OPINION OF THE COURT LOPEZ V. GONZALES 549 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-547 JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO
R. GONZALES, Attorney General on writ of certiorari to the united
states court of appeals for the eighth circuit [December 5, 2006] Justice Souter
delivered the opinion of the Court. The question
raised is whether conduct made a felony under state law but a
misdemeanor under the Controlled Substances Act is a “felony
punishable under the Controlled Substances Act.” 18 U. S. C.
§924(c)(2). We hold it is not. I A The Immigration
and Nationality Act (INA) defines the term “aggravated felony” by a
list that mentions “illicit trafficking in a controlled substance …
including a drug trafficking crime (as defined in section 924(c) of
title 18).” §101(a)(43)(B), as added by §7342, 102 Stat. 4469, and
as amended by §222(a), 108 Stat. 4320, 8 U. S. C.
§1101(a)(43)(B). The general phrase “illicit trafficking” is left
undefined, but §924(c)(2) of Title 18 identifies the subcategory by
defining “drug trafficking crime” as “any felony punishable under
the Controlled Substances Act” or under either of two other federal
statutes having no bearing on this case. Following the listing,
§101(a)43 of the INA provides in its penultimate sentence that
“[t]he term [aggravated felony] applies to an offense described in
this paragraph whether in violation of Federal or State law” or, in
certain circumstances, “the law of a foreign country.” 8 U.
S. C. §1101(a)(43). An aggravated
felony on a criminal record has worse collateral effects than a
felony conviction simple. Under the immigration statutes, for
example, the Attorney General’s discretion to cancel the removal of
a person otherwise deportable does not reach a convict of an
aggravated felony. §1229b(a)(3). Nor is an aggravated felon
eligible for asylum. §§1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And
under the sentencing law, the Federal Guidelines attach special
significance to the “aggravated felony” designation: a conviction
of unlawfully entering or remaining in the United States receives
an eight-level increase for a prior aggravated felony conviction,
but only four levels for “any other felony.” United States
Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005)
(hereinafter USSG); id. , comment., n. 3 (adopting INA
definition of aggravated felony). B Although
petitioner Jose Antonio Lopez entered the United States illegally
in 1986, in 1990 he became a legal permanent resident. In 1997, he
was arrested on state charges in South Dakota, pleaded guilty to
aiding and abetting another person’s possession of cocaine, and was
sentenced to five years’ imprisonment. See S. D. Codified Laws
§22–42–5 (1988); §22–6–1 (Supp. 1997); §22–3–3 (1988). He was
released for good conduct after 15
months. After
his release, the Immigration and Naturalization Service
(INS)[ Footnote 1 ] began removal
proceedings against Lopez, on two grounds: that his state
conviction was a controlled substance violation, see 8 U.
S. C. §1227(a)(2)(B)(i), and was also for an aggravated
felony, see §1227(a)(2)(A)(iii). Lopez conceded the controlled
substance violation but contested the aggravated felony
determination, which would disqualify him from discretionary
cancellation of removal. See §1229b(a)(3). At first, the
Immigration Judge agreed with Lopez that his state offense was not
an aggravated felony because the conduct it proscribed was no
felony under the Controlled Substances Act (CSA). But after the
Board of Immigration Appeals (BIA) switched its position on the
issue, the same judge ruled that Lopez’s drug crime was an
aggravated felony after all, owing to its being a felony under
state law. See Matter of Yanez-Garcia , 23
I. & N. Dec. 390 (2002) (announcing that BIA
decisions would conform to the applicable Circuit law); United
States v. Briones-Mata , 116 F. 3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are
aggravated felonies). That left Lopez ineligible for cancellation
of removal, and the judge ordered him removed. The BIA affirmed,
and the Court of Appeals affirmed the BIA, 417 F. 3d 934 (CA8
2005).[ Footnote
2 ] We granted
certiorari to resolve a conflict in the Circuits about the proper
understanding of conduct treated as a felony by the State that
convicted a defendant of committing it, but as a misdemeanor under
the CSA.[ Footnote 3 ] 547 U. S.
___ (2006). We now reverse. II The
INA makes Lopez guilty of an aggravated felony if he has been
convicted of “illicit trafficking in a controlled substance …
including,” but not limited to, “a drug trafficking crime (as
defined in section 924(c) of title 18).” 8 U. S. C.
§1101(a)(43)(B). Lopez’s state conviction was for helping someone
else possess cocaine in South Dakota, which state law treated as
the equivalent of possessing the drug, S. D. Codified Laws
§22–3–3, a state felony, §22–42–5. Mere possession is not, however,
a felony under the federal CSA, see 21 U. S. C. §844(a),
although possessing more than what one person would have for
himself will support conviction for the federal felony of
possession with intent to distribute, see §841 (2000 ed. and Supp.
III); United States v. Kates , 174 F. 3d 580,
582 (CA5 1999) (per curiam) (“Intent to distribute may be
inferred from the possession of a quantity of drugs too large to be
used by the defendant alone”). Despite this federal misdemeanor treatment,
the Government argues that possession’s felonious character as a
state crime can turn it into an aggravated felony under the INA.
There, it says, illicit trafficking includes a drug trafficking
crime as defined in federal Title 18. Title 18 defines “drug
trafficking crime” as “any felony punishable under the Controlled
Substances Act (21 U. S. C. 801 et seq.),” §924(c)(2), and the
CSA punishes possession, albeit as a misdemeanor, see §405(a), 102
Stat. 4384, as renumbered and amended by §1002(g), 104 Stat. 4828,
21 U. S. C. §844(a). That is enough, says the Government,
because §924(c)(2) requires only that the offense be punishable,
not that it be punishable as a federal felony. Hence, a prior
conviction in state court will satisfy the felony element because
the State treats possession that way. There are a few
things wrong with this argument, the first being its incoherence
with any commonsense conception of “illicit trafficking,” the term
ultimately being defined. The everyday understanding of
“trafficking” should count for a lot here, for the statutes in play
do not define the term, and so remit us to regular usage to see
what Congress probably meant. FDIC v. Meyer , 510 U. S. 471 ,
476 (1994). And ordinarily “trafficking” means some sort of
commercial dealing. See Black’s Law Dictionary 1534 (8th ed. 2004)
(defining to “traffic” as to “trade or deal in (goods, esp. illicit
drugs or other contraband)”); see also Urena-Ramirez v. Ashcroft , 341 F. 3d 51, 57 (CA1 2003) (similar
definition); State v. Ezell , 321 S. C. 421,
425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce,
however, was no part of Lopez’s South Dakota offense of helping
someone else to possess, and certainly it is no element of simple
possession, with which the State equates that crime. Nor is the
anomaly of the Government’s reading limited to South Dakota cases:
while federal law typically treats trafficking offenses as felonies
and nontrafficking offenses as misdemeanors, several States deviate
significantly from this pattern.[ Footnote 4 ] Reading §924(c) the
Government’s way, then, would often turn simple possession into
trafficking, just what the English language tells us not to expect,
and that result makes us very wary of the Government’s position.
Cf. Leocal v. Ashcroft , 543 U. S. 1 , 11 (2004)
(“[W]e cannot forget that we ultimately are determining the meaning
of the term ‘crime of violence’ ”). Which is not to deny that
the Government might still be right; Humpty Dumpty used a word to
mean “ ‘just what [he chose] it to mean—neither more nor
less,’ ”[ Footnote 5 ] and
legislatures, too, are free to be unorthodox. Congress can define
an aggravated felony of illicit trafficking in an unexpected way.
But Congress would need to tell us so, and there are good reasons
to think it was doing no such thing here.[ Footnote 6 ] First, an offense
that necessarily counts as “illicit trafficking” under the INA is a
“drug trafficking crime” under §924(c), that is, a “felony
punishable under the [CSA],” §924(c)(2). And if we want to know
what felonies might qualify, the place to go is to the definitions
of crimes punishable as felonies under the Act; where else would
one naturally look? Although the Government would have us look to
state law, we suspect that if Congress had meant us to do that it
would have found a much less misleading way to make its point.
Indeed, other parts of §924 expressly refer to guilt under state
law, see §§924(g)(3), (k)(2), and the implication confirms that the
reference solely to a “felony punishable under the [CSA]” in
§924(c)(2) is to a crime punishable as a felony under the federal
Act. See Russello v. United States , 464 U. S. 16 , 23 (1983)
(“[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion” (alteration in original;
internal quotation marks omitted)). Unless a state offense is
punishable as a federal felony it does not count. The Government
stresses that the text does not read “punishable as a felony,” and
that by saying simply “punishable” Congress left the door open to
counting state felonies, so long as they would be punishable at all
under the CSA. But we do not normally speak or write the
Government’s way. We do not use a phrase like “felony punishable
under the [CSA]” when we mean to signal or allow a break between
the noun “felony” and the contiguous modifier “punishable under the
[CSA],” let alone a break that would let us read the phrase as if
it said “felony punishable under the CSA whether or not as a
felony.” Regular usage points in the other direction, and when we
read “felony punishable under the … Act,” we instinctively
understand “felony punishable as such under the Act” or “felony as
defined by the Act.”[ Footnote
7 ] Without some further explanation, using the phrase to cover
even a misdemeanor punishable under the Act would be so much
trickery, violating “the cardinal rule that statutory language must
be read in context.” General Dynamics Land Systems, Inc. v. Cline , 540 U. S. 581 , 596
(2004) (internal quotation marks and brackets omitted). That is why
our interpretive regime reads whole sections of a statute together
to fix on the meaning of any one of them, and the last thing this
approach would do is divorce a noun from the modifier next to it
without some extraordinary reason. The Government
thinks it has a good enough reason for doing just that, in the INA
provision already mentioned, that the term “aggravated felony”
“applies to an offense described in this paragraph whether in
violation of Federal or State law.” 8 U. S. C. §1101(a)(43).
But before this provision is given the Government’s expansive
treatment, it makes sense to ask whether it would have some use
short of wrenching the expectations raised by normal English usage,
and in fact it has two perfectly straightforward jobs to do: it
provides that a generic description of “an offense … in this
paragraph,” one not specifically couched as a state offense or a
federal one, covers either one, and it confirms that a state
offense whose elements include the elements of a felony punishable
under the CSA is an aggravated felony. Thus, if Lopez’s state crime
actually fell within the general term “illicit trafficking,” the
state felony conviction would count as an “aggravated felony,”
regardless of the existence of a federal felony counterpart; and a
state offense of possessing more than five grams of cocaine base is
an aggravated felony because it is a felony under the CSA, 21 U.
S. C. §844(a).[ Footnote
8 ] The Government’s
reliance on the penultimate sentence of 8 U. S. C.
§1101(a)(43) is misplaced for a second reason. The Government tries
to justify its unusual reading of a defined term in the criminal
code on the basis of a single sentence in the INA. But nothing in
the penultimate sentence of §1101(a)(43) suggests that Congress
changed the meaning of “felony punishable under the [CSA]” when it
took that phrase from Title 18 and incorporated it into Title 8’s
definition of “aggravated felony.” Yet the Government admits it has
never begun a prosecution under 18 U. S. C. §924(c)(1)(A) where the
underlying “drug trafficking crime” was a state felony but a
federal misdemeanor. See Tr. of Oral Arg. 33–36. This is telling:
the failure of even a single eager Assistant United States Attorney
to act on the Government’s interpretation of “felony punishable
under the [CSA]” in the very context in which that phrase appears
in the United States Code belies the Government’s claim that its
interpretation is the more natural one.[ Footnote 9 ] Finally, the
Government’s reading would render the law of alien removal, see 8
U. S. C. §1229b(a)(3), and the law of sentencing for illegal
entry into the country, see USSG §2L1.2, dependent on varying state
criminal classifications even when Congress has apparently pegged
the immigration statutes to the classifications Congress itself
chose. It may not be all that remarkable that federal consequences
of state crimes will vary according to state severity
classification when Congress describes an aggravated felony in
generic terms, without express reference to the definition of a
crime in a federal statute (as in the case of “illicit trafficking
in a controlled substance”). But it would have been passing strange
for Congress to intend any such result when a state criminal
classification is at odds with a federal provision that the INA
expressly provides as a specific example of an “aggravated felony”
(like the §924(c)(2) definition of “drug trafficking crime”). We
cannot imagine that Congress took the trouble to incorporate its
own statutory scheme of felonies and misdemeanors if it meant
courts to ignore it whenever a State chose to punish a given act
more heavily. Two examples show
the untoward consequences of the Government’s approach. Consider
simple possession of marijuana. Not only is it a misdemeanor under
the CSA, see 21 U. S. C. §844(a), but the INA expressly
excludes “a single offense involving possession for one’s own use
of 30 grams or less” from the controlled substance violations that
are grounds for deportation, 8 U. S. C. §1227(a) (2)(B)(i).
Yet by the Government’s lights, if a State makes it a felony to
possess a gram of marijuana the congressional judgment is
supplanted, and a state convict is subject to mandatory deportation
because the alien is ineligible for cancellation of removal. See
§1229b(a)(3).[ Footnote 10 ]
There is no hint in the statute’s text that Congress was courting
any such state-by-state disparity. The situation in
reverse flouts probability just as much. Possessing more than five
grams of cocaine base is a felony under federal law. See 21 U.
S. C. §844(a). If a State drew the misdemeanor-felony line at
six grams plus, a person convicted in state court of possessing six
grams would not be guilty of an aggravated felony on the
Government’s reading, which makes the law of the convicting
jurisdiction dispositive. See Brief for Respondent 48. Again, it is
just not plausible that Congress meant to authorize a State to
overrule its judgment about the consequences of federal offenses to
which its immigration law expressly refers. True, the argument
is not all one-sided. The Government points out that some States
graduate offenses of drug possession from misdemeanor to felony
depending on quantity, whereas Congress generally treats possession
alone as a misdemeanor whatever the amount (but leaves it open to
charge the felony of possession with intent to distribute when the
amount is large). Thus, an alien convicted by a State of possessing
large quantities of drugs would escape the aggravated felony
designation simply for want of a federal felony defined as
possessing a substantial amount. This is so, but we do not weigh it
as heavily as the anomalies just mentioned on the other side. After
all, Congress knows that any resort to state law will implicate
some disuniformity in state misdemeanor-felony classifications, but
that is no reason to think Congress meant to allow the States to
supplant its own classifications when it specifically constructed
its immigration law to turn on them. In sum, we hold
that a state offense constitutes a “felony punishable under the
Controlled Substances Act” only if it proscribes conduct punishable
as a felony under that federal law. The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion. It is so
ordered. Footnote
1 The INS’s
immigration-enforcement functions are now handled by the Bureau of
Immigration and Customs Enforcement in the Department of Homeland
Security. See Clark v. Martinez , 543 U. S. 371 , 374, n. 1
(2005). Footnote
2 Although the
Government has deported Lopez, we agree with the parties that the
case is not moot. Lopez can benefit from relief in this Court by
pursuing his application for cancellation of removal, which the
Immigration Judge refused to consider after determining that Lopez
had committed an aggravated felony. Footnote
3 Compare United
States v. Wilson , 316 F. 3d 506 (CA4 2003)
(state-law felony is an aggravated felony); United States v. Simon , 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez , 130 F. 3d
691 (CA5 1997) (same); United States v. Briones-Mata , 116 F. 3d 308 (CA8 1997) (per
curiam) (same); United States v. Cabrera-Sosa , 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar , 74 F. 3d
361 (CA1 1996) (same), with Gonzales-Gomez v. Achim , 441 F. 3d 532 (CA7 2006) (state-law felony is
not an aggravated felony); United States v. Palacios-Suarez , 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes , 280 F. 3d 297 (CA3 2002)
(same). Two Circuits have construed the aggravated felony
definition one way in the sentencing context and another in the
immigration context. Compare United States v. Ibarra-Galindo , 206 F. 3d 1337 (CA9 2000) (in
sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia , 171 F. 3d
142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft , 382 F. 3d 905 (CA9 2004) (in immigration
case, state-law felony is not an aggravated felony); Aguirre v. INS , 79 F. 3d 315 (CA2 1996)
(same). Footnote
4 Several States
punish possession as a felony. See, e. g. , S. D. Codified
Laws §§22–42–5 (2004), 22–6–1 (2005 Supp.); Tex. Health &
Safety Code Ann. §481.115 (West 2003); Tex. Penal Code Ann.
§§12.32–12.35 (West 2003); see also n. 10, infra . In
contrast, with a few exceptions, the CSA punishes drug possession
offenses as misdemeanors (that is, by one year’s imprisonment or
less, cf. 18 U. S. C. §3559(a)), see 21 U. S. C. §844(a)
(providing for “a term of imprisonment of not more than 1 year” for
possession offenses except for repeat offenders, persons who
possess more than five grams of cocaine base, and persons who
possess flunitrazepam), and trafficking offenses as felonies, see
§841 (2000 ed. and Supp. III). Footnote
5 L. Carroll, Alice
in Wonderland and Through the Looking Glass 198 (Messner
1982). Footnote
6 Of course, we must
acknowledge that Congress did counterintuitively define some
possession offenses as “illicit trafficking.” Those state
possession crimes that correspond to felony violations of one of
the three statutes enumerated in §924(c)(2), such as possession of
cocaine base and recidivist possession, see 21 U. S. C.
§844(a), clearly fall within the definitions used by Congress in 8
U. S. C. §1101(a)(43)(B) and 18 U. S. C. §924(c)(2),
regardless of whether these federal possession felonies or their
state counterparts constitute “illicit trafficking in a controlled
substance” or “drug trafficking” as those terms are used in
ordinary speech. But this coerced inclusion of a few possession
offenses in the definition of “illicit trafficking” does not call
for reading the statute to cover others for which there is no clear
statutory command to override ordinary meaning. Footnote
7 With respect to
this last possibility, for purposes of §924(c)(2) the crimes the
CSA defines as “felonies” are those crimes to which it assigns a
punishment exceeding one year’s imprisonment. As the Government
wisely concedes, see Brief for Respondent 25, although for its own
purposes the CSA defines the term “felony” standing alone as “any
Federal or State offense classified by applicable Federal or State
law as a felony,” 21 U. S. C. §802(13), that definition does not
apply here: §924(c)(2) refers to a felony “punishable under the
[CSA],” not to conduct punishable under some other law but defined
as a felony by the CSA. Footnote
8 Although the
parties agree that Congress added the provision that both state and
federal offenses qualify as aggravated felonies to codify the BIA’s
decision in Matter of Barrett , 20 I. & N.
Dec. 171 (1990), see also H. R. Rep. No. 101–681, pt. 1, p.
147 (1990) (noting that the provision reflects congressional
approval of Barrett ), our enquiry requires looking beyond
Congress’s evident acceptance of Barrett . In Barrett , the BIA held only that the phrase “ ‘drug
trafficking crime’ ” includes state “crimes analogous to
offenses under the Controlled Substances Act,” Barrett , supra , at 177, 178, without specifying whether a state
crime must be “analogous” to a CSA felony, as opposed to a CSA
misdemeanor, to count. Footnote
9 Contrary to the
Government’s response at oral argument, such a prosecution should
be possible under the Government’s proffered interpretation because
this subset of “drug trafficking crime[s]” still “may be prosecuted
in a court of the United States,” 18 U. S. C. §924(c)(1)(A),
albeit at the misdemeanor level. For the same reason, the dissent’s
argument that our reading renders superfluous the requirement in
§924(c)(1)(A) that the crime “may be prosecuted in a court of the
United States” misses the mark. Post , at 3 (opinion of
Thomas, J.). That phrase would be no less superfluous under the
dissent’s preferred reading, which would still require that the
offense be “capable of punishment under the Controlled Substances
Act,” post , at 1, and therefore subject to prosecution in
federal court. Footnote 10 Indeed, several
States treat possession of less than 30 grams of marijuana as a
felony. See Fla. Stat. §§893.13(6)(a)–(b), 775.082(3)(d) (2006)
(punishing possession of over 20 grams of marijuana as a felony);
Nev. Rev. Stat. §§453.336(1)–(2) (2004), §§453.336(4), 193.130
(2003) (punishing possession of more than one ounce, or 28.3 grams,
of marijuana as a felony); N. D. Cent. Code Ann.
§§19–03.1–23(6) (Lexis Supp. 2005), 12.1–32–01(4) (Lexis 1997)
(same); Ore. Rev. Stat. §161.605(3) (2003), Act Relating to
Controlled Substances, §33, 2005 Ore. Laws p. 2006
(same). THOMAS, J., DISSENTING LOPEZ V. GONZALES 549 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-547 JOSE ANTONIO LOPEZ, PETITIONER v. ALBERTO
R. GONZALES, Attorney General on writ of certiorari to the united
states court of appeals for the eighth circuit [December 5, 2006] Justice Thomas,
dissenting. Jose Antonio Lopez
pleaded guilty to aiding and abetting the possession of cocaine, a
felony under South Dakota law. The Court holds that Lopez’s
conviction does not constitute an “aggravated felony” because
federal law would classify Lopez’s possession offense as a
misdemeanor. I respectfully dissent. I The Immigration
and Nationality Act (INA) provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is
deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). As relevant to
this case, the INA defines an “aggravated felony” as “illicit
trafficking in a controlled substance … including a drug
trafficking crime (as defined in section 924(c) of title 18).”
§1101(a)(43)(B). And “the term ‘drug trafficking crime’ means any
felony punishable under the Controlled Substances
Act … .” 18 U. S. C. §924(c)(2). Lopez’s state
felony offense qualifies as a “drug trafficking crime” as defined
in §924(c)(2). A plain reading of this definition identifies two
elements: First, the offense must be a felony; second, the offense
must be capable of punishment under the Controlled Substances Act
(CSA). No one disputes that South Dakota punishes Lopez’s crime as
a felony. See S. D. Codified Laws §22–42–5 (1988). Likewise,
no one disputes that the offense was capable of punishment under
the CSA. See 21 U. S. C. §844(a). Lopez’s possession offense
therefore satisfies both elements, and the inquiry should end
there. The Court, however, takes the
inquiry further by reasoning that only federal felonies
qualify as drug trafficking crimes. According to the Court, the
definition of drug trafficking crime contains an implied
limitation: “any felony punishable [as a felony] under the” CSA.
The text does not support this interpretation. Most obviously, the
language “as a felony” appears nowhere in §924(c)(2). Without
doubt, Congress could have written the definition with this
limitation, but it did not. Furthermore, Lopez’s suggested
addition conflicts with the clear meaning of §924(c)(2), which
extends to both state and federal felonies. Specifically, the
definition broadly encompasses “ any felony” capable of
being punished under the CSA. 18 U. S. C. §924(c)(2) (emphasis
added). “Read naturally, the word ‘any’ has an expansive meaning
… .” United States v. Gonzales , 520 U. S. 1 , 5 (1997)
(plurality opinion); see also Small v. United
States , 544 U.
S. 385 , 397 (2005) (Thomas, J., dissenting) (“The broad phrase
‘any court’ unambiguously includes all judicial bodies with
jurisdiction to impose the requisite conviction …” (footnote
omitted)). The term “felony” takes its meaning from Title 18, which
classifies crimes as felonies when punishable by death or greater
than one year of imprisonment. §3559(a). “[A]ny felony” therefore
includes both federal and state felonies: The classification
depends only on the authorized term of imprisonment. Accordingly,
by the plain terms of §924(c)(2), conduct prohibited by the CSA may
qualify as a “drug trafficking crime” if under either federal law
or state law the conduct is punishable by more than one year of
imprisonment. This interpretation finds
support in other provisions in which Congress placed limits on the
types of drug trafficking crimes eligible for consideration. In
particular, §924(c)(1)(A) proscribes the use or possession of a
firearm “during and in relation to any … drug trafficking crime … for which the person may be prosecuted in a court of the United
States … .” (emphasis added); see also 18 U.
S. C. A. §924(c)(5) (Supp. 2006) (using identical
language in proscribing the use or possession of “armor piercing
ammunition”). The Court has previously interpreted this language to
limit “any … drug trafficking crime” to federal crimes. Gonzales , supra, at 5. This language, therefore,
acts as a jurisdictional limitation, carving out the subset of federal drug trafficking crimes and making only those
eligible for use in §§924(c)(1)(A) and 924(c)(5). No similar
federal-crime limitation appears in §924(c)(2). Interpreting the
term “drug trafficking crime,” as defined in §924(c)(2), to reach
only federal felonies would render superfluous the federal-crime
limitations in these other provisions. See Duncan v. Walker , 533
U. S. 167 , 174 (2001) (plurality opinion) (counseling against
interpretations that result in surplus language).[ Footnote 1 ] This interpretation also finds
support in the INA, which lists “illicit trafficking” and its
subset of “drug trafficking crime[s]” as aggravated felonies. 8 U.
S. C. §1101(a)(43)(B). The INA considers these offenses
aggravated felonies “whether in violation of Federal or State
law … .” §1101(a)(43) (penultimate sentence). Thus, by
incorporating §924(c)(2)’s definition of “drug trafficking crime,”
the INA supports and confirms the conclusion that the definition of
“drug trafficking crime” applies to both federal and state
felonies. Moreover, the INA isolates the
relevant inquiry to the prosecuting jurisdiction.
Section 1227(a)(2)(A)(iii) of Title 8 makes an alien eligible
for deportation only upon a conviction for an “aggravated
felony.” The conviction requirement suggests that the jurisdiction
issuing the conviction determines whether the offense is a felony.
This result makes sense. When faced with an actual conviction, it
would be unusual to ask, hypothetically, whether that conviction
would have been a felony in a different jurisdiction. Furthermore,
that hypothetical inquiry could cause significant inconsistencies.
For instance, where a State convicts an alien of a misdemeanor drug
crime, but federal law classifies the crime as a felony, the
misdemeanor conviction would constitute an aggravated felony. This
anomaly does not arise when relying on the prosecuting
jurisdiction’s classification of the crime. II The Court’s
approach is unpersuasive. At the outset of its analysis, the Court
avers that it must look to the ordinary meaning of “illicit
trafficking” because “the statutes in play do not define the term.” Ante , at 5. That statement is incorrect. Section
1101(a)(43)(B) of Title 8 clearly defines “illicit trafficking in a
controlled substance,” at least in part, as “a drug trafficking
crime ( as defined in section 924(c) of title 18 ).”
(Emphasis added.) Therefore, whatever else “illicit trafficking”
might mean, it must include anything defined as a “drug trafficking
crime” in §924(c)(2). Rather than grappling with this definition of
the relevant term, the Court instead sets up a conflicting strawman
definition. The majority
states that the ordinary meaning of “illicit trafficking” involves
“some sort of commercial dealing.” Ante , at 5. Because
mere possession does not constitute commercial dealing, the Court
concludes that Lopez’s possession offense cannot qualify as an
“illicit trafficking” offense—or, by implication, a “drug
trafficking crime.” Yet even the Court admits that the term “drug
trafficking crime” includes federal drug felonies, several of which
are mere possession offenses. See 21 U. S. C. §844(a)
(possession of more than five grams of cocaine base, possession of
flunitrazepam, and repeat possession offenses). If the Court
recognizes, in light of §924(c)(2), some mere possession offenses
under the umbrella of “illicit trafficking,” it cannot reject
Lopez’s conviction out of hand. Yet the Court downplays these “few
exceptions” in two footnotes, concluding that “this coerced
inclusion of a few possession offenses” gives no reason to
“override [the] ordinary meaning” of “illicit trafficking.” Ante , at 6, nn. 4 and 6. The inconsistency deserves more
than the Court’s passing reference. By encompassing repeat
possession offenses, the term “illicit trafficking” includes far
more than “a few” offenses outside of its ordinary meaning. It must
include every type of possession offense under the CSA, so
long as the offender has had a previous possession offense. If
defining “illicit trafficking” to include the entire range of
unlawful possession does not provide a “clear statutory command to
override ordinary meaning,” I do not know what would.[ Footnote 2 ] The Court, however, gives only
fleeting consideration to the text of §924(c)(2) itself. After
referencing the phrase “felony punishable under” the CSA, the Court
asks “where else would one naturally look” other than the CSA to
determine whether a felony qualifies as a drug trafficking crime. Ante , at 7. In response to the Court’s rhetorical
question, I suggest that one might naturally look to the conviction
itself to determine whether it is a felony. When presented with an
actual conviction, one would not expect to look to a hypothetical
prosecution to determine whether an offender has committed a
felony. Continuing to avoid the text of
§924(c)(2), the Court instead focuses on what the statute does not
say. It concludes that Congress could have expressly referenced
state law as in §924(g)(3) and (k)(2). Ante , at 7. The
response, of course, is that Congress could just as well have
defined a “drug trafficking crime” as “any felony punishable as
a felony under the CSA.” Rejoining, the Court resorts to an
“instinctiv[e] understand[ing]” that the statutory definition
actually means “felony as defined by the Act.” Ibid .
Instinct notwithstanding, we must interpret what Congress actually
wrote, not what it could have written. Furthermore, the Court’s
“instinct” to interpret §924(c)(2) to mean “felony as defined by”
the CSA creates an unnecessary ambiguity in the meaning of
“felony.” The CSA defines “felony” as “any Federal or State offense
classified by applicable Federal or State law as a felony.” 21 U.
S. C. §802(13).[ Footnote
3 ] Under the Court’s interpretation, that definition seemingly
should apply. The Court concludes otherwise but never resolves the
ambiguity it creates: It instead explains that “felony” is defined
by the CSA as something other than the CSA’s definition of
“felony.” Ante , at 8, n. 7. That explanation is, at
best, unsatisfying. After gliding past the
statutory text, the Court expresses concern over the fact that the
Government’s interpretation allows federal immigration law to turn
on varying state criminal classifications. Congress apparently did
not share this concern because some definitions of “aggravated
felony” explicitly turn on the State’s authorized term of
imprisonment, not a uniform federal classification. See 8 U.
S. C. §1101(a)(43)(F), (G), (J), (P)–(T). Even the Court finds
this variance “not … all that remarkable.” Ante , at 10.
The Court’s real concern therefore has little to do with variations
in state law. Rather, it worries that “a state criminal
classification [may be] at odds with a federal provision.” Ibid. But, obviously, if a state offense does not qualify
under the definitions in §1101(a)(43), then the offense cannot be
an “aggravated felony.” As shown in Part I, though, nothing about
Lopez’s offense conflicts with the plain language of §924(c)(2) as
incorporated into §1101(a)(43)(B). He was convicted of a “felony,”
and his offense was “punishable under the” CSA. The Court also notes apparent
anomalies in the Government’s approach. It asserts that, under the
Government’s interpretation, a state felony conviction for simple
possession of less than 30 grams of marijuana could be an
“aggravated felony” even though the INA expressly excludes such an
offense as grounds for deportation under 8 U. S. C.
§1227(a)(2)(B)(i). Ante , at 10–11. The Court’s concern has
little basis in reality. Only one State authorizes more than one
year of imprisonment for possession of over 20 grams. See Fla.
Stat. §§893.13(6)(a)–(b), 775.082(3)(a)(3) (2006). A few others
classify possession of one ounce (or 28.3 grams) as a felony. See, e.g., Nev. Rev. Stat. §§453.336(1)–(2) (2004), (4),
193.130 (2003). The mere possibility that a case could fall into
this small gap and lead to removal provides no ground for the Court
to depart from the plain meaning of §924(c)(2). In fact, it is the Court’s
interpretation that will have a significant effect on removal
proceedings involving state possession offenses. Federal law treats
possession of large quantities of controlled substances as
felonious possession with intent to distribute. States frequently
treat the same conduct as simple possession offenses, which would
escape classification as aggravated felonies under the Court’s
interpretation. Thus, the Court’s interpretation will result in a
large disparity between the treatment of federal and state
convictions for possession of large amounts of drugs. And it is
difficult to see why Congress would “authorize a State to overrule
its judgment” about possession of large quantities of drugs any
more than it would about other possession offenses. Ante ,
at 11. Finally, the Court admits that
its reading will subject an alien defendant convicted of a state
misdemeanor to deportation if his conduct was punishable as a
felony under the CSA. Accordingly, even if never convicted of an
actual felony, an alien defendant becomes eligible for deportation
based on a hypothetical federal prosecution. It is at least
anomalous, if not inconsistent, that an actual misdemeanor may be
considered an “aggravated felony.” III Because a plain
reading of the statute would avoid the ambiguities and anomalies
created by today’s majority opinion, I respectfully
dissent. Footnote
1 The majority mistakenly
contends that my interpretation also renders this language
superfluous. Ante , at 10 n. 9. As I have stated, the
plain meaning of “drug trafficking crime” includes two categories
of felonies—state and federal. For the limiting language in
§924(c)(1)(A) to have meaning, it must exclude one of those
categories. As a state felony, Lopez’s possession offense does not
fall within the category of federal drug trafficking crimes.
Consequently, it is not eligible for use under
§924(c)(1)(A). Footnote
2 In its discussion of whether
possession may constitute “trafficking,” the Court takes its own
trip “through the looking glass.” See ante, at 6.
“Commerce,” according to the Court, “certainly … is no element of
simple possession … .” Ante , at 5. Not long ago, the
Court found the opposite to be true when interpreting the scope of
Congress’ power under the Commerce Clause. See Gonzales v. Raich , 545 U.
S. 1 , 22 (2005) (plurality opinion) (concluding that Congress
may regulate the mere possession of marijuana as affecting
“commerce”). In Raich , the Court fell into the very trap
it purports to identify today by “turn[ing] simple possession into
[commerce], just what the English language tells us not to expect.” Ante , at 6; see also Raich, supra, at 57–58
(Thomas, J., dissenting). The Court’s broadening of the Commerce
Clause stands in tension with its present narrow interpretation of
“trafficking,” which 8 U. S. C. §1101(a)(43)(B) explicitly
alters to include at least some possession offenses. Footnote
3 Several Courts of Appeals
looked to this definition of “felony” when construing the meaning
of “drug trafficking crime.” See, e.g., United
States v. Wilson , 316 F. 3d 506, 512 (CA4 2003).
Although the Government would clearly prevail under 21 U.
S. C. §802(13), it has conceded that this definition does not
apply. This concession makes good sense: The definition of “drug
trafficking crime” resides in Title 18, and it is therefore most
natural to construe “felony” as used in that title. See, n. 1, supra . As discussed above, that definition as well
requires that a crime be considered a felony if the State defines
it as a felony.

Summary: In Lopez v. Gonzales, the Supreme Court held that a state felony drug offense punishable as a misdemeanor under the Controlled Substances Act is not considered a "felony punishable under the Controlled Substances Act" for immigration purposes. This means that a non-citizen convicted of a state drug felony that would be a misdemeanor under federal law is not automatically subject to deportation as an "aggravated felon."