Derby v. United States
131 S. Ct. 2858
SCOTUS2011Background
- Dissent by Justice Scalia questions whether four additional offenses fit ACCA's residual clause.
- Cases considered: Derby, Johnson, Schmidt, Turner—each involving alleged violent-crime residually under ACCA.
- Ninth Circuit Mayer decision treated Oregon first-degree burglary as within ACCA residual clause despite non-enumerated scope.
- Second Circuit Johnson decision held Connecticut riot statute within ACCA residual clause due to possible provocative conduct.
- Fifth Circuit Schmidt held theft of a firearm from a licensed dealer within ACCA residual clause as inherently dangerous.
- Fourth Circuit Jarmon held larceny from the person (pickpocketing) within ACCA residual clause due to risk of violent confrontation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the four offenses crimes of violence under ACCA residual clause? | Mayer, Johnson, Schmidt, Turner show residual clause covers these offenses. | Residual clause is vague and cannot reliably reach these acts. | UNCLEAR from dissent; Scalia would grant certiorari and deem residual clause void. |
| Does Sykes govern post-ACCA residual-clause interpretation? | Sykes provides a usable framework to assess risk against enumerated offenses. | Even with Sykes, the residual clause remains uncertain in reach. | Sykes does not resolve all questions; dissent argues for vagueness challenge. |
| Does the ACCA residual clause give fair notice of reach to ordinary taxpayers? | Lower courts will be guided by risk comparisons to enumerated offenses. | The clause fails to provide fair notice due to indefinite standards. | Yes—residual clause is unconstitutionally vague per Batchelder. |
| Should the Court's prior residual-clause tests be retained or rejected? | Existing tests reliably determine violent felony status. | The tests create unpredictable outcomes and new 'animal' standards. | Dissent would discard the residual-clause approach for ACCA. |
Key Cases Cited
- United States v. Batchelder, 442 U.S. 114 (1979) (fair notice and vagueness concerns in rule-creating statutes)
- United States v. Mayer, 560 F.3d 948 (9th Cir. 2009) (Oregon burglary reaches residual ACCA through risk despite non-enumerated scope)
- Taylor v. United States, 495 U.S. 575 (1990) (definitions of generic burglary for ACCA comparison)
- United States v. Johnson, 616 F.3d 85 (2d Cir. 2010) (rioting in correctional institution falls under residual ACCA clause)
- United States v. Schmidt, 623 F.3d 257 (5th Cir. 2010) (theft of a firearm from a licensed dealer within residual ACCA)
- United States v. Jarmon, 596 F.3d 228 (4th Cir. 2010) (larceny from the person (pickpocketing) within residual ACCA)