SYKES v. UNITED STATES

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 09–11311

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MARCUS SYKES, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.

It is a federal crime for a convicted felon to be in unlawful possession of a firearm. 18 U. S. C. §922(g)(1). The ordinary maximum sentence for that crime is 10 years of imprisonment. §924(a)(2). If, however, when the unlawful possession occurred, the felon had three previous convictions for a violent felony or serious drug offense, the punishment is increased to a minimum term of 15 years. §924(e). The instant case is another in a series in which the Court is called upon to interpret §924(e) to determine if a particular previous conviction was for a “violent felony,” as that term is used in the punishment enhancement statute. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009).

In this case the previous conviction in question is under an Indiana statute that makes it a criminal offense whenever the driver of a vehicle knowingly or intentionally “flees from a law enforcement officer.” Ind. Code §35–44– 3–3 (2004). The relevant text of the statute is set out in the discussion below. For the reasons explained, the vehicle flight that the statute proscribes is a violent felony as the federal statute uses that term.

I

Petitioner Marcus Sykes pleaded guilty to being a felon in possession of a firearm, 18 U. S. C. §922(g)(1), in connection with an attempted robbery of two people at gunpoint. Sykes had previous convictions for at least three felonies. On two separate occasions Sykes used a firearm to commit robbery, in one case to rob a man of his $200 wristwatch and in another to rob a woman of her purse.

His third prior felony is the one of concern here. Sykes was convicted for vehicle flight, in violation of Indiana’s “resisting law enforcement” law. Ind. Code §35–44–3–3. That law provides:

“(a) A person who knowingly or intentionally:

“(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;

“(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or

“(3) flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop; “commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).

“(b) The offense under subsection (a) is a:

“(1) Class D felony if:

“(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or

“(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person; (2) Class C felony if, while committing any offense described in subsection (a), the person operates a vehicle in a manner that causes serious bodily injury to another person; and

(3) Class B felony if, while committing any offense described in subsection (a), the person operates a vehicle in a manner that causes the death of another person.”

Here, as will be further explained, Sykes used a vehicle to flee after an officer ordered him to stop, which was, as the statute provides, a class D felony. The Court of Appeals of Indiana has interpreted the crime of vehicle flight to require “a knowing attempt to escape law enforcement.” Woodward v. State, 770 N. E. 2d 897, 901 (2002) (internal quotation marks omitted). Woodward involved a driver who repeatedly flashed his bright lights and failed to obey traffic signals. Id., at 898. When an officer activated his emergency equipment, the defendant became “aware . . . that [the officer] wanted him to pull his vehicle over,” but instead drove for a mile without “stopping, slowing, or otherwise acknowledging” the officer because, he later testified, he “was ‘trying to rationalize why [he] would be pulled over.’ ” Id., at 898, 901. Though the defendant later claimed that he was also seeking a “well-lighted place to stop where there would be someone who knew him,” id., at 901, his actions suggested otherwise. He passed two gas stations, a food outlet store, and a McDonald’s before pulling over. When he got out of the car, he began to shout profanities at the pursuing officer. Ibid. By that time, the officer had called for backup and exited his own vehicle with his gun drawn. Id., at 898. In answering the defendant’s challenge to the sufficiency of the above evidence, the Indiana court held that because he knew that a police officer sought to stop him, the defendant could not “choose the location of the stop” and insist on completing the stop “on his own terms,” as he had done, “without adequate justification,” which he lacked. Id., at 901–902.

In the instant case a report prepared for Sykes’ federal sentencing describes the details of the Indiana crime. After observing Sykes driving without using needed headlights, police activated their emergency equipment for a traffic stop. Sykes did not stop. A chase ensued. Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence, and struck the rear of a house. Then he fled on foot. He was found only with the aid of a police dog.

The District Court decided that his three prior convictions, including the one for violating the prohibition on vehicle flight in subsection (b)(1)(A) of the Indiana statute just discussed, were violent felonies for purposes of §924(e) and sentenced Sykes to 188 months of imprisonment. On appeal Sykes conceded that his two prior robbery convictions were violent felonies. He did not dispute that his vehicle flight offense was a felony, but he did argue that it was not violent. The Court of Appeals for the Seventh Circuit affirmed. 598 F. 3d 334 (2010). The court’s opinion was consistent with the rulings of the Courts of Appeals in the First, Fifth, Sixth, and Tenth Circuits. Powell v. United States, 430 F. 3d 490 (CA1 2005) (per curiam); United States v. Harrimon, 568 F. 3d 531, 534–537 (CA5 2009); United States v. LaCasse, 567 F. 3d 763, 765–767 (CA6 2009); United States v. McConnell, 605 F. 3d 822, 827–830 (CA10 2010) (finding the flight to be a “crime of violence” under the “nearly identical” §4B1.2(a)(2) of the United States Sentencing Guidelines). It was in conflict with a ruling by a Court of Appeals for the Eleventh Circuit in United States v. Harrison, 558 F. 3d 1280, 1291– 1296 (2009), and at least in tension, if not in conflict, with the reasoning of the Court of Appeals for the Eighth Circuit in United States v. Tyler, 580 F. 3d 722, 724–726 (2009), and for the Ninth Circuit in United States v. Kelly, 422 F. 3d 889, 892–897 (2005), United States v. Jennings, 515 F. 3d 980, 992–993 (2008), and United States v. Peterson, No. 07–30465, 2009 WL 3437834, *1 (Oct. 27, 2009). The writ of certiorari, 561 U. S. ___ (2010), allows this Court to address the conflict.

II

In determining whether an offense is a violent felony, this Court has explained, “we employ the categorical approach . . . . 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. 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.” James, 550 U. S., at 202 (internal quotation marks and citations omitted); see also Taylor v. United States, 495 U. S. 575, 599–602 (1990). So while there may be little doubt that the circumstances of the flight in Sykes’ own case were violent, the question is whether §35–44–3–3 of the Indiana Code, as a categorical matter, is a violent felony.

Under 18 U. S. C. §924(e)(2)(B), an offense is deemed a violent felony if it is a crime punishable by more than one year of imprisonment 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.” Resisting law enforcement through felonious vehicle flight does not meet the requirements of clause (i), and it is not among the specific offenses named in clause (ii). Thus, it is violent under this statutory scheme only if it fits within the so-called residual provision of clause (ii). To be a violent crime, it must be an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

The question, then, is whether Indiana’s prohibition on flight from an officer by driving a vehicle—the violation of Indiana law for which Sykes sustained his earlier conviction—falls within the residual clause because, as a categorical matter, it presents a serious potential risk of physical injury to another. The offenses enumerated in §924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes involving use of explosives—provide guidance in making this determination. For instance, a crime involves the requisite risk when “the risk posed by [the crime in question] is comparable to that posed by its closest analog among the enumerated offenses.” James, 550 U. S., at 203 (explaining that attempted burglary poses risks akin to that of completed burglary).

When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent—even lethal—potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. This similarity is a beginning point in establishing that vehicle flight presents a serious potential risk of physical injury to another.

Another consideration is a comparison to the crime of burglary. Burglary is dangerous because it can end in confrontation leading to violence. Id., at 200. The same is true of vehicle flight, but to an even greater degree. The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide. In Sykes’ case, officers pursued a man with two prior violent felony convictions and marijuana in his possession. In other cases officers may discover more about the violent potential of the fleeing suspect by running a check on the license plate or by recognizing the fugitive as a convicted felon. See, e.g., Arizona v. Gant, 556 U. S. ___, ___ (2009) (slip op., at 2).

Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended. Scott v. Harris, 550 U. S. 372, 385 (2007), rejected the possibility that police could eliminate the danger from a vehicle flight by giving up the chase because the perpetrator “might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.” And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest. Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.

Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates. And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture.

Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another. See post, at 5– 6 (THOMAS, J., concurring in judgment); see also post, at 6–7 (listing Indiana cases addressing ordinary intentional vehicle flight and noting the high-risk conduct that those convictions involved).

Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony. See Chambers, 555 U. S., at 129 (explaining that statistical evidence sometimes “helps provide a conclusive . . . answer” concerning the risks that crimes present). As JUSTICE THOMAS explains, chase-related crashes kill more than 100 nonsuspects every year. See post, at 4–5. Injury rates are much higher. Studies show that between 18% and 41% of chases involve crashes, which always carry a risk of injury, and that between 4% and 17% of all chases end in injury. See ibid.

A 2008 International Association of Chiefs of Police (IACP) study examined 7,737 police pursuits reported by 56 agencies in 30 States during 2001–2007. C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 54. Those pursuits, the study found, resulted in 313 injuries to police and bystanders, a rate of slightly over 4 injuries to these nonsuspects per 100 pursuits. Id., at 57. Given that police may be least likely to pursue suspects where the dangers to bystanders are greatest— i.e., when flights occur at extraordinarily high speeds— it is possible that risks associated with vehicle flight are even higher.

Those risks may outstrip the dangers of at least two offenses enumerated in 18 U. S. C. §924(e)(2)(B)(ii). According to a study by the Department of Justice, approximately 3.7 million burglaries occurred on average each year in the United States between 2003 and 2007. Bureau of Justice Statistics, S. Catalano, Victimization during Household Burglary 1 (Sept. 2010). Those burglaries resulted in an annual average of approximately 118,000 injuries, or 3.2 injuries for every 100 burglaries. Id., at 9– 10. That risk level is 20% lower than that which the IACP found for vehicle pursuits.

The U. S. Fire Administration (USFA) maintains the world’s largest data bank on fires. It secures participation from over one-third of U. S. fire departments. It reports an estimated 38,400 arsons in 2008. Those fires resulted in an estimated 1,255 injuries, or 3.3 injuries per 100 arsons. USFA, Methodology Used in the Development of the Topical Fire Research Series, http://www.usfa.dhs.gov/ downloads/pdf/tfrs/methodology.pdf (all Internet materials as visited June 3, 2011, and available in Clerk of Court’s case file); USFA, Nonresidential Building Intentional Fire Trends (Dec. 2010), http://www.usfa.dhs.gov/downloads/ pdf/statistics/nonres_bldg_intentional_fire_trends.pdf; USFA, Residential Building Causes, http://www.usfa.dhs.gov/ downloads/xls/estimates/res_bldg_fire_cause.xlsx; USFA Residential and Nonresidential Fire Estimate Summaries, 2003–2009, http://www.usfa.dhs.gov/statistics/estimates/ index.shtm. That risk level is about 20% lower than that reported by the IACP for vehicle flight. III

Sykes argues that, regardless of risk level, typical vehicle flights do not involve the kinds of dangers that the Armed Career Criminal Act’s (ACCA) residual clause demands. In his view this Court’s decisions in Begay and Chambers require ACCA predicates to be purposeful, violent, and aggressive in ways that vehicle flight is not. Sykes, in taking this position, overreads the opinions of this Court.

ACCA limits the residual clause to crimes “typically committed by those whom one normally labels ‘armed career criminals,’ ” that is, crimes that “show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 146. In general, levels of risk divide crimes that qualify from those that do not. See, e.g., James, 550 U. S. 192 (finding attempted burglary risky enough to qualify). Chambers is no exception. 555 U. S., at ___–___ (slip op., at 5–6) (explaining that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender”).

The sole decision of this Court concerning the reach of ACCA’s residual clause in which risk was not the dispositive factor is Begay, which held that driving under the influence (DUI) is not an ACCA predicate. There, the Court stated that DUI is not purposeful, violent, and aggressive. 553 U. S., at 145–148. But the Court also gave a more specific reason for its holding. “[T]he conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate,” id., at 145 (analogizing DUI to strict-liability, negligence, and recklessness crimes). By contrast, the Indiana statute at issue here has a stringent mens rea requirement. Violators must act “knowingly or intentionally.” Ind. Code §35–44– 3–3(a); see Woodward, 770 N. E. 2d, at 901 (construing the statute to require “a knowing attempt to escape law enforcement” (internal quotation marks omitted)).

The phrase “purposeful, violent, and aggressive” has no precise textual link to the residual clause, which requires that an ACCA predicate “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). The Begay phrase is an addition to the statutory text. In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same. As between the two inquiries, risk levels provide a categorical and manageable standard that suffices to resolve the case before us.

Begay involved a crime akin to strict liability, negligence, and recklessness crimes; and the purposeful, violent, and aggressive formulation was used in that case to explain the result. The felony at issue here is not a strict liability, negligence, or recklessness crime and because it is, for the reasons stated and as a categorical matter, similar in risk to the listed crimes, it is a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii).

IV

Sykes finds it significant that his flight conviction was not under the Indiana provision that criminalizes flight in which the offender “operates a vehicle in a manner that creates a substantial risk of bodily injury to another person.” Ind. Code §35–44–3–3(b)(1)(B). In structuring its laws in this way, Sykes contends, Indiana confirmed that it did not intend subsection (b)(1)(A)’s general prohibition on vehicle flight to encompass the particular class of vehicle flights that subsection (b)(1)(B) reaches.

Sykes’ argument is unconvincing. Indiana treats violations of subsections (b)(1)(A) and (b)(1)(B) as crimes of the same magnitude. They are both class D felonies, and both carry terms of between six months and three years, Ind. Code §35–50–2–7(a). The distinction between the provisions is their relationship to subsection (a), which prohibits, among other acts, much conduct in which a person “(1) forcibly resists, obstructs, or interferes with a law enforcement officer . . . ; (2) forcibly resists, obstructs, or interferes with the authorized service or execution of . . . process . . . ; or (3) flees from a law enforcement officer.” §35–44–3–3(a). Subsection (b)(1)(A) only involves the conduct barred by subsection (a)(3)—flight—which, it states, is a felony whenever committed with a vehicle. Under subsection (b)(1)(B), by contrast, any of the offenses in subsection (a) is a felony if the offender commits it while using a vehicle to create a substantial risk of bodily injury to another. Taken together, the statutory incentives always favor prosecuting vehicle flights under subsection (b)(1)(A) rather than subsection (b)(1)(B). They reflect a judgment that some offenses in subsection (a) can be committed without a vehicle or without creating substantial risks. They reflect the further judgment that this is not so for vehicle flights.

Serious and substantial risks are an inherent part of vehicle flight. Under subsection (b)(1)(A), they need not be proved separately to secure a conviction equal in magnitude to those available for other forms of resisting law enforcement with a vehicle that involve similar risks.

In other words, the “similarity in punishment for these related, overlapping offenses suggests that [subsection (b)(1)(A)] is the rough equivalent of one type of [subsection (b)(1)(B)] violation.” Post, at 10 (THOMAS, J., concurring in judgment); see also ibid., n. 2. By adding subsection (b)(1)(A) in 1998, the Indiana Legislature determined that subsection (b)(1)(A) by itself sufficed as a basis for the punishments available under subsection (b)(1)(B). Post, at 10–11; see also post, at 10, n. 2 (identifying reckless endangerment statutes with similar structures); cf. post, at 12 (explaining that because in most cases Indiana does not “specify what additional punishment is warranted when [a] crime kills or injures,” its provisions creating higher penalties for vehicle flights that do so reflect a judgment that these flights are “inherently risky”).

The Government would go further and deem it irrelevant under the residual clause whether a crime is a lesser included offense even in cases where that offense carries a less severe penalty than the offense that includes it. As the above discussion indicates, however, the case at hand does not present the occasion to decide that question.

V

Congress chose to frame ACCA in general and qualitative, rather than encyclopedic, terms. It could have defined violent felonies by compiling a list of specific covered offenses. Under the principle that all are deemed to know the law, every armed felon would then be assumed to know which of his prior felonies could serve to increase his sentence. Given that ACCA “requires judges to make sometimes difficult evaluations of the risks posed by different offenses,” this approach could simplify adjudications for judges in some cases. James, 550 U. S., at 210, n. 6.

Congress instead stated a normative principle. The residual clause imposes enhanced punishment for unlawful possession of the firearm when the relevant prior offenses involved a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving use of explosives. The provision instructs potential recidivists regarding the applicable sentencing regime if they again transgress. It states an intelligible principle and provides guidance that allows a person to “conform his or her conduct to the law.” Chicago v. Morales, 527 U. S. 41, 58 (1999) (plurality opinion). Although this approach may at times be more difficult for courts to implement, it is within congressional power to enact. See James, supra, at 210, n. 6 (giving examples of federal laws similar to ACCA’s residual clause); see also 18 U. S. C. §1031(b)(2) (“conscious or reckless risk of serious personal injury”); §2118(e)(3) (“risk of death, significant physical pain . . .”); §2246(4) (“substantial risk of death, unconsciousness, extreme physical pain . . .”); §2258B(b)(2)(B) (2006 ed., Supp. III) (“substantial risk of causing physical injury”); §3286(b) (2006 ed.) (“forseeable risk of . . . death or serious bodily injury to another person” (footnote omitted)); §4243(d) (“substantial risk of bodily injury to another person”); §§4246(a), (d), (d)(2), (e), (e)(1), (e)(2), (f), (g) (same); §4247(c)(4)(C) (same).

VI

Felony vehicle flight is a violent felony for purposes of ACCA. The judgment of the Court of Appeals is Affirmed.

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
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No. 09–11311

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MARCUS SYKES, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE THOMAS, concurring in the judgment.

I agree with the Court that the Indiana crime of intentional vehicular flight, Ind. Code §35–44–3–3(b)(1)(A) (2004), is a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii). The majority also correctly refuses to apply the “ purposeful, violent, and aggressive ” test created in Begay v. United States, 553 U. S. 137, 145 (2008). However, the majority errs by implying that the “purposeful, violent, and aggressive” test may still apply to offenses “akin to strict liability, negligence, and recklessness crimes.” Ante, at 11.

The error in imposing that test, which does not appear in ACCA, is well catalogued. See, e.g., Begay, 553 U. S., at 150–152 (SCALIA, J., concurring in judgment); id., at 158– 159 (ALITO, J., dissenting); ante, at 11 (finding “no precise textual link” in the statute). I agree with JUSTICES SCALIA and KAGAN that the majority’s partial retreat from Begay only further muddies ACCA’s residual clause. Post, at 1 (SCALIA, J., dissenting); post, at 1, n. 1 (KAGAN, J., dissenting).

The only question here is whether, in the ordinary case, using a vehicle to knowingly flee from the police after being ordered to stop “involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). I believe that it does. Therefore I concur in the judgment. I

Under Indiana law, intentional vehicular flight is a felony. Any person who “knowingly or intentionally . . . flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop” commits a misdemeanor. Ind. Code §35–44–3–3(a)(3). If the person “uses a vehicle” to flee, however, the offense is elevated to a class D felony. §3(b)(1)(A). That felony, the parties agree, qualifies as a “violent felony” under ACCA if it is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).

As explained below, Indiana’s crime of intentional vehicular flight “involves conduct that presents a serious potential risk of physical injury to another.” Ibid. The elements of §3(b)(1)(A), compared to those of the enumerated ACCA offense of burglary, suggest that an ordinary violation of §3(b)(1)(A) is far riskier than an ordinary burglary. Statistics, common experience, and Indiana cases support this conclusion.

A

The specific crimes Congress listed as “violent felon[ies]” in ACCA—arson, extortion, burglary, and use of explosives—provide a “baseline against which to measure the degree of risk” that a nonenumerated offense must present in order to qualify as a violent felony. James v. United States, 550 U. S. 192, 208 (2007); see also ante, at 6. Burglary, for instance, sets a low baseline level for risk. Its elements are “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U. S. 575, 599 (1990). As this Court has recognized, the risk of burglary is in “the possibility that an innocent person might appear while the crime is in progress” and the danger inherent in such a “face-to-face confrontation.” James, 550 U. S., at 203. The chance of an interruption or confrontation in an ordinary burglary is, of course, quite small; burglars generally plan and commit their crimes with an eye toward avoiding detection. Nevertheless, that small chance sufficed for Congress to list burglary as a “violent felony,” and for this Court to hold that attempted burglary also qualifies. See id., at 195.

Compared to burglary, the elements of intentional vehicular flight describe conduct that ordinarily poses greater potential risk. Although interruption and confrontation are quite rare for burglary, every §3(a)(3) flight is committed in the presence of a police officer. Every §3(a)(3) flight also involves a perpetrator acting in knowing defiance of an officer’s direct order to stop, “which is a clear challenge to the officer’s authority and typically initiates pursuit.” United States v. Harrimon, 568 F. 3d 531, 535 (CA5 2009); see also United States v. Spells, 537 F. 3d 743, 752 (CA7 2008) (“Taking flight calls the officer to give chase, and aside from any accompanying risk to pedestrians and other motorists, such flight dares the officer to needlessly endanger himself in pursuit”). Finally, in every §3(b)(1)(A) flight, the perpetrator is armed with what can be a deadly weapon: a vehicle. See, e.g., Scott v. Harris, 550 U. S. 372, 383 (2007) (noting that “the threat posed by the flight on foot of an unarmed suspect” was not “even remotely comparable to the extreme danger to human life” posed by that vehicular chase); United States v. Kendrick, 423 F. 3d 803, 809 (CA8 2005) (“[T]he dangerous circumstances surrounding a person’s attempt to flee from law enforcement are compounded by the person’s operation of a motor vehicle”); United States v. Aceves-Rosales, 832 F. 2d 1155, 1157 (CA9 1987) (per curiam) (“It is indisputable that an automobile . . . can be used as a deadly weapon”).

In sum, every violation of §3(b)(1)(A) involves a defiant suspect with a dangerous weapon committing a felony in front of a police officer. Based on its elements, the potential risk of intentional vehicular flight resembles “armed burglary in the presence of a security guard” more than simple burglary. Section 3(b)(1)(A) outlaws conduct with much more risk—a far greater likelihood of confrontation with police and a greater chance of violence in that confrontation—than burglary. It follows that the “the conduct encompassed by the elements of the offense, in the ordinary case,” poses a greater risk of harm than the enumerated offense of burglary. James, supra, at 208.

B

Common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight. Cf. Chambers v. United States, 555 U. S. 122, 129 (2009) (statistical evidence, though not always necessary, “strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury”). Data from the National Highway Traffic Safety Administration shows that approximately 100 police officers, pedestrians, and occupants of other cars are killed each year in chaserelated crashes. National Center for Statistics & Analysis, Fatalities in Motor Vehicle Traffic Crashes Involving Police in Pursuit 37–56 (2010) (reporting 1,269 such deaths between 2000 and 2009).

The number injured must be much higher. Many thousands of police chases occur every year. In California and Pennsylvania, which collect statewide pursuit data, police were involved in a combined total of more than 8,700 chases in 2007 alone. See Pennsylvania State Police Bureau of Research & Development, Police Pursuits 2007 Annual Report; Report to the Legislature, Senate Bill 719, California Police Pursuits (March 2008); see also Schultz, Hudak, & Alpert, Emergency Driving and Pursuits, FBI Law Enforcement Bulletin, Apr. 2009, pp. 1, 4 (surveying more than 2,100 police officers and finding an average of just over one pursuit per officer each year). And up to 41% of all chases involve a crash, which always carries some risk of injury. Wells & Falcone, Research on Police Pursuits: Advantages of Multiple Data Collection Strategies, 20 Policing: Int’l J. Police Strategies & Management 729, 740 (1997) (citing nine studies, each showing a crash rate between 18% and 41%). Indeed, studies show that 4% to 17% of all chases actually cause injury. Ibid.; see also C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 57 (2008) (finding that 23.5% of flights involve a crash, and 9% of flights cause injury).

An International Association of Chiefs of Police study of 7,737 pursuits across 30 States found 900 injuries, of which 313 were to police or bystanders. Ibid. As the majority observes, that injury rate is just over 4 injuries per 100 chases, excluding injuries to the perpetrator. Ante, at 8. By comparison, the injury rate for burglary and arson is around 3 injuries per 100 crimes, or less. Ante, at 9; see also Harrimon, supra, at 537 (citing similar arson statistics, showing between 1 and 3 injuries per 100 fires, apparently including injuries to perpetrators). Statistics support what logic suggests: The ordinary case of intentional vehicular flight is risky, indeed, more so than some offenses listed in ACCA.

These statistical risks of intentional flight merely reinforce common sense and real world experience. See, e.g., Carroll & Woomer, Family Killed in Visalia Crash After Man Flees From Sheriff’s Deputy, Visalia Times-Delta, Apr. 2–3, 2011, p. 1A; Broward & Butler, Fleeing Car Hits Another; 5 People Injured, Florida Times-Union, Mar. 15, 2011, p. C2; Klopott, Crash During Police Chase Kills Father of Four, Washington Examiner, Nov. 22, 2010, p. 4; Fenton, Woman Killed During Pursuit Identified, Baltimore Sun, July 27, 2010, p. 4A (reporting that a woman was killed when a fleeing suspect crashed into her car); Rein & Hohmann, Crashes, Injuries Left in Wake of Pr. George’s-Baltimore Chase, Washington Post, Nov. 22, 2009, p. C3 (noting injuries to two police officers and an innocent motorist).

Also well known are the lawsuits that result from these chases. See, e.g., Bowes, Claim Settled in Death of Officer, Richmond Times-Dispatch, Mar. 28, 2007, p. B1 ($2.35 million settlement for the family of an off-duty police officer killed in a head-on collision with a police car chasing a suspect); Cuculiansky, Stop-Stick Death Suit Settled, Daytona Beach News-Journal, Aug. 4, 2010, p. 1C ($100,000 settlement for the family of a man killed by a fleeing vehicle); Ostendorff, Woman Sues City Police, Asheville Citizen-Times, June 17, 2010, p. A1 (woman sued police after they fired 10 shots into the fleeing car she was riding in, wounding her); Gates, $375,000 Awarded in Crash Lawsuit, Jackson, Miss., ClarionLedger, May 9, 2010, p. 1B (noting four police-chase lawsuits won against the city in a single year and describing an opinion awarding $375,000 to an injured third-party); Pallasch, $17.5 Million Awarded to Motorist Disabled in Police Chase, Chicago Sun Times, Mar. 23, 2005, p. 18. In the real world, everyone—police, citizens, and suspects who elect to flee—knows that vehicular flight is dangerous.

C

Convictions under §3(b)(1)(A) further support this conclusion. See, e.g., Mason v. State, 944 N. E. 2d 68, 69–70 (Ind. App. 2011) (defendant suddenly drove his car toward police officers, who then fired at him; he crashed into other cars and was Tasered); Jones v. State, 938 N. E. 2d 1248, 1253 (Ind. App. 2010) (defendant accelerated and crashed into a police car); Haney v. State, 920 N. E. 2d 818, 2010 WL 305813, *1 (Ind. App., Jan. 27, 2010) (defendant, who had been speeding, drove into a yard, between two houses, and then into a field where he crashed into a tree); Hape v. State, 903 N. E. 2d 977, 984, 985, n. 4, 994 (Ind. App. 2009) (defendant fled for 40 minutes, at times in excess of 100 mph and into oncoming traffic; police fired at his truck at least 20 times; he was captured only after driving into a flooded area); Smith v. State, 908 N. E. 2d 1280, 2009 WL 1766526, *1 (Ind. App., June 23, 2009) (defendant led police on a stop-and-go chase for five minutes, which included traveling at 30 mph through a stop sign and crowded parking lot; he ultimately had to be chemical sprayed); Butler v. State, 912 N. E. 2d 449, 2009 WL 2706123, *1 (Ind. App., Aug. 28, 2009) (defendant led a chase at speeds up to 80 mph, swerved into the path of an oncoming vehicle, and eventually jumped from the car while it was still moving); Amore v. State, 884 N. E. 2d 434, 2008 WL 1032611, *1 (Ind. App., Apr. 11, 2008) (defendant led police on a 15-mile chase at speeds up to 125 mph, ending in a crash); Johnson v. State, 879 N. E. 2d 24, 2008 WL 131195, *1 (Ind. App., Jan. 14, 2008) (defendant led a chase at 65–70 mph at 1 a.m. with no tail lights, crashed his car, and caused a police car to crash); Tinder v. State, 881 N. E. 2d 735, 2008 WL 540772, *1, *3 (Ind. App., Feb. 29, 2008) (rev’g on other grounds) (defendant led a 12:30 a.m. chase, which ended when he ran off the road, crashed through a corn silo, and hit a fence). Although these cases are only a limited collection, their facts illustrate that convictions under §3(b)(1)(A) often involve highly dangerous conduct.

II

Sykes argues that intentional vehicular flight is not a violent felony for two main reasons. First, he asserts that it is possible to violate Indiana’s intentional vehicular flight statute without doing anything dangerous. Second, he urges that the existence of Ind. Code §35–44–3– 3(b)(1)(B), which includes “substantial risk” as an additional element, indicates that §3(b)(1)(A) is nonrisky. Neither argument is persuasive.

A

Sykes observes that it would violate the statute to flee at low speed, obeying traffic signs and stopping after only a short distance. See Woodward v. State, 770 N. E. 2d 897, 900–901 (Ind. App. 2002); post, at 4 (KAGAN, J., dissenting). Such a flight, he urges, would not present “a serious potential risk of physical injury to another,” so a conviction under the statute cannot categorically be a violent felony.

The fact that Sykes can imagine a nonrisky way to violate §3(b)(1)(A) does not disprove that intentional vehicular flight is dangerous “in the ordinary case.” See James, 550 U. S., at 208. It is also possible to imagine committing burglary—an enumerated offense—under circumstances that pose virtually no risk of physical injury. See id., at 207 (hypothesizing a “break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors”).

Nor has Sykes established that the nonrisky scenario he imagines is the ordinary violation of §3(b)(1)(A). Sykes offers nothing more than two Indiana cases that, in his view, are instances of nonrisky vehicular flight. See Swain v. State, 923 N. E. 2d 32, 2010 WL 623720 (Ind. App., Feb. 23, 2010); Woodward, supra, at 898. Yet not even those cases obviously involve nonrisky conduct. In Swain, the defendant was a getaway driver who picked up her boyfriend’s accomplice as he ran on foot from two police officers. 2010 WL 623720, *1, *3. As the officers approached the car and shouted to stop, she yelled, “ ‘Hurry up. Come on. They’re coming,’ ” and drove off as the runner jumped in. Id., at *1. She stopped 10 to 15 seconds later, when police vehicles converging on the scene took up pursuit. Ibid. In Woodward, the defendant ignored a police siren for approximately a mile, passed several good places to pull over, and drove all the way home, but traveled at the speed limit of 45 mph and obeyed traffic laws. 770 N. E. 2d, at 898. Eventually the defendant got out of his car and shouted profanities at the officer, who drew his pistol. Id., at 898, 901; see also id., at 901, 902 (observing that the defendant had refused to stop “except on his own terms” and noting “the dangers that could await a police officer stopping where the citizen selects”). These two cases fall well short of showing that intentional flight in Indiana is ordinarily nonrisky.1 See also post, at 6 (KAGAN, J., dissenting) (noting that the “intuition that dangerous flights outstrip mere failures to stop . . . seems consistent with common sense and experience”).

B

Sykes also notes that a different subparagraph, §3(b) (1)(B), covers intentional flight committed while “operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person,” whereas §3(b)(1)(A) has no such element. From this, Sykes infers that §3(b)(1)(A) necessarily concerns only flight that does not present a serious potential risk. The argument is that, even though the elements of §3(b)(1)(A) describe conduct that ordinarily will satisfy the requisite level of risk, the presence of §3(b)(1)(B) casts §3(b)(1)(A) in a less dangerous light. Post, at 8 (KAGAN, J., dissenting). But the fact that §3(b)(1)(B) includes “substantial risk of bodily injury” as an element does not restrict §3(b)(1)(A) to nonrisky conduct.

First, apart from the existence of §3(b)(1)(B), the absence of risk as an element of §3(b)(1)(A) does not mean that the offense is not a violent felony. ACCA does not require that a violent felony expressly include a risk of injury as an element of the offense. Enumerated violent felonies like arson and burglary have no such element.

Second, §3(b)(1)(B) is not a risky, aggravated version of §3(b)(1)(A). Both are class D felonies, and at the time of Sykes’ conviction, there was no statutory difference in punishment between them. Even now, the offenses remain of a single class, meriting similar punishments.

The similarity in punishment for these related, overlapping offenses suggests that §3(b)(1)(A) is the rough equivalent of one type of §3(b)(1)(B) violation. Section 3(b)(1)(B) enhances punishments for three separate types of intentional misdemeanors: obstructing an officer, §3(a)(1); interfering with service of process, §3(a)(2); and fleeing from a police officer, §3(a)(3). Under §3(b)(1)(B), committing any of those offenses while also drawing a deadly weapon, inflicting injury, or “operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person” has long been a class D felony.

In 1998, the Indiana Legislature added §3(b)(1)(A) to provide that any use of a vehicle to flee from an officer under §3(a)(3) is always a class D felony. Section 3(b)(1)(A) is, in effect, a shortcut to the same punishment for one particular violation of §3(b)(1)(B).2 It is still the case that under §3(b)(1)(B), using a vehicle to obstruct an officer or interfere with service of process is a class D felony only if the vehicle is “operate[d] . . . in a manner that creates a substantial risk of bodily injury to another person.” §3(b)(1)(B). But using a vehicle to intentionally flee is always a class D felony, without any need to prove risk. §3(b)(1)(A).

This rough equivalence between §3(b)(1)(A) and §3(b) (1)(B) is borne out in Indiana case law. The conduct underlying the Indiana cases discussed above, see supra, at 6–7, demonstrates that despite §3(b)(1)(B), convictions under §3(b)(1)(A) include risky flights.

Third, the remainder of Indiana’s resisting law enforcement statute confirms that its other provisions do not reserve §3(b)(1)(A) for nonrisky conduct. An intentional vehicular flight becomes a class C felony if the vehicle is operated “in a manner that causes serious bodily injury.” Ind. Code §35–44–3–3(b)(2). The same act becomes a class B felony if someone is killed. §35–44–3–3(b)(3).3 JUSTICE KAGAN asserts that each of these “separate, escalating crimes” captures an increasing degree of risk and necessarily means that §3(b)(1)(A), the offense simpliciter, is less risky than it otherwise seems. Post, at 7.

The flaw in this reasoning is that §§3(b)(2) and (3) enhance punishment based solely on the results of the flight, not the degree of risk it posed. Neither provision requires any action by a suspect beyond that which satisfies the elements of §3(b)(1)(A).4 Rather, each provision addresses what happens when the risk inherent in a violation of §3(b)(1)(A) is actualized and someone is hurt or killed. The risk of physical injury inherent in intentional vehicular flight simpliciter was apparently clear enough to spur the Indiana Legislature to specify greater penalties for the inevitable occasions when physical injury actually occurs. By comparison, for obviously nonrisky felonies like insurance fraud or misappropriation of escrow funds, legislatures do not specify what additional punishment is warranted when the crime kills or injures bystanders or police. See, e.g., Ind. Code §35–43–5–7.2; §35–43–9–7. In sum, §§3(b)(2) and (3) do not demonstrate that §3(b)(1)(A) is less risky than it otherwise seems, but instead support the idea that it is inherently risky. * * *

Looking to the elements, statistics, common experience, and cases, I conclude that in the ordinary case, Indiana’s crime of intentional vehicular flight, §3(b)(1)(A), “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). The crime is therefore a violent felony under ACCA.

1 Sykes certainly cannot use his own flight as an example. His §3(b)(1)(A) conviction was based on fleeing from police in a damaged car at night without headlights, driving on the wrong side of the road, weaving through traffic, barreling through two yards and among bystanders, destroying a fence, and crashing into a house. Ante, at 4; 2 App. 11 (Sealed).

2 Indiana law at the time of Sykes’ conviction presented two related provisions, within a single statute, carrying the same punishment. One was a broad provision that had risk as an element, and the other was a narrower provision that did not. While JUSTICE KAGAN would infer that the offense lacking risk as an element was likely not ordinarily risky, post, at 6–8, I think it makes more sense to infer the opposite. Consider reckless endangerment statutes. In Hawaii, for instance, it is “reckless endangering in the second degree” either to “recklessly plac[e] another person in danger of death or serious bodily injury,” Haw. Rev. Stat. §707–714(1)(a) (2009 Cum. Supp.), or to “[i]ntentionally discharg[e] a firearm in a populated area,” §707–714(1)(b). I would infer that discharging the firearm is deemed dangerous enough per se that the statute does not require the State to prove danger in any given case. Other States have similar statutes. See, e.g., Del. Code Ann., Tit. 11, §§603(a)(1), (2) (2007); Wyo. Stat. Ann. §§6–2–504(a), (b) (2009); Me. Rev. Stat. Ann., Tit. 17–A, §§301(1)(B)(1), (2) (Supp. 2010). Similarly here, I infer that §3(b)(1)(A)’s upgrade of intentional flight to a class D felony based on the use of a vehicle alone indicates that the offense inherently qualifies as, or approximates, “operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person” under §3(b)(1)(B). JUSTICE KAGAN argues that if my reading were correct, the Indiana Legislature would have removed the reference to vehicular flight from §3(b)(1)(B) when it added §3(b)(1)(A). Post, at 12. There are at least two problems with this reasoning. First, even though §3(b)(1)(A) may be redundant with §3(b)(1)(B) as to the vehicular flight offenses in subsection (a)(3), the reference to “operat[ing] a vehicle” in §3(b)(1)(B) is still independently useful for the offenses in subsections (a)(1) and (2). Thus, it is hardly strange for the legislature to have left the reference to “operat[ing] a vehicle” in §3(b)(1)(B). Second, although JUSTICE KAGAN can envision a more perfectly drafted statute, we do not require perfection in statutory drafting. See, e.g., Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 12). I think it clear enough what the statute means.

3 Indiana recently added that if a police officer dies, it becomes a class A felony. 2010 Ind. Acts p. 1197.

4 For that matter, each provision also could be satisfied by a flight that did not satisfy §3(b)(1)(B), which casts further doubt on JUSTICE KAGAN’s vision of the statutory scheme as a unified structure of neatly progressing offenses with corresponding risk levels and punishments. See post, at 7.

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11311

_________________

MARCUS SYKES, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE SCALIA, dissenting.

As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983).

I

ACCA defines “violent felony,” in relevant part, as “any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). Many years of prison hinge on whether a crime falls within this definition. A felon convicted of possessing a firearm who has three prior violent-felony convictions faces a 15-year mandatory minimum sentence and the possibility of life imprisonment. See §924(e)(1); see United States v. Harrison, 558 F. 3d 1280, 1282, n. 1 (CA11 2009). Without those prior convictions, he would face a much lesser sentence, which could not possibly exceed 10 years. See §924(a)(2).

Vehicular flight is a violent felony only if it falls within ACCA’s residual clause; that is, if it “involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). Today’s opinion says, or initially seems to say, that an offense qualifies as a violent felony if its elements, in the typical case, create a degree of risk “ ‘comparable to that posed by its closest analog among the enumerated offenses.’ ” Ante, at 6. That is a quotation from the Court’s opinion in the first of our residual-clause trilogy, James, 550 U. S., at 203. I did not join that opinion because I thought it should suffice if the elements created a degree of risk comparable to the least risky of the enumerated offenses, whether or not it was the closest analog. See id., at 230 (SCALIA, J., dissenting). The problem with applying the James standard to the present case is that the elements of vehicular flight under Indiana law are not analogous to any of the four enumerated offenses. See Ind. Code §35–44–3–3 (2004). Nor is it apparent which of the enumerated offenses most closely resembles, for example, statutory rape, see United States v. Daye, 571 F. 3d 225, 228–236 (CA2 2009); possession of a sawed-off shotgun, see United States v. Upton, 512 F. 3d 394, 403–405 (CA7 2008); or a failure to report to prison, see Chambers, supra. I predicted this inadequacy of the “closest analog” test in my James dissent. See 550 U. S., at 215.

But as it turns out, the Court’s inability to identify an analog makes no difference to the outcome of the present case. For today’s opinion introduces the James standard with the words “[f]or instance,” ante, at 6. It is (according to the Court) merely one example of how the enumerated crimes (burglary, arson, extortion, and crimes using explosives) “provide guidance.” Ibid. And the opinion then proceeds to obtain guidance from the risky-as-the-leastrisky test that I suggested (but the Court rejected) in James—finding vehicular flight at least as risky as both arson and burglary. See ante, at 6–9.

But what about the test that determined the outcome in our second case in this “series”—the “purposeful, violent, and aggressive” test of Begay? Fear not. That incompatible variation has been neither overlooked nor renounced in today’s tutti-frutti opinion. “In many cases,” we are told, it “will be redundant with the inquiry into risk.” Ante, at 11. That seems to be the case here—though why, and when it will not be the case, are not entirely clear. The Court’s accusation that Sykes “overreads the opinions of this Court,” ante, at 10, apparently applies to his interpretation of Begay’s “purposeful, violent, and aggressive” test, which the Court now suggests applies only “to strict liability, negligence, and recklessness crimes,” ante, at 11. But that makes no sense. If the test excluded only those unintentional crimes, it would be recast as the “purposeful” test, since the last two adjectives (“violent, and aggressive”) would do no work. For that reason, perhaps, all 11 Circuits that have addressed Begay “overrea[d]” it just as Sykes does*—and as does the Government, see Brief for United States 8.

The only case that is not brought forward in today’s opinion to represent yet another test is the third and most recent in the trilogy, Chambers, 555 U. S. 122—which applied both the risky-as-the-least-risky test and the “purposeful, violent, and aggressive” test to reach the conclusion that failure to report for periodic incarceration was not a crime of violence under ACCA. But today’s opinion does cite Chambers for another point: Whereas James rejected the risky-as-the-least-risky approach because, among other reasons, no “hard statistics” on riskiness “have been called to our attention,” 550 U. S., at 210; and whereas Begay made no mention of statistics; Chambers explained (as today’s opinion points out) that “statistical evidence sometimes ‘helps provide a conclusive . . . answer’ concerning the risks that crimes present,” ante, at 8 (quoting Chambers, supra, at 129). Today’s opinion then outdoes Chambers in the volume of statistics that it spews forth—statistics compiled by the International Association of Chiefs of Police concerning injuries attributable to police pursuits, ante, at 8; statistics from the Department of Justice concerning injuries attributable to burglaries, ante, at 9; statistics from the U. S. Fire Administration concerning injuries attributable to fires, ibid., and (by reference to JUSTICE THOMAS’s concurrence) statistics from the National Center for Statistics & Analysis, the Pennsylvania State Police Bureau of Research, the FBI Law Enforcement Bulletin and several articles published elsewhere concerning injuries attributable to police pursuits, ante, at 8 (citing ante, at 4–5 (THOMAS, J., concurring in judgment)). Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery. See Fed. Rule Crim. Proc. 16(a)(1)(F), (G); Fed. Rules Evid. 702–703, 705. An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all. The Court does not examine, for example, whether the police-pursuit data on which it relies is a representative sample of all vehicular flights. The data may be skewed towards the rare and riskier forms of flight. See post, at 6, n. 4 (KAGAN, J., dissenting). We also have no way of knowing how many injuries reported in that data would have occurred even absent pursuit, by a driver who was driving recklessly even before the police gave chase. Similar questions undermine confidence in the burglary and arson data the Court cites. For example, the Court relies on a U. S. Fire Administration dataset to conclude that 3.3 injuries occur per 100 arsons. See ante, at 9. But a 2001 report from the same U. S. Fire Administration suggests that roughly 1 injury occurs per 100 arsons. See Arson in the United States, Vol. 1 Topical Fire Research Series, No. 8, pp. 1–2 (rev. Dec. 2001), online at http: / /www.usfa.dhs.gov / downloads / pdf / tfrs / v1i8-508.pdf (as visited May 27, 2011, and available in Clerk of Court’s case file). The Court does not reveal why it chose one dataset over another. In sum, our statistical analysis in ACCA cases is untested judicial factfinding masquerading as statutory interpretation. Most of the statistics on which the Court relies today come from governmentfunded studies, and did not make an appearance in this litigation until the Government’s merits brief to this Court. See Brief for Petitioner 17; see also Chambers, supra, at 128–129 (demonstrating that the same was true in that case).

But the more fundamental problem with the Court’s use of statistics is that, far from eliminating the vagueness of the residual clause, it increases the vagueness. Vagueness, of course, must be measured ex ante—before the Court gives definitive meaning to a statutory provision, not after. Nothing is vague once the Court decrees precisely what it means. And is it seriously to be expected that the average citizen would be familiar with the sundry statistical studies showing (if they are to be believed) that this-or-that crime is more likely to lead to physical injury than what sundry statistical studies (if they are to be believed) show to be the case for burglary, arson, extortion, or use of explosives? To ask the question is to answer it. A few words, then, about unconstitutional vagueness.

II

When I dissented from the Court’s judgment in James, I said that the residual clause’s “shoddy draftsmanship” put courts to a difficult choice: “They can (1) apply the ACCA enhancement to virtually all predicate offenses, . . . ; (2) apply it case by case in its pristine abstraction, finding it applicable whenever the particular sentencing judge (or the particular reviewing panel) believes there is a ‘serious potential risk of physical injury to another’ (whatever that means); (3) try to figure out a coherent way of interpreting the statute so that it applies in a relatively predictable and administrable fashion to a smaller subset of crimes; or (4) recognize the statute for the drafting failure it is and hold it void for vagueness . . . .” 550 U. S., at 229–230. My dissent “tried to implement,” id., at 230, the third option; and the Court, I believed, had chosen the second. “Today’s opinion,” I wrote, “permits an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.” Id., at 230–231.

My assessment has not been changed by the Court’s later decisions in the ACCA “series.” Today’s opinion, which adds to the “closest analog” test (James) the “purposeful, violent, and aggressive” test (Begay), and even the risky-as-the-least-risky test that I had proposed as the exclusive criterion, has not made the statute’s application clear and predictable. And all of them together—or even the risky-as-the-least-risky test alone, I am now convinced—never will. The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.

That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach, United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted), and that permits, indeed invites, arbitrary enforcement, see Kolender, 461 U. S., at 357. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.

We have, I recognize, upheld hopelessly vague criminal statutes in the past—indeed, in the recent past. See, e.g., Skilling v. United States, 561 U. S. ___ (2010). That is regrettable, see id., at ___ (SCALIA, J., concurring in part SYKES v. UNITED STATES

SCALIA, J., dissenting and concurring in judgment) (slip op., at 1). What sets ACCA apart from those statutes—and what confirms its incurable vagueness—is our repeated inability to craft a principled test out of the statutory text. We have demonstrated by our opinions that the clause is too vague to yield “an intelligible principle,” ante, at 13, each attempt to ignore that reality producing a new regime that is less predictable and more arbitrary than the last. ACCA’s residual clause fails to speak with the clarity that criminal proscriptions require. See United States v. L. Cohen Grocery Co., 255 U. S. 81, 89–90 (1921).

The Court believes that the residual clause cannot be unconstitutionally vague because other criminal prohibitions also refer to the degree of risk posed by a defendant’s conduct. See ante, at 14. Even apart from the fact that our opinions dealing with those statutes have not displayed the confusion evident in our four ACCA efforts, this is not the first time I have found the comparison unpersuasive:

“None of the provisions the Court cites . . . is similar in the crucial relevant respect: None prefaces its judicially-to-be-determined requirement of risk of physical injury with the word ‘otherwise,’ preceded by four confusing examples that have little in common with respect to the supposedly defining characteristic. The phrase ‘shades of red,’ standing alone, does not generate confusion or unpredictability; but the phrase ‘fireengine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does so.” James, 550 U. S., at 230, n. 7. Of course even if the cited statutes were comparable, repetition of constitutional error does not produce constitutional truth. * * *

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step— indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent. * See United States v. Holloway, 630 F. 3d 252, 260 (CA1 2011); United States v. Brown, 629 F. 3d 290, 295–296 (CA2 2011) (per curiam); United States v. Lee, 612 F. 3d 170, 196 (CA3 2010); United States v. Jenkins, 631 F. 3d 680, 683 (CA4 2011); United States v. Harrimon, 568 F. 3d 531, 534 (CA5 2009); United States v. Young, 580 F. 3d 373, 377 (CA6 2009); United States v. Sonnenberg, 628 F. 3d 361, 364 (CA7 2010); United States v. Boyce, 633 F. 3d 708, 711 (CA8 2011); United States v. Terrell, 593 F. 3d 1084, 1089–1091 (CA9 2010); United States v. Ford, 613 F. 3d 1263, 1272–1273 (CA10 2010); United States v. Harrison, 558 F. 3d 1280, 1295–1296 (CA11 2009).

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11311

_________________

MARCUS SYKES, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE KAGAN, with whom JUSTICE GINSBURG joins, dissenting.

Vehicular flight comes in different varieties, and so too the statutes that criminalize the conduct. A person may attempt to outrun police officers by driving recklessly and at high speed, in disregard of traffic laws and with disdain for others’ safety. Or a person may fail to heed an officer’s command to pull over, but otherwise drive in a lawful manner, perhaps just trying to find a better place to stop. In Indiana, as in most States, both of these individuals are lawbreakers. But in Indiana, again as in most States, the law takes account of the differences between them, by distinguishing simple from aggravated forms of vehicular flight. Unlike the Court, I would attend to these distinctions when deciding which of Indiana’s several vehicular flight crimes count as “violent felon[ies]” under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B). Because petitioner Marcus Sykes was convicted only of simple vehicular flight, and not of any flight offense involving aggressive or dangerous activity, I would find that he did not commit a “violent felony” under ACCA.

I

As the Court relates, we must decide whether the crime of which Sykes was convicted falls within ACCA’s “residual clause.” See ante, at 5–6. To do so, the crime must “presen[t] a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), and involve conduct that is “purposeful, violent, and aggressive,” Begay v. United States, 553 U. S. 137, 145 (2008).1 Because we use the “categorical approach,” we do not concern ourselves with Sykes’s own conduct. See Taylor v. United States, 495 U. S. 575, 602 (1990). Nor do we proceed by exploring whether some platonic form of an offense—here, some abstract notion of vehicular flight—satisfies ACCA’s residual clause. We instead focus on the elements of the actual state statute at issue. Cf. Chambers v. United States, 555 U. S. 122, 126–127 (2009) (breaking down an Illinois statute into discrete offenses to decide whether the crime of conviction fit within the residual clause); James v. United States, 550 U. S. 192, 202 (2007) (examining how Florida’s law defined attempted burglary to determine if the residual clause included that offense). More particularly, we ask whether “the conduct encompassed by the elements” of that statute, “in the ordinary case” (not in every conceivable case), involves the requisite danger and violence. Id., at 208. By making this inquiry, we attempt to determine whether the crime involved is “characteristic of the armed career criminal”—or otherwise said, whether the prohibited conduct is of a kind that “makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.” Begay, 553 U. S., at 145 (internal quotation marks omitted).

Under this approach, some vehicular flight offenses should count as violent felonies under ACCA. Consider, for example, a statute that makes it a crime to “willfully flee from a law enforcement officer by driving at high speed or otherwise demonstrating reckless disregard for the safety of others.” Such a statute, by its terms, encompasses conduct that ordinarily “presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). And the covered conduct qualifies as “purposeful, violent, and aggressive.” Id., at 145. When a motorist responds to an officer’s signal to stop by increasing his speed or taking reckless evasive action, he turns his car into a weapon and provokes confrontation. In so doing, he engages in behavior “roughly similar, in kind as well as in degree of risk posed,” to that involved in ACCA’s enumerated offenses— the sort of conduct, in other words, “typically committed by . . . ‘armed career criminals.’ ” Id., at 143, 146. Like the majority, see ante, at 9–10, I therefore would classify crimes of this type—call them aggravated vehicular flight offenses—as violent felonies under ACCA.

But a vehicular flight offense need not target aggressive and dangerous behavior. Imagine the converse of the statute described above—a statute making it a crime to “willfully flee from a law enforcement officer without driving at high speed or otherwise demonstrating reckless disregard for the safety of others.” That hypothetical statute addresses only simple vehicular flight: mere disregard of a police officer’s directive to stop, devoid of additional conduct creating risk to others. This behavior— often called “failure to stop”—is illegal in most States (under a wide variety of statutory provisions). In Indiana, for example, a driver who “know[s] that a police officer wishes to effectuate a traffic stop” may commit a felony if he attempts to “choose the location of the stop,” rather than pulling over immediately; it makes no difference that the driver “did not speed or disobey any . . . traffic laws.” Woodward v. State, 770 N. E. 2d 897, 902 (Ind. App. 2002).2 But a mere failure to stop does not usually “presen[t] a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), any more than normal driving does. Nor is this conduct “violent . . . and aggressive.” Begay, 553 U. S., at 145; see Brief for United States 43 (characterizing as “nonviolent” a flight from police that complies with “all traffic laws”). True, the offender is ignoring a command he should obey. But nothing in his behavior is affirmatively belligerent: It does not “show an increased likelihood that [he] is the kind of person who might deliberately point the gun and pull the trigger.” Begay, 553 U. S., at 146.3 And so, under our precedents, a statute criminalizing only simple vehicular flight would not fall within ACCA’s residual clause. I do not understand the majority to disagree.

The Indiana provision under which Sykes was convicted straddles the two hypothetical statutes I have just described. That provision, subsection (b)(1)(A), states that a person commits a felony if he “flees from a law enforcement officer” while “us[ing] a vehicle.” Ind. Code §§35–44– 3–3(a)(3), (b)(1)(A) (2009). As the Indiana courts have recognized, the subsection thus criminalizes mere failure to stop, which should not count as a violent felony under ACCA. See Woodward, 770 N. E. 2d 897; supra, at 4, and n. 2. But the provision also includes more violent forms of vehicular flight: It covers a person who speeds or drives recklessly, who leads the police on a “Hollywood-style car chase,” Scott v. Harris, 550 U. S. 372, 380 (2007), and who endangers police officers, other drivers, and pedestrians. And so the “conduct encompassed by the elements” of this subsection, James, 550 U. S., at 208, runs the gamut— from simple to aggravated vehicular flight, from the least violent to the most violent form of the activity. Accord, ante, at 9–10 (THOMAS, J., concurring in judgment) (stating that subsection (b)(1)(A) is “not restrict[ed] . . . to nonrisky conduct”). The question presented is whether such a facially broad provision meets the requirements of ACCA’s residual clause.

If subsection (b)(1)(A) were the whole of Indiana’s law on vehicular flight, the majority would have a reasonable argument that the provision does so. As noted, a statute fits within the residual clause if it covers conduct that in the ordinary case—not in every conceivable case—poses serious risk of physical injury and is purposeful, violent, and aggressive. See James, 550 U. S., at 208; Begay, 553 U. S., at 145. We therefore must decide what the ordinary case of vehicular flight actually is. Is it the person trying to escape from police by speeding or driving recklessly, in a way that endangers others? Or is it instead the person driving normally who, for whatever reason, fails to respond immediately to a police officer’s signal? The Government has not presented any empirical evidence addressing this question, and such evidence may not in fact exist.4 See Wells & Falcone, Research on Police Pursuits: Advantages of Multiple Data Collection Strategies, 20 Policing Int’l J. Police Strategies & Management 729 (1997) (“Collecting valid and reliable data on policing activities is a perennial problem . . . . This is particularly true when studying . . . vehicle pursuits”); cf. Begay, 553 U. S., at 154 (SCALIA, J., concurring in judgment) (“Needless to say, we do not have these relevant statistics”). But the majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience. So that judgment, even though unsupported by data, would likely be sufficient to justify the Court’s conclusion were subsection (b)(1)(A) the only relevant provision.

But subsection (b)(1)(A) does not stand alone, and the context of the provision casts a different light on it. Like a great many States (45 by my count), Indiana divides the world of vehicular flight into discrete categories, corresponding to the seriousness of the criminal behavior. At the time of Sykes’s conviction, Indiana had four degrees of vehicular flight, only the first of which—subsection (b)(1)(A)—covered mere failure to stop.5 See Ind. Code §35–44–3–3. Indiana classified as a felon any person who: • • • • “flees from a law enforcement officer” while “us[ing] a vehicle,” §3(b)(1)(A); “flees from a law enforcement officer” while “operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person,” §3(b)(1)(B);6 “flees from a law enforcement officer” while “operat[ing] a vehicle in a manner that causes serious bodily injury to another person,” §3(b)(2); or “flees from a law enforcement officer” while “operat[ing] a vehicle in a manner that causes the death of another person,” §3(b)(3) (all emphasis added). Vehicular flight in Indiana is therefore not a single offense, but instead a series of separate, escalating crimes. Each category captures conduct more dangerous than the one before it, as shown by the language italicized above.7 And at the very beginning of this series is subsection (b)(1)(A), the offense of which Sykes was convicted.

That placement alters the nature of the analysis. We have previously examined the way statutory provisions relate to each other to determine whether a particular provision counts as a violent felony under ACCA. In Chambers, 555 U. S., at 126–127, we considered an Illinois statute prohibiting within a single section several different kinds of behavior, including escape from a penal institution and failure to report to a penal institution. The courts below had treated the statute as defining a single crime of felonious escape and held that crime to qualify as a violent felony under ACCA. See id., at 125; United States v. Chambers, 473 F. 3d 724, 725–726 (CA7 2007). We disagreed, stating that failure to report was a distinct offense, which did not meet ACCA’s requirements. That was so, we stated, because “[t]he behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.” Chambers, 555 U. S., at 127. In addition, we noted, the statute “list[ed] escape and failure to report separately (in its title and its body).” Ibid. We thus considered the failure-to-report clause in its statutory context—as one part of a legislature’s delineation of related criminal offenses—to determine whether the behavior it encompassed ordinarily poses a serious risk of injury.

That same focus on statutory structure resolves this case, because it reveals subsection (b)(1)(A) to aim at a single form—the least serious form—of vehicular flight. Remember: Indiana has made a purposeful choice to divide the full spectrum of vehicular flight into different degrees, based on the danger associated with a driver’s conduct. Once again, starting with the most serious conduct: flight resulting in death; flight resulting in physical injury; flight creating a substantial risk of physical injury; flight. That last category—flight—almost screams to have the word “mere” placed before it. Under the Indiana statute, flight—the conduct prohibited by subsection (b)(1)(A)—is what is left over when no aggravating factor causing substantial risk or harm exists. Put on blinders, and the subsection is naturally understood to address all flight, up to and including the most dangerous kinds. But take off those blinders—view the statute as a whole—and the subsection is instead seen to target failures to stop.

In this vein, the distinction between subsections (b)(1)(A) and (b)(1)(B) is especially telling. As noted, subsection (b)(1)(B) prohibits vehicular flight that “creates a substantial risk of bodily injury to another person.” That language almost precisely tracks the phrasing of ACCA’s residual clause, which refers to conduct that “presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). This correspondence indicates that the conduct criminalized under subsection (b)(1)(B) qualifies as a violent felony under ACCA. But subsection (b)(1)(A) lacks the very feature that makes subsection (b)(1)(B) and ACCA such a perfect match: It does not require any behavior that poses serious risk to others. This difference in statutory elements indicates that subsection (b)(1)(B)—but not subsection (b)(1)(A)—is directed toward the conduct described in ACCA’s residual clause. To count both as ACCA offenses is to pay insufficient heed to the way the Indiana Legislature drafted its statute—as a series of escalating offenses, ranging from the simple to the most aggravated.8 II

The Court does not deny that a State’s decision to divide a generic form of conduct (like vehicular flight) into separate, escalating crimes may make a difference under ACCA; rather, the Court declines to address that question. See ante, at 13. The Court rejects the structural argument here for one, and only one, reason. Indiana, the majority says, “treats violations of subsections (b)(1)(A) and (b)(1)(B) as crimes of the same magnitude”: They are both class D felonies carrying the same punishment.9 See also ante, at 8–9 (THOMAS, J., concurring in judgment). But the Court is wrong to think that fact dispositive.

In general, “similar punishment does not necessarily imply similar risk” (or similar violence). James, 550 U. S., at 217 (SCALIA, J., dissenting). Because this is so, the Court has never suggested that all state offenses falling within a single felony class and subject to the same penalties must receive the same treatment under ACCA. To the contrary, we have always focused on the “conduct encompassed by the elements of the offense,” id., at 208 (majority opinion)—an inquiry that does not mention the offense’s sentencing consequences. And that is for good reason. It would be quite remarkable if either all or none of Indiana’s (or any State’s) class D felonies satisfied the requirements of the residual clause. In Indiana, other such felonies, subject to “the same magnitude” of punishment, ante, at 12, include election fraud, computer tampering, and “cemetery mischief.” See Ind. Code §3–14–2–1 et seq. (2009); §35–43–1–4; §35–43–1–2.1. I presume the Court does not also intend to treat these offenses as violent felonies under ACCA.

Moreover, Indiana sentencing law has always enabled judges to take account of the difference between subsections (b)(1)(A) and (b)(1)(B) in imposing punishment. As the majority notes, ante, at 12, Indiana provides for a range of prison terms for class D felonies, stretching from six months to three years. And in deciding what term to impose (or whether to suspend the term), courts may consider an array of aggravating factors—including whether the crime “threatened serious harm to persons,” §35–38–1–7.1(b)(1). Convictions under subsections (b)(1)(A) and (b)(1)(B) therefore may produce widely varying sentences, as judges respond to the different forms of vehicular flight targeted by the offenses.

The Court argues, in support of its position, that the “similarity in punishment” reveals that the conduct falling within subsection (b)(1)(A) is “rough[ly] equivalent,” in terms of risk, to the conduct falling within subsection (b)(1)(B). Ante, at 12 (internal quotation marks omitted); see also ante, at 10–11 (THOMAS, J., concurring in judgment). More specifically, the Court claims that the Indiana Legislature added subsection (b)(1)(A) to the statute in 1998 because it determined that vehicular flight is per se risky—and that all such flight therefore deserves the same punishment as is meted out to the various non-flight conduct that subsection (b)(1)(B) prohibits upon a showing of risk. See ante, at 12; see also n. 9, supra. But that argument disregards the legislature’s decision to criminalize vehicular flight in both provisions—that is, to retain subsection (b)(1)(B)’s prohibition on risky vehicular flight alongside subsection (b)(1)(A)’s ban on simple flight. In effect, the Court reads subsection (b)(1)(A) as including all vehicular flight and subsection (b)(1)(B) as including only the other (non-flight) things it mentions—even though subsection (b)(1)(B) specifically bars “flee[ing] from a law enforcement officer . . . in a manner that creates a substantial risk of bodily injury.”

Perhaps the Court assumes that the Indiana Legislature, in enacting subsection (b)(1)(A), simply forgot to remove the reference to vehicular flight in subsection (b)(1)(B). Cf. ante, at 10 (THOMAS, J., concurring in judgment) (acknowledging superfluity). But if so, the legislature forgot four more times to correct its error, as it serially amended and re-amended its vehicular-flight statute over the last 13 years.10 And more fundamentally, a better explanation than legislative mistake is available for Indiana’s decision to enact subsection (b)(1)(A) while keeping subsection (b)(1)(B)’s ban on risky vehicular flight. Prior to 1998, Indiana, unlike most other States in the nation, cf. infra, at 13, did not criminalize simple vehicular flight (i.e., failure to stop) at all. See 1998 Ind. Acts 677–678. So Indiana’s decision to create that offense in subsection (b)(1)(A)—and to distinguish it from the more aggravated forms of vehicular flight already penalized under subsections (b)(1)(B), (b)(2), and (b)(3)—brought the State’s vehicular-flight statute into conformity with the prevailing approach used nationwide. Especially given that backdrop, I would not impute shoddy draftsmanship to the Indiana Legislature. I would heed what that body said, rather than assume (just because it made both offenses class D felonies) that it must have meant something different. And what the legislature said is that vehicular flight comes in different forms—one posing substantial risk of injury (subsection (b)(1)(B)) and one not (subsection (b)(1)(A)).

The best that can be said for the Court’s approach is that it is very narrow—indeed, that it decides almost no case other than this one. As noted above, see supra, at 10, the Court reserves the question whether a vehicular flight provision like subsection (b)(1)(A) is a crime of violence under ACCA “where that offense carries a less severe penalty than [a greater] offense that includes it.” Ante, at 13. But as fate would have it, that reservation describes the great majority of vehicular flight statutes across the country. Indiana is idiosyncratic in this respect; other States not only separately prohibit, but also differently punish, simple and aggravated vehicular flight.11 Or perhaps I should say Indiana was idiosyncratic. That is because in 2006, a few years after Sykes’s conviction, Indiana amended its vehicular flight statute to set different penalties for violations of subsections (b)(1)(A) and (b)(1)(B). A person who violates subsection (b)(1)(B) today faces a mandatory 30-day sentence that cannot be suspended; that sentence rises to six months or one year for repeat offenders. See Ind. Code §35–44–3–3(d). By contrast, a person who violates subsection (b)(1)(A), even more than once, is not subject to any mandatory jail time. See §35–44–3–3(d). So by its own terms, the Court’s opinion—our fourth applying ACCA’s residual clause in as many years—applies only to a single State’s vehicular flight statute as it existed from 1998 to 2006. Cf. ante, at 7 (SCALIA, J., dissenting) (“[W]e will be doing ad hoc application of ACCA . . . until the cows come home”).

* * *

The Indiana statute before us creates a series of escalating offenses dividing the universe of vehicular flight into discrete categories. One of those categories, subsection (b)(1)(B), requires proof that the defendant operated “a vehicle in a manner that creates a substantial risk of bodily injury.” That phrase tracks the language that ACCA’s residual clause uses to define a crime of violence. Other provisions in the Indiana statute demand even more—actual injury or death. In stark contrast, subsection (b)(1)(A), the least severe of the State’s vehicular flight offenses and the one of which Sykes was convicted, lacks any element relating to threat of physical injury. In deciding this case, I would respect that statutory difference. And because I would take the Indiana Legislature at its word, I respectfully dissent.

1 I understand the majority to retain the “purposeful, violent, and aggressive” test, but to conclude that it is “redundant” in this case. See ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I find this conclusion puzzling. I do not think the majority could mean to limit the test to “strict liability, negligence, and recklessness crimes.” Ante, at 11 (majority opinion). As JUSTICE SCALIA notes, see ante, at 3, that would be to eliminate the test’s focus on “violence” and “aggression.” And it would collide with Chambers v. United States, 555 U. S. 122 (2009)—a decision the majority cites approvingly, see ante, at 8— which applied the test to an intentional crime. See 555 U. S., at 128 (opinion of the Court), 130 (Appendix A to opinion of the Court) (holding that “knowin[g] fail[ure] to report to a penal institution” does not involve “purposeful, violent, or aggressive conduct” (internal quotation marks omitted)). So I assume this test will make a resurgence—that it will be declared non-redundant—the next time the Court considers a crime, whether intentional or not, that involves risk of injury but not aggression or violence.

2 The majority attempts to show that Woodward involved conduct more risky and violent than a simple failure to stop. See ante, at 3; see also ante, at 7 (THOMAS, J., concurring in judgment). But the facts of that case, like the facts of this one, are irrelevant. Under ACCA, all that matters is the elements of the offense, and the Indiana Court of Appeals held in Woodward that a person who “merely fail[s] to stop” for police, and does nothing more, commits a felony under state law. 770 N. E. 2d, at 900–902.

3 Indeed, a driver may refrain from pulling over immediately out of concern for his own safety. He may worry, for example, that road conditions make it hazardous to stop. Or a driver may fear that the person initiating the stop is a criminal rather than a police officer. See, e.g., Brennan, Rapist to Spend Life in Prison, Tampa Tribune, Feb. 18, 2011, Metro section, p. 3 (“[A man] impersonating a police officer . . . used the ruse to pull over a woman . . . and then kidnap and rape her”); DeKunder, Watch for “Fake” Police, Local Authorities Warn, Northeast Herald, Jan. 14, 2010, pp. 12, 13 (noting several similar incidents).

4 The Government offers anecdotal examples and statistical surveys of vehicular flights, see Brief for United States 13–15, 17–22, but none helps to answer whether the “ordinary” case of vehicular flight is aggravated or simple. Cf. ante, at 4–6 (SCALIA, J., dissenting). The anecdotes and all but one of the surveys demonstrate only that some vehicular flights result in serious injury, a proposition no one does or could dispute. The single statistical study cited by the Government that posits an injury rate for vehicular flight concludes that about 4% of 7,737 reported police pursuits harmed police or bystanders. But that study may well involve only aggravated flights. See C. Lum & G. Fachner, Police Pursuits in an Age of Innovation and Reform 55 (2008) (noting that the study relies on voluntary and non-systematic reporting and that participating police departments might not have reported “informal” incidents). And even assuming the study is comprehensive, it is entirely consistent with the possibility that the “ordinary case”— i.e., the most common form—of vehicular flight is mere failure to stop, which produces a much lower rate of injury.

5 After Sykes’s conviction, Indiana added yet a fifth degree. See 2010 Ind. Acts p. 1197. The four degrees described above remain unchanged.

6 This provision also bars a range of other conduct. See n. 9, infra.

7JUSTICE THOMAS attempts to bisect this series by stating that the two most serious degrees of aggravated vehicular flight “enhance punishment based solely on the results of the flight, not the degree of risk it posed.” Ante, at 11–12. But conduct that leads to serious injury or death is ordinarily more risky, viewed ex ante, than conduct that does not produce these results. And in any event, the fundamental point here is that the Indiana statute grades vehicular flight according to the seriousness of the behavior—ranging from flight that need not pose any risk of harm, through flight posing a substantial risk of harm, to flight involving a certainty of harm. Subsections (b)(2) and (b)(3) thus underscore that Indiana has divided the world of vehicular flight into discrete, ascending crimes, rather than treating all vehicular flight as of a piece.

8 None of this is to deny that prosecutors may sometimes charge violent and dangerous offenders under subsection (b)(1)(A). A prosecutor may elect to use a lower grade of vehicular flight when he could use a higher one, either as a matter of discretion or because the defendant entered into a plea bargain. This case provides one example, see ante, at 4 (majority opinion), and JUSTICE THOMAS offers several others, see ante, at 6–7. But as everyone agrees, what matters in determining whether an offense qualifies under ACCA’s residual clause is the “ordinary case” of conviction. And in the absence of reliable empirical evidence, the structure of the Indiana statute provides the best way to discern the ordinary case under each subsection.

9 The Government spurns the structural argument on a different ground, contending that subsection (b)(1)(A) is not a lesser included offense of subsection (b)(1)(B). The Court wisely does not accept this claim. Both subsections (b)(1)(A) and (b)(1)(B) involve the use of a vehicle to flee, with subsection (b)(1)(B) additionally requiring that this use “creat[e] a substantial risk of bodily injury.” So a fleeing driver who violates subsection (b)(1)(B) necessarily runs afoul of subsection (b)(1)(A) as well. The Government contends, in response, that a person can violate subsection (b)(1)(B) and not (b)(1)(A) by engaging in conduct other than vehicular flight. See Brief for United States 48–49, n. 11. That is because subsection (b)(1)(B) additionally prohibits “obstruct[ing]” or “resist[ing]” a police officer by a variety of means, including through use of a vehicle. But Indiana law makes clear that subsection (b)(1)(A) still counts as a lesser included offense of subsection (b)(1)(B) in any prosecution involving vehicular flight. See Wright v. State, 658 N. E. 2d 563, 566–567 (Ind. 1995) (holding a crime to be a lesser included offense if its elements are “factually” subsumed within another offense). And even if that were not the case, it should make no difference. The meaningful question for purposes of ACCA is whether subsection (b)(1)(B)’s prohibition of aggravated vehicular flight indicates that subsection (b)(1)(A) targets simple vehicular flight. That a person can violate subsection (b)(1)(B) by means independent of any vehicular flight has no bearing on that question.

10 See 2011 Ind. Acts pp. 91–92; 2010 Ind. Acts pp. 1196–1197, 1186– 1187; 2006 Ind. Acts p. 2470. Notably, one of these amendments revised subsection (b)(1)(B) itself. See ibid.

11 See, e.g., Fla. Stat. §316.1935 (2010); Mich. Comp. Laws Ann. §257.602a (West 2010); Minn. Stat. §609.487 (2009); N. J. Stat. Ann. §2C:29–2 (West Supp. 2011); S. C. Code Ann. §56–5–750 (2006); Tenn. Code Ann. §39–16–603 (Supp. 2011); Tex. Penal Code §38.04 (West 2011); Utah Code Ann. §76–8–305.5 (Lexis 2008).

Print this transcript Transcript: 

ORAL ARGUMENT OF WILLIAM E. MARSH ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-11311, Sykes v. United States.

Justice Ginsburg is not on the bench, but will participate in the argument through the transcripts and the tapes.

Mr. Marsh.

Mr. Marsh: Mr. Chief Justice, and may it please the Court:

The Armed Career Criminal Act enhances the punishment for possession of a firearm or ammunition for a person who has three previous convictions for a violent felony.

This case involves, as you know, vehicular fleeing, which Indiana has divided into five categories.

Indiana statute treats vehicular fleeing as a continuum of behavior ranging from merely failing to stop on the low end, which is the crime Mr. Sykes was convicted of violating, all the way to fleeing which results in the death of a police officer on the high end, which in Indiana is a class A felony.

Justice Antonin Scalia: What's in between?

Mr. Marsh: The second tier up is what we refer to as (b)(1)(B), which is fleeing which either causes bodily injury or creates a substantial risk of bodily injury.

The next category up is fleeing which causes serious bodily injury.

The fourth category is fleeing which causes a death.

This Court recognizes--

Justice Antonin Scalia: So we can assume that the conviction here did not involve any risk of bodily injury to anybody?

Mr. Marsh: --That's our position, Your Honor.

When the court considers the conduct encompassed by the elements of the offense--

Justice Antonin Scalia: Right.

Mr. Marsh: --then that conduct does not involve conduct which creates a risk of bodily injury.

Justice Anthony Kennedy: I'm sure you'll do so in the course of your argument, but at some point give us some examples of violations of -- of this, this statute, which from a commonsense standpoint don't involve a serious risk.

There was something in the brief about, oh, well, the defendant might want to just find a safe place to pull over.

I -- I didn't follow that because it's an intent crime.

I just don't see how that would be a violation.

But if at some point in your argument you could address those points.

Mr. Marsh: I would be happy to respond now, Justice Kennedy.

The court -- the case that you referred to is the Indiana case of Woodward, from the Indiana Court of Appeals, in which the court held that exactly that conduct did violate this statute because the knowingly or intentionally the mens rea element goes only to fleeing and using a vehicle.

So that was one example--

Chief Justice John G. Roberts: Looking--

Mr. Marsh: --of merely failing to stop.

Chief Justice John G. Roberts: --I'm sorry.

Looking -- looking -- I don't mean to interrupt your answer.

Looking for a safe place to stop violates the statute?

Mr. Marsh: That was the holding of the Indiana Court of Appeals, yes.

Justice Anthony Kennedy: You're supposed to stop dead in your tracks and not pull off on the shoulder?

I mean, I don't -- I just don't understand this.

I'll go read the case, but--

Mr. Marsh: Well, the court didn't--

Justice Antonin Scalia: I don't drive in Indiana.

I think that's pretty tough.

Mr. Marsh: --The court did not elaborate, Your Honor, on where the line is, but--

Justice Anthony Kennedy: --Maybe that's why -- why it's a risk.

You stop in the middle of the road and then everybody--

[Laughter]

Mr. Marsh: --That would be more likely to create a risk, but the--

Justice Antonin Scalia: How can you say somebody is fleeing?

I mean, doesn't fleeing mean you're trying to escape the -- the officer?

Mr. Marsh: --Justice Scalia, the holding of the Indiana Court of Appeals was in response to a position taken by the defendant, sort of along the lines of the two lines of questioning, which is surely the statute requires something more than merely failing to stop, but the Indiana Court of Appeals used precisely that language.

Justice Samuel Alito: I think the problem with your argument is that the prosecution is not under any obligation to charge any offense greater than the offense for which your client was convicted in a case in which there is a very grave risk created by flight.

Isn't that true?

Mr. Marsh: The prosecutor is not under any obligation; was that the question, Justice Alito?

Justice Samuel Alito: Yes.

Mr. Marsh: Yes, I think that's -- I think that's correct.

The prosecutor--

Justice Samuel Alito: So the fact that someone is convicted of this offense does not show that a broad category of offenses within this crime lack the risk that's necessary under the Armed Career Criminal Act.

Mr. Marsh: --Well, I suggest that it does, Your Honor, because the -- the James case makes clear that the Court will determine whether the crime creates a serious potential risk of physical injury to another by looking at the conduct encompassed by the elements of the offense.

Now, the fact that some other offense maybe could have been charged or was charged I suggest on the categorical approach is not relevant.

Justice Samuel Alito: Are you familiar with the case called Hape v. State in the Indiana Court of Appeals 2009?

Mr. Marsh: Tate versus--

Justice Samuel Alito: Hape.

H-a-p-e.

Mr. Marsh: --I'm not, Your Honor.

Justice Samuel Alito: During a 45 -- and this involved the offense at issue here.

During a 45-minute high-speed chase officers shot at the defendant's truck at least 20 times.

The State's facts showed that the defendant drove over 100 miles an hour and at times drove into the oncoming traffic lane.

Do you think that creates a -- a serious potential risk of -- of harm?

Mr. Marsh: Well, those, of course, aren't the facts here.

And I would have to know what the individual was convicted of because, of course, under the categorical--

Justice Samuel Alito: I believe he is convicted of the same offense as -- as Mr. Sykes.

Mr. Marsh: --But of course, under the categorical approach established by Taylor and followed consistently by this Court since that time, the Court doesn't look at the facts of the individual case.

The Court looks at it categorically.

So if--

Justice Stephen G. Breyer: But looking at it categorically I've always thought means you look to see, not just what the elements are on paper, but whether the elements as used in reality in the State are applied to cases that do present, in general apply to cases that do present a serious risk of physical injury.

And you think the answer is we don't know because no one's gone and looked.

You could do it through sampling, but no one's gone and looked.

I've just said that's my view.

The -- so what do we do?

I mean, I can deal with a lot of other States, but Arizona has exactly the same classification of felony when you use a vehicle and when you use a vehicle creating a serious risk of physical harm to others.

It's in the same provision, same statute, same category.

How do we work with that in your opinion?

Mr. Marsh: --If the--

Justice Stephen G. Breyer: Are you following what I'm doing?

You understand the difference between Arizona and 46 other States?

Mr. Marsh: --Yes.

Justice Stephen G. Breyer: In the other States they grade it.

But here they don't.

Mr. Marsh: Right.

Well, Indiana, of course, does grade it, Your Honor.

Justice Stephen G. Breyer: Indiana, I'm sorry.

Mr. Marsh: And it is significant that the second most serious category is where the conduct does present a substantial risk of bodily injury.

Justice Antonin Scalia: And I -- I don't know how we could proceed by looking at, you know, whether in fact a majority of the cases that come into this first relatively harmless category did indeed involve situations that involved physical risk because, as everybody knows, prosecutors plea bargain, and it's probably very often the case that the defendant is charged only under, under category one, you know, where if he went to trial they would charge him under three; isn't that so?

Mr. Marsh: But of course, Your Honor--

Justice Antonin Scalia: Yes, yes, you want to say yes.

Mr. Marsh: --Thank you.

Yes.

Justice Stephen G. Breyer: What I'm thinking of, and I need a little explanation, we look to see in (b), and it says it's a class D felony if a vehicle is used.

That's (A) under (1).

Am I right?

Mr. Marsh: Yes.

Justice Stephen G. Breyer: Okay.

Then we look to (B) under (1), and it's also a class D felony, in other words the same, if a vehicle is operated in a manner that creates a substantial risk of bodily injury.

Mr. Marsh: Yes.

Justice Stephen G. Breyer: So a prosecutor looking at that will say, why don't I just charge A; what's the point of charging B?

I mean, it makes no difference apparently.

It's simpler to prove A.

Mr. Marsh: Justice Breyer, in 2003, when Mr. Sykes was convicted of this offense, what you said is exactly right.

Of course, we have no way of knowing the motivation of prosecutors generally, let alone in this case.

And it really wouldn't matter what it was in this case, what it is generally.

But I think it's significant that in 2006 the Indiana General Assembly amended that statute so now the (B) violation carries with it a mandatory jail sentence, 60 days.

Justice Stephen G. Breyer: I can deal with it more easily then.

What's worrying me now is what we're supposed to do is, is the offense an offense that presents a serious risk of physical injury to another.

Mr. Marsh: Yes.

Justice Stephen G. Breyer: So we're here trying to decide whether the (A) one does.

Mr. Marsh: Yes.

Justice Stephen G. Breyer: And the answer is I don't know, and the reason I don't know is I don't know how that offense language of (A) is applied in Indiana.

Mr. Marsh: It's--

Justice Sonia Sotomayor: Counsel, do you know if Indiana has an enhancement for convictions, sentencing enhancement of any kind, for conviction that have an element of risk of harm to others?

Mr. Marsh: --Your Honor, there are a number of habitual sentencing enhancements, one of which specifically relates to driving.

I can't say that it is based on substantial--

Justice Sonia Sotomayor: So it's possible that there is a -- there's a use of the difference between the two categories that might not be implicated in this case, but may lay the foundation for an enhancement later?

Mr. Marsh: --Yes.

That's a good point, Justice Sotomayor.

The enhancements generally in Indiana relate to previous convictions, and so I can't say for sure, but it's entirely possible that (B), (b)(1)(B), would be a predicate crime for a habitual traffic offender, which is what it's called.

Justice Sonia Sotomayor: In your brief you take issue with the government's definition of "aggressive", but would you give us yours?

Mr. Marsh: Well, Your Honor--

Justice Sonia Sotomayor: How would you define it and on what basis?

Mr. Marsh: --Your Honor, the best definition of "aggressive" that I've seen was in the First Circuit opinion in the Herrick case which is cited in our brief, which the First Circuit refers to as forceful action, especially where intended to dominate or master.

But on general everyday language, it strikes me that when a law enforcement officer wants somebody to stop, whether they're in a vehicle or not, the fight or flee sort of comes into play.

And the person who responds by going toward the police officer and resisting in that way, which is the first part of this Indiana statute, would be acting in an aggressive way.

The person who flees is not acting in an aggressive way.

They're trying to avoid the confrontation, trying to get away from the law enforcement.

Justice Elena Kagan: Mr. Marsh, I take it that you would agree that (b)(1)(B) is a violent felony under -- under ACCA; is that right?

Mr. Marsh: Your Honor, it may very well be.

It certainly would satisfy the risk element, similar in risk to the Begay case.

I think it would still have to be decided whether it's violent and aggressive, but it may very well be.

Justice Elena Kagan: Well, if we think that (b)(1)(B) is a violent felony under ACCA and we know that (b)(1)(A) and (b)(1)(B) can receive the same punishment, that they're both classed as a class D felony, why should we make the distinction between the two under ACCA?

Mr. Marsh: Your Honor, I would suggest because the Indiana General Assembly has decided in enacting this legislation that some vehicular fleeing presents a substantial risk of bodily injury to another and some doesn't, and they've drawn this distinction.

Justice Antonin Scalia: I presume if--

Justice Elena Kagan: But these are not nested offenses.

These are not -- these are not lesser included offenses.

Each has an element that the other lacks, and both are classed with -- apparently that the -- that the State thinks of them as equally severe.

And if one is a violent felony under ACCA, there's an argument that the other should be treated in the exact same way.

Mr. Marsh: Your Honor, I would suggest that the State doesn't treat them as equally severe.

The range of punishment for a class D felony, which both of those crimes are, is all the way from zero to 3 years in prison, and the actual conduct undoubtedly is a factor in what the person's ultimate sentence will be.

Justice Antonin Scalia: --And it may well be that in deciding whether to accept a plea bargain of being guilty of (A) rather than going to trial on B, if your client has two violent felonies already on the book, you might take -- take the plea bargain under (A) lest you run afoul of the Violent Felony Act.

Mr. Marsh: Yes, Your Honor, that's of course entirely possible.

But again, just as with the categorical approach, the Court cannot take into account the motives of prosecutors.

I would suggest the motives of defendants and defense lawyers can't be taken into account, either.

Further, I think it's more important that when Indiana enacted this statute, it was not thinking of ACCA and predicate crimes, I assume.

I don't think the legislature takes those kind of things into account.

Justice Samuel Alito: Suppose the legislature were to repeal (b)(1)(B).

Would the offense for which Mr. Sykes was convicted then become an ACCA offense?

Mr. Marsh: Your Honor, that would be a question that would have to be decided on the basis of whether there's some basis to -- well, first of all, determine whether it's violent and aggressive.

My position would remain it's still not violent and aggressive.

But even on the second part of the Begay approach, this Court has not seen anything that gives you any basis for knowing what the risk of injury is.

Justice Antonin Scalia: I don't understand your answer to that question.

I would have thought that your answer if you're insisting on a categorical approach would be no, that there's nothing in, in (3) that requires any violence at all.

Just fleeing by visible or audible means, just, just flees, that's all it says.

Mr. Marsh: I'm sorry.

I understood the question to be that (A) is repealed and (B) is left in place?

Justice Samuel Alito: No, it's the opposite.

If the aggravated offense -- you rely on the aggravated offense--

Mr. Marsh: Right.

Justice Samuel Alito: --in large part as a basis for your argument.

Your argument -- one of your main arguments, as I understand it, is that what I'll call the simple offense doesn't qualify under ACCA because cases involving a serious risk of bodily injury fall under the aggravated category, and my question is whether a repeal of the aggravated offense would change -- would then convert the simple offense from a non-ACCA offense to an ACCA offense.

Or you could ask it a different way.

If State one has the simple offense and the aggravated offense, State two has just the simple offense, is the simple offense an ACCA offense in one State and not in the other State even though the elements are exactly the same?

Justice Antonin Scalia: That's a good question.

Mr. Marsh: Your Honor, the equation would be different because of the significance of the (B) offense.

So that's not exactly our case.

But I will adopt Justice Scalia's answer, which I think is exactly right.

I -- it still would not be something that's violent or aggressive.

Justice Samuel Alito: But you're answering my question by making a totally different argument.

Insofar as you're relying on the aggravated offense, the presence of the aggravated offense, I would appreciate an answer to it.

Mr. Marsh: Justice Alito--

Justice Samuel Alito: In other words, you're saying -- maybe I haven't made myself clear.

Justice Scalia's answer, which you have adopted, is that if you look at (A) by itself, forget about the aggravated offense completely, it doesn't qualify under ACCA, and that's -- that's one argument.

But your other argument is that (A), the simple offense, doesn't qualify because of the presence of (B).

And I'm trying to just see whether that makes sense.

Mr. Marsh: --Justice Alito, I think it breaks down to the two parts of the Begay test.

In order to be a violent felony, it has to be similar in kind and similar in degree of risk.

The existence of (B) makes clear that the degree of risk for violating (A) is not the same, because if you accept the continuum of behavior as created by the Indiana General Assembly, the person who's convicted of (A) has not created a substantial risk of bodily injury.

Justice Sonia Sotomayor: Counsel, have you done or looked at -- not every burglary has a risk of harm to another or results in harm to another.

The general definition of burglary is entering without permission and intent to commit a crime, and generically the crime doesn't have to be physical injury to others.

Mr. Marsh: Right.

Justice Sonia Sotomayor: Yet ACCA defines burglary as a qualifying crime of violence.

It's measuring risk, not by the elements of that crime, but by something else, by some measure of incidents in which violence might occur.

So how is that different than the government's argument here and the question that Justice Breyer asked you, which was: It is true, potentially there's some forms of fleeing that might not pose a risk of injury, but statistically there's a large number of incidents in which violence follows.

So how is that different than burglary?

That's really my question.

What -- it can't be that the elements have to pose a risk of injury, because burglary doesn't do that.

So what -- how do we measure it?

Mr. Marsh: Your Honor, the inquiry, as the Court said in James, is whether the conduct encompassed by the elements of the offense presents the risk, and that's the -- the determination that the Court has to consider.

It is not necessary, and I'm not contending, that this crime is a violent felony only if every conceivable violation of the statute constitutes a risk of danger.

Justice Sonia Sotomayor: So if you're not doing that, that's my question: Where do we draw the line?

Mr. Marsh: You draw it -- I'm sorry?

Justice Sonia Sotomayor: Where do we draw the line?

Mr. Marsh: You draw the line--

Justice Sonia Sotomayor: I think that was what Justice Breyer was trying to ask you earlier, which is: When do we say that, as in burglary, that some risk is more likely to follow than not in a particular type of crime?

Mr. Marsh: --The line is defined by the statute: Serious potential risk of physical injury to another.

Now, how do you make that determination?

Well, the Court made clear in Chambers that empirical data is one way to do it.

There isn't any here because of all the empirical data presented by the government.

It relates to vehicular fleeing as if there was one crime of vehicular fleeing, and most of it is -- is calculated based on death or injury, and that of course is not the category that we have here.

Justice Antonin Scalia: I suppose that if we agreed with you that whether it is a violent crime depends upon what other prosecutions for fleeing could have been drawn.

If we agree with you that (1)(a) is negligible because there are other bigger ones for which he wasn't charged, we could leave open the question of what -- what happens in a State that has only one crime for fleeing, and we would -- then we would have to confront the question that Justice Sotomayor has asked.

But if we accept your notion that -- where you have a gradation that is adopted by the State, the lowest gradation cannot be determined to have a high percentage of bodily risk, right?

Mr. Marsh: Yes, that's correct, Justice Scalia.

Justice Stephen G. Breyer: My problem is there is arguably not here a gradation.

Suppose it only had (A).

If it only had (A), for me -- I'm not saying for you -- this wouldn't be a tough case.

That is to say, I can't imagine a person running away from a police in a car where there isn't a real risk to other people.

He's speeding, you know.

I would think -- I don't see how you get away from the policeman unless you speed, and there are going to be pedestrians.

Who knows?

But I think that was pretty -- at least as bad -- at least as much of a risk as burglary.

So that would be the end of the case.

It would be simple.

At least assume that.

Now, then, however, suppose we have a State which says, but it's a worse thing to run away and create a risk, in a separate provision.

It's a worse thing.

All right?

Then I would say, huh, now I'm not so sure.

Why didn't they charge the worse thing?

This must be reserved for cases where it isn't.

So here we have a rather weird situation.

They're saying it's a different thing, but not a worse thing.

So now I say: Well, why didn't they charge -- now I don't know.

I don't know why they didn't charge the separate special one.

I don't know what the facts are.

I'm puzzled.

Now, that's your case.

That's where I needed the enlightenment.

So what's the enlightenment?

Mr. Marsh: Your Honor, it's not a weird situation because the Indiana definition of the crime of vehicular fleeing is not one all-encompassing crime.

It's -- they took the all-encompassing generic vehicular fleeing and divided it into five subparts, which I suggest makes it much easier to resolve the (b)(1)(A) question.

If there is no other categories, that would be Justice Scalia's point, I think, and then it would be a much harder question.

And it may very well be that it would be considered a violent felony.

For one thing--

Justice Samuel Alito: Isn't it still an empirical question?

If we were to look at all of the cases that are prosecuted under what I'll call the simple offense, we might discover that those are all cases in which there is no serious potential risk of physical injury created because all of the risky cases are prosecuted under the aggravated label.

We might also find that there are still a great many cases that involve a serious potential risk that are prosecuted under the simple category.

So the fact that there's a gradation doesn't allow us to escape the empirical issue, does it?

Mr. Marsh: --No, I think you're exactly right, Justice Alito.

That would be possible.

Empirical data could show what you have just suggested.

Of course, that would be indicating that the Indiana General Assembly didn't have any rational basis for dividing the two, but the important thing here is--

Justice Samuel Alito: I wouldn't say that they didn't have a rational basis for dividing it.

It would just show a pattern of prosecution and plea bargaining.

That's what it would show.

Mr. Marsh: --But the important thing here, Your Honor, is there simply is no such data before this Court.

There is no empirical data regarding (b)(1)(A).

Justice Samuel Alito: There never is really reliable empirical data, almost never, for any of the issues that have to be decided under the -- the catch-all, the residual clause, of ACCA.

It has to be based on basically common sense and experience, doesn't it?

Mr. Marsh: Your Honor, I suggest that common sense and experience is not a reliable, predictable way of deciding these cases.

You're right, there frequently is not empirical data.

If there's not either empirical data that demonstrates the danger involved or a crime that -- where the danger is pretty obvious so that there would be widespread general agreement -- common sense is what has led to a lot of the conflicts in the circuits, I would suggest.

I reserve my time, Your Honor.

Chief Justice John G. Roberts: Thank you, Mr. Marsh.

Mr. Wall.

ORAL ARGUMENT OF JEFFREY B. WALL ON BEHALF OF THE RESPONDENT

Mr. Wall: Mr. Chief Justice, and may it please the Court:

Just a very quick moment of history, I think, provides some useful background, and I'm on page 3A of the appendix to the government's brief.

Until 1998, subsection (B), which we've been talking about, was the only class D felony that involved vehicular flight in Indiana law.

In 1998 the Indiana General Assembly broke out and enacted subsection (A) so that in cases of vehicular flight prosecutors would not have to prove risk; they would just have to prove that defendant used a vehicle.

Since 1998, I have found 14 cases in the Indiana Court of Appeals, one of which is the Hape case that Justice Alito cited earlier.

All of them, so far as I can tell, proceeded under (A) and not under (B).

Of those 14 cases, 13 have enough facts to tell what the flight was -- of what kind.

10 involved speeding, disregarding traffic laws, or striking an officer with a vehicle.

Of the other three, only one involved non-risky behavior, and even that was not a defendant who drove a short distance and then pulled over.

It was a--

Justice Antonin Scalia: These were all litigated cases?

Mr. Wall: --Yes, Justice Scalia, these were all litigated to conviction and taken up on appeal, and the Indiana Court of Appeals addressed various legal issues--

Chief Justice John G. Roberts: Well, but that's not -- 14 isn't very many.

And I assume the vast majority of these cases aren't litigated.

Mr. Wall: --I think that's right, Mr. Chief Justice.

The government's point is that here we have extensive data, both empirical and otherwise, that indicates that flight as a basic offense is very dangerous.

Chief Justice John G. Roberts: Well, I read your brief and I was -- I read your brief and was surprised that when you're -- the list -- one of the things you talk about to show that is media reports.

You usually have a more concrete basis for -- for speculation than media reports.

Mr. Wall: Mr. Chief Justice, if that is all we had put forward, I might agree with you, but we also put forward extensive statistical data.

My point is just that Indiana is typical.

It's dangerous everywhere else.

It's four times as dangerous as arson.

It's more dangerous than household burglary.

There's nothing different about Indiana.

If one looks through these cases, these flights in Indiana are typically quite dangerous.

Justice Antonin Scalia: Suppose you have a State that has a separate crime for trespassing, criminal trespass, and you're saying that if -- if you could show that a large number of cases that were brought under criminal trespass in fact could have been prosecuted under burglary, then criminal trespass would qualify as a -- as a violent felony.

That doesn't seem -- that doesn't seem to me right.

Mr. Wall: Justice Scalia, I thought--

Justice Antonin Scalia: Just because prosecutors make that choice, that doesn't establish that the elements of the crime, which is what we focus on in deciding whether it's a violent felony, fill the bill.

Mr. Wall: --That's right, this Court looks at the conduct encompassed by the elements in a typical case.

And in a typical case of vehicular flight what we have, according to the data, is someone fleeing police at an average of 25 miles an hour over the speed limit, someone who is in a typical case young, male, unlicensed, under the influence of alcohol, and who places the lives of other motorists, pedestrians and police in harm's way.

Your approach to ACCA, Justice Scalia, has been to look at the conduct encompassed by the elements and ask whether the risk from that conduct is at least as great as the -- the least risky enumerated offense.

And here--

Justice Sonia Sotomayor: That ignores the in-kind requirement of Begay, because you seem to be confusing the risk of violence with the in-kind inquiry, and that's where I'm trying -- I would like you to concentrate a little bit on, which is in burglary the defendant is breaking into generally a place and going without permission, with an intent to commit a crime.

How is that comparable to merely not stopping when a police officer tells you not to stop?

How is that an in-kind--

Mr. Wall: --Justice Sotomayor, it's absolutely true, there are two parts to the test, and we've been talking about the first risk.

On the second prong the purposeful, violent or aggressive character of the conduct, here I think there are three distinct things that make it purposeful, violent, and aggressive.

First, you have the defiance of the officer's order, which can cause injury at the scene.

It has in some Indiana cases, but at least caused the officer to give chase.

Second, you have the very real prospect--

Justice Sonia Sotomayor: --What you're doing is saying I'm not -- you're not even saying I'm not stopping, you're just driving away.

Mr. Wall: --Well, yes, but you are driving--

Justice Sonia Sotomayor: Now, how is that--

Mr. Wall: --You're driving away in response to an officer's command to stop.

You're calling the officer to give chase.

You -- you're -- pursuit is likely.

And even when there isn't pursuit, these offenders drive typically very recklessly, and then you've got the confrontation when the officers have to--

Justice Sonia Sotomayor: --But that's the risk of--

Mr. Wall: --terminate the flight.

Justice Sonia Sotomayor: --That -- that -- that is all the risk question, and you're confusing the police actions with the defendant's, because you're talking about the defendant responding to a police pursuit.

So what -- what is in the act of the crime that makes it in-kind to burglary?

Mr. Wall: Let me analogize--

Justice Sonia Sotomayor: I concentrate on burglary because the others don't--

Mr. Wall: --No, let me concentrate on burglary, then, and analogize it to what this Court said in James.

It said the risk of attempted burglary--

Justice Sonia Sotomayor: --James -- James predated Begay.

So--

Mr. Wall: --That's right, but I -- the Court has talked about, even in Chambers, about the risk of a violent confrontation with law enforcement officials, and it's done that under the Begay part of the test.

And whereas that confrontation is only possible with burglary, it's necessary with this crime.

It requires that an officer order you to stop and that you flee.

So that -- that confrontation, which is only a possibility with burglary or attempted burglary, is elevated to a certainty with this offense.

Justice Elena Kagan: Well, Mr. Wall, wouldn't that suggest that if I just ran from a police officer, it would be a violent felony under ACCA?

Mr. Wall: I think it -- it would suggest that, Justice Kagan, but I think flight on foot is unlikely to satisfy the risk part of the test.

I think certainly this case is much easier on the -- the James part of this test.

I think the -- the flight in a vehicle poses risks, very real risks, to other motorists and pedestrians and police that flight on foot doesn't pose, although you would still have the confrontation when the flight on foot was terminated, so I think some of the arguments would translate, you're right.

I think there would be more difficult questions, though, on the risk prong.

This is a much easier case.

Justice Antonin Scalia: Do -- do words mean nothing?

I mean, we're talking about a violent felony.

That's what the Federal law requires.

And -- and you want us to hold that failing to stop when a police officer tells you to stop is a violent felony.

That -- that seems to me a -- a -- a big leap.

I mean, words have some meaning, and Congress focused on violent felonies.

Mr. Wall: Justice Scalia, words do have meaning.

But the words here are very broad:

"Serious potential risk of physical injury to others. "

And as you yourself have recognized in -- in multiple opinions, what those words call for is a comparison of risk between an offense and ACCA's enumerated crimes.

This offense, simply put, is more risky.

It's four times as risky as arson in terms of injuries and fatalities.

Chief Justice John G. Roberts: Well, one of the--

Mr. Wall: It's more risky than household burglary.

Chief Justice John G. Roberts: --Another word is "aggressive" in Begay, and that's where I have a little difficulty with your argument.

It seems to me, this is the exact opposite of aggressive.

He's running away.

Certainly the other option is to turn and confront, and he doesn't want to.

There's nothing aggressive about running away.

Mr. Wall: Well, there is, Mr. Chief Justice, when you're doing it in a vehicle, and typically at high speeds.

So, in Chambers--

Chief Justice John G. Roberts: Well, that's the risk of violence, I understand that, and purposeful, which I guess everything is.

But those are the three words,

"purposeful, violent, and aggressive. "

I'll give you purposeful, I'll give you violent, but aggressive?

Mr. Wall: --Mr. Chief Justice, if you give me those two I think we're home free, because this Court said--

[Laughter]

--in Chambers--

Chief Justice John G. Roberts: I think you're two-thirds of the way home free.

[Laughter]

Mr. Wall: --I'll take it and let's work on the last third.

So the -- what this Court said in Chambers is not all attempts to evade authorities are of the same stripe.

So, it contrasted escape from prison with failure to report.

Failure to report, you could do at home on your couch; you could just fail to show up.

And the Court said: Look, that's passive; it's a crime of inaction.

This is not that.

It's not sitting at home on a couch.

This is quintessentially a crime of action.

Chief Justice John G. Roberts: There's a difference.

The opposite of passive is active.

It's not aggressive.

Mr. Wall: Well, but--

Chief Justice John G. Roberts: This is active.

He's running away, but--

Mr. Wall: --I think--

Chief Justice John G. Roberts: --What's the aggression?

Mr. Wall: --But it's very -- it's hard to see what the difference would be between this and escape from custody.

And this Court clearly indicated in -- in Chambers that escape from custody was different from failure to report under the statute in front of it.

And I think this is as dangerous, maybe even more dangerous than escape from custody.

If the Court were going to say that all running away could not be aggressive within the meaning of that word for Begay purposes, so too escape from a maximum security Federal prison, which in some sense is just running away, but it is extremely aggressive and it's extremely risky to others.

Justice Elena Kagan: Mr. Wall, do you think that speeding or drag racing qualifies under your understanding of the test?

Mr. Wall: Justice Kagan, that's a difficult question.

I don't know that I've seen any attempt to fit that offense in under the ACCA.

I think that drag racing, where you're talking about speeds of 150, 160, 170 miles an hour, might qualify, but I haven't seen any cases like that.

Justice Antonin Scalia: What about speeding, just -- you know, you're going 15 miles over the speed limit?

Mr. Wall: I -- again, I--

Justice Antonin Scalia: Is that a violent felony?

Mr. Wall: --Justice Scalia, I think then we have a serious question about the first part of the analysis and the -- the risk test.

I mean, 10, 15 miles over -- I mean, speeding as a generic offense is likely to -- I mean, it encompasses categorically all speeding offenses, many of which are not that -- not likely to pose a serious risk to others.

So I -- I -- we would have to look at the -- the data.

What we do have here is data that says this offense is four times as risky as the enumerated offense of arson.

So I -- I -- speeding would be a difficult case.

So far as I know we -- the government's never tried to make the case.

Justice Samuel Alito: Is speeding a felony?

Mr. Wall: Not as far as I know, not the basic offense.

Now, whether in a Begay-type sense you might have some recidivism enhancement under State law that would get you there, I don't know.

But I -- again, I haven't seen any case that involved that.

Justice Stephen G. Breyer: Am I right?

When you replied to Justice Scalia, I thought that he had said that we were dealing with a statute, and you seemed to agree, that said it is a crime to flee a policeman after being ordered to stop.

But I thought we were dealing with a statute that says it is a crime to flee a policeman after being ordered to stop, in a vehicle.

Mr. Wall: That's right.

That's right.

That's the offense here.

Justice Stephen G. Breyer: And so you're -- okay.

Mr. Wall: It's the vehicular flight offense.

And one -- you know, I will take one issue with -- with -- you know, what my friend on the other side has said, which is (A) and (B) are not tiered, they're not greater and lesser offenses under State law.

Justice Elena Kagan: But Mr. Wall, suppose they were?

I understand your point that they're not, and you might be right about that.

But let's suppose that they were.

Let's suppose you had a three-tier set-up.

One was simple flight; one was flight that causes risk of injury; one that is a flight that causes injury.

And let's even say that the simple flight -- no, let's -- let's call them all felonies, but different classes of felonies.

What would happen in that case?

Would you still be here saying that the simple flight felony is a violent crime?

Mr. Wall: Yes.

It's a tougher case, but we would be here saying that, because when you're looking at an offense categorically, for instance arson, you've got to look at all fires, all intentionally set fires, the ones that don't hurt anybody, the ones that do, and the ones that kill people, even though the fires that kill people will be prosecutable in most jurisdictions as a greater offense, like felony murder.

And so when you're looking at it categorically you have got to look at all of the conduct in that category, even conduct that may be prosecutable under some greater offense.

I think, you know, the other side sort of relies on this assumption that all conduct which might satisfy the greater will necessarily be prosecuted under the greater; and as a legal matter, it's included within the lesser and as a factual matter it's just not true that it always gets prosecuted under that greater offense.

So it would be a tougher case.

It would make our case more difficult, but I think legally and factually the government's answer would be the same.

Justice Elena Kagan: I -- I asked my clerk to just do a survey of the States, and he came up with -- and I'm sure that this is rough -- but that 46 of the States have these tiered systems.

Now, there may be some questions as to some of them, like you've raised some questions about Indiana's, but that 46 States essentially conceive of this as two different kinds of conduct, one which is the violent kind and the other which is the not violent crime.

Mr. Wall: Well, my State law research is a little different from your clerk's.

I've got 37 States and D.C. But the -- the point is that under the nested statutes, the aggravator isn't always like this one, risk.

Sometimes it's, as in Indiana, injury or death.

And where you're talking about actual injury or death, those aggravators far outstrip the level of potential risk that ACCA requires.

So I don't think in those States Petitioner would give an argument that those aggravators would affect at all the analysis of the basic offense.

There are a handful of States that, unlike Indiana, have as an aggravator risk, though even some of those States treat the basic offense as a felony, which is I think a judgment by the State that, even in the basic case this is risky conduct, deserving of severe punishment under State law.

So, you know, there are nested statutes.

Justice Antonin Scalia: Not necessarily risky.

Conduct that shows disrespect for the law.

Mr. Wall: Justice Scalia, I mean I -- again, I think it is significant that in 1998 the General Assembly broke this out as a separate subsection and said: We're not even going to require prosecutors to prove risk.

I think that represents a judgment by the State that the conduct is risky on a typical basis.

We just want the State to prove you used a vehicle.

Justice Antonin Scalia: Or even if it isn't risky, you should not thumb your nose at the police when they tell you to stop.

Mr. Wall: Well, that's right, and the reason--

Justice Antonin Scalia: Risky or not.

Mr. Wall: --The reason you shouldn't, Justice Scalia, is because that's the kind of purposeful, violent, and aggressive conduct the State wants to deter by treating as a felony.

But I -- I mean I -- whether one looks at the risk prong and the data and the cases in Indiana or elsewhere, or whether one looks at the character of the conduct, this offense is just different in both degree and kind from the offenses that this Court has said fall outside of ACCA's residual clause.

It's much more like escape from custody, it's much more like the enumerated offenses.

Indeed, the risk of confrontation is certain.

I mean, I -- it's important, I think, that -- I mean I -- these flights are not calm affairs.

They're dangerous events.

The average speed that the offender is traveling nationwide is 25 miles an hour over the speed limit.

This is someone who on average is young, unlicensed, influenced by alcohol--

Chief Justice John G. Roberts: I thought there was -- I don't know where -- I don't remember where it was from.

I thought there was a development of best police practices that you don't just chase people.

You know, if they're going 30 miles an hour over the speed limit through a school zone, that doesn't mean the police officer should do that.

You know, you call ahead, they put these strips on the road, whatever.

Mr. Wall: --Mr. Chief Justice, that's right.

I think police agencies have been struggling with this question, which is why there's a lot of data on police pursuits, frankly, especially in the last 10 or 15 years.

I think some of them are becoming more restrictive, and so the data picks up pursuits.

It doesn't pick up all flights.

And I think if there were sound evidence that when people were not pursued they were actually driving at low speeds and safely, that would affect the data, though not so much that it would move it outside of similarity to the enumerated offenses.

But I think the -- the -- the data is pretty good in indicating that the typical flight is -- really does pose a serious potential risk of physical injury to others, a risk that materializes more often than with other crimes that Congress clearly intended to fall within the ACCA.

Justice Samuel Alito: Could I ask you this: If a person is convicted of vehicular flight that causes death, is that aggressive conduct?

Mr. Wall: Yes, the government would say it is, Justice Alito.

Justice Samuel Alito: Is the conduct there any different from the conduct when death doesn't result?

Mr. Wall: No, Justice Alito.

The government's answer is that categorically the behavior is aggressive and that in some cases it will result in injury or death and in some it will not, but in all cases it carries that potential.

Chief Justice John G. Roberts: Doesn't whether it's aggressive or not depend upon how it happened?

I mean, it could be -- I mean, the flight puts in place the potential for -- for violence, I agree with that; but if somebody just, you know, jumps out between two cars while the fellow's fleeing, how is his conduct changed to aggressive?

Mr. Wall: It's--

Chief Justice John G. Roberts: It's not like he -- it's not like he's aiming for the guy.

I mean, it's putting it in a dangerous situation.

It's purposeful.

Again, I'll give you violent in the sense that it has that potential.

But he didn't want to hit the -- the person.

It's not aggression against the person.

Mr. Wall: --Chief Justice, there's no question that on a case by case basis you could flee in a way that was not very risky, that was not very violent, or not very aggressive.

And if this Court went on a case-by-case basis, then we'd look at the conduct here and the government would still win, because this is the typical case.

Justice Antonin Scalia: But he's saying even when it's risky it's not aggressive.

Mr. Wall: And I -- my--

Justice Antonin Scalia: You can be risky and not aggressive, can't you?

Mr. Wall: --Yes, on a case-by-case basis.

But categorically, which is what this Court looks at, the conduct encompassed by the elements in the ordinary case, in the ordinary case, the character of the conduct is aggressive.

Chief Justice John G. Roberts: Who's he aggressing against?

When someone sees the police and says I'm getting out of here and drives down the highway, say, at 80 miles an hour, you know, 25 miles above the speed limit, who is he -- I'm sure it's not the right verb, but who is he aggressing against?

Mr. Wall: Well, I don't know that he is aggressing against anyone, in the same way that if I recklessly I fire a gun into a large crowd of people, you know, I haven't aggressed against anyone in particular.

He's aggressed into anyone who strays into his field of flight and who could be injured by what is typically a high-speed flight and pursuit.

So I don't -- there is no specific target, but that will be true of many of the crimes that are violent felonies, that the -- that the aggressive nature of the conduct is directed generally.

Chief Justice John G. Roberts: No, it's not that there's no specific target.

There's no target.

What this guy hopes is that nobody gets in his way.

Mr. Wall: Well, so, too, with the burglar, who hopes that no one will come home; maybe even the arsonist who hopes no one is in the house; or the extortionist who hopes someone will pay, so he won't have to use violence.

Justice Antonin Scalia: But they're mentioned; they're mentioned.

They're mentioned, and you're trying to get this in under the residual clause.

Mr. Wall: That's right, Justice Scalia, a residual clause that, as you yourself have recognized, is extremely broadly worded.

It -- it abstracts out as the quality of the enumerated offenses that they create a serious potential risk of physical injury to others.

And I can't find any metric along which flight doesn't do that, whether one looks through the cases, media reports, the statistical data, whatever one -- Indiana, nationally -- whatever standard or metric one uses, this is an extremely risky offense to others.

And I, you know -- so it's very difficult to figure out what test, what interpretation of that language would exclude this from ACCA.

Justice Stephen G. Breyer: Suppose you have one of 38 States which treat this -- treat the general offense as a misdemeanor, and then make it a felony if you put somebody at risk.

Just reading that statute you would think those 36 States when they have the general offense do something where the guy acted pretty trivially; and where it's a felony, he actually puts somebody at risk, sped off, wouldn't that be your normal instinct in just guessing from the -- from the language?

Mr. Wall: Justice Breyer the--

Justice Stephen G. Breyer: How are we supposed to treat those, where there's a misdemeanor--

Mr. Wall: --The States--

Justice Stephen G. Breyer: --In your opinion, it's just a misdemeanor, we also treat it the same way; say it's a violent felony?

Mr. Wall: --The States treat it differently.

Some, as Indiana--

Justice Stephen G. Breyer: All right.

Then that's actually my question.

Are we supposed to, in this Federal statute, try to track whether it's a misdemeanor, what the language is?

We're going to have a nightmare of a Federal law for States to -- for judges to figure this out.

I mean, every little variation in thousands and thousands of possible variations could make a difference as to whether it's violent or not, depending on data which no one will have.

Mr. Wall: --Justice Breyer, I don't think so.

If the Court were to affirm here, what that would mean is that the offense of flight is a violent felony insofar as you have a predicate conviction under a State statute where it's been punishable by up to a year, and so it could qualify for ACCA coverage.

Now, some State convictions will have been treated as misdemeanors and won't be eligible for ACCA, but to the extent the State treats it as a felony it's risky enough to satisfy the residual clause.

Now, if the Court treats (A) and (B) as what they are not, which is greater or lesser, then yes, I think there will be problems with various State statutes, as Justice Kagan pointed out, and this Court may have to clear it up down the road.

But if it treats this basic offense as what it is, not a greater or lesser, but alternative means of proving a single offense that is risky, that would, I think, would take care of all flight cases going forward.

Justice Elena Kagan: Well, on this question of whether this statute is greater or lesser, it's greater or lesser if you just understand (b)(1)(A) as confined to vehicular flight.

In other words, if one looks only at vehicular flight, then (b)(1)(A) and (b)(1)(B) are indeed greater or lesser offenses.

Mr. Wall: Yes, Justice Kagan, if you're looking only -- I take it you're looking only at the vehicle prong of (B), but the test in Schmuck is whether it's impossible to -- to commit the greater without committing the lesser.

It's not impossible to commit (B), because it does have the two other prongs, and I think--

Justice Elena Kagan: Do you think that if I flee in a vehicle, I could be prosecuted under both and receive sentences under both?

Mr. Wall: --No, I don't think so, because I think the -- there is no evidence -- no case in Indiana that I'm aware of.

There's no evidence that the General Assembly intended these to be multiple punishments for a single incident.

There are alternative means of proving a single offense.

The State has always treated them that way, so far as I can tell.

I've not -- I've seen prosecutions since 1998 that were all under (A).

I haven't seen anything that went under (A) and (B) and tried to get multiple punishments, and I think that would be a serious problem.

Justice Sonia Sotomayor: --I'm a little confused by what you said and what point you're making.

You don't think that (B) is a lesser included of (A)?

Is that -- no, that (A) is a lesser included of (B)?

Mr. Wall: Your Honor, the government does not think that (A) is a lesser included of (B).

Justice Sonia Sotomayor: You can't commit (B) without committing (A) first.

(B) has just one additional element, but all of the elements of (A) are part of the elements of (B), so how can it not be a lesser included?

Mr. Wall: Well, the element of (B) that's different, Justice Sotomayor, is the

"while committing any offense described in subsection (A). "

So you can be resisting an officer or you can be obstructing the service of process and you can endanger someone in various ways, including with a vehicle, and you will have violated (B), and you can be prosecuted for that, and there are cases in Indiana like that.

And you have not -- you have not been fleeing in a vehicle from an officer at any point, so you haven't violated (A).

So the existence of the other prong there -- that's what I was trying to get into with Justice Kagan -- means that this is not a greater or lesser under Schmuck.

Justice Elena Kagan: But as a vehicular flight only, it would be greater or lesser.

Mr. Wall: If you divided up the prongs under Schmuck, but I think the Schmuck -- what follows logically from that test is that you look at the entire offense and ask whether it's possible to commit it without committing the lesser, and that test is not satisfied here.

I don't think you carve it up prong by prong.

Justice Antonin Scalia: I'm -- this is greater or lesser for purposes of what?

Double jeopardy?

Mr. Wall: No, it's greater or lesser for purposes of Petitioner's argument that you should assume that every risky flight gets prosecuted under (B) and hence (A) is a non-risky offense, and that argument fails for multiple reasons, one of which I was trying to spin out.

It's not even true that this is greater or lesser.

Justice Antonin Scalia: I just don't follow that argument.

I mean, it -- it seems to me that, yes, you could -- you could run afoul of (B) by committing an offense under subsection little (a) in some other ways, but if you run afoul of (B) by committing the offense of -- of flight from a law enforcement officer, it seems to me that that automatically includes (A).

Mr. Wall: Well, except that there are two alternative means of proving the same offense under State law.

They have the same State law penalties, so the prosecutors can go under (A) or they can go under (B).

And as far as I can tell, for the last, say, 13 years, they've been going under -- they've been going under (A).

So it's not -- Justice Scalia, it's not -- there are aggravators in this statute for injury or death.

They're the ones that are in (2) and (3), the class (C) and class (B) felonies, but this is not a greater or lesser.

It's -- they're alternative means.

I think only if you've got -- set that aside would you get to the sort of Schmuck analysis that I was going through with -- with Justice Kagan.

I think one of the important things to recognize about this offense is that, you know, in the -- 50 percent of these offenders are ultimately charged with a violation that's unrelated to their flight, a serious felony unrelated to their flight.

And the reason I think that's important is because what you will look -- the reason that they're traveling at such high speeds, the reason they're evading officers, the reason the typical case is not someone just going a couple blocks and stopping, is because they've got drugs in the car or guns, they have parole violations or outstanding warrants.

It is the background against which I think you have to assess the character of the -- of the conduct here.

And whether you're looking at it under risk or under the character of the conduct, the government submits that it easily satisfies the residual clause.

If there are no further questions, thank you.

Chief Justice John G. Roberts: Thank you, Mr. Wall.

Mr. Marsh, you have four minutes remaining.

REBUTTAL ARGUMENT OF WILLIAM E. MARSH ON BEHALF OF THE PETITIONER

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

I would suggest that it's helpful to start to look at the in-kind part of the Begay test on a more general level than we've been discussing.

Justice Sonia Sotomayor: Could you succinctly tell me how this is any less purposeful, aggressive, or violent than escape from custody?

What's your best answer to why this is just not identical to escape, which is a fleeing-from situation just as this is.

Mr. Marsh: Justice Sotomayor, the basic distinction is that the person who's charged with escape, assuming that escape means escape from a secure institution or from a person, is that the person is in custody, and it takes, in the ordinary case, aggression and violence to get out of the custody of that person.

The person who is fleeing is trying to avoid being taken.

Justice Sonia Sotomayor: Well, here an officer has told you to stop.

They're trying to effect custody.

I don't know what the aggression or violence is, other than, you know, breaking a window, doing something.

It doesn't require, the escape, that you actually injure someone to get out.

It's just that you run away.

Mr. Marsh: I think the phrase that you just used is the distinction that I was referring to.

The person who is fleeing is trying to avoid being in custody.

They're acting in a -- instead of going toward the officer and resisting, they're going away from the officer.

The person who is in custody has to use some kind of force, and in Johnson, of course the -- this Court referred to violent as the--

Justice Samuel Alito: That's not true.

There are -- you can -- there are prison escapes all the time where it is done through subterfuge.

Mr. Marsh: --That's -- that's true, Justice Alito, but as the Court held in James, finding an example of a case that would not be violent does not solve the ordinary case.

The ordinary case, I would suggest, requires something more than that.

Chief Justice John G. Roberts: Well, it's, for me, anyway, an important question.

I'll -- I'm not sure the ordinary case does.

I assume the ordinary prison escape is -- I don't know -- over the wall, under the tunnel or, you know, while the guard's looking a different way, or some -- I don't know that it's typical that when the guard is there, you say, now's my chance.

The typical case doesn't involve aggression.

Mr. Marsh: Of course the ordinary case or the typical case, Mr. Chief Justice, is that the Court needs to look at the conduct encompassed by the elements of the statute, and so we would have to look at exactly what the statute requires.

The circuit courts have been very divided on escape.

In my circuit, the Seventh Circuit, the Federal statute, 751, has been held not to be -- which is a general escape statute -- not to be a violent felony.

But, again, the Court talks about the ordinary case in the James case for the purpose of disabusing the idea that one can't get out from under the violent felony designation just by coming up with a hypothetical case or an example where it can be done without -- without violence.

Here, I would suggest that counsel has just created for the Court some kind of a hypothetical case to define the typical or ordinary case.

This Court has never done that, and this Court said in James that it's important to stick to the conduct encompassed by the elements of the offense, because if we start factoring in other kinds of conduct, as several of the things which have been mentioned by counsel for the government, that begins to raise Apprendi problems, which is another whole issue.

But the Court said in James, and I would acknowledge is the law, that so long as the determination as to whether there's a serious potential risk of physical injury is made by focusing on the conduct encompassed by the elements of the offense, then there's not an Apprendi problem.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Mr. Marsh: Thank you.

Print this transcript Transcript: 

Justice Anthony Kennedy: This case, Sykes versus United States, is another in a series of cases the Court has decided under a federal statute known as the Armed Career Criminal Act, and that statute is commonly referred to as ACCA.

ACCA makes it a federal crime for convicted felon to be in unlawful possession of a firearm.

Now, the ordinary maximum sentence is 10 years of imprisonment.

But if -- when the unlawful possession occurred, the felon had three previous convictions for a violent felony, then ACCA increases the punishment to a minimum term of 15 years.

This case presents the issue whether flight from the police, when the felon uses a vehicle to flee, is a violent felony under ACAA.

The Court of the Appeals for the Seventh Circuit found that it is.

We agree and we affirm.

In determining whether an offense is a violent felony, the Court employs a categorical approach.

That means it looks to the elements of the offense as a general matter not to the particular facts in the record of conviction.

ACCA prescribes that a prior conviction qualifies if it is a crime enumerated in the statute, then there's a final clause, a residual clause and that residual clause says that an act is a violent felony if it otherwise involves conduct that presents serious potential risk of physical injury to another.

The question is whether a felon who uses a vehicle to flee from the police is covered by this residual clause and so, this case requires us to determine if vehicle flight from a police officer presents a serious risk of physical injury to another.

Sykes was convicted of vehicle flight under Indiana law, and that introduces a slight complication, and that's because Indiana has a statute with a separate provision for using a vehicle to resist law enforcement office -- law enforcement in a variety of ways including flight, where that resistance involves a substantial risk of bodily injury to -- to another.

Both relevant provisions carry the same penalties however, so they do not reflect an expectation that risky vehicle flights will be prosecuted only under the separate provision.

We hold that the bar in flight from police, when the defender uses a vehicle to flee, involves a level of risk that qualifies it as a violent felony for ACAA purposes.

The -- the determination of the fleeing suspect to elude capture, show -- shows an inherent lack of concern for others' safety.

However, he drives, the criminal attempting to elude capture, creates the possibility that the police will, in a legitimate and lawful manner, accelerate or use force to bring him within their custody.

Although not dispositive, statistics confirm this commonsense conclusion, for instance, personal injury rates for arson and burglary are about 20% lower than they are for vehicle flight.

The judgment of the Court of Appeals is affirmed.

Justice Thomas has filed an opinion concurring in the judgment.

Justice Scalia has filed a dissenting opinion.

Justice Kagan has filed a dissenting opinion in which Justice Ginsburg joins.