*1 STATES UNITED CHAMBERS January Argued 2008 Decided 06-11206. November No. *2 Breyer, J., Court, J., opinion Roberts, delivered the of the in which C. Stevens, Scalia, Kennedy, Ginsburg, JJ., and Souter, joined. and Alito, J., concurring Thomas, filed opinion judgment, in the in which J., joined, post, p. 131.
Robert N. Hochman the cause for argued petitioner. Jeffrey Morian, Green, T. Julie him on With the briefs were Schrup. and Sarah O’Rourke
Matthew D. Roberts the cause for the United argued States. With him on the brief were Solicitor General Acting Attorney Garre, Friedrich, Assistant General Deputy Solicitor General Dreeben. Breyer delivered the of the Court. opinion
Justice before us is whether a “failure to question report” ” “ within the terms of confinement is a ‘violent felony’ 924(e). We Armed Career Criminal Act. 18 U. S. C. that it hold is not.
I (ACCA) imposes a 15- Criminal Act The Armed Career mandatory prison year an individual convicted of term on being possession that individual has a felon in firearm if felony previous a seri- ... for violent or “three convictions drug on different offense, both, ous committed occasions 924(e)(1). defines a “violent ACCA one another.” by imprisonment felony” punishable term as a “crime exceeding year” one that also either
“(i) attempted use, or use, as an has element physical against person threatened force use another;
“(ii) burglary, the use arson, extortion, involves is explosives, pre- of or otherwise involves conduct physical injury potential of to an- sents a serious risk 924(e)(2)(B). other.” (ii), here. residual is issue clause,
Clause ACCA’sso-called
II pleaded guilty petitioner, Deondery ato Chambers, unlawfully charge being possession of a firearm. of a felon 922(g). the District At the Government asked mandatory apply 15-year prison to term be- Court ACCA’s quali- prior view, in its convictions cause, three of Chambers’ felony.” drug fied “serious offense” “violent as ACCA namely, prior convictions, of Chambers conceded that two his battery robbery aggravated and a 1998 conviction for and drug 1999 fell within ACCA’sdefinitions. conviction, crime disputed convic- But claim as to a third he the Government’s tion. That arose out of Chambers’ sentence third conviction robbery battery re- The sentence for his 1998 and offense. report prison quired 11 to for weekends Chambers to a local report confine- He to for weekend of incarceration. failed of the crime occasions, ment four was later convicted on
125 of institution.” Ill. “fail[ing] report Comp. 2008). §5/31-6(a) (West Stat., 720, ch. Supp.
The District Court treated the “failure to
a form
as
report”
of what
the relevant
Illinois
calls
statute
“escape
[a]
penal institution,” ibid.,
and held that
crime
as
qualified
a “violent
under ACCA. The
felony”
Court of Appeals
(CA7 2007).
agreed.
The statute’s read uses defining language, naturally, “felony” *4 to refer to a crime as committed. so con- And generally by statute, the one avoids the of struing practical try- difficulty to at from ing ascertain a record sentencing, perhaps paper a the defend- whether mentioning guilty plea, present ant’s on prior crime, occasion, as committed a did particular id., or did not involve See at 20-21. violent behavior. Thus, to bur- determine, for whether example, attempted is a we to not the glary examine, “violent have had felony,” unsuccessful the defendant on a burglary attempted particu- lar but the crime occasion, burglary. generic attempted James v. U. S. 204-206 192, categorical approach requires to choose the courts
This category. right the choice is obvious. And sometimes statutory likely underlies a the that nature of behavior respect. phrase Massachusetts, for Where matters in this separately placed single, example, statu- a numbered within (entitled night,” tory “Breaking entering at section (West 2008))burglary § 16 Ann., Laws ch. Mass. Gen. “building, ship, vehicle,” this Court found a vessel building say, breaking underlying, differs into a the behavior breaking underlying, say, significantly so from behavior purposes a court into a vehicle that for ACCA Shepard, supra, must treat as different crimes. See the two supra, Taylor, at see also 598. 16-17; us, statute now before like Massachusetts The Illinois statutory places single together sec a numbered statute, separately It de tion kinds of behavior. several different (1) penal escape institution, a scribes behaviors as from those (2) employee penal escape custody of a institu of an from (4) (3) failing penal failing report to tion, institution, to to a (5) failing report imprisonment, periodic from for to return (6) day furlough, failing release, and to return from work and (7) failing Ill. to abide the terms home confinement. 6(a); Comp. Appendix A, We Stat., ch. see 5/31— infra. record that know from the state-court information fail[ing] report” pleaded guilty “knowingly Chambers periodic imprisonment County Jail, “to a the Jefferson (sen App. Shepard, supra, 25at 68; institution.” see may charging tencing example, document, look, court plea jury transcript plea agreement, collo instructions, issue). quy But must decide to determine crime at we purposes a counts as whether for ACCA failure separate crime. failure to courts,
Unlike the lower we believe (as statutory provision’s fourth, fifth, third, described escape phrases) separate crime, different and sixth *5 (the subject phrases), matter of the statute’s first and second potentially by and from the less serious failure to the abide (the phrase); subject terms of home confinement of the final likely report that behavior underlies a failure to would likely physical seem less to involve risk of harm than the passive, aggressive underlying escape less more behavior custody. Begay from See v. United 553 U. S. 144-146 Moreover, the itself statute not lists (in escape report separately and failure to its title and its body) places felony but also in two behaviors different (Class Three) degrees classes Two and Class of different Appendix See A, seriousness. infra. statutory phrases setting At the same time, we believe the (or return) forth various kinds of failure to describe roughly by similar forms of behavior. Each is characterized present specified a failure to oneself detention on a occa- single sion. All amount to For variations on a theme. together constituting single reason we consider them as category. supra, (determining James, at Cf. 207-209 separately degree pose where listed behaviors a similar may risk, courts consider all listed behaviors as a crime). single consequently We treat statute ACCA purposes separate containing namely, crimes, as at least two escape custody on the one and a failure to hand, on the other. Failure to abide home confinement terms— potentially least serious the offenses—is not issue here.
IV report” We now must “failure consider whether the clearly felony” crime It satisfies “violent definition. part a “crime definition, satisfies the first of that for it is punishable by year.” imprisonment exceeding one for a term 924(e)(2)(B). 18 U. But it none of other S. C. satisfies parts. attempted It “as an the use, does have element physical against person of use, or threatened use of force *6 128 924(e)(2)(B)(i). “burglary, § not consist It does
another.” explosives.” “involv[e] use or extortion,” arson, or purposes, 924(e)(2)(B)(ii). critically present And, more “ poten- presents a serious that ‘involve conduct it not does Begay, injury 553 physical to another.’” See tial risk concurring in J., id., at 153-154 141-142; S.,U. at (Scalia, injury physical (treating to another judgment) risk serious factor); J., dis- id., at 156-158 critical definitional as (Alito, (same). senting) in-
Conceptually speaking, to a form of the crime amounts ‘aggres- cry “purposeful, ‘violent,’ from the a far action, potentially uses ex- when an offender at issue conduct” sive’ dwelling burgles against property, plosives arson, commits engages of extortion. in certain forms or residence, fails to an offender who 144-145. While id., at Cf. something doing time, at the relevant be must of course something poses a seri- that the there no reason to believe is injury. physical James, S., potential 550 U. risk of Cf. ous contrary, re- who fails to To the an individual 203-204. unlikely, likely, port to his to call attention would seem by simultaneously engaging in vio- additional whereabouts conduct. lent and unlawful argues reveals a failure to that
The Government custody. strong penal special, aversion to the offender’s years arising period points of 30 three cases over a And it to opinions reported shot at indicate that individuals in which attempting recapture States v. them. See United officers (CA9 1977); Johnson, Eaglin, v. 1069, 1072 State 571 F. 2d (Mo. 2008); App. Jones, 288, 291 State 245 W. 3d Ct. S. App. But even 898, 369, 371-372, 979 P. 2d Wash. argument’s violence the relevance of sake if we assume report, may long are fails to we after an offender occur argument. The offend- the Government’s not convinced custody, special, is beside the even if er’s aversion signifi- point. question such an offender is whether cantly attack, more others re- likely than physically sist, a “serious apprehender, thereby producing potential 924(e)(2)(B)(ii). risk of And physical here injury.” United States Commission Sentencing report helps provide conclusive, answer. on negative See Federal Report Escape (Nov. 2008) (here- Offenses Fiscal Years 2006 and 2007, p. inafter Commission’s Report), reprinted part Appendix J.) B, 3d, (Posner, See also 473 F. at 727 (urging infra. *7 done). such research be
The Commission’s identifies federal case Report every or 2007 in a the which federal court applied Sentencing Guideline, or Es- “Escape, Instigating Assisting 1 United cape,” Commission, States Guidelines Sentencing (Nov. §2P1.1 Manual 2008), sufficient and which detail was provided, say, the about the circum- presentence report, of stances the The in- permit crime analysis. analysis cluded calculation of the ac- likelihood that violence would of commission the later company offender’s escape apprehension.
414Of such cases, involved a failure either report (42) for incarceration after been custody having tempo- released see rarily Report 7; Commission’s also Ap- B, pendix Of these 160 none at all cases, involved infra. violence —not commission of the offense itself, during later in- during offender’s in 5 apprehension although — (3.1%) Ibid. The up- stances the offenders were armed. shot is that thé the intuitive belief study strongly supports that failure to does not involve a serious risk report potential of physical injury.
The three cases to which the Government reported points do not show the The Commission contrary. Sentencing culled its 160 from a set federal sentences im- instances over a of two The Government posed period years. appar- culled its three from a set state and federal ently examples Eag- sentences over imposed period years. Compare (Mo. (CA9 1977), supra App. supra Johnson, Ct. lin, with 2008). larger presence instances of three set, Given data. is with the Commission’s Sim- of violence consistent (2 years; ple years multiplication federal alone versus 30 they suggests federal-plus-state) show versus (less physical in several thou- violence than one small risk of sand). empirical provides other no And Government information. the crime here at issue
For we conclude that these reasons scope fel- of “violent falls outside the of ACCA’sdefinition 924(e)(2)(B)(ii). Ap- ony.” judgment of the Court pro- peals for further and the case is remanded reversed, ceedings opinion. with this consistent
It is ordered. so APPENDIXES A “Escape; failure to institution or imprisonment. periodic *8 delinquent adjudicated person felony, “A a a convicted of felony minor for offense under the the commission of a charged with the commis 1987, Juvenile Court Act of or any penal intentionally felony escapes sion a who from custody employee of that institution or from the of an felony; person a however, institution commits a Class 2 felony adjudicated delinquent minor or convicted felony for the of a offense under the Juvenile commission knowingly to to a Court Act of 1987 fails who periodic imprisonment or institution furlough any knowingly time fails return knowingly day fails or from work and release who guilty abide the terms of home confinement §5/31-6(a) Comp. felony.” Stat., ch. Class Ill. 2008). (West Supp.
B Report Escape on Federal Offenses Fiscal Years 2006 and (Nov.2008).* p. fig. 2007, 7, Alito,
Justice with joins, whom Justice Thomas con- in the curring judgment. previously explained,
As I have I believe the Court’s approach Begay, approach like case, its this “cannot be statutory Begay reconciled with the States, text.” v. United (2008) (dissenting opinion). 553 U. S. I nonetheless recognize statutory interpre respect that “stare decisis in ‘special tation force,’” has R. & Co. v. John Sand Gravel (2008), sympathetic 130, 139 552 U. S. and I am interpretation majority’s provide to the efforts to a workable of the clause” of Armed Act “residual Career Criminal (ACCA), “categorical retaining approach” that we while *9 category. example, one *Cases can into more than For case fall one represented in injury. could force and a case would be involve both Such Therefore, the table and also the reader should not injury. for force aggregate any the numbers column.
132
(1990).
Taylor
adopted
S.
602
575,
v.
495 U.
agree
light
Taylor
Begay,
should
I
that this case
and
In
resentencing.
separately, however,
I write
be remanded
Congress
emphasize
only
rescue’ the federal
that
can
draftsmanship and
mire into which
courts from the
pushed
Taylor’s “categorical approach”
us.
have
Congress
clause,
In
when
enacted ACCA’sresidual
1986,
924(e)(2)(B)(ii),
§
the dif
few could have foreseen
18 U. S. C.
lay
Only
Congress
four
before
months
ficulties
ahead.1
upheld a
this Court
state sentenc
clause,
framed the residual
imposed mandatory
ing provision that
a
minimum sentence
by preponderance
judge
a
of the evidence
where the
found
during
visibly possessed
the
the
a firearm
defendant
robbery).
(including
Mc
certain
See
commission of
felonies
Pennsylvania,
Legislating
But took different track. the Court requires sentencing court held that “the to look ACCA the had convicted of crimes fact that defendant been falling categories, under- certain and not to facts within lying prior Thus, 495 we S., convictions.” U. 600. ap- sentencing judges apply “categorical should held that underlying proach” offense to determine whether state burglary “generic” that this meets definition Court— Congress originally ACCA in See Stat. enacted 1984. (1982 1202(a) II) (repealed Fire App. Supp. 18 U. S. C. ed. and in 1986 459). 104(b), statute, § Act, how arms Owners’ Protection Stat. That ever, applied mandatory sentencing predicate to only enhancement two robbery burglary expressly defined. statute felonies — —which (1982 II). §§1202(c)(8)-(9) ed., App. Congress not add Supp. U. S. C. did until See Career Criminals the undefined “otherwise clause” 1986. 1986, § 1402, Amendment Act of 100 Stat. 3207-39.
133 Id., not Congress 598. at The Court its justified —created. decision with a discussion of and 10-page ACCA’s purpose id., at id., legislative history, 581-590; see also at 603 J., and concurring part concurring judgment) (Scalia, (criticizing Court’s and that its con- approach), explained clusion was “an necessary undo inadvertent casualty [in id., complex drafting process,” ACCA’s] 589-590.
ACCA’s has been the true clarity casualty. inadvertent Taylor’s After almost two decades with “categorical ap- one proach,” only is clear: residual clause is thing ACCA’s the “cate- nearly impossible Indeed, apply, consistently. gorical approach” to numerous predicate offenses has created the lower splits among courts,2 federal resolution of which could this Court What is worse is occupy years.
2
example,
split
For
the lower courts have
over
it
a “violent
whether
felony”
United
rape,
under
residual
compare
clause
commit
(CA6 2005)
Sawyers,
States v.
(statutory
3d
rape
categori
409 F.
732
not
Williams,
violent),
(CA5 1997)
cally
United States v.
with
F.
120
3d 575
(inducement of
United States
sodomy violent),
minor to commit
and
v.
Thomas,
(CA9
(all
2007)
violent);
231
Appx.
against
Fed.
765
rape
retaliate
government officer,
Montgomery,
United States v.
compare
402 F. 3d
(CA5 2005) (not violent),
Sawyers,
supra
(violent); attempt
482
with
Fell,
conspire
United States v.
burglary, compare
to commit
At this expressly Congress specific list of defined to formulate worthy of to be ACCA’s crimes that are deemed Congress approach took enhancement. That is the applied and ex- two enumerated 1984, when it ACCA to ap- supra. pressly And that n. defined felonies. See ship. only way right proach