CHAMBERS v. UNITED STATES

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ORAL ARGUMENT OF ROBERT N. HOCHMAN ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We'll hear argument first this morning in Case 06-11206, Chambers v. United States.

Mr. Hochman.

Mr. Hochman: Mr. Chief Justice, and may it please the Court: Failure to report is not a violent felony under the Armed Career Criminal Act because it presents neither a serious potential risk of injury to others nor involves violent and aggressive conduct.

The Government argues that failure to report satisfies both the risk of injury and violent, aggressive conduct standards for the same reason: The prospect that a offender will violently resist an arrest -- resist arrest upon completion of the offense or upon -- for having done the offense.

That potential and that potential risk alone is neither as a matter of fact nor law sufficient to satisfy either the risk of injury or the violent, aggressive conduct standard.

Beginning with the risk of injury: The statute refers to a serious potential risk of injury, and by using the word "serious" Congress indicated not just any felony, not just any felony which carries necessarily some risk of injury would be included.

The risk that must be generated must be one that's somehow greater than, something that warrants singly out this sort of offender as the sort of person who's deserving of greater punishment for his recidivism.

Chief Justice Roberts: I take it you concede that a breakout as opposed to a failure to report would be covered by the statute?

Mr. Hochman: Yes, Your Honor, I think it would.

I think that in fact one of the critical errors that the courts of appeals have made and that the Government made here is equating breakout, prison escape, with failure to report.

They are entirely different.

They are importantly different, both again as a matter of analytically the categorical rule and what would you look at to determine whether this sort of person satisfied the violent and aggressive standard.

And we now know, in light of the Sentencing Commission's report that was filed just last -- that was filed with the Court just last week, that the risk of injury associated with a prison breakout escape and failure to report is dramatically different.

And that mistake--

Justice Kennedy: But suppose it were shown -- this is hypothetical.

Suppose it were shown that 90 percent of all escapes under the escape statute were breakouts involving weapons; 10 percent were failure to report.

Would that affect how we decide the case?

Mr. Hochman: --This case?

Justice Kennedy: Yes.

Mr. Hochman: Well, since -- I think since this is not a prison breakout case, I don't know whether data about breakouts--

Justice Kennedy: Do we look to the crime to see generally whether or not it involves violence and serious risk of harm?

Mr. Hochman: --I think you -- I think the categorical rule does require you to look at--

Justice Kennedy: So that, in my hypothetical, it would be a more difficult case than the case we have here or would it be the same?

Mr. Hochman: --I think in your hypothetical, where a prison breakout -- where a prison breakout is involved--

Justice Kennedy: No.

My hypothetical is, under the statute, if you look at the whole universe of prosecutions under the escape statute, 90 percent of them are for breakouts involving weapons.

Mr. Hochman: --I don't think that you look to the universe under the escape statute.

You can under Shepard--

Justice Kennedy: But that's what we looked to in Begay.

Mr. Hochman: --But the issue under Shepard and the approach under the categorical rule requires you -- allows you to look at a narrower subsection of the statute if the charging document and other reliable indicia indicate that.

And in this case, it's undisputed that Mr. Chambers was convicted only of failing to report.

He was not convicted of the more serious offense of prison breakout.

And in fact in Illinois they are punished at different levels, and the evidence is absolutely clear--

Chief Justice Roberts: Maybe -- I don't want to put words in his mouth, but I thought what Justice Kennedy was asking is what if you have a statute that is just escape or whatever and doesn't break it down like that?

At that point would we look to see what the crime of escape was typically like, most of them were breakout or most of them were the other thing?

You have, I gather, two separate provisions, but what if you don't?

Mr. Hochman: --Yes.

And that -- that is a difficult question under the categorical rule.

I think that the first step would be to determine whether there is anything in the record.

Under Shepard, you can look to other indications of whether the conduct at issue that was found by the jury or that was pled to, either from an indictment or from plea colloquy, whether there is some more specific indication.

If not, I think then what you would look at -- and I think here you would look at, to the extent you're looking at the risk -- on the risk of injury side, you would look at the best available information.

If that -- if that gives you a run of cases where you say typically--

Chief Justice Roberts: I'm sorry.

If that's the case, I'm looking at 720 Illinois Statutes 5/31-6.

It's reproduced a page 2a of the Government's brief.

And they don't -- it doesn't seem to be a separate provision, whether it's a breakout or a failure to report.

Mr. Hochman: --But here the charging document was clear, and under Shepard the charging document is something you're also allowed to take into consideration.

And there is no doubt, under the charging document, that he was convicted of merely failing to report.

Justice Ginsburg: What was the sentence for that?

Mr. Hochman: It -- the sentence appears that they extended his probation.

He had to serve the four weekends that he had failed -- for which he had failed to report, and his probation was extended.

Justice Ginsburg: But he didn't get any extra jail time?

Mr. Hochman: He did not get any additional jail time as far as I can tell from the record, Your Honor.

Justice Scalia: There is really a problem about -- about what you suggest.

It may destroy the whole benefit of the categorical approach.

I mean, you can always shave something down to become a narrower crime.

An escape statute, for example, I suppose you could look to see whether the particular escape in question from the charging document was an escape that used firearms or was an escape that, you know, that injured or killed guards.

And, you know, that gets us into the case-by-case examination that it is the whole purpose of the categorical approach to avoid.

Now, how do we -- how do we avoid getting to the bottom of that slippery slope?

Mr. Hochman: I think this -- I think this Court took that step in Shepard, and it did it in a very narrow and circumscribed way.

It did it by saying the only things you're allowed to consider are things that are as reliable as the charge itself and the elements essential to--

Justice Scalia: Okay.

I mean, the charge mentions -- mentions a firearm.

Anything that's in the charge can be used to narrow the crime that we are looking at.

Mr. Hochman: --If the jury instructions were clear, if it's clear that the jury had to find that the presence of a firearm -- and I think it complicates -- that is, I think some courts refer to it as the modified categorical rule.

Justice Scalia: It has to be an element of the crime.

If using a firearm is not an element of escape, then I don't have to worry about it.

Mr. Hochman: If -- if -- correct.

If it's not an element in the sense that he either pled to it or the jury necessarily found it as a necessary matter.

And that's really what Shepard says.

It has to be something that we necessarily know occurred from the fact of conviction, and--

Justice Scalia: Okay, but it doesn't have to be an element.

So, if all the evidence in the case was that, you know, he wrestled a gun from the guard and made his way out of the prison that way, if the jury found him guilty, that was the only basis on which it could have found him guilty, that would be enough.

Mr. Hochman: --I don't think that Shepard permits you to look into trial transcripts of evidence that was presented.

It just says: What did the jury necessarily find?

And what I mean by "jury instructions", how was the jury instructed?

What did it have to find?

What did the jury have to find in order to convict?

Justice Scalia: Well, that sounds like an element.

That sounds like an element.

Mr. Hochman: I think it is elements, but if you look--

Justice Alito: Well--

Mr. Hochman: --Please, continue.

Justice Alito: --If you look at the cases that we've had to decide under this statute in the last couple of years, do you think they illustrate that the categorical approach just doesn't work in this situation?

Because it puts us in a position for every single crime that comes up here of making -- of trying to ascertain what is the serious risk when we don't have any empirical -- we don't have a number quantifying what a serious risk is, nor can we generally find what the risk is that's associated with a particular class of cases.

Maybe when Congress enacted this they never anticipated that it would be done on a categorical basis.

Why not just have a determination as to whether there was a serious potential risk in this particular case?

So, if you have a -- a nonviolent person who walks away, that's one thing.

If you have somebody who has a long list of convictions for violent -- violent crimes and escapes, that's another situation.

Mr. Hochman: I think there are two problems with that approach, Your Honor: First, as the Court said in Shepard, the categorical rule, which was adopted way back when the Court first confronted the statute and has been consistently applied ever since, more or less anticipated the Sixth Amendment Apprendi concerns that might come from digging in and trying to attribute conduct which has not been found by a jury, which doesn't have that level of reliability, whether it's an element or was on a special verdict form or some -- or some other -- or was admitted to in a plea colloquy.

Justice Alito: Isn't that a separate question?

If it had -- if it has to be found by a jury, it can be submitted to the jury?

Mr. Hochman: Well, if it was submitted to the jury, then I think under Shepard it's something that could be considered, and that would be part of what's referred to as the modified categorical approach.

I think the problems with the categorical approach that you're identifying, courts have tried and Shepard itself in effect amended enough to provide some kind of flexibility.

The other reason to hold back on such a sea change is this is, after all, a statutory case and the categorical rule has been this Court's approach from the beginning.

Congress could easily revise the statute.

If after 20 years it hasn't--

Justice Alito: Well, it could, and if it had read these cases and it was paying attention to this problem, you would think it would go through a list of crimes and say, these fall within it and these don't fall within it.

But obviously it hasn't done that.

Mr. Hochman: --I think that would make everybody's job, the bar and this Court, much easier.

Justice Kennedy: Well, it might not, if it just said "escape", and then you'd have this same problem.

Mr. Hochman: That might be the case, although if it just said "escape", I think I'd actually have a substantially harder case than what we have here, because what we have here doesn't resemble the kind of violent, aggressive conduct that this Court in Begay said is going to be the standard and exemplar of the sort of conduct that Congress was thinking about.

It added -- this Court in Begay said that the serious potential risk of injury is just one part of the inquiry, that Congress was also singling out crimes commit ted in a certain way, and if that, if that requirement is going to have any bite, if it's going to do the job of singling out and separating out cases, it has to be something beyond the mere routine, ever-present prospect that an offender might resist arrest for having committed the offense after police discover that he has done so.

And in fact if you step back for a moment and just visualize--

Justice Scalia: Surely it depends upon how, how, what should I say, how often that prospect is realized.

Mr. Hochman: --There is no doubt.

There is no doubt that the prospect--

Justice Scalia: I mean, the statute itself lists robbery and robbery very often doesn't involve any threat of injury, but all and all we think it does.

Obviously, Congress thought it did, right?

Mr. Hochman: --Well in the -- I actually think robbery would satisfy under the first clause because it has as an element the use, attempted use, or threatened use of physical force against another.

But I think the concern that escape is much more easily detected than other crimes is obviously true.

And so the prospect that the offender will be arrested is obviously greater than in other, in other crimes.

But the point is the standards, the standard imposed by Begay and the notion that the conduct must be violent and aggressive, if you step back and visualize what it is about burglary, arson, extortion or the use of explosives that can properly be characterized as violent and aggressive, surely it is not the prospect that an offender will have been found out for having committed those offenses, police will be dispatched to arrest them, and then the offender upon that confrontation will violently resist arrest.

It's just -- it's not, it's not what those enumerated offenses are doing in the statute.

Justice Scalia: I didn't mean to say robbery.

I meant to say burglary.

Why is burglary violent or aggressive?

Mr. Hochman: I think the reason is because--

Justice Scalia: I mean, burglary by its nature is -- you do it at night.

You don't want to be detected.

It's not violent or aggressive at all.

It's sneaky, is what it is.

Mr. Hochman: --I assume that--

Justice Scalia: Robbery is violent or aggressive.

You're quite right about that.

Justice Souter: When you say burglary, if you're at home, if you're at home it's going to get violent and aggressive.

Justice Scalia: Yes, but -- that may be, but it does not in its nature indicate violence or aggressiveness.

Mr. Hochman: --I think, Justice Souter, has it exactly right.

I think the reason why the Court in Begay and Taylor, by the way, singled out burglary as having some kind of inherent danger and potential for violent and aggressive conduct associated with it is because it involves an act of invading the space of another, and cultural expectations and even common law expectations about how others might respond suggest that that scenario that you have willingly created, knowing full well that another might respond violently to what you've done in the event you've been detected--

Justice Scalia: It gets you right back into the soup.

What you're saying is all it requires is that there be a potential for violence, for aggressiveness, right?

And that's what the Government says here: There is a potential for violence and aggressiveness.

Mr. Hochman: --What it -- what it requires is the conscious creation of circumstances that you have good reason to believe is going to ignite in violence.

And if we learned anything from the data that's been submitted to the Court both by the Sentencing Commission and by the Government, it's that there is very little reason to believe that even the distant arrest scenario for those who fail to report doesn't carry with it very much of a risk of injury at all.

In fact, in all the materials that have been submitted to this Court, there is not a single cited instance or case of an innocent bystander or a police officer who has been injured in connection with a confrontation from arrest for failure to report.

There are none.

Now to be sure, there are some instances of violent confrontation and I'm not here saying it's impossible that there would be injury associated with an arrest scenario.

The point is it's nothing different.

There is nothing in the record that would give us any reason to believe this is the kind of special violent conduct that Congress was singling out for special treatment.

I should also add that excluding failure to report from the statute isn't going to create any kind of crack through which the sort of people the Government appears to be concerned about might fall through.

And the reason it this.

The several anecdotal cases they cite in their brief and a couple of the cases that Massachusetts reported back to them which had involved some kind of violent resisting arrest, those individuals were charged, separately charged for assault and battery and similar crimes on a police officer.

It's unsurprising that when that happens, those individuals will be separately charged and convicted for their violent conduct.

So the only work that is done by sweeping away the categorical rule, doing serious damage to the categorical rule, undermining Begay, the only work that's done is to encompass people who we have reason to believe didn't engage in violent conduct.

That seems to me a strange way to interpret the statute, certainly not the sort of things this Court would want to close its eyes to.

The last thing, Your Honors.

It's important to preserve the distinction in Begay between the violent and aggressive standard on the one hand and the risk of injury on the other hand, and Government's approach collapses them.

The Government says, why is this violent and aggressive?

Because in their view we can -- falsely, as we've discussed, but because in their view there is a sufficient risk of injury on arrest.

If that's going to be the case, if you're going to be able to show conduct is violent and aggressive simply because there is a sufficient risk of injury associated with it, the violent and aggressive conduct standard does nothing.

Justice Scalia: That doesn't square with the answer you gave me with regard to burglary.

If what you just said is true, burglary wouldn't be among the listed crimes.

Mr. Hochman: No.

The distinction I'm drawing here is the act that you take of invading somebody else's space and the prospect -- what you're doing is you're consciously taking an act fully aware that violence might ensue, which suggests that you are the sort of person who is comfortable in a violent situation or at least dangerously comfortable in such a violent situation, regardless of how frequently that -- that circumstance actually is realized.

You're the sort of person who has taken an action that expresses comfort with that sort of situation.

Failing to report--

Chief Justice Roberts: So invading someone's space, so trespass would be covered by this statute?

You're invading someone's space.

Mr. Hochman: --If it's -- if it's felonious, trespass might be.

You're invading someone's space in the circumstance where the response is -- I think there is a decent argument for trespass if for no other reason than the act itself, on the violence and aggressive standard side, the act itself is more or less the same as burglary.

It's not as if you can immediately tell from observing the burglar enter the structure that he has the intent, the requisite intent to commit another crime.

But the other reason why I doubt that trespass might be -- might satisfy the standard is because there may not -- there doesn't appear to be a serious potential risk of injury.

The second -- the other requirement may not be satisfied.

I just don't have any information about that.

Justice Alito: Your argument is that the failing to report is not violent and aggressive and therefore, no matter what degree of risk the statistics might show, it would not qualify?

Mr. Hochman: I'm making both arguments, Your Honor.

But yes, that is one, that is one of them.

If there are no further questions, I'll reserve the remainder of my time.

Chief Justice Roberts: Thank you, counsel.

Mr. Roberts.

ORAL ARGUMENT OF MATTHEW D. ROBERTS ON BEHALF OF THE RESPONDENT

Mr. Roberts: Mr. Chief Justice and may it please the Court: Failure-to-report escape qualifies as a violent felony under the ACCA's residual clause because it creates a serious potential risk of physical injury that's comparable in both kind and degree to the risk that's created by the enumerated offense of burglary.

Failure-to-report escape is similar in kind to burglary because it's purposeful, violent, and aggressive in the same way as burglary.

Justice Ginsburg: Mr. Roberts, wouldn't that be so of any crime?

This is failure to report.

Any crime, any -- an arrest for any crime has a certain risk that the arrestee is going to resist.

Is there anything different, is anything greater, about this arrest for this kind of crime?

Mr. Roberts: Yes, Your Honor.

Two points on that.

First, escape and failure-to-report escape, other types of escape and recapture, are linked ed in a way that arrest and the typical crime aren't, because escape inherently avoids -- inherently involves the avoidance of custody and custody is the very obligation that recapture is trying to impose.

But avoiding arrest isn't an element of the typical crime, so the connection between arrest and the ordinary crime isn't close enough to justify considering the violence in arrest -- in the arrest in whether the crime is violent.

Also the risk--

Justice Scalia: Say that again.

I didn't understand it.

Mr. Roberts: --Okay.

What I'm saying is it's an element of escape that you're avoiding custody, and escape is a continuing offense and so it doesn't end until the avoidance of custody is over.

Justice Souter: What's that got to do with increasing the risk of violence?

I mean, I see -- I see your kind of elements argument, but it seems to be beside the point that--

Mr. Roberts: It shows the close connection between the two.

And so when you're -- when the offender is committing the crime, it's appropriate to hold him accountable for what he can see is so highly, closely connected to the crime and which, in fact, has to happen in order to end the crime; whereas--

Justice Souter: --Yes, but the crime is still -- the crime that we are concerned with here is still essentially a passive crime.

He just doesn't show up.

Mr. Roberts: --Well--

Justice Souter: And given, you know, the close logical connections, I don't see that the close logical connections convert the passive crime into a higher degree of resisting arrest from any other.

In fact, it suggests just the opposite.

Mr. Roberts: --To address the -- the passive point, deliberately failing to comply with your legal duty to report to prison is not -- it is not doing nothing, as Petitioner says.

It's not purely passive.

It is a criminal act.

Justice Souter: Well, you know, you may precisely be doing nothing.

If I say, you know, it's Monday morning at 9 o'clock, I'm supposed to -- to report to prison, and I'm going to stay home, my purpose is to stay put in my armchair.

That's purposeful conduct and it's about as passive as you can get.

Mr. Roberts: It's purposefully inviting the violent confrontation when the law enforcement officers come to terminate--

Justice Kennedy: You can say the same thing about failure to respond to a traffic ticket.

Mr. Roberts: --No.

Because in -- in failure to respond to the traffic ticket the -- first of all, it's not clear that somebody is going to come after you and try to physically bring you in.

Second of all, the offender isn't expecting them and on edge and prone to react violently.

Third, he hasn't demonstrated already that he is unwilling to submit to custody.

And the fact that--

Chief Justice Roberts: The offender is prone to react violently if he doesn't respond to a traffic ticket?

Mr. Roberts: --No.

I'm saying just the opposite of that.

I'm saying that it's different because here you've got somebody who is expecting the police to come.

He is looking over his shoulder all the time.

He knows they know he didn't come to prison.

He knows they know who he is.

They probably know where he is.

If he is sitting at home, they know where he is.

Chief Justice Roberts: What is your understanding of the Illinois statute?

It is, I take it, only triggered by failure to report for confinement?

Mr. Roberts: This--

Chief Justice Roberts: What about like, you know, you've got to see your probation officer every--

Mr. Roberts: --This offense that he was convicted of is failure to report to a penal institution, failure to report to prison.

Chief Justice Roberts: --And you concede the probation or parole situation?

Mr. Roberts: I think a probation violation is different -- different circumstances.

It doesn't involve the same refusal to submit to custody that this offense involves, which--

Chief Justice Roberts: So we need not so many -- not so much statistics about how many times violence results, but statistics about how serious the police are about picking somebody up?

Mr. Roberts: --I don't think you really need the statistics, Your Honor.

I think it's a common -- it's common sense that the police are going to make vigorous efforts to recapture people who fail to show up to prison the way they are supposed to.

Justice Scalia: But it's not common sense that the person who has been guilty of a crime so gentlemanly that they only made him report to prison on the weekends would confront the policeman with violence when he comes.

This is not normally what you think of as a violent type who has -- who has been told to report weekends to the prison.

Mr. Roberts: Well--

Justice Scalia: But did he get additional time, by the way, when -- when they finally brought him back?

Mr. Roberts: --When he was sentenced -- when he was convicted of escape, he was sentenced to six months in prison -- in jail, that was stayed; probation for 30 months, and he violated his probation and he ended up in jail for 5 years.

Justice Scalia: So he just -- he just had to make up the weekends that he had lost?

Mr. Roberts: No.

He didn't just have to make up the weekends that he had lost.

Justice Ginsburg: That's what Mr. Hochman told us--

Mr. Roberts: I know that, Your Honor.

Justice Ginsburg: --when I asked that question.

Mr. Roberts: But I don't think that's accurate for the sentence for escape.

On page 113 to 114 of this JA, Your Honor, which is the -- the PSR describing what happened for this offense, it says that he has 30 months probation.

It's in the second volume, the volume under seal.

Justice Scalia: Well, this guy doesn't sound to me like Jack the Ripper.

He really doesn't.

Mr. Roberts: You know, we are not supposed to be looking at the individual offender here.

It's the categorical approach.

But he had been convicted of robbery and aggravated battery, Your Honor.

So he -- he is not somebody who has not done any violent crimes, either.

And what's -- what's different is that he has now deliberately failed to comply with his legal duty to report.

He has now deliberately resisted custody, so--

Justice Ginsburg: But would the statute apply if -- say he is supposed to go in on the weekends.

Instead, he goes out on a binge, and then he voluntarily comes in on a Monday morning saying, yes, I failed to report, and so here I am.

Mr. Roberts: --First of all, while he is out on the binge, people could be coming and looking for him and the violent confrontation could occur.

Second of all, even if in the unusual case of somebody who comes in voluntarily hours late, a few days late, there wasn't a -- a risk of -- of violence, which we think there can be, but even if there was none, it wouldn't matter because you're applying the categorical approach here.

And what you don't look at -- you don't look at the unusual case.

You look at the elements of the offense in the ordinary case.

Justice Kennedy: Can you -- can you tell me: The U.S. attorney has this case.

The man failed to report for custody some -- a few years earlier, and you have this offense.

Does the district attorney or -- pardon me -- the United States attorney have some discretion here that he may not prosecute at all?

What -- what goes into the--

Mr. Roberts: I think generally the policy--

Justice Kennedy: --What goes through the mind of -- of a prosecutor?

He says, because this fellow failed to report earlier for this offense, I'm going to give him 15 extra years in jail.

Mr. Roberts: --Well, Your Honor, he is -- he is looking at his whole--

Justice Kennedy: What -- what does a -- are there many instances where you think in a case like this a U.S. attorney would just elect not to file that charge?

Mr. Roberts: --I--

Justice Kennedy: Or do you think they automatically file it every time; and if not, how do they define it?

Mr. Roberts: --I think generally that -- that they look at the conduct that's been committed and they -- that the policy is to charge the -- the maximum charges that are supported by what the -- what the defendant has done.

But here you don't have--

Justice Kennedy: Do they ever look at the -- do they ever look at the attorney?

This attorney has been giving us a hard time, and we ought to show him that we really mean business?

Do they look at the nature of the -- the identity of the counsel of the defendant?

Do they ever look at that?

Mr. Roberts: --I'm -- I'm not aware of that.

I can't -- can't speak to the -- the fact that they would do that, Your Honor.

But here you've got in the ACCA, you're got not one previous violation for escape; you've got three violent felonies that you have to have.

And this was his third one with -- in addition to robbery and aggravated battery and in addition to distributing cocaine within a thousand feet of public housing.

And so we are not talking about--

Chief Justice Roberts: I understood your friend -- excuse me.

I understood your friend to say that you don't have a single example of failure to report leading to a violent confrontation.

Mr. Roberts: --That's -- that's also incorrect, Your Honor.

Two of the four cases that we cited in our -- in our brief, in our anecdotes, involved injury to innocent bystanders.

It's true we didn't highlight that in the parentheticals to those cases, but it's on page 19, the -- we cite various cases, and we also then go on to cite some articles just as an example.

Chief Justice Roberts: So you have -- so you have two examples.

Mr. Roberts: We have those two examples.

I mean, I haven't gone out and looked for other cases.

Those are just two out of the four that we cited.

Chief Justice Roberts: You haven't gone out and looked for other -- I'm sorry.

You haven't gone out and looked for other cases?

I thought you--

Mr. Roberts: In -- in addition to those, no.

I -- I went to get some sample cases.

I haven't gone to see if I could find more cases of those.

In addition, in the Massachusetts data there are -- there are two of the 18.

Admittedly, the sample is small in Massachusetts--

Justice Stevens: Mr. Roberts--

Mr. Roberts: --But it's 11 percent of the people violently resisted, and they were charged with assault and battery on a police officer.

I think that that's indicative of possible injury.

And in any case the question is--

Justice Stevens: --Mr. Roberts, have you had occasion to look at the -- the recent figures compiled by the Sentencing Commission?

Mr. Roberts: --Yes, Your Honor.

And I think that the Sentencing Commission data also supports -- although, again, the -- the sample size is small.

But the question here is: Is there a potential risk?

And what the sentencing data shows for the failure-to-report escapees is that 7.1--

Justice Stevens: Is the magnitude of the risk relevant?

Suppose it happens one out of 10,000 times or 99 out of 100 times.

Are they different cases?

Mr. Roberts: --We don't think that you should be looking at the statistics at -- at all, Your Honor.

But -- and so -- I mean, you know, that's our -- our fundamental point is that -- that the ACCA requires a potential risk.

The James case illustrates that you decide these cases without statistics.

Justice Kennedy: But the potential risk is based on an empirical assessment.

What's -- how can we make an empirical assessment without statistics?

Mr. Roberts: What James says is that you try to assess whether the degree of risk is comparable to the degree of risk presented by one of the enumerated offenses.

And, as you did in James--

Justice Kennedy: But isn't that's based on our experience because we have these cases; we've been lawyers; we know what they usually involve.

We have some sort of a--

Mr. Roberts: --Yes.

Justice Kennedy: --an instinct or a basis for making a judgment.

Mr. Roberts: Yes.

Justice Kennedy: If statistics can inform that, why ignore the statistics?

Mr. Roberts: I'm not saying that you should ignore the statistics, but the statistics are neither necessary nor dispositive.

And I don't think the statistics cast any doubt on the commonsense conclusion based on some of the factors I was talking about before, about why there's a potential for violence during--

Justice Souter: But your argument goes simply to whether there is potential and the statute says "serious potential".

Which gets us, it seems to me, to the point that Justice Kennedy is making, and that is, we've got to have something more than an instinctive belief that something bad might happen.

Mr. Roberts: --Well, I think James addresses that, Your Honor.

And James says that in deciding whether you have a serious potential, you look to the enumerated offenses and you determine if they can be comparable.

Justice Souter: They were taking as examples cases in which there was serious potential.

But in any event, you can't lose sight of the modifier.

It has got to be more than a so-called "potential risk".

Mr. Roberts: It has -- it has to be more than a potential.

It has to be serious in the sense that it's similar in degree, comparable in degree, to one of the enumerated offenses.

Justice Breyer: What one are we to do with -- Justice Stevens -- I think you should address the statistics in the sentencing report.

Mr. Roberts: Okay.

Justice Breyer: As I read them, they put together -- if you put together failing to report and failing to return, you get 160 cases in their sample.

And the number of those cases, whether you looked at the time when he had left or whether you looked at the time he was apprehended, in which force was involved is zero.

The number of cases in which injury was involved is zero.

The number of cases where he had a dangerous weapon is five.

Mr. Roberts: That's right.

And--

Justice Breyer: All right.

So now there we are.

Mr. Roberts: --It's a 3.1 percent -- 3.1 percent rate of having this dangerous weapon when he is being -- being taken into custody for -- for this offense.

And, you know, looking at the -- at the failure-to-report people, which is what this person is charged of, of those 42 people, that was 7.1 percent of those people that had a weapon.

And if one of those people had used that weapon, that would have been a 2.4 percent chance of injury.

Now, I'm saying the sample size is small, and this shows why it's dangerous to put too much weight on it.

But that would have been a 2.4 percent rate of injury.

And in Tennessee v. Garner, this Court cited a statistic in the 1970s about the risk of violence during burglary.

And this was household burglary, which you think might be likely--

Justice Breyer: You had every opportunity, when we have 160 cases out of the universe -- I guess I don't know what the universe is, but sampling proceeds through a small amount of cases.

And you could, of course, criticize the Sentencing Commission effort if you have the statistician or someone who will tell us that that sampling was not an appropriate method to proceed.

Is there any such person?

Mr. Roberts: --Well, no, Your Honor.

And I'm not criticizing it.

I'm saying that you have to take into account the sample size and you have to take into account that there are--

Justice Breyer: No.

Why -- that was my question.

Why take into account the sample size in the absence of a statistician who would tell us that the sample size is too small to reach the conclusion that the commission reaches?

Mr. Roberts: --Because my point is that -- take the 42 failure-to-report people, which is the offense here, okay.

Three of them -- three of those 42, had guns.

If one of those three had used the gun, that would have been a use of force, an instance of actual violence.

That percentage -- I'm not -- I'm not questioning the statistical validity of anything.

I'm taking it on its terms.

That's a 2.4 percent statistic there.

Justice Scalia: But they didn't use a gun.

Mr. Roberts: 3.8 percent in -- in household burglary.

So I just think that -- that the statistics are -- are very low, the risk of actual violence in burglary as well.

Chief Justice Roberts: --I'm sorry, counsel.

One of my colleagues was trying to ask a question.

Justice Scalia: The problem is you say if he had used a gun.

And he didn't use a gun.

I mean, to come up with your statistics on the basis of something that didn't happen is not using statistics; it's using imagination.

Mr. Roberts: Well, Your Honor, the statute again talks about the potential risk.

It doesn't talk about the actual use of force or the actual injury.

The actual use of force is covered by clause one--

Justice Stevens: Do you think those statistics show a greater danger than the dangers from drunk driving that were involved in Begay?

Mr. Roberts: --No.

But I think the drunk driving -- that what concerned the Court about drunk driving was that the crime is a strict liability crime.

It didn't involve deliberate conduct.

This conduct is purposeful.

Petitioner doesn't -- doesn't contest that.

And the situation here is a different kind of risk.

It's like the risk in burglary.

It's the deliberate commission of the crime despite the clear risk of an ensuing violent confrontation.

And so, the parallel, there really isn't a parallel to the strict liability crime there, where the injury -- the Court said in Begay there is a serious risk of injury.

The problem is that the crime is just not purposeful, so it doesn't show this willingness to harm others.

Justice Kennedy: Well, of course, that's the point.

Begay talked about purposeful violent conduct, not just purposeful conduct.

Mr. Roberts: Yes, Your Honor.

But you have to -- you have to talk about the violent conduct in context.

And what it said is that all these enumerated crimes are violent crimes.

But burglary is violent not because the violence is some element of the offense.

There is nothing about the elements of the offense that's violent.

What makes burglary violent is the fact that the offender deliberately commits it, even though he knows it could trigger this violent confrontation.

Justice Ginsburg: The distinction between this crime and crimes in general is that this person has shown that he or she doesn't want to go back into custody, is that--

Mr. Roberts: I think it's -- it's numerous things, but the avoidance of custody is sort of a categorical difference between this and all the other crimes, Your Honor.

It's an element of this crime that he is doing that.

That also factors into the fact that the risk of violence during recapture is going to be greater than the risk of violence in apprehending an ordinary criminal for several different related reasons.

One--

Justice Ginsburg: --There is -- there was, this case comes to us from the Seventh Circuit, right?

Mr. Roberts: --Yes.

Justice Ginsburg: And am I correct in understanding that since this case was decided, the Seventh Circuit has changed its position and has gone the other way?

Mr. Roberts: Yes.

The Seventh Circuit thought that applying the purposeful, violent and aggressive requirement of Begay required a different result because it -- it thought that it meant that the crime had to involve violent conduct itself; and it didn't appreciate the point I was making before, that burglary doesn't involve that violent conduct itself, and that burglary is violent because of the prospect of the violent confrontation.

And so, that's the -- that's what led the Seventh Circuit astray the second time around.

But it--

Justice Ginsburg: The first time around, didn't one of the judges suggest that there ought to be a study comparing the frequency of violence in escapes from custody to the frequency of violence in failure to report, and isn't that what we now have from the Sentencing Commission?

Mr. Roberts: --Yes.

They did ask for -- for statistics.

But I would stress again why we think that -- that looking to statistics as some kind of a requirement is, you know, both perilous and not required by the statute: One, because the statute requires just potential risk, not actual injury.

Two, because these data are just generally not going to be available.

And you don't have even the baseline for the other crimes, the enumerated crimes, really to compare it to.

And so the result, if you start looking around for statistics and saying we need these statistics to do it, is that virtually no crimes are going to qualify under the residual clause.

And obviously, that isn't what Congress intended when it adopted this broad residual clause.

Justice Souter: May I -- may I -- may I ask you just to get some sense about what will qualify?

I mean, I think we -- we all agree that the risk of violence in arrest is probably going to vary depending on -- categorically depending on the crimes.

I think I would probably agree that white-collar crimes are not likely to -- to carry a very high risk of violence on arrest.

So I -- there's one category.

Can you think of others, other categories outside of white-collar crime, that are going to have a lower risk of arrest than, say, the failure-to-report category?

Mr. Roberts: What -- we wouldn't sweep in any crimes based on arrest if the crimes don't themselves involve as part of the crime the avoidance of custody, because that shows the close link between the crime that I was explaining before.

That's sort of the categorical difference, although I would agree with you, certainly, that in white-collar crimes in many cases the offender is going to submit voluntarily to custody; they are not even going to come after him.

And he hasn't done anything to show his likelihood to resist in any way, and so there is going to be a significantly less connection there.

Violent crimes where you might think that there is going to be a higher incidence are going to be covered based on the violence of the crime, anyway.

Justice Souter: They are going to be in category one.

Mr. Roberts: Right.

They are going to be covered already.

Justice Souter: Yes.

Mr. Roberts: So you know, one, we think there is a categorical difference between this kind of crime which has as an element avoidance custody, and all of the ordinary crimes that you're talking about.

But even if you go and set that aside and don't draw that categorical line, and you look at, well, what's the risk of violence, here what you've got is you've got you know that they are going to come after him; he knows they are coming; he is already deliberately, he has already indicated his unwillingness to submit to custody; they know that; so they come prepared for resistance.

And in Illinois he is by definition a recidivist felon if he has committed this crime, and those are characteristics that are particularly indicative of dangerousness.

So we think this sets it quite apart from other crimes in terms of the risk of violence that -- that we are talking about.

Justice Alito: Do you happen to know how many additional crimes are likely to raise issues like this under the residual clause?

Mr. Roberts: Not -- you know, how many could be covered altogether?

Or--

Justice Alito: Well after we decide this case, how many more cases like this do you anticipate that we're -- we may get under ACCA?

Mr. Roberts: --Well I'm hopeful that the Court won't have to decide too many other cases with the guidance that will be given by Begay and James and now -- and now this case.

So, you know, it has been -- this case, the Court took; it had been holding the case for Begay and it took it rather than vacating and remanding.

So it's not as if this is a case where some conflict has developed after the Court was taken to resolve.

We think--

Justice Stevens: Mr. Roberts, I'm sorry; do you think a soldier who is AWOL commits a violent crime?

Mr. Roberts: --I think a soldier that goes AWOL -- I mean, the soldier that goes AWOL does probably invite somebody to come after them.

It's a little bit harder case here because he is not somebody who is a recidivist felon.

Justice Stevens: Well, he has to be a recidivist.

This is one of three offenses for an aggravated sentence.

You never have the isolated question.

Mr. Roberts: Well, when he did it first -- he could have done it in his first crime.

So you don't know when did this that he had the other two counting under the ACCA.

Justice Stevens: It would only be a crime if it's his third crime and not if it's his first.

Mr. Roberts: Well, you don't look to the individual person; we're looking to the ordinary case and we know from the elements here that you have a recidivist -- you have a recidivist felon.

I do think that there is a risk of -- you know, there is a risk of violent confrontation when a soldier goes AWOL, Your Honor.

Justice Stevens: Sure.

Mr. Roberts: I just don't think it's quite as -- as clear a risk as it is -- as it is here, but you know, I would have to say that there is some risk.

Yes.

The -- if I could just address something that Justice Kennedy had raised before about statutes unlike Illinois's statute that has a -- that generally prohibit escape.

One -- one possible problem that could arise from a holding that offenses like failure to report are not violent felonies is that a statute that broadly covered escape, the result would be that jail break escapes would not be violent felonies under that statute, because the statistics that are out there suggest that 89 percent of all escapes are either walkaways or failure to report.

And so unless the charging document specifically charged it as a jail break escape, then the general -- something that was charged under the general escape statute would not qualify for coverage under the ACCA.

And aside from that, if the Court has no further questions, we could ask that the judgment of the Court of Appeals be affirmed.

Chief Justice Roberts: Thank you, counsel.

Mr. Hochman, you have 11 minutes remaining.

REBUTTAL ARGUMENT OF ROBERT N. HOCHMAN ON BEHALF OF THE PETITIONER

Mr. Hochman: Thank you, Mr. Chief Justice.

Just to begin with where Mr. Roberts left off, most states in fact do distinguish in their statutes between failure to report and prison break escapes.

These are cited by both parties in the briefs and you can review them, but there are clear distinctions in the law.

So the risk that prison break escape is somehow going to escape -- escape, if you will, from the scope of the statute as a result of a reversal is -- is unfounded.

Just to make a couple of things clear.

First of all with respect to the sentence, Justice Ginsburg, the -- he was sentenced to six additional months but it was stayed as -- as was mentioned; and so when I was answering that question he did not serve additional time as a result of that, and that's what I was referring to.

If you look at the sentencing transcript, that's where the indication is that he did in fact serve out four additional weekends.

It's not noted in the -- it's not noted as an additional sentence, punishment for it.

Justice Scalia: What was he serving those weekends for?

What was the crime?

Mr. Hochman: That was the armed robbery -- the robbery crime, not armed robbery, the robbery crime.

That's the first predicate offense here.

Justice Scalia: He just gets weekends for that?

How many weekends?

Mr. Hochman: 11.

Justice Scalia: Pretty good deal.

[Laughter]

Mr. Hochman: Second, with respect to the anecdotal cases, you know, we looked at them; you could look at them.

If there are two instances where there are injury -- there are two instances where there are injury, I didn't catch that, and I apologize if I misspoke.

But it doesn't change the core of the problem, which is that the anecdotal evidence produced -- and that dates back all the way to 1977, they looked back at cases -- they are covering on extraordinary broad period of time in looking for this stuff, and there is just not -- there is not a lot there, if there is anything there at all, with respect to injury associated with failure to report.

On the core substance of their argument, Mr. Roberts emphasized that failing to report has as an element avoiding arrest, avoiding confinement.

I don't actually think that's right.

There is nothing about concealment.

There is nothing about hiding.

There is nothing about seeking to escape from a police officer who comes to bring you back.

He just didn't go; and in fact we don't -- the record doesn't explain why; but you know, it was the November to December period.

It's the holiday period of time for people when they, obviously, for a variety of reasons might prefer to spend time with their families.

Whatever the reason was--

Chief Justice Roberts: Statistics show that the number of robberies increases during the holiday season.

He just needed to get ----

[Laughter]

Justice Ginsburg: I thought he did this four times.

I thought there were four.

Mr. Hochman: --There were four periods from the end of November, four consecutive weekends from the end of November into December.

There is no indication, Mr. Chief Justice, that any further robberies were committed during that period.

But the point is--

Chief Justice Roberts: Well, there is no indication he meant to spend time with his family over the holidays.

[Laughter]

Mr. Hochman: --Not in the record.

It's absolutely not in the record, Your Honor.

No doubt.

But the point is that while Mr. Roberts stood up and said it's about avoiding arrest; it's about concealing yourself; it's the sort of person that's prone to react violently; the fact is, that's speculation; and everything we know from the sentencing commission and from their own efforts suggests the contrary.

And indeed even the dangerous weapon findings of the sentencing commission, I think, should be excluded, because under the guidelines, the mere possession of a weapon is not a violent felony.

A felon in possession is not -- cannot be a predicate offense under the guidelines.

And so the mere possession of a weapon, which is all you have on those five instances -- by the way, the fact that they did not double-count them as also including four suggests they weren't used in any way, they weren't brandished in any way.

It's just not there.

There is really nothing there to support the Government's speculation.

If there are no further questions, thank you, Your Honors.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.