(Slip Opinion)              OCTOBER TERM, 2008                                       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

                 ABUELHAWA v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE FOURTH CIRCUIT

       No. 08–192.      Argued March 4, 2009—Decided May 26, 2009
A wiretap of Mohammed Said’s telephone recorded six calls in which
  petitioner Abuelhawa arranged to buy cocaine from Said in two sepa
  rate 1-gram transactions. Those two purchases were misdemeanors
  under the Controlled Substances Act (CSA), 21 U. S. C. §844, while
  Said’s two sales were felonies, §841(a)(1) and (b). The Government
  charged Abuelhawa with six felonies on the theory that each of the
  phone calls, some placed by him, some by Said, violated §843(b),
  which makes it a felony “to use any communication facility in . . . fa
  cilitating” felony distribution and other drug crimes. The District
  Court denied Abuelhawa’s acquittal motion, in which he argued that
  his efforts to make misdemeanor purchases could not be treated as
  facilitating Said’s felonies. The jury convicted Abuelhawa on all six
  felony counts. The Fourth Circuit affirmed, reasoning that “facili
  tat[e]” should be given its ordinary meaning in §843(b) and that
  Abuelhawa’s use of a phone to buy cocaine counted as ordinary facili
  tation because it made Said’s distribution of the drug easier.
Held: Using a telephone to make a misdemeanor drug purchase does
 not “facilitat[e]” felony drug distribution in violation of §843(b).
 Stopping with the plain meaning of “facilitate” here would ignore the
 rule that because statutes are not read as a collection of isolated
 phrases, “[a] word in a statute may or may not extend to the outer
 limits of its definitional possibilities.” Dolan v. Postal Service, 546
 U. S. 481, 486. Here it does not. The literal sweep of “facilitat[e]”
 sits uncomfortably with common usage: Where a transaction like a
 sale necessarily presupposes two parties with specific roles, it would
 be odd to speak of one party as facilitating the other’s conduct. The
 common usage has its parallel in cases holding that where a statute
 treats one side of a bilateral transaction more leniently, adding to the
2                   ABUELHAWA v. UNITED STATES

                                   Syllabus

    penalty of the party on that side for facilitating the action by the
    other would upend the legislature’s punishment calibration. In Ge
    bardi v. United States, 287 U. S. 112, 119, for example, the Court
    held that a woman who voluntarily crossed a state line with a man to
    have sex could not be tagged with the Mann Act violation for
    “aid[ing] or assist[ing]” interstate transportation for immoral pur
    poses because the statutory penalties were “clearly directed against
    the acts of the transporter as distinguished from the consent of the
    subject of the transportation.” Such cases have a bearing here in two
    ways. First, given the presumption, see, e.g., Williams v. Taylor, 529
    U. S. 362, 380–381, and n. 12, that the Congress that enacted §843(b)
    was familiar with the traditional judicial limitation on applying
    terms like “aid,” “abet,” and “assist,” it is likely the Legislature had a
    comparable scope in mind when it used “facilitate,” a word with
    equivalent meaning. Second, any broader reading would for practical
    purposes substantially skew the congressional calibration of respec
    tive buyer-seller penalties. Moreover, the statute’s history—which
    shows that in 1970 the CSA downgraded simple possession from a
    felony to a misdemeanor, §844(a), and simultaneously limited the
    communications provision’s prohibition of facilitating a drug “offense”
    to facilitating a “felony,” §843(b)—drives home what is clear from the
    statutory text: Congress meant to treat purchasing drugs for personal
    use more leniently than felony distribution, and to narrow the scope
    of the communications provision to cover only those who facilitate a
    felony. Yet, under the Government’s reading of §843(b), in a substan
    tial number of cases Congress would for all practical purposes simul
    taneously have graded back up to felony status with the left hand the
    same offense, simple drug possession, it had dropped to a misde
    meanor with the right. Given that Congress used no language spell
    ing out a purpose so improbable, but legislated against a background
    usage of terms such as “aid,” “abet,” and “assist” that points in the
    opposite direction and accords with the CSA’s choice to classify small
    purchases as misdemeanors, the Government’s position is just too
    unlikely. Pp. 3–8.
523 F. 3d 415, reversed and remanded.

    SOUTER, J., delivered the opinion for a unanimous Court.
                        Cite as: 556 U. S. ____ (2009)                              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. 08–192
                                   _________________


    SALMAN KHADE ABUELHAWA, PETITIONER
             v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

           APPEALS FOR THE FOURTH CIRCUIT

                                 [May 26, 2009] 


   JUSTICE SOUTER delivered the opinion of the Court.
   The Controlled Substances Act (CSA) makes it a felony
“to use any communication facility in committing or in
causing or facilitating” certain felonies prohibited by the
statute. 84 Stat. 1263, 21 U. S. C. §843(b). The question
here is whether someone violates §843(b) in making a
misdemeanor drug purchase because his phone call to the
dealer can be said to facilitate the felony of drug distribu
tion. The answer is no.
                               I
   FBI agents believed Mohammed Said was selling co
caine and got a warrant to tap his cell phone. In the
course of listening in, they recorded six calls between Said
and petitioner Salman Khade Abuelhawa, during which
Abuelhawa arranged to buy cocaine from Said in two
separate transactions, each time a single gram. Abuel
hawa’s two purchases were misdemeanors, §844, while
Said’s two sales were felonies, §841(a)(1) and (b). The
Government nonetheless charged Abuelhawa with six
felonies on the theory that each of the phone calls,
whether placed by Abuelhawa or by Said, had been made
2                 ABUELHAWA v. UNITED STATES

                          Opinion of the Court

“in causing or facilitating” Said’s felonies, in violation of
§843(b).1 Abuelhawa moved for acquittal as a matter of
law, arguing that his efforts to commit the misdemeanors
of buying cocaine could not be treated as causing or facili
tating Said’s felonies, but the District Court denied his
motion, App. to Pet. for Cert. 20a–25a, and the jury con
victed him on all six felony counts.
  Abuelhawa argued the same point to the Court of Ap
peals for the Fourth Circuit, with as much success. The
Circuit reasoned that “for purposes of §843(b), ‘facilitate’
should be given its ‘common meaning—to make easier or
less difficult, or to assist or aid.’ ” 523 F. 3d 415, 420
(2008) (quoting United States v. Lozano, 839 F. 2d 1020,
1023 (CA4 1988)). The court said Abuelhawa’s use of a
phone to buy cocaine counted as ordinary facilitation
because it “undoubtedly made Said’s cocaine distribution
easier; in fact, ‘it made the sale possible.’ ” 523 F. 3d, at
421 (quoting United States v. Binkley, 903 F. 2d 1130,
1136 (CA7 1990) (emphasis deleted)). We granted certio
rari, 555 U. S. ___ (2008), to resolve a split among the
Courts of Appeals on the scope of §843(b),2 and we now
——————
    1 In
       full, §843(b) provides:
  “It shall be unlawful for any person knowingly or intentionally to use
any communication facility in committing or in causing or facilitating
the commission of any act or acts constituting a felony under any
provision of this subchapter or subchapter II of this chapter. Each
separate use of a communication facility shall be a separate offense
under this subsection. For purposes of this subsection, the term ‘com
munication facility’ means any and all public and private instrumen
talities used or useful in the transmission of writing, signs, signals,
pictures, or sounds of all kinds and includes mail, telephone, wire,
radio, and all other means of communication.”
  Section 843(d) provides, subject to exceptions not at issue here, that
“any person who violates this section shall be sentenced to a term of
imprisonment of not more than 4 years, a fine . . . , or both.”
  2 Compare, e.g., United States v. Binkley, 903 F. 2d 1130, 1135–1136

(CA7 1990) (buyer’s use of phone in purchasing drugs facilitates seller’s
drug distribution), with United States v. Baggett, 890 F. 2d 1095, 1097–
                     Cite as: 556 U. S. ____ (2009)                     3

                          Opinion of the Court

reverse.
                               II
  The Government’s argument is a reprise of the Fourth
Circuit’s opinion, that Abuelhawa’s use of his cell phone
satisfies the plain meaning of “facilitate” because it “al
low[ed] the transaction to take place more efficiently, and
with less risk of detection, than if the purchaser and seller
had to meet in person.” Brief for United States 10. And of
course on the literal plane, the phone calls could be de
scribed as “facilitating” drug distribution; they “undoubt
edly made . . . distribution easier.” 523 F. 3d, at 421. But
stopping there would ignore the rule that, because stat
utes are not read as a collection of isolated phrases, see
United States Nat. Bank of Ore. v. Independent Ins. Agents
of America, Inc., 508 U. S. 439, 455 (1993), “[a] word in a
statute may or may not extend to the outer limits of its
definitional possibilities,” Dolan v. Postal Service, 546
U. S. 481, 486 (2006). We think the word here does not.
  To begin with, the Government’s literal sweep of “facili
tate” sits uncomfortably with common usage. Where a
transaction like a sale necessarily presupposes two parties
with specific roles, it would be odd to speak of one party as
facilitating the conduct of the other. A buyer does not just
make a sale easier; he makes the sale possible. No buyer,
no sale; the buyer’s part is already implied by the term
“sale,” and the word “facilitate” adds nothing. We would
not say that the borrower facilitates the bank loan.
  The Government, however, replies that using the in
strument of communication under §843(b) is different from
borrowing the money or merely handing over the sale
price for cocaine. Drugs can be sold without anyone’s
——————
1098 (CA10 1989) (buyer’s use of phone in purchasing drugs does not
facilitate seller’s drug distribution); United States v. Martin, 599 F. 2d
880, 888–889 (CA9 1979) (same), overruled on other grounds, United
States v. De Bright, 730 F. 2d 1255 (CA9 1984).
4              ABUELHAWA v. UNITED STATES

                      Opinion of the Court

mailing a letter or using a cell phone. Because cell
phones, say, really do make it easier for dealers to break
the law, Congress probably meant to ratchet up the culpa
bility of the buyer who calls ahead. But we think that
argument comes up short against several more reasons
that count against the Government’s position.
    The common usage that limits “facilitate” to the efforts
of someone other than a primary or necessary actor in the
commission of a substantive crime has its parallel in the
decided cases. The traditional law is that where a statute
treats one side of a bilateral transaction more leniently,
adding to the penalty of the party on that side for facilitat
ing the action by the other would upend the calibration of
punishment set by the legislature, a line of reasoning
exemplified in the courts’ consistent refusal to treat non
criminal liquor purchases as falling under the prohibition
against aiding or abetting the illegal sale of alcohol. See
Lott v. United States, 205 F. 28, 29–31 (CA9 1913) (collect
ing cases). And this Court followed the same course in
rejecting the broadest possible reading of a similar provi
sion in Gebardi v. United States, 287 U. S. 112 (1932).
The question there was whether a woman who voluntarily
crossed a state line with a man to engage in “illicit sexual
relations” could be tagged with “aid[ing] or assist[ing] in
. . . transporting, in interstate or foreign commerce . . . any
woman or girl for the purpose of prostitution or of de
bauchery, or for any other immoral purpose” in violation of
the Mann Act, ch. 395, 36 Stat. 825. Gebardi, 287 U. S., at
116–118 (internal quotation marks omitted). Since the
statutory penalties were “clearly directed against the acts
of the transporter as distinguished from the consent of the
subject of the transportation,” we refused to “infer that the
mere acquiescence of the woman transported was intended
to be condemned by the general language punishing those
who aid and assist the transporter, any more than it has
been inferred that the purchaser of liquor was to be re
                  Cite as: 556 U. S. ____ (2009)            5

                      Opinion of the Court

garded as an abettor of the illegal sale.” Id., at 119 (foot
note omitted).
   These cases do not strictly control the outcome of this
one, but we think they have a bearing here, in two ways.
As we have said many times, we presume legislatures act
with case law in mind, e.g., Williams v. Taylor, 529 U. S.
362, 380–381, and n. 12 (2000), and we presume here that
when Congress enacted §843(b), it was familiar with the
traditional judicial limitation on applying terms like “aid,”
“abet,” and “assist.” We thus think it likely that Congress
had comparable scope in mind when it used the term
“facilitate,” a word with equivalent meaning, compare
Black’s Law Dictionary 76 (8th ed. 2004) (defining “aid
and abet” as to “facilitate the commission of a crime”) with
id., at 627 (defining “facilitation” as “[t]he act or an in
stance of aiding or helping; . . . the act of making it easier
for another person to commit a crime”).
   And applying the presumption is supported significantly
by the fact that here, as in the earlier cases, any broader
reading of “facilitate” would for practical purposes skew
the congressional calibration of respective buyer-seller
penalties. When the statute was enacted, the use of land
lines in drug transactions was common, and in these days
when everyone over the age of three seems to carry a cell
phone, the Government’s interpretation would skew the
calibration of penalties very substantially. The respect
owed to that penalty calibration cannot be minimized.
Prior to 1970, Congress punished the receipt, concealment,
purchase, or sale of any narcotic drug as a felony, see 21
U. S. C. §174 (1964 ed.) (repealed), and on top of that
added a minimum of two years, and up to five, for using a
communication facility in committing, causing, or facilitat
ing, any drug “offense,” 18 U. S. C. §1403 (1964 ed.). In
1970, however, the CSA, 84 Stat. 1242, 21 U. S. C. §801 et
seq., downgraded simple possession of a controlled sub
stance to a misdemeanor, 21 U. S. C. §844(a) (2006 ed.),
6                 ABUELHAWA v. UNITED STATES

                          Opinion of the Court

and simultaneously limited the communications provision
to prohibiting only the facilitation of a drug “felony,”
§843(b). This history drives home what is already clear in
the current statutory text: Congress meant to treat pur
chasing drugs for personal use more leniently than the
felony of distributing drugs, and to narrow the scope of the
communications provision to cover only those who facili
tate a drug felony. Yet, under the Government’s reading
of §843(b), in a substantial number of cases Congress
would for all practical purposes simultaneously have
graded back up to felony status with the left hand the
same offense it had dropped to a misdemeanor with the
right. As the Government sees it, Abuelhawa’s use of a
phone in making two small drug purchases would subject
him, in fact, to six felony counts and a potential sentence
of 24 years in prison, even though buying the same drugs
minus the phone would have supported only two misde
meanor counts and two years of prison. Given the CSA’s
distinction between simple possession and distribution,
and the background history of these offenses, it is impos
sible to believe that Congress intended “facilitating” to
cause that twelve-fold quantum leap in punishment for
simple drug possessors.3
——————
    3 TheGovernment’s suggestion that a result like this is not anoma
lous because a prosecutor could exercise his discretion to seek a lower
sentence, see Tr. of Oral Arg. 41, simply begs the question. Of course,
Congress legislates against a background assumption of prosecutorial
discretion, but this tells us nothing about the boundaries of punishment
within which Congress intended the discretion to be exercised; prosecu
torial discretion is not a reason for courts to give improbable breadth to
criminal statutes. And it ill behooves the Government to invoke discre
tionary power in this case, with the prosecutor seeking a sentencing
potential of 24 years when the primary offense is the purchase of two
ounces of cocaine. For that matter, see id., at 41–43 (concession by
Government that current Department of Justice guidelines require
individual prosecutors who bring charges to charge the maximum crime
supported by the facts in a case).
                     Cite as: 556 U. S. ____ (2009)                    7

                          Opinion of the Court

   The Government suggests that this background usage
and the 1970 choice to reduce culpability for possession is
beside the point because Congress sometimes incorporates
aggravating factors into the Criminal Code, and the phone
use here is just one of them; the Government mentions
possession by a prior drug offender, a felony punishable by
up to two years’ imprisonment. And, for perspective, the
Government points to unauthorized possession of fluni
trazepim, a drug used to incapacitate rape victims, which
is punishable by imprisonment up to three years. Brief for
United States 20. It would not be strange, the Govern
ment says, for Congress to “decid[e] to treat the use of a
communication facility in a drug transaction as a signifi
cant act warranting additional punishment” because
“[t]oday’s communication facilities . . . make illicit drug
transactions easier and more efficient . . . . [and] greatly
reduce the risk that the participants will be detected while
negotiating a transaction.” Id., at 23–24.
   We are skeptical. There is no question that Congress
intended §843(b) to impede illicit drug transactions by
penalizing the use of communication devices in coordinat
ing illegal drug operations, and no doubt that its purpose
will be served regardless of the outcome in this case. But
it does not follow that Congress also meant a first-time
buyer’s phone calls to get two small quantities of drugs for
personal use to expose him to punishment 12 times more
severe than a purchase by a recidivist offender and 8
times more severe than the unauthorized possession of a
drug used by rapists.4 To the contrary, Congress used no
——————
   4 The Government does nothing for its own cause by noting that 21

U. S. C. §856 makes it a felony to facilitate “the simple possession of
drugs by others by making available for use . . . a place for the purpose
of unlawfully using a controlled substance” even though the crime
facilitated may be a mere misdemeanor. Brief for United States 21
(internal quotation marks and alterations omitted). This shows that
Congress knew how to be clear in punishing the facilitation of a mis
8                 ABUELHAWA v. UNITED STATES

                          Opinion of the Court

language spelling out a purpose so improbable, but legis
lated against a background usage of terms such as “aid,”
“abet,” and “assist” that points in the opposite direction
and accords with the CSA’s choice to classify small pur
chases as misdemeanors. The Government’s position is
just too unlikely.5
                            III
  The judgment of the Court of Appeals for the Fourth
Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
                                          It is so ordered.




——————
demeanor as a felony, and it only highlights Congress’s decision to limit
§843(b) to the facilitation of a “felony.”
   5 The Government asks us to affirm the Fourth Circuit on an alterna

tive ground: that Abuelhawa used a communication facility “in causing”
Said’s drug felony rather than “in . . . facilitating” the felony. But the
Government’s argument on this point takes the same form as its
argument about the term “facilitate,” and the reasons that lead us to
reject the one argument apply just as well to the other.
