LOPEZ v. GONZALES, ATTORNEY GENERAL

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47 OCTOBER TERM, 2006
Syllabus
LOPEZ v. GONZALES, ATTORNEY GENERAL
certiorari to the united states court of appeals for
the eighth circuit
No. 05–547. Argued October 3, 2006—Decided December 5, 2006
The Immigration and Nationality Act (INA) lists as an “aggravated fel
ony” “illicit trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of title 18),” 8 U. S. C.
§ 1101(a)(43)(B), but does not define “illicit trafficking.” Title 18 U. S. C.
§ 924(c)(2) defines “drug trafficking crime” to include “any felony punish
able under the Controlled Substances Act” (CSA). Petitioner Lopez, a
legal permanent resident alien, pleaded guilty to South Dakota charges
of aiding and abetting another person’s possession of cocaine, which
state law treated as the equivalent of possessing the drug, a state felony.
The Immigration and Naturalization Service began removal proceedings
on the ground, inter alia, that Lopez’s state conviction was for an aggra
vated felony. The Immigration Judge ultimately ruled that despite the
CSA’s treatment of Lopez’s crime as a misdemeanor, see 21 U. S. C.
§ 844(a), it was an aggravated felony under the INA owing to its being
a felony under state law. The judge ordered Lopez removed in light
of 8 U. S. C. § 1229b(a)(3), which provides that the Attorney General’s
discretion to cancel the removal of a person otherwise deportable does
not reach a convict of an aggravated felony. The Board of Immigration
Appeals (BIA) affirmed, and the Eighth Circuit affirmed the BIA.
Held: Conduct made a felony under state law but a misdemeanor under
the CSA is not a “felony punishable under the Controlled Substances
Act” for INA purposes. A state offense comes within the quoted
phrase only if it proscribes conduct punishable as a felony under the
CSA. The Government argues that possession’s felonious character as
a state crime is enough to turn it into an aggravated felony under the
INA because the CSA punishes possession, albeit as a misdemeanor,
while § 924(c)(2) requires only that the offense be punishable, not that it
be punishable as a federal felony, so that a prior conviction in state court
will satisfy the felony element because the State treats possession that
way. This argument is incoherent with any commonsense conception
of “illicit trafficking,” the term ultimately being defined. Because the
statutes in play do not define “trafficking,” the Court looks to the term’s
everyday meaning, FDIC v. Meyer, 510 U. S. 471, 476, which ordinarily
connotes some sort of commercial dealing. Commerce, however, was
no part of Lopez’s South Dakota offense of helping someone else to pos

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48 LOPEZ v. GONZALES
Syllabus
sess, and certainly it is no element of simple possession, with which
the State equates that crime. Nor is the anomaly of the Government’s
reading limited to South Dakota cases: while federal law typically treats
trafficking offenses as felonies and nontrafficking offenses as misde
meanors, several States deviate significantly from this pattern. Read
ing § 924(c) the Government’s way, then, would often turn simple posses
sion into trafficking, just what the English language counsels not to
expect, and that result makes the Court very wary of the Government’s
position. Although the Government might still be right, there would
have to be some indication that Congress meant to define an aggravated
felony of illicit trafficking in an unorthodox and unexpected way. There
are good reasons to think it was doing no such thing here. First, an
offense that necessarily counts as “illicit trafficking” under the INA is
a “drug trafficking crime” under § 924(c), i. e., a “felony punishable under
the Controlled Substances Act,” § 924(c)(2). To determine what felonies
might qualify, the Court naturally looks to the definitions of crimes pun
ishable as felonies under the CSA. If Congress had meant the Court
to look to state law, it would have found a much less misleading way to
make its point. The Government’s argument to the contrary contra
venes normal ways of speaking and writing, which demonstrate that
“felony punishable under the . . . Act” means “felony punishable as such
under the Act” or “felony as defined by the Act,” and does not refer to
state felonies, so long as they would be punishable at all under the CSA.
The Government’s argument is not supported by the INA’s statement
that the term “aggravated felony” “applies to an offense described in
this paragraph whether in violation of Federal or State law.” 8 U. S. C.
§ 1101(a)(43). Rather than wrenching the expectations raised by nor
mal English usage, this provision has two perfectly straightforward jobs
to do. First, it provides that a generic description of “an offense . . . in
this paragraph,” one not specifically couched as a state offense or a fed
eral one, covers either one, and, second, it confirms that a state offense
whose elements include the elements of a felony punishable under the
CSA is an aggravated felony. Thus, if Lopez’s state crime actually fell
within the general term “illicit trafficking,” the state felony conviction
would count as an “aggravated felony,” regardless of the existence of a
federal felony counterpart; and a state offense of possessing more than
five grams of cocaine base is an aggravated felony because it is a felony
under the CSA, 21 U. S. C. § 844(a). Nothing in the provision in ques
tion suggests that Congress changed the meaning of “felony punishable
under the [CSA]” when it took that phrase from Title 18 of the U. S.
Code and incorporated it into Title 8’s definition of “aggravated felony.”
Yet the Government admits that it has never begun a prosecution under
18 U. S. C. § 924(c)(1)(A) where the underlying “drug trafficking crime”

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49 Cite as: 549 U. S. 47 (2006)
Syllabus
was a state felony but a federal misdemeanor. This telling failure in
the very context in which the phrase “felony punishable under the
[CSA]” appears in the Code belies the Government’s claim that its inter
pretation is the more natural one. Finally, the Government’s reading
would render the law of alien removal, see 8 U. S. C. § 1229b(a)(3), and
the law of sentencing for illegal entry into the country, see United States
Sentencing Commission, Guidelines Manual § 2L1.2, dependent on vary
ing state criminal classifications even when Congress has apparently
pegged the immigration statutes to the classifications Congress itself
chose. Congress would not have incorporated its own statutory scheme
of felonies and misdemeanors if it meant courts to ignore it whenever a
State chose to punish a given act more heavily. Pp. 52–60.
417 F. 3d 934, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ.,
joined. Thomas, J., filed a dissenting opinion, post, p. 60.
Robert A. Long, Jr., argued the cause for petitioner. With
him on the briefs was Theodore P. Metzler.
Deputy Solicitor General Kneedler argued the cause for
respondent. With him on the brief were Solicitor General
Clement, Assistant Attorneys General Keisler and Fisher,
Deputy Solicitor General Dreeben, Patricia A. Millett, and
Donald E. Keener.*
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by Michael S. Greco and David W. DeBruin; for the Asian
American Justice Center et al. by Jayashri Srikantiah; for the Center for
Court Innovation et al. by Nancy Morawetz; for Former General Counsels
of the Immigration and Naturalization Service by Neal Mollen; for Human
Rights First by Linda T. Coberly and Gene C. Schaerr; and for the
NYSDA Immigrant Defense Project et al. by Christopher J. Meade, Ste
ven R. Shapiro, Lucas Guttentag, Marianne C. Yang, and Manuel D.
Vargas.
Briefs of amici curiae urging affirmance were filed for the State of
Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz,
Solicitor General, Kent C. Sullivan, First Assistant Attorney General,
Don Clemmer, Deputy Attorney General, and Amy Warr, Assistant Solici
tor General, and by the Attorneys General for their respective States as
follows: Mike Beebe of Arkansas, John W. Suthers of Colorado, Carl C.
Danberg of Delaware, Lawrence Wasden of Idaho, Phill Kline of Kansas,

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50 LOPEZ v. GONZALES
Opinion of the Court
Justice Souter delivered the opinion of the Court.
The question raised is whether conduct made a felony
under state law but a misdemeanor under the Controlled
Substances Act is a “felony punishable under the Controlled
Substances Act.” 18 U. S. C. § 924(c)(2). We hold it is not.
I
A
The Immigration and Nationality Act (INA) defines the
term “aggravated felony” by a list that mentions “illicit
trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of title 18).”
§ 101(a)(43)(B), as added by § 7342, 102 Stat. 4469, and
as amended by § 222(a), 108 Stat. 4320, 8 U. S. C.
§ 1101(a)(43)(B). The general phrase “illicit trafficking” is
left undefined, but § 924(c)(2) of Title 18 identifies the subcat
egory by defining “drug trafficking crime” as “any felony
punishable under the Controlled Substances Act” or under
either of two other federal statutes having no bearing on this
case. Following the listing, § 101(a)(43) of the INA provides
in its penultimate sentence that “[t]he term [aggravated
felony] applies to an offense described in this paragraph
whether in violation of Federal or State law” or, in certain
circumstances, “the law of a foreign country.” 8 U. S. C.
§ 1101(a)(43).
An aggravated felony on a criminal record has worse col
lateral effects than a felony conviction simple. Under the
immigration statutes, for example, the Attorney General’s
discretion to cancel the removal of a person otherwise de
portable does not reach a convict of an aggravated felony.
§ 1229b(a)(3). Nor is an aggravated felon eligible for asylum.
Kelly A. Ayotte of New Hampshire, Thomas W. Corbett, Jr., of Pennsylva
nia, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia; and
for the Washington Legal Foundation et al. by Daniel J. Popeo and Rich
ard A. Samp.

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§§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentenc
ing law, the Federal Guidelines attach special significance to
the “aggravated felony” designation: a conviction of unlaw
fully entering or remaining in the United States receives an
eight-level increase for a prior aggravated felony conviction,
but only four levels for “any other felony.” United States
Sentencing Commission, Guidelines Manual § 2L1.2 (Nov.
2005) (hereinafter USSG); id., comment., n. 3 (adopting INA
definition of aggravated felony).
B
Although petitioner Jose Antonio Lopez entered the
United States illegally in 1986, in 1990 he became a legal
permanent resident. In 1997, he was arrested on state
charges in South Dakota, pleaded guilty to aiding and abet
ting another person’s possession of cocaine, and was sen
tenced to five years’ imprisonment. See S. D. Codified Laws
§ 22–42–5 (1988); § 22–6–1 (Supp. 1997); § 22–3–3 (1988). He
was released for good conduct after 15 months.
After his release, the Immigration and Naturalization
Service (INS) 1 began removal proceedings against Lopez,
on two grounds: that his state conviction was a controlled
substance violation, see 8 U. S. C. § 1227(a)(2)(B)(i), and was
also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez
conceded the controlled substance violation but contested
the aggravated felony determination, which would disqual
ify him from discretionary cancellation of removal. See
§ 1229b(a)(3). At first, the Immigration Judge agreed with
Lopez that his state offense was not an aggravated felony
because the conduct it proscribed was no felony under the
Controlled Substances Act (CSA). But after the Board of
Immigration Appeals (BIA) switched its position on the
issue, the same judge ruled that Lopez’s drug crime was an
1 The INS’s immigration-enforcement functions are now handled by the
Bureau of Immigration and Customs Enforcement in the Department of
Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374, n. 1 (2005).

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52 LOPEZ v. GONZALES
Opinion of the Court
aggravated felony after all, owing to its being a felony under
state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390
(2002) (announcing that BIA decisions would conform to the
applicable Circuit law); United States v. Briones-Mata, 116
F. 3d 308 (CA8 1997) (per curiam) (holding state felony pos
session offenses are aggravated felonies). That left Lopez
ineligible for cancellation of removal, and the judge ordered
him removed. The BIA affirmed, and the Court of Appeals
affirmed the BIA, 417 F. 3d 934 (CA8 2005).2
We granted certiorari to resolve a conflict in the Circuits
about the proper understanding of conduct treated as a fel
ony by the State that convicted a defendant of committing
it, but as a misdemeanor under the CSA.3 547 U. S. 1054
(2006). We now reverse.
II
The INA makes Lopez guilty of an aggravated felony if
he has been convicted of “illicit trafficking in a controlled
2 Although the Government has deported Lopez, we agree with the par
ties that the case is not moot. Lopez can benefit from relief in this Court
by pursuing his application for cancellation of removal, which the Immi
gration Judge refused to consider after determining that Lopez had com
mitted an aggravated felony.
3 Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law
felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271
(CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5
1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997)
(per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10
1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d 361 (CA1 1996)
(same), with Gonzales-Gomez v. Achim, 441 F. 3d 532 (CA7 2006) (state
law felony is not an aggravated felony); United States v. Palacios-Suarez,
418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F. 3d 297 (CA3
2002) (same). Two Circuits have construed the aggravated felony defini
tion one way in the sentencing context and another in the immigration
context. Compare United States v. Ibarra-Galindo, 206 F. 3d 1337 (CA9
2000) (in sentencing case, state-law felony is an aggravated felony); United
States v. Pornes-Garcia, 171 F. 3d 142 (CA2 1999) (same), with Cazarez-
Gutierrez v. Ashcroft, 382 F. 3d 905 (CA9 2004) (in immigration case,
state-law felony is not an aggravated felony); Aguirre v. INS, 79 F. 3d 315
(CA2 1996) (same).

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substance . . . including,” but not limited to, “a drug traffick
ing crime (as defined in section 924(c) of title 18).” 8 U. S. C.
§ 1101(a)(43)(B). Lopez’s state conviction was for helping
someone else possess cocaine in South Dakota, which state
law treated as the equivalent of possessing the drug, S. D.
Codified Laws § 22–3–3, a state felony, § 22–42–5. Mere
possession is not, however, a felony under the federal CSA,
see 21 U. S. C. § 844(a), although possessing more than what
one person would have for himself will support conviction
for the federal felony of possession with intent to distribute,
see § 841 (2000 ed. and Supp. III); United States v. Kates, 174
F. 3d 580, 582 (CA5 1999) (per curiam) (“Intent to distribute
may be inferred from the possession of a quantity of drugs
too large to be used by the defendant alone”).
Despite this federal misdemeanor treatment, the Govern
ment argues that possession’s felonious character as a state
crime can turn it into an aggravated felony under the INA.
There, it says, illicit trafficking includes a drug trafficking
crime as defined in federal Title 18. Title 18 defines “drug
trafficking crime” as “any felony punishable under the Con
trolled Substances Act (21 U. S. C. 801 et seq.),” § 924(c)(2),
and the CSA punishes possession, albeit as a misdemeanor,
see 21 U. S. C. § 844(a). That is enough, says the Govern
ment, because § 924(c)(2) requires only that the offense be
punishable, not that it be punishable as a federal felony.
Hence, a prior conviction in state court will satisfy the felony
element because the State treats possession that way.
There are a few things wrong with this argument, the first
being its incoherence with any commonsense conception of
“illicit trafficking,” the term ultimately being defined. The
everyday understanding of “trafficking” should count for a
lot here, for the statutes in play do not define the term, and
so remit us to regular usage to see what Congress probably
meant. FDIC v. Meyer, 510 U. S. 471, 476 (1994). And or
dinarily “trafficking” means some sort of commercial deal
ing. See Black’s Law Dictionary 1534 (8th ed. 2004) (defin

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54 LOPEZ v. GONZALES
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ing to “traffic” as to “trade or deal in (goods, esp. illicit drugs
or other contraband)”); see also Urena-Ramirez v. Ashcroft,
341 F. 3d 51, 57 (CA1 2003) (similar definition); State v. Ezell,
321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same).
Commerce, however, was no part of Lopez’s South Dakota
offense of helping someone else to possess, and certainly it
is no element of simple possession, with which the State
equates that crime. Nor is the anomaly of the Government’s
reading limited to South Dakota cases: while federal law typ
ically treats trafficking offenses as felonies and nontraffick
ing offenses as misdemeanors, several States deviate signifi
cantly from this pattern.4
Reading § 924(c) the Government’s way, then, would often
turn simple possession into trafficking, just what the English
language tells us not to expect, and that result makes us
very wary of the Government’s position. Cf. Leocal v. Ash
croft, 543 U. S. 1, 11 (2004) (“[W]e cannot forget that we ulti
mately are determining the meaning of the term ‘crime of
violence’ ”). Which is not to deny that the Government
might still be right; Humpty Dumpty used a word to mean
“ ‘just what [he chose] it to mean—neither more nor less,’ ” 5
and legislatures, too, are free to be unorthodox. Congress
can define an aggravated felony of illicit trafficking in an un
expected way. But Congress would need to tell us so, and
4 Several States punish possession as a felony. See, e. g., S. D. Codified
Laws §§ 22–42–5 (2004), 22–6–1 (2005 Supp.); Tex. Health & Safety Code
Ann. § 481.115 (West 2003); Tex. Penal Code Ann. §§ 12.32–12.35 (West
2003); see also n. 10, infra. In contrast, with a few exceptions, the CSA
punishes drug possession offenses as misdemeanors (that is, by one year’s
imprisonment or less, cf. 18 U. S. C. § 3559(a)), see 21 U. S. C. § 844(a) (pro
viding for “a term of imprisonment of not more than 1 year” for possession
offenses except for repeat offenders, persons who possess more than five
grams of cocaine base, and persons who possess flunitrazepam), and traf
ficking offenses as felonies, see § 841 (2000 ed. and Supp. III).
5 L. Carroll, Alice in Wonderland and Through the Looking Glass 198
(Messner 1982).

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there are good reasons to think it was doing no such thing
here.6
First, an offense that necessarily counts as “illicit traffick
ing” under the INA is a “drug trafficking crime” under
§ 924(c), that is, a “felony punishable under the [CSA],”
§ 924(c)(2). And if we want to know what felonies might
qualify, the place to go is to the definitions of crimes punish
able as felonies under the CSA; where else would one natu
rally look? Although the Government would have us look
to state law, we suspect that if Congress had meant us to do
that it would have found a much less misleading way to make
its point. Indeed, other parts of § 924 expressly refer to
guilt under state law, see §§ 924(g)(3), (k)(2), and the implica
tion confirms that the reference solely to a “felony punishable
under the [CSA]” in § 924(c)(2) is to a crime punishable as a
felony under the federal Act. See Russello v. United States,
464 U. S. 16, 23 (1983) (“[W]here Congress includes particu
lar language in one section of a statute but omits it in an
other section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion” (alteration in original; internal quota
tion marks omitted)). Unless a state offense is punishable
as a federal felony it does not count.
The Government stresses that the text does not read “pun
ishable as a felony,” and that by saying simply “punishable”
6 Of course, we must acknowledge that Congress did counterintuitively
define some possession offenses as “illicit trafficking.” Those state pos
session crimes that correspond to felony violations of one of the three
statutes enumerated in § 924(c)(2), such as possession of cocaine base and
recidivist possession, see 21 U. S. C. § 844(a), clearly fall within the defini
tions used by Congress in 8 U. S. C. § 1101(a)(43)(B) and 18 U. S. C.
§ 924(c)(2), regardless of whether these federal possession felonies or their
state counterparts constitute “illicit trafficking in a controlled substance”
or “drug trafficking” as those terms are used in ordinary speech. But this
coerced inclusion of a few possession offenses in the definition of “illicit
trafficking” does not call for reading the statute to cover others for which
there is no clear statutory command to override ordinary meaning.

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Congress left the door open to counting state felonies, so
long as they would be punishable at all under the CSA. But
we do not normally speak or write the Government’s way.
We do not use a phrase like “felony punishable under the
[CSA]” when we mean to signal or allow a break between
the noun “felony” and the contiguous modifier “punishable
under the [CSA],” let alone a break that would let us read
the phrase as if it said “felony punishable under the CSA
whether or not as a felony.” Regular usage points in the
other direction, and when we read “felony punishable under
the . . . Act,” we instinctively understand “felony punishable
as such under the Act” or “felony as defined by the Act.” 7
Without some further explanation, using the phrase to cover
even a misdemeanor punishable under the Act would be so
much trickery, violating “the cardinal rule that statutory lan
guage must be read in context.” General Dynamics Land
Systems, Inc. v. Cline, 540 U. S. 581, 596 (2004) (internal quo
tation marks and brackets omitted). That is why our inter
pretive regime reads whole sections of a statute together to
fix on the meaning of any one of them, and the last thing this
approach would do is divorce a noun from the modifier next
to it without some extraordinary reason.
The Government thinks it has a good enough reason for
doing just that, in the INA provision already mentioned, that
the term “aggravated felony” “applies to an offense de
scribed in this paragraph whether in violation of Federal or
State law.” 8 U. S. C. § 1101(a)(43). But before this pro
vision is given the Government’s expansive treatment, it
7 With respect to this last possibility, for purposes of § 924(c)(2) the
crimes the CSA defines as “felonies” are those crimes to which it assigns
a punishment exceeding one year’s imprisonment. As the Government
wisely concedes, see Brief for Respondent 25, although for its own pur
poses the CSA defines the term “felony” standing alone as “any Federal
or State offense classified by applicable Federal or State law as a felony,”
21 U. S. C. § 802(13), that definition does not apply here: § 924(c)(2) refers
to a felony “punishable under the [CSA],” not to conduct punishable under
some other law but defined as a felony by the CSA.

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makes sense to ask whether it would have some use short of
wrenching the expectations raised by normal English usage,
and in fact it has two perfectly straightforward jobs to do: it
provides that a generic description of “an offense . . . in this
paragraph,” one not specifically couched as a state offense or
a federal one, covers either one, and it confirms that a state
offense whose elements include the elements of a felony pun
ishable under the CSA is an aggravated felony. Thus, if Lo
pez’s state crime actually fell within the general term “illicit
trafficking,” the state felony conviction would count as an
“aggravated felony,” regardless of the existence of a federal
felony counterpart; and a state offense of possessing more
than five grams of cocaine base is an aggravated felony be
cause it is a felony under the CSA, 21 U. S. C. § 844(a).8
The Government’s reliance on the penultimate sentence of
8 U. S. C. § 1101(a)(43) is misplaced for a second reason. The
Government tries to justify its unusual reading of a defined
term in the criminal code on the basis of a single sentence
in the INA. But nothing in the penultimate sentence of
§ 1101(a)(43) suggests that Congress changed the meaning of
“felony punishable under the [CSA]” when it took that
phrase from Title 18 and incorporated it into Title 8’s defini
tion of “aggravated felony.” Yet the Government admits it
has never begun a prosecution under 18 U. S. C. § 924(c)(1)(A)
where the underlying “drug trafficking crime” was a state
felony but a federal misdemeanor. See Tr. of Oral Arg. 33–
36. This is telling: the failure of even a single eager Assist
8 Although the parties agree that Congress added the provision that
both state and federal offenses qualify as aggravated felonies to codify the
BIA’s decision in Matter of Barrett, 20 I. & N. Dec. 171 (1990), see also
H. R. Rep. No. 101–681, pt. 1, p. 147 (1990) (noting that the provision
reflects congressional approval of Barrett), our enquiry requires looking
beyond Congress’s evident acceptance of Barrett. In Barrett, the BIA
held only that the phrase “ ‘drug trafficking crime’ ” includes state “crimes
analogous to offenses under the [CSA],” 20 I. & N. Dec., at 177, 178, with
out specifying whether a state crime must be “analogous” to a CSA felony,
as opposed to a CSA misdemeanor, to count.

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58 LOPEZ v. GONZALES
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ant United States Attorney to act on the Government’s inter
pretation of “felony punishable under the [CSA]” in the very
context in which that phrase appears in the United States
Code belies the Government’s claim that its interpretation is
the more natural one.9
Finally, the Government’s reading would render the law
of alien removal, see 8 U. S. C. § 1229b(a)(3), and the law of
sentencing for illegal entry into the country, see USSG
§ 2L1.2, dependent on varying state criminal classifications
even when Congress has apparently pegged the immigration
statutes to the classifications Congress itself chose. It may
not be all that remarkable that federal consequences of state
crimes will vary according to state severity classification
when Congress describes an aggravated felony in generic
terms, without express reference to the definition of a crime
in a federal statute (as in the case of “illicit trafficking in
a controlled substance”). But it would have been passing
strange for Congress to intend any such result when a state
criminal classification is at odds with a federal provision that
the INA expressly provides as a specific example of an “ag
gravated felony” (like the § 924(c)(2) definition of “drug traf
ficking crime”). We cannot imagine that Congress took the
trouble to incorporate its own statutory scheme of felonies
and misdemeanors if it meant courts to ignore it whenever a
State chose to punish a given act more heavily.
9 Contrary to the Government’s response at oral argument, such a prose
cution should be possible under the Government’s proffered interpretation
because this subset of “drug trafficking crime[s]” still “may be prosecuted
in a court of the United States,” 18 U. S. C. § 924(c)(1)(A), albeit at the
misdemeanor level. For the same reason, the dissent’s argument that our
reading renders superfluous the requirement in § 924(c)(1)(A) that the
crime “may be prosecuted in a court of the United States” misses the
mark. Post, at 62 (opinion of Thomas, J.). That phrase would be no less
superfluous under the dissent’s preferred reading, which would still re
quire that the offense be “capable of punishment under the [CSA],” post,
at 61, and therefore subject to prosecution in federal court.

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Opinion of the Court
Two examples show the untoward consequences of the
Government’s approach. Consider simple possession of
marijuana. Not only is it a misdemeanor under the CSA,
see 21 U. S. C. § 844(a), but the INA expressly excludes
“a single offense involving possession for one’s own use of 30
grams or less” from the controlled substance violations that
are grounds for deportation, 8 U. S. C. § 1227(a)(2)(B)(i). Yet
by the Government’s lights, if a State makes it a felony to
possess a gram of marijuana the congressional judgment is
supplanted, and a state convict is subject to mandatory de
portation because the alien is ineligible for cancellation of
removal. See § 1229b(a)(3).10 There is no hint in the stat
ute’s text that Congress was courting any such state-by
state disparity.
The situation in reverse flouts probability just as much.
Possessing more than five grams of cocaine base is a felony
under federal law. See 21 U. S. C. § 844(a). If a State drew
the misdemeanor-felony line at six grams plus, a person con
victed in state court of possessing six grams would not be
guilty of an aggravated felony on the Government’s reading,
which makes the law of the convicting jurisdiction disposi
tive. See Brief for Respondent 48. Again, it is just not
plausible that Congress meant to authorize a State to over
rule its judgment about the consequences of federal offenses
to which its immigration law expressly refers.
True, the argument is not all one-sided. The Government
points out that some States graduate offenses of drug posses
sion from misdemeanor to felony depending on quantity,
10 Indeed, several States treat possession of less than 30 grams of mari
juana as a felony. See Fla. Stat. §§ 893.13(6)(a)–(b), 775.082(3)(d) (2006)
(punishing possession of over 20 grams of marijuana as a felony); Nev.
Rev. Stat. §§ 453.336(1)–(2) (2004), §§ 453.336(4), 193.130 (2003) (punishing
possession of more than one ounce, or 28.3 grams, of marijuana as a felony);
N. D. Cent. Code Ann. §§ 19–03.1–23(6) (Lexis Supp. 2005), 12.1–32–01(4)
(Lexis 1997) (same); Ore. Rev. Stat. § 161.605(2) (2003), Act Relating to
Controlled Substances, § 33, 2005 Ore. Laws p. 2006 (same).

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60 LOPEZ v. GONZALES
Thomas, J., dissenting
whereas Congress generally treats possession alone as a mis
demeanor whatever the amount (but leaves it open to charge
the felony of possession with intent to distribute when the
amount is large). Thus, an alien convicted by a State of pos
sessing large quantities of drugs would escape the aggra
vated felony designation simply for want of a federal felony
defined as possessing a substantial amount. This is so, but
we do not weigh it as heavily as the anomalies just men
tioned on the other side. After all, Congress knows that
any resort to state law will implicate some disuniformity in
state misdemeanor-felony classifications, but that is no rea
son to think Congress meant to allow the States to supplant
its own classifications when it specifically constructed its im
migration law to turn on them.
In sum, we hold that a state offense constitutes a “felony
punishable under the Controlled Substances Act” only if it
proscribes conduct punishable as a felony under that federal
law. The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, dissenting.
Jose Antonio Lopez pleaded guilty to aiding and abetting
the possession of cocaine, a felony under South Dakota law.
The Court holds that Lopez’s conviction does not constitute
an “aggravated felony” because federal law would classify
Lopez’s possession offense as a misdemeanor. I respect
fully dissent.
I
The Immigration and Nationality Act (INA) provides
that “[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable.” 8 U. S. C.
§ 1227(a)(2)(A)(iii). As relevant to this case, the INA defines
an “aggravated felony” as “illicit trafficking in a controlled
substance . . . including a drug trafficking crime (as defined in

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61 Cite as: 549 U. S. 47 (2006)
Thomas, J., dissenting
section 924(c) of title 18).” § 1101(a)(43)(B). And “the term
‘drug trafficking crime’ means any felony punishable under
the Controlled Substances Act . . . .” 18 U. S. C. § 924(c)(2).
Lopez’s state felony offense qualifies as a “drug trafficking
crime” as defined in § 924(c)(2). A plain reading of this
definition identifies two elements: First, the offense must be
a felony; second, the offense must be capable of punishment
under the Controlled Substances Act (CSA). No one dis
putes that South Dakota punishes Lopez’s crime as a felony.
See S. D. Codified Laws § 22–42–5 (1988). Likewise, no one
disputes that the offense was capable of punishment under
the CSA. See 21 U. S. C. § 844(a). Lopez’s possession of
fense therefore satisfies both elements, and the inquiry
should end there.
The Court, however, takes the inquiry further by reason
ing that only federal felonies qualify as drug trafficking
crimes. According to the Court, the definition of drug traf
ficking crime contains an implied limitation: “any felony pun
ishable [as a felony] under the” CSA. The text does not sup
port this interpretation. Most obviously, the language “as
a felony” appears nowhere in § 924(c)(2). Without doubt,
Congress could have written the definition with this limita
tion, but it did not.
Furthermore, Lopez’s suggested addition conflicts with
the clear meaning of § 924(c)(2), which extends to both state
and federal felonies. Specifically, the definition broadly en
compasses “any felony” capable of being punished under the
CSA. 18 U. S. C. § 924(c)(2) (emphasis added). “Read natu
rally, the word ‘any’ has an expansive meaning . . . .” United
States v. Gonzales, 520 U. S. 1, 5 (1997); see also Small v.
United States, 544 U. S. 385, 397 (2005) (Thomas, J., dissent
ing) (“The broad phrase ‘any court’ unambiguously includes
all judicial bodies with jurisdiction to impose the requisite
conviction . . . ” (footnote omitted)). The term “felony” takes
its meaning from Title 18, which classifies crimes as felonies
when punishable by death or greater than one year of impris

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62 LOPEZ v. GONZALES
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onment. § 3559(a). “[A]ny felony” therefore includes both
federal and state felonies: The classification depends only on
the authorized term of imprisonment. Accordingly, by the
plain terms of § 924(c)(2), conduct prohibited by the CSA may
qualify as a “drug trafficking crime” if under either federal
law or state law the conduct is punishable by more than one
year of imprisonment.
This interpretation finds support in other provisions in
which Congress placed limits on the types of drug traf
ficking crimes eligible for consideration. In particular,
§ 924(c)(1)(A) proscribes the use or possession of a firearm
“during and in relation to any . . . drug trafficking crime . . .
for which the person may be prosecuted in a court of the
United States . . . .” (Emphasis added.) See also 18
U. S. C. § 924(c)(5) (2000 ed., Supp. V) (using identical lan
guage in proscribing the use or possession of “armor piercing
ammunition”). The Court has previously interpreted this
language to limit “any . . . drug trafficking crime” to federal
crimes. Gonzales, supra, at 5. This language, therefore,
acts as a jurisdictional limitation, carving out the subset of
federal drug trafficking crimes and making only those eligi
ble for use in §§ 924(c)(1)(A) and 924(c)(5). No similar
federal-crime limitation appears in § 924(c)(2). Interpreting
the term “drug trafficking crime,” as defined in § 924(c)(2),
to reach only federal felonies would render superfluous the
federal-crime limitations in these other provisions. See
Duncan v. Walker, 533 U. S. 167, 174 (2001) (counseling
against interpretations that result in surplus language).1
1 The majority mistakenly contends that my interpretation also renders
this language superfluous. Ante, at 58, n. 9. As I have stated, the plain
meaning of “drug trafficking crime” includes two categories of felonies—
state and federal. For the limiting language in § 924(c)(1)(A) to have
meaning, it must exclude one of those categories. As a state felony,
Lopez’s possession offense does not fall within the category of federal
drug trafficking crimes. Consequently, it is not eligible for use under
§ 924(c)(1)(A).

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This interpretation also finds support in the INA, which
lists “illicit trafficking” and its subset of “drug trafficking
crime[s]” as aggravated felonies. 8 U. S. C. § 1101(a)(43)(B).
The INA considers these offenses aggravated felonies
“whether in violation of Federal or State law . . . .”
§ 1101(a)(43) (penultimate sentence). Thus, by incorporat
ing § 924(c)(2)’s definition of “drug trafficking crime,” the
INA supports and confirms the conclusion that the definition
of “drug trafficking crime” applies to both federal and state
felonies.
Moreover, the INA isolates the relevant inquiry to the
prosecuting jurisdiction. Section 1227(a)(2)(A)(iii) of Title 8
makes an alien eligible for deportation only upon a convic
tion for an “aggravated felony.” The conviction require
ment suggests that the jurisdiction issuing the conviction de
termines whether the offense is a felony. This result makes
sense. When faced with an actual conviction, it would be
unusual to ask, hypothetically, whether that conviction would
have been a felony in a different jurisdiction. Furthermore,
that hypothetical inquiry could cause significant inconsisten
cies. For instance, where a State convicts an alien of a mis
demeanor drug crime, but federal law classifies the crime
as a felony, the misdemeanor conviction would constitute
an aggravated felony. This anomaly does not arise when
relying on the prosecuting jurisdiction’s classification of the
crime.
II
The Court’s approach is unpersuasive. At the outset of
its analysis, the Court avers that it must look to the ordinary
meaning of “illicit trafficking” because “the statutes in play
do not define the term.” Ante, at 53. That statement is
incorrect. Section 1101(a)(43)(B) of Title 8 clearly defines
“illicit trafficking in a controlled substance,” at least in part,
as “a drug trafficking crime (as defined in section 924(c) of
title 18).” (Emphasis added.) Therefore, whatever else “il
licit trafficking” might mean, it must include anything de

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64 LOPEZ v. GONZALES
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fined as a “drug trafficking crime” in § 924(c)(2). Rather
than grappling with this definition of the relevant term, the
Court instead sets up a conflicting straw man definition.
The majority states that the ordinary meaning of “illicit
trafficking” involves “some sort of commercial dealing.”
Ante, at 53. Because mere possession does not constitute
commercial dealing, the Court concludes that Lopez’s posses
sion offense cannot qualify as an “illicit trafficking” offense—
or, by implication, a “drug trafficking crime.” Yet even the
Court admits that the term “drug trafficking crime” includes
federal drug felonies, several of which are mere possession
offenses. See 21 U. S. C. § 844(a) (possession of more than
five grams of cocaine base, possession of flunitrazepam, and
repeat possession offenses). If the Court recognizes, in
light of § 924(c)(2), some mere possession offenses under the
umbrella of “illicit trafficking,” it cannot reject Lopez’s con
viction out of hand. Yet the Court downplays these “few
exceptions” in two footnotes, concluding that “this coerced
inclusion of a few possession offenses” gives no reason to
“override [the] ordinary meaning” of “illicit trafficking.”
Ante, at 54, 55, nn. 4 and 6.
The inconsistency deserves more than the Court’s passing
reference. By encompassing repeat possession offenses, the
term “illicit trafficking” includes far more than “a few” of
fenses outside of its ordinary meaning. It must include
every type of possession offense under the CSA, so long as
the offender has had a previous possession offense. If de
fining “illicit trafficking” to include the entire range of un
lawful possession does not provide a “clear statutory com
mand to override ordinary meaning,” ante, at 55, n. 6, I do
not know what would.2
2 In its discussion of whether possession may constitute “trafficking,”
the Court takes its own trip “through the looking glass.” See ante, at 54.
“Commerce,” according to the Court, “certainly . . . is no element of simple
possession . . . .” Ibid. Not long ago, the Court found the opposite to

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Thomas, J., dissenting
The Court, however, gives only fleeting consideration to
the text of § 924(c)(2) itself. After referencing the phrase
“felony punishable under” the CSA, the Court asks “where
else would one naturally look” other than the CSA to deter
mine whether a felony qualifies as a drug trafficking crime.
Ante, at 55. In response to the Court’s rhetorical question,
I suggest that one might naturally look to the conviction it
self to determine whether it is a felony. When presented
with an actual conviction, one would not expect to look to a
hypothetical prosecution to determine whether an offender
has committed a felony.
Continuing to avoid the text of § 924(c)(2), the Court in
stead focuses on what the statute does not say. It concludes
that Congress could have expressly referenced state law as
in §§ 924(g)(3) and (k)(2). Ibid. The response, of course, is
that Congress could just as well have defined a “drug traf
ficking crime” as “any felony punishable as a felony under
the CSA.” Rejoining, the Court resorts to an “instinctiv[e]
understand[ing]” that the statutory definition actually means
“ ‘felony as defined by the Act.’ ” Ante, at 56. Instinct not
withstanding, we must interpret what Congress actually
wrote, not what it could have written.
Furthermore, the Court’s “instinct” to interpret § 924(c)(2)
to mean “felony as defined by” the CSA creates an unneces
sary ambiguity in the meaning of “felony.” The CSA defines
“felony” as “any Federal or State offense classified by ap
be true when interpreting the scope of Congress’ power under the Com
merce Clause. See Gonzales v. Raich, 545 U. S. 1, 22 (2005) (concluding
that Congress may regulate the mere possession of marijuana as affecting
“commerce”). In Raich, the Court fell into the very trap it purports to
identify today by “turn[ing] simple possession into [commerce], just what
the English language tells us not to expect.” Ante, at 54; see also Raich,
supra, at 57–58 (Thomas, J., dissenting). The Court’s broadening of the
Commerce Clause stands in tension with its present narrow interpretation
of “trafficking,” which 8 U. S. C. § 1101(a)(43)(B) explicitly alters to include
at least some possession offenses.

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66 LOPEZ v. GONZALES
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plicable Federal or State law as a felony.” 21 U. S. C.
§ 802(13).3 Under the Court’s interpretation, that definition
seemingly should apply. The Court concludes otherwise but
never resolves the ambiguity it creates: It instead explains
that “felony” is defined by the CSA as something other than
the CSA’s definition of “felony.” Ante, at 56, n. 7. That ex
planation is, at best, unsatisfying.
After gliding past the statutory text, the Court expresses
concern over the fact that the Government’s interpretation
allows federal immigration law to turn on varying state
criminal classifications. Congress apparently did not share
this concern because some definitions of “aggravated felony”
explicitly turn on the State’s authorized term of imprison
ment, not a uniform federal classification. See 8 U. S. C.
§§ 1101(a)(43)(F), (G), (J), (P)–(T). Even the Court finds this
variance “not . . . all that remarkable.” Ante, at 58. The
Court’s real concern therefore has little to do with variations
in state law. Rather, it worries that “a state criminal classi
fication [may be] at odds with a federal provision.” Ibid.
But, obviously, if a state offense does not qualify under the
definitions in § 1101(a)(43), then the offense cannot be an “ag
gravated felony.” As shown in Part I, supra, though, noth
ing about Lopez’s offense conflicts with the plain language
of § 924(c)(2) as incorporated into § 1101(a)(43)(B). He was
convicted of a “felony,” and his offense was “punishable
under the” CSA.
The Court also notes apparent anomalies in the Govern
ment’s approach. It asserts that, under the Government’s
3 Several Courts of Appeals looked to this definition of “felony” when
construing the meaning of “drug trafficking crime.” See, e. g., United
States v. Wilson, 316 F. 3d 506, 512 (CA4 2003). Although the Govern
ment would clearly prevail under 21 U. S. C. § 802(13), it has conceded that
this definition does not apply. This concession makes good sense: The
definition of “drug trafficking crime” resides in Title 18, and it is therefore
most natural to construe “felony” as used in that title. See n. 1, supra.
As discussed above, that definition as well requires that a crime be consid
ered a felony if the State defines it as a felony.

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67 Cite as: 549 U. S. 47 (2006)
Thomas, J., dissenting
interpretation, a state felony conviction for simple posses
sion of less than 30 grams of marijuana could be an “ag
gravated felony” even though the INA expressly excludes
such an offense as grounds for deportation under 8 U. S. C.
§ 1227(a)(2)(B)(i). Ante, at 59. The Court’s concern has lit
tle basis in reality. Only one State authorizes more than
one year of imprisonment for possession of over 20 grams.
See Fla. Stat. §§ 893.13(6)(a)–(b), 775.082(3)(d) (2006). A few
others classify possession of one ounce (or 28.3 grams) as
a felony. See, e. g., Nev. Rev. Stat. §§ 453.336(1)–(2) (2004),
§§ 453.336(4), 193.130 (2003). The mere possibility that a
case could fall into this small gap and lead to removal pro
vides no ground for the Court to depart from the plain mean
ing of 18 U. S. C. § 924(c)(2).
In fact, it is the Court’s interpretation that will have a
significant effect on removal proceedings involving state pos
session offenses. Federal law treats possession of large
quantities of controlled substances as felonious possession
with intent to distribute. States frequently treat the same
conduct as simple possession offenses, which would escape
classification as aggravated felonies under the Court’s inter
pretation. Thus, the Court’s interpretation will result in a
large disparity between the treatment of federal and state
convictions for possession of large amounts of drugs. And
it is difficult to see why Congress would “authorize a State
to overrule its judgment” about possession of large quanti
ties of drugs any more than it would about other possession
offenses. Ante, at 59.
Finally, the Court admits that its reading will subject an
alien defendant convicted of a state misdemeanor to deporta
tion if his conduct was punishable as a felony under the CSA.
Accordingly, even if never convicted of an actual felony, an
alien defendant becomes eligible for deportation based on a
hypothetical federal prosecution. It is at least anomalous, if
not inconsistent, that an actual misdemeanor may be consid
ered an “aggravated felony.”

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68 LOPEZ v. GONZALES
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III
Because a plain reading of the statute would avoid the am
biguities and anomalies created by today’s majority opinion,
I respectfully dissent.