Chambers v. United States , 555 U.S. 122 ( 2009 )


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  • (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
    
                      CHAMBERS v. UNITED STATES
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                    THE SEVENTH CIRCUIT
    
    No. 06–11206.       Argued November 10, 2008—Decided January 13, 2009
    The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory
      prison term on a felon unlawfully in possession of a firearm who has
      three prior convictions for committing certain drug crimes or “a vio
      lent felony,” 
    18 U.S. C
    . §924(e)(1), defined as a crime punishable by
      more than one year’s imprisonment that, inter alia, “involves conduct
      that presents a serious potential risk of physical injury to another,”
      §924(e)(2)(B)(ii). At petitioner Chambers’ sentencing for being a felon
      in possession of a firearm, the Government sought ACCA’s 15-year
      mandatory prison term. Chambers disputed one of his prior convic
      tions—failing to report for weekend confinement—as falling outside
      the ACCA definition of “violent felony.” The District Court treated
      the failure to report as a form of what the relevant state statute calls
      “escape from [a] penal institution,” and held that it qualified as a
      “violent felony” under ACCA. The Seventh Circuit agreed.
    Held: Illinois’ crime of failure to report for penal confinement falls out
     side the scope of ACCA’s “violent felony” definition. Pp. 3–8.
        (a) For purposes of ACCA’s definitions, it is the generic crime that
     counts, not how the crime was committed on a particular occasion.
     Taylor v. United States, 
    495 U.S. 575
    , 602. This categorical ap
     proach requires courts to choose the right category, and sometimes
     the choice is not obvious. The nature of the behavior that likely un
     derlies a statutory phrase matters in this respect. The state statute
     at issue places together in a single section several different kinds of
     behavior, which, as relevant here, may be categorized either as fail
     ure to report for detention or as escape from custody. Failure to re
     port is a separate crime from escape. Its underlying behavior differs
     from the more aggressive behavior underlying escape, and it is listed
     separately in the statute’s title and body and is of a different felony
    2                    CHAMBERS v. UNITED STATES
    
                                      Syllabus
    
        class than escape. At the same time, the statutory phrases setting
        forth the various kinds of failure to report describe roughly similar
        forms of behavior, thus constituting a single category. Consequently,
        for ACCA purposes, the statute contains at least two separate crimes,
        escape and failure to report. Pp. 3–5.
           (b) The “failure to report” crime does not satisfy ACCA’s “violent
        felony” definition. Although it is punishable by imprisonment ex
        ceeding one year, it satisfies none of the other parts of the definition.
        Most critically, it does not “involv[e] conduct that presents a serious
        potential risk of physical injury to another.” Conceptually speaking,
        the crime amounts to a form of inaction, and there is no reason to be
        lieve that an offender who fails to report is otherwise doing some
        thing that poses a serious potential risk of physical injury. The Gov
        ernment’s argument that a failure to report reveals the offender’s
        special, strong aversion to penal custody—pointing to 3 state and
        federal cases over 30 years in which individuals shot at officers at
        tempting to recapture them—is unconvincing. Even assuming the
        relevance of violence that may occur long after an offender fails to re
        port, the offender’s aversion to penal custody is beside the point. The
        question is whether such an offender is significantly more likely than
        others to attack or resist an apprehender, thereby producing a seri
        ous risk of physical injury. Here a United States Sentencing Com
        mission report, showing no violence in 160 federal failure-to-report
        cases over 2 recent years, helps provide a negative answer. The three
        reported cases to which the Government points do not show the con
        trary. Simple multiplication (2 years versus 30 years; federal alone
        versus federal-plus-state) suggests that they show only a statistically
        insignificant risk of physical violence. And the Government provides
        no other empirical information. Pp. 5–8.
    
    473 F.3d 724
    , reversed and remanded.
    
       BREYER, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ.,
    joined. ALITO, J., filed an opinion concurring in the judgment, in which
    THOMAS, JJ., joined.
                            Cite as: 555 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. 06–11206
                                       _________________
    
    
      DEONDERY CHAMBERS, PETITIONER v. UNITED 
    
                    STATES 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    
               APPEALS FOR THE SEVENTH CIRCUIT
    
                                   [January 13, 2009] 
    
    
      JUSTICE BREYER delivered the opinion of the Court.
      The question before us is whether a “failure to report”
    for penal confinement is a “ ‘violent felony’ ” within the
    terms of the Armed Career Criminal Act. 
    18 U.S. C
    .
    §924(e). We hold that it is not.
                                 I
      The Armed Career Criminal Act (ACCA) imposes a 15
    year mandatory prison term on an individual convicted of
    being a felon in possession of a firearm if that individual
    has “three previous convictions . . . for a violent felony or a
    serious drug offense, or both, committed on occasions
    different from one another.” §924(e)(1). ACCA defines a
    “violent felony” as a “crime punishable by imprisonment
    for a term exceeding one year” that also either
        “(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 the use
        of explosives, or otherwise involves conduct that pre
        sents a serious potential risk of physical injury to an
    2              CHAMBERS v. UNITED STATES
    
                         Opinion of the Court
    
        other.” §924(e)(2)(B).
    Clause (ii), ACCA’s so-called residual clause, is at issue
    here.
                                   II
       The petitioner, Deondery Chambers, pleaded guilty to a
    charge of being a felon unlawfully in possession of a fire
    arm. §922(g). At sentencing the Government asked the
    District Court to apply ACCA’s 15-year mandatory prison
    term because, in its view, three of Chambers’ prior convic
    tions qualified as an ACCA “serious drug offense” or “vio
    lent felony.” Chambers conceded that two of his prior
    convictions, namely a 1998 conviction for robbery and
    aggravated battery and a 1999 drug crime conviction, fell
    within ACCA’s definitions. But he disputed the Govern
    ment’s claim as to a third conviction. That third convic
    tion arose out of Chambers’ sentence for his 1998 robbery
    and battery offense. The sentence required Chambers to
    report to a local prison for 11 weekends of incarceration.
    He failed to report for weekend confinement on four occa
    sions, and was later convicted of the crime of “fail[ing] to
    report to a penal institution.” Ill. Comp. Stat., ch. 720,
    §5/31–6(a) (West Supp. 2008).
       The District Court treated the “failure to report” as a
    form of what the relevant Illinois statute calls “escape
    from [a] penal institution,” ibid., and held that the crime
    qualified as a “violent felony” under ACCA. The Court of
    Appeals agreed. 
    473 F.3d 724
     (CA7 2007). In light of
    disagreement among the Circuits as to whether failure to
    report for imprisonment falls within the scope of ACCA’s
    definition of “violent felony,” we granted certiorari. Com
    pare United States v. Winn, 
    364 F.3d 7
    , 12 (CA1 2004)
    (failure to report is a “violent felony”), with United States
    v. Piccolo, 
    441 F.3d 1084
    , 1088 (CA9 2006) (failure to
    report is not a “violent felony”).
                      Cite as: 555 U. S. ____ (2009) 
              3
    
                          Opinion of the Court 
    
    
                                 III 
    
       We initially consider the classification of the crime. In
    ordinary speech, words such as “crime” and “felony” can
    refer not only to a generic set of acts, say, burglary in
    general, but also to a specific act committed on a particu
    lar occasion, say the burglary that the defendant engaged
    in last month. We have made clear, however, that, for
    purposes of ACCA’s definitions, it is the generic sense of
    the word “felony” that counts. Taylor v. United States, 
    495 U.S. 575
    , 602 (1990); see also Shepard v. United States,
    
    544 U.S. 13
    , 16–17 (2005). The statute’s defining lan
    guage, read naturally, uses “felony” to refer to a crime as
    generally committed. And by so construing the statute,
    one avoids the practical difficulty of trying to ascertain at
    sentencing, perhaps from a paper record mentioning only
    a guilty plea, whether the present defendant’s prior crime,
    as committed on a particular occasion, did or did not in
    volve violent behavior. See id., at 20–21. Thus, to deter
    mine, for example, whether attempted burglary is a “vio
    lent felony,” we have had to examine, not the unsuccessful
    burglary the defendant attempted on a particular occa
    sion, but the generic crime of attempted burglary. James
    v. United States, 
    550 U.S. 192
    , 204–206 (2007).
       This categorical approach requires courts to choose the
    right category. And sometimes the choice is not obvious.
    The nature of the behavior that likely underlies a statu
    tory phrase matters in this respect. Where Massachu
    setts, for example, placed within a single, separately
    numbered statutory section (entitled “Breaking and enter
    ing at night,” Mass. Gen. Laws Ann., ch. 266, §16 (West
    2008)) burglary of a “building, ship, vessel or vehicle,” this
    Court found that the behavior underlying, say, breaking
    into a building, differs so significantly from the behavior
    underlying, say, breaking into a vehicle, that for ACCA
    purposes a sentencing court must treat the two as differ
    ent crimes. See Shepard, supra, at 16–17; see also Taylor,
    4               CHAMBERS v. UNITED STATES
    
                          Opinion of the Court
    
    supra, at 598.
       The Illinois statute now before us, like the Massachu
    setts statute, places together in a single numbered statu
    tory section several different kinds of behavior. It sepa
    rately describes those behaviors as (1) escape from a penal
    institution, (2) escape from the custody of an employee of a
    penal institution, (3) failing to report to a penal institu
    tion, (4) failing to report for periodic imprisonment, (5)
    failing to return from furlough, (6) failing to return from
    work and day release, and (7) failing to abide by the terms
    of home confinement. Ill. Comp. Stat., ch. 720, §5/31–6(a);
    see Appendix A, infra. We know from the state-court
    information in the record that Chambers pleaded guilty to
    “knowingly fail[ing] to report” for periodic imprisonment
    “to the Jefferson County Jail, a penal institution.” App.
    68; see Shepard, supra, at 25 (sentencing court may look,
    for example, to charging document, plea agreement, jury
    instructions, or transcript of plea colloquy to determine
    crime at issue). But we must decide whether for ACCA
    purposes a failure to report counts as a separate crime.
       Unlike the lower courts, we believe that a failure to
    report (as described in the statutory provision’s third,
    fourth, fifth, and sixth phrases) is a separate crime, differ
    ent from escape (the subject matter of the statute’s first
    and second phrases), and from the potentially less serious
    failure to abide by the terms of home confinement (the
    subject of the final phrase). The behavior that likely
    underlies a failure to report would seem less likely to
    involve a risk of physical harm than the less passive, more
    aggressive behavior underlying an escape from custody.
    See Begay v. United States, 
    553 U.S.
    ___, ___ (2008) (slip
    op., at 7). Moreover, the statute itself not only lists escape
    and failure to report separately (in its title and its body)
    but also places the behaviors in two different felony
    classes (Class Two and Class Three) of different degrees of
    seriousness. See Appendix A, infra.
                      Cite as: 555 U. S. ____ (2009)              5
    
                          Opinion of the Court
    
      At the same time, we believe the statutory phrases
    setting forth various kinds of failure to report (or to re
    turn) describe roughly similar forms of behavior. Each is
    characterized by a failure to present oneself for detention
    on a specified occasion. All amount to variations on a
    single theme. For that reason we consider them as to
    gether constituting a single category. Cf. James, supra, at
    207–209 (determining that where separately listed behav
    iors pose a similar degree of risk, sentencing courts may
    consider all listed behaviors as a single crime). We conse
    quently treat the statute for ACCA purposes as containing
    at least two separate crimes, namely escape from custody
    on the one hand, and a failure to report on the other.
    Failure to abide by home confinement terms—potentially
    the least serious of the offenses—is not at issue here.
                                   IV
      We now must consider whether the “failure to report”
    crime satisfies ACCA’s “violent felony” definition. It
    clearly satisfies the first part of that definition, for it is a
    “crime punishable by imprisonment for a term exceeding
    one year.” 
    18 U.S. C
    . §924(e)(2)(B). But it satisfies none
    of the other parts. It does not have “as an element the
    use, attempted use, or threatened use of physical force
    against the person of another.” §924(e)(2)(B)(i). It does
    not consist of “burglary, arson, or extortion,” or “involv[e]
    use of explosives.” §924(e)(2)(B)(ii). And, more critically
    for present purposes, it does not “ ‘involve conduct that
    presents a serious potential risk of physical injury to
    another.’ ” See Begay, 553 U. S., at ___ (slip op., at 2–4);
    id., at ___ (slip op., at 6) (SCALIA, J., concurring in judg
    ment) (treating serious risk of physical injury to another
    as critical definitional factor); id., at ___ (slip op., at 2)
    (ALITO, J., dissenting) (same).
      Conceptually speaking, the crime amounts to a form of
    inaction, a far cry from the “purposeful, ‘violent,’ and
    6              CHAMBERS v. UNITED STATES
    
                         Opinion of the Court
    
    ‘aggressive’ conduct” potentially at issue when an offender
    uses explosives against property, commits arson, burgles a
    dwelling or residence, or engages in certain forms of extor
    tion. Cf. id., at ___ (slip op., at 7). While an offender who
    fails to report must of course be doing something at the
    relevant time, there is no reason to believe that the some
    thing poses a serious potential risk of physical injury. Cf.
    James, 550 U. S., at 203–204. To the contrary, an indi
    vidual who fails to report would seem unlikely, not likely,
    to call attention to his whereabouts by simultaneously
    engaging in additional violent and unlawful conduct.
       The Government argues that a failure to report reveals
    the offender’s special, strong aversion to penal custody.
    And it points to three cases arising over a period of 30
    years in which reported opinions indicate that individuals
    shot at officers attempting to recapture them. See United
    States v. Eaglin, 
    571 F.2d 1069
    , 1072 (CA9 1977); State v.
    Johnson, 
    245 S.W.3d 288
    , 291 (Mo. Ct. App. 2008); State
    v. Jones, 
    96 Wash. App. 369
    , 371–372, 
    979 P.2d 898
    , 899
    (1999). But even if we assume for argument’s sake the
    relevance of violence that may occur long after an offender
    fails to report, we are not convinced by the Government’s
    argument. The offender’s aversion to penal custody, even
    if special, is beside the point. The question is whether
    such an offender is significantly more likely than others to
    attack, or physically to resist, an apprehender, thereby
    producing a “serious potential risk of physical injury.”
    §924(e)(2)(B)(ii). And here a United States Sentencing
    Commission report helps provide a conclusive, negative
    answer. See Report on Federal Escape Offenses in Fiscal
    Years 2006 and 2007, p. 6 (Nov. 2008) (hereinafter Com
    mission’s Report), reprinted in part in Appendix B, infra.
    See also 
    473 F. 3d
    , at 727 (Posner, J.) (urging that such
    research be done).
       The Commission’s Report identifies every federal case in
    2006 or 2007 in which a federal sentencing court applied
                     Cite as: 555 U. S. ____ (2009)            7
    
                         Opinion of the Court
    
    the Sentencing Guideline, “Escape, Instigating or Assist
    ing Escape,” 1 United States Sentencing Commission,
    Guidelines Manual §2P1.1 (Nov. 2008), and in which
    sufficient detail was provided, say, in the presentence
    report, about the circumstances of the crime to permit
    analysis. The analysis included calculation of the likeli
    hood that violence would accompany commission of the
    escape or the offender’s later apprehension.
       Of 414 such cases, 160 involved a failure to report either
    for incarceration (42) or for custody after having been
    temporarily released (118). Commission’s Report 7; see
    also Appendix B, infra. Of these 160 cases, none at all
    involved violence—not during commission of the offense
    itself, not during the offender’s later apprehension—
    although in 5 instances (3.1%) the offenders were armed.
    Ibid. The upshot is that the study strongly supports the
    intuitive belief that failure to report does not involve a
    serious potential risk of physical injury.
       The three reported cases to which the Government
    points do not show the contrary. The Sentencing Commis
    sion culled its 160 instances from a set of federal sentences
    imposed over a period of 2 years. The Government appar
    ently culled its three examples from a set of state and
    federal sentences imposed over a period of 30 years. Com
    pare Eaglin, supra (CA9 1977) with Johnson, supra (Mo.
    Ct. App. 2008). Given the larger set, the presence of three
    instances of violence is consistent with the Commission’s
    data. Simple multiplication (2 years versus 30 years;
    federal alone versus federal-plus-state) suggests that they
    show only a small risk of physical violence (less than one
    in several thousand). And the Government provides no
    other empirical information.
       For these reasons we conclude that the crime here at
    issue falls outside the scope of ACCA’s definition of “vio
    lent felony.” §924(e)(2)(B)(ii). The judgment of the Court
    of Appeals is reversed, and the case is remanded for pro
    8              CHAMBERS v. UNITED STATES
    
                         Opinion of the Court
    
    ceedings consistent with this opinion.
                                                It is so ordered.
                      Cite as: 555 U. S. ____ (2009)            9
    
                   Appendix A to opinionCourt Court
                         Opinion of the of the
    
          APPENDIX A TO OPINION OF THE COURT
    
    “Escape; failure to report to a penal institution or to report
    for periodic imprisonment.
        “A person convicted of a felony, adjudicated a
        delinquent minor for the commission of a felony
        offense under the Juvenile Court Act of 1987, or
        charged with the commission of a felony who
        intentionally escapes from any penal institution or
        from the custody of an employee of that institution
        commits a Class 2 felony; however, a person convicted
        of a felony or adjudicated a delinquent minor for the
        commission of a felony offense under the Juvenile
        Court Act of 1987 who knowingly fails to report to a
        penal institution or to report for periodic
        imprisonment at any time or knowingly fails to return
        from furlough or from work and day release or who
        knowingly fails to abide by the terms of home
        confinement is guilty of a Class 3 felony.” Ill. Comp.
        Stat., ch. 720, §5/31–6(a) (West Supp. 2008).
    10                CHAMBERS v. UNITED STATES
    
                      Appendix B to opinionCourt Court
                            Opinion of the of the
    
           APPENDIX B TO OPINION OF THE COURT
    
    Report on Federal Escape Offenses in Fiscal Years 2006
    and 2007, p. 7, fig. 1 (Nov. 2008).*
    
                 Leaving     Leaving       Leaving      Fail       Fail
                 Secure      Law           Nonse        ing to     ing to
                 Cus         Enforce-      cure         Report     Re
                 tody        ment          Custody                 turn
                             Custody
    
    Number       64          13            177          42         118
    of Cases
    Force        10          1 (7.7%)      3 (1.7%)     0          0
                 (15.6%)                                (0.0%)     (0.0%)
    Danger       20          1 (7.7%)      4 (2.3%)     3          2
    ous          (31.3%)                                (7.1%)     (1.7%)
    Weapon
    Injury       7           2             3 (1.7%)     0          0
                 (10.9%)     (15.4%)                    (0.0%)     (0.0%)
    
    
    
    
    ——————
      * Cases can fall into more than one category. For example, one case
    could involve both force and injury. Such a case would be represented
    in the table for force and also for injury. Therefore, the reader should
    not aggregate the numbers in any column.
                        Cite as: 555 U. S. ____ (2009)                    1
    
                       ALITO, J., concurring in judgment
    
    SUPREME COURT OF THE UNITED STATES
                                 _________________
    
                                No. 06–11206
                                 _________________
    
    
      DEONDERY CHAMBERS, PETITIONER v. UNITED 
    
                    STATES 
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    
               APPEALS FOR THE SEVENTH CIRCUIT
    
                              [January 13, 2009] 
    
    
       JUSTICE ALITO, with whom JUSTICE THOMAS joins,
    concurring in the judgment.
       As I have previously explained, I believe that the
    Court’s approach in Begay, like its approach in this case,
    “cannot be reconciled with the statutory text.” Begay v.
    United States, 
    553 U.S.
    ___, ___ (2008) (slip op., at 1)
    (dissenting opinion). I nonetheless recognize that “stare
    decisis in respect to statutory interpretation has ‘special
    force,’ ” John R. Sand & Gravel Co. v. United States, 
    552 U.S.
    ___, ___ (2008) (slip op., at 8), and I am sympathetic
    to the majority’s efforts to provide a workable interpreta
    tion of the “residual clause” of the Armed Career Criminal
    Act (ACCA), while retaining the “categorical approach”
    that we adopted in Taylor v. United States, 
    495 U.S. 575
    ,
    602 (1990). In light of Taylor and Begay, I agree that this
    case should be remanded for resentencing. I write sepa
    rately, however, to emphasize that only Congress can
    rescue the federal courts from the mire into which ACCA’s
    draftsmanship and Taylor’s “categorical approach” have
    pushed us.
       In 1986, when Congress enacted ACCA’s residual
    clause, 
    18 U.S. C
    . §924(e)(2)(B)(ii), few could have fore
    seen the difficulties that lay ahead.1 Only four months
    ——————
     1 Congress   originally enacted ACCA in 1984.       See §1802, 93 Stat.
    2                  CHAMBERS v. UNITED STATES
    
                       ALITO, J., concurring in judgment
    
    before Congress framed the residual clause, this Court
    upheld a state sentencing provision that imposed a man
    datory minimum sentence where the judge found by a
    preponderance of the evidence that the defendant visibly
    possessed a firearm during the commission of certain
    felonies (including robbery). See McMillan v. Pennsyl
    vania, 
    477 U.S. 79
     (1986). Legislating against the back
    ground of McMillan, Congress may have assumed that
    ACCA’s residual clause would similarly require federal
    sentencing judges to determine whether the particular
    facts of a particular case triggered a mandatory minimum
    sentence.
       But history took a different track. In Taylor, the Court
    held that ACCA requires “the sentencing court to look only
    to the fact that the defendant had been convicted of crimes
    falling within certain categories, and not to the facts
    underlying the prior convictions.” 495 U. S., at 600. Thus,
    we held that sentencing judges should apply a “categorical
    approach” to determine whether an underlying state
    offense meets the “generic” definition of burglary that this
    Court—not Congress—created. Id., at 598. The Court
    justified its decision with a 10-page discussion of ACCA’s
    purpose and legislative history, id., at 581–590; see also
    id., at 603 (SCALIA, J., concurring in part and concurring
    in judgment) (criticizing the Court’s approach), and ex
    plained that its conclusion was necessary to undo “an
    inadvertent casualty [in ACCA’s] complex drafting proc
    ess,” id., at 589–590.
       ACCA’s clarity has been the true inadvertent casualty.
    ——————
    2185, 
    18 U.S. C
    . App. §1202(a) (1982 ed. and Supp. II) (repealed in
    1986 by Firearms Owner’s Protection Act, §104(b), 100 Stat. 459). That
    statute, however, applied a mandatory sentencing enhancement to only
    two predicate felonies—robbery and burglary—which the statute
    expressly defined. 
    18 U.S. C
    . App. §§1202(c)(8)–(9) (1982 ed., Supp. II).
    Congress did not add the undefined “otherwise clause” until 1986. See
    Career Criminals Amendment Act of 1986, §1402, 100 Stat. 3207–39.
                          Cite as: 555 U. S. ____ (2009)                     3
    
                        ALITO, J., concurring in judgment
    
    After almost two decades with Taylor’s “categorical ap
    proach,” only one thing is clear: ACCA’s residual clause is
    nearly impossible to apply consistently. Indeed, the “cate
    gorical approach” to predicate offenses has created numer
    ous splits among the lower federal courts,2 the resolution
    of which could occupy this Court for years. What is worse
    is that each new application of the residual clause seems
    to lead us further and further away from the statutory
    text. Today’s decision, for example, turns on little more
    than a statistical analysis of a research report prepared by
    the United States Sentencing Commission. Ante, at 6–7;
    10 (App. B).
       At this point, the only tenable, long-term solution is for
    
    ——————
       2 For example, the lower courts have split over whether it is a “violent
    
    felony” under ACCA’s residual clause to commit rape, compare United
    States v. Sawyers, 
    409 F.3d 732
     (CA6 2005) (statutory rape not cate
    gorically violent), with United States v. Williams, 
    120 F.3d 575
     (CA5
    1997) (inducement of minor to commit sodomy violent), and United
    States v. Thomas, 231 Fed. Appx. 765 (CA9 2007) (all rape violent);
    retaliate against a government officer, compare United States v. Mont
    gomery, 
    402 F.3d 482
     (CA5 2005) (not violent), with Sawyers, supra
    (violent); attempt or conspire to commit burglary, compare United
    States v. Fell, 
    511 F.3d 1035
     (CA10 2007) (even after James v. United
    States, 
    550 U.S. 192
     (2007), and even where statute requires an overt
    act, conspiracy to commit burglary not violent), with United States v.
    Moore, 
    108 F.3d 878
     (CA8 1997) (attempted burglary violent if statute
    requires proof of overt act); carry a concealed weapon, compare United
    States v. Whitfield, 
    907 F.2d 798
     (CA8 1990) (not violent), with United
    States v. Hall, 
    77 F.3d 398
     (CA11 1996) (violent); and possess a sawed
    off shotgun as a felon, compare United States v. Amos, 
    501 F.3d 524
    (CA6 2007) (not violent), with United States v. Bishop, 
    453 F.3d 30
    (CA1 2006) (violent). Compare also United States v. Sanchez-Garcia,
    
    501 F.3d 1208
     (CA10 2007) (unauthorized use of a motor vehicle not a
    “violent felony” under 
    18 U.S. C
    . §16(b), which closely resembles
    ACCA’s residual clause), with United States v. Reliford, 
    471 F.3d 913
    (CA8 2006) (automobile tampering violent under ACCA’s residual
    clause), and United States v. Galvan-Rodriguez, 
    169 F.3d 217
     (CA5
    1999) (per curiam) (unauthorized use of a motor vehicle a “violent
    felony” under §16(b)).
    4              CHAMBERS v. UNITED STATES
    
                   ALITO, J., concurring in judgment
    
    Congress to formulate a specific list of expressly defined
    crimes that are deemed to be worthy of ACCA’s sentencing
    enhancement. That is the approach that Congress took in
    1984, when it applied ACCA to two enumerated and ex
    pressly defined felonies. See n. 1, supra. And that ap
    proach is the only way to right ACCA’s ship.
    

Document Info

DocketNumber: 06-11206

Citation Numbers: 555 U.S. 122, 129 S. Ct. 687, 172 L. Ed. 2d 484, 2009 U.S. LEXIS 580

Filed Date: 1/13/2009

Precedential Status: Precedential

Modified Date: 1/10/2018

Authorities (25)

United States v. Williams , 120 F.3d 575 ( 1997 )

United States v. Galvan-Rodriguez , 169 F.3d 217 ( 1999 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

McMillan v. Pennsylvania , 477 U.S. 79 ( 1986 )

Taylor v. United States , 495 U.S. 575 ( 1990 )

Shepard v. United States , 544 U.S. 13 ( 2005 )

James v. United States , 550 U.S. 192 ( 2007 )

Begay v. United States , 553 U.S. 137 ( 2008 )

John R. Sand & Gravel Co. v. United States , 552 U.S. 130 ( 2008 )

United States v. Sanchez-Garcia , 501 F.3d 1208 ( 2007 )

United States v. Fell , 511 F.3d 1035 ( 2007 )

United States v. Winn , 364 F.3d 7 ( 2004 )

United States v. Bishop , 453 F.3d 30 ( 2006 )

United States v. Raymond Eaglin , 571 F.2d 1069 ( 1977 )

United States v. Steven W. Whitfield , 907 F.2d 798 ( 1990 )

United States v. Alonzo Hall, Sedrick Latroy McKinney , 77 F.3d 398 ( 1996 )

United States v. Opera Moore , 108 F.3d 878 ( 1997 )

United States v. Maurice P. Montgomery , 402 F.3d 482 ( 2005 )

United States v. Tyrice L. Sawyers , 409 F.3d 732 ( 2005 )

United States v. Frazer Scott Piccolo , 441 F.3d 1084 ( 2006 )

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