Lockhart v. United States , 136 S. Ct. 958 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LOCKHART v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 14–8358. Argued November 3, 2015—Decided March 1, 2016
Petitioner Avondale Lockhart pleaded guilty to possessing child por-
nography in violation of 18 U.S. C. §2252(a)(4). Because Lockhart
had a prior state-court conviction for first-degree sexual abuse involv-
ing his adult girlfriend, his presentence report concluded that he was
subject to the 10-year mandatory minimum sentence enhancement
provided in §2252(b)(2), which is triggered by, inter alia, prior state
convictions for crimes “relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward.” Lock-
hart argued that the limiting phrase “involving a minor or ward” ap-
plied to all three state crimes, so his prior conviction did not trigger
the enhancement. Disagreeing, the District Court applied the man-
datory minimum. The Second Circuit affirmed.
Held: Lockhart’s prior conviction is encompassed by §2252(b)(2). Pp. 2–
15.
(a) A natural reading of the text supports that conclusion. The
“rule of the last antecedent,” a canon of statutory interpretation stat-
ing that “a limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately follows,”
Barnhart v. Thomas, 540 U.S. 20, 26, clarifies that the phrase “in-
volving a minor or ward” modifies only the immediately preceding
noun phrase “abusive sexual conduct” and that the phrases “aggra-
vated sexual abuse” and “sexual abuse” are not so restricted. The
rule “can . . . be overcome by other indicia of meaning,” ibid., but
§2252(b)(2)’s context reinforces its application in this case. Pp. 2–5.
(b) Section 2252(b)(2)’s enhancement can also be triggered by, inter
alia, a prior federal sexual abuse offense enumerated in Chapter
109A of the Federal Criminal Code. Interpreting §2252(b)(2) using
the “rule of the last antecedent,” the headings in Chapter 109A mir-
2 LOCKHART v. UNITED STATES
Syllabus
ror precisely the order, precisely the divisions, and nearly precisely
the words used to describe the state sexual-abuse predicates. Apply-
ing the modifier “involving a minor or ward” to all three items in
§2252(b)(2)’s list, by contrast, would require this Court to interpret
the state predicates in a way that departs from the federal template.
If Congress had intended that result, it is doubtful that Congress
would have followed so closely the structure and language of Chapter
109A. Pp. 5–7.
(c) Lockhart’s counterarguments are rejected. Pp. 7–14.
(1) Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345,
United States v. Bass, 404 U.S. 336, and Jama v. Immigration and
Customs Enforcement, 543 U.S. 335, do not require this Court to ap-
ply Lockhart’s countervailing series-qualifier principle. In those cas-
es, the Court simply observed that the last-antecedent rule may be
overcome by contextual indicia of meaning. Lockhart’s attempts to
identify such indicia are unavailing. He claims that the state predi-
cates are so similar that a limiting phrase could apply equally to all
three. But by transforming a list of separate predicates into a set of
near-synonyms, Lockhart’s reading results in too much redundancy
and risks running headlong into the rule against superfluity. Pp. 7–
10.
(2) Lockhart contends that the existence of other disparities be-
tween §2252(b)(2)’s state and federal sexual-abuse predicates indi-
cate that parity was not Congress’ concern. However, this Court’s
construction relies on contextual cues particular to the sexual-abuse
predicates, not on a general assumption that Congress sought full
parity between all state and federal predicates. Pp. 10–11.
(3) The provision’s legislative history “hardly speaks with [a]
clarity of purpose,” Universal Camera Corp. v. NLRB, 340 U.S. 474,
483, and does nothing to explain why Congress would have wanted to
structure §2252(b)(2) to treat state and federal predicates differently.
Pp. 11–14.
(4) Finally, Lockhart suggests the rule of lenity is triggered here,
where applying his series-qualifier principle would lead to an alter-
native construction of §2252(b)(2). The rule of lenity is used to re-
solve ambiguity only when the ordinary canons have revealed no sat-
isfactory construction. Here, however, the rule of the last antecedent
is well supported by context, and Lockhart’s alternative is not. P. 14.
749 F.3d 148, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. KAGAN,
J., filed a dissenting opinion, in which BREYER, J., joined.
Cite as: 577 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8358
_________________
AVONDALE LOCKHART, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[March 1, 2016]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Defendants convicted of possessing child pornography in
violation of 18 U.S. C. §2252(a)(4) are subject to a 10-year
mandatory minimum sentence and an increased maxi­
mum sentence if they have “a prior conviction . . . under
the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor
or ward.” §2252(b)(2).
The question before us is whether the phrase “involving
a minor or ward” modifies all items in the list of predicate
crimes (“aggravated sexual abuse,” “sexual abuse,” and
“abusive sexual conduct”) or only the one item that imme­
diately precedes it (“abusive sexual conduct”). Below, the
Court of Appeals for the Second Circuit joined several
other Courts of Appeals in holding that it modifies only
“abusive sexual conduct.” The Eighth Circuit has reached
the contrary result. We granted certiorari to resolve that
split. 575 U. S. ___ (2015). We affirm the Second Circuit’s
holding that the phrase “involving a minor or ward” in
§2252(b)(2) modifies only “abusive sexual conduct.”
2 LOCKHART v. UNITED STATES
Opinion of the Court
I
In April 2000, Avondale Lockhart was convicted of
sexual abuse in the first degree under N. Y. Penal Law
Ann. §130.65(1) (West Cum. Supp. 2015). The crime
involved his then-53-year-old girlfriend. Presentence
Investigation Report (PSR), in No. 11–CR–231–01, p. 13,
¶¶47–48. Eleven years later, Lockhart was indicted in the
Eastern District of New York for attempting to receive
child pornography in violation of 18 U.S. C. §2252(a)(2)
and for possessing child pornography in violation of
§2252(a)(4)(b). Lockhart pleaded guilty to the possession
offense and the Government dismissed the receipt offense.
Lockhart’s presentence report calculated a guidelines
range of 78 to 97 months for the possession offense. But
the report also concluded that Lockhart was subject to
§2252(b)(2)’s mandatory minimum because his prior New
York abuse conviction related “to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor
or ward.” PSR ¶¶87–88.
Lockhart objected, arguing that the statutory phrase
“involving a minor or ward” applies to all three listed
crimes: “aggravated sexual abuse,” “sexual abuse,” and
“abusive sexual conduct.” He therefore contended that his
prior conviction for sexual abuse involving an adult fell
outside the enhancement’s ambit. The District Court
rejected Lockhart’s argument and applied the mandatory
minimum. The Second Circuit affirmed his sentence. 749
F.3d 148 (CA2 2014).
II
Section 2252(b)(2) reads in full:
“Whoever violates, or attempts or conspires to vio­
late [18 U.S. C. §2252(a)(4)] shall be fined under this
title or imprisoned not more than 10 years, or both,
but . . . if such person has a prior conviction under
this chapter, chapter 71, chapter 109A, or chapter
Cite as: 577 U. S. ____ (2016) 3
Opinion of the Court
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws
of any State relating to aggravated sexual abuse, sex­
ual abuse, or abusive sexual conduct involving a mi­
nor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transporta­
tion of child pornography, such person shall be fined
under this title and imprisoned for not less than 10
years nor more than 20 years.”
This case concerns that provision’s list of state sexual-
abuse offenses. The issue before us is whether the limit­
ing phrase that appears at the end of that list—“involving
a minor or ward”—applies to all three predicate crimes
preceding it in the list or only the final predicate crime.
We hold that “involving a minor or ward” modifies only
“abusive sexual conduct,” the antecedent immediately
preceding it. Although §2252(b)(2)’s list of state predicates
is awkwardly phrased (to put it charitably), the provision’s
text and context together reveal a straightforward read­
ing. A timeworn textual canon is confirmed by the struc­
ture and internal logic of the statutory scheme.
A
Consider the text. When this Court has interpreted
statutes that include a list of terms or phrases followed by
a limiting clause, we have typically applied an interpretive
strategy called the “rule of the last antecedent.” See
Barnhart v. Thomas, 540 U.S. 20, 26 (2003). The rule
provides that “a limiting clause or phrase . . . should ordi­
narily be read as modifying only the noun or phrase that it
immediately follows.” Ibid.; see also Black’s Law Diction­
ary 1532–1533 (10th ed. 2014) (“[Q]ualifying words or
phrases modify the words or phrases immediately preced­
ing them and not words or phrases more remote, unless
the extension is necessary from the context or the spirit of
the entire writing”); A. Scalia & B. Garner, Reading Law:
4 LOCKHART v. UNITED STATES
Opinion of the Court
The Interpretation of Legal Texts 144 (2012).
This Court has applied the rule from our earliest deci­
sions to our more recent. See, e.g., Sims Lessee v. Irvine, 3
Dall. 425, 444, n. (1799); FTC v. Mandel Brothers, Inc.,
359 U.S. 385, 389, n. 4 (1959); Barnhart, 540 U.S., at 26.
The rule reflects the basic intuition that when a modifier
appears at the end of a list, it is easier to apply that modi­
fier only to the item directly before it. That is particularly
true where it takes more than a little mental energy to
process the individual entries in the list, making it a
heavy lift to carry the modifier across them all. For exam­
ple, imagine you are the general manager of the Yankees
and you are rounding out your 2016 roster. You tell your
scouts to find a defensive catcher, a quick-footed shortstop,
or a pitcher from last year’s World Champion Kansas City
Royals. It would be natural for your scouts to confine
their search for a pitcher to last year’s championship
team, but to look more broadly for catchers and shortstops.
Applied here, the last antecedent principle suggests that
the phrase “involving a minor or ward” modifies only the
phrase that it immediately follows: “abusive sexual con­
duct.” As a corollary, it also suggests that the phrases
“aggravated sexual abuse” and “sexual abuse” are not so
constrained.
Of course, as with any canon of statutory interpretation,
the rule of the last antecedent “is not an absolute and can
assuredly be overcome by other indicia of meaning.”
Barnhart, 540 U.S., at 26; see also Davis v. Michigan
Dept. of Treasury, 489 U.S. 803, 809 (1989) (“It is a fun­
damental canon of statutory construction that the words of
a statute must be read in their context and with a view to
their place in the overall statutory scheme”). For instance,
take “ ‘the laws, the treaties, and the constitution of the
United States.’ ” Post, at 7, n. 1 (KAGAN, J., dissenting). A
reader intuitively applies “of the United States” to “the
laws,” “the treaties” and “the constitution” because (among
Cite as: 577 U. S. ____ (2016) 5
Opinion of the Court
other things) laws, treaties, and the constitution are often
cited together, because readers are used to seeing “of the
United States” modify each of them, and because the listed
items are simple and parallel without unexpected internal
modifiers or structure. Section 2252(b)(2), by contrast,
does not contain items that readers are used to seeing
listed together or a concluding modifier that readers are
accustomed to applying to each of them. And the varied
syntax of each item in the list makes it hard for the reader
to carry the final modifying clause across all three.
More importantly, here the interpretation urged by the
rule of the last antecedent is not overcome by other indicia
of meaning. To the contrary, §2252(b)(2)’s context fortifies
the meaning that principle commands.
B
Our inquiry into §2252(b)(2)’s context begins with the
internal logic of that provision. Section 2252(b)(2) estab­
lishes sentencing minimums and maximums for three
categories of offenders. The first third of the section im­
poses a 10-year maximum sentence on offenders with no
prior convictions. The second third imposes a 10-year
minimum and 20-year maximum on offenders who have
previously violated a federal offense listed within various
chapters of the Federal Criminal Code. And the last third
imposes the same minimum and maximum on offenders
who have previously committed state “sexual abuse,
aggravated sexual abuse, or abusive sexual conduct in­
volving a minor or ward” as well as a number of state
crimes related to the possession and distribution of child
pornography.
Among the chapters of the Federal Criminal Code that
can trigger §2252(b)(2)’s recidivist enhancement are
crimes “under . . . chapter 109A.” Chapter 109A criminal-
6 LOCKHART v. UNITED STATES
Opinion of the Court
izes a range of sexual-abuse offenses involving adults or
minors and wards.1 And it places those federal sexual-
abuse crimes under headings that use language nearly
identical to the language §2252(b)(2) uses to enumerate
the three categories of state sexual-abuse predicates. The
first section in Chapter 109A is titled “Aggravated sexual
abuse.” 18 U.S. C. §2241. The second is titled “Sexual
abuse.” §2242. And the third is titled “Sexual abuse of a
minor or ward.” §2243. Applying the rule of the last
antecedent, those sections mirror precisely the order,
precisely the divisions, and nearly precisely the words
used to describe the three state sexual-abuse predicate
crimes in §2252(b)(2): “aggravated sexual abuse,” “sexual
abuse,” and “abusive sexual conduct involving a minor or
ward.”
This similarity appears to be more than a coincidence.
We cannot state with certainty that Congress used Chap­
ter 109A as a template for the list of state predicates set
out in §2252(b)(2), but we cannot ignore the parallel,
particularly because the headings in Chapter 109A were
in place when Congress amended the statute to add
§2252(b)(2)’s state sexual-abuse predicates.2
If Congress had intended to limit each of the state pred­
icates to conduct “involving a minor or ward,” we doubt it
would have followed, or thought it needed to follow, so
closely the structure and language of Chapter 109A.3 The
——————
1 For example, §2241(a) of Chapter 109A prohibits forced sexual acts
against “another person”—not just a person under a certain age.
Section 2241(c) specially criminalizes sexual acts “with another person
who has not attained the age of 12 years,” and §2243(b) does the same
for sexual acts with wards who are “in official detention” or “under the
custodial, supervisory, or disciplinary authority of the person so engag­
ing.”
2 See 18 U.S. C. §2241 (1994 ed.) (“Aggravated sexual abuse”); §2242
(“Sexual abuse”); §2243 (“Sexual abuse of a minor or ward”).
3 The dissent points out that §2252(b)(2) (2012 ed.) did not also bor­
Cite as: 577 U. S. ____ (2016) 7
Opinion of the Court
conclusion that Congress followed the federal template is
supported by the fact that Congress did nothing to indi­
cate that offenders with prior federal sexual-abuse convic­
tions are more culpable, harmful, or worthy of enhanced
punishment than offenders with nearly identical state
priors. We therefore see no reason to interpret §2252(b)(2)
so that “[s]exual abuse” that occurs in the Second Circuit
courthouse triggers the sentence enhancement, but “sexual
abuse” that occurs next door in the Manhattan munici-
pal building does not.
III
A
Lockhart argues, to the contrary, that the phrase “in­
volving a minor or ward” should be interpreted to modify
all three state sexual-abuse predicates. He first contends,
as does our dissenting colleague, that the so-called series-
qualifier principle supports his reading. This principle,
Lockhart says, requires a modifier to apply to all items in
a series when such an application would represent a natu­
ral construction. Brief for Petitioner 12; post, at 4.
This Court has long acknowledged that structural or
contextual evidence may “rebut the last antecedent infer­
ence.” Jama v. Immigration and Customs Enforcement,
543 U.S. 335, 344, n. 4 (2005). For instance, in Porto Rico
——————
row from the heading of the fourth section in Chapter 109A (or, we
note, from the fifth, sixth, seventh, or eighth sections) in defining its
categories of state sexual-abuse predicates. Post, at 14-15 (KAGAN, J.
dissenting). But the significance of the similarity between the three
state predicates in §2252(b)(2) and the wording, structure, and order of
the first three sections of Chapter 109A is not diminished by the fact
that Congress stopped there (especially when the remaining sections
largely set out derivations from, definitions of, and penalties for the
first three). See, e.g., §2244 (listing offenses derived from §§2241, 2242,
and 2243); §2245 (creating an enhancement for offenses under Chapter
109A resulting in death); §2246 (listing definitions).
8 LOCKHART v. UNITED STATES
Opinion of the Court
Railway, Light & Power Co. v. Mor, 253 U.S. 345 (1920),
on which Lockhart relies, this Court declined to apply the
rule of the last antecedent where “[n]o reason appears
why” a modifying clause is not “applicable as much to the
first and other words as to the last” and where “special
reasons exist for so construing the clause in question.” Id.,
at 348. In United States v. Bass, 404 U.S. 336 (1971), this
Court declined to apply the rule of the last antecedent
where “there is no reason consistent with any discernable
purpose of the statute to apply” the limiting phrase to the
last antecedent alone. Id., at 341. Likewise, in Jama, the
Court suggested that the rule would not be appropriate
where the “modifying clause appear[s] . . . at the end of a
single, integrated list.” 543 U.S., at 344, n. 4. And, most
recently, in Paroline v. United States, 572 U. S. ___ (2014),
the Court noted that the rule need not be applied “in a
mechanical way where it would require accepting ‘unlikely
premises.’ ” Id., at ___ (slip op., at 9).
But in none of those cases did the Court describe, much
less apply, a countervailing grammatical mandate that
could bear the weight that either Lockhart or the dissent
places on the series qualifier principle. Instead, the Court
simply observed that sometimes context weighs against
the application of the rule of the last antecedent. Barn-
hart, 540 U.S., at 26. Whether a modifier is “applicable
as much to the first . . . as to the last” words in a list,
whether a set of items form a “single, integrated list,” and
whether the application of the rule would require ac­
ceptance of an “unlikely premise” are fundamentally
contextual questions.
Lockhart attempts to identify contextual indicia that he
says rebut the rule of the last antecedent, but those indicia
hurt rather than help his prospects. He points out that
the final two state predicates, “sexual abuse” and “abusive
sexual conduct,” are “nearly synonymous as a matter of
everyday speech.” Brief for Petitioner 17. And, of course,
Cite as: 577 U. S. ____ (2016) 9
Opinion of the Court
anyone who commits “aggravated sexual abuse” has also
necessarily committed “sexual abuse.” So, he posits, the
items in the list are sufficiently similar that a limiting
phrase could apply equally to all three of them.
But Lockhart’s effort to demonstrate some similarity
among the items in the list of state predicates reveals far
too much similarity. The three state predicate crimes are
not just related on Lockhart’s reading; they are hopelessly
redundant. Any conduct that would qualify as “aggravated
sexual abuse . . . involving a minor or ward” or “sexual
abuse . . . involving a minor or ward” would also qualify as
“abusive sexual conduct involving a minor or ward.” We
take no position today on the meaning of the terms “ag­
gravated sexual abuse,” “sexual abuse,” and “abusive
sexual conduct,” including their similarities and differ­
ences. But it is clear that applying the limiting phrase to
all three items would risk running headlong into the rule
against superfluity by transforming a list of separate
predicates into a set of synonyms describing the same
predicate. See Bailey v. United States, 516 U.S. 137, 146
(1995) (“We assume that Congress used two terms because
it intended each term to have a particular, nonsuperfluous
meaning”).
Applying the limiting phrase “involving a minor or
ward” more sparingly, by contrast, preserves some distinc­
tion between the categories of state predicates by limiting
only the third category to conduct “involving a minor or
ward.” We recognize that this interpretation does not
eliminate all superfluity between “aggravated sexual
abuse” and “sexual abuse.” See United States v. Atlantic
Research Corp., 551 U.S. 128, 137 (2007) (“[O]ur hesitancy
to construe statutes to render language superfluous
does not require us to avoid surplusage at all costs. It is
appropriate to tolerate a degree of surplusage”). But there
is a ready explanation for the redundancy that remains: It
follows the categories in Chapter 109A’s federal template.
10 LOCKHART v. UNITED STATES
Opinion of the Court
See supra, at 6. We see no similar explanation for Lock­
hart’s complete collapse of the list.
The dissent offers a suggestion rooted in its impressions
about how people ordinarily speak and write. Post, at 1–4.
The problem is that, as even the dissent acknowledges,
§2252(b)(2)’s list of state predicates is hardly intuitive. No
one would mistake its odd repetition and inelegant phras­
ing for a reflection of the accumulated wisdom of everyday
speech patterns. It would be as if a friend asked you to get
her tart lemons, sour lemons, or sour fruit from Mexico. If
you brought back lemons from California, but your friend
insisted that she was using customary speech and obvi-
ously asked for Mexican fruit only, you would be forgiven
for disagreeing on both counts.
Faced with §2252(b)(2)’s inartful drafting, then, do we
interpret the provision by viewing it as a clear, com­
monsense list best construed as if conversational English?
Or do we look around to see if there might be some prove­
nance to its peculiarity? With Chapter 109A so readily at
hand, we are unpersuaded by our dissenting colleague’s
invocation of basic examples from day-to-day life. What­
ever the validity of the dissent’s broader point, this simply
is not a case in which colloquial practice is of much use.
Section 2252(b)(2)’s list is hardly the way an average
person, or even an average lawyer, would set about to
describe the relevant conduct if they had started from
scratch.
B
Lockhart next takes aim at our construction of
§2252(b)(2) to avoid disparity between the state and federal
sexual-abuse predicates. He contends that other dispar-
ities between state and federal predicates in §2252(b)(2)
indicate that parity was not Congress’ concern. For exam­
ple, §2252(b)(2) imposes the recidivist enhancement on
offenders with prior federal convictions under Chapter 71
Cite as: 577 U. S. ____ (2016) 11
Opinion of the Court
of Title 18, which governs obscenity. See §§1461–1470.
Yet §2252(b)(2) does not impose a similar enhancement
for offenses under state obscenity laws. Similarly,
§2252(b)(2)’s neighbor provision, §2252(b)(1), creates a
mandatory minimum for sex trafficking involving chil­
dren, but not sex trafficking involving adults.
However, our construction of §2252(b)(2)’s sexual-abuse
predicates does not rely on a general assumption that
Congress sought full parity between all of the federal and
state predicates in §2252(b)(2). It relies instead on contex­
tual cues particular to the sexual-abuse predicates. To
enumerate the state sexual-abuse predicates, Congress
used language similar to that in Chapter 109A of the
Federal Criminal Code, which describes crimes involving
both adults and children. See supra, at 6. We therefore
assume that the same language used to describe the state
sexual-abuse predicates also describes conduct involving
both adults and children.
C
Lockhart, joined by the dissent, see post, at 9–11, next
says that the provision’s legislative history supports the
view that Congress deliberately structured §2252(b)(2) to
treat state and federal predicates differently. They rely on
two sources. The first is a reference in a Report from the
Senate Judiciary Committee on the Child Pornography
Prevention Act of 1996, 110 Stat. 3009–26. That Act was
the first to add the language at issue here—“aggravated
sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward”—to the U. S. Code. (It was
initially added to §2252(b)(1), then added two years later
to §2252(b)(2)).
The Report noted that the enhancement applies to
persons with prior convictions “under any State child
abuse law or law relating to the production, receipt or
distribution of child pornography.” See S. Rep. No. 104–
12 LOCKHART v. UNITED STATES
Opinion of the Court
358, p. 9 (1996). But that reference incompletely describes
the state pornography production and distribution predi­
cates, which cover not only “production, receipt, or distrib­
uting of child pornography,” as the Report indicates, but
also “production, possession, receipt, mailing, sale, distri­
bution, shipment, or transportation of child pornography,”
§2252(b)(2). For the reasons discussed, we have no trouble
concluding that the Report also incompletely describes the
state sexual-abuse predicates.
Lockhart and the dissent also rely on a letter sent from
the Department of Justice (DOJ) to the House of Repre­
sentative’s Committee on the Judiciary commenting on the
proposed “Child Protection and Sexual Predator Punish­
ment Act of 1998.” H. R. Rep. No. 105–557, pp. 26–34
(1998). In the letter, DOJ provides commentary on the
then-present state of §§2252(b)(1) and 2252(b)(2), noting
that although there is a “5-year mandatory minimum
sentence for individuals charged with receipt or distribu­
tion of child pornography and who have prior state convic­
tions for child molestation” pursuant to §2252(b)(1), there
is “no enhanced provision for those individuals charged
with possession of child pornography who have prior
convictions for child abuse” pursuant to §2252(b)(2). Id.,
at 31. That letter, they say, demonstrates that DOJ un­
derstood the language at issue here to impose a sentencing
enhancement only for prior state convictions involving
children.
We doubt that DOJ was trying to describe the full reach
of the language in §2252(b)(1), as the dissent suggests. To
the contrary, there are several clues that the letter was
relaying on just one of the provision’s many salient fea­
tures. For instance, the letter’s references to “child moles­
tation” and “child abuse” do not encompass a large number
of state crimes that are unambiguously covered by “abu­
sive sexual conduct involving a minor or ward”—namely,
crimes involving “wards.” Wards can be minors, but they
Cite as: 577 U. S. ____ (2016) 13
Opinion of the Court
can also be adults. See, e.g., §2243(b) (defining “wards” as
persons who are “in official detention” and “under . . .
custodial, supervisory, or disciplinary authority”). More­
over, we doubt that DOJ intended to express a belief that
the potentially broad scope of serious crimes encompassed
by “aggravated sexual abuse, sexual abuse, and abusive
sexual conduct” reaches no further than state crimes that
would traditionally be characterized as “child molestation”
or “child abuse.”
Thus, Congress’ amendment to the provision did give
“DOJ just what it wanted,” post, at 10. But the amend­
ment also did more than that. We therefore think it un­
necessary to restrict our interpretation of the provision to
the parts of it that DOJ chose to highlight in its letter.
Just as importantly, the terse descriptions of the provision
in the Senate Report and DOJ letter do nothing to explain
why Congress would have wanted to apply the mandatory
minimum to individuals convicted in federal court of sex­
ual abuse or aggravated sexual abuse involving an adult,
but not to individuals convicted in state court of the same.
The legislative history, in short, “hardly speaks with [a]
clarity of purpose” through which we can discern Con­
gress’ statutory objective. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 483 (1951).
The best explanation Lockhart can muster is a basic
administrability concern: Congress “knew what conduct it
was capturing under federal law and could be confident
that all covered federal offenses were proper predicates.
But Congress did not have the same familiarity with the
varied and mutable sexual-abuse laws of all fifty states.”
Brief for Petitioner 27. Perhaps Congress worried that
state laws punishing relatively minor offenses like public
lewdness or indecent exposure involving an adult would be
swept into §2252(b)(2). Id., at 28. But the risk Lockhart
identifies is minimal. Whether the terms in §2252(b)(2)
are given their “generic” meaning, see Descamps v. United
14 LOCKHART v. UNITED STATES
Opinion of the Court
States, 570 U. S. ___ (2013); Taylor v. United States, 495
U.S. 575 (1990), or are defined in light of their federal
counterparts—which we do not decide—they are unlikely
to sweep in the bizarre or unexpected state offenses that
worry Lockhart.
D
Finally, Lockhart asks us to apply the rule of lenity. We
have used the lenity principle to resolve ambiguity in
favor of the defendant only “at the end of the process of
construing what Congress has expressed” when the ordi­
nary canons of statutory construction have revealed no
satisfactory construction. Callanan v. United States, 364
U.S. 587, 596 (1961). That is not the case here. To be
sure, Lockhart contends that if we applied a different
principle of statutory construction—namely, his “series­
qualifier principle”—we would arrive at an alternative
construction of §2252(b)(2). But the arguable availability
of multiple, divergent principles of statutory construction
cannot automatically trigger the rule of lenity. Cf. Llewel­
lyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are To Be Con­
strued, 3 Vand. L. Rev. 395, 401 (1950) (“[T]here are two
opposing canons on almost every point”). Here, the rule of
the last antecedent is well supported by context and Lock­
hart’s alternative is not. We will not apply the rule of
lenity to override a sensible grammatical principle but­
tressed by the statute’s text and structure.
* * *
We conclude that the text and structure of §2252(b)(2)
confirm that the provision applies to prior state convic­
tions for “sexual abuse” and “aggravated sexual abuse,”
whether or not the convictions involved a minor or ward.
We therefore hold that Lockhart’s prior conviction for
sexual abuse of an adult is encompassed by §2252(b)(2).
Cite as: 577 U. S. ____ (2016) 15
Opinion of the Court
The judgment of the Court of Appeals, accordingly, is
affirmed.
So ordered.
Cite as: 577 U. S. ____ (2016) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–8358
_________________
AVONDALE LOCKHART, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[March 1, 2016]
JUSTICE KAGAN, with whom JUSTICE BREYER joins,
dissenting.
Imagine a friend told you that she hoped to meet “an
actor, director, or producer involved with the new Star
Wars movie.” You would know immediately that she
wanted to meet an actor from the Star Wars cast—not an
actor in, for example, the latest Zoolander. Suppose a real
estate agent promised to find a client “a house, condo, or
apartment in New York.” Wouldn’t the potential buyer be
annoyed if the agent sent him information about condos in
Maryland or California? And consider a law imposing a
penalty for the “violation of any statute, rule, or regulation
relating to insider trading.” Surely a person would have
cause to protest if punished under that provision for vio-
lating a traffic statute. The reason in all three cases is the
same: Everyone understands that the modifying phrase—
“involved with the new Star Wars movie,” “in New York,”
“relating to insider trading”—applies to each term in the
preceding list, not just the last.
That ordinary understanding of how English works, in
speech and writing alike, should decide this case. Avon-
dale Lockhart is subject to a 10-year mandatory minimum
sentence for possessing child pornography if, but only if,
he has a prior state-law conviction for “aggravated sexual
abuse, sexual abuse, or abusive sexual conduct involving a
2 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
minor or ward.” 18 U.S. C. §2252(b)(2). The Court today,
relying on what is called the “rule of the last antecedent,”
reads the phrase “involving a minor or ward” as modifying
only the final term in that three-item list. But properly
read, the modifier applies to each of the terms—just as in
the examples above. That normal construction finds
support in uncommonly clear-cut legislative history, which
states in so many words that the three predicate crimes all
involve abuse of children. And if any doubt remained, the
rule of lenity would command the same result: Lockhart’s
prior conviction for sexual abuse of an adult does not
trigger §2252(b)(2)’s mandatory minimum penalty. I
respectfully dissent.
I
Begin where the majority does—with the rule of the last
antecedent. See ante, at 3. This Court most fully dis-
cussed that principle in Barnhart v. Thomas, 540 U.S. 20
(2003), which considered a statute providing that an indi-
vidual qualifies as disabled if “he is not only unable to do
his previous work but cannot, considering his age, educa-
tion, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” Id., at 21–22 (quoting 42 U.S. C. §423(d)(2)(A))
(emphasis added). The Court held, invoking the last-
antecedent rule, that the italicized phrase modifies only
the term “substantial gainful work,” and not the term
“previous work” occurring earlier in the sentence. Two
points are of especial note. First, Barnhart contained a
significant caveat: The last-antecedent rule “can assuredly
be overcome by other indicia of meaning.” 540 U.S., at 26;
see, e.g., Nobelman v. American Savings Bank, 508 U.S.
324, 330–331 (1993) (refusing to apply the rule when a
contrary interpretation was “the more reasonable one”).
Second, the grammatical structure of the provision in
Barnhart is nothing like that of the statute in this case:
Cite as: 577 U. S. ____ (2016) 3
KAGAN, J., dissenting
The modifying phrase does not, as here, immediately
follow a list of multiple, parallel terms. That is true as
well in the other instances in which this Court has fol-
lowed the rule. See, e.g., Jama v. Immigration and Cus-
toms Enforcement, 543 U.S. 335 (2005); Batchelor v.
United States, 156 U.S. 426 (1895); Sims Lessee v. Irvine,
3 Dall. 425 (1799).
Indeed, this Court has made clear that the last-
antecedent rule does not generally apply to the grammati-
cal construction present here: when “[t]he modifying
clause appear[s] . . . at the end of a single, integrated list.”
Jama, 543 U.S., at 344, n. 4. Then, the exact opposite is
usually true: As in the examples beginning this opinion,
the modifying phrase refers alike to each of the list’s
terms. A leading treatise puts the point as follows: “When
there is a straightforward, parallel construction that
involves all nouns or verbs in a series,” a modifier at the
end of the list “normally applies to the entire series.” A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 147 (2012); compare id., at 152 (“When the
syntax involves something other than [such] a parallel
series of nouns or verbs,” the modifier “normally applies
only to the nearest reasonable referent”). That interpre-
tive practice of applying the modifier to the whole list
boasts a fancy name—the “series-qualifier canon,” see
Black’s Law Dictionary 1574 (10th ed. 2014)—but, as my
opening examples show, it reflects the completely ordinary
way that people speak and listen, write and read.1
——————
1 The majority’s baseball example, see ante, at 4, reads the other way
only because its three terms are not parallel. The words “catcher” and
“shortstop,” but not “pitcher,” are qualified separate and apart from the
modifying clause at the end of the sentence: “Pitcher” thus calls for a
modifier of its own, and the phrase “from the Kansas City Royals”
answers that call. Imagine the sentence is slightly reworded to refer to
a “defensive catcher, quick-footed shortstop, or hard-throwing pitcher
from the Kansas City Royals.” Or, alternatively, suppose the sentence
4 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Even the exception to the series-qualifier principle is
intuitive, emphasizing both its common-sensical basis and
its customary usage. When the nouns in a list are so
disparate that the modifying clause does not make sense
when applied to them all, then the last-antecedent rule
takes over. Suppose your friend told you not that she
wants to meet “an actor, director, or producer involved
with Star Wars,” but instead that she hopes someday to
meet “a President, Supreme Court Justice, or actor in-
volved with Star Wars.” Presumably, you would know
that she wants to meet a President or Justice even if that
person has no connection to the famed film franchise. But
so long as the modifying clause “is applicable as much to
the first and other words as to the last,” this Court has
stated, “the natural construction of the language demands
that the clause be read as applicable to all.” Paroline v.
United States, 572 U. S. ___, ___ (2014) (slip op., at 9)
(quoting Porto Rico Railway, Light & Power Co. v. Mor,
253 U.S. 345, 348 (1920)). In other words, the modifier
then qualifies not just the last antecedent but the whole
series.
As the majority itself must acknowledge, see ante, at 7–
8, this Court has repeatedly applied the series-qualifier
rule in just that manner. In Paroline, for example, this
Court considered a statute requiring possessors of child
pornography to pay restitution to the individuals whose
abuse is recorded in those materials. The law defines such
a victim’s losses to include “medical services relating to
physical, psychiatric, or psychological care; physical and
occupational therapy or rehabilitation; necessary trans-
portation, temporary housing, and child care expenses;
——————
referred simply to a “catcher, shortstop, or pitcher from the Kansas City
Royals.” Either way, all three players must come from the Royals—
because the three terms (unlike in the majority’s sentence) are a
parallel series with a modifying clause at the end.
Cite as: 577 U. S. ____ (2016) 5
KAGAN, J., dissenting
lost income; attorneys’ fees, as well as other costs in-
curred; and any other losses suffered by the victim as a
proximate result of the offense.” 18 U.S. C.
§§2259(b)(3)(A)–(F) (lettering omitted). The victim bring-
ing the lawsuit invoked the last-antecedent rule to argue
that the modifier at the end of the provision—“as a proxi-
mate result of the offense”—pertained only to the last item
in the preceding list, and not to any of the others. See 572
U. S., at ___ (slip op., at 9). But the Court rejected that
view: It recited the “canon[ ] of statutory construction,”
derived from the “natural” use of language, that “[w]hen
several words are followed by a clause” that can sensibly
modify them all, it should be understood to do so. Ibid.
Thus, the Court read the proximate-cause requirement to
cover each and every term in the list.
United States v. Bass, 404 U.S. 336 (1971), to take just
one other example, followed the same rule. There, the
Court confronted a statute making it a crime for a convicted
felon to “receive[ ], possess[ ], or transport[ ] in commerce or
affecting commerce . . . any firearm.” 18 U.S. C. App.
§1202(a) (1970 ed.) (current version at 18 U.S. C. §922(g)).
The Government contended that the modifying clause—
“in commerce or affecting commerce”—applied only to
“transport” and not to “receive” or “possess.” But the
Court rebuffed that argument. “[T]he natural construc-
tion of the language,” the Court recognized, “suggests that
the clause ‘in commerce or affecting commerce’ qualifies
all three antecedents in the list.” 404 U.S., at 339 (some
internal quotation marks omitted). Relying on longstand-
ing precedents endorsing such a construction, the Court
explained: “Since ‘in commerce or affecting commerce’
undeniably applies to at least one antecedent, and since it
makes sense with all three, the more plausible construc-
tion here is that it in fact applies to all three.” Id., at 339–
340 (citing United States v. Standard Brewery, Inc., 251
U.S. 210, 218 (1920); Porto Rico Railway, 253 U.S., at
6 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
348); see also, e.g., Jones v. United States, 529 U.S. 848,
853 (2000) (similarly treating the interstate commerce
element in the phrase “any building, vehicle, or other real
or personal property used in interstate or foreign com-
merce” as applying to buildings and vehicles).
That analysis holds equally for §2252(b)(2), the sentenc-
ing provision at issue here. The relevant language—
“aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward”—contains a “single,
integrated list” of parallel terms (i.e., sex crimes) followed
by a modifying clause. Jama, 543 U.S., at 344, n. 4.
Given the close relation among the terms in the series, the
modifier makes sense “as much to the first and other
words as to the last.” Paroline, 572 U. S., at ___ (slip op.,
at 9). In other words, the reference to a minor or ward
applies as well to sexual abuse and aggravated sexual
abuse as to abusive sexual conduct. (The case would be
different if, for example, the statute established a manda-
tory minimum for any person previously convicted of
“arson, receipt of stolen property, or abusive sexual con-
duct involving a minor or ward.”) So interpreting the
modifier “as applicable to all” the preceding terms is what
“the natural construction of the language” requires. Ibid.;
Bass, 404 U.S., at 339.
The majority responds to all this by claiming that the
“inelegant phrasing” of §2252(b)(2) renders it somehow
exempt from a grammatical rule reflecting “how people
ordinarily” use the English language. Ante, at 10. But to
begin with, the majority is wrong to suggest that the
series-qualifier canon is only about “colloquial” or “conver-
sational” English. Ibid. In fact, it applies to both speech
and writing, in both their informal and their formal varie-
ties. Here is a way to test my point: Pick up a journal, or a
book, or for that matter a Supreme Court opinion—most of
which keep “everyday” colloquialisms at a far distance.
Ibid. You’ll come across many sentences having the struc-
Cite as: 577 U. S. ____ (2016) 7
KAGAN, J., dissenting
ture of the statutory provision at issue here: a few nouns
followed by a modifying clause. And you’ll discover, again
and yet again, that the clause modifies every noun in the
series, not just the last—in other words, that even (espe-
cially?) in formal writing, the series-qualifier principle
works.2 And the majority is wrong too in suggesting that
the “odd repetition” in §2252(b)(2)’s list of state predicates
causes the series-qualifier principle to lose its force. Ibid.
The majority’s own made-up sentence proves that much.
If a friend asked you “to get her tart lemons, sour lemons,
or sour fruit from Mexico,” you might well think her list of
terms perplexing: You might puzzle over the difference
between tart and sour lemons, and wonder why she had
specifically mentioned lemons when she apparently would
be happy with sour fruit of any kind. But of one thing, you
——————
2 Too busy to carry out this homework assignment? Consider some
examples (there are many more) from just the last few months of this
Court’s work. In OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___
(2015) (slip op., at 5–6), this Court described a lawsuit as alleging
“wrongful arrest, imprisonment, and torture by Saudi police.” In
James v. Boise, 577 U. S. ___, ___ (2016) (per curiam) (slip op., at 2)
(quoting Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816)), this
Court affirmed that state courts must follow its interpretations of “the
laws, the treaties, and the constitution of the United States.” In Musac-
chio v. United States, 577 U. S. ___, ___ (2016) (slip op., at 8) (quoting
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)), this Court
noted that in interpreting statutes it looks to the “text, context, and
relevant historical treatment of the provision at issue.” In FERC v.
Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (slip op., at 15),
this Court applied a statute addressing “any rule, regulation, practice,
or contract affecting [a wholesale] rate [or] charge.” And in Montanile v.
Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577
U. S. ___, ___ (2016) (slip op., at 2), this Court interpreted an employee
benefits plan requiring reimbursement “for attorneys’ fees, costs,
expenses or damages claimed by the covered person.” In each case, of
course, the italicized modifying clause refers to every item in the
preceding list. That is because the series-qualifier rule reflects how all
of us use language, in writing and in speech, in formal and informal
contexts, all the time.
8 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
would have no doubt: Your friend wants some produce
from Mexico; it would not do to get her, say, sour lemons
from Vietnam. However weird the way she listed fruits—
or the way §2252(b)(2) lists offenses—the modifying clause
still refers to them all.
The majority as well seeks refuge in the idea that apply-
ing the series-qualifier canon to §2252(b)(2) would violate
the rule against superfluity. See ante, at 9–10. Says the
majority: “Any conduct that would qualify as ‘aggravated
sexual abuse . . . involving a minor or ward’ or ‘sexual
abuse . . . involving a minor or ward’ would also qualify as
‘abusive sexual conduct involving a minor or ward.’ ” Ante,
at 9. But that rejoinder doesn’t work. “[T]he canon
against superfluity,” this Court has often stated, “assists
only where a competing interpretation gives effect to every
clause and word of a statute.” Microsoft Corp. v. i4i Ltd.
Partnership, 564 U.S. 91, 106 (2011) (internal quotation
marks omitted); see, e.g., Bruesewitz v. Wyeth LLC, 562
U.S. 223, 236 (2011). And the majority’s approach (as it
admits, see ante, at 9) produces superfluity too—and in
equal measure. Now (to rearrange the majority’s sen-
tence) any conduct that would qualify as “abusive sexual
conduct involving a minor or ward” or “aggravated sexual
abuse” would also qualify as “sexual abuse.” In other
words, on the majority’s reading as well, two listed crimes
become subsets of a third, so that the three could have
been written as one. And indeed, the majority’s superfluity
has an especially odd quality, because it relates to the
modifying clause itself: The majority, that is, makes the
term “involving a minor or ward” wholly unnecessary.
Remember the old adage about the pot and the kettle?
That is why the rule against superfluity cannot excuse the
majority from reading §2252(b)(2)’s modifier, as ordinary
usage demands, to pertain to all the terms in the preced-
Cite as: 577 U. S. ____ (2016) 9
KAGAN, J., dissenting
ing series.3
II
Legislative history confirms what the natural construc-
tion of language shows: Each of the three predicate of-
fenses at issue here must involve a minor. The list of
those crimes appears in two places in §2252(b)—both in
§2252(b)(1), which contains a sentencing enhancement for
those convicted of distributing or receiving child pornogra-
phy, and in §2252(b)(2), which includes a similar en-
hancement for those (like Lockhart) convicted of pos-
sessing such material. Descriptions of that list of offenses,
made at the time Congress added it to those provisions,
belie the majority’s position.
The relevant language—again, providing for a manda-
tory minimum sentence if a person has a prior state-law
conviction for “aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward”—first
made its appearance in 1996, when Congress inserted it
into §2252(b)(1). See Child Pornography Prevention Act of
1996, §121(5), 110 Stat. 3009–30, 18 U.S. C. §2251 note.
At that time, the Senate Report on the legislation ex-
plained what the new language meant: The mandatory
minimum would apply to an “offender with a prior convic-
tion under . . . any State child abuse law.” S. Rep. No.
104–358, p. 9 (1996) (emphasis added). It is hard to imag-
ine saying any more directly that the just-added state
sexual-abuse predicates all involve minors, and minors
only.4
——————
3 The majority asserts that it has found, concealed within
§2252(b)(2)’s structure, an “explanation” for its own superfluity, ante, at
9, but that claim, as I’ll soon show, collapses on further examination.
See infra, at 13–16.
4 And it makes no difference that the Senate Report accompanied
§2252(b)(1)’s, rather than §2252(b)(2)’s, amendment. No one can
possibly think (and the majority therefore does not try to argue) that
10 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Two years later, in urging Congress to include the same
predicate offenses in §2252(b)(2), the Department of Jus-
tice (DOJ) itself read the list that way. In a formal bill
comment, DOJ noted that proposed legislation on child
pornography failed to fix a statutory oddity: Only
§2252(b)(1), and not §2252(b)(2), then contained the state
predicates at issue here. DOJ described that discrepancy
as follows: Whereas §2252(b)(1) provided a penalty en-
hancement for “individuals charged with receipt or distri-
bution of child pornography and who have prior state
convictions for child molestation,” the adjacent §2252(b)(2)
contained no such enhancement for those “charged with
possession of child pornography who have prior convictions
for child abuse.” H. R. Rep. No. 105–557, p. 31 (1998)
(emphasis added). That should change, DOJ wrote: A
possessor of child pornography should also be subject to a
2-year mandatory minimum if he had “a prior conviction
for sexual abuse of a minor.” Ibid. (emphasis added). DOJ
thus made clear that the predicate offenses it recom-
mended adding to §2252(b)(2)—like those already in
§2252(b)(1)—related not to all sexual abuse but only to
sexual abuse of children. And Congress gave DOJ just
what it wanted: Soon after receiving the letter, Congress
added the language at issue to §2252(b)(2), resulting in
the requested 2-year minimum sentence. See Protection of
Children From Sexual Predators Act of 1998, §202(a)(2),
112 Stat. 2977, 18 U.S. C. §1 note. So every indication, in
1998 no less than in 1996, was that all the predicate
crimes relate to children alone.
The majority’s response to this history fails to blunt its
force. According to the majority, the reference to “any
state child abuse law” in the Senate Report is simply an
“incomplete[ ] descri[ption]” of “the state sexual-abuse
——————
the disputed language means something different in §2252(b)(2) than in
its neighbor and model, §2252(b)(1).
Cite as: 577 U. S. ____ (2016) 11
KAGAN, J., dissenting
predicates.” Ante, at 12. And similarly, the majority
ventures, the DOJ letter was merely noting “one of the
provision’s many salient features.” Ibid. But suppose that
you (like the Senate Report’s or DOJ letter’s authors) had
to paraphrase or condense the statutory language at issue
here, and that you (like the majority) thought it captured
all sexual-abuse crimes. Would you then use the phrase
“any state child abuse law” as a descriptor (as the Senate
Report did)? And would you refer to the whole list of state
predicates as involving “sexual abuse of a minor” (as the
DOJ letter did)? Of course not. But you might well use
such shorthand if, alternatively, you understood the statu-
tory language (as I do) to cover only sexual offenses
against children. And so the authors of the Report and
letter did here. Such documents of necessity abridge
statutory language; but they do not do so by conveying an
utterly false impression of what that language is most
centrally about—as by describing a provision that (sup-
posedly) covers all sexual abuse as one that reaches only
child molestation.5
——————
5 The majority tries to bolster its “incomplete description” claim by
highlighting another summary statement in the Senate Report, but
that reference merely illustrates my point. In amending §2252(b)(1)
(and later §2252(b)(2)), Congress added not only the child sexual-abuse
predicates at issue here, but also a set of predicate state offenses
relating to child pornography. Specifically, Congress provided a man-
datory minimum sentence for individuals previously convicted of the
“production, possession, receipt, mailing, sale, distribution, shipment,
or transportation of child pornography.” Child Pornography Prevention
Act, §121(5), 110 Stat. 3009–30. The Senate Report described those
predicate crimes in an abbreviated fashion as “relating to the produc-
tion, receipt or distribution of child pornography.” S. Rep. No. 104–358,
p. 9 (1996). That synopsis doubtless leaves some things out, as any
synopsis does; but no reader of the Report would be terribly surprised
to see the fuller statutory list. The same cannot be said of the phrase
“any state child abuse law” if that in fact refers to laws prohibiting all
rape, sexual assault, and similar behavior.
The majority makes the identical mistake in asserting that the DOJ
12 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
Further, the majority objects that the Senate Report’s
(and DOJ letter’s) drafters did “nothing to explain why”
Congress would have limited §2252(b)’s state sexual-abuse
predicates to those involving children when the provision’s
federal sexual-abuse predicates (as all agree) are not so
confined. Ante, at 13 (emphasis in original). But Congress
is under no obligation to this Court to justify its choices.
(Nor is DOJ obliged to explain them to Congress itself.)
Rather, the duty is on this Court to carry out those deci-
sions, regardless of whether it understands all that lay
behind them. The Senate Report (and DOJ letter too) says
what it says about §2252(b)’s meaning, confirming in no
uncertain terms the most natural reading of the statutory
language. Explanation or no, that is more than sufficient.
And the majority (as it concedes) cannot claim that
Congress simply must have wanted §2252(b)(2)’s federal
and state predicates to be the same. See ante, at 11
(“[O]ur construction of §2252(b)(2)’s sexual-abuse predi-
cates does not rely on a general assumption that Congress
sought full parity between all of the federal and state
predicates”). That is because both §2252(b)(1) and
§2252(b)(2) contain many federal predicates lacking state
matches. Under §2252(b)(1), for example, a person is
subject to a mandatory minimum if he previously violated
——————
letter merely “highlight[s]” one of §2252(b)(1)’s many features. Ante, at
13. To support that claim, the majority notes that the letter omits any
discussion of sexual crimes against adult wards, even though the
statute covers those offenses on any theory. But that elision is perfectly
natural. The number of sex crimes against adult wards pales in com-
parison to those against children: In discussing the latter, DOJ was
focused on the mine-run offense. (For the same reason, this opinion’s
descriptions of §2252(b) often skip any reference to wards. See supra,
at 9, 11; infra, at 13. Count that as a writer’s choice to avoid extrane-
ous detail.) The majority cannot offer any similar, simple explanation
of why DOJ would have repeatedly referred only to sex crimes against
children if the statutory language it was explicating—and proposing to
add to another provision—also covered sex crimes against all adults.
Cite as: 577 U. S. ____ (2016) 13
KAGAN, J., dissenting
18 U.S. C. §1591, which prohibits “[s]ex trafficking of
children or [sex trafficking] by force, fraud, or coercion.”
But if the prior conviction is under state law, only sex
trafficking of children will trigger that minimum; traffick-
ing of adults, even if by force, fraud, or coercion, will not.
That mismatch—trafficking of both adults and children on
the federal side, trafficking of children alone on the state
side—precisely parallels my view of the sexual-abuse
predicates at issue here. More generally, ten federal
obscenity crimes trigger both §2252(b)(1)’s and
§2252(b)(2)’s enhanced punishments; but equivalent state
crimes do not do so. And five federal prostitution offenses
prompt mandatory minimums under those provisions; but
no such state offenses do. Noting those disparities, the
Government concedes: “[W]hen Congress adds state-law
offenses to the lists of predicate offenses triggering child-
pornography recidivist enhancements, it sometimes adds
state offenses corresponding to only a subset of the federal
offenses” previously included. Brief for United States 43.
Just so. And this Court ought to enforce that choice.
III
As against the most natural construction of §2252(b)(2)’s
language, plus unusually limpid legislative history, the
majority relies on a structural argument. See ante, at 5–7.
The federal sexual-abuse predicates in §2252(b)(2), the
majority begins, are described as crimes “under . . . Chap-
ter 109A,” and that chapter “criminalizes a range of sexual-
abuse offenses involving adults or minors.” Ante, at 5–6
(emphasis in original). Once again, the majority cannot
say that this fact alone resolves the question presented,
given the many times (just discussed) that Congress opted
to make federal crimes, but not equivalent state crimes,
predicates for §2252(b)(2)’s mandatory minimums. But
the majority claims to see more than that here: The head-
ings of the sections in Chapter 109A, it contends, “mirror
14 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
precisely the order . . . and nearly precisely the words used
to describe” the state predicate crimes at issue. Ante, at 6.
The majority “cannot state with certainty,” but hazards a
guess that Congress thus used Chapter 109A “as a tem-
plate for the list of state predicates”—or, otherwise said,
that Congress “followed” the “structure and language of
Chapter 109A” in defining those state-law offenses. Ibid.
But §2252(b)(2)’s state predicates are not nearly as
similar to the federal crimes in Chapter 109A as the ma-
jority claims. That Chapter includes the following offenses:
“Aggravated sexual abuse,” §2241, “Sexual abuse,”
§2242, “Sexual abuse of a minor or ward,” §2243, and
“Abusive sexual contact,” §2244. The Chapter thus con-
tains four crimes—one more than found in §2252(b)(2)’s
list of state offenses. If the drafters of §2252(b)(2) meant
merely to copy Chapter 109A, why would they have left
out one of its crimes? The majority has no explanation.6
And there is more. Suppose Congress, for whatever hard-
to-fathom reason, wanted to replicate only Chapter 109A’s
first three offenses. It would then have used the same
language, referring to “the laws of any State relating to
aggravated sexual abuse, sexual abuse, or sexual abuse of
a minor or ward.” (And had Congress used that language,
the phrase “of a minor or ward” would clearly have applied
only to the third term, to differentiate it from the other-
wise identical second.) But contra the majority, see ante,
at 6, 9–10, that is not what §2252(b)(2)’s drafters did.
——————
6 In a footnote, the majority intimates that Chapter 109A contains
only three crimes—but that reading is unambiguously wrong. Unlike
the fifth through eighth sections of that chapter (which the majority
invokes to no purpose), the fourth—again, entitled “[a]busive sexual
contact”—sets out an independent substantive offense, criminalizing
acts not made illegal in the first three sections. §§2244(a)–(c); see also
42 U.S. C. §16911 (separately listing this offense in identifying who
must register as a sex offender). The majority, as noted above, gives no
reason why Congress would have ignored that fourth crime had it been
using Chapter 109A as a template.
Cite as: 577 U. S. ____ (2016) 15
KAGAN, J., dissenting
Rather than repeating the phrase “sexual abuse,” they
used the phrase “abusive sexual conduct” in the list’s last
term—which echoes, if anything, the separate crime of
“abusive sexual contact” (included in Chapter 109A’s
fourth offense, as well as in other places in the federal
code, see, e.g., 10 U.S. C. §920(d)). The choice of those
different words indicates, yet again, that Congress did not
mean, as the majority imagines, to duplicate Chapter
109A’s set of offenses.
Indeed, even the Government has refused to accept the
notion that the federal and state sexual-abuse predicates
mirror each other. The Government, to be sure, has ar-
gued that it would be “anomalous” if federal, but not
state, convictions for sexually abusing adults trigger
§2252(b)(2)’s enhanced penalty. Brief for United States
23. (I have discussed that more modest point above:
Anomalous or not, such differences between federal and
state predicates are a recurring feature of the statute. See
supra, at 12–13.) But the Government, in both briefing
and argument, rejected the idea that Congress wanted the
list of state predicates in §2252(b)(2) to mimic the crimes
in Chapter 109A; in other words, it denied that Congress
meant for the state and federal offenses to bear the same
meaning. See Brief for United States 22, n. 8; Tr. of Oral
Arg. 26. Even in the face of sustained questioning from
Members of this Court, the Government held fast to that
position. See, e.g., Tr. of Oral Arg. 25–26 (JUSTICE ALITO:
“[W]hy do you resist the argument that what Congress
was doing was picking up basically the definitions of the
Federal offenses [in Chapter 109A] that are worded almost
identically?” Assistant to the Solicitor General: “[W]e
don’t think that Congress was trying” to do that). The
listed state and federal offenses, the Government made
clear, are not intended to be copies.
The majority seems to think that view somehow con-
sistent with its own hypothesis that Chapter 109A served
16 LOCKHART v. UNITED STATES
KAGAN, J., dissenting
as a “template” for §2252(b)(2)’s state predicates, ante, at
6; in responding to one of Lockhart’s arguments, the ma-
jority remarks that the state predicates might have a
“generic” meaning, distinct from Chapter 109A’s, ante, at
14. But if that is so, the majority’s supposed template is
not much of a template after all. The predicate state
offenses would “follow” or “parallel” Chapter 109A in a
single respect, but not in any others—that is, in including
sexual abuse of adults, but not in otherwise defining
wrongful sexual conduct (whether concerning adults or
children). Ante, at 6. The template, one might say, is good
for this case and this case only. And the majority has no
theory for why that should be so: It offers not the slimmest
explanation of how Chapter 109A can resolve today’s
question but not the many issues courts will face in the
future involving the meaning of §2252(b)(2)’s state predi-
cate offenses. That is because no rationale would make
sense. The right and consistent view is that Chapter
109A, like the other federal predicates in §2252(b)(2), is
across-the-board irrelevant in defining that provision’s
state predicates. Thus, the federal chapter’s four differ-
ently worded crimes are independent of the three state
offenses at issue here—all of which, for the reasons I’ve
given, must “involv[e] a minor or ward.”
IV
Suppose, for a moment, that this case is not as clear as
I’ve suggested. Assume there is no way to know whether
to apply the last-antecedent or the series-qualifier rule.
Imagine, too, that the legislative history is not quite so
compelling and the majority’s “template” argument not
quite so strained. Who, then, should prevail?
This Court has a rule for how to resolve genuine ambi-
guity in criminal statutes: in favor of the criminal defend-
ant. As the majority puts the point, the rule of lenity
insists that courts side with the defendant “when the
Cite as: 577 U. S. ____ (2016) 17
KAGAN, J., dissenting
ordinary canons of statutory construction have revealed no
satisfactory construction.” Ante, at 14 (citing Callanan v.
United States, 364 U.S. 587, 596 (1961)); see also Bifulco
v. United States, 447 U.S. 381, 387 (1980) (holding that
the rule of lenity “applies not only to interpretations of the
substantive ambit of criminal prohibitions, but also to the
penalties they impose”). At the very least, that principle
should tip the scales in Lockhart’s favor, because nothing
the majority has said shows that the modifying clause in
§2252(b)(2) unambiguously applies to only the last term in
the preceding series.
But in fact, Lockhart’s case is stronger. Consider the
following sentence, summarizing various points made
above: “The series-qualifier principle, the legislative history,
and the rule of lenity discussed in this opinion all point
in the same direction.” Now answer the following ques-
tion: Has only the rule of lenity been discussed in this
opinion, or have the series-qualifier principle and the
legislative history been discussed as well? Even had you
not read the preceding 16-plus pages, you would know the
right answer—because of the ordinary way all of us use
language. That, in the end, is why Lockhart should win.