Begay v. United States, 553 U.S. 137 (2008)
Case details
Citation
553 U.S. 137
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Apr. 16, 2008
Vote
6-3
Majority
Breyer (Justice), joined by Roberts (Chief Justice), Stevens (Justice), Kennedy (Justice), Ginsburg (Justice)
Concurrence
Scalia (Justice) in the judgment
Dissent
Alito (Justice), joined by Souter (Justice), Thomas (Justice)
BEGAY v. UNITED STATES
certiorari to the united states court of appeals for the tenth circuit
No. 06–11543. Argued January 15, 2008—Decided April 16, 2008
The Armed Career Criminal Act (Act) imposes a special mandatory 15 year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “a violent felony.” 18 U. S. C. § 924(e)(1). The Act defines “violent felony” as, inter alia, a crime punishable by more than one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious po tential risk of physical injury to another.” § 924(e)(2)(B)(ii) (hereinafter clause (ii)). After petitioner Begay pleaded guilty to felony possession of a firearm, his presentence report revealed he had 12 New Mexico convictions for driving under the influence of alcohol (DUI), which state law makes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. Based on these convictions, the sentencing judge concluded that Begay had three or more “violent felony” convictions and, therefore, sentenced him to an enhanced 15-year sentence. The Tenth Circuit rejected Begay’s claim that DUI is not a “violent felony” under the Act.
Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition. Pp. 141–148.
(a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion. Pp. 141–142.
(b) Even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. Pp. 142–148.
(i) Clause (ii)’s listed examples—burglary, arson, extortion, and crimes involving the use of explosives—should be read as limiting the crimes the clause covers to those that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Their presence in the statute indicates that Congress meant for the statute to cover only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii). p. 138If Congress meant the statute to be all encompassing, it would not have needed to include the examples at all. Moreover, if clause (ii) were meant to include all risky crimes, Congress likely would not have in cluded clause (i), which includes crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” And had Congress included the examples solely for quantita tive purposes, demonstrating no more than the degree of risk of physical injury sufficient to bring a crime within the statute’s scope, it would likely have chosen examples that better illustrated the degree of risk it had in mind rather than these that are far from clear in respect to the degree of risk each poses. The Government’s argument that the word “otherwise” just after the examples is sufficient to demonstrate that they do not limit the clause’s scope is rejected because “otherwise” can refer to a crime that is, e. g., similar to the examples in respect to the degree of risk it produces, but different in respect to the way or manner in which it produces that risk. Pp. 142–144.
(ii) DUI differs from the example crimes in at least one important respect: The examples typically involve purposeful, violent, and aggres sive conduct, whereas DUI statutes typically do not. When viewed in terms of the Act’s purposes, this distinction matters considerably. The Act looks to past crimes to determine which offenders create a special danger by possessing a gun. In this respect, a history of crimes involv ing purposeful, violent, and aggressive conduct, which shows an in creased likelihood that the offender is the kind of person who might deliberately point a gun and pull the trigger, is different from a history of DUI, which does not involve the deliberate kind of behavior associ ated with violent criminal use of firearms. Pp. 144–148.
470 F. 3d 964, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 148. Alito, J., filed a dissent ing opinion, in which Souter and Thomas, JJ., joined, post, p. 155.
Margaret A. Katze argued the cause for petitioner. With her on the briefs were Stephen P. McCue and Charles McCormack.
Leondra R. Kruger argued the cause for the United States. With her on the brief were Solicitor General Clem p. 139ent, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Richard A. Friedman.
Justice Breyer delivered the opinion of the Court.
The Armed Career Criminal Act imposes a special man datory 15-year prison term upon felons who unlawfully pos sess a firearm and who also have three or more previous convictions for committing certain drug crimes or “violent felon[ies].” 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). The question in this case is whether driving under the influence of alcohol is a “violent felony” as the Act defines it. We conclude that it is not.
I
A
Federal law prohibits a previously convicted felon from possessing a firearm. § 922(g)(1) (2000 ed.). A related pro vision provides for a prison term of up to 10 years for an ordinary offender. § 924(a)(2). The Armed Career Crimi nal Act imposes a more stringent 15-year mandatory mini mum sentence on an offender who has three prior convictions “for a violent felony or a serious drug offense.” § 924(e)(1) (2000 ed., Supp. V).
The Act defines a “violent felony” as “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) (2000 ed.). We here consider whether driving under the influence of al cohol (DUI), as set forth in New Mexico’s criminal statutes, falls within the scope of the second clause.
B
The relevant background circumstances include the follow ing: In September 2004, New Mexico police officers received a report that Larry Begay, the petitioner here, had threat ened his sister and aunt with a rifle. The police arrested him. Begay subsequently conceded he was a felon and pleaded guilty to a federal charge of unlawful possession of a firearm in violation of § 922(g)(1). Begay’s presentence re port said that he had been convicted a dozen times for DUI, which under New Mexico’s law becomes a felony (punishable by a prison term of more than one year) the fourth (or subse quent) time an individual commits it. See N. M. Stat. Ann. §§ 66–8–102(G) to (J) (Supp. 2007). The sentencing judge consequently found that Begay had at least three prior con victions for a crime “punishable by imprisonment for a term exceeding one year.” 377 F. Supp. 2d 1141, 1143 (NM 2005). The judge also concluded that Begay’s “three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another.” Id., at 1145. The judge consequently concluded that Begay had three or more prior convictions for a “violent felony” and should receive a sen tence that reflected a mandatory minimum prison term of 15 years. Ibid.
Begay, claiming that DUI is not a “violent felony” within the terms of the statute, appealed. The Court of Appeals panel by a vote of 2 to 1 rejected that claim. 470 F. 3d 964 (CA10 2006). Begay sought certiorari, and we agreed to de cide the question.
II A
New Mexico’s DUI statute makes it a crime (and a felony after three earlier convictions) to “drive a vehicle within [the] state” if the driver “is under the influence of intoxicat ing liquor” (or has an alcohol concentration of .08 or more in his blood or breath within three hours of having driven the vehicle resulting from “alcohol consumed before or while driving the vehicle”). §§ 66–8–102(A), (C). In determining whether this crime is a violent felony, we consider the of fense generically, that is to say, we examine it 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. See Taylor v. United States, 495 U. S. 575, 602 (1990) (adopting this “categorical approach”); see also James v. United States, 550 U. S. 192, 208–209 (2007) (attempted burglary is a violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physi cal harm).
We also take as a given that DUI does not fall within the scope of the Act’s clause (i) “violent felony” definition. DUI, as New Mexico defines it, nowhere “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. § 924(e)(2)(B)(i).
Finally, we assume that the lower courts were right in concluding that DUI involves conduct that “presents a serious potential risk of physical injury to another. ” § 924(e)(2)(B)(ii). Drunk driving is an extremely dangerous crime. In the United States in 2006, alcohol-related motor vehicle crashes claimed the lives of more than 17,000 individ uals and harmed untold amounts of property. National Highway Traffic Safety Admin., Traffic Safety Facts, 2006 Traffic Safety Annual Assessment—Alcohol-Related Fatali ties 1 (No. 810821, Aug. 2007), http://www-nrd.nhtsa.dot.gov/ Pubs/810821.PDF (as visited Apr. 11, 2008, and available in p. 142Clerk of Court’s case file). Even so, we find that DUI falls outside the scope of clause (ii). It is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.
B
1
In our view, the provision’s listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). If Congress meant the latter, i. e., if it meant the statute to be all encompassing, it is hard to see why it would have needed to include the examples at all. Without them, clause (ii) would cover all crimes that present a “serious potential risk of physical injury.” Ibid. Addi tionally, if Congress meant clause (ii) to include all risky crimes, why would it have included clause (i)? A crime which has as an element the “use, attempted use, or threat ened use of physical force” against the person (as clause (i) specifies) is likely to create “a serious potential risk of physical injury” and would seem to fall within the scope of clause (ii).
Of course, Congress might have included the examples solely for quantitative purposes. Congress might have in tended them to demonstrate no more than the degree of risk sufficient to bring a crime within the statute’s scope. But were that the case, Congress would have likely chosen exam ples that better illustrated the “degree of risk” it had in mind. Our recent case, James v. United States—where we considered only matters of degree, i. e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglary—illustrates the difficulty of interpreting the examples in this p. 143respect. Compare 550 U. S., at 203–207, with id., at 215, 218–219, 229 (Scalia, J., dissenting). Indeed, the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress’ only reason for including them. See id., at 229 (“Congress provided examples [that] . . . have little in common, most especially with respect to the level of risk of physical injury that they pose”).
These considerations taken together convince us that, “ ‘to give effect . . . to every clause and word’ ” of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Duncan v. Walker, 533 U. S. 167, 174 (2001) (quoting United States v. Menasche, 348 U. S. 528, 538–539 (1955); some inter nal quotation marks omitted); see also Leocal v. Ashcroft, 543 U. S. 1, 12 (2004) (describing the need to interpret a stat ute in a way that gives meaning to each word).
The concurrence complains that our interpretive approach is insufficiently specific. See post, at 150–151 (Scalia, J., concurring in judgment). But the concurrence’s own ap proach demands a crime-by-crime analysis, uses a standard of measurement (comparative degree of risk) that even the concurrence admits is often “unclear,” post, at 151, requires the concurrence to turn here to the still less clear “rule of lenity,” post, at 153, and, as we explain, is less likely to reflect Congress’ intent. See, e. g., post, at 153–154 (recognizing in ability to measure quantitative seriousness of risks associ ated with DUI).
The statute’s history offers further support for our conclu sion that the examples in clause (ii) limit the scope of the clause to crimes that are similar to the examples themselves. Prior to the enactment of the current language, the Act applied its enhanced sentence to offenders with “three previ ous convictions for robbery or burglary.” Taylor, supra, at 581 (internal quotation marks omitted). Congress sought to p. 144expand that definition to include both crimes against the per son (clause (i)) and certain physically risky crimes against property (clause (ii)). See H. R. Rep. No. 99–849, p. 3 (1986) (hereinafter H. R. Rep.). When doing so, Congress rejected a broad proposal that would have covered every offense that involved a substantial risk of the use of “ ‘physical force against the person or property of another.’ ” Taylor, 495 U. S., at 583 (quoting S. 2312, 99th Cong., 2d Sess. (1986); H. R. 4639, 99th Cong., 2d Sess. (1986)). Instead, it added the present examples. And in the relevant House Report, it described clause (ii) as including “State and Federal felonies against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.” H. R. Rep., at 5 (emphasis added).
Of course, the statute places the word “otherwise,” just after the examples, so that the provision covers a felony that is one of the example crimes “or otherwise involves conduct that presents a serious potential risk of physical injury.” § 924(e)(2)(B)(ii) (emphasis added). But we cannot agree with the Government that the word “otherwise” is sufficient to demonstrate that the examples do not limit the scope of the clause. That is because the word “otherwise” can (we do not say must, cf. post, at 151 (Scalia, J., concurring in judgment)) refer to a crime that is similar to the listed exam ples in some respects but different in others—similar, say, in respect to the degree of risk it produces, but different in respect to the “way or manner” in which it produces that risk. Webster’s Third New International Dictionary 1598 (1961) (defining “otherwise” to mean “in a different way or manner”).
2
In our view, DUI differs from the example crimes—bur glary, arson, extortion, and crimes involving the use of explo sives—in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, “violent,” p. 145and “aggressive” conduct. 470 F. 3d, at 980 (McConnell, J., dissenting in part); see, e. g., Taylor, supra, at 598 (“bur glary” is an unlawful or unprivileged entry into a building or other structure with “intent to commit a crime”); ALI Model Penal Code § 220.1(1) (1985) (“arson” is causing a fire or ex plosion with “the purpose of,” e. g., “destroying a building . . . of another” or “damaging any property . . . to collect insur ance”); id., § 223.4 (extortion is “purposely” obtaining prop erty of another through threat of, e. g., inflicting “bodily in jury”); Leocal, supra, at 9 (the word “ ‘use’ . . . most naturally suggests a higher degree of intent than negligent or merely accidental conduct” which fact helps bring it outside the scope of the statutory term “crime of violence”). That con duct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and aggressive manner are “potentially more dangerous when firearms are involved.” 470 F. 3d, at 980 (McConnell, J., dis senting in part). And such crimes are “characteristic of the armed career criminal, the eponym of the statute.” Ibid.
By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all. The Government argues that “the knowing nature of the conduct that produces intoxication combined with the inherent reck lessness of the ensuing conduct more than suffices” to create an element of intent. Brief for United States 35. And we agree with the Government that a drunk driver may very well drink on purpose. But this Court has said that, unlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be pur poseful or deliberate. See Leocal, supra, at 11 (a DUI offense involves “accidental or negligent conduct”); see also p. 146470 F. 3d, at 980 (McConnell, J., dissenting in part) (“[D]runk driving is a crime of negligence or recklessness, rather than violence or aggression”).
When viewed in terms of the Act’s basic purposes, this distinction matters considerably. As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun. See Taylor, supra, at 587–588; 470 F. 3d, at 981, n. 3 (McConnell, J., dis senting in part) (“[T]he title [of the Act] was not merely deco rative”). In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender’s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun.
In this respect—namely, a prior crime’s relevance to the possibility of future danger with a gun—crimes involving in tentional or purposeful conduct (as in burglary and arson) are different from DUI, a strict-liability crime. In both in stances, the offender’s prior crimes reveal a degree of cal lousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that in creased likelihood does not exist.
Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically com mitted by those whom one normally labels “armed career criminals.” See, e. g., Ark. Code Ann. § 8–4–103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U. S. C. § 1319(c)(1) (individuals who negligently introduce pollutants into the sewer system); 18 U. S. C. § 1365(a) (individuals who recklessly tamper with consumer products); § 1115 (seamen whose inattention to p. 147duty causes serious accidents). We have no reason to be lieve that Congress intended to bring within the statute’s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent crim inal use of firearms. The statute’s use of examples (and the other considerations we have mentioned) indicate the contrary.
The dissent’s approach, on the other hand, would likely include these crimes within the statutory definition of “vio lent felony,” along with any other crime that can be said to present a “ ‘potential risk of physical injury.’ ” Post, at 156 (opinion of Alito, J.). And it would do so because it believes such a result is compelled by the statute’s text. See post, at 155. But the dissent’s explanation does not account for a key feature of that text—namely, the four example crimes intended to illustrate what kind of “violent felony” the stat ute covers. The dissent at most believes that these exam ples are relevant only to define the requisite serious risk as sociated with a “crime of violence.” Post, at 158–159. But the dissent does not explain how to identify the requisite level of risk, nor does it describe how these various examples might help determine what other offenses involve conduct presenting the same level of risk. If they were in fact help ful on that score, we might expect more predictable results from a purely risk-based approach. Compare post, at 148, 153–154 (Scalia, J., concurring in judgment), with post, at 156–158 (dissenting opinion). Thus, the dissent’s reliance on these examples for a function they appear incapable of per forming reads them out of the statute and, in so doing, fails to effectuate Congress’ purpose to punish only a particular subset of offender, namely, career criminals.
The distinction we make does not minimize the seriousness of the risks attached to driving under the influence. Nor does our argument deny that an individual with a criminal history of DUI might later pull the trigger of a gun. (In deed, we may have such an instance before us. 470 F. 3d, p. 148at 965.) Rather, we hold only that, for purposes of the par ticular statutory provision before us, a prior record of DUI, a strict-liability crime, differs from a prior record of violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives. The latter are associated with a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior in a way that the former are not.
We consequently conclude that New Mexico’s crime of “driving under the influence” falls outside the scope of the Armed Career Criminal Act’s clause (ii) “violent felony” definition. And we reverse the judgment of the Court of Appeals in relevant part and remand the case for proceed ings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in the judgment.
The statute in this case defines “violent felony” in part as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that pre sents a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B)(ii). Contrary to the Court, I con clude that the residual clause unambiguously encompasses all crimes that present a serious risk of injury to another. But because I cannot say that drunk driving clearly poses such a risk (within the meaning of the statute), the rule of lenity brings me to concur in the judgment of the Court.
I
Last Term, in James v. United States, 550 U. S. 192 (2007), the Court held that attempted burglary qualifies as a vio lent felony under § 924(e). It concluded that to determine whether a predicate crime falls under the residual clause, a court should first identify the enumerated crime to which the predicate crime is most closely analogous and then decide p. 149whether the risk posed by the predicate crime is roughly equivalent to the risk posed by the enumerated crime. Be cause burglary was the enumerated crime most closely anal ogous to attempted burglary, and attempted burglary in the Court’s judgment posed roughly the same risk of physical injury as burglary, attempted burglary qualified as a “violent felony” under § 924(e). See id., at 209.
Unfortunately, the Court’s approach in deciding that case provided no guidance for deciding future cases that involve predicate crimes other than attempted burglary, particularly those for which there are no clear analogs among the enu merated crimes. Pointing out that problem in dissent, I anticipated this very case: “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.
My dissent set out a different approach to the statute. In my view, the best way to interpret § 924(e) is first to deter mine which of the enumerated offenses poses the least seri ous risk of physical injury, and then to set that level of risk as the “serious potential risk” required by the statute. Crimes that pose at least that serious a risk of injury are encompassed by the residual clause; crimes that do not are excluded. In my judgment, burglary was the least risky crime among the enumerated offenses, and I therefore con cluded that attempted burglary, which is less risky than bur glary, is not covered by the residual clause.
The Court held otherwise in James, and since this is a statutory case that holding has a strong claim to stare deci sis. But the concomitant of the sad fact that the theory of James has very limited application is the happy fact that its stare decisis effect is very limited as well. It must be fol lowed, I presume, for unenumerated crimes that are analo gous to enumerated crimes (e. g., attempted arson). It pro vides no answer, and suggests no approach to an answer, where, as here, the predicate crime has no analog among p. 150the enumerated crimes. For such cases I would therefore adhere to the principles I set forth in my James dissent.
II
Today the Court devises a different way to give concrete meaning to the residual clause. Confronted with a predicate crime that has no obvious analog among the enumerated of fenses, the Court engrafts a requirement onto the residual clause that a predicate crime involve “purposeful, ‘violent,’ and ‘aggressive’ conduct.” Ante, at 144–145. By doing so, it excludes a slew of crimes from the scope of the residual clause, including (not by happenstance) the crime at issue here, drunk driving. Like James, this latest made-for-the case improvisation does not (as my resolution does) provide a complete framework that will embrace all future cases. There are still many crimes that are not analogous to the enumerated crimes (so that their status cannot be resolved by James) but do involve “purposeful, ‘violent,’ and ‘aggres sive’ conduct” (so that their status cannot be resolved by today’s deus ex machina). Presumably some third (and per haps fourth and fifth) gimmick will be devised to resolve those cases as they arise, leaving our brethren on the dis trict courts and courts of appeals much room for enjoyable speculation.
But quite apart from its regrettable continuation of a piecemeal, suspenseful, Scrabble-like approach to the inter pretation of this statute, the problem with the Court’s hold ing today is that it is not remotely faithful to the statute that Congress wrote. There is simply no basis (other than the necessity of resolving the present case) for holding that the enumerated and unenumerated crimes must be similar in re spects other than the degree of risk that they pose.
The Court is correct that the clause “otherwise involves conduct that presents a serious potential risk of physical in jury to another” signifies a similarity between the enumer ated and unenumerated crimes. It is not, however, any old p. 151similarity, such as (to take a random example) “purposeful, ‘violent,’ and ‘aggressive’ conduct.” Rather, it is the partic ular similarity specified after the “otherwise”—i. e., that they all pose a serious potential risk of physical injury to another. They need not be similar in any other way. As the Court correctly notes, the word “otherwise” in this con text means “ ‘in a different way or manner.’ ” Ante, at 144; see also James, 550 U. S., at 218 (Scalia, J., dissenting); Webster’s New International Dictionary 1729 (2d ed. 1957) (“in another way, or in other ways”). Therefore, by using the word “otherwise” the writer draws a substantive connec tion between two sets only on one specific dimension—i. e., whatever follows “otherwise.” What that means here is that “committing one of the enumerated crimes . . . is one way to commit a crime ‘involv[ing] a serious potential risk of physical injury to another’; and that other ways of commit ting a crime of that character similarly constitute ‘violent felon[ies].’ ” James, supra, at 218 (Scalia, J., dissenting).
The Court rejects this seemingly straightforward statu tory analysis, reading the residual clause to mean that the unenumerated offenses must be similar to the enumerated offenses not only in the degree of risk they pose, but also “in kind,” despite the fact that “otherwise” means that the common element of risk must be presented “ ‘in a different way or manner.’ ” Ante, at 143, 144 (emphasis added). The Court’s explanation for this interpretation seems to be that the enumerated crimes are “so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress’ only reason for including them.” Ante, at 143. While I cer tainly agree that the degree of risk associated with the enu merated crimes is unclear, I find it unthinkable that the solu tion to that problem is to write a different statute. The phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” limits inclusion in the statute only by a crime’s degree of risk. See James, p. 152supra, at 218 (Scalia, J., dissenting). The use of the adjec tive “serious” seems to me to signify a purely quantitative measure of risk. If both an intentional and a negligent crime pose a 50% risk of death, could one be characterized as involving a “serious risk” and the other not? Surely not.
The Court supports its argument with that ever-ready ref uge from the hardships of statutory text, the ( judicially) per ceived statutory purpose. According to the Court, because the Armed Career Criminal Act is concerned with “the spe cial danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun,” the statutory purpose favors applying § 924(e)’s enhanced pen alty only to those criminals “who might deliberately point the gun and pull the trigger.” Ante, at 146. I cannot pos sibly infer that purpose from the statute. For all I know, the statute was meant to punish those who are indifferent to human life, or who are undeterred by the criminal penalties attached to the commission of other crimes (after all, the statute enhances penalties for drug traffickers, see § 924(e)(2)(A)). While the Court’s asserted purpose would surely be a reasonable one, it has no more grounding in the statutory text than do these other possibilities. And what is more, the Court’s posited purpose is positively contradicted by the fact that one of the enumerated crimes—the unlawful use of explosives—may involve merely negli gent or reckless conduct. See ALI, Model Penal Code § 220.2(2) (1985) (“A person is guilty of a misdemeanor if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means”); id., § 220.3 (“A person is guilty of criminal mischief if he . . . damages tangible property of another purposely, recklessly, or by neg ligence in the employment of fire, explosives, or other dan gerous means”).
The Court says that an interpretation of the residual clause that includes all crimes posing a serious risk of injury would render superfluous § 924(e)(2)(B)(i), which provides p. 153that a “violent felony” is any crime that “has as an element the use, attempted use, or threatened use of physical force against the person” of another. Ante, at 142 (internal quota tion marks omitted). But the canon against surplusage has substantially less force when it comes to interpreting a broad residual clause like the one at issue here. Though the sec ond clause renders the first superfluous, it would raise no eyebrows to refer to “crimes that entail the use of force and crimes that, while not entailing the use of force, nonetheless present a serious risk of injury to another person.” In any event, the canon against surplusage merely helps decide be tween competing permissible interpretations of an ambigu ous statute; it does not sanction writing in a requirement that Congress neglected to think of. And finally, come to think of it, the Court’s solution does nothing whatever to solve the supposed surplusage problem. Crimes that in clude as an element “the use . . . of physical force against the person of another” are all embraced (and the reference to them thus rendered superfluous) by the requirement of “pur poseful, ‘violent,’ and ‘aggressive’ conduct” that the Court invents.
III
Under my interpretation of § 924(e), I must answer one question: Does drunk driving pose at least as serious a risk of physical injury to another as burglary? From the evi dence presented by the Government, I cannot conclude so. Because of that, the rule of lenity requires that I resolve this case in favor of the defendant.
The Government cites the fact that in 2006, 17,062 persons died from alcohol-related car crashes, and that 15,121 of those deaths involved drivers with blood-alcohol concentrations of 0.08 or higher. See Brief for United States 17. Drunk driving is surely a national problem of great concern. But the fact that it kills many people each year tells us very little about whether a single act of drunk driving “involves conduct that presents a serious potential risk of physical in p. 154jury to another.” It may well be that an even greater num ber of deaths occurs annually to pedestrians crossing the street; but that hardly means that crossing the street pre sents a serious potential risk of injury. Where the issue is “risk,” the annual number of injuries from an activity must be compared with the annual incidents of the activity. Otherwise drunk driving could be said to pose a more serious risk of physical harm than murder. In addition, drunk driv ing is a combination of two activities: (1) drinking and (2) driving. If driving alone results in injury in a certain percentage of cases, it could hardly be said that the entirety of the risk posed by drunk driving can be attributed to the combination. And finally, injuries to the drunk drivers themselves must be excluded from the calculus, because the statute counts only injuries to other persons.
Needless to say, we do not have these relevant statistics. And even if we did, we would still need to know similar sta tistics for burglary, which are probably even harder to come by. This does not mean that I will never be able to identify a crime that falls under the residual clause. For some crimes, the severity of the risk will be obvious. Crimes like negligent homicide, see ALI, Model Penal Code § 210.4 (1980), conspiracy to commit a violent crime, id., § 5.03 (1985), inciting to riot, 18 U. S. C. § 2101, and the production of chemical weapons, § 229, certainly pose a more serious risk of physical injury to others than burglary. (By contrast, the Court’s approach eliminates from the residual clause all neg ligent crimes, even those that entail a 100% risk of physical injury such as negligent homicide.) But I can do no more than guess as to whether drunk driving poses a more serious risk than burglary, and I will not condemn a man to a mini mum of 15 years in prison on the basis of such speculation. See Ladner v. United States, 358 U. S. 169, 178 (1958). Applying the rule of lenity to a statute that demands it, I would reverse the decision of the Court of Appeals.
Justice Alito, with whom Justice Souter and Justice Thomas join, dissenting.
The statutory provision at issue in this case—the so-called “residual clause” of 18 U. S. C. § 924(e)(2)(B)(ii)—calls out for legislative clarification, and I am sympathetic to the result produced by the Court’s attempt to craft a narrowing con struction of this provision. Unfortunately, the Court’s in terpretation simply cannot be reconciled with the statutory text, and I therefore respectfully dissent.
In September 2004, after a night of heavy drinking, peti tioner pointed a rifle at his aunt and threatened to shoot if she did not give him money. When she replied that she did not have any money, petitioner repeatedly pulled the trigger, but the rifle was unloaded and did not fire. Petitioner then threatened his sister in a similar fashion.
At the time of this incident, petitioner was a convicted felon. He had 12 prior convictions in New Mexico for driv ing under the influence of alcohol (DUI). While DUI is gen erally a misdemeanor under New Mexico law, the offense of DUI after at least three prior DUI convictions is a felony requiring a sentence of 18 months’ imprisonment. N. M. Stat. Ann. § 66–8–102(G) (Supp. 2007).
Petitioner pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U. S. C. § 922(g)(1). A vio lation of that provision generally carries a maximum term of imprisonment of 10 years, see § 924(a)(2), but the District Court and the Court of Appeals held that petitioner was sub ject to a mandatory minimum sentence of 15 years because he had at least three prior convictions for the New Mexico felony of DUI after being convicted of DUI on at least three prior occasions. 377 F. Supp. 2d 1141, 1143–1145 (NM 2005); 470 F. 3d 964, 966–975, 977 (CA10 2006). The lower courts concluded that these offenses were crimes “punishable by imprisonment for a term exceeding one year” and “involve[d] p. 156conduct that present[ed] a serious potential risk of physical injury to another.” 18 U. S. C. § 924(e)(2)(B).
The Court does not hold that the maximum term of impris onment that petitioner faced on his felony DUI convictions was less than one year.1 Nor does the Court dispute that petitioner’s offenses involved a “potential risk of physical injury to another.” Ibid. The only remaining question, therefore, is whether the risk presented by petitioner’s qual ifying DUI felony convictions was “serious,” i. e., “signifi cant” or “important.” See, e. g., Webster’s Third New In ternational Dictionary 2073 (2002) (hereinafter Webster’s); 15 Oxford English Dictionary 15 (def. 6(a)) (2d ed. 1989) (hereinafter OED). In my view, it was.
Statistics dramatically show that driving under the influ ence of alcohol is very dangerous. Each year, approximately 15,000 fatal alcohol-related crashes occur, accounting for roughly 40% of all fatal crashes.2 Approximately a quar ter million people are injured annually in alcohol-related p. 157crashes.3 The number of people who are killed each year by drunk drivers is far greater than the number of murders committed during any of the crimes specifically set out in the statutory provision at issue here, § 924(e)(2)(B)(ii)—bur glary, arson, extortion, and offenses involving the use of explosives.4
1
United States v. Rodriquez, now pending before the Court, presents the question “[w]hether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U. S. C. § 924(e).” Pet. for Cert., O. T. 2007, No. 06–1646, p. I. [Report er’s Note: See post, p. 377.]
2
See National Highway Traffic Safety Administration (NHTSA), Traffic Safety Facts Annual Report, p. 56 (Table 34) (2006) (15,945 alcohol-related fatal crashes; 41%), (2005) (15,238; 39%), (2004) (14,968; 39%), (2003) (15,251; 40%), (2002) (15,626; 41%), (2001) (15,585; 41%), (2000) (14,847; 40%), (1999) (14,109; 38%), (1998) (14,278; 39%), (1997) (14,363; 38.5%), (1996) (15,249; 40.8%), online at http://www-nrd.nhtsa.dot.gov/CATS/listpublications.aspx?Id=E&ShowBy=DocType (Annual Reports 1994–2006 hyperlink) (all Internet materials as visited Apr. 11, 2008, and avail able in Clerk of Court’s case file); see also Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 451 (1990) (“No one can seriously dispute the magni tude of the drunken driving problem . . . . ‘Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries . . . ’ ” (footnote omitted)); South Dakota v. Neville, 459 U. S. 553, 558 (1983) (“The carnage caused by drunk drivers is well documented . . . . This Court . . . has repeatedly lamented the tragedy”).
Petitioner’s qualifying offenses, moreover, fell within the statute only because he had been convicted of DUI on at least three prior occasions. As noted, petitioner had a dozen prior DUI convictions. Persons who repeatedly drive drunk present a greatly enhanced danger that they and others will be injured as a result.5 In addition, it has been p. 158estimated that the ratio of DUI incidents to DUI arrests is between 250 to 1 and 2,000 to 1.6 Accordingly, the risk presented by a 10th, 11th, and 12th DUI conviction may be viewed as the risk created by literally thousands of drunk driving events. That risk was surely “serious,” and there fore petitioner’s offenses fell squarely within the language of the statute.
3
See NHTSA, supra, at 111 (Table 76) (2006) (278,000), (2005) (254,000), (2004) (248,000), (2003) (275,000), (2002) (258,000), (2001) (275,000), (2000) (310,000), (1999) (308,000), (1998) (305,000), (1997) (327,000), (1996) (321,000).
4
According to statistics compiled by the Federal Bureau of Investiga tion, between 1996 and 2006 total annual murders never exceeded 15,000 after 1997. During that same 11-year period, the highest number of mur ders committed in the course of burglary was 123, the number of murders committed in the course of arson peaked at 105, and the number of mur ders involving explosives topped out at 14—all in 1996. See Dept. of Jus tice, Federal Bureau of Investigation, Uniform Crime Reports/Crime in the United States (Annual Reports 1996–2006), online at http://www.fbi.gov/ucr/ucr.htm#cius. While murders committed in the course of ex tortion were not separately reported, common sense and the fact that the total number of murders was similar to the number of fatal alcohol-related crashes at least after 1997 indicates that murders involving extortion would not rival deaths in alcohol-related auto accidents. Even if one were to expand beyond murders to all fatalities and even injuries, it is estimated that arson causes the relatively small number of 475 deaths and over 2,000 injuries annually. Dept. of Homeland Security, U. S. Fire Administration, Arson in the United States, Vol. 1 Topical Fire Research Series, No. 8 (Jan. 2001, rev. Dec. 2001), online at http://www.usfa.dhs.gov/downloads/pdf/tfrs/v1i8-508.pdf.
5
See United States v. McCall, 439 F. 3d 967, 972 (CA8 2006) (en banc) (citing Brewer et al., The Risk of Dying in Alcohol-Related Automobile Crashes Among Habitual Drunk Drivers, 331 New Eng. J. Med. 513 (1994)); Dept. of Justice, Office of Community Oriented Policing Services, Drunk Driving, Problem-Oriented Guides for Police, Problem-Specific Guides Series No. 36, p. 4 (Feb. 2006) (“By most estimates, although repeat drunk drivers comprise a relatively small proportion of the total popula tion of drivers, they are disproportionately responsible for alcohol-related crashes and other problems associated with drunk driving”).
Moreover, taking the statutory language to mean what it says would not sweep in all DUI convictions. Most DUI convictions are not punishable by a term of imprisonment of more than one year and thus fall outside the scope of the statute.7 Petitioner’s convictions qualified only because of his extraordinary—and, I would say, extraordinarily danger ous—record of drunk driving.
The Court holds that an offense does not fall within the residual clause unless it is “roughly similar, in kind as well as in degree of risked posed,” ante, at 143, to the crimes specifically listed in 18 U. S. C. § 924(e)(2)(B), i. e., burglary, extortion, arson, and crimes involving the use of explosives. These crimes, according to the Court, “all typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.” Ante, at 144–145 (quoting 470 F. 3d, at 980 (McConnell, J., dissenting)).
This interpretation cannot be squared with the text of the statute, which simply does not provide that an offense must be “purposeful,” “violent,” or “aggressive” in order to fall within the residual clause. Rather, after listing burglary, p. 159arson, extortion, and explosives offenses, the statute pro vides (in the residual clause) that an offense qualifies if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Therefore, offenses fall ing within the residual clause must be similar to the named offenses in one respect only: They must “otherwise”—which is to say, “in a different manner,” 10 OED 984 (def. B(1)); see also Webster’s 1598—“involv[e] conduct that presents a serious potential risk of physical injury to another.” Re quiring that an offense must also be “purposeful,” “violent,” or “aggressive” amounts to adding new elements to the stat ute, but we “ordinarily resist reading words or elements into a statute that do not appear on its face.” Bates v. United States, 522 U. S. 23, 29 (1997).
6
Brewer, supra, text accompanying nn. 23–24; L. Taylor & S. Oberman, Drunk Driving Defense § 1.01 (2007).
7
See National Conference of State Legislatures (NCSL), Criminal Sta tus of State Drunk Driving Laws, online at http://www.ncsl.org/print/transportation/drunkdrivecriminal.pdf (2008) (surveying 50 States, the Dis trict of Columbia, and U. S. Territories, most of which treat the first DUI offense as a misdemeanor).
Each part of this additional, judicially added requirement presents other problems as well.
Purposeful. At least one State’s DUI law requires proof of purposeful conduct. See Tam v. State, 232 Ga. App. 15, 15–16, 501 S. E. 2d 51, 52 (1998) (requiring proof of the intent to drive). In addition, many States recognize involuntary intoxication as a defense. See 4 R. Essen & R. Erwin, De fense of Drunk Driving Cases: Criminal—Civil § 44.04 (2007). And even in States that do not require purposefulness, I have no doubt that the overwhelming majority of DUI de fendants purposefully drank before getting behind the wheel and were purposefully operating their vehicles at the time of apprehension. I suspect that many DUI statutes do not require proof of purposefulness because the element is al most always present, requiring proof of the element would introduce an unnecessary complication, and it would make no sense to preclude conviction of those defendants who were so drunk that they did not even realize that they were be hind the wheel.
Violent. It is clear that 18 U. S. C. § 924(e)(2)(B) is not limited to “violent” crimes, for if it were, it would be redun p. 160dant. The prior subparagraph, § 924(e)(2)(A), includes of fenses that have as an element the use or threatened use of violence.
Aggressive. The concept of “aggressive” crimes is vague, and in any event, it is hardly apparent why DUI—not to mention the species of felony DUI recidivism that resulted in petitioner’s predicament—is not “aggressive.” Driving can certainly involve “aggressive” conduct. Indeed, some States have created the offense of “aggressive driving.” See M. Savage, M. Sundeen, & A. Teigen, Transporta tion Series, Traffic Safety and Public Health: State Legis lative Action 2007, p. 17, and App. J (NCSL, No. 32, Dec. 2007), online at http://www.ncsl.org/print/transportation/07trafficsafety.pdf. Most States have a toll-free telephone number to call to report “aggressive” driving. See Cam paign Safe & Sober, Phone Numbers for Reporting Impaired, Aggressive, or Unsafe Driving, online at http://www.nhtsa.dot.gov/people/outreach/safesobr/16qp/phone.html.
The Court defends its new statutory element on the ground that a defendant who merely engages in felony drunk driving is not likely to be “the kind of person who might deliberately point the gun and pull the trigger.” Ante, at 146. The Court cites no empirical support for this conclu sion, and its accuracy is not self-evident. Petitioner’s pat tern of behavior may or may not be typical of those defend ants who have enough DUI convictions to qualify under N. M. Stat. Ann. § 66–8–102(G) and 18 U. S. C. § 924(e)(2)(B), but the example of his behavior in this case—pointing a gun at his aunt’s head and repeatedly pulling the trigger—should surely be enough to counsel against uncritical reliance on ste reotypes about “the type” of people who commit felony DUI violations.
Defendants who qualify for an enhanced sentence under § 924(e) (2000 ed. and Supp. V) based (in whole or in part) on felony DUI convictions share at least three characteristics that are relevant for present purposes. First, they are per p. 161sons who, in the judgment of Congress, cannot be trusted to use a firearm responsibly. In order to qualify for an en hanced sentence under § 924(e), a defendant must of course be convicted of violating the felon-in-possession statute, § 922(g) (2000 ed.). The felon-in-possession statute neces sarily rests on the judgment that a person with a prior felony conviction cannot be trusted with a firearm. See Caron v. United States, 524 U. S. 308, 315 (1998) (“Congress meant to keep guns away from all offenders who, the Federal Govern ment feared, might cause harm . . . ”). And there is no dis pute that a prior felony DUI conviction qualifies as a felony under the felon-in-possession law. If Congress thought that a person with a prior felony DUI conviction is not “the kind of person” who is likely to use a gun unlawfully, why would Congress have made it a crime for such a person to possess a gun?
Second, defendants with DUI convictions that are counted under 18 U. S. C. § 924(e)(2)(B) are likely to have serious alco hol abuse problems. As previously mentioned, ordinary DUI convictions are generally not counted under § 924(e) be cause they are not punishable by imprisonment for more than a year. Such penalties are generally reserved for per sons, like petitioner, with a record of repeated DUI viola tions. See NCSL, supra. Such individuals are very likely to have serious alcohol abuse problems and a propensity to engage in irresponsible conduct while under the influence. Alcohol use often precedes violent crimes, see, e. g., Roizen, Epidemiological Issues in Alcohol-Related Violence, in 13 Recent Developments in Alcoholism 7, 8–9 (M. Galanter ed. 1997), and thus there is reason to worry about the misuse of firearms by defendants whose alcohol abuse problems are serious enough to result in felony DUI convictions.
Third, defendants with DUI convictions that are counted under § 924(e)(2)(B) have either (1) such serious alcohol abuse problems that they have at least three prior felony DUI con victions or (2) both one or two felony DUI convictions and p. 162one or two offenses that fall under § 924(e)(2)(B)(i) (offenses that have “as an element the use, attempted use, or threat ened use of physical force”) or that are specifically set out in § 924(e)(2)(B)(ii) (burglary, arson, extortion, or an explosives offense). Defendants with three felony DUI convictions are likely to be super–DUI-recidivists like petitioner. Defend ants with a combination of felony DUI and other qualifying convictions—for example, convictions for assault or bur glary—are persons who, even by the Court’s lights, could be classified as “the kind of person who might deliberately point [a] gun and pull the trigger.”
Unlike the Court, I cannot say that persons with these characteristics are less likely to use a gun illegally than are persons convicted of other qualifying felonies.
Justice Scalia’s concurrence takes a different approach, but his analysis is likewise flawed. Justice Scalia would hold (1) that an offense does not fall within the residual clause unless it presents a risk that is at least as great as that presented by the least dangerous of the enumerated offenses; (2) that burglary is the least dangerous of the enumerated offenses; (3) that the relevant measure of risk is the risk that the typical burglary, DUI, etc., would result in injury; and (4) that the risk presented by an incident of DUI is less than the risk presented by a burglary.
Justice Scalia, like the Court, does not follow the statu tory language. The statute says that offenses falling within the residual clause must present “a serious potential risk of physical injury to another.” The statute does not say that these offenses must present at least as much risk as the enu merated offenses.
The statute also does not say, as Justice Scalia would hold, that the relevant risk is the risk that each incident of DUI will result in injury. I see no basis for concluding that Congress was not also concerned with the risk faced by po tential victims, particularly since the statute explicitly refers to “potential risk.” Drunk driving is regarded as a severe p. 163societal problem in large measure because of the very large number of victims it produces each year.
Finally, Justice Scalia’s conclusion that burglary is the least risky of the enumerated offenses is based on a pro crustean reading of § 924(e)(2)(B)(ii). This provision re fers, without qualification, to “extortion.” In his dissent in James v. United States, 550 U. S. 192 (2007), Justice Sca lia concluded that many forms of extortion are “inherently unlikely to cause physical harm.” Id., at 223 (emphasis in original). Only by finding that the term “extortion” in § 924(e)(2)(B)(ii) really means only certain forms of extortion was Justice Scalia able to come to the conclusion that bur glary is the least risky of the enumerated offenses.
For all these reasons, I would affirm the decision of the Tenth Circuit.