Shular v. United States

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHULAR v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–6662. Argued January 21, 2020 —Decided February 26, 2020
The Armed Career Criminal Act (ACCA) mandates a 15-year minimum
sentence for a defendant convicted of being a felon in possession of a
firearm who has at least three convictions for “serious drug offense[s].”
18 U.S. C. §924(e)(1). A state offense ranks as a “serious drug offense”
only if it “involv[es] manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance.”
§924(e)(2)(A)(ii).
To determine whether an offender’s prior convictions qualify for
ACCA enhancement, this Court has used a “categorical approach,”
looking “only to the statutory definitions of the prior offenses.” Taylor
v. United States, 495 U.S. 575, 600. Under some statutes, a court
employing a categorical approach must come up with a “generic” ver-
sion of a crime—that is, the elements of the offense as commonly un-
derstood. The court then determines whether the elements of the of-
fense of conviction match those of the generic crime. Other statutes,
which ask the court to determine whether the conviction meets some
other criterion, require no such generic-offense analysis.
Shular pleaded guilty to being a felon in possession of a firearm and
received a 15-year sentence, the mandatory minimum under ACCA.
In imposing this sentence, the District Court held that Shular’s six
prior cocaine-related convictions under Florida law qualified as “seri-
ous drug offense[s]” triggering ACCA enhancement. The Eleventh Cir-
cuit affirmed, concluding that §924(e)(2)(A)(ii)’s “serious drug offense”
definition does not require a comparison to a generic offense.
Held: Section 924(e)(2)(A)(ii)’s “serious drug offense” definition requires
only that the state offense involve the conduct specified in the statute;
it does not require that the state offense match certain generic of-
fenses. Pp. 5–11.
2 SHULAR v. UNITED STATES
Syllabus
(a) The parties agree that §924(e)(2)(A)(ii) requires a categorical ap-
proach. They differ, however, on what comparison the statute re-
quires. In the Government’s view, §924(e)(2)(A)(ii) identifies conduct
a court should compare directly against the state crime’s elements. In
Shular’s view, §924(e)(2)(A)(ii) identifies generic offenses whose
elements a court must first expound, then compare against the state
crime’s elements. Pp. 5–6.
(b) The statutory text and context show that §924(e)(2)(A)(ii) refers
to conduct, not offenses. In two respects, §924(e)(2)(A)(ii) contrasts
with neighboring §924(e)(2)(B)(ii), which refers to a crime that “is
burglary, arson, or extortion” and calls for the generic-offense analysis
that Shular urges. First, the terms in §924(e)(2)(A)(ii)—
“manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance”—can be used to
describe conduct. Unlike “burglary,” “arson,” and “extortion,” those
terms do not unambiguously name offenses. Second, by speaking of
activities a state-law drug offense “involv[es],” §924(e)(2)(A)(ii)
suggests that the descriptive terms immediately following the word
“involving” identify conduct. To refer to offenses, it would have been
far more natural for the drafter to follow §924(e)(2)(B)(ii) in using “is.”
Pp. 6–7.
(c) Shular argues that Congress meant to capture the drug offenses
generally existing in state laws at the time of §924(e)(2)(A)(ii)’s
enactment. But he admits that those state laws lacked common
nomenclature. The evident solution was for Congress to identify
offenses by the conduct involved, not by the name of the offenses.
Shular offers no persuasive explanation for why Congress would have
chosen “involving” over “is” to refer to offenses. Nor do the other ACCA
provisions on which Shular relies shed light on whether
§924(e)(2)(A)(ii) refers to conduct or offenses. Pp. 7–9.
(d) Rejecting a generic-offense approach, Shular contends, would
subject defendants to ACCA enhancement based on outlier state laws.
He emphasizes that the Florida drug offenses of which he was
convicted do not require, as an element, knowledge of the illicit nature
of the controlled substance. But Shular overstates the extent to which
Florida law is idiosyncratic, for if a defendant asserts that he was
unaware of the substance’s illicit nature, the jury must find knowledge
beyond a reasonable doubt. In any event, Shular’s interpretation is
scarcely the only one that promotes consistency. Congress intended
consistent application of ACCA to all offenders who engaged—
according to the elements of their prior convictions—in certain
conduct. Pp. 9–10.
(e) The rule of lenity has no application here, for after consulting
traditional canons of interpretation there remains no ambiguity for the
Cite as: 589 U. S. ____ (2020) 3
Syllabus
rule of lenity to resolve. Pp. 10–11.
736 Fed. Appx. 876, affirmed.
GINSBURG, J., delivered the opinion for a unanimous Court. KAV-
ANAUGH, J., filed a concurring opinion.
Cite as: 589 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6662
_________________
EDDIE LEE SHULAR, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[February 26, 2020]
JUSTICE GINSBURG delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA), 18 U.S. C.
§924(e), mandates a 15-year minimum sentence of impris-
onment for certain defendants with prior convictions for a
“serious drug offense.” A state offense ranks as a “serious
drug offense” only if it “involv[es] manufacturing, distrib-
uting, or possessing with intent to manufacture or dis-
tribute, a controlled substance.” §924(e)(2)(A)(ii). This
case concerns the methodology courts use to apply that
definition.
While the parties agree that a court should look to the
state offense’s elements, they disagree over what the court
should measure those elements against. In the Govern-
ment’s view, the court should ask whether those elements
involve the conduct identified in §924(e)(2)(A)(ii)—namely,
“manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.” Peti-
tioner Eddie Lee Shular, however, contends that the terms
employed in the statute identify not conduct, but offenses.
In his view, those terms are shorthand for the elements of
the offenses as commonly understood. According to Shular,
2 SHULAR v. UNITED STATES
Opinion of the Court
the court must first identify the elements of the “generic”
offense, then ask whether the elements of the state offense
match those of the generic crime.
Under the approach he advances, Shular argues, his sen-
tence is not subject to ACCA enhancement. The generic of-
fenses named in §924(e)(2)(A)(ii), as Shular understands
them, include a mens rea element of knowledge that the
substance is illicit. He emphasizes that his prior convic-
tions were for state offenses that do not make knowledge of
the substance’s illegality an element of the offense; the
state offenses, he therefore maintains, do not match the ge-
neric offenses in §924(e)(2)(A)(ii).
The question presented: Does §924(e)(2)(A)(ii)’s “serious
drug offense” definition call for a comparison to a generic
offense? We hold it does not. The “serious drug offense”
definition requires only that the state offense involve the
conduct specified in the federal statute; it does not require
that the state offense match certain generic offenses.
I
Ordinarily, a defendant convicted of being a felon in pos-
session of a firearm, in violation of §922(g)(1), faces a max-
imum sentence of ten years. §924(a)(2). If the offender’s
prior criminal record includes at least three convictions for
“serious drug offense[s]” or “violent felon[ies],” however,
ACCA mandates a minimum sentence of 15 years.
§924(e)(1).
To determine whether an offender’s prior convictions
qualify for ACCA enhancement, we have used a “categorical
approach,” under which we look “only to the statutory defi-
nitions of the prior offenses.” Taylor v. United States, 495
U.S. 575, 600 (1990). Under this approach, we consider
neither “the particular facts underlying the prior convic-
tions” nor “the label a State assigns to [the] crime[s].”
Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op.,
at 8) (internal quotation marks and alterations omitted).
Cite as: 589 U. S. ____ (2020) 3
Opinion of the Court
So, for example, to apply ACCA’s provision defining “violent
felony” to include “burglary,” §924(e)(2)(B)(ii), we ask only
whether the elements of the prior conviction constitute bur-
glary; we do not ask what the person did or whether the
offense of conviction was named “burglary.”
Under some statutes, using a categorical approach re-
quires the court to come up with a “generic” version of a
crime—that is, the elements of “the offense as commonly
understood,” id., at ___ (slip op., at 1).1 We have required
that step when the statute refers generally to an offense
without specifying its elements. In that situation, the court
must define the offense so that it can compare elements, not
labels. For example, in Taylor, confronted with ACCA’s un-
adorned reference to “burglary,” we identified the elements
of “generic burglary” based on the “sense in which the term
is now used in the criminal codes of most States.” 495 U.S.,
at 598–599; §924(e)(2)(B)(ii). We then inquired whether the
elements of the offense of conviction matched those of the
generic crime. Id., at 602. See also, e.g., Esquivel-Quintana
v. Sessions, 581 U. S. ___, ___ (2017) (slip op., at 4) (“generic
federal definition of sexual abuse of a minor” for purposes
of 8 U.S. C. §1101(a)(43)(A)).
In contrast, other statutes calling for a categorical ap-
proach ask the court to determine not whether the prior
conviction was for a certain offense, but whether the convic-
tion meets some other criterion. For example, in Ka-
washima v. Holder, 565 U.S. 478 (2012), we applied a cat-
egorical approach to a statute assigning immigration
consequences to prior convictions for “an offense that . . .
involves fraud or deceit” with a loss exceeding $10,000.
§1101(a)(43)(M)(i). The quoted language, we held, “mean[s]
offenses with elements that necessarily entail fraudulent or
——————
1 We have also used the term “generic crime” to mean the crime “in
general” as opposed to “the specific acts in which an offender engaged on
a specific occasion.” Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009).
That is not the sense in which we use “generic” in this opinion.
4 SHULAR v. UNITED STATES
Opinion of the Court
deceitful conduct.” Id., at 484 (emphasis added). Conse-
quently, no identification of generic offense elements was
necessary; we simply asked whether the prior convictions
before us met that measure. Id., at 483–485. See also, e.g.,
Stokeling v. United States, 586 U. S. ___, ___–___ (2019)
(slip op., at 12–13) (determining whether an offense “has as
an element the use, attempted use, or threatened use of
physical force against the person of another,” 18 U.S. C.
§924(e)(2)(B)(i)).
This case invites us to decide which of the two categorical
methodologies just described applies in determining
whether a state offense is a “serious drug offense” under
ACCA. ACCA defines that term to include:
“an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture
or distribute, a controlled substance (as defined in sec-
tion 102 of the Controlled Substances Act (21 U.S. C.
[§]802)), for which a maximum term of imprisonment
of ten years or more is prescribed by law.” 18 U.S. C.
§924(e)(2)(A)(ii).
II
Shular pleaded guilty in the United States District Court
for the Northern District of Florida to possessing a firearm
after having been convicted of a felony, in violation of
§922(g)(1), and possessing with intent to distribute cocaine
and cocaine base, in violation of 21 U.S. C. §841(a)(1) and
(b)(1)(C). The District Court sentenced Shular to imprison-
ment for 15 years, the mandatory minimum under ACCA,
to be followed by three years of supervised release.
In imposing that enhanced sentence, the District Court
took account of Shular’s prior convictions under Florida
law. In 2012, Shular pleaded guilty to five counts of selling
cocaine and one count of possessing cocaine with intent to
sell, all in violation of Fla. Stat. §893.13(1)(a). That law
makes it a crime to “sell, manufacture, or deliver, or possess
Cite as: 589 U. S. ____ (2020) 5
Opinion of the Court
with intent to sell, manufacture, or deliver, a controlled
substance.” Ibid. For those offenses, “knowledge of the il-
licit nature of a controlled substance is not an element,” but
lack of such knowledge “is an affirmative defense.”
§893.101(2). Shular’s six convictions under that Florida
law, the District Court concluded, qualified as “serious drug
offense[s]” triggering ACCA enhancement under 18 U.S. C.
§924(e)(2)(A)(ii).
The United States Court of Appeals for the Eleventh Cir-
cuit affirmed the sentence. 736 Fed. Appx. 876 (2018). It
relied on Circuit precedent holding that a court applying
§924(e)(2)(A)(ii) “need not search for the elements of ‘ge-
neric’ definitions” of any offense, because the statute “re-
quire[s] only that the predicate offense ‘involv[e]’ . . . certain
activities.” United States v. Smith, 775 F.3d 1262, 1267
(2014).
Courts of Appeals have divided on whether
§924(e)(2)(A)(ii)’s “serious drug offense” definition requires
a comparison to a generic offense. Compare, e.g., id., at
1267 (no generic-offense comparison), with United States v.
Franklin, 904 F.3d 793, 800 (CA9 2018) (court must define
a generic crime). We granted certiorari to resolve this con-
flict, 588 U. S. ___ (2019), and now affirm the Eleventh Cir-
cuit’s judgment.
III
A
The parties here agree that §924(e)(2)(A)(ii) requires a
categorical approach. A court must look only to the state
offense’s elements, not the facts of the case or labels pinned
to the state conviction.
They differ, however, on what comparison
§924(e)(2)(A)(ii) requires. Shular would require “a generic-
offense matching exercise”: A court should define the
elements of the generic offenses identified in
§924(e)(2)(A)(ii), then compare those elements to the
6 SHULAR v. UNITED STATES
Opinion of the Court
elements of the state offense. Brief for Petitioner 13–14. In
the Government’s view, a court should apply “the
Kawashima categorical approach”: It should ask whether
the state offense’s elements “necessarily entail one of the
types of conduct” identified in §924(e)(2)(A)(ii). Brief for
United States 13, 20 (emphasis added).
This methodological dispute is occasioned by an interpre-
tive disagreement over §924(e)(2)(A)(ii)’s reference to “man-
ufacturing, distributing, or possessing with intent to man-
ufacture or distribute, a controlled substance.” Those
terms, in the Government’s view, describe conduct a court
can compare directly against the state crime’s elements.
Shular sees them instead as offenses whose elements a
court must first expound.
B
The Government’s reading, we are convinced, correctly
interprets the statutory text and context. Two features of
§924(e)(2)(A)(ii), compared against a neighboring provision
referring to offenses, §924(e)(2)(B)(ii), show that
§924(e)(2)(A)(ii) refers to conduct.
First, the terms in §924(e)(2)(A)(ii)—“manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance”—are unlikely names for
generic offenses. Those words undoubtedly can be used to
describe conduct. But as Shular acknowledges, they are not
universal names of offenses; instead, States define “core
drug offenses with all manner of terminology, including:
trafficking, selling, giving, dispensing, distributing,
delivering, promoting, and producing.” Reply Brief 7.
Contrast §924(e)(2)(A)(ii) with §924(e)(2)(B)(ii), the
enumerated-offense clause of ACCA’s “violent felony”
definition, appearing in the same section of the Career
Criminals Amendment Act of 1986, 100 Stat. 3207–39 to
3207–40. That provision, which refers to a crime that “is
burglary, arson, or extortion,” requires a generic-offense
Cite as: 589 U. S. ____ (2020) 7
Opinion of the Court
analysis. See Mathis, 579 U. S., at ___ (slip op., at 2). The
terms “burglary,” “arson,” and “extortion”—given their
common-law history and widespread usage—un-
ambiguously name offenses. Cf., e.g., Taylor, 495 U.S.,
at 590–599 (discussing “burglary”). Drug offenses, Shular
admits, lack “the same heritage and the same established
lexicon.” Brief for Petitioner 14.
Second, by speaking of activities a state-law drug offense
“involv[es],” §924(e)(2)(A)(ii) suggests that the descriptive
terms immediately following the word “involving” identify
conduct. The parties agree that “involve” means
“necessarily requir[e].” Brief for Petitioner 14 (citing
Random House Dictionary of the English Language 1005
(2d ed. 1987) (“to include as a necessary circumstance,
condition, or consequence”)); Brief for United States 21
(same). It is natural to say that an offense “involves” or
“requires” certain conduct. E.g., §924(e)(2)(B)(ii)
(addressing a crime “involv[ing] conduct that presents a
serious potential risk of physical injury to another”);
Mathis, 579 U. S., at ___ (slip op., at 5) (“The generic offense
[of burglary] requires unlawful entry into a building or
other structure.” (internal quotation marks omitted)).
To refer to offenses as Shular urges, it would have been
far more natural for the drafter to follow the enumerated-
offense clause in using “is,” not “involving.” See
§924(e)(2)(B)(ii) (crime that “is burglary, arson, or
extortion”). There, the word “is” indicates a congruence
between “crime” and the terms that follow, terms that are
also crimes. See American Heritage Dictionary 114 (def.
7a) (1981) (“To equal in meaning or identity”). Yet Congress
did not adopt that formulation in §924(e)(2)(A)(ii), opting
instead for language suited to conduct.
C
Shular principally urges that at the time of
§924(e)(2)(A)(ii)’s enactment, federal and state criminal
8 SHULAR v. UNITED STATES
Opinion of the Court
laws widely prohibited the “core conduct” of manufacturing,
distributing, and possessing with intent to manufacture or
distribute drugs. Brief for Petitioner 10–12. Some laws,
Shular observes, used those very terms. See, e.g., 21
U.S. C. §841(a)(1) (1982 ed.). But even if the substance of
state drug laws was well established—rather than their
nomenclature, which Shular concedes was not—Congress
could capture that substance by reference to conduct, rather
than offenses.
Shular points out that the word “involving” can
accommodate a generic-offense approach. Cf. Scheidler v.
National Organization for Women, Inc., 537 U.S. 393, 409
(2003) (“act or threat involving . . . extortion,” 18 U.S. C.
§1961(1), contemplates “ ‘generic’ extortion” (some internal
quotation marks omitted)). But we have no reason to think
Congress intended that approach for §924(e)(2)(A)(ii)—
which uses no deeply rooted offense name like “extortion”
and contrasts with the offense-oriented language of a
neighboring provision.
Endeavoring to explain why Congress might have chosen
“involving” over “is” in §924(e)(2)(A)(ii), Shular suggests
that variation in state drug-offense terminology required a
word more approximate than “is.” But if Congress was
concerned that state drug offenses lacked clear, universally
employed names, the evident solution was to identify them
instead by conduct. Using “involving” rather than “is” does
not clarify that the terms are names of offenses; quite the
opposite. See supra, at 7.
Shular asserts that to describe conduct rather than
offenses, Congress would have used the language of the
elements clause of the “violent felony” definition, which
captures a crime that “has as an element the use, attempted
use, or threatened use of physical force against the person
of another.” §924(e)(2)(B)(i) (emphasis added). It would
have been awkward, however, to describe “possessing with
intent to manufacture or distribute”—requiring both
Cite as: 589 U. S. ____ (2020) 9
Opinion of the Court
possession and intent—as “an element.” Congress may also
have wanted to clarify that the state offense need not
include the identified conduct as a formal element. Cf.
Kawashima, 565 U.S., at 483–484 (the statutory phrase
“an offense that . . . involves fraud or deceit” “is not limited
to offenses that include fraud or deceit as formal elements”
but extends to offenses “that necessarily entail fraudulent
or deceitful conduct”). Whatever the reason, Congress’
choice not to describe each term in §924(e)(2)(A)(ii) as “an
element” neither refutes that those terms refer to conduct
nor shows that they refer to offenses.
Nor does the other clause of the “serious drug offense”
definition shed light on the question before us. Section
924(e)(2)(A)(i) includes as “serious drug offenses”
“offense[s] under” specific portions of the U. S. Code.2 That
provision, Shular observes, refers to fully defined crimes.
But “the divergent text of the two provisions” of the serious-
drug-offense definition, as the Government explains,
“makes any divergence in their application unremarkable.”
Brief for United States 22. Congress’ decision to identify
federal offenses by reference to the U. S. Code does not
speak to whether it identified state offenses by reference to
named offenses or conduct.
D
Shular expresses concern that rejecting a generic-offense
approach would yield an anomalous result. Unlike other
drug laws, Shular contends, the Florida law under which
he was previously convicted does not require that the
defendant know the substance is illicit. Unless
§924(e)(2)(A)(ii) takes into account all the elements of the
——————
2 Section 924(e)(2)(A)(i) provides that the term “serious drug offense”
includes “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 maximum
term of imprisonment of ten years or more is prescribed by law.”
10 SHULAR v. UNITED STATES
Opinion of the Court
offense as commonly understood, Shular maintains,
defendants would face ACCA enhancement based on outlier
state laws.
As an initial matter, Shular overstates Florida’s
disregard for mens rea. Charged under Fla. Stat.
§893.13(1)(a), a defendant unaware of the substance’s illicit
nature can raise that unawareness as an affirmative
defense, in which case the standard jury instructions
require a finding of knowledge beyond a reasonable doubt.
§893.101(2); Fla. Crim. Jury Instr. §25.2 (2020), https://
www . floridasupremecourt . org / content / download / 568865/
6425767/file/EntireDocument.rtf.
In any event, both parties’ interpretations of 18 U.S. C.
§924(e)(2)(A)(ii) achieve a measure of consistency.
Resolving this case requires us to determine which form of
consistency Congress intended: application of ACCA to all
offenders who engaged in certain conduct or to all who
committed certain generic offenses (in either reading,
judging only by the elements of their prior convictions). For
the reasons explained, we are persuaded that Congress
chose the former.
E
Shular urges us to apply the rule of lenity in determining
whether §924(e)(2)(A)(ii) requires a generic-offense-
matching analysis. The rule “applies only when, after
consulting traditional canons of statutory construction, we
are left with an ambiguous statute.” United States v.
Shabani, 513 U.S. 10, 17 (1994). Here, we are left with no
ambiguity for the rule of lenity to resolve. Section
924(e)(2)(A)(ii)’s text and context leave no doubt that it
refers to an offense involving the conduct of
“manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.” Be-
cause those terms describe conduct and do not name of-
fenses, a court applying §924(e)(2)(A)(ii) need not delineate
Cite as: 589 U. S. ____ (2020) 11
Opinion of the Court
the elements of generic offenses.3
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Eleventh Circuit is
Affirmed.
——————
3 Shular argues in the alternative that even if §924(e)(2)(A)(ii) does not
call for a generic-offense-matching analysis, it requires knowledge of the
substance’s illicit nature. See Brief for Petitioner 23; Reply Brief 8–10.
We do not address that argument. Not only does it fall outside the ques-
tion presented, Pet. for Cert. i, Shular disclaimed it at the certiorari
stage, Supp. Brief for Petitioner 3.
Cite as: 589 U. S. ____ (2020) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–6662
_________________
EDDIE LEE SHULAR, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[February 26, 2020]
JUSTICE KAVANAUGH, concurring.
I join the Court’s opinion in full. In Part III–E of the opin-
ion, the Court rejects Shular’s argument for applying the
rule of lenity. I write separately to elaborate on why the
rule of lenity does not apply here.
This Court’s longstanding precedents establish that the
rule of lenity applies when two conditions are met.
First, as the Court today says and as the Court has re-
peatedly held, a court may invoke the rule of lenity only
“ ‘after consulting traditional canons of statutory construc-
tion.’ ” Ante, at 10 (quoting United States v. Shabani, 513
U.S. 10, 17 (1994)).1 In other words, a court must first em-
ploy all of the traditional tools of statutory interpretation,
——————
1 See also, e.g., Ocasio v. United States, 578 U. S. ___, ___, n. 8 (2016)
(slip op., at 13, n. 8); Robers v. United States, 572 U.S. 639, 646 (2014);
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16
(2011); Abbott v. United States, 562 U.S. 8, 28, n. 9 (2010); United States
v. Hayes, 555 U.S. 415, 429 (2009); Burgess v. United States, 553 U.S.
124, 135 (2008); Muscarello v. United States, 524 U.S. 125, 138 (1998);
Caron v. United States, 524 U.S. 308, 316 (1998); United States v. Wells,
519 U.S. 482, 499 (1997); Reno v. Koray, 515 U.S. 50, 65 (1995); Smith
v. United States, 508 U.S. 223, 239 (1993); Gozlon-Peretz v. United
States, 498 U.S. 395, 410 (1991); Moskal v. United States, 498 U.S. 103,
108 (1990); Callanan v. United States, 364 U.S. 587, 596 (1961). Cf.
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843, n. 9 (1984) (instructing courts to employ “traditional tools
of statutory construction” before concluding that a statute is ambiguous
2 SHULAR v. UNITED STATES
KAVANAUGH, J., concurring
and a court may resort to the rule of lenity only “ ‘after seiz-
ing everything from which aid can be derived.’ ” Ocasio v.
United States, 578 U. S. ___, ___, n. 8 (2016) (slip op., at 13,
n. 8) (quoting Muscarello v. United States, 524 U.S. 125,
138–139 (1998)). In summarizing the case law, Justice
Scalia underscored that the rule of lenity “ ‘comes into oper-
ation at the end of the process of construing what Congress
has expressed, not at the beginning.’ ” A. Scalia & B. Gar-
ner, Reading Law: The Interpretation of Legal Texts 298
(2012) (quoting Callanan v. United States, 364 U.S. 587,
596 (1961)). Of course, when “a reviewing court employs all
of the traditional tools of construction, the court will almost
always reach a conclusion about the best interpretation,”
thereby resolving any perceived ambiguity. Kisor v. Wilkie,
588 U. S. ___, ___ (2019) (slip op., at 1) (KAVANAUGH, J.,
concurring in judgment). That explains why the rule of len-
ity rarely comes into play.
Second, this Court has repeatedly explained that the rule
of lenity applies only in cases of “ ‘grievous’ ” ambiguity—
where the court, even after applying all of the traditional
tools of statutory interpretation, “ ‘can make no more than
a guess as to what Congress intended.’ ” Ocasio, 578 U. S.,
at ___, n. 8 (slip op., at 13, n. 8) (quoting Muscarello, 524
U.S., at 138–139). The Court has stated that the “simple
existence of some statutory ambiguity” is “not sufficient to
warrant application of that rule, for most statutes are am-
biguous to some degree.” Id., at 138. To be sure, as Justice
Scalia rightly noted, the term “ ‘grievous ambiguity’ ” pro-
vides “ ‘little more than atmospherics, since it leaves open
the crucial question—almost invariably present—of how
much ambiguousness constitutes an ambiguity.’ ” Reading
Law, at 299 (quoting United States v. Hansen, 772 F.2d
940, 948 (CADC 1985) (Scalia, J., for the court)); see also
Kavanaugh, Fixing Statutory Interpretation, 129 Harv.
——————
and deferring to an agency’s reasonable interpretation).
Cite as: 589 U. S. ____ (2020) 3
KAVANAUGH, J., concurring
L. Rev. 2118 (2016). That said, atmospherics can matter.
Although the Court has not always been perfectly con-
sistent in its formulations, the Court has repeatedly em-
phasized that a court must find not just ambiguity but
“grievous ambiguity” before resorting to the rule of lenity.2
To sum up: Under this Court’s longstanding precedents,
the rule of lenity applies when a court employs all of the
traditional tools of statutory interpretation and, after doing
so, concludes that the statute still remains grievously am-
biguous, meaning that the court can make no more than a
guess as to what the statute means.
Because the Court correctly concludes that the rule of len-
ity does not apply in this case, I join the Court’s opinion in
full.
——————
2 See, e.g., Shaw v. United States, 580 U. S. ___, ___ (2016) (slip op., at
8); Salman v. United States, 580 U. S. ___, ___ (2016) (slip op., at 11);
Abramski v. United States, 573 U.S. 169, 188, n. 10 (2014); Robers, 572
U.S., at 646; United States v. Castleman, 572 U.S. 157, 172–173 (2014);
Barber v. Thomas, 560 U.S. 474, 488 (2010); Dolan v. United States, 560
U.S. 605, 621 (2010); Dean v. United States, 556 U.S. 568, 577 (2009);
Hayes, 555 U.S., at 429; Staples v. United States, 511 U.S. 600, 619,
n. 17 (1994); Chapman v. United States, 500 U.S. 453, 463 (1991); Hud-
dleston v. United States, 415 U.S. 814, 831 (1974).