Brown v. United States

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 101–142
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OF
T H E S U P R E M E C O U R T
May 23, 2024
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2023
101
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 frearm and who have a criminal history thought to dem-
onstrate a propensity for violence. As relevant here, a defendant with
“three previous convictions” for “a serious drug offense” qualifes 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 defned 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 defnition of the drug in question
“matche[s]” the defnition 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 traffcked 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 frearm 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].”
Brown's presentence report identifed several Pennsylvania drug con-
victions, including four convictions for possessing marijuana with intent
to distribute. At the time of Brown's marijuana convictions, the federal
and Pennsylvania law defnitions of marijuana matched. But while
Brown's federal § 922(g)(1) charge was pending, Congress modifed the
federal defnition of marijuana. Because the federal and state defni-
tions did not fully match when Brown was sentenced, Brown argued
*Together with No. 22–6640, Jackson v. United States, on certiorari to
the United States Court of Appeals for the Eleventh Circuit.

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102 BROWN
v. UNITED STATES
Syllabus
that his marijuana convictions no longer qualifed as “serious drug of-
fense[
s]” for purposes of the ACCA sentencing enhancement.
Jackson's presentence report identifed several prior Florida convic-
tions, including convictions in 1998 and 2004 for possession and distribu-
tion of cocaine. In 2015, the Federal Government amended the federal
defnition of cocaine, so the federal and Florida defnitions no longer
matched when Jackson committed his § 922(g)(1) offense. Like Brown,
Jackson argued that these prior convictions no longer qualifed as “seri-
ous drug offense[s].” In both cases, the District Courts disagreed and
sentenced petitioners to enhanced sentences, and the respective appel-
late courts ultimately affrmed.
Held: A state drug conviction counts as an ACCA predicate if it involved
a drug on the federal schedules at the time of that offense. Pp. 108–123.
(a) The parties propose three different answers to the question
whether the federal and state defnitions 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 qualifes if the federal
and state defnitions of the relevant drug matched when the defendant
committed the state crime. Jackson argues instead that the defnitions
must match when the defendant violates the federal felon-in-possession
statute. Finally, Brown contends that the defnitions must match when
the defendant is sentenced for the federal felon-in-possession offense.
Pp. 108–111.
(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 ” approach,
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-
fnes a “serious drug offense” to include, among other things, “offense[s]
under the Controlled Substances Act.” A later change in a federal
drug schedule does not change the fact that an offense “under the
[CSA]” is a “serious drug offense.” The Government's interpretation
would treat state offenses “involving . . . a controlled substance (as de-
fned in [the CSA])” like those federal offenses “under the [CSA].” Peti-
tioners' 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. 111–113.

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103
Syllabus
(c) The Government's interpretation also best fulflls ACCA's statu-
tory
objectives. In Congress's view, defendants who have repeatedly
committed ACCA predicate offenses are “especially likely to infict
grave harm when in possession of a frearm,” 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 redefned, McNeill,
563 U. S., at 823, it makes sense to ask whether a prior offense met
ACCA's defnition of seriousness at the time it was committed. 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 dangerousness 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 refected a legislative 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 con-
viction.” 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 defendant's “culpability
and dangerousness.” Ibid. Pp. 113–115.
(d) Petiti oners var i ous other arg uments are unpersuasive.
Pp. 115–123.
(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 for 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 specifc 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 specifc statutory
provisions may be considered general, it is hard to see the phrase “as
defned in section 102 of the Controlled Substances Act” as anything but
a specifc reference. Jackson's alternative argument—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”—simply begs the question what § 924(e)(2)(a)(ii) means.
Pp. 115–118.
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Syllabus
(2) Brown suggests that present-tense language in ACCA's defni-
ti
on of a “serious drug crime”—language such as “involving ” and “as
defned 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 . . . d[id] 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. 119–120.
(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 interpreta-
tion is absurd because it would exclude all state drug convictions before
the CSA's enactment in 1970. But there are reasons Congress might
have chosen not to court either federal or state drug convictions that
occurred before 1970. Petitioners also argue that the Government's in-
terpretation would unduly burden courts and defendants 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 diffculty of this task. Finally, petitioners
contend that the rule of lenity counsels in favor of their interpretations.
But lenity applies only if a statute remains grievously ambiguous, and
here context, precedent, and statutory design adequately show “ `what
Congress intended.' ” United States v. Castleman, 572 U. S. 157, 173.
Pp. 121–123.
No. 22–6389, 47 F. 4th 147, and No. 22–6640, 55 F. 4th 846, affrmed.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Sotomayor, Kavanaugh, and Barrett, JJ., joined. Jack-
son, J., fled a dissenting opinion, post, p. 123, in which Kagan, J., joined,
and in which Gorsuch, J., joined as to Parts I, II, and III.
Jeffrey T. Green argued the cause for petitioner in No. 22–
6389. With him on the briefs were Tobias S. Loss-Eaton,
Peter A. Bruland, Heidi R. Freese, Ronald A. Krauss, Mer-
edith R. Aska McBride, and Naomi A. Igra. Andrew L.

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105
Opinion of the Court
Adler argued the cause for petitioner in No. 22–6640. With
h
im on the briefs were Jeffrey L. Fisher, Pamela S. Karlan,
Easha Anand, and Davina T. Chen.
Austin L. Raynor argued the cause for the United States
in both cases. With him on the brief were Solicitor General
Prelogar, Acting Assistant Attorney General Argentieri,
De pu ty So l i c i t o r Gene ra l Fe i g in, and Da v i d M.
Lieberman.*
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 occurred
before recent technical amendments to the federal drug
schedules. ACCA imposes a 15-year mandatory minimum
sentence on defendants who are convicted for the illegal pos-
session of a frearm 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 defned in section 102 of the Controlled Substances Act”
(CSA). §§ 924(e)(1), (2)(A)(ii). The CSA, in turn, includes
fve 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.
*Briefs of amici curiae urging reversal in No. 22–6640 were fled for
the Clause 40 Foundation by Douglas E. Litvack; and for FAMM by Chris-
topher G. Michel, Mary Price, and Peter Goldberger.
Christopher G. Michel, Mary Price, and Peter Goldberger fled a brief
for FAMM as amicus curiae urging affrmance in No. 22–6389.
Briefs of amici curiae in both cases were fled for the National Associa-
tion of Criminal Defense Lawyers by Daniel E. Jones and David Oscar
Markus; and for the National Association of Federal Defenders by Ginger
D. Anders, Keith M. Donoghue, Judith H. Mizner, and Daniel Habib.
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Opinion of the Court
The two cases now before us present the question whether
a
state crime constitutes a “serious drug offense” if it in-
volved a drug that was on the federal schedules when the
defendant possessed or traffcked in it but was later re-
moved. We hold that such an offense qualifes.
I
A
In 2016, Justin Rashaad Brown sold cocaine to police off-
cers in a series of controlled buys. The offcers 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 frearm 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 offce recommended that
Brown receive ACCA's mandatory minimum sentence be-
cause he had four prior Pennsylvania convictions for possess-
ing marijuana with intent to distribute between 2009 and
2014, as well as one Pennsylvania conviction for distributing
cocaine in 2008. Brown disputed this interpretation of
ACCA and argued that his marijuana convictions did not “in-
volv[e] . . . a controlled substance . . . as defned in [the
CSA].” § 924(e)(2)(A)(ii).
A state drug offense counts as an ACCA predicate only if
the State's defnition of the drug in question “matche[s]” the
defnition 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-
fned marijuana to include “all parts of the plant Cannabis
sativa L.,” so the defnitions were a categorical match. 21
U. S. C. § 802(16) (2006 ed.); Pa. Stat. Ann., Tit. 35, § 780–
102(b) (Purdon Cum. Supp. 2012) (defning marijuana to
include “all forms, species and/or varieties of the genus Can-
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107
Opinion of the Court
nabis sativa L.”). But while Brown's federal charge was
pendi
ng, Congress enacted the Agriculture Improvement
Act of 2018, which exempted some hemp, a variety of Canna-
bis sativa L., from the federal defnition of marijuana. Pub.
L. 115–334, § 12619(a)(2), 132 Stat. 5018.
1
Because the fed-
eral and state defnitions did not fully match when Brown
was sentenced, he argued that his marijuana convictions no
longer qualifed as “serious drug offense[s].”
The District Court disagreed and sentenced him under
ACCA, and the Third Circuit affrmed. 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 defnitions 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 feeing and discarding a loaded
.45-caliber pistol. Offcers eventually identifed Jackson as
the gun's owner, and in 2019, he was charged with possession
of a frearm by a convicted felon. He pleaded guilty and was
sentenced in 2021.
Jackson's presentence report identifed several prior Flor-
ida convictions as ACCA predicates, including convictions in
1998 and 2004 for possession and distribution of cocaine.
But Jackson, like Brown, claimed that these convictions were
not for “serious drug offense[s].” When those crimes were
committed, the Federal Government and Florida defned co-
caine 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,
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).
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the Federal Government legalized a radioactive cocaine deriv-
ative
called [
123
I]iofupane that is the active pharmaceutical in-
gredient in a drug used to diagnose patients who are suspected
to have Parkinson's disease. See Schedules of Controlled
Substances: Removal of [
123
I]Iofupane From Schedule II of
the Controlled Substances Act, 80 Fed. Reg. 54717. So when
Jackson committed his federal offense, the federal and Florida
defnitions were no longer a categorical match.
The District Court found that Jackson's prior convictions
qualifed as serious drug offenses and sentenced him to
ACCA's mandatory minimum. On appeal, the Eleventh Cir-
cuit initially disagreed and vacated Jackson's sentence. 36
F. 4th 1294, 1306 (2022). But a few months later, the panel
su a spo n te vacated its opi ni on, ordered supplement al
briefng, and in a new opinion affrmed 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 defnitions 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 affrm.
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 controlled
substance . . . as defned in section 102 of the [CSA],” and spe-
cifcally, whether the federal and state defnitions of a drug
must match when the state crime is committed or at some later
point in time. The parties propose three different answers.
The Government argues that a prior state drug conviction
qualifes if the federal and state defnitions of the relevant
drug matched when the defendant committed the state
crime. Therefore, even if the federal and state defnitions
are different when a defendant violates the federal felon-in-
possession law or is sentenced under that law, earlier state
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as: 602 U. S. 101 (2024)
109
Opinion of the Court
convictions that occurred during the period when the federal
and
state defnitions were the same nevertheless qualify as
“serious drug offense[s].”
Jackson, by contrast, argues that the federal and state
defnitions must match when the defendant violates the fed-
eral felon-in-possession statute. In his view, it does not
matter whether the federal and state laws both criminalized
the relevant drug when a defendant possessed or traffcked
in it. If the Federal Government later narrows its defnition
of that drug, no state conviction under the broader defnition
counts against a defendant who later commits the federal
frearm offense.
This interpretation would mean that Jackson's two cocaine
convictions are no longer “serious drug offense[s]” because,
years later, the Federal Government narrowed the defnition
of cocaine in the federal schedules to legalize a Parkinson's
drug derived from cocaine. In fact, under Jackson's and the
dissent's interpretation, no Florida cocaine convictions ob-
tained 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 involving the posses-
sion or distribution of huge shipments of cocaine base.
2
And
as other courts have noted, cocaine convictions under the
laws of many other States would likewise be affected. See,
e.g., United States v. Perez, 46 F. 4th 691, 698–701 (CA8 2022)
(excluding an Iowa convicti on under Jackson's theory);
United States v. Myrick, 2023 WL 2351693, *2 (ED Pa.,
Mar. 2, 2023) (excluding a Pennsylvania conviction).
These cocaine convictions would be excluded even though
it is highly unlikely that any were based on the possession
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-Trib-
une (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-
of-cocaine-taken-off/29227445007; see also Judgment in State v. Gomez, No.
2014CF001404–004NC (12th Jud. C. C. Sarasota Cty., Fla., Oct. 8, 2015,
recorded Oct. 19, 2015).
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110 BROWN
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Opinion of the Court
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
appears can be stored for no more than 24 hours. Dept.
of Justice, Drug Enforcement Admin., Offce of Diversion
Control, Schedule of Controlled Substances: Removal of
[
123
I]Iofupane From Schedule II of the Controlled Sub-
stances 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 fuid, a volume likely to cause death
if administered intravenously.” Id., at 2. Unsurprisingly,
the Federal Government has identifed “no case reports”
involving individuals who misused that drug, or any other
[
123
I]iofupane-containing product. Id., at 6.
Brown offers a third option. He contends that the federal
and state defnitions must match when the defendant is sen-
tenced for the federal frearm offense. Under his interpre-
tation, it does not matter whether the two defnitions
matched when a defendant previously violated state law or
even when he or she committed the federal frearm offense.
As he sees it, if the federal authorities narrow the defnition
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 cases
involving long criminal investigations or prosecutions. In
this case, for example, Congress adopted the partial exemp-
tion 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 man-
datory 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-

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111
Opinion of the Court
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
w ith si mi lar records who have been found g ui lty of
similar conduct”). Under Brown's interpretation, if one co-
defendant was sentenced on December 19, 2018, one day be-
fore 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 frst but not the second.
B
We must decide which of these three proposed interpreta-
tions is correct. Standing alone, the operative phrase “in-
volving . . . a controlled substance (as defned in [the CSA])”
does not defnitively answer that question, but precedent and
statutory context show that the Government's interpretation
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, 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 penalty
needed to qualify as a “serious drug offense,” i. e., imprison-
ment for 10 years or more. To answer that question, we
looked back to “the law under which the defendant was con-
victed” and concluded that a subsequent statutory amend-
ment reducing the maximum penalty below the 10-year
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Opinion of the Court
threshold did not matter. Id., at 820. This “backward-
look
ing ” 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. Section
924(e)(2)(A)(i) defnes a “serious drug offense” to include cer-
tain federal drug crimes, namely, “offense[s] under the Con-
trolled Substances Act (21 U. S. C. § 801 et seq.)” or two other
federal laws. (Emphasis added.) Any crime contained in
the CSA is an offense “under the [CSA].” The standard
“Judgment in a Criminal Case” used in federal courts indi-
cates whether a defendant was convicted and sentenced for
such an offense,
3
and a later change in a federal drug sched-
ule cannot change that fact. The Government's interpreta-
tion would treat state offenses “involving . . . a controlled
substance (as defned in [the CSA])” like those federal of-
fenses “under the [CSA].” § 924(e)(2).
Petitioners' interpretations, by contrast, would treat those
federal and state offenses differently. Consider a defendant
who was caught distributing cocaine on back-to-back days,
was charged with a federal crime for the frst day's offense
and an identical state crime for the second, and was con-
victed of both before the 2015 amendment that deleted the
Parkinson's drug from the defnition of cocaine. Under peti-
tioners' interpretations, the federal offense would remain an
ACCA predicate, but the state offense would not, even
though the crimes and the statutes of conviction were other-
wise identical.
That is a very strange reading of §§ 924(e)(2)(A)(i) and (ii).
Both clauses refer to prior offenses relating to the CSA, and
in § 924(e)(2)(A)(i) Congress clearly indicated that past con-
duct that violated the CSA is probative of a defendant's “cul-
pability and dangerousness,” McNeill, 563 U. S., at 823, even
3
See https://www.uscourts.gov/sites/default/fles/ao245b.pdf.
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Opinion of the Court
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 convicted
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. Gard-
ner, 513 U. S. 115, 118 (1994); Ratzlaf v. United States, 510
U. S. 135, 143 (1994).
4
C
The Government's interpretation also best fulflls ACCA's
statutory objectives. Congress's “general approach” in
ACCA was to single out “offenses of a certain level of
seriousness that involve violence or an inherent risk thereof,
and that are likely to be committed by career offenders.”
Taylor v. United States, 495 U. S. 575, 590 (1990). Because
defendants who have repeatedly committed ACCA predicate
offenses are “especially likely to infict grave harm when in
possession of a frearm,” ACCA imposes a higher punishment
when they do so. Wooden v. United States, 595 U. S. 360,
375 (2022); United States v. Rodriquez, 553 U. S. 377, 385
(2008) (“[A] second or subsequent offense is often regarded
as more serious because it portends greater future danger
and therefore warrants an increased sentence for purposes
of deterrence and incapacitation”). A defendant's “history
of criminal activity” does not “cease to exist” merely because
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 frearm intended for use
in a state offense “relating to any controlled substance (as defned in [the
CSA]),” and § 342, which prohibits the operator of a common carrier from
operating under the infuence of “any controlled substance (as defned in
[the CSA]).” But those statutes focus entirely on present-day conduct,
while ACCA refers to “previous convictions. ” § 924(e)(1). Because
ACCA is concerned with recidivism, it is not inconsistent to read it
differently.
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the crime was later redefned. McNeill, 563 U. S., at 823.
It
therefore makes sense to ask, as the Government does,
whether a prior offense met ACCA's defnition of serious-
ness—and thus suggested future 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 involving
substances that are still on the federal schedules, marijuana
and cocaine, not hemp or [
123
I]iofupane.
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
even if the drug is no longer considered dangerous. That is
because the conviction reveals that the defendant previously
engaged in illegal conduct that created a dangerous risk of
violence, either with law enforcement or with others operat-
ing in the same illegal feld. If left at large, such defendants
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 eliminated.
McNeill, 563 U. S., at 823. For example, consider a person
who distributed alcohol during Prohibition. The later legal-
ization of alcohol did not by any means ensure that these
bootleggers would take up legitimate jobs. Instead, after
5
Latching onto this sentence, the dissent spends three pages accusing
us of departing from the categorical approach. Post, at 133–135 (opinion
of Jackson, J.). The dissent attacks a strawman. We agree that our
precedents require us to ask whether a defendant's prior conviction
matches ACCA's requirements. Post, at 133–134. The question here is
what ACCA requires.
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the end of Prohibition, many of them simply shifted to other
i
llegal enterprises. See S. Morison, The Oxford 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 convictions for se-
rious 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 re-
mains true despite the technical changes to the federal 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 refected a legislative
judgment that his prior offense was less serious than pre-
viously thought. Brief for Petitioner, O. T. 2010, No. 10–
5258, 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 earlier conviction—not the legislature's subse-
quent judgment—that ACCA was concerned with, because
that fact “demonstrate[d]” the defendant's “culpability and
dangerousness.” Ibid.
III
Petitioners and the dissent make various other arguments,
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-

116 BROWN
v. UNITED STATES
Opinion of the Court
corporates [the] schedules . . . `as [they] exis[t] whenever a
questi
on under [ACCA] arises.' ” Id., at 32 (quoting Jam v.
International Finance Corp., 586 U. S. 199, 209 (2019)).
“And,” he says, “the frst time a `question arises' under
ACCA is when a person commits [a] federal frearm offense.”
Brief for Petitioner Jackson 32.
The reference canon can be a helpful tool, but Jackson mis-
uses 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 an-
other statute by specifc 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 refer-
ring statute was enacted, without any subsequent amend-
ments.” 586 U. S., at 209–210 (emphasis added). That part
of the reference canon undermines Jackson's position.
Jackson attempts to rescue his argument by asserting that
ACCA's mention of the CSA is actually a “general refer-
ence.” Reply Brief for Petitioner Jackson 15. To support
this argument, he cites cases that treat statutes as adopting
“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 specifc 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 defned in
section 102 of the Controlled Substances Act” as anything
but a specifc 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 . . .
defned in [the CSA]” differently from a federal offense
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Opinion of the Court
“under the [CSA],” even though both phrases make reference
to
the same Act. Supra, at 112–113. That approach would
give defendants with prior state offenses the beneft of sub-
sequent amendments to the CSA but would ignore those
same amendments for prior federal offenses. In that con-
text, Jackson's reliance on the reference canon is clearly
unpersuasive.
Alternatively, Jackson says that his reading is required by
the “settled legal principle” that “the law that sets the pen-
alty for a federal crime is the law in place when the crime
was committed.” Brief for Petitioner Jackson 17 (citing
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 amend-
ments 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 frearm offense after
this change . . . would be subject to ACCA based on a prior
state conviction” for drug possession. Id., at 18. There-
fore, he maintains, the same should be true for amendments
to the schedules.
This argument begs the question that these cases present,
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 schedules 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 reasons we have ex-
plained, we are convinced that the canon does not work in
the way he suggests.
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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 conviction
may constitute an ACCA predicate if the drugs on the fed-
eral and state schedules matched when the state drug of-
fense was committed. Thus, contrary to Jackson's sugges-
tion, treating his prior convictions as ACCA predicates is
entirely consistent with the “settled legal principle” that cur-
rent 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 126 (opinion of
Jackson, J.). Thus, ACCA's reference to the CSA must
incorporate “the current federal drug schedules—i.e., those
in effect at the time of the federal offense.” Post, at 125–
126.
The problem for the dissent is that none of the cases it
cites supports this proposition. See Yellen v. Confederated
Tr ibes o f Chehal is Rese r v a t io n, 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 116.
Indeed, many of the dissent's cases stand for the unobjection-
able proposition that courts must carefully consider the text
and context of each statute before adopting a one-size-fts-
all approach to cross-references. See Herrmann v. Cencom
Cable Assoc., Inc., 978 F. 2d 978, 983 (CA7 1992) (attempting
to “do the least damage” to unravel “contradictory enact-
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119
Opinion of the Court
ments”); 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 inconsistent
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 con-
text, precedent, and statutory purpose? Supra, at 111. 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 defnitions to match when the
defendant is sentenced for a federal frearm offense. Brown
frst 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. Specifcally,
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 defned 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 defnition
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
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 128, and n. 2.
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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 Offce 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 context, we
cannot place too much weight on the use of the present 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
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.
7
Brown also likens his interpretation to the “ordinary practice” of
applying 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
sentenced.” 18 U. S. C. § 3553(a)(4)(A)(ii). ACCA contains no similar
instruction.
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121
Opinion of the Court
C
W
e conclude by addressing some additional arguments
advanced by both petitioners. First, they assert that
our interpretation should be rejected because it is under-
inclusive—specifcally, 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 remain
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
occurred before 1970. Before that time, “Congress ha[d]
enacted more than 50 pieces of legislation relating to . . .
dangerous 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
penalties 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
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the defendants violated. But the diffculty of this task is
o
verstated. Most dr ug conv ic ti ons concer n just a few
drugs, and the federal and state defnitions of those drugs
do not often change. In the cases now before us, the
courts below had no apparent diffculty fnding the needed
information.
Finally, both petitioners contend that the rule of lenity
counsels us to adopt their interpretations. It does not.
Lenity applies only if a statute remains grievously ambigu-
ous 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 interpretation
would be preferable for all defendants. Both interpreta-
tions could hurt defendants who committed or were sen-
tenced for the felon-in-possession offense before the addition
of a drug to the federal schedules. As petitioners' own
briefs highlight, States sometimes criminalize drugs be-
fore 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
8
Florida Bans `Bath Salt' Drugs After Violent Outbursts, Sun Sentinel
(Jan. 27, 2011), https://www.sun-sentinel.com/2011/01/27/forida-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 Reg u lati on (Oc t. 21, 2011), https://www.dea.gov/press-
releases/2011/10/21/chemicals-used-bath-salts-now-under-federal-control-
and-regulation.
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2013 Utah Laws ch. 88; Schedules of Controlled Substances:
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 offense. Accordingly,
we affrm the judgments of the Courts of Appeals.
It is so ordered.
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 defnitively answer” the
question presented in these cases. Ante, at 111. Instead,
says the majority, we must look beyond the text to prece-
dent, statutory context, and purpose—which apparently con-
verge to persuade the majority that § 924(e)(2)(A)(ii) re-
quires sentencing courts to apply the drug schedules in effect
at the time of a defendant's prior state drug conviction when
determining the applicability of the 15-year mandatory mini-
mum in the Armed Career Criminal Act (ACCA). But the
relevant text does defnitively answer the question presented
here. And it establishes that courts should apply the drug
schedules in effect at the time of the federal frearms offense
that triggers ACCA's potential application. Nothing else—
not precedent, context, or purpose—requires a different re-
sult. Therefore, I respectfully dissent.
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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 serious
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 defnes 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 controlled
substance (as defned in section 102 of the Controlled Sub-
stances 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 defned 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
fve 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). Dur-
ing this annual review, the Attorney General may add or
remove drugs from the schedules based on various consider-
ations, such as a drug 's “actual or relative potential for
abuse” or the “state of current scientifc 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).
By directing that the term “controlled substance” in
ACCA be determined on the basis of the Controlled Sub-
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Jackson, J., dissenting
stances Act's defnition—which itself references the federal
dr
ug 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 of-
fense” defnition thus incorporates those oft-changing drug
schedules 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 deter-
mine whether the drug “ `involv[ed]' ” in a prior state offense
is a controlled substance under federal law. See ante,
at 105–106. Yet, somehow, the majority concludes that the
pertinent 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 otherwise.
First of all, ACCA expressly defnes “serious drug of-
fense,” § 924(e)(2)(A), and “[w]hen a statute includes an ex-
plicit defnition, we must follow that defnition,” Burgess v.
United States, 553 U. S. 124, 130 (2008) (internal quotation
marks omitted). Congress could have defned “serious drug
offense” based solely on state law. It did not. Instead,
Congress made clear that only state drug crimes that involve
substances that qualify as “controlled substance[s]” under
the Controlled Substances Act are suffciently serious to
warrant ACCA's penalty.
Second, the defnition of “serious drug offense” that ap-
pears in ACCA cross-references the highly mutable federal
drug schedules—a drafting device that does particular work
in the legislative context. Consistent with the operation of
cross-references elsewhere, the cross-reference in ACCA's
“serious drug offense” defnition necessarily directs sentenc-
ing courts to consult the current federal drug schedules—
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i. e., those in effect at the time of the federal offense for
wh
ich 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 fnd 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 refer-
enced provision's existence. Nor does it matter that the ref-
erenced statute is a separate pronouncement that has its own
legislative history and course of development.
Courts proceed in this straightforward plug-and-play man-
ner with respect to statutory cross-references because “the
presumed temporal application of a statute” is when “the
relevant activity that the [statute] regulates” occurs. Land-
graf v. USI Film Products, 511 U. S. 244, 291 (1994) (Sca-
lia, J., concurring in judgments). That presumption applies
with full force to any provisions cross-referenced in a stat-
ute, 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. John-
son, 264 U. S. 375, 392 (1924). And what is fairly covered 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-referenced
defnition 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. Humanitarian
Law Project, 561 U. S. 1, 8–9 (2010) (same). When a statute
contains a cross-reference to another provision, we have al-
ways simply applied the version of the other provision in
effect at the time the cross-referenced provision was needed,
even if Congress amended that provision at some point in
the past.
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Jackson, J., dissenting
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 statutory
cross-references. In fact, Congress often uses the cross-
reference device in a statute “precisely because the [refer-
enced provision] may be amended.” Herrmann 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 propagate to other, re-
lated, sections without rewriting all of those related sec-
tions.” Ibid.
That basic understanding of how cross-references work
easily resolves these cases. ACCA mandates that, for the
purpose of its “serious drug offense” defnition, 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 incor-
poration of the drug schedules by cross-reference in this
manner means that a sentencing court must plug in the drug
schedules as it fnds them based on when “the relevant activ-
ity 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 schedules in effect
when the defendant “commits the underlying conduct that
makes the offender liable.” Dorsey v. United States, 567
U. S. 260, 272 (2012).
1
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
119. While Congress determined that the Sentencing Guidelines should
follow that approach, see 18 U. S. C. § 3553(a)(4)(A)(ii), we have recognized
that the so-called federal saving statute, 1 U. S. C. § 109, generally requires
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To be sure, one consequence of this approach is that, as the
dr
ug schedules change, so does the meaning of “controlled
substance” under ACCA. See Herrmann, 978 F. 2d, at 983.
But, again, Congress seems to have intended that result, in-
sofar as the statute it wrote pegs ACCA's “serious drug of-
fense” defnition to lists of substances that the Attorney Gen-
eral is required to revisit on an annual basis. Indeed,
Congress presumably chose to cross-reference those drug
lists (rather than copying them directly into ACCA) pre-
cisely because of their dynamic nature.
The fact that ACCA's “serious drug offense” defnition
uses the present tense, as the majority concedes, see ante,
at 120, further bolsters the conclusion that Congress was
consciously incorporating the annual updates that the federal
drug schedules embody. As we have previously recognized,
“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, directing sen-
tencing courts to look to the meaning of “controlled sub-
stance” in effect when a defendant commits the federal crime
requiring ACCA's application, not at some previous point in
time.
2
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 109.
2
The majority attributes ACCA's use of the present tense to a mere
“stylistic” choice by Congress, relying primarily on a contemporaneous
legislative drafting manual as support for that conclusion. Ante, at 120.
But the wholly speculative suggestion that ACCA's drafters actually relied
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-
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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 in-
sertion of the referenced law, the appearance of a cross-
reference in a statute “raises a temporal question” that
requires a court to determine “which version of [the cross-
referenced provision] Congress intend[ed] to reference. ”
Id., at 56. As the Government sees it, every statutory
cross-reference can thus have “different temporal branches
depending on context.” Id., at 58; see also ante, at 119 (ap-
pearing to adopt this temporally fexible approach to cross-
references).
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 approach
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 provi-
sion that contains a cross-reference—and neither the major-
ity nor the Government cites any. In fact, our actual prac-
tices establish the contrary. Whenever we have addressed
a statutory cross-reference, we have always taken the same
tried-and-true approach that we employ with respect to stat-
ently used all aspects of a statute's text to ascertain its meaning, including
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 Smithfeld, Ltd. v. Chesa-
peake 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 relevant to the
provision's interpretation).
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utory defnitions: We plug in the referenced provision as it
exists
at the moment the statute's provisions become applica-
ble. 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 without
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
applies—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 specifc. First,
“when 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 specifc title or
section number,” that cross-reference “in effect cuts and pastes the refer-
enced statute as it existed when the referring statute was enacted, with-
out 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, specifc
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,
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But even if the reference canon applies under these circum-
st
ances, it seems to cut against the Government's interpreta-
tion. The Government asserts that, because ACCA ref-
erences a specifc 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 115–116) 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” defnition cross-references § 102 of the Controlled Sub-
stances Act, see 18 U. S. C. § 924(e)(2)(A)(ii), and under that
provision, a “controlled substance” is “a drug or other sub-
stance, 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 specifc statutory
reference into a more general one, since it is impossible to
determine which substances fall under the statutory defni-
tion without knowing what the fve 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 defnition 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
statute arises.” Jam v. International Finance Corp., 586
U. S. 199, 209–210 (2019).
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).
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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 present tense,
thereby requiring sentencing courts to merely plug in the
drug schedules in effect at the time of the defendant's federal
frearms offense—i. e., the relevant timeframe for the pur-
pose 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 111. 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 Mc-
Neill v. United States, 563 U. S. 816 (2011), we considered
how to determine whether a state drug crime involved “a
maximum 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 “backward-
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 major ity contends that th is same “ ` backward-
looking ' ” approach should apply to the federal drug schedules.
Ante, at 111–112 (quoting McNeill, 563 U. S., at 820). But the
federal drug schedules are not “the law under which the de-
fendant was convicted.” Id., at 820. And of course Mc-
Neill was “backward-looking ”; any inquiry into a defendant's
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133
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statute of conviction is necessarily so. Here, both the Gov-
er
nment and petitioners take as a given “the version of state
law that the defendant was actually convicted of violating,”
as McNeill instructs. Id., at 821. The question presented
in these cases—on which the parties disagree—is how to
evaluate whether that prior state-law conviction qualifes 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 currently
applicable drug schedules, not ones from the past. See
Part I, supra.
The majority's opinion not only misconstrues McNeill, it
also fatly contradicts other precedents from this Court out-
lining how to determine whether a prior state conviction
qualifes 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 men-
tions, 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. Rather,
they ask “if the State's defnition of the drug in question
`matche[s]' the defnition under federal law.” Ante, at 106
(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 classifed or categorized
the prior offense. Nor does it matter what type of drug a
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134 BROWN
v. UNITED STATES
Jackson, J., dissenting
defendant actually manufactured, possessed, or sold. Such
fac
ts 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 applied,
the categorical approach mandates that a court's sole focus
must be on identifying the state crime's statutory elements
and deter mining whether they categor ica l ly match the
ACCA predicate.
By appearing to fxate 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 themselves
convicted of crimes involving substances that are still on
the federal schedules, marijuana and cocaine, not hemp or
[
123
I]iofupane.” Ante, at 114. 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 categori-
cal approach, which the majority fails to do here, serves im-
portant 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 defendants,”
Mathis, 579 U. S., at 512, who may not have sought to have
the state records accurately refect the details 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
of federal prosecution [was] realistic” when hemp was still

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135
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on the federal schedules). The distinction between a convic-
ti
on for a drug crime involving marijuana versus one involv-
ing hemp could be a signifcant one for purposes of a future
frearms prosecution that might trigger ACCA. But a de-
fendant in Brown's position would likely have “no incentive
to contest” that his conduct involved hemp, not another form
of marijuana, during the state prosecution because 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 un-
likely that such a defendant could even contemplate that his
state conviction would be relevant to a future ACCA convic-
tion, because most state crimes have “no signifcance 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 signifcantly
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 proscribes,
then that state law is not a categorical match to ACCA's
“serious drug offense” defnition, and a conviction under that
statute cannot be used as an ACCA predicate. Here, how-
ever, the majority suggests that the categorical mismatch
is irrelevant because, regardless, petitioners' state crimes
actually involved types of drugs that have remained on the
federal schedules during all potentially pertinent time peri-
ods. Ante, at 114. That reasoning not only fails to follow
our well-established methodology, it also perpetuates the
same unfairness that the categorical approach is designed
to mitigate.
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B
The
majority fares no better with statutory context. The
majority's opinion points to ACCA's other defnition of “seri-
ous drug offense,” 18 U. S. C. § 924(e)(2)(A)(i), which classifes
certain federal crimes as “serious drug offenses.” That pro-
vision defnes a “serious drug offense” as “an offense under
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 maxi-
mum term of imprisonment of ten years or more is pre-
scribed by law.” § 924(e)(2)(A)(i). As the majority notes,
this defnition turns solely on “whether a defendant was con-
victed and sentenced for such an offense, and a later change
in a federal drug schedule cannot change that fact.” Ante,
at 112 (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 federal 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 defnition . . . 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 classifcation metric
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
“when the same Congress passed both statutes to handle
much the same task.” Wisconsin Central Ltd. v. United
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137
Jackson, J., dissenting
States, 585 U. S. 274, 279 (2018) (quoting Henson v. San-
tande
r Consumer USA Inc., 582 U. S. 79, 86 (2017)). Con-
gress's choice to phrase the two “serious drug offense”
defnitions in ACCA differently “requires respect, not disre-
gard.” Wisconsin Central, 585 U. S., at 279.
At any rate, unlike the frst subsection of ACCA's “serious
drug offense” defnition, the second subsection involves clas-
sifying state crimes based on federal law—a circumstance
that, as I previously explained, requires the categorical ap-
proach. See supra, at 134–135. 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 person
knowingly or intentionally . . . to manufacture, distribute, 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 statute's word
`knowingly' . . . appl[ies] to all the subsequently listed ele-
ments of the crime” in this provision, meaning that the Gov-
ernment 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 contrast, does
not always include such a knowledge requirement. See
United States v. Smith, 983 F. 3d 1213, 1223 (CA11 2020).
We have nonetheless recognized that ACCA applies differ-
ently to state and federal drug crimes on this basis. See
Shular, 589 U. S., at 164.
Thus, the ultimate question is not whether ACCA requires
consistency between the classifcation of federal and state
crimes, as the majority suggests. Instead, given some inev-
itable inconsistency between state and federal law, our in-
quiry is “which form of consistency Congress intended.”
Id., at 165. Here, Congress's use of an express cross-
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reference to the Controlled Substance Act's mutating drug
schedu
les in the state-crime defnition—coupled with its
omission of such a cross-reference in the federal-crime def-
nition—indicates that inconsistency based on drug type was
not only anticipated but intended.
I n s h o r t , t h e p r e s e n c e o f a d i f f e r e n t l y w o r d e d
§ 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 fulflls
ACCA's statutory objectives.” Ante, at 113. But that as-
sertion fails to appreciate ACCA's actual goals. Congress
has plainly designated serious drug offenses in a defendant's
criminal history as triggers for ACCA's 15-year mandatory
minimum for a reason—because the seriousness of the de-
fendant's prior drug-related history is indicative of that de-
fendant's future dangerousness, given the present frearms
offense. The majority's analysis falters because it does not,
and frankly cannot, explain how future dangerousness 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 defendants—
“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” spe-
cifcally “to incapacitate the armed career criminal for the
rest of the normal time span of his career[,] which usually
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
offenses, as the majority suggests, see ante, at 114–115,
thereby imposing a drastically increased penalty for illegal
frearms possession based on a “once a criminal, always a
criminal” perspective. Rather, Congress designed ACCA to
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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 . . . crimi-
nal 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, importantly,
ACCA does not deem every state crime a predicate for the
15-year mandatory minimum. Instead, the statute specifes
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
today. In other words, if the point of ACCA is the incapaci-
tation of certain defendants—those whose histories of seri-
ous criminality indicate a propensity to commit future dan-
gerous crimes in light of their unlawful possession of a
weapon—how does a record that contains past crimes involv-
ing drugs that are no longer controlled substances help to
identify especially dangerous defendants? It does not.
4
“Of course, to say that Congress had reasons” to enact ACCA's sentenc-
ing scheme “is not to endorse those policy choices.” Consumer Financial
Protection Bureau v. Community Financial Services Assn. of America,
Ltd., 601 U. S. 416, 447 (2024) (Jackson, J., concurring).
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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 specif-
cally updated to account for current views of dangerousness.
See Part I–A, supra. And a drug 's removal from those
schedules refects a determination that the drug is no longer
deemed dangerous based on criteria such as “[i]ts actual or
relative potential for abuse” and “[t]he state of current scien-
tifc knowledge regarding the drug.” 21 U. S. C. § 811(c).
Accordingly, ACCA is best interpreted as referencing the
drug schedules that are effective as of the date of the com-
mission of the gun crime that triggers ACCA's applicability,
rather than those that would have signaled seriousness at
some prior time. “Indeed, it would be illogical to conclude
that federal sentencing law attaches `culpability and danger-
ousness' to an act that . . . Congress has concluded 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 Con-
gress set for ACCA's sentencing scheme in another respect
as well: It leaves out many defendants who do warrant inca-
pacitation for dangerousness—those who have prior convic-
tions for traffcking drugs that were scheduled as controlled
substances by the time their § 922(g) offenses were com-
mitted but were not on the federal drug schedules when
their prior state convictions occurred. The majority con-
cedes that its interpretation would exclude from ACCA's “se-
rious drug offense” defnition state drug crimes that occur
when “States . . . criminalize drugs before the Federal Gov-
ernment does so.” Ante, at 122. 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).
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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-
fcked 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 schedules
are frequently updated to account for precisely this sort of
newfound danger, consistent with ACCA's broader approach.
Ultimately, then, for all its talk of statutory goals, the ma-
jority's opinion elides the true purpose of ACCA's mandatory
minimum scheme in multiple ways. It also downplays the
means Congress adopted to advance its incapacitation objec-
tives, by essentially ignoring the link the statute draws be-
tween 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 pro-
vides. Breezing past these key nuances, the majority sim-
ply announces its own apparent view that “[a] prior drug
conviction for an offense punishable by 10 years' imprison-
ment augurs a risk of future dangerousness even if the drug
is no longer considered dangerous.” Ante, at 114.
5
5
The majority's opinion offers no concrete evidence for this empirical
assertion. And its strained analogy to bootleggers at the end of Prohibi-
tion, who supposedly “shifted to other illegal enterprises,” ante, at 114,
paints a woefully incomplete historical picture. Contrary to the majori-
ty's contentions, the end of Prohibition allowed many of those previously
involved in the illegal alcohol trade to transition into successful, legitimate
careers. See, e. g., D. Okrent, Last Call: The Rise and Fall of Prohibition
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 Congress drew the same his-
torical lessons from Prohibition that the majority does, or that ACCA was
motivated in any respect by our Nation's experiences during Prohibition.
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142 BROWN
v. UNITED STATES
Jackson, J., dissenting
***
A
t 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 committed
crimes.
The majority's contrary holding seems to refect its own
policy view that “Brown's and Jackson's multiple convic-
tions” pose a signifcant risk of future dangerousness “de-
spite the technical changes to the federal drug schedules.”
Ante, at 115. But the choice of how to assess and address
dangerousness belongs frst 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
sentencing policy that Congress enacted is sensible, just, or
effective. But it is the one that Congress wrote, and we
remain dutybound to apply the law as written. In my view,
the majority has failed to do so here.

Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 102, line 13: “conviction” is replaced with “offense”
p. 109, n. 2, line 5: “Verdict” is replaced with “Judgment”
p. 109, n. 2, line 6: “May 1, 2014” is replaced with “Oct. 8, 2015, recorded
Oct. 19, 2015”
p. 112, line 4 from bottom: “subsections” is replaced with “clauses”
p. 112, line 3 from bottom: “(A)” is inserted after “(2)”
p. 118, line 16: “current” is inserted before “federal”; “that are currently
in effect” is deleted
p. 118, line 17: “for sentencing purposes” is deleted; “that were” is replaced
with “in”; “effective” is replaced with “effect”
p. 123, line 11: “conviction” is replaced with “offense”
p. 134, line 9 from bottom: “refected” is replaced with “refect”
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