JAMES v. UNITED STATES
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- Opinion, Alito [HTML] [PDF]
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JAMES v. UNITED STATES
certiorari to the united states court of appeals for the eleventh circuit
Pleading guilty to possessing a firearm after a felony conviction in violation of 18 U. S. C. §922(g)(1), petitioner James admitted to the three prior felony convictions listed in his federal indictment, including a Florida state-law conviction for attempted burglary. The Government argued at sentencing that those convictions subjected James to the 15-year mandatory minimum prison term provided by the Armed Career Criminal Act (ACCA), §924(e), for an armed defendant who has three prior violent felony convictions. James objected that his attempted burglary conviction was not for a violent felony. The District Court held that it was, and the Eleventh Circuit affirmed.
Held: Attempted burglary, as defined by Florida law, is a violent felony under ACCA. Pp. 220.
(a) James argument that ACCAs text and structure categorically exclude attempt offenses is rejected. Pp. 27.
(i) Section 924(e)(2)(B) defines violent felony as any crime punishable by imprisonment for [more than] one year … that … (i) has as an element the use, attempted use, or threatened use of physical force against … 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. Florida law defined burglary when James was convicted as entering or remaining in a structure … with the intent to commit an offense therein, Fla. Stat. §810.02(1), and declared: A person who … does any act toward the commission of [an offense] but fails in the perpetration or … execution thereof, commits the offense of criminal attempt, §777.04(1). The attempted burglary conviction at issue was punishable by imprisonment exceeding one year. The parties agree that it does not qualify as a violent felony under clause (i) of §924(e)(2)(B) or as one of the specific crimes enumerated in clause (ii). For example, it is not burglary because it does not meet the definition of generic burglary found in Taylor v. United States, 495 U. S. 575: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Thus, the question here is whether attempted burglary, as defined by Florida, falls within clause (ii)s residual provision for crimes that otherwise involv[e] conduct that presents a serious potential risk of physical injury to another. Pp. 23.
(ii) ACCAs text does not exclude attempt offenses from the residual provisions scope. James claim that clause (i)s express inclusion of attempts, combined with clause (ii)s failure to mention them, demonstrates an intent to categorically exclude them from clause (ii) would unduly narrow the residual provision, which does not suggest any intent to exclude attempts that otherwise meet the statutory criteria. See, e.g.,Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73. James also argues to no avail that, under the ejusdem generis canon, the residual provision must be read to extend only to completed offensesbecause the specifically enumerated offensesburglary, arson, extortion, and explosives crimesall have that common attribute. Rather, the most relevant common attribute of the enumerated offenses is that, while not technically crimes against the person, they nevertheless create significant risks of bodily injury to others, or of violent confrontation that could lead to such injury. See e.g., Taylor, supra, at 597. The inclusion of the residual provision indicates Congress intent that the preceding enumerated offenses not be an exhaustive list. Pp. 36.
(iii) Nor does the legislative history exclude attempt offenses from ACCAs residual provision. Whatever weight might ordinarily be given the Houses 1984 rejection of language that would have included attempted robbery and attempted burglary as ACCA predicate offenses, it is not probative here because the 1984 action was not Congress last word on the subject. Since clause (ii)s residual provision was added to ACCA in 1988, Congress 1984 rejection of the language including attempt offenses is not dispositive. Pp. 67.
(b) Attempted burglary, as defined by Florida law, involves conduct that presents a serious potential risk of physical injury to another under the residual provision. Under the categorical approach it has used for other ACCA offenses, the Court considers whether the offenses elements are of the type that would justify its inclusion within the residual provision, without inquiring into the particular offenders specific conduct. See, e.g.,Taylor, supra, at 602. Pp. 718.
(i) On its face, Floridas attempt statute requires only that a defendant take any act toward the commission of burglary. But because the Florida Supreme Courts Jones decision considerably narrowed the application of this broad language in the context of attempted burglary, requiring an overt act directed toward entering or remaining in a structure, merely preparatory activity posing no real danger of harm to others, e.g., acquiring burglars tools or casing a structure, is not enough. Pp. 89.
(ii) Overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, presents a serious potential risk of physical injury to another under the residual provision of clause (ii). The clauses enumerated offenses provide one baseline from which to measure whether similar conduct satisfies the quoted language. Here, the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses, completed burglary. See Taylor, supra, at 600, n. 9. The main risk of burglary arises not from the simple physical act of wrongfully entering anothers property, but from the possibility that an innocent person might confront the burglar during the crime. Attempted burglary poses the same kind of risk. Indeed, that risk may be even greater than the risk posed by a typical completed burglary. Many completed burglaries do not involve confrontations, but attempted burglaries often do. Every Court of Appeals that has construed an attempted burglary law similar to Floridas has held that attempted burglary qualifies as a violent felony. Support is also found in the U. S. Sentencing Commissions determination that a predicate crime of violence for purposes of the Sentencing Guidelines career offender enhancement include[s] … attempting to commit [an] offens[e]. See Guidelines Manual §4B1.2, comment., n. 1. Pp. 913.
(iii) Neither ACCA nor Taylor supports James argument that, under the categorical approach, attempted burglary cannot be treated as an ACCA predicate offense unless all cases present a risk of physical injury to others. ACCA does not require such certainty, and James argument misapprehends Taylor, under which the proper inquiry is not whether every factual offense conceivably covered by a statute necessarily presents a serious potential risk of injury, but whether the conduct encompassed by the offenses elements, in the ordinary case, presents such a risk. Pp. 1315.
(c) James argument that the scope of Floridas underlying burglary statute itself precludes treating attempted burglary as an ACCA predicate offense is not persuasive. Although the state-law definition of [d]welling to include the curtilage thereof, Fla. Stat. §810.011(2), takes Floridas underlying burglary offense outside Taylors generic burglary definition, 495 U. S., at 598, that is not dispositive because the Government does not argue that James conviction constitutes burglary under ACCA. Rather, it relies on the residual provision, whichas Taylor recognizedcan cover conduct outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9. The Florida Supreme Courts Hamilton decision construed curtilage narrowly, requiring some form of enclosure for the area surrounding a residence. A burglar illegally attempting to enter the curtilage around a dwelling creates much the same risk of confrontation as one attempting to enter the structure itself. Pp. 1820.
(d) Because the Court is here engaging in statutory interpretation, not judicial factfinding, James argument that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466, lacks merit. P. 20.
430 F. 3d 1150, affirmed.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion.
ALPHONSO JAMES, Jr., PETITIONER v. UNITED
on writ of certiorari to the united states court ofappeals for the eleventh circuit
Justice Alito delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e), provides that a defendant convicted of possession of a firearm by a convicted felon, in violation of §922(g), is subject to a mandatory sentence of 15 years of imprisonment if the defendant has three prior convictions for a violent felony or a serious drug offense.
The question before us is whether attempted burglary, as defined by Florida law, is a violent felony under ACCA. We hold that it is, and we therefore affirm the judgment of the Court of Appeals.
Petitioner Alphonso James pleaded guilty in federal court to one count of possessing a firearm after being convicted of a felony, in violation of §922(g)(1). In his guilty plea, James admitted to the three prior felony convictions listed in his federal indictment. These included a conviction in Florida state court for attempted burglary of a dwelling, in violation of Florida Statutes §§810.02 and 777.04.1
At sentencing, the Government argued that James was subject to ACCAs 15-year mandatory minimum term because of his three prior convictions. James objected, arguing that his attempted burglary conviction did not qualify as a violent felony under 18 U. S. C. §924(e). The District Court held that attempted burglary is a violent felony, and the Court of Appeals for the Eleventh Circuit affirmed that holding, 430 F. 3d 1150, 1157 (2005). We granted certiorari, 547 U. S. ___ (2006).
ACCAs 15-year mandatory minimum applies [i]n the case of a person who violates section 922(g) of this title [the felon in possession of a firearm provision] and has three prior convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another. §924(e)(1). ACCA defines a violent felony as
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(2)(B).
Florida defined the crime of burglary at the time of James conviction as follows: Burglary means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. Fla. Stat. §810.02(1) (1993). Floridas criminal attempt statute provided: A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt. §777.04(1). The attempted burglary conviction at issue here was punishable by imprisonment for a term exceeding one year.
The parties agree that attempted burglary does not qualify as a violent felony under clause (i) of ACCAs definition because it does not have 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). Nor does it qualify as one of the specific crimes enumerated in clause (ii). Attempted burglary is not robbery or extortion. It does not involve the use of explosives. And it is not burglary because it does not meet the definition of burglary under ACCA that this Court set forth in Taylor v. United States, 495 U. S. 575, 598 (1990) : an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. See Fla. Stat. §777.04(1) (crime of attempt under Florida law requires as an element that the defendant fai[l] in the perpetration or [be] intercepted or prevented in the execution of the underlying offense).
The question before the Court, then, is whether attempted burglary, as defined by Florida law, falls within ACCAs residual provision for crimes that otherwise involv[e] conduct that presents a serious potential risk of physical injury to another. 18 U. S. C. §924(e)(2)(B)(ii).
Before determining whether the elements of attempted burglary under Florida law qualify under ACCAs residual provision, we first consider James argument that the statutes text and structure categorically exclude attempt offenses from the scope of the residual provision. We conclude that nothing in the plain language of clause (ii), when read together with the rest of the statute, prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another.
James first argues that the residual provision of clause (ii) must be read in conjunction with clause (i), which expressly includes in its definition of violent felony offenses that have as an element the … attempted use … of physical force against another. §924(e)(2)(B)(i) (emphasis added). James thus concludes that Congress express inclusion of attempt offenses in clause (i), combined with its failure to mention attempts in clause (ii), demonstrates an intent to categorically exclude attempt offenses from the latter provision.
We are not persuaded. James reading would unduly narrow clause (ii)s residual provision, the language of which does not suggest any intent to exclude attempt offenses that otherwise meet the statutory criteria. Clause (i), in contrast, lacks a broad residual provision, thus making it necessary to specify exactly what types of offensesincluding attempt offensesare covered by its language. In short, the expansive phrasing of clause (ii) points directly away from the sort of exclusive specification that James would read into it. Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002) ; see also United States v. Davis, 16 F. 3d 212, 217 (CA7) (rejecting argument that had Congress wished to include attempted burglary as a §924(e) predicate offense, it would have done so expressly as untenable in light of the very existence of the otherwise clause, which Congress plainly intended to serve as a catch-all provision), cert. denied, 513 U. S. 945 (1994) .
James next invokes the canon of ejusdem generisthat when a general phrase follows a list of specifics, it should be read to include only things of the same type as those specifically enumerated. He argues that the common attribute of the offenses specifically enumerated in clause (ii)burglary, arson, extortion, and crimes involving the use of explosivesis that they are all completed offenses. The residual provision, he contends, should similarly be read to extend only to completed offenses.
This argument is unavailing. As an initial matter, the premise on which it dependsthat clause (ii)s specifically enumerated crimes are limited to completed offensesis false. An unsuccessful attempt to blow up a government building, for example, would qualify as a specifically enumerated predicate offense because it would involv[e] [the] use of explosives. See, e.g., §844(f)(1) (making it a crime to maliciously damag[e] or destro[y], or attemp[t] to damage or destroy, by means of fire or an explosive, certain property used in or affecting interstate commerce (emphasis added)).
In any event, the most relevant common attribute of the enumerated offenses of burglary, arson, extortion, and explosives use is not completion. Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor,
Congress thought that certain general categories of property crimesnamely burglary, arson, extortion, and the use of explosivesso often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person. 495 U. S., at 597.
See also id., at 588 (noting that Congress singled out burglary because it often creates the possibility of a violent confrontation); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents a serious risk of physical injury to another because [n]ot only might the targeted building be occupied, but also the fire could harm firefighters and onlookers and could spread to occupied structures); H. R. Rep. No. 99849, p. 3 (1986) (purpose of clause (ii) was to add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person).
Congress inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a §924(e) predicate offense. Nothing in the statutory language supports the view that Congress intended to limit this category solely to completed offenses.
James also relies on ACCAs legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCAs adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for use of a firearm by persons with two prior convictions for any robbery or burglary offense, or a conspiracy or attempt to commit such an offense. S. 52, 98th Cong., 2d Sess., §2 (1984) (emphasis added). The bill that ultimately became law omitted any reference to attempts, and simply defined violent felony to include robbery or burglary, or both. Armed Career Criminal Act of 1984, §1802, 98Stat. 2185, repealed in 1986 by Pub. L. 99308, §104(b), 100Stat. 459. James argues that Congress rejection of this explicit attempt language in 1984 evidenced an intent to exclude attempted burglary as a predicate offense.
Whatever weight this legislative history might ordinarily have, we do not find it probative here, because the 1984 enactment on which James relies was not Congress last word on the subject. In 1986, Congress amended ACCA for the purpose of expanding the range of predicate offenses. Taylor, supra, at 584. The 1986 amendments added the more expansive language that is at issue in this caseincluding clause (ii)s language defining as violent felonies offenses that are burglary, arson, extortion, involv[e] use of explosives, or otherwise involv[e] conduct that presents a serious potential risk of physical injury to another. Career Criminals Amendment Act of 1986, §1402(b), 100Stat. 320740, codified at 18 U. S. C. §924(e)(2)(B)(ii). This language is substantially broader than the 1984 provision that it amended. Because both the Government and the Court of Appeals relied on the broader language of the 1986 amendmentsspecifically, the residual provisionas the textual basis for including attempted burglary within the laws scope, Congress rejection of express language including attempt offenses in the 1984 provision is not dispositive. Congress did not consider, much less reject, any such language when it enacted the 1986 amendments. What it did consider, and ultimately adopted, was a broadly worded residual clause that does not by its terms exclude attempt offenses, and whose reach is broad enough to encompass at least some such offenses.
Having concluded that neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of §924(e)(2)(B)(ii)s residual provision, we next ask whether attempted burglary, as defined by Florida law, is an offense that involves conduct that presents a serious potential risk of physical injury to another. In answering this question, we employ the categorical approach that this Court has taken with respect to other offenses under ACCA. Under this approach, we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. Shepard v. United States, 544 U. S. 13, 17 (2005) (quoting Taylor, 495 U. S., at 602). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender.
We begin by examining what constitutes attempted burglary under Florida law. On its face, Floridas attempt statute requires only that a defendant take any act toward the commission of burglary. Fla. Stat. §777.04(1). James contends that this broad statutory language sweeps in merely preparatory activity that poses no real danger of harm to othersfor example, acquiring burglars tools or casing a structure while planning a burglary.
But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary, requiring an overt act directed toward entering or remaining in a structure or conveyance. Jones v. State, 608 So. 2d 797, 799 (1992). Mere preparation is not enough. See ibid.<footcall num="2"> Floridas lower courts appear to have consistently applied this heightened standard. See, e.g., Richardson v. State, 922 So. 2d 331, 334 (App. 2006); Davis v. State, 741 So. 2d 1213, 1214 (App. 1999).
The pivotal question, then, is whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is conduct that presents a serious potential risk of physical injury to another. 18 U. S. C. §924(e)(2)(B)(ii).
In answering this question, we look to the statutory language for guidance. The specific offenses enumerated in clause (ii) provide one baseline from which to measure whether other similar conduct otherwise … presents a serious potential risk of physical injury. In this case, we can ask whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenseshere, completed burglary. See Taylor, supra, at 600, n. 9 (The Government remains free to argue that any offenseincluding offenses similar to generic burglaryshould count towards enhancement as one that otherwise involves conduct that presents a serious potential risk of physical injury to another under §924(e)(2)(B)(ii)).
The main risk of burglary arises not from the simple physical act of wrongfully entering onto anothers property, but rather from the possibility of a face-to-face confrontation between the burglar and a third partywhether an occupant, a police officer, or a bystanderwho comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress.
Attempted burglary poses the same kind of risk. Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent confrontation comparable to that posed by finding him inside the structure itself. As one court has explained:
In all of these cases the risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view… . [T]here is a serious risk of confrontation while a perpetrator is attempting to enter the building. United States v. Payne, 966 F. 2d 4, 8 (CA1 1992).
Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenorbe it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations. But attempted burglaries often do; indeed, it is often just such outside intervention that prevents the attempt from ripening into completion.
Concluding that attempted burglary presents a risk that is comparable to the risk posed by the completed offense, every Court of Appeals that has construed an attempted burglary law similar in scope to Floridas has held that the offense qualifies as a violent felony under clause (ii)s residual provision.3 The only cases holding to the contrary involved attempt laws that could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally.4 Given that Florida law, as interpreted by that States highest court, requires an overt act directed toward the entry of a structure, we need not consider whether the more attenuated conduct encompassed by such laws presents a potential risk of serious injury under ACCA.
The United States Sentencing Commission has come to a similar conclusion with regard to the Sentencing Guidelines career offender enhancement, whose definition of a predicate crime of violence closely tracks ACCAs definition of violent felony. See United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). The Commission has determined that crime[s] of violence for the purpose of the Guidelines enhancement include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. §4B1.2, comment., n. 1. This judgment was based on the Commissions review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses. As then-Judge Breyer explained, [t]he Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between a particular offense and the likelihood of accompanying violence. United States v. Doe, 960 F. 2d 221, 225 (CA1 1992); see also USSG §1A3 (Nov. 1987), reprinted in §1A1.1 comment. (Nov. 2006) (describing empirical basis of Commissions formulation of Guidelines); United States v. Chambers, 473 F. 3d 724 (CA7 2007) (noting the usefulness of empirical analysis from the Commission in determining whether an unenumerated crime poses a risk of violence). While we are not bound by the Sentencing Commissions conclusion, we view it as further evidence that a crime like attempted burglary poses a risk of violence similar to that presented by the completed offense.
James responds that it is not enough that attempted burglary generally or in most cases will create a risk of physical injury to others. Brief for Petitioner 32. Citing the categorical approach we employed in Taylor, he argues that we cannot treat attempted burglary as an ACCA predicate offense unless all cases present such a risk. James approach is supported by neither the statutes text nor this Courts holding in Taylor.
One could, of course, imagine a situation in which attempted burglary might not pose a realistic risk of confrontation or injury to anyonefor example, a break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors. But ACCA does not require metaphysical certainty. Rather, §924(e)(2)(B)(ii)s residual provision speaks in terms of a potential risk. These are inherently probabilistic concepts.5 Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simple risk, much less a certainty. While there may be some attempted burglaries that do not present a serious potential risk of physical injury to another, the same is true of completed burglarieswhich are explicitly covered by the statutory language and provide a baseline against which to measure the degree of risk that a non-enumerated offense must otherwise present in order to qualify.
James argument also misapprehends Taylors categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U. S. ___, ___ (2007) (slip op., at 9) ([T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statutes language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime).
Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injuryfor example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to take an example from the offenses specifically enumerated in §924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent.
As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of §924(e)(2)(B)(ii)s residual provision. Attempted burglary under Florida lawas construed in Jones to require an overt act directed toward entry of a structuresatisfies this test.
Justice Scalias dissent criticizes our approach on the ground that it does not provide sufficient guidance for lower courts required to decide whether unenumerated offenses other than attempted burglary qualify as violent felonies under ACCA. But the dissents alternative approach has more serious disadvantages. Among other things, that approach unnecessarily decides an important question that the parties have not briefed (the meaning of the term extortion in §924(e)(2)(B)(ii)), decides that question in a way that is hardly free from doubt, and fails to provide an interpretation of the residual provision that furnishes clear guidance for future cases.
The dissent interprets the residual provision to require at least as much risk as the least dangerous enumerated offense. But the ordinary meaning of the language of the residual clause does not impose such a requirement. What the clause demands is a serious potential risk of physical injury to another. While it may be reasonable to infer that the risks presented by the enumerated offenses involve a risk of this magnitude, it does not follow that an offense that presents a lesser risk necessarily fails to qualify. Nothing in the language of §924(e)(2)(B)(ii) rules out the possibility that an offense may present a serious risk of physical injury to another without presenting as great a risk as any of the enumerated offenses.
Moreover, even if an unenumerated offense could not qualify without presenting at least as much risk as the least risky of the enumerated offenses, it would not be necessary to identify the least risky of those offenses in order to decide this case. Rather, it would be sufficient to establish simply that the unenumerated offense presented at least as much risk as oneof the enumerated offenses. Thus, Justice Scalias interpretation of the meaning of the term extortion is unnecessaryand inadvisable. The parties have not briefed this issue, and the proposed interpretation is hardly beyond question. Instead of interpreting the meaning of the term extortion in accordance with its meaning at common law or in modern federal and state statutes, see Taylor, 495 U. S., at 598, it is suggested that we adopt an interpretation that seems to be entirely novel and that greatly reduces the reach of ACCA.
The stated reason for tackling this question is to provide guidance for the lower courts in future casessurely a worthy objective. But in practical terms, the proposed interpretation of the residual clause would not make it much easier for the lower courts to decide whether other unenumerated offenses qualify. Without hard statisticsand no such statistics have been called to our attentionhow is a lower court to determine whether the risk posed by generic burglary is greater or less than the risk posed by an entirely unrelated unenumerated offensesay, escape from prison? 6
In the end, Justice Scalias analysis of this case turns on the same question as oursi.e., the comparative risks presented by burglary and attempted burglary. The risk of physical injury in both cases occurs when there is a confrontation between the criminal and another person, whether an occupant of the structure, a law enforcement officer or security guard, or someone else. It is argued that when such an encounter occurs during a consummated burglary (i.e., after entry), the risk is greater than it is when the encounter occurs during an attempted burglary (i.e., before entry is effected), and that may be true. But this argument fails to come to grips with the fact that such encounters may occur much more frequently during attempted burglaries because it is precisely due to such encounters that many planned burglaries do not progress beyond the attempt stage. Justice Scalia dismisses the danger involved when an encounter occur during attempted burglaries, stating that such encounters are likely to consist of nothing more than the occupants yelling, Whos there? from his window, and the burglars running away. Post, at 13. But there are many other possible scenarios. An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner angered by the sort of conduct recited in James presentence reportthrowing a hammer through a windowmay give chase, and a violent encounter may ensue. For these reasons and the reasons discussed above, we are convinced that the offense of attempted burglary, as defined by Florida law, qualifies under ACCAs residual clause.
Although the question on which this Court granted certiorari focused on the attempt prong of Floridas attempted burglary law, James also argues that the scope of the States underlying burglary statute itself precludes treating attempted burglary as a violent felony for ACCA purposes. Specifically, he argues that Floridas burglary statute differs from generic burglary as defined in Taylor, supra, at 598, because it defines a [d]welling to include not only the structure itself, but also the curtilage thereof,7 Fla. Stat. §810.011(2) (1993).
We agree that the inclusion of curtilage takes Floridas underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in, a building or other structure. 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James conviction for attempted burglary constitutes burglary under §924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, whichas the Court has recognizedcan cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9.
Is the risk posed by an attempted entry of the curtilage comparable to that posed by the attempted entry of a structure (which, as we concluded above, is sufficient to qualify under the residual provision)? We must again turn to state law in order to answer this question.
The Florida Supreme Court has construed curtilage narrowly, requiring some form of an enclosure in order for the area surrounding a residence to be considered part of the curtilage as referred to in the burglary statute. State v. Hamilton, 660 So. 2d 1038, 1044 (1995) (holding that a yard surrounded by trees was not curtilage); see also United States v. Matthews, 466 F. 3d 1271, 1274 (CA11 2006) (Florida case law construes curtilage narrowly, to include only an enclosed area surrounding a structure). Given this narrow definition, we do not believe that the inclusion of curtilage so mitigates the risk presented by attempted burglary as to take the offense outside the scope of clause (ii)s residual provision.
A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitorsespecially those with criminal motives. And a burglar who illegally attempts to enter the enclosed area surrounding a dwelling creates much the same risk of physical confrontation with a property owner, law enforcement official, or other third party as does one who attempts to enter the structure itself. In light of Floridas narrow definition of curtilage, attempted burglary of the curtilage requires both physical proximity to the structure and an overt act directed toward breaching the enclosure. Such an attempt presents a serious potential risk that violence will ensue and someone will be injured. Id., at 1275 (holding that burglary of the curtilage is a violent felony under ACCAs residual provision).
Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466 (2000) , and its progeny because it is based on judicial fact finding about the risk presented by the acts that underlie most convictions for attempted burglary. Brief for Petitioner 34, 35. This argument is without merit.
In determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding. Indeed, by applying Taylors categorical approach, we have avoided any inquiry into the underlying facts of James particular offense, and have looked solely to the elements of attempted burglary as defined by Florida law. Such analysis raises no Sixth Amendment issue.8
For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed.
It is so ordered.
1 James two other prior convictionsfor possession of cocaine and trafficking in cocainewere determined to be serious drug offense[s] under ACCA, see 18 U. S. C. §924(e)(1), and are not at issue here.
2 The Jones court distinguished its earlier holding in Thomas v. State, 531 So. 2d 708 (1988). There, the State Supreme Court upheld a conviction under a state statute criminalizing the possession of burglary tools, Fla. Stat. §810.06, where the defendant had been arrested after jumping a fence and trying to run away from police while carrying a screwdriver. Jones held that the overt act necessary to convict of the burglary tool crime is not the same as the overt act required to prove attempted burglary, and noted that the conduct charged in Thomas would not be sufficient to prove attempted burglary because the defendant in that case committed no overt act directed toward entering or remaining in a building. 608 So. 2d, at 799.
3 See United States v. Lane, 909 F. 2d 895, 903 (CA6 1990) (construing Ohio attempted burglary law: The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.… The fact that [the defendant] did not complete the burglary offense does not diminish the serious potential risk of injury to another arising from an attempted burglary); United States v. Fish, 928 F. 2d 185, 188 (CA6 1991) (Michigan attempted burglary law); United States v. Payne, 966 F. 2d 4, 8 (CA1 1992) (Massachusetts attempted-breaking-and-entering law); United States v. OBrien, 972 F. 2d 47, 52 (CA3 1992) (Massachusetts attempted-breaking-and-entering law: [T]he possibility of a violent confrontation with an innocent party is always present when a perpetrator attempts to enter a building illegally, even when the crime is not actually completed); United States v. Solomon, 998 F. 2d 587, 590 (CA8 1993) (Minnesota attempted burglary law); United States v. Custis, 988 F. 2d 1355, 1364 (CA4 1993) (Maryland attempted-breaking-and-entering law: In most cases, attempted breaking and entering will be charged when a defendant has been interrupted in the course of illegally entering a home. Interrupting an intruder while breaking into a home involves a risk of confrontation nearly as great as finding him inside the house); United States v. Thomas, 2 F. 3d 79, 80 (CA4 1993) (New Jersey attempted burglary law); United States v. Andrello, 9 F. 3d 247, 249250 (CA2 1993) (New York attempted burglary law); United States v. Davis, 16 F. 3d 212, 218 (CA7 1994) (Illinois attempted burglary law); United States v. Bureau, 52 F. 3d 584, 593 (CA6 1995) (Tennessee attempted burglary law: [T]he propensity for a violent confrontation and the serious potential risk of injury inherent in burglary is not diminished where the burglar is not successful in completing the crime. The potential risk of injury is especially great where the burglar succeeds in entry or near-entry despite not fully committing the crime); United States v. Demint, 74 F. 3d 876, 878 (CA8 1996) (Florida attempted burglary law); United States v. Collins, 150 F. 3d 668, 671 (CA7 1998) (Wisconsin attempted burglary law: We have already recognized the inherently dangerous situation and possibility of confrontation that is created when a burglar attempts to illegally enter a building or residence… . Wisconsins requirement that a defendant must attempt to enter a building before he can be found guilty of attempted burglary is sufficient to mandate that attempted burglary in Wisconsin constitute a violent felony).
4 In United States v. Strahl, 958 F. 2d 980, 986 (1992), the Tenth Circuit held that attempted burglary under Utah law did not qualify as an ACCA predicate offense because a conviction could be based upon conduct such as making a duplicate key, casing the targeted building, obtaining floor plans of a structure, or possessing burglary tools. United States v. Permenter, 969 F. 2d 911, 913 (CA10 1992), similarly excluded a conviction under an Oklahoma statute that could be satisfied by the defendants merely casing the targeted structure. In United States v. Martinez, 954 F. 2d 1050, 1054 (1992), the Fifth Circuit came to the same conclusion as to a Texas attempted burglary statute that did not require that the defendant be in the vicinity of any building. And in United States v. Weekley, 24 F. 3d 1125, 1127 (CA9 1994), the Court of Appeals concluded that ACCA was not satisfied by a conviction under a Washington law that covered relatively unrisky conduct such as casing the neighborhood, selecting a house to burgle, and possessing neckties to be used in the burglary.
5 See, e.g., Blacks Law Dictionary 1188 (7th ed. 1999) (potential: [c]apable of coming into being; possible); id., at 1328 (risk: [t]he chance of injury, damage or loss; danger or hazard); Websters Third New International Dictionary 1775 (1971) (potential: existing in possibility: having the capacity or a strong possibility for development into a state of actuality); id., at 1961 (risk: the possibility of loss, injury, disadvantage, or destruction).
6 While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalias suggestionwhich was not pressed by James or his amicithat the residual provision is unconstitutionally vague. See post, at 17. The statutory requirement that an unenumerated crime otherwise involv[e] conduct that presents a serious potential risk of physical injury to another is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits. See Kolender v. Lawson, 461 U. S. 352, 357 (1983) . Similar formulations have been used in other federal and state criminal statutes. See, e.g., 18 U. S. C. §2332b(a)(1)(B) (defining terrorist act as conduct that, among other things, creates a substantial risk of serious bodily injury to any other person); Ariz. Rev. Stat. Ann. §132508(A)(2) (West 2001) (offense of resisting arrest requires preventing an officer from effectuating an arrest by any … means creating a substantial risk of causing physical injury to the peace officer or another); Cal. Health & Safety Code Ann. §42400.3(b) (West 2006) (criminalizing air pollution that results in any unreasonable risk of great bodily injury to, or death of, any person); N. Y. Penal Law Ann. §490.47 (West Supp. 2007) ([c]riminal use of a chemical weapon or biological weapon requires a grave risk of death or serious physical injury to another person not a participant in the crime).
7 Burglary under Florida law differs from generic burglary in a second respect: It extends not just to entries of structures, but also of conveyance[s]. Fla. Stat. §810.02(1). But because James (in accordance with what appears to be the general practice in Florida) was specifically charged with and convicted of attempted burglary of a dwelling, we need not examine this point further.
8 To the extent that James contends that the simple fact of his prior conviction was required to be found by a jury, his position is baseless. James admitted the fact of his prior conviction in his guilty plea, and in any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes. Almendarez-Torres v. United States, 523 U. S. 224 (1998) .
ALPHONSO JAMES, Jr., PETITIONER v. UNITED
on writ of certiorari to the united states court ofappeals for the eleventh circuit
Justice Thomas, dissenting.
For the reasons set forth in my opinion concurring in part and concurring in the judgment in Shepard v. United States, 544 U. S. 13, 27 (2005) , I believe that [t]he constitutional infirmity of §924(e)(1) as applied to [James] makes todays decision an unnecessary exercise. Apprendi v. New Jersey, 530 U. S. 466 (2000) , and its progeny prohibit judges from mak[ing] a finding that raises [a defendants] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. United States v. Booker,543 U. S. 220, 317318 (2005) (Thomas, J., dissenting in part). Yet that is precisely what the Armed Career Criminal Act, 18 U. S. C. §924(e) (2000 ed. and Supp. IV), permits in this case.
Petitioner Alphonso James pleaded guilty to being a felon in possession of a firearm, in violation of §922(g)(1) (2000 ed.), which exposed him to a maximum sentence of 10 years under §924(a)(2). Section 924(e)(1) (2000 ed., Supp. IV), however, mandated a minimum 15-year sentence if James had three prior convictions for a violent felony or a serious drug offense. James admitted he had been convicted of three prior felonies, but he argued that one of those felonieshis conviction for attempted burglary of a dwelling, in violation of Fla. Stat. §§810.02 and 777.04 (2006)was not a violent felony for purposes of 18 U. S. C. §924(e)(1) (2000 ed., Supp. IV). The District Court resolved this disputed fact in favor of the Government and increased James sentence accordingly. Relying on the scheme we initially created in Taylor v. United States,495 U. S. 575 (1990) , the Court of Appealsaffirmed.
Section 924(e)(1), in conjunction with Taylor, Shepard, and now todays decision, explain[s] to lower courts how to conduct factfinding that is, according to the logic of this Courts intervening precedents, unconstitutional in this very case. Shepard, supra, at 27. For that reason, I respectfully dissent.