An American Injustice 

 

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1
(Slip Opinion) OCTOBER TERM, 2014
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing 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 beenprepared 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
JOHNSON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 13–7120. Argued November 5, 2014—Reargued April 20, 2015—Decided June 26, 2015
After petitioner Johnson pleaded guilty to being a felon in possession ofa firearm, see 18 U. S. C. §922(g), the Government sought an enhanced sentence under the Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three prior convictions for a “violent felony,” §924(e)(1), a term defined by§924(e)(2)(B)’s residual clause to include any felony that “involvesconduct that presents a serious potential risk of physical injury to another.” The Government argued that Johnson’s prior conviction forunlawful possession of a short-barreled shotgun met this definition,making the third conviction of a violent felony. This Court had previously pronounced upon the meaning of the residual clause in James
v. United States, 550 U. S. 192; Begay v. United States, 553 U. S. 137; Chambers v. United States, 555 U. S. 122; and Sykes v. United States, 564 U. S. 1, and had rejected suggestions by dissenting Justices inboth James and Sykes that the clause is void for vagueness. Here, the District Court held that the residual clause does cover unlawful possession of a short-barreled shotgun, and imposed a 15-year sentence under ACCA. The Eighth Circuit affirmed.
Held: Imposing an increased sentence under ACCA’s residual clauseviolates due process. Pp. 3–15.
(a) The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law sovague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352, 357–358. Courts must use the “categorical approach” when deciding whether an offense is a violent felony, looking “only to the fact that the defendant has been convicted
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of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Taylor v. United States, 495 U. S. 575,
600. Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involvesin “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at
208. Pp. 3–5.
(b)
Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-worldfacts or statutory elements, the clause leaves grave uncertainty abouthow to estimate the risk posed by a crime. See James, supra, at 211. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy. Pp. 5–10.
(c)
This Court’s cases squarely contradict the theory that the residual clause is constitutional merely because some underlying crimes may clearly pose a serious potential risk of physical injury to another. See, e.g., United States v. L. Cohen Grocery Co., 255 U. S. 81, 89. Holding the residual clause void for vagueness does not put other criminal laws that use terms such as “substantial risk” in doubt, because those laws generally require gauging the riskiness of an individual’s conduct on a particular occasion, not the riskiness of an idealized ordinary case of the crime. Pp. 10–13.
(d)
The doctrine of stare decisis does not require continued adherence to James and Sykes. Experience leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause. James and Sykes opined about vagueness without fullbriefing or argument. And continued adherence to those decisions would undermine, rather than promote, the goals of evenhandedness,predictability, and consistency served by stare decisis. Pp. 13–15.
526 Fed. Appx. 708, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., and THOMAS, J., filed opinions concurring in the judgment. ALITO, J., filed a dissenting opinion.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 13–7120
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE SCALIA delivered the opinion of the Court.
Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presentsa serious potential risk of physical injury to another.” 18
U. S. C. §924(e)(2)(B). We must decide whether this partof the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.
I Federal law forbids certain people—such as convictedfelons, persons committed to mental institutions, and drugusers—to ship, possess, and receive firearms. §922(g). In general, the law punishes violation of this ban by up to 10years’ imprisonment. §924(a)(2). But if the violator has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. §924(e)(1); Johnson v. United States, 559 U. S. 133, 136 (2010). The Act defines “violent
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felony” as follows: “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 ofanother; or “(ii) is burglary, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added).
The closing words of this definition, italicized above, have come to be known as the Act’s residual clause. Since 2007, this Court has decided four cases attempting to discern itsmeaning. We have held that the residual clause (1) covers Florida’s offense of attempted burglary, James v. United States, 550 U. S. 192 (2007); (2) does not cover New Mexico’s offense of driving under the influence, Begay v. United States, 553 U. S. 137 (2008); (3) does not cover Illinois’ offense of failure to report to a penal institution, Chambers v. United States, 555 U. S. 122 (2009); and (4) does cover Indiana’s offense of vehicular flight from a law-enforcement officer, Sykes v. United States, 564 U. S. 1 (2011). In both James and Sykes, the Court rejected suggestions by dissenting Justices that the residual clauseviolates the Constitution’s prohibition of vague criminallaws. Compare James, 550 U. S., at 210, n. 6, with id., at 230 (SCALIA, J., dissenting); compare Sykes, 564 U. S., at ___ (slip op., at 13–14), with id., at ___ (SCALIA, J., dissenting) (slip op., at 6–8).
This case involves the application of the residual clauseto another crime, Minnesota’s offense of unlawful possession of a short-barreled shotgun. Petitioner Samuel Johnson is a felon with a long criminal record. In 2010, the Federal Bureau of Investigation began to monitor himbecause of his involvement in a white-supremacist organiCite
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zation that the Bureau suspected was planning to commit acts of terrorism. During the investigation, Johnsondisclosed to undercover agents that he had manufactured explosives and that he planned to attack “the Mexicanconsulate” in Minnesota, “progressive bookstores,” and “‘liberals.’” Revised Presentence Investigation in No.0:12CR00104–001 (D. Minn.), p. 15, ¶16. Johnson showed the agents his AK–47 rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition.
After his eventual arrest, Johnson pleaded guilty tobeing a felon in possession of a firearm in violation of §922(g). The Government requested an enhanced sentence under the Armed Career Criminal Act. It arguedthat three of Johnson’s previous offenses—including unlawful possession of a short-barreled shotgun, see Minn. Stat. §609.67 (2006)—qualified as violent felonies. The District Court agreed and sentenced Johnson to a 15-year prison term under the Act. The Court of Appeals affirmed.526 Fed. Appx. 708 (CA8 2013) (per curiam). We grantedcertiorari to decide whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as aviolent felony under the residual clause. 572 U. S. ___ (2014). We later asked the parties to present reargumentaddressing the compatibility of the residual clause with the Constitution’s prohibition of vague criminal laws. 574
U. S. ___ (2015).
II The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property, without dueprocess of law.” Our cases establish that the Government violates this guarantee by taking away someone’s life,liberty, or property under a criminal law so vague that itfails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352, 357–358
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(1983). The prohibition of vagueness in criminal statutes“is a well-recognized requirement, consonant alike withordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder, 442 U. S. 114, 123 (1979).
In Taylor v. United States, 495 U. S. 575, 600 (1990),this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense “is burglary, arson, or extortion, involves use of explosives, or otherwiseinvolves conduct that presents a serious potential risk of physical injury to another.” Under the categorical approach, a court assesses whether a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might havecommitted it on a particular occasion.” Begay, supra, at
141.
Deciding whether the residual clause covers a crimethus requires a court to picture the kind of conduct thatthe crime involves in “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part ofthe definition of a violent felony that asks whether the crime “has as an element the use . . . of physical force,” the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among theenumerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will
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injure someone. The act of making an extortionate demand or breaking and entering into someone’s home does not, in and of itself, normally cause physical injury.Rather, risk of injury arises because the extortionist mightengage in violence after making his demand or because theburglar might confront a resident in the home after breaking and entering.
We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentenceunder the clause denies due process of law.
A Two features of the residual clause conspire to make itunconstitutionally vague. In the first place, the residualclause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment ofrisk to a judicially imagined “ordinary case” of a crime, notto real-world facts or statutory elements. How does one go about deciding what kind of conduct the “ordinary case” ofa crime involves? “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” United States v. Mayer, 560 F. 3d 948, 952 (CA92009) (Kozinski, C. J., dissenting from denial of rehearing en banc). To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Critically, picturing the criminal’s behavior is not enough; as we have already discussed, assessing “potential risk” seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out. James illustrates how speculative (and how detached from statutory elements) this enterprise can become. Explaining why attempted burglary poses a serious potential risk of physical injury, the Court said: “An armed would-be burglar
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may be spotted by a police officer, a private security guard,or a participant in a neighborhood watch program. Or a homeowner . . . may give chase, and a violent encounter may ensue.” 550 U. S., at 211. The dissent, by contrast,asserted that any confrontation that occurs during an attempted burglary “is likely to consist of nothing morethan the occupant’s yelling ‘Who’s there?’ from his window, and the burglar’s running away.” Id., at 226 (opinion of SCALIA, J.). The residual clause offers no reliable way to choose between these competing accounts of what “ordinary” attempted burglary involves.
At the same time, the residual clause leaves uncertaintyabout how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise “serious potential risk” standard to real-world facts; it is quiteanother to apply it to a judge-imagined abstraction. Byasking whether the crime “otherwise involves conduct that presents a serious potential risk,” moreover, the residual clause forces courts to interpret “serious potential risk” in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These offenses are “far from clear in respect to the degreeof risk each poses.” Begay, 553 U. S., at 143. Does the ordinary burglar invade an occupied home by night or anunoccupied home by day? Does the typical extortionistthreaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information? By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.
This Court has acknowledged that the failure of “persistent efforts . . . to establish a standard” can provide evidence of vagueness. United States v. L. Cohen Grocery
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Co., 255 U. S. 81, 91 (1921). Here, this Court’s repeatedattempts and repeated failures to craft a principled and objective standard out of the residual clause confirm itshopeless indeterminacy. Three of the Court’s previousfour decisions about the clause concentrated on the level of risk posed by the crime in question, though in each casewe found it necessary to resort to a different ad hoc test to guide our inquiry. In James, we asked whether “the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses,” namely completed burglary; we concluded that it was. 550
U. S., at 203. That rule takes care of attempted burglary,but offers no help at all with respect to the vast majority ofoffenses, which have no apparent analog among the enumerated crimes. “Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives?” Id., at 215 (SCALIA, J., dissenting).
Chambers, our next case to focus on risk, relied principally on a statistical report prepared by the SentencingCommission to conclude that an offender who fails to report to prison is not “significantly more likely thanothers to attack, or physically to resist, an apprehender,thereby producing a ‘serious potential risk of physicalinjury.’” 555 U. S., at 128–129. So much for failure to report to prison, but what about the tens of thousands of federal and state crimes for which no comparable reportsexist? And even those studies that are available might suffer from methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures ofthe riskiness of the conduct that the crime involves. See Sykes, 564 U. S., at ___–___ (SCALIA, J., dissenting) (slipop., at 4–6); id., at ___, n. 4 (KAGAN, J., dissenting) (slip op., at 6, n. 4).
Our most recent case, Sykes, also relied on statistics, though only to “confirm the commonsense conclusion that
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Indiana’s vehicular flight crime is a violent felony.” Id., at ___ (majority opinion) (slip op., at 8). But common sense is a much less useful criterion than it sounds—as Sykes itself illustrates. The Indiana statute involved in that case covered everything from provoking a high-speed car chase to merely failing to stop immediately after seeing a policeofficer’s signal. See id., at ___ (KAGAN, J., dissenting) (slipop., at 3–4). How does common sense help a federal court discern where the “ordinary case” of vehicular flight in Indiana lies along this spectrum? Common sense has not even produced a consistent conception of the degree of risk posed by each of the four enumerated crimes; there is noreason to expect it to fare any better with respect to thousands of unenumerated crimes. All in all, James, Chambers, and Sykes failed to establish any generally applicable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition.
The remaining case, Begay, which preceded Chambers and Sykes, took an entirely different approach. The Court held that in order to qualify as a violent felony under the residual clause, a crime must resemble the enumerated offenses “in kind as well as in degree of risk posed.” 553
U. S., at 143. The Court deemed drunk driving insufficiently similar to the listed crimes, because it typicallydoes not involve “purposeful, violent, and aggressive conduct.” Id., at 144–145 (internal quotation marks omitted). Alas, Begay did not succeed in bringing clarity to themeaning of the residual clause. It did not (and could not) eliminate the need to imagine the kind of conduct typicallyinvolved in a crime. In addition, the enumerated crimes are not much more similar to one another in kind than in degree of risk posed, and the concept of “aggressive conduct” is far from clear. Sykes criticized the “purposeful,violent, and aggressive” test as an “addition to the statutory text,” explained that “levels of risk” would normally be
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dispositive, and confined Begay to “strict liability, negligence, and recklessness crimes.” 564 U. S., at ___–___ (slip op., at 10–11).
The present case, our fifth about the meaning of theresidual clause, opens a new front of uncertainty. When deciding whether unlawful possession of a short-barreled shotgun is a violent felony, do we confine our attention to the risk that the shotgun will go off by accident while in someone’s possession? Or do we also consider the possibility that the person possessing the shotgun will later use itto commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crimemay qualify under the residual clause even if the physicalinjury is remote from the criminal act. But how remote is too remote? Once again, the residual clause yields no answers.
This Court is not the only one that has had troublemaking sense of the residual clause. The clause has “created numerous splits among the lower federal courts,”where it has proved “nearly impossible to apply consistently.” Chambers, 555 U. S., at 133 (ALITO, J., concurring in judgment). The most telling feature of the lower courts’ decisions is not division about whether the residual clause covers this or that crime (even clear laws produce closecases); it is, rather, pervasive disagreement about thenature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. Some judgeshave concluded that deciding whether conspiracy is a violent felony requires evaluating only the dangers posedby the “simple act of agreeing [to commit a crime],” United States v. Whitson, 597 F. 3d 1218, 1222 (CA11 2010) (per curiam); others have also considered the probability that the agreement will be carried out, United States v. White, 571 F. 3d 365, 370–371 (CA4 2009). Some judges haveassumed that the battery of a police officer (defined toinclude the slightest touching) could “explode into violence
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and result in physical injury,” United States v. Williams, 559 F. 3d 1143, 1149 (CA10 2009); others have felt that it“do[es] a great disservice to law enforcement officers” toassume that they would “explod[e] into violence” ratherthan “rely on their training and experience to determine the best method of responding,” United States v. Carthorne, 726 F. 3d 503, 514 (CA4 2013). Some judges considering whether statutory rape qualifies as a violent felony have concentrated on cases involving a perpetratormuch older than the victim, United States v. Daye, 571
F. 3d 225, 230–231 (CA2 2009); others have tried to account for the possibility that “the perpetrator and thevictim [might be] close in age,” United States v. McDonald, 592 F. 3d 808, 815 (CA7 2010). Disagreements like thesego well beyond disputes over matters of degree.
It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from theresidual clause convinces us that we have embarked upona failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their summakes a task for us which at best could be only guesswork.” United States v. Evans, 333 U. S. 483, 495 (1948).Invoking so shapeless a provision to condemn someone toprison for 15 years to life does not comport with the Constitution’s guarantee of due process.
B The Government and the dissent claim that there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another. See post, at 14–15 (opinion of ALITO, J.). True enough, though we think many of the cases the Government and the dissent deem easy turn outnot to be so easy after all. Consider just one of the Government’s examples, Connecticut’s offense of “rioting at a correctional institution.” See United States v. Johnson,
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616 F. 3d 85 (CA2 2010). That certainly sounds like aviolent felony—until one realizes that Connecticut defines this offense to include taking part in “any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations” of the prison. Conn. Gen. Stat. §53a–179b(a) (2012). Who is to say which the ordinary “disorder” most closely resembles—a full-fledged prisonriot, a food-fight in the prison cafeteria, or a “passive and nonviolent [act] such as disregarding an order to move,” Johnson, 616 F. 3d, at 95 (Parker, J., dissenting)?
In all events, although statements in some of our opinions could be read to suggest otherwise, our holdingssquarely contradict the theory that a vague provision isconstitutional merely because there is some conduct thatclearly falls within the provision’s grasp. For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate” void for vagueness—eventhough charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen Grocery Co., 255 U. S., at 89. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from “conduct[ing] themselves in a manner annoying to persons passing by”—even though spitting insomeone’s face would surely be annoying. Coates v. Cincinnati, 402 U. S. 611 (1971). These decisions refute any suggestion that the existence of some obviously risky crimes establishes the residual clause’s constitutionality.
Resisting the force of these decisions, the dissent insiststhat “a statute is void for vagueness only if it is vague inall its applications.” Post, at 1. It claims that the prohibition of unjust or unreasonable rates in L. Cohen Grocerywas “vague in all applications,” even though one can easily envision rates so high that they are unreasonable by any measure. Post, at 16. It seems to us that the dissent’s supposed requirement of vagueness in all applications isnot a requirement at all, but a tautology: If we hold a
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statute to be vague, it is vague in all its applications (andnever mind the reality). If the existence of some clearly unreasonable rates would not save the law in L. Cohen Grocery, why should the existence of some clearly risky crimes save the residual clause?
The Government and the dissent next point out that dozens of federal and state criminal laws use terms like “substantial risk,” “grave risk,” and “unreasonable risk,” suggesting that to hold the residual clause unconstitutionalis to place these provisions in constitutional doubt. See post, at 7–8. Not at all. Almost none of the cited laws links a phrase such as “substantial risk” to a confusing list of examples. “The phrase ‘shades of red,’ standing alone,does not generate confusion or unpredictability; but thephrase ‘fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does so.” James, 550 U. S., at 230, n. 7 (SCALIA, J., dissenting).More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individualdefendant engages on a particular occasion. As a generalmatter, we do not doubt the constitutionality of laws thatcall for the application of a qualitative standard such as“substantial risk” to real-world conduct; “the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree,” Nash v. United States, 229 U. S. 373, 377 (1913). The residual clause, however, requires application of the “serious potential risk” standard to an idealized ordinary case of the crime. Because “the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,” thisabstract inquiry offers significantly less predictabilitythan one “[t]hat deals with the actual, not with an imaginary condition other than the facts.” International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914).
Finally, the dissent urges us to save the residual clause
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from vagueness by interpreting it to refer to the risk posedby the particular conduct in which the defendant engaged,not the risk posed by the ordinary case of the defendant’scrime. See post, at 9–13. In other words, the dissent suggests that we jettison for the residual clause (thoughnot for the enumerated crimes) the categorical approachadopted in Taylor, see 495 U. S., at 599–602, and reaffirmed in each of our four residual-clause cases, see James, 550 U. S., at 202; Begay, 553 U. S., at 141; Chambers, 555 U. S., at 125; Sykes, 564 U. S., ___ (slip op., at 5). We decline the dissent’s invitation. In the first place, theGovernment has not asked us to abandon the categoricalapproach in residual-clause cases. In addition, Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylor explained that the relevant partof the Armed Career Criminal Act “refers to ‘a person who . . . has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U. S., at 600. This emphasis on convictionsindicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convictedof crimes falling within certain categories, and not to the facts underlying the prior convictions.” Ibid. Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction. For example,if the original conviction rested on a guilty plea, no recordof the underlying facts may be available. “[T]he onlyplausible interpretation” of the law, therefore, requires use of the categorical approach. Id., at 602.
C That brings us to stare decisis. This is the first case in which the Court has received briefing and heard argumentfrom the parties about whether the residual clause is void
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for vagueness. In James, however, the Court stated in a footnote that it was “not persuaded by [the principal dissent’s] suggestion . . . that the residual provision is unconstitutionally vague.” 550 U. S., at 210, n. 6. In Sykes, the Court again rejected a dissenting opinion’s claim of vagueness. 564 U. S., at ___–___ (slip op., at 13–14).
The doctrine of stare decisis allows us to revisit an earlier decision where experience with its application reveals that it is unworkable. Payne v. Tennessee, 501 U. S. 808, 827 (1991). Experience is all the more instructive whenthe decision in question rejected a claim of unconstitutional vagueness. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicialdecisions: the inability of later opinions to impart the predictability that the earlier opinion forecast. Here, the experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudicationunder the residual clause. Even after Sykes tried to clarifythe residual clause’s meaning, the provision remains a“judicial morass that defies systemic solution,” “a black hole of confusion and uncertainty” that frustrates any effort to impart “some sense of order and direction.” United States v. Vann, 660 F. 3d 771, 787 (CA4 2011) (Agee, J., concurring).
This Court’s cases make plain that even decisions rendered after full adversarial presentation may have to yieldto the lessons of subsequent experience. See, e.g., United States v. Dixon, 509 U. S. 688, 711 (1993); Payne, 501
U. S., at 828–830 (1991). But James and Sykes opinedabout vagueness without full briefing or argument on that issue—a circumstance that leaves us “less constrained to follow precedent,” Hohn v. United States, 524 U. S. 236, 251 (1998). The brief discussions of vagueness in James and Sykes homed in on the imprecision of the phrase“serious potential risk”; neither opinion evaluated the
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uncertainty introduced by the need to evaluate the riskiness of an abstract ordinary case of a crime. 550 U. S., at 210, n. 6; 564 U. S., at ___ (slip op., at 13–14). And departing from those decisions does not raise any concerns about upsetting private reliance interests.
Although it is a vital rule of judicial self-government, stare decisis does not matter for its own sake. It matters because it “promotes the evenhanded, predictable, and consistent development of legal principles.” Payne, supra, at 827. Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent.Standing by James and Sykes would undermine, rather than promote, the goals that stare decisis is meant to serve.
* * * We hold that imposing an increased sentence under theresidual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contraryholdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.We reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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KENNEDY, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
No. 13–7120
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE KENNEDY, concurring in the judgment.
In my view, and for the reasons well stated by JUSTICE ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under thecategorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by JUSTICE THOMAS in Part I of his opinion concurring in the judgment, Johnson’sconviction for possession of a short-barreled shotgun does not qualify as a violent felony.
For these reasons, I concur in the judgment.
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SUPREME COURT OF THE UNITED STATES
No. 13–7120
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE THOMAS, concurring in the judgment.
I agree with the Court that Johnson’s sentence cannotstand. But rather than use the Fifth Amendment’s Due Process Clause to nullify an Act of Congress, I would resolve this case on more ordinary grounds. Under conventional principles of interpretation and our precedents,the offense of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA).
The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As JUSTICE ALITO explains, that decision cannot be reconciled with our precedents concerning the vagueness doctrine. See post, at 13– 17 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding theresidual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U. S. ___, ___–___ (2012) (slip op., at 16–17), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due pro2
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cess, a judicially created doctrine lacking any basis in the Constitution.
I We could have easily disposed of this case without nullifying ACCA’s residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under ACCA. In relevant part, that Actdefines a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person ofanother; or “(ii) is burglary, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B).
The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definitionnor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it fallswithin ACCA’s so-called “residual clause”—i.e., if it “involves conduct that presents a serious potential risk ofphysical injury to another.” §924(e)(2)(B)(ii).
To determine whether an offense falls within the residual clause, we consider “whether the conduct encompassedby the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James
v. United States, 550 U. S. 192, 208 (2007). The specificcrimes listed in §924(e)(2)(B)(ii)—arson, extortion, burglary, and an offense involving the use of explosives—offer a “baseline against which to measure the degree of risk” a crime must present to fall within that clause. Id., at 208. Those offenses do not provide a high threshold, see id., at
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203, 207–208, but the crime in question must still present a “‘serious’”—a “‘significant’ or ‘important’”—risk of physical injury to be deemed a violent felony, Begay v. United States, 553 U. S. 137, 156 (2008) (ALITO, J., dissenting); accord, Chambers v. United States, 555 U. S. 122, 128 (2009).
To qualify as serious, the risk of injury generally mustbe closely related to the offense itself. Our precedentsprovide useful examples of the close relationship thatmust exist between the conduct of the offense and the risk presented. In Sykes v. United States, 564 U. S. 1 (2011), for instance, we held that the offense of intentional vehicular flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, id., at ___ (slip op., at 8). As we explained, vehicular flights “by definitional necessity occur when police are present” and aredone “in defiance of their instructions . . . with a vehicle that can be used in a way to cause serious potential risk ofphysical injury to another.” Ibid. In James, we likewise held that attempted burglary offenses “requir[ing] anovert act directed toward the entry of a structure” areviolent felonies because the underlying conduct often results in a dangerous confrontation. 550 U. S., at 204,
206. But we distinguished those crimes from “the moreattenuated conduct encompassed by” attempt offenses “that c[an] be satisfied by preparatory conduct that does not pose the same risk of violent confrontation,” such as“‘possessing burglary tools.’” Id., at 205, 206, and n. 4. At some point, in other words, the risk of injury from thecrime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g., the use of burglary tools to enter astructure) is necessary to bring about the risk of physical injury to another.
In light of the elements of and reported convictions forthe unlawful possession of a short-barreled shotgun, this
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crime does not “involv[e] conduct that presents a serious potential risk of physical injury to another,” §924(e) (2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause.
Standing alone, the elements of this offense—(1) unlawfully (2) possessing (3) a short-barreled shotgun—do not describe inherently dangerous conduct. As a conceptualmatter, “simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of whichdo not involve likely accompanying violence.” United States v. Doe, 960 F. 2d 221, 225 (CA1 1992). These weapons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. Bythemselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky thanACCA’s enumerated offenses.
Reported convictions support the conclusion that merepossession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an emptyhome. State v. Salyers, 858 N. W. 2d 156, 157–158 (Minn. 2015). In another, the firearm was retrieved from the trunk of the defendant’s car. State v. Ellenberger, 543 N.
W. 2d 673, 674 (Minn. App. 1996). In still another, the weapon was found missing a firing pin. State v. Johnson, 171 Wis. 2d 175, 178, 491 N. W. 2d 110, 111 (App. 1992). In these instances and others, the offense threatened no one.
The Government’s theory for why this crime should nonetheless qualify as a “violent felony” is unpersuasive.Although it does not dispute that the unlawful possessionof a short-barreled shotgun can occur in a nondangerousmanner, the Government contends that this offense poses
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a serious risk of physical injury due to the connectionbetween short-barreled shotguns and other serious crimes.As the Government explains, these firearms are “weapons not typically possessed by law-abiding citizens for lawful purposes,” District of Columbia v. Heller, 554 U. S. 570, 625 (2008), but are instead primarily intended for use in criminal activity. In light of that intended use, the Government reasons that the ordinary case of this possessionoffense will involve the use of a short-barreled shotgun ina serious crime, a scenario obviously posing a serious risk of physical injury.
But even assuming that those who unlawfully possessthese weapons typically intend to use them in a seriouscrime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight—conduct that by itself often or always invites a dangerous confrontation—possession of a short-barreled shotgun poses athreat only when an offender decides to engage in additional, voluntary conduct that is not included in the elements of the crime. Until this weapon is assembled, loaded, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from merepossession of this firearm is too attenuated to treat thisoffense as a violent felony. I would reverse the Court of Appeals on that basis.
II As the foregoing analysis demonstrates, ACCA’s resid- ual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the operation of this provision violates the Fifth Amendment’s DueProcess Clause.
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JUSTICE ALITO shows why that analysis is wrong under our precedents. See post, at 13–17 (dissenting opinion).But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of “due process of law” is a difficultquestion I leave for the another day, but the doctrine’shistory should prompt us at least to examine its constitutional underpinnings more closely before we use it tonullify yet another duly enacted law.
A We have become accustomed to using the Due Process Clauses to invalidate laws on the ground of “vagueness.” The doctrine we have developed is quite sweeping: “Astatute can be impermissibly vague . . . if it fails to providepeople of ordinary intelligence a reasonable opportunity tounderstand what conduct it prohibits” or “if it authorizesor even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U. S. 703, 732 (2000). Usingthis framework, we have nullified a wide range of enactments. We have struck down laws ranging from cityordinances, Papachristou v. Jacksonville, 405 U. S. 156, 165–171 (1972), to Acts of Congress, United States v. L. Cohen Grocery Co., 255 U. S. 81, 89–93 (1921). We have struck down laws whether they are penal, Lanzetta v. New Jersey, 306 U. S. 451, 452, 458 (1939), or not, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 597–604 (1967).1 We have struck down laws addressing —————— 1By “penal,” I mean laws “authoriz[ing] criminal punishment” as wellas those “authorizing fines or forfeitures . . . [that] are enforced throughcivil rather than criminal process.” Cf. C. Nelson, Statutory Interpretation 108 (2011) (discussing definition of “penal” for purposes of rule oflenity). A law requiring termination of employment from public institutions, for instance, is not penal. See Keyishian, 385 U. S., at 597–
604. Nor is a law creating an “obligation to pay taxes.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with
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subjects ranging from abortion, Colautti v. Franklin, 439
U. S. 379, 390 (1979), and obscenity, Winters v. New York, 333 U. S. 507, 517–520 (1948), to the minimum wage, Connally v. General Constr. Co., 269 U. S. 385, 390–395 (1926), and antitrust, Cline v. Frink Dairy Co., 274 U. S. 445, 453–465 (1927). We have even struck down a law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified. Chicago v. Morales, 527 U. S. 41, 51 (1999) (invalidating a “loitering” law); see id., at 113, and n. 10 (THOMAS, J., dissenting) (discussing a 1764 Georgia law requiring the apprehension of “all able bodied persons . . . who shall be found loitering”).
That we have repeatedly used a doctrine to invalidatelaws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450–452 (1857) (stating that anAct of Congress prohibiting slavery in certain FederalTerritories violated the substantive due process rights ofslaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurringin part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not”). Although our vaguenessdoctrine is distinct from substantive due process, their histories have disquieting parallels.
1 The problem of vague penal statutes is nothing new. —————— a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26).
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The notion that such laws may be void under the Constitution’s Due Process Clauses, however, is a more recent development.
Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of construction—better known today as the rule of lenity—first emerged in 16th-century England in reaction toParliament’s practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749– 751 (1935); see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 10–11 (1948) (noting that some of the following crimes triggered the death penalty: “marking the edges of any current coin of the kingdom,” “maliciously cutting any hop-binds growing on poles in any plantation of hops,” and “being in the company of gypsies”). Courts relied on this rule of construction in refusing to apply vague capital-offense statutes to prosecutions before them. As an example of this rule, William Blackstone described a notableinstance in which an English statute imposing the death penalty on anyone convicted of “stealing sheep, or other cattle” was “held to extend to nothing but mere sheep” as“th[e] general words, ‘or other cattle,’ [were] looked uponas much too loose to create a capital offence.” 1 Commentaries on the Laws of England 88 (1765).2
—————— 2At the time, the ordinary meaning of the word “cattle” was not limited to cows, but instead encompassed all “[b]easts of pasture; not wild nor domestick.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773). Parliament responded to the judicial refusal to applythe provision to “cattle” by passing “another statute, 15 Geo. II. c. 34,extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves,and lambs, by name.” 1 Blackstone, Commentaries on the Laws of England, at 88.
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Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing “[t]hat every person who shall attempt to trade with the Indian tribes,or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license,” must forfeit the offending goods. Act of July 22, 1790, ch. 33, §3, 1 Stat. 137–138. At first glance,punishing the unlicensed possession of “merchandise . . . usually vended to the Indians,” ibid., would seem far more likely to “invit[e] arbitrary enforcement,” ante, at 5, than does the residual clause.
But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courts—like their English predecessors—simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g., United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CCPa. 1815) (Washington, J.). In Sharp, for instance, several defendants charged with violating an Act rendering it a capital offense for “any seaman” to “make a revolt in [a]ship,” Act of Apr. 30, 1790, §8, 1 Stat. 114, objected that“the offence of making a revolt, [wa]s not sufficientlydefined by this law, or by any other standard, to whichreference could be safely made; to warrant the court inpassing a sentence upon [them].” 27 F. Cas., at 1043. Justice Washington, riding circuit, apparently agreed,observing that the common definitions for the phrase“make a revolt” were “so multifarious, and so different” that he could not “avoid feeling a natural repugnance, toselecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature.” Ibid. Remarking that “[l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid,” he refused
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to “recommend to the jury, to find the prisoners guilty ofmaking, or endeavouring to make a revolt, however strongthe evidence may be.” Ibid.
Such analysis does not mean that federal courts believed they had the power to invalidate vague penal lawsas unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist “of a refusal to give a statute effect as operative law in resolving a case,” a notion quite distinct from our modern practice of “‘strik[ing] down’ legislation.” Walsh, Partial Unconstitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010). The process of refusing to apply such laws appeared to occur ona case-by-case basis. For instance, notwithstanding hisdoubts expressed in Sharp, Justice Washington, writing for this Court, later rejected the argument that lowercourts could arrest a judgment under the same ship-revolt statute because it “does not define the offence of endeavouring to make a revolt.” United States v. Kelly, 11 Wheat. 417, 418 (1826). The Court explained that “it is . . . competent to the Court to give a judicial definition” of “the offence of endeavouring to make a revolt,” and thatsuch definition “consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of her commander, with intent to removehim from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring their obedience from thelawful commander to some other person.” Id., at 418–419. In dealing with statutory indeterminacy, federal courtssaw themselves engaged in construction, not judicial review as it is now understood. 3 ——————
3Early American state courts also sometimes refused to apply a lawthey found completely unintelligible, even outside of the penal context. In one antebellum decision, the Pennsylvania Supreme Court did not even attempt to apply a statute that gave the Pennsylvania state treasurer “ ‘as many votes’ ” in state bank elections as “ ‘were held by
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2 Although vagueness concerns played a role in the strictconstruction of penal statutes from early on, there is little indication that anyone before the late 19th century believed that courts had the power under the Due Process Clauses to nullify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use thatAmendment’s Due Process Clause to challenge state laws that attached penalties to unauthorized commercial conduct. In addition to claiming that these laws violatedtheir substantive due process rights, these litigants began—with some success—to contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penalties against any railroad that demanded “more than a just and reasonable compensation” or engaged in “unjust and unreasonable discrimination” in setting its rates. Louisville & Nashville R. Co. v. Railroad Comm’n of Tenn., 19
F. 679, 690 (CC MD Tenn. 1884) (internal quotationmarks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that“[n]o citizen . . . can be constitutionally subjected to penalties and despoiled of his property, in a criminal or quasicriminal proceeding, under and by force of such indefinite
—————— individuals’ ” without providing guidance as to which individuals it was referring. Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg. 173, 177 (1842). Concluding that it had “seldom, if ever, found the language of legislation so devoid of certainty,” the court withdrew the case. Ibid.; see also Drake v. Drake, 15 N. C. 110, 115 (1833) (“Whethera statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative”). This practice is distinct from our modern vagueness doctrine,which applies to laws that are intelligible but vague.
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legislation.” Id., at 693 (emphasis deleted).
Justice Brewer—widely recognized as “a leadingspokesman for ‘substantized’ due process,” Gamer, JusticeBrewer and Substantive Due Process: A Conservative Court Revisited, 18 Vand. L. Rev. 615, 627 (1965)—employed similar reasoning while riding circuit, though hedid not identify the constitutional source of judicial authority to nullify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more thana “reasonable and just” rate, Justice Brewer mentioned in dictum that “no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and whathe may not do under it.” Chicago & N. W. R. Co. v. Dey, 35 F. 866, 876 (CC SD Iowa 1888).
Constitutional vagueness challenges in this Court initially met with some resistance. Although the Courtappeared to acknowledge the possibility of unconstitutionally indefinite enactments, it repeatedly rejected vagueness challenges to penal laws addressing railroad rates, Railroad Comm’n Cases, 116 U. S. 307, 336–337 (1886), liquor sales, Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445, 450–451 (1904), and anticompetitive conduct, Nash v. United States, 229 U. S. 373, 376–378 (1913); Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 108–111 (1909).
In 1914, however, the Court nullified a law on vagueness grounds under the Due Process Clause for the first time. In International Harvester Co. of America v. Kentucky, 234 U. S. 216 (1914), a tobacco company brought a Fourteenth Amendment challenge against several Kentucky antitrust laws that had been construed to renderunlawful “any combination [made] . . . for the purpose or with the effect of fixing a price that was greater or less than the real value of the article,” id., at 221. The com-pany argued that by referring to “real value,” the laws pro13
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vided “no standard of conduct that it is possible to know.” Ibid. The Court agreed. Id., at 223–224. Although it didnot specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ibid., it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes “violated the fundamental principles of justice embraced in the conception of due process of law.” Collins v. Kentucky, 234 U. S. 634, 638 (1914).
3 Since that time, the Court’s application of its vagueness doctrine has largely mirrored its application of substantivedue process. During the Lochner era, a period marked bythe use of substantive due process to strike down economic regulations, e.g., Lochner v. New York, 198 U. S. 45, 57 (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4 Among the penal laws it found to be impermissibly vague were a state law regulating the production of crude oil, Champlin Refining Co. v. Corporation Comm’n
—————— 4During this time, the Court would apply its new vagueness doctrineoutside of the penal context as well. In A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233 (1925), a sugar dealer raised a defense to a breach-of-contract suit that the contracts themselves were unlawful under several provisions of the Lever Act, including one making it “ ‘unlawful for any person . . . to make any unjust or unreasonable . . . charge in . . . dealing in or with any necessaries,’ or to agree with another ‘to exact excessive prices for any necessaries,’ ” id., at 238. Applying United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921),which had held that provision to be unconstitutionally vague, the Courtrejected the dealer’s argument. 267 U. S., at 238–239. The Court explained that “[i]t was not the criminal penalty that was held invalid,but the exaction of obedience to a rule or standard which was so vagueand indefinite as really to be no rule or standard at all.” Id., at 239. That doctrine thus applied to penalties as well as “[a]ny other means of exaction, such as declaring the transaction unlawful or stripping aparticipant of his rights under it.” Ibid.
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of Okla., 286 U. S. 210, 242–243 (1932), a state antitrust law, Cline, 274 U. S., at 453–465, a state minimum-wage law, Connally, 269 U. S., at 390–395, and a federal price-control statute, L. Cohen Grocery Co., 255 U. S., at 89–93.5
Around the time the Court began shifting the focus of itssubstantive due process (and equal protection) jurisprudence from economic interests to “discrete and insular minorities,” see United States v. Carolene Products Co., 304 U. S. 144, 153, n. 4 (1938), the target of its vaguenessdoctrine changed as well. The Court began to use thevagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, Winters, 333
U. S., at 517–520, and membership in a gang, Lanzetta, 306 U. S., at 458.
Successful vagueness challenges to regulations penalizing commercial conduct, by contrast, largely fell by thewayside. The Court, for instance, upheld a federal regulation punishing the knowing violation of an order instructing drivers transporting dangerous chemicals to “‘avoid, sofar as practicable . . . driving into or through congestedthoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,’” Boyce Motor Lines, Inc. v. United States, 342 U. S. 337,
—————— 5Vagueness challenges to laws regulating speech during this periodwere less successful. Among the laws the Court found to be sufficientlydefinite included a state law making it a misdemeanor to publish, among other things, materials “ ‘which shall tend to encourage or advocate disrespect for law or for any court or courts of justice,’ ” Fox v. Washington, 236 U. S. 273, 275–277 (1915), a federal statute criminalizing candidate solicitation of contributions for “ ‘any political purposewhatever,’ ” United States v. Wurzbach, 280 U. S. 396, 398–399 (1930), and a state prohibition on becoming a member of any organization thatadvocates using unlawful violence to effect “‘any political change,’” Whitney v. California, 274 U. S. 357, 359–360, 368–369 (1927). But see Stromberg v. California, 283 U. S. 359, 369–370 (1931) (holding state statute punishing the use of any symbol “‘of opposition to organized government’ ” to be impermissibly vague).
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338–339, 343 (1952). And notwithstanding its earlierconclusion that an Oklahoma law requiring state employees and contractors to be paid “‘not less than the current rate of per diem wages in the locality where the work is performed’” was unconstitutionally vague, Connally, supra, at 393, the Court found sufficiently definite a federal law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire “‘persons in excess of the number of employees needed bysuch licensee to perform actual services,’” United States v. Petrillo, 332 U. S. 1, 3, 6–7 (1947).
In more recent times, the Court’s substantive due process jurisprudence has focused on abortions, and ourvagueness doctrine has played a correspondingly significant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U. S. 113 (1973), on the theory that laws prohibiting all abortions save for those done “for the purposeof saving the life of the mother” forced abortionists toguess when this exception would apply on penalty of conviction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U. S., at 164. But since then, the Court has repeatedly deployed the vagueness doctrine tonullify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc., 462
U. S. 416, 451–452 (1983) (nullifying law requiring “‘thatthe remains of the unborn child [be] disposed of in a humane and sanitary manner’”); Colautti, 439 U. S., at 381 (nullifying law mandating abortionists adhere to a prescribed standard of care if “ there is ‘sufficient reason to believe that the fetus may be viable’”).6
—————— 6All the while, however, the Court has rejected vagueness challengesto laws punishing those on the other side of the abortion debate. When
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In one of our most recent decisions nullifying a law on vagueness grounds, substantive due process was againlurking in the background. In Morales, a plurality of this Court insisted that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment,” 527 U. S., at 53, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indeterminate, see id., at 55 (“When vagueness permeates the textof ” a penal law “infring[ing] on constitutionally protectedrights,” “it is subject to facial attack”).
I find this history unsettling. It has long been understood that one of the problems with holding a statute “void for ‘indefiniteness’” is that “‘indefiniteness’ . . . is itself an indefinite concept,” Winters, supra, at 524 (Frankfurter, J.,dissenting), and we as a Court have a bad habit of using indefinite concepts—especially ones rooted in “due process”—to invalidate democratically enacted laws.
B It is also not clear that our vagueness doctrine can be reconciled with the original understanding of the term “due process of law.” Our traditional justification for thisdoctrine has been the need for notice: “A conviction fails to comport with due process if the statute under which it isobtained fails to provide a person of ordinary intelligence fair notice of what is prohibited.” United States v. Williams, 553 U. S. 285, 304 (2008); accord, ante, at 3. Presumably, that justification rests on the view expressed in
—————— it comes to restricting the speech of abortion opponents, the Court has dismissed concerns about vagueness with the observation that “ ‘we can never expect mathematical certainty from our language,’ ” Hill v. Colorado, 530 U. S. 703, 733 (2000), even though such restrictions arearguably “at least as imprecise as criminal prohibitions on speech the Court has declared void for vagueness in past decades,” id., at 774 (KENNEDY, J., dissenting).
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Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), that “due process of law” constrains thelegislative branch by guaranteeing “usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, andwhich are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country,” id., at 277. That justification assumes further that providing “a person of ordinary intelligence [with] fair notice of what is prohib- ited,” Williams, supra, at 304, is one such usage or mode.7
To accept the vagueness doctrine as founded in ourConstitution, then, one must reject the possibility “thatthe Due Process Clause requires only that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions,” which may be all that the original meaning of this provision demands. Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (THOMAS, J., dissenting) (some internal quotation marks omitted); accord, Turner v. Rogers, 564 U. S.
—————— 7As a general matter, we should be cautious about relying on general theories of “fair notice” in our due process jurisprudence, as they have been exploited to achieve particular ends. In BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), for instance, the Court held that the Due Process Clause imposed limits on punitive damages because the Clause guaranteed “that a person receive fair notice not only of theconduct that will subject him to punishment, but also of the severity ofthe penalty that a State may impose,” id., at 574. That was true even though “when the Fourteenth Amendment was adopted, punitivedamages were undoubtedly an established part of the American common law of torts,” and “no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of suchdamages, or their amount.” Pacific Mut. Life Ins. Co. v. Haslip, 499
U. S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment). Even under the view of the Due Process Clause articulated in Murray’s Lessee, then, we should not allow nebulous principles to supplant more specific, historically grounded rules. See 499 U. S., at 37–38 (opinion of SCALIA, J.).
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___, ___ (2011) (THOMAS, J., dissenting) (slip op., at 2).Although Murray’s Lessee stated the contrary, 18 How., at276, a number of scholars and jurists have concluded that“considerable historical evidence supports the position that ‘due process of law’ was a separation-of-powers concept designed as a safeguard against unlicensed executiveaction, forbidding only deprivations not authorized bylegislation or common law.” D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 (1985); see also, e.g., In re Winship, 397 U. S. 358, 378–382 (1970) (Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Processas Separation of Powers, 121 Yale L. J. 1672, 1679 (2012) (arguing that, as originally understood, “the principle of due process” required, among other things, that “statutesthat purported to empower the other branches to deprivepersons of rights without adequate procedural guarantees[be] subject to judicial review”).
I need not choose between these two understandings of “due process of law” in this case. JUSTICE ALITO explainswhy the majority’s decision is wrong even under our precedents. See post, at 13–17 (dissenting opinion). And more generally, I adhere to the view that “‘[i]f any fool wouldknow that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by thelaw, the enactment is not unconstitutional on its face,’” Morales, supra, at 112 (THOMAS, J., dissenting), and there is no question that ACCA’s residual clause meets thatdescription, see ante, at 10 (agreeing with the Government that “there will be straightforward cases under the residual clause”).
* * * I have no love for our residual clause jurisprudence: As Iobserved when we first got into this business, the Sixth
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Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a “violent felony” made our attempt to construe the residualclause “‘an unnecessary exercise.’” James, 550 U. S., at 231 (THOMAS, J., dissenting). But the Court rejected myargument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have noright to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due ProcessClause to nullify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment.
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SUPREME COURT OF THE UNITED STATES
No. 13–7120
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE ALITO, dissenting.
The Court is tired of the Armed Career Criminal Act of 1984 (ACCA) and in particular its residual clause. Anxious to rid our docket of bothersome residual clause cases, the Court is willing to do what it takes to get the job done.So brushing aside stare decisis, the Court holds that the residual clause is unconstitutionally vague even though we have twice rejected that very argument within the last eight years. The canons of interpretation get no greater respect. Inverting the canon that a statute should beconstrued if possible to avoid unconstitutionality, the Court rejects a reasonable construction of the residualclause that would avoid any vagueness problems, preferring an alternative that the Court finds to be unconstitutionally vague. And the Court is not stopped by the well-established rule that a statute is void for vagueness only if it is vague in all its applications. While conceding that some applications of the residual clause are straightforward, the Court holds that the clause is now void in its entirety. The Court’s determination to be done with residual clause cases, if not its fidelity to legal principles, is impressive.
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I
A
Petitioner Samuel Johnson (unlike his famous namesake) has led a life of crime and violence. His presentence investigation report sets out a résumé of petty and serious crimes, beginning when he was 12 years old. Johnson’s adult record includes convictions for, among other things, robbery, attempted robbery, illegal possession of a sawed-off shotgun, and a drug offense.
In 2010, the Federal Bureau of Investigation (FBI) began monitoring Johnson because of his involvement with the National Socialist Movement, a white-supremacist organization suspected of plotting acts ofterrorism. In June of that year, Johnson left the group and formed his own radical organization, the Aryan Liberation Movement, which he planned to finance by counterfeiting United States currency. In the course of the Government’s investigation, Johnson “disclosed to undercover FBI agents that he manufactured napalm, silencers, and other explosives for” his new organization. 526 Fed. Appx.708, 709 (CA8 2013) (per curiam). He also showed the agents an AK–47 rifle, a semiautomatic rifle, a semiautomatic pistol, and a cache of approximately 1,100 rounds ofammunition. Later, Johnson told an undercover agent:“You know I’d love to assassinate some . . . hoodrats as much as the next guy, but I think we really got to stick with high priority targets.” Revised Presentence Investigation Report (PSR) ¶15. Among the top targets that hementioned were “the Mexican consulate,” “progressive bookstores,” and individuals he viewed as “liberals.” PSR ¶16.
In April 2012, Johnson was arrested, and he was subsequently indicted on four counts of possession of a firearm by a felon and two counts of possession of ammunition bya felon, in violation of 18 U. S. C. §§922(g) and §924(e). He pleaded guilty to one of the firearms counts, and the DisCite
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trict Court sentenced him to the statutory minimum of 15 years’ imprisonment under ACCA, based on his prior felony convictions for robbery, attempted robbery, andillegal possession of a sawed-off shotgun.
B ACCA provides a mandatory minimum sentence for certain violations of §922(g), which prohibits the shipment, transportation, or possession of firearms or ammunition by convicted felons, persons previously committed to a mental institution, and certain others. Federal law normally provides a maximum sentence of 10 years’ imprisonment for such crimes. See §924(a)(2). Under ACCA, however, if a defendant convicted under §922(g) has three prior convictions “for a violent felony or a serious drugoffense,” the sentencing court must impose a sentence of atleast 15 years’ imprisonment. §924(e)(1). ACCA’s definition of a “violent felony” has three parts.First, a felony qualifies if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” §924(e)(2)(B)(i). Second, the Act specifically names four categories of qualifying felonies: burglary, arson, extortion, and offenses involving the use of explosives. See §924(e)(2)(B)(ii). Third, the Act contains what we have called a “residual clause,” which reaches any felony that “otherwise involves conduct that presents a serious potential risk of physical injury toanother.” Ibid. The present case concerns the residual clause. The sole question raised in Johnson’s certiorari petition waswhether possession of a sawed-off shotgun under Minne- sota law qualifies as a violent felony under that clause.Although Johnson argued in the lower courts that theresidual clause is unconstitutionally vague, he did not renew that argument here. Nevertheless, after oral argument, the Court raised the question of vagueness on its
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own. The Court now holds that the residual clause is unconstitutionally vague in all its applications. I cannot agree.
II I begin with stare decisis. Eight years ago in James v. United States, 550 U. S. 192 (2007), JUSTICE SCALIA, the author of today’s opinion for the Court, fired an openingshot at the residual clause. In dissent, he suggested thatthe residual clause is void for vagueness. Id., at 230. The Court held otherwise, explaining that the standard in the residual clause “is not so indefinite as to prevent an ordinary person from understanding” its scope. Id., at 210,
n. 6.
Four years later, in Sykes v. United States, 564 U. S. 1 (2011), JUSTICE SCALIA fired another round. Dissentingonce again, he argued that the residual clause is void for vagueness and rehearsed the same basic arguments that the Court now adopts. See id., at ___–___ (slip op., at 7–8); see also Derby v. United States, 564 U. S. ___, ___–___ (2011) (SCALIA, J., dissenting from denial of certiorari) (slip op., at 4–5). As in James, the Court rejected his arguments. See Sykes, 564 U. S., at ___ (slip op., at 13– 14). In fact, JUSTICE SCALIA was the only Member of the Sykes Court who took the position that the residual clause could not be intelligibly applied to the offense at issue. The opinion of the Court, which five Justices joined, expressly held that the residual clause “states an intelligibleprinciple and provides guidance that allows a person to‘conform his or her conduct to the law.’” Id., at ___–___ (slip op., at 13–14) (quoting Chicago v. Morales, 527 U. S. 41, 58 (1999) (plurality opinion)). JUSTICE THOMAS’s concurrence, while disagreeing in part with the Court’s interpretation of the residual clause, did not question itsconstitutionality. See Sykes, 564 U. S., at ___ (opinion concurring in judgment). And JUSTICE KAGAN’s dissent,
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which JUSTICE GINSBURG joined, argued that a proper application of the provision required a different result.See id., at ___. Thus, eight Members of the Court found the statute capable of principled application.
It is, of course, true that “[s]tare decisis is not an inexorable command.” Payne v. Tennessee, 501 U. S. 808, 828 (1991). But neither is it an empty Latin phrase. There must be good reasons for overruling a precedent, and thereis none here. Nothing has changed since our decisions in James and Sykes—nothing, that is, except the Court’sweariness with ACCA cases.
Reprising an argument that JUSTICE SCALIA made to no avail in Sykes, supra, at ___ (dissenting opinion) (slip op., at 7), the Court reasons that the residual clause must be unconstitutionally vague because we have had troublesettling on an interpretation. See ante, at 7. But disagreement about the meaning and application of the clause is not new. We were divided in James and in Sykes and in our intervening decisions in Begay v. United States, 553
U. S. 137 (2008), and Chambers v. United States, 555 U. S. 122 (2009). And that pattern is not unique to ACCA; wehave been unable to come to an agreement on many recurring legal questions. The Confrontation Clause is one example that comes readily to mind. See, e.g., Williams v. Illinois, 567 U. S. ___ (2012); Bullcoming v. New Mexico, 564 U. S. ___ (2011); Melendez-Diaz v. Massachusetts, 557
U. S. 305 (2009). Our disagreements about the meaning ofthat provision do not prove that the Confrontation Clausehas no ascertainable meaning. Likewise, our disagreements on the residual clause do not prove that it is unconstitutionally vague.
The Court also points to conflicts in the decisions of the lower courts as proof that the statute is unconstitutional. See ante, at 9–10. The Court overstates the degree of disagreement below. For many crimes, there is no dispute that the residual clause applies. And our certiorari docket
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provides a skewed picture because the decisions that weare asked to review are usually those involving issues onwhich there is at least an arguable circuit conflict. But in any event, it has never been thought that conflictinginterpretations of a statute justify judicial elimination of the statute. One of our chief responsibilities is to resolvethose disagreements, see Supreme Court Rule 10, not tostrike down the laws that create this work.
The Court may not relish the task of resolving residualclause questions on which the Circuits disagree, but theprovision has not placed a crushing burden on our docket. In the eight years since James, we have decided all of three cases involving the residual clause. See Begay, supra; Chambers, supra; Sykes, supra. Nevertheless, faced with the unappealing prospect of resolving more circuit splits on various residual clause issues, see ante, at 9, six Members of the Court have thrown in the towel. That is not responsible.
III Even if we put stare decisis aside, the Court’s decision remains indefensible. The residual clause is not unconstitutionally vague.
A The Fifth Amendment prohibits the enforcement of vague criminal laws, but the threshold for declaring a law void for vagueness is high. “The strong presumptivevalidity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty isfound in determining whether certain marginal offensesfall within their language.” United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963). Rather, it is sufficient if a statute sets out an “ascertainable standard.” United States v. L. Cohen Grocery Co., 255 U. S. 81, 89
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(1921). A statute is thus void for vagueness only if it wholly “fails to provide a person of ordinary intelligencefair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U. S. 285, 304 (2008).
The bar is even higher for sentencing provisions. The fair notice concerns that inform our vagueness doctrineare aimed at ensuring that a “‘person of ordinary intelligence [has] a reasonable opportunity to know what isprohibited, so that he may act accordingly.’” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 498 (1982) (quoting Grayned v. City of Rockford, 408 U. S. 104, 108 (1972)). The fear is that vague laws will “‘trap the innocent.’” 455 U. S., at 498. These concerns have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question. Due process does not require, as Johnson oddly suggests, that a “prospective criminal” be able to calculate the precise penalty that aconviction would bring. Supp. Brief for Petitioner 5; see Chapman v. United States, 500 U. S. 453, 467–468 (1991) (concluding that a vagueness challenge was “particularly”weak “since whatever debate there is would center around the appropriate sentence and not the criminality of theconduct”).
B ACCA’s residual clause unquestionably provides anascertainable standard. It defines “violent felony” toinclude any offense that “involves conduct that presents a serious potential risk of physical injury to another.” 18
U. S. C. §924(e)(2)(B)(ii). That language is by no meansincomprehensible. Nor is it unusual. There are scores of federal and state laws that employ similar standards. The Solicitor General’s brief contains a 99-page appendix
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setting out some of these laws. See App. to Supp. Brief for United States; see also James, supra, at 210, n. 6. If all these laws are unconstitutionally vague, today’s decision is not a blast from a sawed-off shotgun; it is a nuclear explosion.
Attempting to avoid such devastation, the Court distinguishes these laws primarily on the ground that almost all of them “require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.” Ante, at 12 (emphasis in original). The Court thus admits that, “[a]s a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct.” Ibid. Its complaint is that the residual clause “requires application of the ‘serious potential risk’ standard to an idealized ordinary case of the crime.” Ibid. (emphasis added). Thus, according to the Court, ACCA’s residual clause is unconstitutionally vague because itsstandard must be applied to “an idealized ordinary case of the crime” and not, like the vast majority of the laws inthe Solicitor General’s appendix, to “real-world conduct.”
ACCA, however, makes no reference to “an idealized ordinary case of the crime.” That requirement was thehandiwork of this Court in Taylor v. United States, 495
U. S. 575 (1990). And as I will show, the residual clause can reasonably be interpreted to refer to “real-world conduct.”1
—————— 1The Court also says that the residual clause’s reference to the enumerated offenses is “confusing.” Ante, at 12. But this is another argument we rejected in James v. United States, 550 U. S. 192 (2007), and Sykes v. United States, 564 U. S. 1 (2011), and it is no more persuasive now. Although the risk level varies among the enumerated offenses, all four categories of offenses involve conduct that presents a serious potential risk of harm to others. If the Court’s concern is that some of the enumerated offenses do not seem especially risky, all that means is that the statute “sets a low baseline level for risk.” Id., at ___ (THOMAS, J., concurring in judgment) (slip op., at 2).
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C When a statute’s constitutionality is in doubt, we have an obligation to interpret the law, if possible, to avoid theconstitutional problem. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). As one treatise puts it,“[a] statute should be interpreted in a way that avoidsplacing its constitutionality in doubt.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts §38, p. 247 (2012). This canon applies fully when considering vagueness challenges. In cases like this one, “our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations.” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 571 (1973); see also Skilling v. United States, 561 U. S. 358, 403 (2010). Indeed, “‘[t]heelementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” Id., at 406 (quoting Hooper v. California, 155 U. S. 648, 657 (1895); emphasis deleted); see also Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J.).The Court all but concedes that the residual clause would be constitutional if it applied to “real-world conduct.” Whether that is the best interpretation of the residual clause is beside the point. What matters is whether it is a reasonable interpretation of the statute. And it surely is that.First, this interpretation heeds the pointed distinction that ACCA draws between the “element[s]” of an offense and “conduct.” Under §924(e)(2)(B)(i), a crime qualifies as a “violent felony” if one of its “element[s]” involves “the use, attempted use, or threatened use of physical force against the person of another.” But the residual clause, which appears in the very next subsection, §924(e)(2)(B)(ii), focuses on “conduct”—specifically, “con10
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duct that presents a serious potential risk of physicalinjury to another.” The use of these two different terms in §924(e) indicates that “conduct” refers to things done during the commission of an offense that are not part of the elements needed for conviction. Because those extra actions vary from case to case, it is natural to interpret“conduct” to mean real-world conduct, not the conduct involved in some Platonic ideal of the offense.
Second, as the Court points out, standards like the onein the residual clause almost always appear in laws that call for application by a trier of fact. This strongly suggests that the residual clause calls for the same sort of application.
Third, if the Court is correct that the residual clause is nearly incomprehensible when interpreted as applying toan “idealized ordinary case of the crime,” then that is telling evidence that this is not what Congress intended. When another interpretation is ready at hand, why shouldwe assume that Congress gave the clause a meaning that is impossible—or even, exceedingly difficult—to apply?
D Not only does the “real-world conduct” interpretation fitthe terms of the residual clause, but the reasons that persuaded the Court to adopt the categorical approach in Taylor either do not apply or have much less force inresidual clause cases. In Taylor, the question before the Court concerned themeaning of “burglary,” one of ACCA’s enumerated of- fenses. The Court gave three reasons for holding that a judge making an ACCA determination should generally look only at the elements of the offense of conviction and not toother things that the defendant did during the commission of the offense. First, the Court thought that ACCA’s use of the term “convictions” pointed to the categorical approach.The Court wrote: “Section 924(e)(1) refers to ‘a person who
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. . . has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U. S., at 600. Second, the Court relied on legislative history, noting that ACCA had previouslycontained a generic definition of burglary and that “thedeletion of [this] definition . . . may have been an inadvertent casualty of a complex drafting process.” Id., at 589–590, 601. Third, the Court felt that “the practicaldifficulties and potential unfairness of a factual approach[were] daunting.” Id., at 601.
None of these three grounds dictates that the categoricalapproach must be used in residual clause cases. The second ground, which concerned the deletion of a generic definition of burglary, obviously has no application to the residual clause. And the first ground has much less forcein residual clause cases. In Taylor, the Court reasoned that a defendant has a “conviction” for burglary only if burglary is the offense set out in the judgment of conviction. For instance, if a defendant commits a burglary but pleads guilty, under a plea bargain, to possession of burglar’s tools, the Taylor Court thought that it would beunnatural to say that the defendant had a conviction for burglary. Now consider a case in which a gang member is convicted of illegal possession of a sawed-off shotgun and the evidence shows that he concealed the weapon underhis coat, while searching for a rival gang member who had just killed his brother. In that situation, it is not at all unnatural to say that the defendant had a conviction for acrime that “involve[d] conduct that present[ed] a seri-ous potential risk of physical injury to another.” §924(e)(2)(B)(ii) (emphasis added). At the very least, it would be a reasonable way to describe the defendant’sconviction.
The Taylor Court’s remaining reasons for adopting thecategorical approach cannot justify an interpretation that renders the residual clause unconstitutional. While the
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Taylor Court feared that a conduct-specific approachwould unduly burden the courts, experience has shown that application of the categorical approach has not always been easy. Indeed, the Court’s main argument for overturning the statute is that this approach is unmanageable in residual clause cases.
As for the notion that the categorical approach is moreforgiving to defendants, there is a strong argument that the opposite is true, at least with respect to the residualclause. Consider two criminal laws: Injury occurs in 10%of cases involving the violation of statute A, but in 90% of cases involving the violation of statute B. Under the categorical approach, a truly dangerous crime under statute A might not qualify as a violent felony, while a crimewith no measurable risk of harm under statute B would count against the defendant. Under a conduct-specificinquiry, on the other hand, a defendant’s actual conduct would determine whether ACCA’s mandatory penalty applies.
It is also significant that the allocation of the burden ofproof protects defendants. The prosecution bears the burden of proving that a defendant has convictions that qualify for sentencing under ACCA. If evidentiary deficiencies, poor recordkeeping, or anything else prevents the prosecution from discharging that burden under the conduct-specific approach, a defendant would not receive an ACCA sentence.
Nor would a conduct-specific inquiry raise constitutional problems of its own. It is questionable whether the Sixth Amendment creates a right to a jury trial in this situation. See Almendarez-Torres v. United States, 523 U. S. 224 (1998). But if it does, the issue could be tried to a jury,and the prosecution could bear the burden of proving beyond a reasonable doubt that a defendant’s prior crimes involved conduct that presented a serious potential risk ofinjury to another. I would adopt this alternative interpre13
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tation and hold that the residual clause requires an examination of real-world conduct.
The Court’s only reason for refusing to consider this interpretation is that “the Government has not asked us to abandon the categorical approach in residual-clause cases.” Ante, at 13. But the Court cites no case in which we have suggested that a saving interpretation may be adopted only if it is proposed by one of the parties. Nor does the Court cite any secondary authorities advocating this rule. Cf. Scalia, Reading Law §38 (stating the canon with nosuch limitation). On the contrary, we have long recognized that it is “our plain duty to adopt that constructionwhich will save [a] statute from constitutional infirmity,”where fairly possible. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 407 (1909). It would be strange if we could fulfill that “plain duty” only when a party asks us to do so. And the Court’s refusal to consider a saving interpretation not advocated bythe Government is hard to square with the Court’s adoption of an argument that petitioner chose not to raise. As noted, Johnson did not ask us to hold that the residual clause is unconstitutionally vague, but the Court interjected that issue into the case, requested supplemental briefing on the question, and heard reargument. The Court’s refusal to look beyond the arguments of the partiesapparently applies only to arguments that the Court does not want to hear.
E Even if the categorical approach is used in residual clause cases, however, the clause is still not void for vagueness. “It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined” on an as-applied basis. United States v. Mazurie, 419 U. S. 544, 550 (1975). “Objections to vagueness under the Due Process Clause rest
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on the lack of notice, and hence may be overcome in anyspecific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486
U. S. 356, 361 (1988). Thus, in a due process vaguenesscase, we will hold that a law is facially invalid “only if theenactment is impermissibly vague in all of its applications.” Hoffman Estates, 455 U. S., at 494–495 (emphasis added); see also Chapman, 500 U. S., at 467.2
In concluding that the residual clause is facially void forvagueness, the Court flatly contravenes this rule. The Court admits “that there will be straightforward casesunder the residual clause.” Ante, at 10. But rather than exercising the restraint that our vagueness cases prescribe, the Court holds that the residual clause is unconstitutionally vague even when its application is clear.
The Court’s treatment of this issue is startling. Its facial invalidation precludes a sentencing court that isapplying ACCA from counting convictions for even those specific offenses that this Court previously found to fall within the residual clause. See James, 550 U. S., at 203– 209 (attempted burglary); Sykes, 564 U. S., at ___–___ (slip op., at 5–9) (flight from law enforcement in a vehicle).
—————— 2This rule is simply an application of the broader rule that, except in First Amendment cases, we will hold that a statute is facially unconstitutional only if “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). A void-for-vagueness challenge is a facial challenge. See Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494–495, and nn. 5, 6, 7 (1982); Chicago v. Morales, 527 U. S. 41, 79 (1999) (SCALIA, J., dissenting). Consequently, there is no reason why the no-set-ofcircumstances rule should not apply in this context. I assume that the Court does not mean to abrogate the no-set-of-circumstances rule in itsentirety, but the Court provides no justification for its refusal to apply that rule here. Perhaps the Court has concluded, for some undisclosed reason, that void-for-vagueness claims are different from all other facial challenges not based on the First Amendment. Or perhaps the Court has simply created an ACCA exception.
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Still worse, the Court holds that vagueness bars the use of the residual clause in other cases in which its applicability can hardly be questioned. Attempted rape is an example. See, e.g., Dawson v. United States, 702 F. 3d 347, 351–352 (CA6 2012). Can there be any doubt that “an idealizedordinary case of th[is] crime” “involves conduct that presents a serious potential risk of physical injury to another”? How about attempted arson,3 attempted kidnapping,4 solicitation to commit aggravated assault,5 possession of a loaded weapon with the intent to use it unlawfully against another person,6 possession of a weapon in prison,7 or compelling a person to act as a prostitute?8 Is there much doubt that those offenses “involve conduct that presents aserious potential risk of physical injury to another”?
Transforming vagueness doctrine, the Court claims thatwe have never actually held that a statue may be voided for vagueness only when it is vague in all its applications. But that is simply wrong. In Hoffman Estates, we reversed a Seventh Circuit decision that voided an ordinance prohibiting the sale of certain items. See 455 U. S., at
491. The Seventh Circuit struck down the ordinance because it was “unclear in some of its applications,” but wereversed and emphasized that a law is void for vagueness“only if [it] is impermissibly vague in all of its applications.” Id., at 494–495; see also id., at 495, n. 7 (collecting cases). Applying that principle, we held that the “facial ——————
3 United States v. Rainey, 362 F. 3d 733, 735–736 (CA11) (per curiam), cert. denied, 541 U. S. 1081 (2004). 4 United States v. Kaplansky, 42 F. 3d 320, 323–324 (CA6 1994) (en banc). 5 United States v. Benton, 639 F. 3d 723, 731–732 (CA6), cert. denied, 565 U. S. ___ (2011). 6 United States v. Lynch, 518 F. 3d 164, 172–173 (CA2 2008), cert. denied, 555 U. S. 1177 (2009). 7 United States v. Boyce, 633 F. 3d 708, 711–712 (CA8 2011), cert. denied, 565 U. S. ___ (2012). 8 United States v. Brown, 273 F. 3d 747, 749–751 (CA7 2001).
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challenge [wa]s unavailing” because “at least some of the items sold . . . [we]re covered” by the ordinance. Id., at
500. These statements were not dicta. They were theholding of the case. Yet the Court does not even mention this binding precedent.
Instead, the Court says that the facts of two earlier cases support a broader application of the vaguenessdoctrine. See ante, at 11. That, too, is incorrect. Neither case remotely suggested that mere overbreadth is enough for facial invalidation under the Fifth Amendment.
In Coates v. Cincinnati, 402 U. S. 611, 612 (1971), we addressed an ordinance that restricted free assembly and association rights by prohibiting “annoying” conduct. Our analysis turned in large part on those First Amendment concerns. In fact, we specifically explained that the “viceof the ordinance lies not alone in its violation of the due process standard of vagueness.” Id., at 615. In the present case, by contrast, no First Amendment rights are atissue. Thus, Coates cannot support the Court’s rejection of our repeated statements that “vagueness challenges tostatutes which do not involve First Amendment freedoms must be examined in light of the facts . . . at hand.” Mazurie, supra, at 550 (emphasis added).
Likewise, L. Cohen Grocery Co., 255 U. S. 81, provesprecisely the opposite of what the Court claims. In that case, we struck down a statute prohibiting “ ‘unjust orunreasonable rate[s]’” because it provided no “ascertainable standard of guilt” and left open “the widest conceivableinquiry, the scope of which no one can foresee and theresult of which no one can foreshadow or adequately guard against.” Id., at 89. The clear import of this language is that the law at issue was impermissibly vague in all applications. And in the years since, we have never adopted the majority’s contradictory interpretation. On the contrary, we have characterized the case as involving a statute that could “not constitutionally be applied to any set of
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facts.” United States v. Powell, 423 U. S. 87, 92 (1975).Thus, our holdings and our dicta prohibit the Court’sexpansion of the vagueness doctrine. The Constitution does not allow us to hold a statute void for vaguenessunless it is vague in all its applications.
IV Because I would not strike down ACCA’s residual clause, it is necessary for me to address whether Johnson’s conviction for possessing a sawed-off shotgun qualifies asa violent felony. Under either the categorical approach ora conduct-specific inquiry, it does.
A The categorical approach requires us to determine whether “the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James, 550 U. S., at 208. This is an “inherently probabilistic” determination that considers the circumstances and conduct that ordinarily attend the offense. Id., at 207. The mere fact that a crime could be committed without a risk of physical harm does notexclude it from the statute’s reach. See id., at 207–208. Instead, the residual clause speaks of “potential risk[s],” §924(e)(2)(B)(ii), a term suggesting “that Congress in- tended to encompass possibilities even more contingent orremote than a simple ‘risk,’ much less a certainty.” James, supra, at 207–208. Under these principles, unlawful possession of a sawed-off shotgun qualifies as a violent felony. As we recognizedin District of Columbia v. Heller, 554 U. S. 570, 625 (2008),sawed-off shotguns are “not typically possessed by law-abiding citizens for lawful purposes.” Instead, they areuniquely attractive to violent criminals. Much easier to conceal than long-barreled shotguns used for hunting and other lawful purposes, short-barreled shotguns can be
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hidden under a coat, tucked into a bag, or stowed under a car seat. And like a handgun, they can be fired with one hand—except to more lethal effect. These weapons thuscombine the deadly characteristics of conventional shotguns with the more convenient handling of handguns.Unlike those common firearms, however, they are not typically possessed for lawful purposes. And when a person illegally possesses a sawed-off shotgun during thecommission of a crime, the risk of violence is seriously increased. The ordinary case of unlawful possession of a sawed-off shotgun therefore “presents a serious potential risk of physical injury to another.” §922(e)(2)(B)(ii).
Congress’ treatment of sawed-off shotguns confirms this judgment. As the Government’s initial brief colorfullyrecounts, sawed-off shotguns were a weapon of choice for gangsters and bank robbers during the Prohibition Era. See Brief for United States 4.9 In response, Congress enacted the National Firearms Act of 1934, which requiredindividuals possessing certain especially dangerous weapons—including sawed-off shotguns—to register with theFederal Government and pay a special tax. 26 U. S. C. §§5845(a)(1)–(2). The Act was passed on the understanding that “while there is justification for permitting thecitizen to keep a pistol or revolver for his own protectionwithout any restriction, there is no reason why anyone
—————— 9Al Capone’s south-side Chicago henchmen used sawed-off shotgunswhen they executed their rivals from Bugs Moran’s north-side gang during the infamous Saint Valentine’s Day Massacre of 1929. See 7Chicago Gangsters Slain by Firing Squad of Rivals, Some in Police Uniforms, N. Y. Times, Feb. 15, 1929, p. A1. Wild Bill Rooney wasgunned down in Chicago by a “sawed-off shotgun [that] was pointedthrough a rear window” of a passing automobile. Union Boss Slain byGang in Chicago, N. Y. Times, Mar. 20, 1931, p. 52. And when the infamous outlaws Bonnie and Clyde were killed by the police in 1934,Clyde was found “clutching a sawed-off shotgun in one hand.” Barrow and Woman are Slain by Police in Louisiana Trap, N. Y. Times, May24, 1934, p. A1.
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except a law officer should have a . . . sawed-off shotgun.”
H. R. Rep. No. 1780, 73d Cong., 2d Sess., 1 (1934). As amended, the Act imposes strict registration requirements for any individual wishing to possess a covered shotgun, see, e.g., §§5822, 5841(b), and illegal possession of such a weapon is punishable by imprisonment for up to 10 years.See §§5861(b)–(d), 5871. It is telling that this penaltyexceeds that prescribed by federal law for quintessentialviolent felonies.10 It thus seems perfectly clear that Congress has long regarded the illegal possession of a sawed-off shotgun as a crime that poses a serious risk of harm to others.
The majority of States agree. The Government informs the Court, and Johnson does not dispute, that 28 Stateshave followed Congress’ lead by making it a crime topossess an unregistered sawed-off shotgun, and 11 other States and the District of Columbia prohibit private possession of sawed-off shotguns entirely. See Brief for United States 8–9 (collecting statutes). Minnesota, where petitioner was convicted, has adopted a blanket ban, based on its judgment that “[t]he sawed-off shotgun has no legitimate use in the society whatsoever.” State v. Ellenberger, 543 N. W. 2d 673, 676 (Minn. App. 1996) (internal quotation marks and citation omitted). Possession of a sawed-off shotgun in Minnesota is thus an inherently criminal act. It is fanciful to assume that a person who chooses to break the law and risk the heavy criminal penalty incurred by possessing a notoriously dangerous
—————— 10See, e.g., 18 U. S. C. §111(a) (physical assault on federal officer punishable by not more than eight years’ imprisonment); §113(a)(7)(assault within maritime or territorial jurisdiction resulting in substantial bodily injury to an individual under the age of 16 punishable by upto five years’ imprisonment); §117(a) (“assault, sexual abuse, or seriousviolent felony against a spouse or intimate partner” by a habitualoffender within maritime or territorial jurisdiction punishable by up tofive years’ imprisonment, except in cases of “substantial bodily injury”).
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weapon is unlikely to use that weapon in violent ways.
B If we were to abandon the categorical approach, thefacts of Johnson’s offense would satisfy the residual clause as well. According to the record in this case, Johnson possessed his sawed-off shotgun while dealing drugs. When police responded to reports of drug activity in aparking lot, they were told by two people that “Johnson and another individual had approached them and offered to sell drugs.” PSR ¶45. The police then searched thevehicle where Johnson was seated as a passenger, and they found a sawed-off shotgun and five bags of mari-juana. Johnson admitted that the gun was his.Understood in this context, Johnson’s conduct posed anacute risk of physical injury to another. Drugs and guns are never a safe combination. If one of his drug deals hadgone bad or if a rival dealer had arrived on the scene,Johnson’s deadly weapon was close at hand. The sawed-off nature of the gun elevated the risk of collateral damage beyond any intended targets. And the location of the crime—a public parking lot—significantly increased the chance that innocent bystanders might be caught up in the carnage. This is not a case of “mere possession” asJohnson suggests. Brief for Petitioner i. He was not storing the gun in a safe, nor was it a family heirloom or collector’s item. He illegally possessed the weapon in case he needed to use it during another crime. A judge or jurycould thus conclude that Johnson’s offense qualified as a violent felony. There should be no doubt that Samuel Johnson was an armed career criminal. His record includes a number of serious felonies. And he has been caught with dangerousweapons on numerous occasions. That this case has led to the residual clause’s demise is confounding. I only hopethat Congress can take the Court at its word that either
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amending the list of enumerated offenses or abandoning the categorical approach would solve the problem that the Court perceives.