections without rewriting all of

those related sections.” Ibid.

That basic understanding of how cross-references work

easily resolves these cases. ACCA mandates that, for the

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

substance” must be determined in accordance with the Con-

trolled Substances Act, 18 U. S. C. §924(e)(2)(A)(ii), and the

Controlled Substances Act, in turn, looks to the substances

on the drug schedules, 21 U. S. C. §802(6). Congress’s in-

corporation of the drug schedules by cross-reference in this

manner means that a sentencing court must plug in the

drug schedules as it finds them based on when “the relevant

activity that the [statute] regulates” occurs. Landgraf, 511

U. S., at 291. For ACCA, as with other federal criminal

statutes, that means the court must apply the drug sched-

ules in effect when the defendant “commits the underlying

conduct that makes the offender liable.” Dorsey v. United

6 BROWN v. UNITED STATES

JACKSON, J., dissenting

States, 567 U. S. 260, 272 (2012).1

To be sure, one consequence of this approach is that, as

the drug schedules change, so does the meaning of “con-

trolled substance” under ACCA. See Herrmann, 978 F. 2d,

at 983. But, again, Congress seems to have intended that

result, insofar as the statute it wrote pegs ACCA’s “serious

drug offense” definition to lists of substances that the At-

torney General is required to revisit on an annual basis. In-

deed, Congress presumably chose to cross-reference those

drug lists (rather than copying them directly into ACCA)

precisely because of their dynamic nature.

The fact that ACCA’s “serious drug offense” definition

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

at 16, further bolsters the conclusion that Congress was

consciously incorporating the annual updates that the fed-

eral drug schedules embody. As we have previously recog-

nized, “the present tense generally does not include the

past.” Carr v. United States, 560 U. S. 438, 448 (2010). If

Congress had wanted to reference a past version of the drug

schedules, it easily could have indicated as much in the text

of ACCA. But Congress used the present tense instead, di-

recting sentencing courts to look to the meaning of “con-

trolled substance” in effect when a defendant commits the

federal crime requiring ACCA’s application, not at some

previous point in time.2

——————

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

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

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

6. While Congress determined that the Sentencing Guidelines should

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

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

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

defendant committed the federal crime, see Dorsey, 567 U. S., at 272.

Only Jackson’s approach is consistent with that precedent. See ante, at

5.

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

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

Cite as: 602 U. S. ____ (2024) 7

JACKSON, J., dissenting

II

The Government rejects the foregoing description of how

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

pressing “disagree[ment] that the background rule is that

we always look to the contemporaneous referenced law”).

The Government insists that, instead of merely calling for

insertion of the referenced law, the appearance of a cross-ref-

erence in a statute “raises a temporal question” that re-

quires a court to determine “which version of [the cross-ref-

erenced provision] Congress intend[ed] to reference.” Id.,

at 56. As the Government sees it, every statutory cross-

reference can thus have “different temporal branches de-

pending on context.” Id., at 58; see also ante, at 15 (appear-

ing to adopt this temporally flexible approach to cross-ref-

erences).

That cannot be right. We have never viewed statutory

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

v. Martinez, 543 U. S. 371, 382 (2005) (rejecting an ap-

proach that “would render every statute a chameleon”). No

case that I am aware of has ever asked whether some past

version of the statute applies when the court is interpreting

a provision that contains a cross-reference—and neither the

——————

legislative drafting manual as support for that conclusion. Ante, at 16.

But the wholly speculative suggestion that ACCA’s drafters actually re-

lied on the cited manual’s tense-related directives conveniently comes

out of nowhere. Moreover, to the extent the majority now believes that

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

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

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

ently used all aspects of a statute’s text to ascertain its meaning, includ-

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

222, 236 (2020); Carr v. United States, 560 U. S. 438, 448 (2010); United

States v. Wilson, 503 U. S. 329, 333 (1992); Gwaltney of Smithfield, Ltd.

v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). An objection

to this approach has surfaced only once before, in dissent. See Carr, 560

U. S., at 462–464 (opinion of ALITO, J.) (relying on legislative drafting

manuals to suggest that the tense of the verbs in a statute was not rele-

vant to the provision’s interpretation).

8 BROWN v. UNITED STATES

JACKSON, J., dissenting

majority nor the Government cites any. In fact, our actual

practices establish the contrary. Whenever we have ad-

dressed a statutory cross-reference, we have always taken

the same tried-and-true approach that we employ with re-

spect to statutory definitions: We plug in the referenced

provision as it exists at the moment the statute’s provisions

become applicable. See Part I–B, supra.

Any other approach risks chaos. Again, Congress often

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

erenced provision] may be amended,” thereby allowing that

amendment “to propagate to other, related, sections with-

out rewriting all of those related sections.” Herrmann, 978

F. 2d, at 983. The Government’s view would unsettle that

longstanding drafting convention, injecting uncertainty

into what Congress must do to amend statutes using cross-

references. What is more, if every cross-reference raised a

question about which version of the referenced statute ap-

plies—past or present—interpretation of federal statutes

with cross-references would become entirely unworkable.

Cross-references are legion in the U. S. Code, and cross-

referenced statutes are regularly amended. Under the Gov-

ernment’s approach, every one of those amendments would

become a jump ball, inviting competing interpretations

about which version of the referenced statute applies.

The Government claims that this disordered way of ap-

plying cross-references stems from the so-called reference

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

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

——————

3 The reference canon has two strains, general and specific. First,

“[w]hen a statute refers to a general subject, the statute adopts the law

on that subject as it exists whenever a question under the statute arises.”

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

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

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

erenced statute as it existed when the referring statute was enacted,

without any subsequent amendments.” Id., at 209–210; see also Hassett

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

Cite as: 602 U. S. ____ (2024) 9

JACKSON, J., dissenting

But even if the reference canon applies under these circum-

stances, it seems to cut against the Government’s interpre-

tation. The Government asserts that, because ACCA refer-

ences a specific section—“section 102 of the Controlled

Substances Act,” 18 U. S. C. §924(e)(2)(A)(ii)—the reference

canon “would suggest that the ACCA incorporated the

schedules as they existed in 1986, when the cross-reference

was enacted.” Brief for United States 42. But conspicu-

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

discussion of the reference canon, see ante, at 12–13) is the

actual text of the cross-referenced provision at issue in

these cases, which comes nowhere near incorporation of a

static, historical list of substances.

Instead, as explained above, ACCA’s “serious drug of-

fense” definition cross-references §102 of the Controlled

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

that provision, a “controlled substance” is “a drug or other

substance, or immediate precursor, included in schedule I,

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

juxtaposition turns what appears to be a specific statutory

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

determine which substances fall under the statutory defini-

tion without knowing what the five schedules contain. And

because those schedules are designed to change over time,

it is hard to view ACCA’s reference to the controlled sub-

stances definition of the Controlled Substances Act as any-

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

ternal body of potentially evolving law” and “adop[t] the law

on that subject as it exists whenever a question under the

——————

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

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

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

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

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

reference canon” and instead interpreting the statute consistent with its

plain language).

10 BROWN v. UNITED STATES

JACKSON, J., dissenting

statute arises.” Jam v. International Finance Corp., 586

U. S. 199, 209–210 (2019).

The upshot is that proper application of the reference

canon here leads to the same conclusion that I reached

above. The cross-reference in ACCA incorporates drug

schedules that are updated annually and does so in the pre-

sent tense, thereby requiring sentencing courts to merely

plug in the drug schedules in effect at the time of the de-

fendant’s federal firearms offense—i.e., the relevant

timeframe for the purpose of the court’s interpretation of

ACCA’s “serious drug offense” language.

III

In rejecting the typical, straightforward understanding of

ACCA’s cross-reference, the majority pivots away from the

text of the statute entirely, and purportedly bases the

Court’s conclusion on “precedent and statutory context.”

Ante, at 7. Neither our precedents nor the context of this

statute actually compels a different conclusion than the text

does, for the reasons explained below.

A

To start, the majority misreads our precedent. In McNeill

v. United States, 563 U. S. 816 (2011), we considered how to

determine whether a state drug crime involved “a maxi-

mum term of imprisonment of ten years or more” under

state law. §924(e)(2)(A)(ii). McNeill instructed sentencing

courts making this determination to undertake a “back-

ward-looking” inquiry by “consult[ing]” “the law under

which the defendant was convicted”—that is, “the version

of state law that the defendant was actually convicted of

violating.” 563 U. S., at 820–821.

The majority contends that this same “ ‘backward-

looking’ ” approach should apply to the federal drug sched-

ules. Ante, at 8 (quoting McNeill, 563 U. S., at 820). But

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

Cite as: 602 U. S. ____ (2024) 11

JACKSON, J., dissenting

defendant was convicted.” Id., at 820. And of course

McNeill was “backward-looking”; any inquiry into a defend-

ant’s statute of conviction is necessarily so. Here, both the

Government and petitioners take as a given “the version of

state law that the defendant was actually convicted of vio-

lating,” as McNeill instructs. Id., at 821. The question pre-

sented in these cases—on which the parties disagree—is

how to evaluate whether that prior state-law conviction

qualifies as a “serious drug offense” under federal law.

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

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

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

quiry. And for all the reasons discussed above, the federal

benchmark that Congress has selected is not “backward-

looking” in the least—it rationally incorporates the cur-

rently applicable drug schedules, not ones from the past.

See Part I, supra.

The majority’s opinion not only misconstrues McNeill, it

also flatly contradicts other precedents from this Court out-

lining how to determine whether a prior state conviction

qualifies as an ACCA predicate. See, e.g., Mathis v. United

States, 579 U. S. 500, 504 (2016); Taylor v. United States,

495 U. S. 575, 599–602 (1990). As the majority only scantly

mentions, to determine whether a state crime is a “serious

drug offense,” courts are not supposed to rely on the actual

or alleged facts related to the prior state drug crime. Ra-

ther, they ask “if the State’s definition of the drug in ques-

tion ‘matche[s]’ the definition under federal law.” Ante, at

2 (quoting Shular v. United States, 589 U. S. 154, 158

(2020); alteration in original). We have referred to this

matching process as the “ ‘categorical approach.’ ” Id., at

157 (quoting Taylor, 495 U. S., at 600).

Under that methodology, “[a] court must look only to the

state offense’s elements, not the facts of the case or labels

pinned to the state conviction.” Shular, 589 U. S., at 160.

Thus, we do not ask how the State classified or categorized

12 BROWN v. UNITED STATES

JACKSON, J., dissenting

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

defendant actually manufactured, possessed, or sold. Such

facts are “extraneous to the crime’s legal requirements,”

and “ACCA, as we have always understood it, cares not a

whit about them.” Mathis, 579 U. S., at 504. Properly ap-

plied, the categorical approach mandates that a court’s sole

focus must be on identifying the state crime’s statutory ele-

ments and determining whether they categorically match

the ACCA predicate.

By appearing to fixate on the facts of petitioners’ prior

state drug offenses, the majority’s opinion thus diverges

from our precedents. For example, the majority puzzlingly

suggests that our standard methodology for assessing state

crimes in relation to federal law provides a loophole for

these petitioners, because “Brown and Jackson were them-

selves convicted of crimes involving substances that are still

on the federal schedules, marijuana and cocaine, not hemp

or [123I]ioflupane.” Ante, at 10. But, again, the entire point

of the categorical approach is that courts may consider only

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

volved in that crime, when undertaking to determine

whether the state crime matches the federal standard.

This matters because ensuring adherence to the categor-

ical approach, which the majority fails to do here, serves

important objectives. We employ the categorical approach

not only because Congress commanded it, see Taylor, 495

U. S., at 589, but also because it “avoids unfairness to de-

fendants,” Mathis, 579 U. S., at 512, who may not have

sought to have the state records accurately reflected the de-

tails of the crime they committed.

Suppose, for example, that Brown—whose conviction was

reportedly for marijuana—was, in fact, prosecuted by the

State for conduct involving hemp, as some defendants were.

See, e.g., Commonwealth v. Harrelson, 14 S. W. 3d 541, 544

(Ky. 2000); see also New Hampshire Hemp Council, Inc. v.

Marshall, 203 F. 3d 1, 5 (CA1 2000) (noting that “the threat

Cite as: 602 U. S. ____ (2024) 13

JACKSON, J., dissenting

of federal prosecution [was] realistic” when hemp was still

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

viction for a drug crime involving marijuana versus one in-

volving hemp could be a significant one for purposes of a

future firearms prosecution that might trigger ACCA. But

a defendant in Brown’s position would likely have “no in-

centive to contest” that his conduct involved hemp, not an-

other form of marijuana, during the state prosecution be-

cause that fact did “not matter under the law” at that time.

Mathis, 579 U. S., at 512. Indeed, he might well have been

“precluded from doing so by the [state] court.” Ibid. It is

highly unlikely that such a defendant could even contem-

plate that his state conviction would be relevant to a future

ACCA conviction, because most state crimes have “no sig-

nificance under federal law for years to come.” Johnson v.

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

Unfairness arises without the categorical approach, be-

cause such a defendant’s punishment would be significantly

increased under ACCA for a prior state crime involving

hemp simply due to his failure to anticipate, at the time of

his state convictions, a future change in the federal drug

schedules. The categorical approach responds to that un-

fairness by relying exclusively on the elements of the state

crime, rather than the underlying facts of the crime.

So, as long as the drug substances expressly prohibited

by state law differ from those that the federal law pro-

scribes, then that state law is not a categorical match to

ACCA’s “serious drug offense” definition, and a conviction

under that statute cannot be used as an ACCA predicate.

Here, however, the majority suggests that the categorical

mismatch is irrelevant because, regardless, petitioners’

state crimes actually involved types of drugs that have re-

mained on the federal schedules during all potentially per-

tinent time periods. Ante, at 10. That reasoning not only

fails to follow our well-established methodology, it also per-

petuates the same unfairness that the categorical approach

14 BROWN v. UNITED STATES

JACKSON, J., dissenting

is designed to mitigate.

B

The majority fares no better with statutory context. The

majority’s opinion points to ACCA’s other definition of “se-

rious drug offense,” 18 U. S. C. §924(e)(2)(A)(i), which clas-

sifies certain federal crimes as “serious drug offenses.” That

provision defines a “serious drug offense” as “an offense un-

der the Controlled Substances Act (21 U. S. C. [§]801

et seq.), the Controlled Substances Import and Export Act

(21 U. S. C. [§]951 et seq.), or chapter 705 of title 46 for

which a maximum term of imprisonment of ten years or

more is prescribed by law.” §924(e)(2)(A)(i). As the major-

ity notes, this definition turns solely on “whether a defend-

ant was convicted and sentenced for such an offense, and a

later change in a federal drug schedule cannot change that

fact.” Ante, at 8 (footnote omitted). In the majority’s view,

we should avoid “treat[ing] . . . federal and state offenses

differently,” so the applicability of ACCA’s penalty to prior

state crimes, too, must be based simply on whether the fed-

eral drug schedules matched state law at the time of the

defendant’s prior state conviction. Ibid.

Whatever the merits of treating federal and state offenses

the same way might be, Congress did not draft ACCA to

achieve that result. When this Court previously addressed

these same two ACCA provisions in response to a similar

argument, it recognized that “the divergent text of the two

provisions of the serious-drug-offense definition . . . makes

any divergence in their application unremarkable.” Shular,

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

gress certainly could have used the same classification met-

ric for federal and state priors—say, by classifying federal

crimes as “serious drug offenses” based on the particular

controlled substances involved, as it did with state crimes—

but did not do so. And we generally “ ‘presume differences

in language . . . convey differences in meaning,’ ” especially

Cite as: 602 U. S. ____ (2024) 15

JACKSON, J., dissenting

“when the same Congress passed both statutes to handle

much the same task.” Wisconsin Central Ltd. v. United

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

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

gress’s choice to phrase the two “serious drug offense” defi-

nitions in ACCA differently “requires respect, not

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

At any rate, unlike the first subsection of ACCA’s “serious

drug offense” definition, the second subsection involves

classifying state crimes based on federal law—a circum-

stance that, as I previously explained, requires the categor-

ical approach. See supra, at 13–14. This means that some

federal-state discrepancy as to the kinds of crimes that are

deemed “serious drug offenses” is not at all surprising or

unusual; it is par for the course. See Shular, 589 U. S., at

164.

To see why, consider one example. The Controlled Sub-

stances Act provides that “it shall be unlawful for any per-

son knowingly or intentionally . . . to manufacture, distrib-

ute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance.” 21 U. S. C.

§841(a)(1). We have previously recognized that “the stat-

ute’s word ‘knowingly’ . . . appl[ies] to all the subsequently

listed elements of the crime” in this provision, meaning that

the Government must prove that a defendant knew he was

dealing with a controlled substance. Flores-Figueroa v.

United States, 556 U. S. 646, 650 (2009). State law, by con-

trast, does not always include such a knowledge require-

ment. See United States v. Smith, 983 F. 3d 1213, 1223

(CA11 2020). We have nonetheless recognized that ACCA

applies differently to state and federal drug crimes on this

basis. See Shular, 589 U. S., at 164.

Thus, the ultimate question is not whether ACCA re-

quires consistency between the classification of federal and

state crimes, as the majority suggests. Instead, given some

inevitable inconsistency between state and federal law, our

16 BROWN v. UNITED STATES

JACKSON, J., dissenting

inquiry is “which form of consistency Congress intended.”

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

ence to the Controlled Substance Act’s mutating drug

schedules in the state-crime definition—coupled with its

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

inition—indicates that inconsistency based on drug type

was not only anticipated but intended.

In short, the presence of a differently worded

§924(e)(2)(A)(i) does not overcome the plain meaning of

§924(e)(2)(A)(ii).

IV

Finally, the majority contends that its reading “best ful-

fills ACCA’s statutory objectives.” Ante, at 9. But that as-

sertion fails to appreciate ACCA’s actual goals. Congress

has plainly designated serious drug offenses in a defend-

ant’s criminal history as triggers for ACCA’s 15-year man-

datory minimum for a reason—because the seriousness of

the defendant’s prior drug-related history is indicative of

that defendant’s future dangerousness, given the present

firearms offense. The majority’s analysis falters because it

does not, and frankly cannot, explain how future danger-

ousness is best assessed by reference to outdated drug

schedules.

Congress indisputably enacted ACCA to incapacitate

what it viewed to be a class of especially dangerous defend-

ants—“the eponymous ‘armed career criminal.’ ” Wooden v.

United States, 595 U. S. 360, 375 (2022). The 15-year man-

datory minimum that ACCA imposes is among the harshest

mandatory penalties in the Federal Criminal Code, and

“the length of the mandatory minimum was set at 15 years”

specifically “to incapacitate the armed career criminal for

the rest of the normal time span of his career[,] which usu-

ally starts at about age 15 and continues to about age 30.”

S. Rep. No. 97–585, p. 7 (1982). This means that ACCA is

not a simple recidivist statute that merely tallies up past

Cite as: 602 U. S. ____ (2024) 17

JACKSON, J., dissenting

offenses, as the majority suggests, see ante, at 10–11,

thereby imposing a drastically increased penalty for illegal

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

criminal” perspective. Rather, Congress designed ACCA to

help courts identify a certain category of defendants—those

who, having a particular kind of criminal history and now

unlawfully possessing a gun, pose such a distinct risk of fu-

ture dangerousness that a lengthy term of incapacitation is

warranted.4

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

gory,” ACCA directs a sentencing court to conduct a review

of a defendant’s “past crimes” under state law, looking for

violent felonies or serious drug offenses, “because . . . crim-

inal history is relevant . . . to the kind or degree of danger

the offender would pose were he to possess a gun.” Begay

v. United States, 553 U. S. 137, 146 (2008). But, im-

portantly, ACCA does not deem every state crime a predi-

cate for the 15-year mandatory minimum. Instead, the

statute specifies certain categories of crimes that trigger

application of the prescribed penalty, due to the “prior

crime’s relevance to the possibility of future danger with a

gun.” Ibid.

ACCA’s focus on incapacitating certain defendants based

on their potential future dangerousness makes it entirely

sensible that the statute directs courts to identify “serious

drug offense[s]” (as well as “violent felon[ies]”) in a defend-

ant’s background. 18 U. S. C. §924(e)(1). What does not

make sense is the majority’s suggestion that ACCA requires

the extended incapacitation of defendants based on past

criminal conduct that federal law does not deem serious to-

——————

4 “Of course, to say that Congress had reasons” to enact ACCA’s sen-

tencing scheme “is not to endorse those policy choices.” Consumer Fi-

nancial Protection Bureau v. Community Financial Services Assn. of

America, Ltd., 601 U. S. ___, ___ (2024) (JACKSON, J., concurring) (slip

op., at 3).

18 BROWN v. UNITED STATES

JACKSON, J., dissenting

day. In other words, if the point of ACCA is the incapacita-

tion of certain defendants—those whose histories of serious

criminality indicate a propensity to commit future danger-

ous crimes in light of their unlawful possession of a

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

volving drugs that are no longer controlled substances help

to identify especially dangerous defendants? It does not.

In reality, that goal is achieved only by determining

whether a defendant’s past crimes are considered serious

by today’s standards. The federal drug schedules are spe-

cifically updated to account for current views of dangerous-

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

schedules reflects a determination that the drug is no

longer deemed dangerous based on criteria such as “[i]ts ac-

tual or relative potential for abuse” and “[t]he state of cur-

rent scientific knowledge regarding the drug.” 21 U. S. C.

§811(c). Accordingly, ACCA is best interpreted as referenc-

ing the drug schedules that are effective as of the date of

the commission of the gun crime that triggers ACCA’s ap-

plicability, rather than those that would have signaled se-

riousness at some prior time. “Indeed, it would be illogical

to conclude that federal sentencing law attaches ‘culpability

and dangerousness’ to an act that . . . Congress has con-

cluded is not culpable and dangerous.” United States v.

Bautista, 989 F. 3d 698, 703 (CA9 2021) (Fletcher, J.).

Meanwhile, the majority’s view misses the mark that

Congress set for ACCA’s sentencing scheme in another re-

spect as well: It leaves out many defendants who do war-

rant incapacitation for dangerousness—those who have

prior convictions for trafficking drugs that were scheduled

as controlled substances by the time their §922(g) offenses

were committed but were not on the federal drug schedules

when their prior state convictions occurred. The majority

concedes that its interpretation would exclude from ACCA’s

“serious drug offense” definition state drug crimes that oc-

cur when “States . . . criminalize drugs before the Federal

Cite as: 602 U. S. ____ (2024) 19

JACKSON, J., dissenting

Government does so.” Ante, at 19. This happens not infre-

quently, such as when a State criminalizes new, cutting-

edge drugs. See, e.g., ibid. (discussing the criminalization

of bath salts and methoxetamine by States before the Fed-

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

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

(same).

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

ment of future dangerousness via the consideration of past

state drug crimes would not apply to defendants if their

prior state convictions took place before the drugs they traf-

ficked were federally scheduled. But under the statutory

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

fendant’s early engagement with dangerous new drug sub-

stances criminalized by state law should not qualify as

ACCA predicates, especially since the federal drug sched-

ules are frequently updated to account for precisely this sort

of newfound danger, consistent with ACCA’s broader ap-

proach.

Ultimately, then, for all its talk of statutory goals, the

majority’s opinion elides the true purpose of ACCA’s man-

datory minimum scheme in multiple ways. It also down-

plays the means Congress adopted to advance its incapaci-

tation objectives, by essentially ignoring the link the

statute draws between potential future dangerousness, as

partially evidenced by the seriousness of a defendant’s past

drug activity, and the need for lengthy incapacitation,

which the statute provides. Breezing past these key nu-

ances, the majority simply announces its own apparent

view that “[a] prior drug conviction for an offense punisha-

ble by 10 years’ imprisonment augurs a risk of future dan-

gerousness even if the drug is no longer considered danger-

ous.” Ante, at 11.5

——————

5 The majority’s opinion offers no concrete evidence for this empirical

20 BROWN v. UNITED STATES

JACKSON, J., dissenting

* * *

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

a disagreement with Congress’s legislative judgment, em-

bodied in the text of the Controlled Substances Act, that a

change in the drug schedules is a change in the perceived

dangerousness of a drug that should have a material impact

on the determination whether incapacitation is warranted.

See 21 U. S. C. §811(a). The Court’s ruling thus displaces

Congress’s decision to base ACCA’s 15-year mandatory pen-

alty on the evolving dangerousness determinations that the

Controlled Substances Act incorporates rather than on

static impressions about a defendant’s recidivist tendencies

based solely on the fact that they have previously commit-

ted crimes.

The majority’s contrary holding seems to reflect its own

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

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

spite the technical changes to the federal drug schedules.”

Ante, at 11. But the choice of how to assess and address

dangerousness belongs first and foremost to Congress. And

for the reasons I have explained, Congress designed ACCA

to take a different approach—to measure future dangerous-

ness by today’s drug schedules, not outdated ones from the

past. See Part I, supra. One might harbor doubts that the

——————

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

tion, who supposedly “shifted to other illegal enterprises,” ante, at 11,

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

ity’s contentions, the end of Prohibition allowed many of those previously

involved in the illegal alcohol trade to transition into successful, legiti-

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

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

who turned his company Seagram’s into one of the largest

liquor-distribution corporations in the world). Regardless, there is

simply no evidence in ACCA’s legislative history or otherwise that Con-

gress drew the same historical lessons from Prohibition that the majority

does, or that ACCA was motivated in any respect by our Nation’s experi-

ences during Prohibition.

Cite as: 602 U. S. ____ (2024) 21

JACKSON, J., dissenting

sentencing policy that Congress enacted is sensible, just, or

effective. But it is the one that Congress wrote, and we re-

main dutybound to apply the law as written. In my view,

the majority has failed to do so here.