JAMES v. UNITED STATES
No. 05-9264
Supreme Court of the United States
Argued November 7, 2006—Decided April 18, 2007
550 U.S. 192
Craig L. Crawford argued the cause for petitioner. With him on the briefs were R. Fletcher Peacock and Jeffrey T. Green.
Jonathan L. Marcus argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Daniel S. Goodman.
JUSTICE ALITO delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA),
The question before us is whether attempted burglary, as defined by Florida law, is a “violent felony” under ACCA. We hold that it is, and we therefore affirm the judgment of the Court of Appeals.
I
Petitioner Alphonso James pleaded guilty in federal court to one count of possessing a firearm after being convicted of a felony, in violation of
At sentencing, the Government argued that James was subject to ACCA‘s 15-year mandatory minimum term because of his three prior convictions. James objected, arguing that his attempted burglary conviction did not qualify as a “violent felony” under
II
A
ACCA‘s 15-year mandatory minimum applies “[i]n the case of a person who violates section 922(g) of this title [the felon in possession of a firearm provision] and has three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”
“any crime punishable by imprisonment for a term exceeding one year... that—
“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B) .
The parties agree that attempted burglary does not qualify as a “violent felony” under clause (i) of ACCA‘s definition because it does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.”
The question before the Court, then, is whether attempted burglary, as defined by Florida law, falls within ACCA‘s residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.”
Before determining whether the elements of attempted burglary under Florida law qualify under ACCA‘s residual provision, we first consider James’ argument that the statute‘s text and structure categorically exclude attempt offenses from the scope of the residual provision. We conclude that nothing in the plain language of clause (ii), when read together with the rest of the statute, prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another.
James first argues that the residual provision of clause (ii) must be read in conjunction with clause (i), which expressly includes in its definition of “violent felony” offenses that have “as an element the... attempted use... of physical force against the person of another.”
We are not persuaded. James’ reading would unduly narrow clause (ii)‘s residual provision, the language of which does not suggest any intent to exclude attempt offenses that otherwise meet the statutory criteria. Clause (i), in contrast, lacks a broad residual provision, thus making it necessary to specify exactly what types of offenses—including attempt offenses—are covered by its language. In short, “the expansive phrasing of” clause (ii) “points directly away from the sort of exclusive specification” that James would read into it. Chevron U. S. A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002); see also United States v. Davis, 16 F. 3d 212, 217 (CA7) (rejecting argument that “had Congress wished to include attempted burglary as a
James next invokes the canon of ejusdem generis—that when a general phrase follows a list of specifics, it should be read to include only things of the same type as those specifically enumerated. He argues that the “common attribute” of the offenses specifically enumerated in clause (ii)—burglary, arson, extortion, and crimes involving the use of explosives—is that they are all completed offenses. The residual provision, he contends, should similarly be read to extend only to completed offenses.
This argument is unavailing. As an initial matter, the premise on which it depends—that clause (ii)‘s specifically enumerated crimes are limited to completed offenses—is false. An unsuccessful attempt to blow up a government building, for example, would qualify as a specifically enumerated predicate offense because it would “involv[e] [the] use of explosives.” See, e. g.,
In any event, the most relevant common attribute of the enumerated offenses of burglary, arson, extortion, and explosives use is not “completion.” Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor:
“Congress thought that certain general categories of property crimes—namely burglary, arson, extortion, and the use of explosives—so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the
use or threat of force against a person.” 495 U. S., at 597.
See also id., at 588 (noting that Congress singled out burglary because it “often creates the possibility of a violent confrontation“); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents “a serious potential risk of physical injury to another” because “[n]ot only might the targeted building be occupied,” but also “the fire could harm firefighters and onlookers and could spread to occupied structures“); H. R. Rep. No. 99-849, p. 3 (1986) (purpose of clause (ii) was to “add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person“).
Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a
C
James also relies on ACCA‘s legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCA‘s adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for use of a firearm by persons with two prior convictions for “any robbery or burglary offense, or a conspiracy or attempt to commit such an offense.” S. 52, 98th Cong., 2d Sess., § 2 (1984) (emphasis added). The bill that ultimately became law omitted any reference to attempts, and simply defined “violent felony” to include “robbery or burglary, or both.” Armed Career Criminal Act of 1984, § 1802, 98 Stat. 2185, repealed in 1986 by Pub. L. 99-308, § 104(b), 100 Stat. 459. James argues
Whatever weight this legislative history might ordinarily have, we do not find it probative here, because the 1984 enactment on which James relies was not Congress’ last word on the subject. In 1986, Congress amended ACCA for the purpose of “‘expanding’ the range of predicate offenses.” Taylor, supra, at 584. The 1986 amendments added the more expansive language that is at issue in this case—including clause (ii)‘s language defining as violent felonies offenses that are “burglary, arson, or extortion, involv[e] use of explosives, or otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” Career Criminals Amendment Act of 1986, § 1402(b), 100 Stat. 3207-40, codified at
III
Having concluded that neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of
A
We begin by examining what constitutes attempted burglary under Florida law. On its face, Florida‘s attempt statute requires only that a defendant take “any act toward the commission” of burglary.
But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary, requiring an “overt act directed toward entering or remaining in a structure or conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992). Mere preparation is not enough. See ibid.2 Florida‘s lower
The pivotal question, then, is whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is “conduct that presents a serious potential risk of physical injury to another.”
B
In answering this question, we look to the statutory language for guidance. The specific offenses enumerated in clause (ii) provide one baseline from which to measure whether other similar conduct “otherwise... presents a serious potential risk of physical injury.” In this case, we can ask whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary. See Taylor, supra, at 600, n. 9 (“The Government remains free to argue that any offense—including offenses similar to generic burglary—should count towards enhancement as one that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another’ under
The main risk of burglary arises not from the simple physical act of wrongfully entering onto another‘s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress.
Attempted burglary poses the same kind of risk. Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent
“In all of these cases the risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view.... [T]here is a serious risk of confrontation while a perpetrator is attempting to enter the building.” United States v. Payne, 966 F. 2d 4, 8 (CA1 1992).
Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenor—be it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations. But attempted burglaries often do; indeed, it is often just such outside intervention that prevents the attempt from ripening into completion.
Concluding that attempted burglary presents a risk that is comparable to the risk posed by the completed offense, every Court of Appeals that has construed an attempted burglary law similar in scope to Florida‘s has held that the offense qualifies as a “violent felony” under clause (ii)‘s residual provision.3 The only cases holding to the contrary
The United States Sentencing Commission has come to a similar conclusion with regard to the Sentencing Guidelines’ career offender enhancement, whose definition of a predicate “crime of violence” closely tracks ACCA‘s definition of “violent felony.” See United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2) (Nov. 2006) (USSG). The Commission has determined that “crime[s] of violence” for the purpose of the Guidelines enhancement “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” § 4B1.2, comment., n. 1. This judgment was based on the Commission‘s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses. As then-Chief Judge Breyer explained, “[t]he Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between” a particular offense and “the likelihood of accompanying violence.” United States v. Doe, 960 F. 2d 221, 225 (CA1 1992); see also USSG § 1A3 (Nov. 1987), re
C
James responds that it is not enough that attempted burglary “generally” or in “most cases” will create a risk of physical injury to others. Brief for Petitioner 32. Citing the categorical approach we employed in Taylor, he argues that we cannot treat attempted burglary as an ACCA predicate offense unless all cases present such a risk. James’ approach is supported by neither the statute‘s text nor this Court‘s holding in Taylor.
One could, of course, imagine a situation in which attempted burglary might not pose a realistic risk of confrontation or injury to anyone—for example, a break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors. But ACCA does not require metaphysical certainty. Rather,
James’ argument also misapprehends Taylor‘s categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime“).
Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury—for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to take an example from the offenses specifically enumerated in
D
JUSTICE SCALIA‘s dissent criticizes our approach on the ground that it does not provide sufficient guidance for lower courts required to decide whether unenumerated offenses other than attempted burglary qualify as violent felonies under ACCA. But the dissent‘s alternative approach has more serious disadvantages. Among other things, that approach unnecessarily decides an important question that the parties have not briefed (the meaning of the term “extortion” in
The dissent interprets the residual provision to require at least as much risk as the least dangerous enumerated offense. But the ordinary meaning of the language of the residual clause does not impose such a requirement. What the clause demands is “a serious potential risk of physical injury to another.” While it may be reasonable to infer that the risks presented by the enumerated offenses involve a risk of this magnitude, it does not follow that an offense that presents a lesser risk necessarily fails to qualify. Nothing in the language of
Moreover, even if an unenumerated offense could not qualify without presenting at least as much risk as the least risky
The stated reason for tackling this question is to provide guidance for the lower courts in future cases—surely a worthy objective. But in practical terms, the proposed interpretation of the residual clause would not make it much easier for the lower courts to decide whether other unenumerated offenses qualify. Without hard statistics—and no such statistics have been called to our attention—how is a lower court to determine whether the risk posed by generic burglary is greater or less than the risk posed by an entirely unrelated unenumerated offense—say, escape from prison?6
In the end, JUSTICE SCALIA‘s analysis of this case turns on the same question as ours—i. e., the comparative risks presented by burglary and attempted burglary. The risk of physical injury in both cases occurs when there is a confrontation between the criminal and another person, whether an occupant of the structure, a law enforcement officer or security guard, or someone else. It is argued that when such an encounter occurs during a consummated burglary (i. e., after entry), the risk is greater than it is when the encounter occurs during an attempted burglary (i. e., before entry is effected), and that may be true. But this argument fails to come to grips with the fact that such encounters may occur much more frequently during attempted burglaries because it is precisely due to such encounters that many planned burglaries do not progress beyond the attempt stage. JUSTICE SCALIA dismisses the danger involved when encounters occur during attempted burglaries, stating that such encounters are “likely to consist of nothing more than the occupant‘s yelling ‘Who‘s there?’ from his window, and the burglar‘s running away.” Post, at 226. But there are many other possible scenarios. An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner angered by the sort of conduct recited in James’ presentence report—throwing a hammer through a window—may give chase, and a violent encounter may ensue. For these rea-...
IV
Although the question on which this Court granted certiorari focused on the attempt prong of Florida‘s attempted burglary law, James also argues that the scope of the State‘s underlying burglary statute itself precludes treating attempted burglary as a violent felony for ACCA purposes. Specifically, he argues that Florida‘s burglary statute differs from “generic” burglary as defined in Taylor, supra, at 598, because it defines a “[d]welling” to include not only the structure itself, but also the “curtilage thereof,”7
We agree that the inclusion of curtilage takes Florida‘s underlying offense of burglary outside the definition of “generic burglary” set forth in Taylor, which requires an unlawful entry into, or remaining in, “a building or other structure.” 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes “burglary” under
Is the risk posed by an attempted entry of the curtilage comparable to that posed by the attempted entry of a structure (which, as we concluded above, is sufficient to qualify
The Florida Supreme Court has construed curtilage narrowly, requiring “some form of an enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So. 2d 1038, 1044 (1995) (holding that a yard surrounded by trees was not “curtilage“); see also United States v. Matthews, 466 F. 3d 1271, 1274 (CA11 2006) (“Florida case law construes curtilage narrowly, to include only an enclosed area surrounding a structure“). Given this narrow definition, we do not believe that the inclusion of curtilage so mitigates the risk presented by attempted burglary as to take the offense outside the scope of clause (ii)‘s residual provision.
A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors—especially those with criminal motives. And a burglar who illegally attempts to enter the enclosed area surrounding a dwelling creates much the same risk of physical confrontation with a property owner, law enforcement official, or other third party as does one who attempts to enter the structure itself. In light of Florida‘s narrow definition of curtilage, attempted burglary of the curtilage requires both physical proximity to the structure and an overt act directed toward breaching the enclosure. Such an attempt “presents a serious potential risk that violence will ensue and someone will be injured.” Id., at 1275 (holding that burglary of the curtilage is a violent felony under ACCA‘s residual provision).
V
Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny because it is based on “judicial factfinding” about the risk presented by “the acts that underlie ‘most’ convictions for
In determining whether attempted burglary under Florida law qualifies as a violent felony under
*
*
*
For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.
I disagree with the Court‘s basic approach in this case, and must therefore lay out my own.
I
As the Court acknowledges, ante, at 197, the only way attempted burglary can qualify as a violent felony under the Armed Career Criminal Act (ACCA) is by falling within the “residual provision” of clause (ii)—that is, if it is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The problem with the Court‘s approach to determining which crimes fit within the residual provision is that it is almost entirely ad hoc. This crime, the Court says, does “involv[e] conduct that presents a serious potential risk of physical injury to another.” That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: provide guidance concrete enough to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges who impose sentences every day. The one guideline the Court does suggest is that the sentencer should compare the unenumerated offense at issue with the “closest analog” among the four offenses that are set forth (burglary, arson, extortion, and crimes involving the use of explosives), and should include the unenumerated offense within ACCA if the risk it poses is “comparable.” Ante, at 203. The principal attraction of this test, I suspect, is that it makes it relatively easy to decide the present case (though, as I shall subsequently discuss, I think the Court reaches the wrong conclusion as to whether attempted burglary poses a comparable risk). Assuming that “comparable” means “about the same,” the Court‘s test does provide some guidance where the most closely analogous offense is clear (as here) and the risk is comparable. But what if, as will very often be the case, it is not at all obvious which of the four enumerated offenses is the closest analog—or if (to tell the truth) none of them is analogous at all? Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives? And if an analog is identified, what is to be done if the offense at issue does not present a comparable risk? The Court declines to say, but it seems inconceivable that it means the offense to
Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA‘s residual provision, yet its boundaries are ill defined. If we are not going to deny effect to this statute as being impermissibly vague, see Part III, infra, we have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing. See Kolender v. Lawson, 461 U. S. 352, 357 (1983). Offenders should be on notice that a particular course of conduct will result in a mandatory minimum prison term of 15 years. The Court prefers to keep them guessing.
II
The residual provision of clause (ii) of ACCA‘s definition of violent felony—the clause that sweeps within ACCA‘s ambit any crime that “otherwise involves conduct that presents a
A
The Eleventh Circuit properly sought to resolve this case by employing the “categorical approach” of looking only to the statutory elements of attempted burglary. See 430 F. 3d, at 1154, 1156-1157. This “generally prohibits the later court from delving into particular facts disclosed by the record of conviction, thus leaving the court normally to ‘look only to the fact of conviction and the statutory definition of the prior offense.‘” Shepard v. United States, 544 U. S. 13, 17 (2005) (quoting Taylor v. United States, 495 U. S. 575, 602 (1990)). As the Court does, ante, at 202, I would also begin with this approach.
The Government would have us provide some certainty—at least enough to decide the present case—by holding that the attempt to commit a crime of violence should be treated the same as the completed crime. It points out that various federal laws, and many state laws, punish attempt with the same sanction as the completed crime. See Brief for United States 18-20. This would be persuasive if punishment were meted out solely on the basis of the risk of physical injury that a crime presents. It seems to me, however, that similar punishment does not necessarily imply similar risk; it more likely represents a judgment that the two crimes display a similar degree of depravity deserving of punishment or needful of deterrence. A person guilty of attempted burglary may not have placed anyone at physical risk, but he was just as willing to do so as the successful burglar. It seems to me impossible to say that equivalence of punishment suggests equivalence of imposed risk. I therefore look elsewhere for some clarification of the statutory text.
B
I would turn, then, to the next logical question: Which of the four enumerated crimes—burglary, arson, extortion, or crimes involving use of explosives—poses the least “serious potential risk of physical injury to another“? The two that involve use of fire or explosives cannot possibly qualify. Thus, the question I must address is whether burglary or extortion poses a lesser risk. To do so, I must first define those crimes.
In Taylor, we defined “burglary” as used in the very provision of ACCA at issue here. We first determined that ” ‘burglary’ in
In defining “extortion” for purposes of ACCA, I would follow the same approach. “At common law, extortion was a property offense committed by a public official who took ‘any money or thing of value’ that was not due to him under the pretense that he was entitled to such property by virtue of his office.” Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 402 (2003) (quoting 4 W. Blackstone, Commentaries on the Laws of England 141 (1769), and citing 3 R. Anderson, Wharton‘s Criminal Law and Procedure § 1393, pp. 790-791 (1957)); see also 3 W. LaFave, Substantive Criminal Law § 20.4 (2d ed. 2003). As with burglary, however, modern conceptions of extortion have gone well beyond the common-law understanding. In the Hobbs Act, for example, Congress “explicitly ‘expanded the common-law definition of extortion to include acts by private individuals.’ ” Scheidler, supra, at 402 (quoting Evans v. United States, 504 U. S. 255, 261 (1992)). And whereas the Hobbs Act retained the common-law requirement that something of value actually be acquired by the extortionist, Scheidler, supra, at 404-405, the majority of state statutes require only “that the defendant make a threat with intent thereby to acquire the victim‘s property,” 3 LaFave, Substantive Criminal Law
The Model Penal Code‘s definition of “Theft by Extortion” reflects this expansive modern notion of the crime:
“A person is guilty of theft [by extortion] if he purposely obtains property of another by threatening to:
“(1) inflict bodily injury on anyone or commit any other criminal offense; or
“(2) accuse anyone of a criminal offense; or
“(3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or
“(4) take or withhold action as an official, or cause an official to take or withhold action;
“(5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;
“(6) testify or provide information or withhold testimony or information with respect to another‘s legal claim or defense; or
“(7) inflict any other harm which would not benefit the actor.” § 223.4, at 201.
Other federal statutes, including the Hobbs Act,
The word “extortion” in ACCA‘s definition of “violent felony” cannot, however, incorporate the full panoply of threats that would qualify under the Model Penal Code, many of which are inherently nonviolent. I arrive at this conclusion for two reasons: First, another canon of statutory construction, noscitur a sociis, which counsels that “the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.” Black‘s 1084; see Keffeler, 537 U. S., at 384-385. Of course noscitur a sociis is just an erudite (or some would say antiquated) way of saying what common sense tells us to be true: “[A] word is known by the company it keeps,” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)—that is to say, which of various possible meanings a word should be given must be determined in a manner that makes it “fit” with the words with which it is closely associated. The words immediately surrounding “extortion” in
What is suggested by the canon is reinforced by the fact that both the original common-law notion of extortion, and the full expanse of the modern definition, include crimes so inherently unlikely to cause physical harm that it would set the bar of the residual provision at a level that could embrace virtually any offense—making the limitation to “serious potential risk of physical injury to another” utterly incomprehensible.4 See Part III, infra. I therefore assume that ex-
One final consideration is worthy of mention. I must make sure that my restricted definition of generic extortion does not render the inclusion of extortion in
Having defined burglary and extortion, I return to the question that launched this investigation in the first place: Which of the two poses the least “serious potential risk of physical injury to another“? Recall the definitions: burglary is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime“; extortion is “the obtaining of something of value
C
Having concluded in Part II-A that a crime may qualify under ACCA‘s violent felony residual provision only if it poses at least as much risk of physical injury to another as the least risky of the enumerated crimes; and in Part II-B that the least risky of the enumerated crimes is burglary; I am finally able to turn to the ultimate question posed by this case: Does attempted burglary categorically qualify as a violent felony under ACCA‘s residual provision? Or as my analysis has recast that question, does attempted burglary categorically involve conduct that poses at least as much risk of physical injury to another as completed burglary? Contrary to what the Court says, ante, at 203-207, the answer must be no.
In Taylor, we discussed the risks posed by the conduct involved in a completed burglary. We found it significant that a burglary involves “invasion of victims’ homes or workplaces,” 495 U. S., at 581 (internal quotation marks and brackets omitted), and we dwelled on such an invasion‘s “inherent potential for harm to persons,” id., at 588. In com-
As we have previously stated, it is “[t]he fact that an offender enters a building to commit a crime [that] creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Taylor, supra, at 588 (emphasis added); see also Leocal, supra, at 10 (“[B]urglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime” (emphasis added)). By definition, a perpetrator who has been convicted only of attempted burglary has failed to make it inside the home or workplace. (Indeed, a criminal convicted only of attempted burglary almost certainly injured no one; otherwise, he
Because attempted burglary categorically poses a less “serious potential risk of physical injury to another” than burglary, the least risky of ACCA‘s enumerated crimes, I would hold that it cannot be a predicate “violent felony” for purposes of ACCA‘s mandatory minimum sentencing enhancement,
D
The Court observes, with undoubted accuracy, that my approach is not perfect. It leaves it to courts to decide, “[w]ithout hard statistics” to guide them, ante, at 210, the degree of risk of physical injury posed by various crimes. But this is an imponderable that cannot be avoided when dealing with a statute that turns upon “a serious potential risk of physical injury to another.” It inheres in the Court‘s puny solution as well (how does the Court know that attempted burglary poses the same risk as burglary?). What this dissent must establish is not that my solution is perfect, but that it is substantially better than what the Court proposes. And there is little doubt of that. For in addition to
It is only the Court‘s decision-averse solution that enables it to accuse me of “unnecessarily decid[ing]” the meaning of extortion, ante, at 209. The Court accurately, but quite irrelevantly, asserts the following:
“[E]ven if an unenumerated offense could not qualify without presenting at least as much risk as the least risky of the enumerated offenses, it would not be necessary to identify the least risky of those offenses in order to decide this case. Rather, it would be sufficient to establish simply that the unenumerated offense pre-
sented at least as much risk as one of the enumerated offenses.” Ante, at 209-210 (emphasis added).
That is true enough, and I would be properly criticized for reaching an unnecessary question if, like the Court, I found attempted burglary to be as risky as burglary. Since I do not, however, it is unavoidable that I determine the meaning of extortion, in order to decide whether attempted burglary is less risky than that. The Court‘s criticism amounts to nothing more than a procedural quibble: Instead of deciding, as I have, (1) that arson and the use of explosives are the most risky of the enumerated crimes; (2) that as between burglary and extortion, burglary is the less risky (a determination requiring me to decide the meaning of extortion); and finally (3) that attempted burglary is less risky than burglary, I should have decided (1) that attempted burglary is less risky than arson, the use of explosives, and burglary; and only then (2) that attempted burglary is less risky than extortion (a determination requiring me to decide the meaning of extortion). Perhaps so, but it is surely a distinction without a real-world difference. Under either approach, determining the meaning of extortion is unquestionably necessary.
III
Congress passed ACCA to enhance punishment for gun-wielding offenders who have, inter alia, previously committed crimes that pose a “serious potential risk of physical injury to another.” Congress provided examples of crimes that meet this eminently reasonable but entirely abstract condition. Unfortunately, however, the four examples have little in common, most especially with respect to the level of risk of physical injury they pose. Such shoddy draftsmanship puts courts to a difficult choice: They can (1) apply the ACCA enhancement to virtually all predicate offenses, see n. 4, supra; (2) apply it case by case in its pristine abstrac-
I would choose either the third option (which I have tried to implement) or the fourth, since I believe the first two to be impermissible. If Congress wanted the first—subjecting all repeat offenders to a 15-year mandatory minimum prison term—it could very easily have crafted a statute which said that. ACCA, with its tedious definition of “violent felony,” was obviously not meant to have such an effect. The second option (the one chosen by the Court today)—essentially leaving it to the courts to apply the vague language in a manner that is ex ante (if not at the end of the day) highly unpredictable—violates, in my view, the constitutional prohibition against vague criminal laws.7 Congress has simply abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application; and this Court has abdicated its responsibility when it allows that. Today‘s opinion permits
JUSTICE THOMAS, dissenting.
For the reasons set forth in my opinion concurring in part and concurring in the judgment in Shepard v. United States, 544 U. S. 13, 27 (2005), I believe that “[t]he constitutional infirmity of
Petitioner Alphonso James pleaded guilty to being a felon in possession of a firearm, in violation of