ABUELHAWA v. UNITED STATES

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816 OCTOBER TERM, 2008
Syllabus
ABUELHAWA v. UNITED STATES
certiorari to the united states court of appeals for
the fourth circuit
No. 08–192. Argued March 4, 2009—Decided May 26, 2009
A wiretap of Mohammed Said’s telephone recorded six calls in which peti
tioner Abuelhawa arranged to buy cocaine from Said in two separate
1-gram transactions. Those two purchases were misdemeanors under
the Controlled Substances Act (CSA), 21 U. S. C. § 844, while Said’s two
sales were felonies, §§ 841(a)(1) and (b). The Government charged Ab
uelhawa with six felonies on the theory that each of the phone calls,
some placed by him, some by Said, violated § 843(b), which makes it
a felony “to use any communication facility in . . . facilitating” felony
distribution and other drug crimes. The District Court denied Abuel
hawa’s acquittal motion, in which he argued that his efforts to make
misdemeanor purchases could not be treated as facilitating Said’s felon
ies. The jury convicted Abuelhawa on all six felony counts. The
Fourth Circuit affirmed, reasoning that “facilitat[e]” should be given its
ordinary meaning in § 843(b) and that Abuelhawa’s use of a phone to buy
cocaine counted as ordinary facilitation because it made Said’s distribu
tion of the drug easier.
Held: Using a telephone to make a misdemeanor drug purchase does not
“facilitat[e]” felony drug distribution in violation of § 843(b). Stopping
with the plain meaning of “facilitate” here would ignore the rule that
because statutes are not read as a collection of isolated phrases, “[a]
word in a statute may or may not extend to the outer limits of its defini
tional possibilities.” Dolan v. Postal Service, 546 U. S. 481, 486. Here
it does not. The literal sweep of “facilitat[e]” sits uncomfortably with
common usage: Where a transaction like a sale necessarily presupposes
two parties with specific roles, it would be odd to speak of one party as
facilitating the other’s conduct. The common usage has its parallel in
cases holding that where a statute treats one side of a bilateral transac
tion more leniently, adding to the penalty of the party on that side for
facilitating the action by the other would upend the legislature’s punish
ment calibration. In Gebardi v. United States, 287 U. S. 112, 119, for
example, the Court held that a woman who voluntarily crossed a state
line with a man to have sex could not be tagged with the Mann Act
violation for “aid[ing] or assist[ing]” interstate transportation for im
moral purposes because the statutory penalties were “clearly directed
against the acts of the transporter as distinguished from the consent of

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817 Cite as: 556 U. S. 816 (2009)
Syllabus
the subject of the transportation.” Such cases have a bearing here in
two ways. First, given the presumption, see, e. g., Williams v. Taylor,
529 U. S. 362, 380–381, and n. 12, that the Congress that enacted § 843(b)
was familiar with the traditional judicial limitation on applying terms
like “aid,” “abet,” and “assist,” it is likely the Legislature had a compa
rable scope in mind when it used “facilitate,” a word with equivalent
meaning. Second, any broader reading would for practical purposes
substantially skew the congressional calibration of respective buyer
seller penalties. Moreover, the statute’s history—which shows that in
1970 the CSA downgraded simple possession from a felony to a misde
meanor, § 844(a), and simultaneously limited the communications provi
sion’s prohibition of facilitating a drug “offense” to facilitating a “fel
ony,” § 843(b)—drives home what is clear from the statutory text:
Congress meant to treat purchasing drugs for personal use more le
niently than felony distribution, and to narrow the scope of the commu
nications provision to cover only those who facilitate a felony. Yet,
under the Government’s reading of § 843(b), in a substantial number of
cases Congress would for all practical purposes simultaneously have
graded back up to felony status with the left hand the same offense,
simple drug possession, it had dropped to a misdemeanor with the right.
Given that Congress used no language spelling out a purpose so improb
able, but legislated against a background usage of terms such as “aid,”
“abet,” and “assist” that points in the opposite direction and accords
with the CSA’s choice to classify small purchases as misdemeanors, the
Government’s position is just too unlikely. Pp. 819–824.
523 F. 3d 415, reversed and remanded.
Souter, J., delivered the opinion for a unanimous Court.
Sri Srinivasan argued the cause for petitioner. With him
on the briefs were Irving L. Gornstein, Ryan W. Scott, and
Timothy J. McEvoy.
Eric D. Miller argued the cause for the United States.
With him on the brief were then-Acting Solicitor General
Kneedler, Acting Assistant Attorney General Glavin, Dep
uty Solicitor General Dreeben, and Richard A. Friedman.*
*Briefs of amici curiae urging reversal were filed for the Center on
the Administration of Criminal Law by James P. Rouhandeh, Daniel F.
Schubert, Anthony S. Barkow, and Rachel E. Barkow; and for the Na
tional Association of Criminal Defense Lawyers by Jeffrey A. Lamken
and Jeffrey Green.

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818 ABUELHAWA v. UNITED STATES
Opinion of the Court
Justice Souter delivered the opinion of the Court.
The Controlled Substances Act (CSA) makes it a felony “to
use any communication facility in committing or in causing
or facilitating” certain felonies prohibited by the statute.
84 Stat. 1263, 21 U. S. C. § 843(b). The question here is
whether someone violates § 843(b) in making a misdemeanor
drug purchase because his phone call to the dealer can be
said to facilitate the felony of drug distribution. The an
swer is no.
I
Federal Bureau of Investigation agents believed Moham
med Said was selling cocaine and got a warrant to tap his
cell phone. In the course of listening in, they recorded six
calls between Said and petitioner Salman Khade Abuelhawa,
during which Abuelhawa arranged to buy cocaine from Said
in two separate transactions, each time a single gram. Ab
uelhawa’s two purchases were misdemeanors, § 844, while
Said’s two sales were felonies, §§ 841(a)(1) and (b). The Gov
ernment nonetheless charged Abuelhawa with six felonies on
the theory that each of the phone calls, whether placed by
Abuelhawa or by Said, had been made “in causing or facili
tating” Said’s felonies, in violation of § 843(b).1 Abuelhawa
moved for acquittal as a matter of law, arguing that his ef
forts to commit the misdemeanors of buying cocaine could
1 In full, § 843(b) provides:
“It shall be unlawful for any person knowingly or intentionally to use
any communication facility in committing or in causing or facilitating the
commission of any act or acts constituting a felony under any provision of
this subchapter or subchapter II of this chapter. Each separate use of a
communication facility shall be a separate offense under this subsection.
For purposes of this subsection, the term ‘communication facility’ means
any and all public and private instrumentalities used or useful in the trans
mission of writing, signs, signals, pictures, or sounds of all kinds and in
cludes mail, telephone, wire, radio, and all other means of communication.”
Section 843(d) provides, subject to exceptions not at issue here, that
“any person who violates this section shall be sentenced to a term of im
prisonment of not more than 4 years, a fine . . . , or both.”

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Opinion of the Court
not be treated as causing or facilitating Said’s felonies, but
the District Court denied his motion, App. to Pet. for Cert.
20a–25a, and the jury convicted him on all six felony counts.
Abuelhawa argued the same point to the Court of Appeals
for the Fourth Circuit, with as much success. The Circuit
reasoned that “for purposes of § 843(b), ‘facilitate’ should be
given its ‘common meaning—to make easier or less difficult,
or to assist or aid.’ ” 523 F. 3d 415, 420 (2008) (quoting
United States v. Lozano, 839 F. 2d 1020, 1023 (CA4 1988)).
The court said Abuelhawa’s use of a phone to buy cocaine
counted as ordinary facilitation because it “undoubtedly
made Said’s cocaine distribution easier; in fact, ‘it made the
sale possible.’ ” 523 F. 3d, at 421 (quoting United States v.
Binkley, 903 F. 2d 1130, 1136 (CA7 1990); emphasis deleted).
We granted certiorari, 555 U. S. 1028 (2008), to resolve a split
among the Courts of Appeals on the scope of § 843(b),2 and
we now reverse.
II
The Government’s argument is a reprise of the Fourth Cir
cuit’s opinion, that Abuelhawa’s use of his cell phone satisfies
the plain meaning of “facilitate” because it “allow[ed] the
transaction to take place more efficiently, and with less risk
of detection, than if the purchaser and seller had to meet in
person.” Brief for United States 10. And of course on the
literal plane, the phone calls could be described as “facilitat
ing” drug distribution; they “undoubtedly made . . . distribu
tion easier.” 523 F. 3d, at 421. But stopping there would
ignore the rule that, because statutes are not read as a col
lection of isolated phrases, see United States Nat. Bank of
2 Compare, e. g., United States v. Binkley, 903 F. 2d 1130, 1135–1136
(CA7 1990) (buyer’s use of phone in purchasing drugs facilitates seller’s
drug distribution), with United States v. Baggett, 890 F. 2d 1095, 1097–1098
(CA10 1989) (buyer’s use of phone in purchasing drugs does not facilitate
seller’s drug distribution); United States v. Martin, 599 F. 2d 880, 888–889
(CA9 1979) (same), overruled on other grounds, United States v. De
Bright, 730 F. 2d 1255 (CA9 1984).

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820 ABUELHAWA v. UNITED STATES
Opinion of the Court
Ore. v. Independent Ins. Agents of America, Inc., 508 U. S.
439, 455 (1993), “[a] word in a statute may or may not extend
to the outer limits of its definitional possibilities,” Dolan v.
Postal Service, 546 U. S. 481, 486 (2006). We think the word
here does not.
To begin with, the Government’s literal sweep of “facili
tate” sits uncomfortably with common usage. Where a
transaction like a sale necessarily presupposes two parties
with specific roles, it would be odd to speak of one party as
facilitating the conduct of the other. A buyer does not just
make a sale easier; he makes the sale possible. No buyer,
no sale; the buyer’s part is already implied by the term
“sale,” and the word “facilitate” adds nothing. We would
not say that the borrower facilitates the bank loan.
The Government, however, replies that using the instru
ment of communication under § 843(b) is different from bor
rowing the money or merely handing over the sale price for
cocaine. Drugs can be sold without anyone’s mailing a letter
or using a cell phone. Because cell phones, say, really do
make it easier for dealers to break the law, Congress prob
ably meant to ratchet up the culpability of the buyer who
calls ahead. But we think that argument comes up short
against several more reasons that count against the Govern
ment’s position.
The common usage that limits “facilitate” to the efforts
of someone other than a primary or necessary actor in the
commission of a substantive crime has its parallel in the de
cided cases. The traditional law is that where a statute
treats one side of a bilateral transaction more leniently, add
ing to the penalty of the party on that side for facilitating
the action by the other would upend the calibration of pun
ishment set by the legislature, a line of reasoning exemplified
in the courts’ consistent refusal to treat noncriminal liquor
purchases as falling under the prohibition against aiding or
abetting the illegal sale of alcohol. See Lott v. United
States, 205 F. 28, 29–31 (CA9 1913) (collecting cases). And

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this Court followed the same course in rejecting the broadest
possible reading of a similar provision in Gebardi v. United
States, 287 U. S. 112 (1932). The question there was
whether a woman who voluntarily crossed a state line with
a man to engage in “illicit sexual relations” could be tagged
with “aid[ing] or assist[ing] in . . . transporting, in interstate
or foreign commerce . . . any woman or girl for the purpose
of prostitution or of debauchery, or for any other immoral
purpose” in violation of the Mann Act, ch. 395, 36 Stat. 825.
Gebardi, 287 U. S., at 116–118 (internal quotation marks
omitted). Since the statutory penalties were “clearly di
rected against the acts of the transporter as distinguished
from the consent of the subject of the transportation,” we
refused to “infer that the mere acquiescence of the woman
transported was intended to be condemned by the general
language punishing those who aid and assist the transporter,
any more than it has been inferred that the purchaser of
liquor was to be regarded as an abettor of the illegal sale.”
Id., at 119 (footnote omitted).
These cases do not strictly control the outcome of this one,
but we think they have a bearing here, in two ways. As we
have said many times, we presume legislatures act with case
law in mind, e. g., Williams v. Taylor, 529 U. S. 362, 380–381,
and n. 12 (2000), and we presume here that when Congress
enacted § 843(b), it was familiar with the traditional judicial
limitation on applying terms like “aid,” “abet,” and “assist.”
We thus think it likely that Congress had comparable scope
in mind when it used the term “facilitate,” a word with
equivalent meaning, compare Black’s Law Dictionary 76 (8th
ed. 2004) (defining “aid and abet” as to “facilitate the commis
sion of a crime”) with id., at 627 (defining “facilitation” as
“[t]he act or an instance of aiding or helping; . . . the act of
making it easier for another person to commit a crime”).
And applying the presumption is supported significantly
by the fact that here, as in the earlier cases, any broader
reading of “facilitate” would for practical purposes skew the

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Opinion of the Court
congressional calibration of respective buyer-seller penalties.
When the statute was enacted, the use of land lines in drug
transactions was common, and in these days when everyone
over the age of three seems to carry a cell phone, the Gov
ernment’s interpretation would skew the calibration of pen
alties very substantially. The respect owed to that penalty
calibration cannot be minimized. Prior to 1970, Congress
punished the receipt, concealment, purchase, or sale of any
narcotic drug as a felony, see 21 U. S. C. § 174 (1964 ed.) (re
pealed), and on top of that added a minimum of two years,
and up to five, for using a communication facility in commit
ting, causing, or facilitating, any drug “offense,” 18 U. S. C.
§ 1403 (1964 ed.). In 1970, however, the CSA, 84 Stat. 1242,
21 U. S. C. § 801 et seq., downgraded simple possession of a
controlled substance to a misdemeanor, 21 U. S. C. § 844(a)
(2006 ed.), and simultaneously limited the communications
provision to prohibiting only the facilitation of a drug “fel
ony,” § 843(b). This history drives home what is already
clear in the current statutory text: Congress meant to treat
purchasing drugs for personal use more leniently than the
felony of distributing drugs, and to narrow the scope of the
communications provision to cover only those who facilitate
a drug felony. Yet, under the Government’s reading of
§ 843(b), in a substantial number of cases Congress would for
all practical purposes simultaneously have graded back up to
felony status with the left hand the same offense it had
dropped to a misdemeanor with the right. As the Govern
ment sees it, Abuelhawa’s use of a phone in making two small
drug purchases would subject him, in fact, to six felony
counts and a potential sentence of 24 years in prison, even
though buying the same drugs minus the phone would have
supported only two misdemeanor counts and 2 years of
prison. Given the CSA’s distinction between simple posses
sion and distribution, and the background history of these
offenses, it is impossible to believe that Congress intended

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“facilitating” to cause that 12-fold quantum leap in punish
ment for simple drug possessors.3
The Government suggests that this background usage and
the 1970 choice to reduce culpability for possession is beside
the point because Congress sometimes incorporates aggra
vating factors into the Criminal Code, and the phone use
here is just one of them; the Government mentions posses
sion by a prior drug offender, a felony punishable by up to
two years’ imprisonment. And, for perspective, the Govern
ment points to unauthorized possession of flunitrazepam, a
drug used to incapacitate rape victims, which is punishable
by imprisonment up to three years. Brief for United States
20. It would not be strange, the Government says, for Con
gress to “decid[e] to treat the use of a communication fa
cility in a drug transaction as a significant act warranting
additional punishment” because “[t]oday’s communication
facilities . . . make illicit drug transactions easier and more
efficient . . . [and] greatly reduce the risk that the partici
pants will be detected while negotiating a transaction.” Id.,
at 23–24.
We are skeptical. There is no question that Congress in
tended § 843(b) to impede illicit drug transactions by penaliz
ing the use of communication devices in coordinating illegal
drug operations, and no doubt that its purpose will be served
3 The Government’s suggestion that a result like this is not anomalous
because a prosecutor could exercise his discretion to seek a lower sentence,
see Tr. of Oral Arg. 41, simply begs the question. Of course, Congress
legislates against a background assumption of prosecutorial discretion, but
this tells us nothing about the boundaries of punishment within which
Congress intended the discretion to be exercised; prosecutorial discretion
is not a reason for courts to give improbable breadth to criminal statutes.
And it ill behooves the Government to invoke discretionary power in this
case, with the prosecutor seeking a sentencing potential of 24 years when
the primary offense is the purchase of two grams of cocaine. For that
matter, see id., at 41–43 (concession by Government that current Depart
ment of Justice guidelines require individual prosecutors who bring
charges to charge the maximum crime supported by the facts in a case).

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regardless of the outcome in this case. But it does not fol
low that Congress also meant a first-time buyer’s phone calls
to get two small quantities of drugs for personal use to ex
pose him to punishment 12 times more severe than a pur
chase by a recidivist offender and 8 times more severe than
the unauthorized possession of a drug used by rapists.4 To
the contrary, Congress used no language spelling out a pur
pose so improbable, but legislated against a background
usage of terms such as “aid,” “abet,” and “assist” that points
in the opposite direction and accords with the CSA’s choice
to classify small purchases as misdemeanors. The Govern
ment’s position is just too unlikely.5
III
The judgment of the Court of Appeals for the Fourth Cir
cuit is reversed, and the case is remanded for further pro
ceedings consistent with this opinion.
It is so ordered.
4 The Government does nothing for its own cause by noting that 21
U. S. C. § 856 makes it a felony to facilitate “the simple possession of drugs
by others by making available for use . . . a place for the purpose of unlaw
fully using a controlled substance” even though the crime facilitated may
be a mere misdemeanor. Brief for United States 21 (internal quotation
marks and alterations omitted). This shows that Congress knew how to
be clear in punishing the facilitation of a misdemeanor as a felony, and it
only highlights Congress’s decision to limit § 843(b) to the facilitation of
a “felony.”
5 The Government asks us to affirm the Fourth Circuit on an alternative
ground: that Abuelhawa used a communication facility “in causing” Said’s
drug felony rather than “in . . . facilitating” the felony. But the Govern
ment’s argument on this point takes the same form as its argument about
the term “facilitate,” and the reasons that lead us to reject the one argu
ment apply just as well to the other.