Sentenza

SUPREME COURT OF THE UNITED STATES No. 18–6662 EDDIE LEE SHULAR, PETITIONER v.UNITED STATES

1  (Slip Opinion) OCTOBER  TERM,  2019  Syllabus NOTE:   Where  it  is  feasible,  a  syllabus  (headnote)  will  be  released,  as  is  being  done  in  connection  with  this  case,  at  the  time  the  opinion  is  issued.  The  syllabus  constitutes  no  part  of  the  opinion  of  the  Court  but  has  been  prepared  by  the  Reporter  of  Decisions  for  the  convenience  of  the  reader.  See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus SHULAR v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 18–6662.    Argued January 21, 2020 —Decided February 26, 2020 The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for a defendant convicted of being a felon in possession of afirearm who has at least three convictions for "serious drug offense[s]." 18 U. S. C. §924(e)(1).  A state offense ranks as a "serious drug offense" only  if  it  "involv[es]  manufacturing,  distributing,  or  possessing  with  intent   to   manufacture   or   distribute,   a   controlled   substance."   §924(e)(2)(A)(ii).To  determine  whether  an  offender's  prior  convictions  qualify  forACCA  enhancement,  this  Court  has  used  a  "categorical  approach,"looking "only to the statutory definitions of the prior offenses." Taylorv.United  States,  495  U.  S.  575,  600.    Under  some  statutes,  a  courtemploying a categorical approach must come up with a "generic" ver-sion of a crime—that is, the elements of the offense as commonly un-derstood.  The court then determines whether the elements of the of-fense of conviction match those of the generic crime.  Other statutes,which ask the court to determine whether the conviction meets someother criterion, require no such generic-offense analysis.Shular pleaded guilty to being a felon in possession of a firearm and received  a  15-year  sentence,  the  mandatory  minimum  under  ACCA.In  imposing  this  sentence,  the  District  Court  held  that  Shular's  six  prior cocaine-related convictions under Florida law qualified as "seri-ous drug offense[s]" triggering ACCA enhancement.  The Eleventh Cir-cuit affirmed, concluding that §924(e)(2)(A)(ii)'s "serious drug offense" definition does not require a comparison to a generic offense. Held: Section 924(e)(2)(A)(ii)'s "serious drug offense" definition requires only that the state offense involve the conduct specified in the statute;it  does  not  require  that  the  state  offense  match  certain  generic  of-fenses.  Pp. 5–11. 
2                                SHULAR                                v. UNITED STATES Syllabus (a) The parties agree that §924(e)(2)(A)(ii) requires a categorical ap-proach.    They  differ,  however,  on  what  comparison  the  statute  re-quires.  In the Government's view, §924(e)(2)(A)(ii) identifies conduct a court should compare directly against the state crime's elements.  In Shular's   view,   §924(e)(2)(A)(ii)   identifies   generic   offenses   whose   elements a court must first expound, then compare against the statecrime's elements.  Pp. 5–6.(b) The statutory text and context show that §924(e)(2)(A)(ii) refersto  conduct,  not  offenses.    In  two  respects,  §924(e)(2)(A)(ii)  contrasts  with  neighboring  §924(e)(2)(B)(ii),  which  refers  to  a  crime  that  "is  burglary, arson, or extortion" and calls for the generic-offense analysis that    Shular    urges.        First,    the    terms    in    §924(e)(2)(A)(ii)—"manufacturing,    distributing,    or    possessing    with    intent    to    manufacture  or  distribute,  a  controlled  substance"—can  be  used  to  describe  conduct.    Unlike  "burglary,"  "arson,"  and  "extortion,"  those  terms  do  not  unambiguously  name  offenses.    Second,  by  speaking  of  activities   a   state-law   drug   offense   "involv[es],"   §924(e)(2)(A)(ii)suggests  that  the  descriptive  terms  immediately  following  the  word  "involving" identify conduct.  To refer to offenses, it would have been far more natural for the drafter to follow §924(e)(2)(B)(ii) in using "is." Pp. 6–7.(c) Shular argues that Congress meant to capture the drug offensesgenerally  existing  in  state  laws  at  the  time  of  §924(e)(2)(A)(ii)'s  enactment.    But  he  admits  that  those  state  laws  lacked  common  nomenclature.    The  evident  solution  was  for  Congress  to  identify  offenses  by  the  conduct  involved,  not  by  the  name  of  the  offenses.  Shular offers no persuasive explanation for why Congress would have chosen "involving" over "is" to refer to offenses.  Nor do the other ACCA provisions    on    which    Shular    relies    shed    light    on    whether    §924(e)(2)(A)(ii) refers to conduct or offenses.  Pp. 7–9.(d)  Rejecting  a  generic-offense  approach,  Shular  contends,  would  subject defendants to ACCA enhancement based on outlier state laws.He  emphasizes  that  the  Florida  drug  offenses  of  which  he  was  convicted do not require, as an element, knowledge of the illicit nature of the controlled substance.  But Shular overstates the extent to which Florida  law  is  idiosyncratic,  for  if  a  defendant  asserts  that  he  was  unaware of the substance's illicit nature, the jury must find knowledgebeyond  a  reasonable  doubt.    In  any  event,  Shular's  interpretation  is  scarcely  the  only  one  that  promotes  consistency.    Congress  intendedconsistent   application   of   ACCA   to   all   offenders   who   engaged—   according   to   the   elements   of   their   prior   convictions—in   certain   conduct.  Pp. 9–10.(e)  The  rule  of  lenity  has  no  application  here,  for  after  consulting  traditional canons of interpretation there remains no ambiguity for the 
3 Cite as:  589 U. S. ____ (2020) Syllabus rule of lenity to resolve.  Pp. 10–11. 736 Fed. Appx. 876, affirmed. GINSBURG,  J., delivered  the  opinion  for  a  unanimous  Court.    KAV-ANAUGH, J., filed a concurring opinion. 
Cite as:  589 U. S. ____ (2020) 1 Opinion of the CourtNOTICE:  This opinion is subject to formal revision before publication in the preliminary  print  of  the  United  States  Reports.    Readers  are  requested  to  notify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.SUPREME COURT OF THE UNITED STATES_________________ No. 18–6662_________________ EDDIE LEE SHULAR, PETITIONER v.UNITED STATESON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT[February 26, 2020]     JUSTICE GINSBURG delivered the opinion of the Court.    The  Armed  Career  Criminal  Act  (ACCA),  18  U. S. C. §924(e), mandates a 15-year minimum sentence of impris-onment for certain defendants with prior convictions for a "serious drug offense."  A state offense ranks as a "serious drug  offense"  only  if  it  "involv[es]  manufacturing,  distrib-uting,  or  possessing  with  intent  to  manufacture  or  dis- tribute,  a  controlled  substance."    §924(e)(2)(A)(ii).      This case  concerns  the  methodology  courts  use  to  apply  that  definition.     While  the  parties  agree  that  a  court  should  look  to  the  state offense's elements, they disagree over what the court should  measure  those  elements  against.    In  the  Govern-ment's view, the court should ask whether those elements involve the conductidentified in §924(e)(2)(A)(ii)—namely, "manufacturing,  distributing,  or  possessing  with  intent  to  manufacture  or  distribute,  a  controlled  substance."    Peti-tioner Eddie Lee Shular, however, contends that the terms employed in the statute identify not conduct, but offenses.  In his view, those terms are shorthand for the elements of the offenses as commonly understood.  According to Shular, 
2 SHULAR v. UNITED STATESOpinion of the Courtthe  court  must  first  identify  the  elements  of  the  "generic"  offense, then ask whether the elements of the state offense match those of the generic crime.    Under the approach he advances, Shular argues, his sen-tence is not subject to ACCA enhancement.  The generic of-fenses  named  in  §924(e)(2)(A)(ii),  as  Shular  understands  them,  include  a  mens  rea element  of  knowledge  that  the  substance  is  illicit.    He  emphasizes  that  his  prior  convic-tions were for state offenses that do not make knowledge of the  substance's  illegality  an  element  of  the  offense;  the  state offenses, he therefore maintains, do not match the ge-neric offenses in §924(e)(2)(A)(ii).    The  question  presented:  Does  §924(e)(2)(A)(ii)'s  "serious  drug  offense"  definition  call  for  a  comparison  to  a  genericoffense?    We  hold  it  does  not.    The  "serious  drug  offense"  definition  requires  only  that  the  state  offense  involve  the  conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.I     Ordinarily, a defendant convicted of being a felon in pos-session of a firearm, in violation of §922(g)(1), faces a max-imum  sentence  of  ten  years.    §924(a)(2).    If  the  offender's  prior criminal record includes at least three convictions for "serious  drug  offense[s]"  or  "violent  felon[ies],"  however,  ACCA   mandates   a   minimum   sentence   of   15   years.      §924(e)(1).    To  determine  whether  an  offender's  prior  convictions  qualify for ACCA enhancement, we have used a "categorical approach," under which we look "only to the statutory defi-nitions of the prior offenses."  Taylor v. United States, 495 U. S.    575,  600 (1990).    Under  this  approach,  we  consider  neither  "the  particular  facts  underlying  the  prior  convic-tions"  nor  "the  label  a  State  assigns  to  [the]  crime[s]."  Mathis v. United States, 579 U. S.   ___, ___ (2016) (slip op., at  8)  (internal  quotation  marks  and  alterations  omitted).  
Cite as:  589 U. S. ____ (2020)3 Opinion of the CourtSo, for example, to apply ACCA's provision defining "violent felony" to include "burglary," §924(e)(2)(B)(ii), we ask only whether the elements of the prior conviction constitute bur-glary;  we  do  not  ask  what  the  person  did  or  whether  the  offense of conviction was named "burglary."    Under  some  statutes,  using  a  categorical  approach  re-quires  the  court  to  come  up  with  a  "generic"  version  of  a  crime—that  is,  the  elements  of  "the  offense  as  commonly  understood," id.,  at ___ (slip op., at 1).1  We have required that  step  when  the  statute  refers  generally  to  an  offense  without specifying its elements.  In that situation, the court must define the offense so that it can compare elements, not labels.  For example, in Taylor, confronted with ACCA's un-adorned reference to "burglary," we identified the elements of    "generic burglary" based on the "sense in which the term is now used in the criminal codes of most States."  495 U. S., at 598–599; §924(e)(2)(B)(ii).  We then inquired whether the elements of the offense of conviction matched those of the generic crime.  Id., at 602.   See also, e.g., Esquivel-Quintanav. Sessions, 581 U. S. ___, ___ (2017) (slip op., at 4) ("generic federal definition of sexual abuse of a minor" for purposes of 8 U. S. C. §1101(a)(43)(A)).    In  contrast,  other  statutes  calling  for  a  categorical  ap-proach  ask  the  court  to  determine  not  whether  the  prior conviction was for a certain offense, but whether the convic-tion  meets  some  other  criterion.    For  example,  in  Ka-washimav. Holder, 565 U. S. 478 (2012), we applied a cat-egorical   approach   to   a   statute   assigning immigration consequences  to  prior  convictions  for  "an  offense  that  . .   . involves  fraud  or  deceit"  with  a  loss  exceeding  $10,000.    §1101(a)(43)(M)(i).  The quoted language, we held, "mean[s] offenses with elements that necessarily entail fraudulent or —————— 1We  have  also  used  the  term  "generic  crime"  to  mean  the  crime  "in  general" as opposed to "the specific acts in which an offender engaged on a  specific  occasion."    Nijhawan  v. Holder,  557  U. S.  29,  33–34  (2009).  That is not the sense in which we use "generic" in this opinion.
4 SHULAR v. UNITED STATESOpinion of the Courtdeceitful conduct."    Id.,  at  484 (emphasis  added).    Conse-quently, no  identification  of  generic  offense  elements  was  necessary;  we  simply asked  whether  the  prior  convictions before us met that measure.  Id., at 483–485.  See also, e.g., Stokelingv. United  States,  586  U. S.  ___,  ___–___ (2019) (slip op., at 12–13) (determining whether an offense "has as an  element  the  use,  attempted  use,  or  threatened  use  of  physical  force  against  the  person  of  another,"    18  U. S.   C. §924(e)(2)(B)(i)).    This case invites us to decide which of the two categorical methodologies   just   described   applies   in   determining   whether  a  state  offense  is  a  "serious  drug  offense"  under  ACCA.  ACCA defines that term to include:"an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in sec-tion 102 of the Controlled Substances Act (21 U. S.   C. [§]802)),  for  which  a  maximum  term  of  imprisonment  of ten years or more is prescribed by law."  18 U. S.   C. §924(e)(2)(A)(ii).II     Shular pleaded guilty in the United States District Court for the Northern District of Florida to possessing a firearm after  having  been  convicted  of  a  felony,  in  violation  of  §922(g)(1), and possessing with intent to distribute cocaine and cocaine base, in violation of 21 U. S. C. §841(a)(1) and (b)(1)(C).  The District Court sentenced Shular to imprison-ment for 15 years, the mandatory minimum under ACCA, to be followed by three years of supervised release.    In  imposing  that  enhanced  sentence,  the  District  Court  took  account  of  Shular's  prior  convictions  under  Florida  law.  In 2012, Shular pleaded guilty to five counts of selling cocaine and one count of possessing cocaine with intent to sell,  all  in  violation  of  Fla.  Stat.  §893.13(1)(a).   That  law  makes it a crime to "sell, manufacture, or deliver, or possessCite as:  589 U. S. ____ (2020)5 Opinion of the Courtwith  intent  to  sell,  manufacture,  or  deliver,  a  controlled  substance."  Ibid.   For those offenses, "knowledge of the il-licit nature of a controlled substance is not an element," but lack   of   such   knowledge   "is   an   affirmative   defense."  §893.101(2).    Shular's  six  convictions  under  that  Florida  law, the District Court concluded, qualified as "serious drug offense[s]" triggering ACCA enhancement under 18 U. S.   C. §924(e)(2)(A)(ii).    The United States Court of Appeals for the Eleventh Cir-cuit affirmed the sentence.  736 Fed. Appx. 876 (2018).  It relied  on  Circuit  precedent  holding  that  a  court  applying  §924(e)(2)(A)(ii)  "need  not  search  for  the  elements  of  'ge-neric'  definitions"  of  any  offense,  because  the  statute  "re-quire[s] only that the predicate offense 'involv[e]' . .   . certain activities."    United  States  v. Smith,  775  F.  3d  1262,  1267 (2014).    Courts     of     Appeals     have     divided     on     whether§924(e)(2)(A)(ii)'s "serious drug offense" definition requires a  comparison  to  a  generic  offense.    Compare, e.g., id.,  at 1267 (no generic-offense comparison), with United States v.Franklin, 904 F. 3d 793, 800 (CA9 2018) (court must define a generic crime).  We granted certiorari to resolve this con-flict, 588 U. S. ___ (2019), and now affirm the Eleventh Cir-cuit's judgment.IIIA     The  parties  here  agree  that  §924(e)(2)(A)(ii) requires  a  categorical  approach.    A  court  must  look  only  to  the  state  offense's elements, not the facts of the case or labels pinned to the state conviction.    They      differ,      however,      on      what      comparison      §924(e)(2)(A)(ii) requires.  Shular would require "a generic-offense  matching  exercise":  A  court  should  define  the  elements     of     the     generic     offensesidentified     in     §924(e)(2)(A)(ii),   then   compare   those   elements   to   the   
6 SHULAR v. UNITED STATESOpinion of the Courtelements of the state offense.   Brief for Petitioner 13–14.  In the   Government's   view,   a   court   should   apply   "the Kawashimacategorical  approach":  It  should  ask  whether  the  state  offense's  elements  "necessarily  entail  one  of  the  types  of  conduct"  identified  in  §924(e)(2)(A)(ii).    Brief  for  United States 13, 20 (emphasis added).     This methodological dispute is occasioned by an interpre-tive disagreement over §924(e)(2)(A)(ii)'s reference to "man-ufacturing, distributing, or possessing with intent to man-ufacture  or  distribute,  a  controlled  substance."     Those terms, in the Government's view, describe conduct a court can  compare  directly  against  the  state  crime's  elements.    Shular  sees  them  instead  as  offenses  whose  elements  a  court must first expound.B     The  Government's  reading,  we  are  convinced,  correctly  interprets the statutory text and context.  Two features of §924(e)(2)(A)(ii), compared against a neighboring provision referring     to     offenses,     §924(e)(2)(B)(ii),     show     that     §924(e)(2)(A)(ii) refers to conduct.    First,  the  terms  in  §924(e)(2)(A)(ii)—"manufacturing, distributing,  or  possessing  with  intent  to  manufacture  or  distribute, a controlled substance"—are unlikely names for generic offenses.  Those words undoubtedly can be used to describe conduct.  But as Shular acknowledges, they are not universal  names  of  offenses;  instead,  States  define  "core  drug  offenses  with  all  manner  of  terminology,  including:  trafficking,    selling,    giving,    dispensing,    distributing,    delivering, promoting, and producing."  Reply Brief 7.    Contrast   §924(e)(2)(A)(ii)   with §924(e)(2)(B)(ii),   the   enumerated-offense   clause   of   ACCA's   "violent   felony"   definition,  appearing  in  the  same  section  of  the  Career Criminals  Amendment  Act  of  1986,  100  Stat.  3207–39  to 3207–40.    That  provision,  which  refers  to  a  crime  that  "is  burglary,  arson,  or  extortion,"  requires  a  generic-offense 
Cite as:  589 U. S. ____ (2020)7 Opinion of the Courtanalysis.  See Mathis, 579 U. S., at ___ (slip op., at 2).  The terms  "burglary,"  "arson,"  and  "extortion"—given  their  common-law     history     and     widespread     usage—un- ambiguously  name  offenses.    Cf.,  e.g., Taylor,  495  U. S., at 590–599 (discussing "burglary").  Drug offenses, Shular admits, lack "the same heritage and the same established lexicon."  Brief for Petitioner 14.    Second, by speaking of activities a state-law drug offense "involv[es],"  §924(e)(2)(A)(ii)  suggests  that  the  descriptive  terms immediately following the word "involving" identify conduct.      The   parties   agree   that   "involve"   means   "necessarily  requir[e]."    Brief  for  Petitioner  14  (citing  Random  House  Dictionary  of  the  English  Language  1005  (2d  ed.  1987)  ("to  include  as  a  necessary  circumstance, condition,  or  consequence"));  Brief  for  United  States  21  (same).    It  is  natural  to  say  that  an  offense  "involves"  or  "requires" certain    conduct.        E.g.,    §924(e)(2)(B)(ii)    (addressing  a  crime  "involv[ing]  conduct  that  presents  a  serious   potential   risk   of   physical   injury   to   another");   Mathis, 579 U. S., at ___ (slip op., at 5) ("  The generic offense [of burglary]  requires  unlawful  entry  into  a  building  or  other structure."   (internal quotation marks omitted)).    To refer to offenses as Shular urges, it would have been far more natural for the drafter to follow the enumerated-offense   clause   in   using   "is,"   not   "involving."      See   §924(e)(2)(B)(ii)   (crime    that    "is    burglary,    arson,    or    extortion").    There,  the  word  "is"  indicates  a  congruence  between "crime" and the terms that follow, terms that are also  crimes.    See  American  Heritage  Dictionary  114  (def.  7a) (1981) ("To equal in meaning or identity").  Yet Congress did  not  adopt  that  formulation  in  §924(e)(2)(A)(ii),  opting  instead for language suited to conduct.C     Shular    principally    urges    that    at    the    time    of    §924(e)(2)(A)(ii)'s  enactment,  federal  and  state  criminal  
8 SHULAR v. UNITED STATESOpinion of the Courtlaws widely prohibited the "core conduct" of manufacturing, distributing, and possessing with intent to manufacture or distribute  drugs.    Brief  for  Petitioner  10–12.    Some  laws,  Shular  observes,  used  those  very  terms.    See,  e.g.,   21 U. S.   C. §841(a)(1) (1982 ed.).  But even if the substance of state  drug  laws  was  well  established—rather  than  their  nomenclature,  which  Shular  concedes  was  not—Congress could capture that substance by reference to conduct, rather than offenses.    Shular   points   out   that   the   word   "involving"   can   accommodate a generic-offense approach.  Cf. Scheidlerv. National Organization for Women, Inc., 537 U. S. 393, 409 (2003)  ("act  or  threat  involving  . .   .  extortion,"  18  U. S. C. §1961(1), contemplates "'generic' extortion" (some internal quotation marks omitted)).  But we have no reason to think Congress  intended  that  approach  for  §924(e)(2)(A)(ii)—which  uses  no  deeply  rooted  offense  name  like  "extortion"  and  contrasts  with  the  offense-oriented  language  of  a  neighboring provision.    Endeavoring to explain why Congress might have chosen "involving"  over  "is"  in  §924(e)(2)(A)(ii),  Shular  suggests  that variation in state drug-offense terminology required a word  more  approximate  than  "is."    But  if  Congress  was  concerned that state drug offenses lacked clear, universally employed names, the evident solution was to identify them instead by conduct.  Using "involving" rather than "is" does not clarify that the terms are names of offenses; quite the opposite.  See supra, at 7.     Shular  asserts  that  to  describe  conduct  rather  than  offenses,  Congress  would  have  used  the  language  of  the  elements  clause  of  the  "violent  felony"  definition,  which  captures a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of  another."    §924(e)(2)(B)(i)  (emphasis  added).    It  would  have been awkward, however, to describe "possessing with intent   to   manufacture   or   distribute"—requiring   both   
Cite as:  589 U. S. ____ (2020)9 Opinion of the Courtpossession and intent—as "an element."  Congress may also have  wanted  to  clarify  that  the  state  offense  need  not  include  the  identified  conduct  as  a  formal  element.    Cf.  Kawashima,  565  U. S.,  at  483–484  (the  statutory  phrase  "an offense that . .   . involves fraud or deceit" "is not limited to offenses that include fraud or deceit as formal elements" but extends to offenses "that necessarily entail fraudulent or  deceitful  conduct").    Whatever  the  reason,  Congress' choice not to describe each term in §924(e)(2)(A)(ii) as "an element" neither refutes that those terms refer to conduct nor shows that they refer to offenses.    Nor  does  the  other  clause  of  the  "serious  drug  offense"  definition  shed  light  on  the  question  before  us.    Section  924(e)(2)(A)(i)    includes    as    "serious    drug    offenses"    "offense[s] under" specific portions of the U. S. Code.2  That provision,  Shular  observes,  refers  to  fully  defined  crimes.    But "the divergent text of the two provisions" of the serious-drug-offense   definition,   as   the   Government   explains,   "makes any divergence in their application unremarkable."  Brief  for  United  States  22.    Congress'  decision  to  identify  federal  offenses  by  reference  to  the  U. S.  Code  does  not  speak to whether it identified state offenses by reference to named offenses or conduct.D     Shular expresses concern that rejecting a generic-offense approach  would  yield  an  anomalous  result.    Unlike  other  drug  laws,  Shular  contends,  the  Florida  law  under  which  he  was  previously  convicted  does  not  require  that  the  defendant    know    the    substance    is    illicit.Unless §924(e)(2)(A)(ii)  takes  into  account  all  the  elements  of  the —————— 2Section 924(e)(2)(A)(i) provides that the term "serious drug offense" includes  "an  offense  under  the  Controlled  Substances  Act  (21  U. S. C. [§]801  et  seq.),  the  Controlled  Substances  Import  and  Export  Act  (21  U. S. C. [§]951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law."
10 SHULAR v. UNITED STATESOpinion of the Courtoffense   as   commonly   understood,   Shular   maintains,   defendants would face ACCA enhancement based on outlier state laws.    As   an   initial   matter,   Shular   overstates   Florida's   disregard   for   mens   rea.      Charged   under   Fla.   Stat.   §893.13(1)(a), a defendant unaware of the substance's illicit nature  can  raise  that  unawareness  as  an  affirmative  defense,  in  which  case  the  standard  jury  instructions  require a finding of knowledge beyond a reasonable doubt.  §893.101(2);  Fla.  Crim.  Jury  Instr.  §25.2  (2020),  https:// www.floridasupremecourt.org/content/download/568865/6425767/file/EntireDocument.rtf.     In any event, both parties' interpretations of 18 U. S.   C. §924(e)(2)(A)(ii)    achieve    a    measure    of    consistency.        Resolving this case requires us to determine which form of consistency Congress intended: application of ACCA to all offenders  who  engaged  in  certain  conduct  or  to  all  who  committed   certain   generic   offenses   (in   either   reading,   judging only by the elements of their prior convictions).  For the  reasons  explained,  we  are  persuaded  that  Congress  chose the former.E     Shular urges us to apply the rule of lenity in determining whether    §924(e)(2)(A)(ii)    requires    a    generic-offense-matching  analysis.    The  rule  "applies  only  when,  after  consulting traditional canons of statutory construction, we are  left  with  an  ambiguous  statute."    United  States  v. Shabani, 513 U. S. 10, 17 (1994).  Here, we are left with no ambiguity   for   the   rule   of   lenity   to   resolve.      Section   924(e)(2)(A)(ii)'s  text  and  context  leave  no  doubt  that  itrefers     to     an     offense     involving     the     conductof "manufacturing,  distributing,  or  possessing  with  intent  to  manufacture  or  distribute,  a  controlled  substance."     Be-cause  those  terms  describe  conduct  and  do  not  name  of-fenses, a court applying §924(e)(2)(A)(ii) need not delineate 
Cite as:  589 U. S. ____ (2020)11 Opinion of the Courtthe elements of generic offenses.3*        *        *     For  the  reasons  stated,  the  judgment  of  the  Court  of  Appeals for the Eleventh Circuit isAffirmed.—————— 3Shular argues in the alternative that even if §924(e)(2)(A)(ii) does not call for a generic-offense-matching analysis, it requires knowledge of the substance's illicit nature.  See Brief for Petitioner 23; Reply Brief 8–10.  We do not address that argument.  Not only does it fall outside the ques-tion  presented,  Pet.  for  Cert.  i,  Shular  disclaimed  it  at  the  certiorari  stage, Supp.  Brief for Petitioner 3.
_________________ _________________ 1 Cite as:  589 U. S. ____ (2020) KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES No. 18–6662 EDDIE LEE SHULAR, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [February 26, 2020] JUSTICE KAVANAUGH, concurring. I join the Court's opinion in full.  In Part III–E of the opin-ion,  the  Court  rejects  Shular's  argument  for  applying  the  rule  of  lenity.    I  write  separately  to  elaborate  on  why  the  rule of lenity does not apply here.This  Court's  longstanding  precedents  establish  that  the  rule of lenity applies when two conditions are met. First,  as  the  Court  today  says  and  as  the  Court  has  re-peatedly  held,  a  court  may  invoke  the  rule  of  lenity  only  " 'after consulting traditional canons of statutory construc-tion.'"  Ante, at 10 (quoting United States v. Shabani, 513 U. S. 10, 17 (1994)).1  In other words, a court must first em-ploy all of the traditional tools of statutory interpretation, —————— 1See also, e.g., Ocasio v. United States, 578 U. S. ___, ___, n. 8 (2016) (slip op., at 13, n. 8); Robers v. United States, 572 U. S. 639, 646 (2014); Kasten  v.  Saint-Gobain  Performance  Plastics  Corp.,  563  U.  S.  1,  16  (2011); Abbott v. United States, 562 U. S. 8, 28, n. 9 (2010); United States v. Hayes, 555 U. S. 415, 429 (2009); Burgess v. United States, 553 U. S. 124, 135 (2008); Muscarello v. United States, 524 U. S. 125, 138 (1998); Caron v. United States, 524 U. S. 308, 316 (1998); United States v. Wells, 519 U. S. 482, 499 (1997); Reno v. Koray, 515 U. S. 50, 65 (1995); Smith v. United  States,  508  U.  S.  223,  239  (1993);  Gozlon-Peretz  v.  United States, 498 U. S. 395, 410 (1991); Moskal v. United States, 498 U. S. 103, 108  (1990);  Callanan  v.  United  States,  364  U.  S.  587,  596  (1961).    Cf.  Chevron  U. S. A.  Inc.  v.  Natural  Resources  Defense  Council,  Inc.,  467  U. S. 837, 843, n. 9 (1984) (instructing courts to employ "traditional toolsof statutory construction" before concluding that a statute is ambiguous 
2                                SHULAR                                v. UNITED STATES KAVANAUGH, J., concurring and a court may resort to the rule of lenity only "'after seiz-ing everything from which aid can be derived.'"  Ocasio v. United States, 578 U. S. ___, ___, n. 8 (2016) (slip op., at 13, n. 8)  (quoting Muscarello  v.  United  States,  524  U.  S.  125,  138–139  (1998)).    In  summarizing  the  case  law,  Justice  Scalia underscored that the rule of lenity "'comes into oper-ation at the end of the process of construing what Congress has expressed, not at the beginning.'"  A. Scalia & B. Gar-ner,  Reading  Law:  The  Interpretation  of  Legal  Texts  298  (2012)  (quoting  Callanan  v.  United  States,  364  U.  S.  587,  596 (1961)).  Of course, when "a reviewing court employs all of the traditional tools of construction, the court will almost always  reach  a  conclusion  about  the  best  interpretation,"thereby resolving any perceived ambiguity. Kisor v. Wilkie, 588  U.  S.  ___,  ___  (2019)  (slip  op.,  at  1)  (KAVANAUGH,  J.,  concurring in judgment).  That explains why the rule of len-ity rarely comes into play. Second, this Court has repeatedly explained that the ruleof  lenity  applies  only  in  cases  of  "'grievous'"  ambiguity—where  the  court,  even  after  applying  all  of  the  traditionaltools of statutory interpretation, " 'can make no more than a guess as to what Congress intended.'" Ocasio, 578 U. S., at  ___,  n.  8  (slip  op.,  at  13,  n.  8)  (quoting  Muscarello,  524  U. S., at 138–139).  The Court has stated that the "simpleexistence of some statutory ambiguity" is "not sufficient towarrant application of that rule, for most statutes are am-biguous to some degree."  Id., at 138.  To be sure, as Justice Scalia  rightly  noted,  the  term  "'grievous  ambiguity'"  pro-vides "'little more than atmospherics, since it leaves openthe  crucial  question—almost  invariably  present—of  how  much ambiguousness constitutes an ambiguity.'"  Reading Law,  at  299  (quoting  United  States  v.  Hansen,  772  F.  2d  940,  948  (CADC  1985)  (Scalia,  J.,  for  the  court));  see  also  Kavanaugh,  Fixing  Statutory  Interpretation,  129  Harv.  —————— and deferring to an agency's reasonable interpretation). 
3 Cite as:  589 U. S. ____ (2020) KAVANAUGH, J., concurring L.  Rev.  2118  (2016).   That  said,  atmospherics  can  matter.Although  the  Court  has  not  always  been  perfectly  con-sistent  in  its  formulations,  the  Court  has  repeatedly  em-phasized  that  a  court  must  find  not  just  ambiguity  but  "grievous ambiguity" before resorting to the rule of lenity.2 To sum up: Under this Court's longstanding precedents,the  rule  of  lenity  applies  when  a  court  employs  all  of  the  traditional tools of statutory interpretation and, after doing so, concludes that the statute still remains grievously am-biguous, meaning that the court can make no more than a guess as to what the statute means. Because the Court correctly concludes that the rule of len-ity does not apply in this case, I join the Court's opinion infull. —————— 2See, e.g., Shaw v. United States, 580 U. S. ___, ___ (2016) (slip op., at 8);  Salman  v.  United  States,  580  U.  S.  ___,  ___  (2016)  (slip  op.,  at  11);  Abramski v. United States, 573 U. S. 169, 188, n. 10 (2014); Robers, 572 U. S., at 646; United States v. Castleman, 572 U. S. 157, 172–173 (2014); Barber v. Thomas, 560 U. S. 474, 488 (2010); Dolan v. United States, 560 U. S. 605, 621 (2010); Dean v. United States, 556 U. S. 568, 577 (2009); Hayes,  555  U.  S.,  at  429;  Staples  v.  United  States,  511  U.  S.  600,  619,  n.   17 (1994); Chapman v. United States, 500 U. S. 453, 463 (1991); Hud-dleston v. United States, 415 U. S. 814, 831 (1974).