DePierre v. United States

(Slip Opinion) OCTOBER TERM, 2010 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
DEPIERRE v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 09–1533. Argued February 28, 2011—Decided June 9, 2011
In 1986, increasing public concern over the dangers of illicit drugs—in
particular, the new phenomenon of crack cocaine—prompted Con
gress to revise the penalties for criminal offenses involving cocaine
related substances. Following several hearings, Congress enacted
the Anti-Drug Abuse Act of 1986 (ADAA). The statute provides a
mandatory 10-year minimum sentence for certain drug offenses in
volving “(ii) 5 kilograms or more of a mixture or substance containing
a detectable amount of . . . (II) cocaine, its salts, optical and geometric
isomers, and salts of isomers, [or] (iii) 50 grams or more of a mixture
or substance described in clause (ii) which contains cocaine base.” 21
U. S. C. §841(b)(1)(A). The statute similarly provides a 5-year sen
tence for offenses involving 500 grams of a substance enumerated in
clause (ii) or 5 grams of one outlined in clause (iii). §841(b)(1)(B).
In 2005, petitioner DePierre was indicted for distribution of 50
grams or more of cocaine base under §§841(a)(1) and (b)(1)(A)(iii).
The District Court declined DePierre’s request that the jury be in
structed that, in order to find DePierre guilty of distribution of “co
caine base,” it must find that his offense involved crack cocaine.
DePierre was convicted, and the court sentenced him to the 120
months in prison mandated by the statute. The First Circuit af
firmed, rejecting DePierre’s argument that §841(b)(1)(A)(iii) should
be read only to apply to offenses involving crack cocaine. Instead, it
adhered to its precedent holding that “cocaine base” refers to all
forms of cocaine base.
Held: “[C]ocaine base,” as used in §841(b)(1), means not just “crack co
caine,” but cocaine in its chemically basic form. Pp. 7–18.
(a) The most natural reading of “cocaine base” in clause (iii) is co
caine in its chemically basic form—i.e., the molecule found in crack
2 DEPIERRE v. UNITED STATES
Syllabus
cocaine, freebase, and coca paste. On its plain terms, then, “cocaine
base” reaches more broadly than just crack cocaine. In arguing to the
contrary, DePierre urges the Court to stray far from the statute’s
text, which nowhere contains the term “crack cocaine.” The Govern
ment’s reading, on the other hand, follows the words Congress chose
to use. DePierre is correct that “cocaine base” is technically redun
dant—chemically speaking, cocaine is a base. But Congress had good
reason to use “cocaine base”—to make clear that clause (iii) does not
apply to offenses involving cocaine hydrochloride (i.e., powder co
caine) or other nonbasic cocaine-related substances. At the time the
statute was enacted, “cocaine” was commonly used to refer to powder
cocaine, and the scientific and medical literature often uses “cocaine”
to refer to all cocaine-related substances, including ones that are not
chemically basic. Pp. 7–10.
(b) This reading of “cocaine base” is also consistent with
§841(b)(1)’s somewhat confusing structure. Subsection (b)(1)(A)(ii)(II)
lists “cocaine,” along with “its salts, optical and geometric isomers,
and salts of isomers,” as elements subject to clause (ii)’s higher quan
tity threshold. DePierre is correct that, because “cocaine” and “co
caine base” both refer to chemically basic cocaine, offenses involving
a substance containing such cocaine will always be penalized accord
ing to the lower quantity threshold of clause (iii), and never the
higher threshold clause (ii) establishes for mixtures and substances
containing “cocaine.” But the Court does not agree that the term “co
caine” in clause (ii) is therefore superfluous—in light of the structure
of subclause (II), “cocaine” is needed as the reference point for “salts”
and “isomers,” which would otherwise be meaningless.
The term “cocaine” in clause (ii) also performs another critical func
tion. Clause (iii) penalizes offenses involving a mixture or substance
“described in clause (ii) which contains cocaine base.” Thus, clause
(ii) imposes a penalty for offenses involving cocaine-related sub
stances generally, and clause (iii) imposes a higher penalty for a sub
set of those substances—the ones that “contai[n] cocaine base.” For
this structure to work, however, §841(b)(1) must “describ[e] in clause
(ii)” substances containing chemically basic cocaine, which then com
prise the subset described in clause (iii). Congress thus had good
reason to include the term “cocaine” in clause (ii), and the slight in
consistency created by its use of “cocaine base” in clause (iii) is insuf
ficient reason to adopt DePierre’s interpretation. Pp. 10–13.
(c) DePierre’s additional arguments are unpersuasive. First, the
records of the 1986 congressional hearings do not support his conten
tion that Congress was exclusively concerned with offenses involving
crack cocaine. Second, reading “cocaine base” to mean chemically ba
sic cocaine, rather than crack cocaine, does not lead to an absurd re
Cite as: 564 U. S. ____ (2011) 3
Syllabus
sult. Third, the fact that “cocaine base” in the Federal Sentencing
Guidelines is defined as “crack” does not require that the statutory
term be interpreted the same way. Fourth, the statute is sufficiently
clear that the rule of lenity does not apply in DePierre’s favor.
Pp. 13–18.
599 F. 3d 25, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN,
JJ., joined, and in which SCALIA, J., joined except for Part III–A.
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1533
_________________
FRANTZ DEPIERRE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 9, 2011]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
At the time of petitioner’s conviction and sentence,
federal law mandated a minimum 10-year sentence for
persons convicted of certain drug offenses, 21 U. S. C.
§841(a), including those involving 50 grams or more of
“a mixture or substance . . . which contains cocaine base,”
§841(b)(1)(A)(iii), and a minimum 5-year sentence for
offenses involving 5 grams or more of the same,
§841(b)(1)(B)(iii). This case requires us to decide whether
the term “cocaine base” as used in this statute refers
generally to cocaine in its chemically basic form or exclu
sively to what is colloquially known as “crack cocaine.” We
conclude that “cocaine base” means the former.
I
A
As a matter of chemistry, cocaine is an alkaloid with the
molecular formula C17H21NO4. Webster’s Third New In
ternational Dictionary 434 (2002). An alkaloid is a base—
that is, a compound capable of reacting with an acid to
form a salt.1 Id., at 54, 180; see also Brief for Individual
——————
1 There are more detailed theories of how acids and bases interact.
2 DEPIERRE v. UNITED STATES
Opinion of the Court
Physicians and Scientists as Amici Curiae 2–3 (herein
after Physicians Brief). Cocaine is derived from the coca
plant native to South America. The leaves of the coca
plant can be processed with water, kerosene, sodium car
bonate, and sulphuric acid to produce a paste-like sub
stance. R. Weiss, S. Mirin, & R. Bartel, Cocaine 10 (2d
ed. 1994). When dried, the resulting “coca paste” can be
vaporized (through the application of heat) and inhaled,
i.e., “smoked.” See United States Sentencing Commission,
Special Report to the Congress: Cocaine and Federal
Sentencing Policy 11–12 (1995) (hereinafter Commission
Report). Coca paste contains C17H21NO4—that is, cocaine
in its base form.
Dissolving coca paste in water and hydrochloric acid
produces (after several intermediate steps) cocaine hydro
chloride, which is a salt with the molecular formula
C17H22NO4+Cl-. Id., at 12; Physicians Brief 3. Cocaine
hydrochloride, therefore, is not a base. It generally comes
in powder form, which we will refer to as “powder cocaine.”
It is usually insufflated (breathed in through the nose),
though it can also be ingested or diluted in water and
injected. Because cocaine hydrochloride vaporizes at a
much higher temperature than chemically basic cocaine
(at which point the cocaine molecule tends to decompose),
it is generally not smoked. See Commission Report 11,
n. 15, 12–13.
Cocaine hydrochloride can be converted into cocaine in
its base form by combining powder cocaine with water and
a base, like sodium bicarbonate (also known as baking
soda). Id., at 14. The chemical reaction changes the
cocaine hydrochloride molecule into a chemically basic
——————
For our purposes, it is sufficient to note the fundamental proposition
that a base and an acid can combine to form a salt, and all three are
different types of compounds. See generally Brief for Individual Physi
cians and Scientists as Amici Curiae 8; A Dictionary of Chemistry 6–7,
62–63, 496 (J. Dainith ed., 5th ed. 2004).
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
cocaine molecule, Physicians Brief 4, and the resulting
solid substance can be cooled and broken into small pieces
and then smoked, Commission Report 14. This substance
is commonly known as “crack” or “crack cocaine.”2 Alter
natively, powder cocaine can be dissolved in water and
ammonia (also a base); with the addition of ether, a solid
substance—known as “freebase”—separates from the solu
tion, and can be smoked. Id., at 13. As with crack cocaine,
freebase contains cocaine in its chemically basic form.
Ibid.
Chemically, therefore, there is no difference between the
cocaine in coca paste, crack cocaine, and freebase—all are
cocaine in its base form. On the other hand, cocaine in its
base form and in its salt form (i.e., cocaine hydrochloride)
are chemically different, though they have the same active
ingredient and produce the same physiological and psy
chotropic effects. See id., at 14–22. The key difference
between them is the method by which they generally enter
the body; smoking cocaine in its base form—whether as
coca paste, freebase, or crack cocaine—allows the body to
absorb the active ingredient quickly, thereby producing a
shorter, more intense high than obtained from insufflating
cocaine hydrochloride. Ibid.; see generally Kimbrough v.
United States, 552 U. S. 85, 94 (2007).
B
In 1986, increasing public concern over the dangers
associated with illicit drugs—and the new phenomenon
of crack cocaine in particular—prompted Congress to re
vise the penalties for criminal offenses involving cocaine
related substances. See id., at 95–96. At the time, federal
law generally tied the penalties for drug offenses to both
the type of drug and the quantity involved, with no pro
——————
2 Though the terms “crack” and “crack cocaine” are interchangeable,
in this opinion we adopt DePierre’s practice and generally employ the
latter.
4 DEPIERRE v. UNITED STATES
Opinion of the Court
vision for mandatory minimum sentences. See, e.g.,
§841(b)(1) (1982 ed., Supp. III). After holding several
hearings specifically addressing the emergence of crack
cocaine, Congress enacted the Anti-Drug Abuse Act of
1986 (ADAA), 100 Stat. 3207, which provided mandatory
minimum sentences for controlled-substance offenses in
volving specific quantities of drugs.
As relevant here, the ADAA provided a mandatory 10
year sentence for certain drug offenses involving 5 kilo
grams or more of “a mixture or substance containing a
detectable amount of ” various cocaine-related elements,
including coca leaves, cocaine, and cocaine salts; it also
called for the same sentence for offenses involving only
50 grams or more of “a mixture or substance . . . which
contains cocaine base.” ADAA, §1002, 100 Stat. 3207–2
(amending §§841(b)(1)(A)(ii)–(iii)) (emphasis added). The
ADAA also stipulated a mandatory 5-year sentence for
offenses involving 500 grams of a mixture or substance
containing coca leaves, cocaine, and cocaine salts, or 5
grams of a mixture or substance containing “cocaine base.”
Id., at 3207–3 (amending §§841(b)(1)(B)(ii)–(iii)).
Thus, the ADAA established a 100-to-1 ratio for the
threshold quantities of cocaine-related substances that
triggered the statute’s mandatory minimum penalties.
That is, 5 grams or more of “a mixture or substance . . .
which contains cocaine base” was penalized as severely as
100 times that amount of the other cocaine-related ele
ments enumerated in the statute. These provisions were
still in effect at the time of petitioner’s conviction and
sentence.3 See §§841(b)(1)(A)–(B) (2000 ed. and Supp. V).
——————
3 Due to a recent amendment, the quantity ratio in §841(b)(1) is now
roughly 18-to-1, but otherwise the relevant statutory provisions are
unchanged from those in effect at the time DePierre was sentenced.
See Fair Sentencing Act of 2010 (FSA), §2, 124 Stat. 2372 (changing the
quantity in §841(b)(1)(A)(iii) from 50 to 280 grams and in subparagraph
(B)(iii) from 5 to 28 grams).
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
The United States Sentencing Commission subsequently
promulgated Sentencing Guidelines for drug-trafficking
offenses. Under the Guidelines, the offense levels for drug
crimes are tied to the drug type and quantity involved.
See United States Sentencing Commission, Guidelines
Manual §2D1.1(c) (Nov. 2010) (USSG). The Commission
originally adopted the ADAA’s 100-to-1 ratio for offenses
involving “cocaine” and “cocaine base,” though instead of
setting only two quantity thresholds, as the ADAA did, the
Guidelines “set sentences for the full range of possible
drug quantities.” Commission Report 1; see generally
Kimbrough, 552 U. S., at 96–97.4
The original version of §2D1.1(c) did not define “cocaine
base” as used in that provision, but in 1993 the Commis
sion issued an amendment to explain that “ ‘[c]ocaine
base,’ for the purposes of this guideline, means ‘crack,’ ”
that is, “the street name for a form of cocaine base, usually
prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike
form.” USSG App. C, Amdt. 487 (effective Nov. 1, 1993);
see also USSG §2D1.1(c), n. (D). The Commission noted
that “forms of cocaine base other than crack (e.g., coca
paste . . .) will be treated as cocaine.” USSG App. C,
Amdt. 487.5
C
In April 2005, petitioner Frantz DePierre sold two bags
——————
4 In 2007 the Commission increased the quantity of cocaine base re
quired to trigger each offense level, reducing the cocaine base-to-cocaine
sentencing ratio under the Guidelines. See USSG Supp. App. C, Amdt.
706 (effective Nov. 1, 2007). Unless otherwise noted, we cite to the
current versions of the relevant Guidelines provisions.
5 The Guidelines’ Drug Quantity Table only lists “cocaine” and “co
caine base” among its enumerated controlled substances, but the
application notes make clear that the term “cocaine” includes “ecgonine
and coca leaves,” as well as “salts, isomers, and salts of isomers” of
cocaine. §2D1.1(c), and comment., n. 5.
6 DEPIERRE v. UNITED STATES
Opinion of the Court
of drugs to a Government informant. DePierre was subse
quently indicted on a charge of distributing 50 grams or
more of cocaine base under §§841(a)(1) and (b)(1)(A)(iii).6
At trial, a Government chemist testified that the sub
stance in the bags, which weighed 55.1 grams, was “co
caine base.” Tr. 488, 490. She was not able to identify any
sodium bicarbonate. Id., at 499. A police officer testified
that the substance in question was “off-white [and]
chunky.” Id., at 455.
DePierre asked the District Court to instruct the jury
that, in order to find him guilty of distribution of cocaine
base, it must find that his offense involved “the form
of cocaine base known as crack cocaine.” App. in No. 08–
2101 (CA1), p. 43. His proposed jury instruction defined
“crack” identically to the Guidelines definition. See id., at
43–44; see also USSG §2D1.1(c), n. (D). In addition, De-
Pierre asked the court to instruct the jury that “[c]hemi
cal analysis cannot establish a substance as crack because
crack is chemically identical to other forms of cocaine base,
although it can reveal the presence of sodium bicarbonate,
which is usually used in the processing of crack.” App. in
No. 08–2101, at 44.
The court, however, instructed the jury that “the statute
that’s relevant asks about cocaine base. Crack cocaine is a
form of cocaine base, so you’ll tell us whether or not what
was involved is cocaine base . . . .” Tr. 585 (paragraph
break omitted). The jury form asked whether the offense
involved “over 50 grams of cocaine base.” App. to Pet. for
Cert. 17a. The jury found DePierre guilty of distributing
50 grams or more of cocaine base, and the court sentenced
DePierre to 120 months in prison as required by the statute.
——————
6 DePierre
was also indicted for distribution of powder cocaine under
§841(a)(1) and possession of a firearm with an obliterated serial num
ber under 18 U. S. C. §922(k). He was convicted by jury of the former
offense and pleaded guilty to the latter prior to trial.
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
The United States Court of Appeals for the First Cir
cuit affirmed, rejecting DePierre’s argument that
§841(b)(1)(A)(iii) should be read only to apply to offenses
involving crack cocaine. 599 F. 3d 25, 30–31 (2010).
While noting the division on this question among the
Courts of Appeals, id., at 30–31, and nn. 3, 4, the First
Circuit adhered to its own precedent and “read the statute
according to its terms,” holding that “ ‘cocaine base’ refers
to ‘all forms of cocaine base, including but not limited to
crack cocaine.’ ” Id., at 30–31 (quoting United States v.
Anderson, 452 F. 3d 66, 86–87 (CA1 2006)). We granted
certiorari to resolve the longstanding division in authority
among the Courts of Appeals on this question. 562 U. S.
___ (2010).
II
A
We begin with the statutory text. See United States
v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989).
Section 841(b)(1)(A) provides a mandatory 10-year mini
mum sentence for certain drug offenses involving
“(ii) 5 kilograms or more of a mixture or substance
containing a detectable amount of—
“(I) coca leaves, except coca leaves and extracts of
coca leaves from which cocaine, ecgonine, and de
rivatives of ecgonine or their salts have been
removed;
“(II) cocaine, its salts, optical and geometric iso
mers, and salts of isomers;
“(III) ecgonine, its derivatives, their salts, isomers,
and salts of isomers; or
“(IV) any compound, mixture, or preparation which
contains any quantity of any of the substances re
ferred to in subclauses (I) through (III); [or]
“(iii) 50 grams or more of a mixture or substance de
8 DEPIERRE v. UNITED STATES
Opinion of the Court
scribed in clause (ii) which contains cocaine base.”7
We agree with the Government that the most natural
reading of the term “cocaine base” is “cocaine in its base
form”—i.e., C17H21NO4, the molecule found in crack co
caine, freebase, and coca paste. On its plain terms, then,
“cocaine base” reaches more broadly than just crack co
caine. In arguing to the contrary, DePierre asks us to
stray far from the statute’s text, as the term “crack co
caine” appears nowhere in the ADAA (or the United States
Code, for that matter). While the Government’s reading is
not without its problems,8 that reading follows from the
words Congress chose to include in the text. See United
States v. Rodriquez, 553 U. S. 377, 384 (2008) (eschewing
an interpretation that was “not faithful to the statutory
text”). In short, the term “cocaine base” is more plausibly
read to mean the “chemically basic form of cocaine,” Brief
for United States 15, than it is “crack cocaine,” Brief for
——————
7 As noted earlier, §841(b)(1)(B) calls for a mandatory minimum 5
year sentence for offenses involving exactly the same substances; the
only difference in subparagraph (B) is that the threshold quantity in
clause (ii) is 500 grams, and in clause (iii) it is 5 grams. Because the
100-to-1 ratio is a feature of both §§841(b)(1)(A) and (B), and those
subparagraphs are identical in all other respects, throughout this
opinion we use the terms “clause (ii)” and “clause (iii)” to refer to those
clauses as present in either subparagraph.
8 The Government urges us to give “cocaine base” its “settled, unam
biguous scientific meaning,” i.e., “the form of cocaine classified chemi
cally as a base, with the chemical formula C17H21NO4 and a particular
molecular structure.” Brief for United States 20; cf. McDermott Int’l,
Inc. v. Wilander, 498 U. S. 337, 342 (1991) (“In the absence of contrary
indication, we assume that when a statute uses . . . a term [of art],
Congress intended it to have its established meaning”). But the scien
tifically proper appellation for C17H21NO4 is “cocaine” tout court, and
the Government cites no source that uses “cocaine base” to refer to
C17H21NO4 (save lower-court opinions construing the statute at issue
in this case). Therefore, there is no “settled meaning”—scientific or
otherwise—of “cocaine base” for us to apply to §841(b)(1).
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
Petitioner 24, 28.9
We agree with DePierre that using the term “cocaine
base” to refer to C17H21NO4 is technically redundant; as
noted earlier, chemically speaking cocaine is a base. If
Congress meant in clause (iii) to penalize more severely
offenses involving “a mixture or substance . . . which
contains” cocaine in its base form it could have simply
(and more correctly) used the word “cocaine” instead. But
Congress had good reason to use “cocaine base” in the
ADAA—to distinguish the substances covered by clause
(iii) from other cocaine-related substances. For example,
at the time Congress enacted the statute, the word “co
caine” was commonly used to refer to cocaine hydrochlo
ride, i.e., powder cocaine. See, e.g., United States v. Mon
toya de Hernandez, 473 U. S. 531, 536, 544 (1985)
(repeatedly referring to cocaine hydrochloride as “co
caine”); “Crack” Cocaine, Hearing before the Permanent
Subcommittee on Investigations of the Senate Committee
on Governmental Affairs, 99th Cong., 2d Sess., 94 (1986)
(hereinafter Crack Cocaine Hearing) (prepared statement
of David L. Westrate, Assistant Administrator, Drug
Enforcement Admin., Dept. of Justice) (discussing produc
tion of “a white, crystalline powder, cocaine hydrochloride,
otherwise known simply as cocaine”).
To make things more confusing, in the scientific and
medical literature the word “cocaine” is often used to refer
to all cocaine-related substances, including powder co
caine. See, e.g., J. Fay, The Alcohol/Drug Abuse Diction
ary and Encyclopedia 26–27 (1988); Weiss et al., Cocaine,
at 15–25; R. Lewis, Hawley’s Condensed Chemical Dic
——————
9 The statute itself gives us good reason to reject DePierre’s reading.
Substituting “crack cocaine” for “cocaine base” would mean that clause
(iii) only applies to a “mixture or substance . . . which contains [crack
cocaine].” But crack cocaine is itself a “substance” involved in drug
offenses; it is the end product that is bought, sold, and consumed. We
are aware of no substance that “contains” crack cocaine.
10 DEPIERRE v. UNITED STATES
Opinion of the Court
tionary 317 (15th ed. 2007). Accordingly, Congress’ choice
to use the admittedly redundant term “cocaine base” to
refer to chemically basic cocaine is best understood as an
effort to make clear that clause (iii) does not apply to
offenses involving powder cocaine or other nonbasic
cocaine-related substances.
B
Notwithstanding DePierre’s arguments to the contrary,
reading “cocaine base” to mean chemically basic cocaine is
also consistent with §841(b)(1)’s somewhat confounding
structure. DePierre is correct that the interpretation we
adopt today raises the question why Congress included the
word “cocaine” in subclause (II) of clause (ii). That sub
clause lists “cocaine, its salts, optical and geometric iso
mers, and salts of isomers” as elements subject to clause
(ii)’s higher quantity threshold. §§841(b)(1)(A)(ii)(II),
(B)(ii)(II) (emphasis added). If, as we conclude, the terms
“cocaine” and “cocaine base” both mean chemically basic
cocaine, offenses involving a mixture or substance which
contains such cocaine will always be penalized according
to the lower quantity thresholds of clause (iii), and never
the higher quantity thresholds clause (ii) establishes for
mixtures and substances containing “cocaine.”10
While this much is true, we do not agree with DePierre
that the word “cocaine” in subclause (II) is therefore su
perfluous. For without the word “cocaine” subclause (II)
makes no sense: It would provide a minimum sentence for
offenses involving a specified quantity of simply “its salts,
optical and geometric isomers, and salts of isomers.” In
——————
10 DePierre makes a similar argument with respect to coca leaves:
Because they contain chemically basic cocaine, he contends, under the
Government’s interpretation offenses involving coca leaves will never
be subject to the lower quantity threshold associated with subclause (I),
rendering that provision superfluous. For reasons discussed later, see
infra, at 15–16, we are not convinced.
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
light of the structure of the subclause, the word “cocaine”
is needed as the reference point for “salts” and “isomers.”
The word “cocaine” in subclause (II) also performs an
other critical function. Clause (iii) penalizes offenses
involving “a mixture or substance described in clause (ii)
which contains cocaine base.” §§841(b)(1)(A)(iii), (B)(iii)
(emphasis added). In other words, clause (ii) imposes a
penalty for offenses involving cocaine-related substances
generally, and clause (iii) imposes a higher penalty for
a subset of those substances—the ones that “contai[n]
cocaine base.” For this structure to work, however,
§841(b)(1) must “describ[e] in clause (ii)” substances con
taining chemically basic cocaine, which then comprise the
subset described in clause (iii). If such substances were
not present in clause (ii), clause (iii) would only apply to
substances that contain both chemically basic cocaine and
one of the other elements enumerated in clause (ii). Pre
sumably, the result would be that clause (iii) would not
apply to crack cocaine, freebase, or coca paste offenses, as
there is no indication that, in addition to “cocaine base”
(i.e., C17H21NO4), those substances contain cocaine “salts”
(e.g., cocaine hydrochloride), ecgonine, or any of the other
elements enumerated in clause (ii). In short, the exclusion
of “cocaine” from clause (ii) would result in clause (iii)
effectively describing a null set, which obviously was not
Congress’ intent.
Of course, this redundancy could have been avoided by
simply drafting clause (iii) to penalize offenses involving
“a mixture or substance which contains cocaine base,”
without reference to clause (ii)—that is, Congress could
have drafted clause (iii) to specify a separate set of cocaine
related substances, not a subset of those in clause (ii).
That we may rue inartful legislative drafting, however,
does not excuse us from the responsibility of construing a
12 DEPIERRE v. UNITED STATES
Opinion of the Court
statute as faithfully as possible to its actual text.11 And as
noted earlier, there is no textual support for DePierre’s
interpretation of “cocaine base” to mean “crack cocaine.”
We also recognize that our reading of “cocaine” in sub
clause (II) and “cocaine base” in clause (iii) to both refer to
chemically basic cocaine is in tension with the usual rule
that “when the legislature uses certain language in one
part of the statute and different language in another, the
court assumes different meanings were intended.” Sosa v.
Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (internal
quotation marks omitted). However, because “Congress
sometimes uses slightly different language to convey the
same message,” Deal v. United States, 508 U. S. 129, 134
(1993) (internal quotation marks omitted), we must be
careful not to place too much emphasis on the marginal
semantic divergence between the terms “cocaine” and
“cocaine base.” As we have already explained, Congress
had good reason to employ the latter term in clause (iii),
and the slight inconsistency in nomenclature is insuffi
cient reason to adopt DePierre’s interpretation. Cf. Public
Lands Council v. Babbitt, 529 U. S. 728, 746–747 (2000)
——————
11 At the time the ADAA was enacted, the definition of “narcotic drug”
in the same subchapter of the United States Code included, as relevant,
the following:
“(C) Coca leaves, except coca leaves and extracts of coca leaves from
which cocaine, ecgonine, and derivatives of ecgonine or their salts have
been removed.
“(D) Cocaine, its salts, optical and geometric isomers, and salts of
isomers.
“(E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers.
“(F) Any compound, mixture, or preparation which contains any quan
tity of any of the substances referred to in [the preceding] subpara
graphs . . . . ” 21 U. S. C. §802(17) (1982 ed., Supp. III).
Accordingly, the likely explanation for the ADAA’s curious structure is
that Congress simply adopted this preexisting enumeration of cocaine
related controlled substances, and then engrafted clause (iii) to provide
enhanced penalties for the subset of offenses involving chemically basic
cocaine.
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
(suggesting that a “statute’s basic purpose” might support
the conclusion that “two sets of different words mean the
same thing”).
III
DePierre offers four additional arguments in support of his
view that the term “cocaine base” in clause (iii) is best read
to mean “crack cocaine.” We do not find them convincing.
A
DePierre first argues that we should read “cocaine base”
to mean “crack cocaine” because, in passing the ADAA,
Congress in 1986 intended to penalize crack cocaine
offenses more severely than those involving other sub
stances containing C17H21NO4. As is evident from the pre
ceding discussion, this position is not supported by the
statutory text. To be sure, the records of the contempora
neous congressional hearings suggest that Congress was
most concerned with the particular dangers posed by the
advent of crack cocaine. See, e.g., Crack Cocaine Hearing
1 (statement of Chairman Roth) (“[We] mee[t] today to
examine a frightening and dangerous new twist in the
drug abuse problem—the growing availability and use of a
cheap, highly addictive, and deadly form of cocaine known
on the streets as ‘crack’ ”); see generally Commission Re
port 116–118; Kimbrough, 552 U. S., at 95–96.
It does not necessarily follow, however, that in passing
the ADAA Congress meant for clause (iii)’s lower quantity
thresholds to apply exclusively to crack cocaine offenses.
Numerous witnesses at the hearings testified that the
primary reason crack cocaine was so dangerous was
because—contrary to powder cocaine—cocaine in its base
form is smoked, which was understood to produce a faster,
more intense, and more addictive high than powder co
caine. See, e.g., Crack Cocaine Hearing 20 (statement of
Dr. Robert Byck, Yale University School of Medicine)
14 DEPIERRE v. UNITED STATES
Opinion of the Court
(stating that the ability to inhale vapor “is the reason why
crack, or cocaine free-base, is so dangerous”). This is not,
however, a feature unique to crack cocaine, and freebase
and coca paste were also acknowledged as dangerous,
smokeable forms of cocaine. See, e.g., id., at 70 (prepared
statement of Dr. Charles R. Schuster, Director, National
Institute on Drug Abuse) (reporting on the shift from
snorting powder cocaine to “newer more dangerous routes
of administration, such as freebase smoking”); id., at 19–
20 (statement of Dr. Byck) (describing the damaging ef
fects of cocaine smoking on people in Peru).
Moreover, the testimony of witnesses before Congress
did not clearly distinguish between these base forms of
cocaine; witnesses repeatedly used terms like “cocaine
base,” “freebase,” or “cocaine freebase” in a manner that
grouped crack cocaine with other substances containing
chemically basic forms of cocaine. See, e.g., Trafficking
and Abuse of “Crack” in New York City, House Select
Committee on Narcotics Abuse and Control, 99th Cong.,
2d Sess., 258 (1986) (statement of Robert M. Stutman,
Special Agent in Charge, Drug Enforcement Admin., Dept.
of Justice) (“[C]ocaine in its alkaloid form [is] commonly
known on the street as crack, rock, base, or freebase”);
Crack Cocaine Hearing 71 (statement of Dr. Schuster) (“In
other words, ‘crack’ is a street name for cocaine freebase”).
In fact, prior to passage of the ADAA, multiple bills were
introduced in Congress that imposed enhanced penalties
on those who trafficked in “cocaine base,” e.g., S. 2787,
99th Cong., 2d Sess., §1 (1986), as well as “cocaine free
base,” e.g., H. R. 5394, 99th Cong., 2d Sess., §101 (1986);
H. R. 5484, 99th Cong., 2d Sess., §608(a) (1986).
Given crack cocaine’s sudden emergence and the simi
larities it shared with other forms of cocaine, this lack of
clarity is understandable, as is Congress’ desire to adopt a
statutory term that would encompass all forms. Congress
faced what it perceived to be a new threat of massive
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
scope. See, e.g., Crack Cocaine Hearing 4 (statement of
Sen. Nunn) (“[C]ocaine use, particularly in the more pure
form known as crack, is at near epidemic proportions”);
id., at 21 (statement of Dr. Byck) (“We are dealing with
a worse drug . . . than we have ever dealt with, or that
anybody has ever dealt with in history”). Accordingly, Con
gress chose statutory language broad enough to meet
that threat. As we have noted, “statutory prohibitions
often go beyond the principal evil to cover reasonably
comparable evils.” Oncale v. Sundowner Offshore Ser
vices, Inc., 523 U. S. 75, 79 (1998). In the absence of any
indication in the statutory text that Congress intended
only to subject crack cocaine offenses to enhanced penal
ties, we cannot adopt DePierre’s narrow construction. See
Lewis v. Chicago, 560 U. S. ___, ___ (2010) (slip op., at 9)
(“It is not for us to rewrite [a] statute so that it covers only
what we think is necessary to achieve what we think
Congress really intended”).
B
DePierre also argues that we should read the term “co
caine base” to mean “crack cocaine,” rather than chemi
cally basic cocaine, because the latter definition leads to
an absurd result. Cf. EEOC v. Commercial Office Prod
ucts Co., 486 U. S. 107, 120 (1988) (plurality opinion). He
contends that, because coca leaves themselves contain
cocaine, under the Government’s approach an offense
involving 5 grams of coca leaves will be subject to the 5
year minimum sentence in §841(b)(1)(B)(iii), even though
those leaves would produce only .05 grams of smokeable
cocaine. See Brief for Petitioner 41–42. While we agree that
it would be questionable to treat 5 grams of coca leaves as
equivalent to 500 grams of powder cocaine for minimum
sentence purposes, we are not persuaded that such a
result would actually obtain in light of our decision today.
To begin with, it is a matter of dispute between the
16 DEPIERRE v. UNITED STATES
Opinion of the Court
parties whether coca leaves in their natural, unprocessed
form actually contain chemically basic cocaine. Compare
Brief for Petitioner 15, 17, n. 10, with Brief for United
States 43. Even assuming that DePierre is correct as a
matter of chemistry that coca leaves contain cocaine in its
base form,12 see Physicians Brief 2, 11, the Government
has averred that it “would not be able to make that show
ing in court,” Tr. of Oral Arg. 27, and that “coca leaves
should not be treated as containing ‘cocaine base’ for
purposes of Clause (iii),” Brief for United States 45.
It is unsurprising, therefore, that the Government in its
brief disclaimed awareness of any prosecution in which
it had sought, or the defendant had received, a statutory
minimum sentence enhanced under clause (iii) for an of
fense involving coca leaves. Id., at 44. And although
this question is not before us today, we note that Congress’
deliberate choice to enumerate “coca leaves” in clause (ii)
strongly indicates its intent that offenses involving such
leaves be subject to the higher quantity thresholds of that
clause. Accordingly, there is little danger that the statute
will be read in the “absurd” manner DePierre fears.
C
In addition, DePierre suggests that because the Sen
tencing Commission has, since 1993, defined “cocaine
base” to mean “crack” for the purposes of the Federal
Sentencing Guidelines, we should do the same with re
spect to §841(b)(1). We do not agree. We have never held
that, when interpreting a term in a criminal statute,
deference is warranted to the Sentencing Commission’s
definition of the same term in the Guidelines. Cf. Neal v.
United States, 516 U. S. 284, 290–296 (1996). And we
——————
12 It appears that Congress itself is of the view that coca leaves con
tain “cocaine,” as subclause (I) exempts offenses involving “coca leaves
from which cocaine . . . ha[s] been removed.” §§841(b)(1)(A)(ii)(I),
(B)(ii)(I).
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
need not decide now whether such deference would be
appropriate, because the Guidelines do not purport to
interpret §841(b)(1). See USSG §2D1.1(c), n. (D) (“ ‘Co
caine base,’ for the purposes of this guideline, means
‘crack’ ” (emphasis added)).13
We recognize that, because the definition of “cocaine
base” in clause (iii) differs from the Guidelines definition,
certain sentencing anomalies may result. For example, an
offense involving 5 grams of crack cocaine and one involv
ing 5 grams of coca paste both trigger a minimum 5
year sentence under §841(b)(1)(B)(iii). But defendants
convicted of offenses involving only 4 grams of each sub
stance—which do not trigger the statutory minimums—
would likely receive different sentences, because of the
Guidelines’ differential treatment of those substances with
respect to offense level.14 Compare USSG §2D1.1(c)(9)
(providing an offense level of 22 for at least 4 grams of
“cocaine base,” i.e., “crack”) with §2D1.1(c)(14) (providing
an offense level of 12 for less than 25 grams of “cocaine,”
which, under the Guidelines, includes coca paste). As we
have noted in previous opinions, however, such disparities
are the inevitable result of the dissimilar operation of the
fixed minimum sentences Congress has provided by stat-
——————
13 We also disagree with DePierre’s contention that Congress’ failure
to reject the Guidelines definition of “cocaine base” means that it has
effectively adopted that interpretation with respect to the statute. See
Kimbrough v. United States, 552 U. S. 85, 106 (2007) (“Ordinarily, we
resist reading congressional intent into congressional inaction”).
14 In defining “cocaine base” as “crack,” the Commission explained
that “forms of cocaine base other than crack” are treated as “cocaine”
for purposes of the Guidelines. USSG App. C, Amdt. 487 (effective Nov.
1, 1993). This includes coca paste, which the Commission described as
“an intermediate step in the processing of coca leaves into cocaine
hydrochloride.” Ibid. As we have explained, however, coca paste is a
smokeable form of cocaine in its own right, and we see no reason why,
as a statutory matter, it should be subject to lesser penalties than crack
or freebase.
18 DEPIERRE v. UNITED STATES
Opinion of the Court
ute and the graduated sentencing scheme established
by the Guidelines. See Kimbrough, 552 U. S., at 107–108;
Neal, 516 U. S., at 291–292. Accordingly, we reject De-
Pierre’s suggestion that the term “cocaine base” as used in
clause (iii) must be given the same definition as it has
under the Guidelines.
D
Finally, DePierre argues that, because §841(b)(1) is at
the very least ambiguous, the rule of lenity requires us to
interpret the statute in his favor. See United States v.
Santos, 553 U. S. 507, 514 (2008) (“The rule of lenity
requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them”). As evinced by
the preceding discussion, we cannot say that the statute is
crystalline. The rule, however, is reserved for cases
where, “after seizing everything from which aid can be
derived, the Court is left with an ambiguous statute.”
Smith v. United States, 508 U. S. 223, 239 (1993) (internal
quotation marks and alterations omitted). Applying the
normal rules of statutory construction in this case, it is
clear that Congress used the term “cocaine base” in clause
(iii) to penalize more severely not only offenses involving
“crack cocaine,” but those involving substances containing
chemically basic cocaine more generally. There is no per
suasive justification for reading the statute otherwise.
Because the statutory text allows us to make far more
than “a guess as to what Congress intended,” Reno v.
Koray, 515 U. S. 50, 65 (1995) (internal quotation marks
omitted), the rule of lenity does not apply in DePierre’s
favor.
* * *
We hold that the term “cocaine base” as used in
§841(b)(1) means not just “crack cocaine,” but cocaine in
its chemically basic form. We therefore affirm the judg
ment of the Court of Appeals.
It is so ordered.
Cite as: 564 U. S. ____ (2011) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1533
_________________
FRANTZ DEPIERRE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 9, 2011]
JUSTICE SCALIA, concurring in part and concurring in
the judgment.
I concur in the Court’s judgment and in all of its opinion
except for Part III–A, which needlessly contradicts De-
Pierre’s version of legislative history. Our holding today
is that the statutory term “cocaine base” refers to cocaine
base, rather than, as DePierre contends, one particular
type of cocaine base. This holding is in my view obvious,
and the Court does not disagree. It begins its discussion of
the legislative history by saying that DePierre’s position
“is not supported by the statutory text,” ante, at 13; and
ends the discussion by saying that “[i]n the absence of any
indication in the statutory text that Congress intended
only to subject crack cocaine offenses to enhanced penal
ties, we cannot adopt DePierre’s narrow construction,”
ante, at 15.
Everything in-between could and should have been
omitted. Even if Dr. Byck had not lectured an unde-
termined number of likely somnolent Congressmen on “the
damaging effects of cocaine smoking on people in Peru,”
ante, at 14, we would still hold that the words “cocaine
base” mean cocaine base. And here, as always, the need
less detour into legislative history is not harmless. It con
veys the mistaken impression that legislative history
could modify the text of a criminal statute as clear as this.
2 DEPIERRE v. UNITED STATES
Opinion of SCALIA, J.
In fact, however, even a hypothetical House Report ex
pressing the Committee’s misunderstanding (or perhaps
just the Committee staff’s misunderstanding, who knows?)
that “cocaine base means crack cocaine” could not have
changed the outcome of today’s opinion.