Johnson v. United States,
576 U.S. ___ (2015)

Annotate this Case

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 13–7120

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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 presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.

I

Federal law forbids certain people—such as convicted felons, persons committed to mental institutions, and drug users—to ship, possess, and receive firearms. §922(g). In general, the law punishes violation of this ban by up to 10 years’ 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 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 of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (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 its meaning. 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 clause violates the Constitution’s prohibition of vague criminal laws. 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 clause to 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 him because of his involvement in a white-supremacist organization that the Bureau suspected was planning to commit acts of terrorism. During the investigation, Johnson disclosed to undercover agents that he had manufactured explosives and that he planned to attack “the Mexican consulate” 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 to being 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 argued that 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 granted certiorari to decide whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause. 572 U. S. ___ (2014). We later asked the parties to present reargument addressing 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 due process 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 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 –358 (1983). The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary 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 otherwise involves 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 have committed it on a particular occasion.” Begay, supra, at 141.

Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the 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 of the 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 the enumerated 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 injure someone. The act of making an extortionate demand or breaking and entering into someone’s homedoes not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar 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 sentence under the clause denies due process of law.

A

Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the “ordinary case” of a 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 (CA9 2009) (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 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 more than 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 uncertainty about 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 quite another to apply it to a judge-imagined abstraction. By asking 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 degree of risk each poses.” Begay, 553 U. S., at 143. Does the ordinary burglar invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten 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 Co., 255 U. S. 81, 91 (1921) . Here, this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Three of the Court’s previous four decisions about the clause concentrated on the level of risk posed by the crime in question, though in each case we 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 of offenses, 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 Sentencing Commission to conclude that an offender who fails to report to prison is not “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’ ” 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 reports exist? 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 of the riskiness of the conduct that the crime involves. See Sykes, 564 U. S., at ___–___ (Scalia, J., dissenting) (slip op., 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 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 police officer’s signal. See id., at ___ (Kagan, J., dissenting) (slip op., 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 no reason 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 appli-cable 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 typically does not involve “purposeful, violent, and aggressive conduct.” Id., at 144–145 (internal quotation marks omitted). Alas, Begay did not succeed in bringing clarity to the meaning of the residual clause. It did not (and could not) eliminate the need to imagine the kind of conduct typically involved 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 statu-tory text,” explained that “levels of risk” would normally be 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 the residual 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 it to commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crime may qualify under the residual clause even if the physical injury 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 trouble making 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 close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. Some judges have concluded that deciding whether conspiracy is a violent felony requires evaluating only the dangers posed by 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 have assumed that the battery of a police officer (defined to include the slightest touching) could “explode into violence 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” to assume that they would “explod[e] into violence” rather than “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 perpetrator much 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 the victim [might be] close in age,” United States v. McDonald, 592 F. 3d 808, 815 (CA7 2010). Disagreements like these go 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 the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes 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 to prison 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 out not 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, 616 F. 3d 85 (CA2 2010). That certainly sounds like a violent 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 prison riot, 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 holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly 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—even though 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 in someone’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 insists that “a statute is void for vagueness only if it is vague in all its applications.” Post, at 1. It claims that the prohibition of unjust or unreasonable rates in L. Cohen Grocery was “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 is not a requirement at all, but a tautology: If we hold a statute to be vague, it is vague in all its applications (and never 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 unconstitutional is 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 the phrase ‘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 individual defendant engages on a particular occasion. As 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; “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,” this abstract inquiry offers significantly less predictability than 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 from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged, not the risk posed by the ordinary case of the defendant’s crime. See post, at 9–13. In other words, the dissent suggests that we jettison for the residual clause (though not for the enumerated crimes) the categorical approach adopted 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, the Government has not asked us to abandon the categorical approach 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 part of 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 convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” 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 record of the underlying facts may be available. “[T]he only plausible 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 argument from the parties about whether the residual clause is void 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 ear-lier 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 when the decision in question rejected a claim of unconstitu-tional vagueness. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicial decisions: 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 adjudication under the residual clause. Even after Sykes tried to clarify the 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 yield to 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 opined about 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 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 the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings 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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