JOHNSON v. UNITED STATES
In 2010, the Federal Bureau of Investigation (FBI) began investigating Samuel Johnson based on his involvement in an organization called the National Social Movement. Later in 2010, Johnson left that group to found the Aryan Liberation Movement. In November of that year, Johnson told an undercover FBI agent that he manufactured napalm, silencers, and other explosives for the Aryan Liberation Movement in addition to possessing an AK-47 rifle, several semi-automatic weapons, and a large cache of ammunition. In April 2012, Johnson was arrested at a meeting with his probation officer and admitted to possessing some of the previously mentioned weapons.
A grand jury charged Johnson with six counts of firearm possession, three of which relied on his classification as an “armed career criminal.” This classification was based on the fact that he had three prior felony convictions that the district court designated as “violent felonies”—attempted simple robbery, simple robbery, and possession of a short-barreled shotgun. Pursuant to the Armed Career Criminal Act (ACCA), Johnson was then subject to a mandatory minimum sentence of 15 years. Johnson argued that the convictions in question should not be considered violent felonies and that the ACCA was unconstitutionally vague. The district court held that the felony convictions in question were in fact violent felonies and that Johnson was an armed career criminal for the purposes of the mandatory minimum sentence required by the ACCA. The U.S. Court of Appeals for the Eighth Circuit affirmed.
Is the definition of "violent felony" in the Armed Career Criminal Act unconstitutionally vague?
ORAL ARGUMENT OF KATHERINE M. MENENDEZ ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next in Case 13-7120, Samuel Johnson v. United States.
Katherine M. Menendez: Mr. Chief Justice, and may it please the Court:
Mere possession of a short-barreled shotgun is not a violent felony within the definition of the Armed Career Criminal Act's residual clause because it is neither similar in the degree of risk nor similar in kind to the enumerated offenses set forth in the language that immediately precedes that clause.
And this Court has repeatedly held that those enumerated offenses provide important both qualitative and quantitative parameters to lower courts in examining whether a particular predicate offense counts as a violent felony.
Just 6 years ago in Begay, this Court made clear that the enumerated offenses must be similar -- I'm sorry, a question predicate offense must be similar in kind to one of the enumerated offenses as well as similar in degree of risk.
And when that proper framework is applied to the question of mere possession of a short-barreled shotgun, it satisfies neither test.
Justice Ruth Bader Ginsburg: Should the Court -- should the Court take into account that in the sentencing guidelines possession of a short-barreled shotgun is ranked under career, is under the career offenses?
Katherine M. Menendez: Your Honor, in Guideline Amendment 674 in 2004, which Your Honor asks about, the Sentencing Commission included mere possession of an unregistered short-barreled shotgun or possession of a short-barreled shotgun as a crime of violence.
But it did not do so after an examination of the empirical data or an assessment of the pool of data that gives us great confidence in the Sentencing Commission's decisions.
In marked contrast, Your Honor, in 1991, when the Sentencing Commission adopted Amendment 433 that concluded that being a felon in possession of a firearm should not count as a crime of violence under the guidelines, it reached that conclusion after an extensive examination of empirical data.
The difference between the adoption of those two amendments highlights the reason that the Sentencing Commission's decision on this point does not deserve deference in this case.
An additional consideration, Your Honor, is that in making that decision in 2004, the Sentencing Commission was not anticipating the guidance that this Court provided in James, Begay, Chambers, and Sykes, and it doesn't engage in any of the proper analysis.
So whether we look at it as the Sentencing Commission not serving their traditional role as factfinders and the keepers of empirical data or whether we acknowledge the fact that it preceded very important guidance from this Court, I don't think it controls this Court's decision.
Justice Sonia Sotomayor: Is it--
Justice Samuel Alito: Is it possible--
Justice Sonia Sotomayor: --I'm sorry.
Justice Samuel Alito: --Is it possible for any possession offense to qualify as a violent felony?
Katherine M. Menendez: Your Honor, I believe it would be possible for a very rare possession offense to qualify as a violent felony if the possession alone presents a serious potential risk of injury.
Respectfully, I believe the flaw with the other side's position in this case is their entire analysis is based not on the risk inherent in the mere possession, but on the risk inherent in committing a further violent crime with that weapon.
And so I believe that any mere possession of a firearm, including a short-barreled firearm, is not going to satisfy the definition.
Justice Elena Kagan: But if I understand the government's argument, it's that there's a very strong correlation between possession in this case and use for criminal purposes of a kind that clearly would pose a risk of -- of violent conduct and injury.
So are you saying that we never can take that kind of correlation into account, that possession crimes just have to be treated in a box, and we can't think about whether the possession of something increases the risk of use which then will pose a serious risk of injury?
Katherine M. Menendez: Your -- Your Honor, my response is twofold.
First, although the government has asserted that correlation, they have not substantiated it in any way.
And there's no data before the Court that supports the claim that merely possessing a short-barreled shotgun is somehow connected with frequent or even regular use.
Justice Elena Kagan: So -- so that seems right, that it's a question to pose to the government.
It's like, what's in back of this correlation?
But is your argument, then, they haven't made their empirical case or even if they had lots of statistics, it still wouldn't be enough?
Katherine M. Menendez: And that is correct, Your Honor.
I think even if they had made the empirical case, it wouldn't be enough.
And here's why.
Justice Antonin Scalia: Counsel, is there any other use for a short-barreled shotgun?
Katherine M. Menendez: Your Honor, as many as 40,000 Americans have purchased these weapons legally, registered them lawfully and have found that they serve some purpose.
Whether that purpose is in hunting for a person of a smaller stature or home defense, the question before the Court is not whether there is some reason to have them.
Many people believe there is.
The question is whether merely possessing such a weapon is a violent felony.
And with due respect, Your Honor, I don't think there's any support for the assertion that these are somehow uniquely more dangerous.
Justice Antonin Scalia: People have purchased this even though it's criminal to possess it?
Katherine M. Menendez: It is not, Your Honor.
In fact, it's fully lawful to possess a short-barreled shotgun in many States as long as it's registered federally, somebody passes a background check, and pays a $200 tax.
And the government's own statistics document, Your Honor, that as many as tens of thousands of Americans have followed those processes in order to legally purchase or own one of these weapons.
And, in fact, I was surprised in doing the research for this case that you can get these on line in States where their possession is legal as long as you comply with the Federal regulations.
Justice Sonia Sotomayor: How many States is it illegal, do you remember?
Katherine M. Menendez: Your Honor, I believe there's 10 States that outright ban possession regardless of compliance with Federal regulations.
And then in the remainder of the States, the question is whether, if its possession is legal in compliance with either State registrations or always in compliance with the Federal registrations.
Justice Sonia Sotomayor: Just a factual question.
On his plea for this possession, was he charged with another crime?
Katherine M. Menendez: Yes, he was, Your Honor.
He was charged with a -- a marijuana-related crime.
And both of those were pleaded guilty to with Alford pleas, Your Honor.
Your Honor, I think the question is how much speculation is permitted.
And as Your Honor correctly points out, it is our position that even if the government brought forth better data, that still wouldn't justify allowing mere possession to count as a crime of violence.
The reason, I think, is inherent in this Court's jurisprudence from James, Begay, and the other cases.
We have to begin this with a consideration of the elements.
In fact, in the James case--
Justice Samuel Alito: But you said that a possession offense could qualify.
So if someone possesses a nuclear bomb, that could qualify?
Katherine M. Menendez: --Your Honor, I think that might be--
Justice Samuel Alito: A biological or chemical weapon, that could qualify?
Katherine M. Menendez: --And I think that is the precise thing that could qualify.
And here is why, with due respect, Your Honor.
Possessing a biological or a chemical agent, by itself, presents a substantial risk, just alone, even if it's under your bed.
Justice Samuel Alito: Well, how do we know that?
You -- you could make the same argument that you've just made, that we don't know what the -- the risk is that this will, in the case of a biological weapon, the risk that it will cause an infection unintentionally.
We don't know that.
That statistic is no more available than the statistic on sawed-off shotguns, is it?
Katherine M. Menendez: Your Honor, I suspect that we would be better able to document the certainty that even doing nothing more than possessing such an item--
Justice Samuel Alito: How would you do that?
You'd look at all the -- you try to -- to identify the universe of people who have possessed biological weapons and see how many times somebody has gotten infected unintentionally?
Katherine M. Menendez: --Your Honor, that -- that might be appropriate, or perhaps the science alone.
But that demonstrates the difference with this.
This is no more dangerous than any other firearm if it's kept in a locked gun safe, kept in a closet, kept under a mattress, under a bed or any of the other myriad places.
We've highlighted for the Court 14 different cases on page 14 of our reply brief where such a weapon was found in completely nonviolent circumstances, somewhere in a home or even in a trunk, in a locked gun safe.
Justice Samuel Alito: So you would say the same thing about any weapon.
Katherine M. Menendez: Any firearm for certain, Your Honor.
Justice Samuel Alito: Any firearm?
Katherine M. Menendez: I'm sorry?
Justice Samuel Alito: Mortars?
Katherine M. Menendez: Your Honor, I think mere possession does not pose the kind of substantial risk that this statute is talking about.
I think that when we get into the very, I'm sure, hypothetical instance of the bomb that's inherently dangerous, like a biological agent, that might be different even untouched, Your Honor.
Justice Samuel Alito: Rockets would not be -- illegal possession of a rocket, that wouldn't be a violent felony in your submission.
Maybe that's right.
Katherine M. Menendez: I believe that's correct, Your Honor.
Justice Samuel Alito: That's correct.
Katherine M. Menendez: I believe that using a rocket in a crime of violence or in any other circumstance would be.
And, in fact, Your Honor, I think that in many of these cases, for instance possession of a biological agent or a nuclear weapon, the person would likely be charged with some sort of terrorism offense, which would, by itself, trigger the Armed Career Criminal Act if they were free to go on and commit future crimes, which I -- I somewhat doubt.
In this case, though, I think there's nothing different about mere possession of a short-barreled shotgun as compared to other firearms that could be simply possessed.
They are simply not enough.
Your Honors, this Court's jurisprudence clearly requires a categorical assessment of the question, not an imagining of what further crimes could ever happen as a result of the offense, but a looking at what comes from the elements itself.
I'd encourage the Court to remember its decision in James.
In James, the Court first examined the elements of the burglary, the attempted burglary statute in question, and noted that mere possession of burglary tools was not enough to constitute a violation of that attempted burglary statute.
And in part, because an overt act toward entry, which presented the same sort of risk as the burglary itself was present, the Court found that that could present a risk sufficient to trigger the residual clause.
This is very different.
This is much more like mere possession of the burglary tools, which would not be enough, than it is completing an additional overt act.
Your Honor, the government uses the Court's language of ordinary case to invite this Court to engage in substantial speculation about someone -- what someone might do with a short-barreled shotgun.
And with due respect, I don't believe that was the purpose of the ordinary case doctrine whatsoever.
In fact, in James, the ordinary case doctrine was borne not to enable rampant and creative speculation, but to limit rampant and creative speculation.
Justice Stephen G. Breyer: But what you have -- what were the numbers, if they're there, about how many people are injured as a result of possession of a short-barreled shotgun?
Katherine M. Menendez: There are no statistics.
Justice Stephen G. Breyer: So we have absolutely no idea?
Katherine M. Menendez: We have -- we have no statistics that demonstrate, Your Honor, a correlation between mere possession of a short-barreled shotgun and--
Justice Stephen G. Breyer: That's not what I'm thinking of.
I'm thinking of do we have a statistic that says how many people are injured, forgetting how -- whether it's possession or not possession or anything else?
Katherine M. Menendez: --We don't have that, either, Your Honor.
We do have statistics offered both in our brief and some reference in opposing counsel's brief about how short-barreled shotguns are at most a de minimis, de minimis percentage of harm from weapons in general across the country, but that doesn't answer Your Honor's question.
And Your Honor, I think that that is precisely why the Begay formulation remains very important in this case.
This case, unlike Sykes, which had an ample amount of data, although I think we could discuss at length how useful that data is and how much data can be manipulated, but there was a great deal of data documenting deaths and injuries.
And therefore, this Court found that the examination of the nature of the offense and whether it was purposeful, violent or aggressive was redundant.
That's not the case here, Your Honor, because we don't have the statistical analysis to make the risk assessment easy.
I do think, though, that common sense weighs heavily in favor of Mr. Johnson.
And that is, as Your Honor indicated in the Doe opinion many years ago on the First Circuit, that merely possessing something is a very far cry from using it in a crime.
And the government's entire analysis requires this Court to assume that these weapons are most commonly possessed only for the purpose of being used in a crime.
That's simply not supported by the data, and it's not even supported by the case law provided by the government.
Justice Sonia Sotomayor: I'm sorry.
Do we know how many possession crimes have been prosecuted, possession for short-barreled shotguns?
Katherine M. Menendez: I don't have that statistic, I apologize, Your Honor.
I can say that, having been an assistant Federal defender for quite a long time, we don't see these very commonly, but we do see people prosecuted for possessing a short-barreled shotgun that's not federally registered.
It's not an incredibly frequent crime.
However, this has greater implications, obviously, Your Honor, because approximately 600 people every year suffer the greater penalties of the Armed Career Criminal Act as a result of enhancements such as this.
Justice Sonia Sotomayor: That's what I mean.
It's about 600 a year?
Katherine M. Menendez: 600 ACCA cases each year, more or less, Your Honor.
Justice Sonia Sotomayor: More or less.
So we're talking about 35,000 people or 40,000 who own the shotguns legally.
Katherine M. Menendez: Oh, I apologize, Your Honor.
I -- I provided Your Honor an incorrect statistic.
I'm talking about people whose current conviction is for felon in possession, triggering the Armed Career Criminal Act.
Justice Sonia Sotomayor: I see what you mean.
Katherine M. Menendez: I apologize.
I -- I do not know how many people nationwide are prosecuted for violation of one of the several States that outright bans these or for violating some other portion.
I do know that they're not very common in the State of Minnesota, which is where our statute arises.
Your Honors, it's also important to keep in mind that in Minnesota as well as almost every place else that this is criminalized or criminalized if not properly registered, that constructive possession of the weapon alone is enough to make somebody guilty.
This doesn't have to be on or near their person.
It certainly need not be used in a crime or possessed with the intent to use it in a future crime.
And, in fact, some of the cases that we've proffered to the Court involve possessing this in nothing more than a locked gun case.
That is simply not the sort of active, purposeful, violent and aggressive or risky conduct that the Armed Career Criminal Act's residual clause is designed to apply to.
Justice Elena Kagan: When you say “ constructive possession ”, what does that mean?
Katherine M. Menendez: That means where you don't have an item directly on your person, Your Honor, but you have the intent, at least in the Eighth Circuit, it's the intent to exercise dominion and control and the power to do so.
So, for instance, I have constructive possession of the items in my briefcase, even though I don't have them with me and I have constructive possession of items in my home, even though that's back in Minnesota.
And so that demonstrates, Your Honor, the broad application of mere possession crimes and how far removed they can be from the parade of horribles, with due respect, that the government suggests these are inherently intrinsically tied to.
Your Honor, I'd also invite the Court to examine closely the cases cited by opposing counsel in their brief, because while they do cite 16 cases in their brief in which mere -- I'm sorry, in which short-barreled shotguns were used in violent crimes, it's important for the Court to note that in only two of those cases was there actually a conviction for a weapons offense or mere possession of a weapon.
So in only two of those cases was the prior offense actually before the Court today even being considered.
In the other 14, and indeed also in those two, the person was convicted of the far more serious crime of violence that the weapon was used during, ranging from assault to capital murder.
And as Justice Gruender, in his dissent in the Vincent case in the Eighth Circuit made very clear, in such a case, that much more serious offense would readily trigger application of the Armed Career Criminal Act and we wouldn't need to resort to the overinclusive interpretation proffered by the Government.
Justice Samuel Alito: What are -- what do you think is the basis for a State legislature's prohibiting the possession of a short-barreled shotgun or a short-barreled shotgun that is not properly registered?
Katherine M. Menendez: Your Honor, I can't say what all the State legislatures' bases were, although I would note that Michigan just last year changed its mind and made these lawful.
But I think that many State legislatures, and indeed Congress in 1934 when it decided to regulate these weapons, were persuaded by at least the reputation of this gun, that it was associated with gangster activity in the Prohibition era.
With due respect, although I am not at all disagreeing that States are within their rights to ban possession of this weapon, that reputation is somewhat dated, and in fact today, you can get far more lethal and far more intimidating weapons without even triggering the application.
Justice Samuel Alito: Well, do you think that those State legislatures came to the conclusion that there was a strong correlation between the possession of a short-barreled shotgun and the use of that weapon in committing crimes?
Katherine M. Menendez: I think they may have come to that conclusion.
I'm unaware of them doing so based on data, Your Honor, including the Minnesota Act.
I am unaware of even the National Firearms Act, when it was adopted in 1934, relying on actual statistics about the danger presented by this weapon--
Justice Samuel Alito: Do you think Congress--
John F. Bash: --as opposed to--
Justice Samuel Alito: --had statistics before it when it listed the specifically enumerated offenses in the Armed Career Criminal Act?
Is this the sort of thing with respect to which it is reasonable to expect that there will be empirical evidence, or is this the sort of thing, the sort of decision that legislatures make based in -- on an impressionistic way and taking into account common sense?
Katherine M. Menendez: --Your Honor, I don't know whether Congress, when it passed the residual clause, assumed that we would come to such statistical analysis of the--
Justice Samuel Alito: Well, when they said burglary is a violent offense, do you think they had statistics about the percentage of all burglar -- of all burglaries that occur within the United States that result in violence?
Katherine M. Menendez: --I don't believe so, Your Honor.
I think burglary motivated the Armed Career Criminal Act in the first place.
Burglary and robbery seem to be the two -- the two predicate offenses that most specifically the court -- I mean, I'm sorry, Congress intended to include as triggering prior offenses.
I think it's because they had the belief that an armed burglar would be more dangerous than an unarmed burglar and wanted to capture people who were repeat and persistent property offenders who would then later possess a gun.
Justice Samuel Alito: Well, if that is a reasonable conclusion for the national legislature to reach in enacting the Armed Career Criminal Act, why is it not equally defensible for a State legislature to make the same decision with respect to the illegal possession of a sawed-off shotgun?
Katherine M. Menendez: It's absolutely appropriate for them to make that decision.
That should not control this Court's decision about whether merely possessing that unlawful weapon is a violent felony.
That decision has to be governed by the residual clause language, and it doesn't satisfy--
Justice Samuel Alito: Do you think that that judgment on the part of legislature is entitled to any respect from this Court?
Katherine M. Menendez: --Your Honor, certainly it matters that some legislatures have chosen to ban it, but I think it matters even more that most legislatures and the United States Congress do not outlaw this weapon.
They permit it to be possessed when lawfully registered.
And even in 19--
Justice Samuel Alito: Well, that's what I'm talking about, the cases where it is possessed illegally, either because it is flatly banned or that it is possessed by somebody who will not register it for whatever reason, very possibly because that person doesn't want it known that he or she possesses the weapon.
Katherine M. Menendez: --Certainly, Your Honor.
Or because they're unaware of the registration requirement, which in almost every State will nonetheless make it a criminal conduct, or because they're unaware of the characteristics of the weapon that require it to be registered, which in some States doesn't protect one from the conviction.
Your Honor, I think it's important, if we're using the opinion of legislatures and Congress to help us determine whether this is a violent felony, it's important to recognize that it is widely legal.
But you are right that the question before the Court is the unlawful possession and whether unlawful possession of a firearm is a violent felony.
Justice Stephen G. Breyer: What should we do if we think that the reason that the legislature has made possession unlawful is because the legislature believes that possession will lead to a risk of physical injury?
Katherine M. Menendez: Your Honor, I don't think that answers the question.
I think the question has to be grounded in the residual clause, and the residual clause requires not just the possibility of future injury, but that the offense itself, when examined categorically and based on its element, creates a substantial--
Justice Stephen G. Breyer: Well, it says -- it says if I use those words, I could repeat the same question and say the reason that the legislature makes it unlawful to possess a sawed-off shotgun is because the legislature believes that the possession, that's the crime, presents a serious potential risk of physical injury to another.
That's why they made it unlawful.
What other reason could there have been?
And therefore, their judgment is the same words that the statute uses, but for the word otherwise.
Katherine M. Menendez: --Your Honor, I -- I -- I don't think there's any suggestion that either the Minnesota legislature or the other minority legislatures that have reached that conclusion did so based on an--
Justice Stephen G. Breyer: What other reason would they have had for making possession unlawful?
Katherine M. Menendez: --Because I think there's a strong belief that firearms in general are unlawful, that certain types of fire are -- are dangerous, that certain types of firearms are more dangerous than others, and that's appropriate.
We aren't saying these should be legal.
We aren't saying these are--
Justice Stephen G. Breyer: No, I'm just saying what other reason could they have had for making this a crime, the possession--
John F. Bash: --Perhaps--
Justice Stephen G. Breyer: --unless they thought that possession presents a serious potential risk of physical injury to another?
I'm not suggesting an answer.
I want to know what your answer is.
Katherine M. Menendez: --Perhaps they were, in fact, adopting a different standard which is: We, as the Minnesota legislature, hypothetically, are going to ban this weapon because we believe that it is somewhat more dangerous than other weapons, and we would prefer it is not possessed.
I don't think we can assume that they went this far, and this is the question the Court has to answer.
Also, Your Honor, the Michigan legislature, for instance, obviously disagreed when they recently changed their law to no longer prohibit mere possession of a short-barreled shotgun.
I do think it is a recognition, Your Honor, that legislatures think these are dangerous weapons, and they are dangerous weapons, but that does not make their mere possession violative of the residual clause of the Armed Career Criminal Act.
I think it's very important in every case that we tie the examination not to a possible thing that could be done with the gun in the future, but to the actual risk presented by mere possession.
In the same way that in the James case the Court was motivated by the fact that something more than mere possession of burglary tools was required, here something more than mere possession of the weapon should be required.
We would be having a much different conversation if we were talking about a different part of Section 924 of Title 18, 924(c), which penalizes using a weapon, even a short-barreled shotgun, during a crime of violence.
That could certainly be a violent felony.
But the mere possession--
Justice Ruth Bader Ginsburg: You pointed out in your brief that explosives -- one of the enumerated crimes is use of explosives, but is no -- anywhere a crime of possession.
Katherine M. Menendez: --That's correct, Your Honor, and I'm glad you reminded me because that was an important point for me to make, is that when we look at these enumerated offenses as providing guidance for the residual clause, it is very important that Congress adopted use of explosives rather than possession.
And in fact, in the legislative history, in 1986, they gave examples of the sorts of things they believed would be included by that provision, and it was not mere possession of explosives.
Justice Samuel Alito: Has any legislature prohibited the possession of explosives?
Katherine M. Menendez: I am sure that some have, using certain language.
Justice Samuel Alito: They just flatly prohibited, within our State, you cannot possess any explosives.
Has any legislature done that?
Katherine M. Menendez: I'm not aware of that, Your Honor.
I apologize, I don't know.
Justice Samuel Alito: Well, do you think it's a possibility that there are States in which explosives cannot be used for demolition purposes?
Katherine M. Menendez: --No, I don't think that's likely, Your Honor.
But nonetheless, Your Honor, when Congress was adopting this language, they chose to put “ use of ” prior to the term “ explosives ”.
If they wanted it to be more inclusive, this could have certainly made it more inclusive.
They did not.
In fact, the examples given were the use of explosives to destroy energy facilities or transportation facilities.
I see that I -- will reserve the rest of my time for rebuttal, if I might.
Thank you, Your Honors.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT BY JOHN F. BASH ON BEHALF OF UNITED STATES
John F. Bash: Mr. Chief Justice, and may it please the Court:
The ordinary case of possession of a sawed-off shotgun is possession in connection with serious criminal activity.
That is the judgment that Congress, State legislatures, this Court in Miller and Heller, and lower courts have reached for 8 decades.
Justice Sonia Sotomayor: If that's the case, how many charges do you have that are for mere possession, not involved with an underlying crime?
John F. Bash: Most of these charges are brought at the State level, so I don't have sort of the comprehensive statistics.
But what I will point out is that Petitioner has now had two briefs to come forward with examples of law-abiding citizens just kind of caught up in this sawed-off shotgun regime.
Justice Sonia Sotomayor: She raises 14 cases in her reply brief.
John F. Bash: If you look at all of those cases, Your Honor, the vast majority of them, both cited in the opening brief and in the reply brief, involved people involved in other very serious criminal activity, meth dealing, sexual abuse, assaults.
So those cases only verify what I think has been this Court's judgment in Heller and Miller, Congress's judgment, the judgment of State legislatures for a long time, that these are exclusively used for unlawful purposes.
Justice Sonia Sotomayor: So why haven't they been outlawed federally and why is it only a minority of States that have outlawed their -- just their possession, not their registration?
John F. Bash: Because I think what the National Firearm Act reflects, and this was reflected in Attorney General Cummings' arguments in favor of the law when it was under consideration, is that if you're willing to disclose your fingerprints and photograph to the Federal Government and undergo a background check -- that's only by regulation, but undergo a background check, it dissipates the chance that you're going to be involved in crimes.
Gang members, terrorists, and bank robbers do not go around disclosing their fingerprints and photograph to the government.
So there are some atypical gun collections who build collection of, I think, rare firearms, and those are the sorts of applications the ATF sees.
But I just want to emphasize the point about, sort of, how many of these things are lawfully registered.
We made a good faith attempt at an estimate in our brief, and it's 140,000 lawfully registered ever.
It appears that the vast majority of those are to law enforcement agencies or to the manufacturers themselves.
Just by way of comparison, the Congressional Research Service put out a gun control analysis in 2012 that estimated that there are currently 82 million shotguns of all varieties, either in private hands or available for purchase by private citizens.
So the number of -- whether it's 40,000, 50,000 ever, is a vanishingly small number of sawed-off shotguns that have been lawfully registered.
Justice Ruth Bader Ginsburg: Wasn't there something in one of these briefs that a manufacturer in States where these weapons are lawful has advertised them as ideal for use in self-defense?
John F. Bash: --There is something like that in one of the briefs.
I don't think a manufacturer's, sort of, market strategy should govern the analysis.
It certainly shouldn't refute this Court's judgment, Congress's judgment, the judgment of State legislatures for decades, that these weapons have no lawful uses.
And I am not aware of, for example, a spike in applications for registrations for sawed-off shotguns to the ATF, which you might expect to see if these weapons were suddenly being in common use for self-defense.
I just wanted to address a point that I think Justice Kagan raised with my friend, which was, are we, sort of, solely relying on a correlative relationship between the enumerated offense and the potential for violence.
I think it's a great deal more than a correlative relationship.
I think it's actually precisely the same relationship between the crime and the potential for violence present for burglary, attempted burglary, extortion, which is to say this: The enumerated crime enables the potential for violence in a but-for causal sense, but the offender has to take an additional act of volition to bring the violence to fruition.
So, for example, with a burglary or an attempted burglary, a burglar could say, if I'm confronted by a homeowner or police officer, I am going to flee.
I am not going to attack anybody or I am going to give up.
The burglary enables that confrontation to occur, but the offender has to take an additional act of volition to actually bring violence to fruition.
Justice Elena Kagan: I would think the analogy to that is the person who uses the sawed-off shotgun in a crime, but decides: I'm not going to shoot it.
And then you say: It doesn't really matter if you're not going to shoot it; you just used it in a criminal activity, that's enough for us.
But this is a good deal more attenuated than that because this person could, for whatever reason, maybe because he wants to commit a crime in the future or maybe he's one of the odd collectors or people who think that this is good for self-defense, this person could have kept it in a locked closet, in a safe deposit box, and never have brought it out and never have any potential for use in a crime.
I mean, it would be one thing to say use in a crime causes enough risk of serious injury, but this is a step further.
John F. Bash: I agree that a necessary premise of our argument is that the ordinary case of possession is possession in connection with crimes.
So if you don't buy that, we're in trouble.
But you should buy that.
It's what this Court said in Heller when it said short-barreled shotguns are not typically used by law abiding citizens for lawful purposes.
Justice Elena Kagan: But they are two separate offenses, right, possession of this gun and use of the gun.
And you're converting the one into the other for purposes of ACCA.
John F. Bash: And that makes total sense, and let me explain why.
If it wasn't like that, clause 2 of the definition of violent felony -- it's at 11a of our statutory appendix -- would do no work.
The whole point of that clause is to capture situations that were pregnant with the possibility of violence but where the apprehender was offended before the violence occurred.
If an offender used a firearm against somebody, he would be squarely within clause 1, which is the use of force or the threatened or attempted use of force against somebody.
The whole point of clause 2 is when you catch someone who put themselves in the position to do violence but the violence didn't materialize on that occasion, they still fall within clause 2, and that makes sense because that sort of behavior is reflective of the armed career criminal.
I mean, this is the weapon of choice historically, along with machine guns, of the armed career criminal.
So it would be kind of odd if the illegal possession of this weapon didn't satisfy -- didn't count as a predicate under the Armed Career Criminal Act.
Justice Elena Kagan: Do you think the same would be true of a felon in possession?
John F. Bash: No, and I think that's an important difference.
I think the felon in possession statute reflects a slightly different judgment.
It's the judgment that someone who has committed a felony, whether it's a violent felony or, you know, bank fraud or something, has revealed themselves to be an irresponsible person who can't be trusted with a firearm.
I think in that sense, it's more prophylactic in nature, but you certainly don't have--
Justice Elena Kagan: I don't think that in the felon -- a felon in possession law, I mean, honestly, I'm sure the numbers dwarf the sawed-off shotguns, and the whole point of that is, yes, they're people who have shown themselves to be irresponsible, who have shown themselves perhaps to use weapons irresponsibly, and they're going to do it again, and there's a pretty strong correlation of a kind of recidivism that makes Congress pass that law.
John F. Bash: --I think that's an accurate description of felon in possession, but there are, nevertheless, felons who legitimately want a handgun, which has been in common use for decades, for self-defense or for target practice or whatever.
The judgment that this Court has rendered and that Congress has rendered is that these weapons do not have other purposes in the ordinary case, and I think that distinguishes really a sawed-off shotgun offense almost from any other--
Justice Stephen G. Breyer: Where did Congress say that?
I mean, a felon in possession has a gun, and you say he might keep it upstairs in his closet, in the back of a car, in his hand, many places he might possess it, and he might never use it for a crime.
Recognizing that, you say that doesn't fall within the statute.
Just substitute the words “ sawed-off shotgun ”.
In the closet, back of a car, glass case, maybe in his hand, maybe in somebody else's hand.
Maybe he just says to somebody: I have a sawed-off shotgun up there; give me your money.
All those things are possible with either.
And so since they're possible with either, on what basis do we write an opinion that says that you win with the sawed-off shotgun, but you lose with almost every other kind of gun.
What's our theory?
What lines would there be in that opinion?
John F. Bash: --Here's the line.
When you have a firearm that has historically been exclusively associated with violence, unlike a handgun, but just like a sawed-off shotgun--
Justice Stephen G. Breyer: My goodness, stop right there for a second, because what we heard was there are 40,000 or more people in 10 States and others that don't even make it unlawful.
So how can we say it's more associated with crime than, what, a handgun or a regular -- or a torpedo?
I don't know.
John F. Bash: --I think we would contend that unlawful possession of a torpedo--
Justice Stephen G. Breyer: I realized you were going to say that, and all I put that in was to express my own lack of knowledge of which is which, and therefore I can't just speak ex cathedra and say this.
I would have to have some proof.
John F. Bash: I understand the uncertainty in a case without empirical data.
It was the same uncertainty that the Court had in James, where it said we don't have empirical data to make the judgment.
And in both James and Sykes, the Court said at the end of the day in some of these ACCA cases we need to rely on our common sense judgment.
But here I think what I hope would be the Court's common sense judgment--
Justice Stephen G. Breyer: Well, I don't -- I mean, I've seen a lot of movies.
James Cagney used to, but I can't use that.
John F. Bash: --Well, let me just say -- let me just say where I -- where I think you can ground the common sense judgment.
We've set forward in the brief Federal statutes, State statutes, the legislative history, Senate and House reports saying these weapons are exclusively associated with lawbreaking and crime.
There is a history of that.
That's why they've been regulated.
And I think, to go to a colloquy that my colleague was having with one of the members of the bench, the judgment of State legislatures and the Federal Congress is not something sort of to be cast away as the product of superstition.
State legislators, Congresspeople, talk with their constituents, they speak with law enforcement agencies.
They exercise reasonable judgment based on the facts on the ground when they enact laws like this.
And I don't think it can be really disputed, as Justice Alito was alluding to earlier, that those legislatures have made a judgment that these weapons are exclusively associated with crime.
And I think that's a much better factual record--
Justice Stephen G. Breyer: We couldn't say the same thing with a Saturday night special?
John F. Bash: --I don't know.
I'm not familiar with the term.
Justice Stephen G. Breyer: They used to be.
A Saturday night special is a kind of pistol that was really used very, very heavily with robberies and crimes.
They were viewed -- that was one of the first things that people tried to get banned after assassinations and so forth.
John F. Bash: I'm not saying that our argument couldn't apply to any other weapons.
I imagine we'd have a similar case on unlawful possession of machine guns, for example.
Justice Sonia Sotomayor: How many--
Justice Stephen G. Breyer: No, no.
This isn't a machine gun.
It's a pistol, a handgun.
John F. Bash: We'd have to do the work.
I don't mean to cut off--
Justice Stephen G. Breyer: No.
John F. Bash: --We'd have to do the work.
Here I think we have done the work.
We have a legislative and judicial consensus over decades that these are exclusively used in crimes.
Chief Justice John G. Roberts: But we -- but we know that's not true.
We know there are 40,000 registered that by -- and, you know, and you yourself I think said or -- that if you're willing to give your photograph and fingerprint or whatever to the Federal Government, you're probably not going to use it illegally.
So we know it's not true that these are exclusively used in criminal activity.
John F. Bash: Well, I think there's two points in that.
One was the point I was alluding to earlier, which is not only that Congress thinks sort of this process ameliorates the -- the normal effect of possession of a sawed-off shotgun and that these are actually registered in extraordinarily small numbers relative to total gun population.
Chief Justice John G. Roberts: Well, what number would be enough?
I mean if we had 100,000 registrations, does that mean that it's no longer conduct that presents a serious potential risk?
John F. Bash: I'm not sure.
I want to give you two answers to that question.
I mean, the first is that, as this Court said in James, the relevant data point is convictions.
So there's no convictions for lawful possession of a sawed-off shotgun.
The relevant data point is how many convictions for unlawful possession are associated with otherwise nonviolent activity, and Petitioner hasn't really pointed to any cases of sort of law-abiding citizens using them for other reasons.
Chief Justice John G. Roberts: Well, then -- then is possession, possession of explosives, an offense under this enhancement provision?
John F. Bash: I think we'd run the same analysis, and we talk about this at pages 47 to 48 of our brief, which is to say explosives regulated by the NFA, which are defined to be explosives designed as weapons, yes, it's pretty much the same analysis we'd run through which--
Chief Justice John G. Roberts: Even though the statute -- even though the statute says use of explosives is covered?
John F. Bash: --And I don't think--
Chief Justice John G. Roberts: You'd say, well, under the catch-all phrase, mere possession is covered.
John F. Bash: --No.
And there's no redundancy, because -- maybe we explained this unclearly.
What we tried to explain is that the use of explosives would encompass a felony conviction for the use of any explosives.
So there are felony convictions for the use of TNT or dynamite, explosives that are not inherently dangerous in character, but could be used unlawfully.
The possession offense under the reasoning that we've set forth in the brief would apply to weaponized explosives, those regulated under the NFA because they're designed as -- as weapons, napalm and things like that, not to the unlawful possession of TNT, even though the unlawful use of TNT would fall under the use of explosives statute provided as a felony.
So I don't think there's any redundancy created there.
And I guess just to wrap up this colloquy, I think it's possible to imagine an alternative universe where sawed-off shotguns developed as self-defense weapons in ordinary use.
In that case, the ordinary case analysis would look very different.
You would say, well, maybe there are some people who unlawfully acquire these, just like some people unlawfully acquire handguns for self-defense.
But this Court has never recognized, as this Court said very clearly in Heller in distinguishing Miller, that these are not in lawful use by law-abiding citizens.
That's not the way the real world looks.
In the real world these are unlawfully possessed for use in crime.
And once you accept that proposition, the final step of our analysis is that when these items are brought to crimes, it seriously increases the chance that someone is going to be killed or wounded.
We've set forth the characteristics of the weapon and the sort of damage they do.
I won't repeat that.
But I don't even really hear Petitioner to dispute that in the ordinary case, when the -- in what we call the ordinary case, when these are brought to crimes, they massively increase the chance--
Chief Justice John G. Roberts: Well, that's a second step, unlike the others.
When you're engaged in a burglary, the -- the risk is there.
When it's mere possession, the risk isn't there.
You have to take an additional step of taking it and using it in a crime.
John F. Bash: --And I think burglary has the exact same connection.
Burglar -- maybe it's easier to see it with extortion, but the same analysis would apply to burglary.
When you -- extortion, even defined most narrowly, as Justice Scalia would have defined it in James to be a threat of violence to person or property, that itself does not create the possibility of violence.
It's only if the extortionist is willing to follow through on the threat to take an additional step, just like the additional step of using a firearm, that the violence materializes.
So the sort of connection between the underlying offense and violence that Congress had in mind did contemplate an additional step by the offender himself.
Chief Justice John G. Roberts: Well, or the homeowner could happen to have a short-barreled shotgun and shoot the burglar.
John F. Bash: But remember--
Chief Justice John G. Roberts: Then the violence doesn't depend on any additional act by the burglar.
John F. Bash: --It does, Mr. Chief Justice, because the statute says violence to another.
So if the -- if the homeowner clocks the burglar, that's not the violence the statute contemplates.
And I suppose you could imagine fanciful scenarios where the police officer accidentally shoots the homeowner, but surely that's not the sort of ordinary case violence that this statute had in mind.
So I think--
Chief Justice John G. Roberts: So the parallel you're drawing is that burglary itself doesn't present a risk of violence until the burglar pulls a gun?
John F. Bash: --Or -- or attacks the homeowner.
Like I said, I think it's most clear in extortion.
I mean, even -- the Court suggested in James that extortion could be even much broader to include blackmail and sort of prototypical extortion.
But even if we just accept Justice Scalia's view of extortion, which is that it's a threat to person or property, there must be some number of extortionists that say: Well, I'm going to make the threat, but I'm actually not going to follow through on the threat.
And the violence--
Justice Ruth Bader Ginsburg: What about the -- what about the analogy to -- explosives, you say that there could be lawful possession because explosives, it's use that's given as an enumerated crime.
John F. Bash: --And what we would say is, by parity of reasoning to what we've set forth in the brief with respect to firearms, weaponized explosives, that is to say explosives that only have a use as a weapon, could fall under the residual clause.
Justice Stephen G. Breyer: Is there -- the proposition then that I must accept I think for you to prevail is possession of that which is normally used or has a very serious risk of being used in a way that risks physical injury to another falls within the statute.
And instead of drawing a line between possession and some other use of the thing, we say sometimes possession is in itself within the statute, sometimes it's not.
If you possess those things that have as a predominant use participation in a matter that's likely to cause physical injury to another, that's within the statute.
If that's the proposition, is there any case where simple possession of anything has been interpreted as falling within this language?
I don't know the answer to that.
John F. Bash: You mean circuit or Supreme Court cases?
Justice Stephen G. Breyer: Any, any case.
John F. Bash: Well, we won this.
We've won this issue in--
Justice Stephen G. Breyer: Well, I know -- you've won this issue in--
John F. Bash: --In circuit courts.
I think the Eighth Circuit and the First Circuit.
Justice Stephen G. Breyer: --But it's this issue.
There's not some other area I could look at?
John F. Bash: I think there's a case out of the Fourth Circuit with possession of weapon in prisons.
Obviously the setting can change the analysis to some degree.
But I believe there's a Fourth Circuit.
Maybe my co -- my opponent will have a better recollection of that.
Justice Stephen G. Breyer: There's a Fourth Circuit case and then this line right here.
John F. Bash: I -- I don't mean to suggest that there's no other cases.
I would not be surprised if there were possession of machine gun and short-barreled rifle and silencer; in other words, the very firearms covered by the NFA.
Also, I think short-barreled shotguns are, just to underscore the point, more often used in crimes, and so you're going to see a proliferation of cases there.
Justice Ruth Bader Ginsburg: Why not burglar tools?
Isn't it -- burglar tools are outside, right?
Possession of burglar tools will not get you under ACCA.
John F. Bash: This Court reserved that question in James in a footnote, because I think some States purportedly had defined attempted burglary to be something like possession or to include something like possession of burglar tools.
I think we'd have a much harder case there because there's a longer chain of attenuation.
Justice Sonia Sotomayor: --Pardon--
Justice Ruth Bader Ginsburg: But there's no other use.
There's no other use for burglar tools than in burglary.
John F. Bash: I think that's true.
I think we'd have to build through the practical case, one, that burglar tools -- the mere possession of burglar tools is sort of inevitably associated with committing burglary.
It may be that there's a lot of people who acquire them, think about committing burglary, but don't make the sort of attempt that James contemplated will result in a confrontation, and then it's more attenuated because you're linking up this burglary -- burglary tools with committing burglary and then burglary with the confrontation.
I think it's a much tighter nexus here.
I think if you ask an ordinary congressperson whether they think there's a tighter connection between possession of a sawed-off shotgun and acts of violence rather than, you know, possession of a crowbar and acts of violence, I think most people would say, yes, that's sort of the common sense answer that most legislators would give.
Justice Sonia Sotomayor: --I'm a little still confused about the felony possession, okay?
You say that's not a crime of violence.
I -- I don't know how to differentiate that from this because most felons, in possession of a gun, I'm sure the statistics would show, are committing crimes.
So if the question is the risk of injury to others, it would be a felon possessing a handgun of any kind and not a common citizen.
Because, yes, common citizens more often than not, we hope, use guns that they possess for lawful purposes; but felons, I would think, just as a matter of logic, what Justice Alito was asking, that felons more often than not use guns in illegal activities.
John F. Bash: I -- I don't know.
And for one -- for one thing, we have a -- the judgment of the sentencing commission here that we're in full accord with that possession of a sawed-off shotgun is fundamentally different than felony possession.
And they see--
Justice Sonia Sotomayor: Well, I understand that.
I just want you to give me some sort of analytical approach on when to judge that -- when to judge that risk, or how to differentiate that risk--
John F. Bash: --I think the analytical--
Justice Sonia Sotomayor: --so that everything, no -- every possession crime doesn't become a crime of violence.
John F. Bash: --I understand the concern.
And I think the analytical line to draw is that weapons that by their nature are exclusively associated, or in the ordinary case, associated with violent crimes count under ACCA.
I don't think that the felon in possession statute reflects quite the judgment that every felon that possesses a firearm is going to commit acts of violence with it.
I think it reflects the sort of prophylactic concern that these folks have proven themselves irresponsible lawbreakers -- even if they committed a nonviolence felony and they've, you know, lost their ability to responsibly care for firearms and to handle firearms.
I do think it's a different judgment than the judgment of why people can't unlawfully possess mortars and artillery pieces and torpedoes and -- and sawed-off rifles and shotguns and machine guns.
I think it's a different judgment.
The Court -- Petitioner has really not refuted the historical understanding that these are uniquely and purely associated with crime.
And I think a few thousand registrations since 1934, lawfully, does not refute the common sense conclusion that the unlawful possession of a sawed-off shotgun is associated with crime.
Chief Justice John G. Roberts: That -- you're -- is that the 40,000 you're talking about?
John F. Bash: I'm sorry--
Chief Justice John G. Roberts: When you say a few thousand, is that the same statistic as--
John F. Bash: --Yes.
And I'll just say it's 140,000; we think it's a great deal lower than that.
That's the total number of registrations since 1934.
As we say in the brief, we can't have perfect certainty, but it appears that the majority are registered with law enforcement or manufacturers.
Chief Justice John G. Roberts: --I might have used a different word than a few thousand.
John F. Bash: Forgive me, a few ten thousand or--
Chief Justice John G. Roberts: Yes, that would--
John F. Bash: --A few dozen thousand.
Justice Samuel Alito: In the Armed Career Criminal Act in general, and the residual clause in particular, has caused no end of problems for this Court.
Are you aware of any efforts made by the Justice Department to propose legislation revising either the -- either the Act in general or the residual clause?
John F. Bash: I am not aware of those efforts.
That doesn't mean they don't exist, but I, standing here, am not aware of the efforts.
Justice Stephen G. Breyer: What would you think, which I once suggested and certainly didn't have the nerve to follow through, that it's more likely that the Department of Justice, with the aid of the sentencing commission, could get the relevant statistics than it is that a defendant could.
So if no statistics appear, we should draw a presumption against the department.
John F. Bash: --Well, this Court has held otherwise in James.
Justice Stephen G. Breyer: Yes, yes.
I realize that.
John F. Bash: So, I mean, I think that's a statutory stare decisis holding that -- that governs--
Justice Stephen G. Breyer: But could you do something, that is to say, even without legislation?
Is it possible that the department, through its statistical gathering resources, and it has some, working with the sentencing commission, could help us more on the -- on the underlying statistical data that would give us a clue as to what was dangerous and what was not?
John F. Bash: --I think -- I think that's conceivable.
I'm not familiar with all the sort of statistical resources of the Department of Justice.
But I just want to emphasize, this is the clear case.
This is the case where Congress and State legislatures and this Court in Heller and Miller have said for decades.
So I don't think there's a fair argument that criminals are not on notice that possession of an unlawful shotgun can carry very serious consequences.
Maybe in a closer case down the road you say, well, the department could have come up with statistics, and that would be -- you know, we're going to rule against the department for that reason.
But, I mean, we have a quote from Judge Boudin in the brief in the Shaw case, where, you know, anyone that watches television or reads the newspaper knows that these are especially associated with crimes.
So I don't think it came as a surprise to Mr. Johnson that when he commits two robberies and one illegal possession of a sawed-off shotgun, eventually that's going to catch up with him.
If the Court has no further questions.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Menendez, you have four minutes remaining.
REBUTTAL ARGUMENT OF KATHERINE M. MENENDEZ ON BEHALF OF PETITIONER
Katherine M. Menendez: Thank you, Mr. Chief Justice.
You're -- with respect to Justice Breyer's question, there are a couple of related contexts where there are some appellate decisions.
The Eighth Circuit in Archer, which is cited in our brief, has held that possession of a concealed weapon is not a violent felony under the Armed Career Criminal Act.
In addition, in the Fourth -- I'm sorry, the Ninth Circuit in a case called Fish, which I am not sure whether we've cited it in our brief, but it's a 2004 decision, held that possession of a pipe bomb was not a crime of violence under the sentencing guideline provision, not the Armed Career Criminal Act.
And I do agree with my opposing counsel that there's been one decision that went the way we disagree with in the Fourth Circuit about possession of a weapon in prison, which I think is a very different circumstance.
Your Honors, I do think that it's important to look at James, comparing attempted burglary as to burglary.
I think it gives us a great deal of guidance.
In James, the Court found that there wasn't any textual justification for treating those differently.
The government invites this Court to do pretty convoluted reasoning, adopting an unstated definition from a totally unrelated statute in Title 26.
And assuming that Congress meant when it said use of explosives, that all things listed in the National Firearms Act would be included by mere possession, I don't think we can make that leap.
Your Honors, it's also not true that there is a unanimous belief that these are inherently unjustifiable weapons.
In fact, I think that the fact is most legislatures allow these to be possessed in some context or another, and Michigan has just indicated that perhaps the old historical reputation of this weapon is no longer deserved.
But this Court doesn't have to like the short-barreled shotgun or decide that it's even an appropriate weapon for punish -- or for possession in order to agree that we can't assume from its possession alone that someone has only nefarious purpose.
In addition, Your Honors, the relevant analysis has to begin with the offense.
And the government tries over and over again to say, well, it's obvious that these would only be possessed for nefarious reason, but they cannot substantiate that.
They disagree with the 14 cases I encourage the Court to look at from page 14 of our reply brief, that those are mere possession cases.
By characterizing the people who possessed those weapons, they were found during the course of investigations of other crimes, but that doesn't mean a single one of those possession acts was actually possession during a crime.
And this Court certainly can't assume that merely because a criminal or a bad person had possessed the weapon, that they possessed it for nefarious purposes.
Finally, Your Honors, I would really encourage the Court to consider the -- the rule of lenity and its application in this case.
The government has not brought statistics nor clear, decisive, textual argument that mandate the application of one of the most onerous sentencing provisions that we see in Federal courts every day.
This statute is applied to 600 people a year.
It lacks all clarity.
And while this Court need not get into whether it is unconstitutionally vague and the baby should go out with the bath water, the Court can certainly decide that Congress did not speak clearly on this question, and that it should not be applied to Mr. Johnson.
Unless there are any further questions, I appreciate the opportunity to present argument.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John Roberts: We will hear reargument today in Case 13-7120, Johnson v. United States. Ms. Menendez.
Katherine M. Menendez: Good morning, Your Honor. Mr. Chief Justice, and may it please the Court: The residual clause of the violent felony definition of the Armed Career Criminal Act is unconstitutionally vague because its text and structure do not set out with clarity what predicate offenses fall within its coverage and what do not.
Its vagueness is proven by this Court's inability after repeated efforts to discern a meaningful and replicable interpretive framework that will guide lower courts.
Justice Ruth Bader Ginsburg: Ms. Menendez, just to clarify, you are contesting only the residual clause, not the rest of the statute.
So if the statute ending with -- it lists burglary, arson or extortion or involves the use of explosives, you're not attacking any of that.
It's just the residual clause; is that correct?
Katherine M. Menendez: That is correct, Your Honor. And we believe, in fact, that the other portions of this statute shed some light onto why the residual clause is unconstitutionally vague.
For instance, the other portions of the definition tie qualification for violent felony status directly to the elements of the offense in question. The force clause requires that the use of force or the attempted use of force be an element of the offense.
The burglary, arson, extortion, and use of explosives that Your Honor references are determined by reference to the elements of the offense.
A categorical analysis.
Justice Samuel Alito: Now, I know that we are -- asked you to argue this vagueness issue, but when you were here before, you didn't think that the statute was vague as applied to your client.
As I remember, your argument was it's clear that your client did not fall within the residual clause, largely because he was convicted.
The offense that's at issue is a possession offense, and you argue that none of the specific offenses listed is -- is a possession offense.
Katherine M. Menendez: You're correct, Your Honor, that when -- when we were here last time, we argued that it is plainly not included for the reasons you mention as well as others.
Justice Samuel Alito: So if it's not plainly included, why do we have to get to this issue at all? Why should we reach out to decide a constitutional question?
Katherine M. Menendez: Certainly, Your Honor.
The fact that we believe it's clearly excluded seems to be at odds at the opinion -- of the opinion of the Solicitor General in the United States, the Eighth Circuit Court of Appeals and other courts.
The fact that something that seems obviously not to fall within the plain definition but is still held to fall within the plain definition by numerous courts reveals the vagueness of the residual clause.
Justice Samuel Alito: But we get -- almost every case that comes here involves a dispute among the lower courts about what something means, about what the constitutional rule is or what the statutory interpretation should be. So the mere fact that there's disagreement about this, that shows that it's unconstitutionally vague?
Katherine M. Menendez: This goes far beyond mere disagreement, Your Honor.
I can think of no other instance in which the Court has endeavored so many times in so few years to answer precisely the same question, not merely interpreting the same 14 words, but asking each time whether a single offense satisfies those 14 words.
Justice Samuel Alito: In -- in James, in 2007, we held that the residual clause -- we said the residual clause is not unconstitutionally vague.
In Sykes, in 2011, we reaffirmed that. Can you give me other examples of instances in which the Court has overruled a constitutional holding that has been twice reaffirmed within a period of 8 years? Has that happened frequently?
Katherine M. Menendez: Your Honor, I think -- I don't have a case at the ready for that question, but what I can say is what doesn't happen frequently, is that this Court has to grapple with such frequency and is still unable to create an interpretive framework. The heart of stare decisis is, in part, workability. Precedent that remains workable and useful that applies guidance to the lower court deserves greater deference. And with due respect to this Court's understandable hesitation to declare the statute unconstitutionally vague, that precedent is simply proven not to be workable.
Justice Samuel Alito: Well, do you think the issue is whether the statute is unconstitutionally vague or whether this Court's interpretations of the statute create the basis for a vagueness argument?
Katherine M. Menendez: Your Honor --
Justice Samuel Alito: Can -- can a statute be vague simply because this Court messes it up?
Katherine M. Menendez: Your Honor, that is not the case in this case.
I don't know whether it's possible for a statute to be rendered vague by poor interpretation, but in this case the vagueness in here is in the text and operation itself.
This Court's repeated efforts to discern a useful interpretive framework haven't caused the vagueness, but they prove the vagueness.
Justice Anthony Kennedy: Suppose that you had a State court meeting of judges for sentencing and they agreed that, within their discretion to impose a maximum, that they would impose a greater sentence if the defendant had a rap sheet, some previous offenses which created a serious potential risk of physical injury to another. Now, this is within their mandatory discretion, I understand that. Would you say that's poor judging, that that's vague? That they'd be better off not -- not saying it at all?
Katherine M. Menendez: Your Honor, I think that judges are tasked with deciding the individual case before them, so --
Justice Anthony Kennedy: No, no.
My hypothetical is the judges say as a sentencing matter, as a matter of policy in this jurisdiction, we will increase your sentence if you committed an offense that categorically poses a serious potential risk of injury, physical injury to another.
Katherine M. Menendez: Your Honor --
Justice Anthony Kennedy: Do you think that's bad judging?
Katherine M. Menendez: I'm never going to presume to accuse a judge of judging poorly, but --
Justice Anthony Kennedy: No, it's a hypothetical. You can say it's bad; it's a hypothetical.
Katherine M. Menendez: I think that that goes beyond the task of judging, Your Honor, into the task of legislating.
To decide that as a --
Justice Anthony Kennedy: Well, you -- you don't think judges should give reasons for what they do?
Katherine M. Menendez: Absolutely, Your Honor.
I think the difference is --
Justice Anthony Kennedy: You absolutely do think they should give reasons for what they do?
Katherine M. Menendez: Yes, Your Honor.
Justice Anthony Kennedy: And you say that this is a vague reason? This is -- this is bad reasoning, bad judging?
Katherine M. Menendez: The part of your hypothetical that troubled me, Your Honor, was the idea that the judges would get together and make policy decisions unfettered to an individual case.
Justice Anthony Kennedy: Well, judge -- judges meet all the time on sentencing policy.
They -- they educate each other about what sentence is and they -- and they -- and they announce the policy to say in this court, we want all members of the bar to know that if there's a rap sheet, prior convictions that have a -- an offense which categorically is a serious risk of physical injury to another, we will up the sentence.
Katherine M. Menendez: Your Honor, I --
Justice Anthony Kennedy: Do you think that's bad judging?
Katherine M. Menendez: I think that's verging into legislating, and I think that that's --
Justice Antonin Scalia: Can -- can they -- can they do that, as a matter of law, not just as a matter of recommending to their fellow judges? Can they reverse one of their fellow judges if -- if the fellow judge does not adhere to that -- I've -- I've never heard of such a thing.
Justice Anthony Kennedy: The hypothetical is that this --
Justice Antonin Scalia: I agree with you, it sounds like legislation to me.
It's a hypothetical that's fanciful.
Katherine M. Menendez: I would certainly be --
Justice Anthony Kennedy: Do you think it's bad judging for a judge to say what his policy is going to be for future cases?
Katherine M. Menendez: Yes.
I think that a judge should decide each case on the facts before them.
Justice Stephen Breyer: Well, wait.
There are a lot of States that have guidelines and they're legislated and there are committees that decide it; there are judges on the committee.
So -- so I don't know that that's going to help us, or at least not me, too much. I do -- I have counted up the number of splits and so forth in your briefs and the others presented to us, and adding in the cases, I -- I think generously on the basis of what's decided -- what you've presented to us, there are 14 splits.
That's over a period of 20 years, and -- or so, 15 years, anyway.
And there are literally, really, there are hundreds of different crimes, thousands perhaps, by the time you get the -- So I can't -- I don't know how to decide whether 14 is a lot or a little.
I -- I'm really, I'm -- I'm at sea on this, because maybe 14 is just a few. I mean, after all, every statute has uncertainty at the edges.
Or maybe it's a lot.
Katherine M. Menendez: Yes, Your Honor.
Two things, Your Honor.
I think first of all that more than the number of splits is the fact that each of this Court's efforts seems to answer the question before the Court that has a very difficult time answering any of those 14 questions.
I think even --
Justice Stephen Breyer: Well, is there any example that you can think of where that was a basis for holding a statute unconstitutional?
Katherine M. Menendez: Your Honor, in the vagueness cases that we have cited, one of the things often discussed by the Court is that it isn't amenable to a useful interpretive framework, that it isn't being consistently applied by lower courts. But the second --
Justice Stephen Breyer: I've never heard of that as a criterion.
I mean, the common law had a method.
I don't know -- and they even had crimes, you know.
There were common law crimes.
We -- we have statutes.
The government cites many which use such words as "risk of harm" or "reckless" or -- they use words like we have here, "serious risk" or "risk of physical harm." They've cited a lot.
There -- there are other statutes that involve words like that.
Are we holding all those unconstitutional?
Katherine M. Menendez: Absolutely not, Your Honor.
Justice Stephen Breyer: I know.
I understand you think that.
All I need is help.
Katherine M. Menendez: I'll answer your first question and then turn to the focus --
Justice Stephen Breyer: No, that is only the question that I have.
The first one is the one.
Katherine M. Menendez: Your Honor, in addition to the number of splits and whether 14 is a lot or a little, 14 is -- is an enormous amount of times for this Court to have to weigh in to resolve an unsettleable question.
The exact same question, Your Honor; not variance on a question, but precisely the same question. But I think that we should also take instruction from the lower courts and what they are saying about their struggle.
We have cited half a dozen circuits, and these are seasoned jurists who describe this as everything from a black hole to impossible -- impossible to meaningfully and consistently apply. So we're not just talking about counting the number of disagreements.
We're also talking about a completely unworkable framework that --
Justice Elena Kagan: Well, Ms. Menendez, I -- I suppose this is connected to Justice Breyer's question. Do you think that there's some core that everybody, in fact, does agree upon? In other words, that there are some offenses which people just say, well, of course that fits within the residual clause.
It's not the kind of thing that creates splits, it's not the kind of thing that creates controversy, that there's a core of agreement as to what it means and that all the trouble is occurring on the margins.
Katherine M. Menendez: Your Honor, the margins here are so much bigger than the core that even if we are able to agree on a small number of things that might clearly fall within the center, the fact is that the vast majority --
Justice Elena Kagan: What do you think is in the core?
Katherine M. Menendez: Your Honor, I think kidnapping might be in the core.
A kidnapping that doesn't fall within the force clause, which many would do, might be in the core. But, Your Honor, I think what's more instructive is the fact that so many things that the government even suggested are easy cases -- the examples that they give on pages 8 and 9 of their brief -- on closer examination, they're not that easy.
For example, child abuse.
Now it's true that one circuit or multiple circuits have held that child abuse counts, but the Spencer case, which examined a Florida statute of child abuse, found that it didn't account.
Justice Elena Kagan: The government says that to declare a statute facially vague, all its applications have to be facially vague.
And I guess you're contesting that standard because you're admitting that at least one thing that you can think of, kidnapping, that there -- that that application would be appropriate; is that right?
Katherine M. Menendez: Your Honor, I think that it's important to look at where the government's standard of has to be vague in every imagined application comes from.
It comes from Flipside v. Hoffman Estates, which dealt with licensing and financial fines and, more importantly, where everyone agreed that the conduct in question there was clearly in the core. This is different in all three respects. This deals not only with an onerous sentencing penalty, but a mandatory one where Congress has acted to take discretion away --
Justice Antonin Scalia: Well, you're not answering the question, though.
The question is whether you agree with the government that so long as there is something that is clearly within the core, it's not vague.
Do you agree with that or disagree with that?
Katherine M. Menendez: I do not agree with that, Your Honor.
I think that that's unworkable.
Justice Antonin Scalia: I suppose you could have a statute that criminalized annoying conduct, right? And according to the government, that would not be unconstitutional, because there's some stuff that is clearly annoying, right?
Katherine M. Menendez: Yes, Your Honor. (Laughter.)
Justice Antonin Scalia: So that's a perfectly good statute according to the government, yes?
Justice Ruth Bader Ginsburg: What do you do with all of the statutes that are cited in the appendix in the government's brief that they say uses such language as "serious risk of physical injury to another," the same words that are used here? Except this says "potential." What do you -- the -- the government suggests that all of those statutes would be vulnerable under your reading.
Katherine M. Menendez: Thank you, Your Honor. The -- the term "serious risk" is not on trial here. None of those with the, perhaps, possible exception, we believe, of the two described on the first page come even close in operation or function to what the residual clause does.
In almost every one of those cases, it's either part of a limiting definition, it's subject to an additional limiting definition, or it's one of several elements which help narrow the conduct.
Justice Anthony Kennedy: Or -- or is it also that in most of the statutes that were cited, it depends on the facts of the particular case? It's the opposite of the categorical approach.
Katherine M. Menendez: And that is a very important distinction, Your Honor, absolutely.
Justice Antonin Scalia: Which means it's up to the jury and juries, you know, don't -- don't have to be clear.
They can be vague.
Katherine M. Menendez: Well, juries are routinely tasked with the question of something -- whether some individual conduct, not an abstract imagination of conduct, but actually what the defendant did constitutes a serious risk.
That, combined with the fact that it's usually part of a much narrower statute, prevents those from being vague. In addition, Your Honor, with respect to your question, not one of those statutes, not one has given rise to the expressions of frustration from lower courts.
The 14 disagreements --
Justice Stephen Breyer: Yes.
But then, look, that -- that's -- you've got -- you've got that.
But it's not -- that can't be.
There's something odd about this statute that's causing the problem and I can't put my finger on it.
And what you've done is simply point out that courts have had difficulty with it.
Well, that isn't enough, I don't think. Why? The words seem clear enough.
What is it about this that's led to this difficulty? It certainly isn't a problem to identify many cases where there is a serious risk of physical harm.
But there's something that's given rise to this, and I haven't yet been able to articulate it to -- to myself.
You've thought about it more than I.
Katherine M. Menendez: I've thought about it a lot, Your Honor.
I think there's several things that give rise to the confusion. One is the fact that it asks judges to answer of -- an almost impossible-to-answer question. They have to imagine whether an offense in the abstract, and frankly, in its ordinary case, presents a substantial risk.
How to even select the ordinary case is something the statute gives no guidance about.
And what degree of risk is required, where to get the information regarding the risk; it's completely imaginary and subjective and it's the --
Justice Samuel Alito: Suppose the -- suppose the question of whether it's a serious potential risk of physical injury to another were a factual question submitted to the jury to be determined on the basis of what your client did.
Would that be unconstitutionally vague?
Katherine M. Menendez: Your Honor, I think that would go some direction towards solving the problem because it would require fact-specific analysis by the jury.
Justice Samuel Alito: Is that a yes or a no?
Katherine M. Menendez: I think that if it still had the -- had the -- I think that would avoid the vagueness problem, Your Honor.
Justice Elena Kagan: I mean, it would create other problems, wouldn't it? I mean, we'd be trying to do this based on 20-year-old convictions and -- and often on questions that nobody had an incentive to argue or to litigate.
Wouldn't that be -- I mean, that's the reason we went down this road, isn't it?
Katherine M. Menendez: And Your Honor points out a very good point about why I hesitate to think that that's a solution.
It's an unworkable solution, but might get around the vagueness if the parties were entitled both to argue it to a jury and to relitigate the specific facts.
But I don't think anyone is imagining that recidivist statutes could function that way in the courts.
Justice Samuel Alito: Well, I wasn't asking about a recidivist statute.
I was asking about a statute that imposed a particular penalty for possession of -- of a sawed-off shotgun.
And it says or it -- someone is convicted under a statute that has this language and the possession of the sawed-off shotgun was -- had just occurred. Do you think you think that would not be unconstitutionally vague?
Katherine M. Menendez: If the jury was asked in this offense to decide whether that possession presented a substantial risk beyond a reasonable doubt, I don't think that would cause the same problems, Your Honor. I think another thing that -- that is inherent in other parts of the violent felony definition that's instructive about what's wrong with this one is that when it requires the question to be an element of the offense, as with the force clause or, for instance, burglary, you -- all you need to do is look at the elements of that predicate offense to determine whether it qualifies.
Justice Samuel Alito: Well, Congress was trying to do something here and some may think it's a good thing to do, some may thing it's not a good thing to do, it's a legitimate thing to do.
And that is to impose an enhanced penalty for people who -- felons who possess firearms and have a record of prior convictions for certain category of offenses. Now, if you don't use -- if -- if the -- the residual clause is held to be unconstitutionally vague, is there any other way that Congress could accomplish that end?
Katherine M. Menendez: Yes, Your Honor, I think there is.
I think one solution would be to both tie the risk to the elements.
So, for instance, you can keep the same 14 words, but add in "has as an element the pre" -- "creation of serious potential risk," and anything that didn't fall within that, Congress could simply add as an enumerated offense.
Justice Samuel Alito: Why does that solve the problem, has as an element the creation of a serious potential risk?
Katherine M. Menendez: Because then litigants, defendants and judges would only have to look at the criminal code of the State that has the predicate offense and see whether it has as an element the creation of risk.
Justice Samuel Alito: Well, an offense that prohibits the possession of a -- of a sawed-off shotgun has as an element the possession of a sawed-off shotgun. So you'd have to decide whether that element creates the risk.
I don't see how that solves it.
Katherine M. Menendez: Under my solution, there mere possession of a short-barrel shotgun would not count under Minnesota law because it doesn't require the possession in connection with behavior that creates a risk.
But if I may --
Justice Antonin Scalia: But the jury would have found -- would have found the -- the fact of the risk, right --
Katherine M. Menendez: Precisely, Your Honor.
Justice Antonin Scalia: -- in the -- in the cases that you're describing?
Katherine M. Menendez: In my imagined solution, Your Honor.
But frankly, it's up to Congress.
Justice Elena Kagan: So -- so what you're saying, essentially, is that all the statues in the back of the government's brief would count?
Katherine M. Menendez: Yes, Your Honor.
Justice Elena Kagan: But nothing else would.
In other words, you have to have it listed specifically, and this conduct created a serious risk of injury.
Katherine M. Menendez: If Congress chose that as a solution, yes, Your Honor.
I think that this demonstrates why this needs to be left to Congress.
Justice Stephen Breyer: Extortion doesn't have that.
Katherine M. Menendez: Extortion is an enumerated offense, and that would pose the additional solution, Your Honor.
Anything that doesn't have --
Justice Stephen Breyer: Is there any crime like that? What is the crime like that? I mean --
Katherine M. Menendez: There's 200 crimes like that.
Justice Stephen Breyer: -- in the first one, use, attempted use, threatened use of physical force, and you're simply adding to those -- to those three categories, you'd say, or risk -- or serious risk of what?
Katherine M. Menendez: Has as an element the creation of a serious risk or a serious potential risk.
Justice Stephen Breyer: Of?
Katherine M. Menendez: Of injury to another.
It's up to Congress how they would choose to define it, but if they wanted it --
Chief Justice John Roberts: But I thought --
Katherine M. Menendez: -- to hew closely to the residual clause -- I apologize, Your Honor.
Chief Justice John Roberts: No.
Katherine M. Menendez: If they want it to hew closely to the status quo, were Congress to choose that, then requiring that risk to be an element, the government has collected for us 200 examples of statutes that have risk as an element, they would presumably count.
And if there were some left out of this solution that Congress wanted to -- to include, like, for instance, if extortion were not one of the enumerated offenses and they wanted to include it, all they have to do is list it.
It's a perfect congressional function, Your Honors.
They can hear data.
Justice Stephen Breyer: I see.
Katherine M. Menendez: They can assess risk.
They can hear testimony.
They can decide what should and shouldn't count, but we shouldn't be imagining it every time.
Justice Elena Kagan: Are you saying that this is something -- in response to Justice Alito's question -- that this is a way that Congress could fix the statute? Or are you saying that it's a way we could fix the statute? In other words, that it's an available savings construction that we should feel free to adopt.
Katherine M. Menendez: Your Honor, I -- I don't presume to tell the Court what it can and cannot do, but it has strived for in now the fifth time to create an interpretive framework that would solve the problem.
I think that my suggestion is a good one, but far be it for me to say what Congress should --
Justice Antonin Scalia: Let me ask you something. Can you get -- can you get to your suggestion from the text of the statute?
Katherine M. Menendez: I do not believe so, Your Honor.
Justice Antonin Scalia: I don't think so either.
Katherine M. Menendez: If it were in the text, we probably wouldn't be in this place to begin with, Your Honor.
Justice Anthony Kennedy: It's -- it's important to me to evaluate your statement that most of the problems are at the margins, not at the core.
How -- how do I do that? It -- it -- it's -- my assumption was the opposite.
I thought the margins were few and that the core was -- covered a vast amount of criminal conduct. Where -- where do I look to determine who's right on that?
Katherine M. Menendez: Your Honor, I think that we've grappled with that especially in our reply brief. You're exactly right.
In a traditional statute, the core is large, the margins are gray, and the gray margins shouldn't lead to a conclusion of vagueness. But in this case, the fact that over, and over, and over again there's disagreement about things that should seem obvious, shows us that that core is smaller and smaller, if not extremely small, compared to the margins. Look at the easy cases -- the easy cases that the government pointed to at pages 8 and 9 of their briefs.
On closer examination, those give rise to disagreement.
They're not uniformly settled in favor of inclusion or exclusion.
Anything that seems easy at first blush really isn't.
There's several splits pending right now, Your Honor.
And I don't mean to just dismiss them as disagreements about outcome. Disagreements about how to apply this Court's tests that aren't going to be answered by this Court's decision in Johnson and won't be answered presumably by the next case down the road.
The -- the question of whether consensual sex offenses based on age should qualify, the question of how offenses with recklessness should be assessed, conspiracy to commit crimes of violence. One of the easy cases that the government highlights is solicitation to commit murder, but it's really not that easy if conspiracy to commit a crime of violence has two petitions pending before this Court right now.
So the veneer of ease and simplicity that the government attempts to create in their writing is belied by the reality on the ground.
Justice Anthony Kennedy: A -- a different question, and it's more for the government than for you.
As you understand the government's position or is there common ground between the parties that because this is a mandatory increase, the standard for vagueness is precisely the same as the standard that we applied and determined whether or not a crime, in its definition, is itself vague. In other words, is there a different vagueness standard for sentencing than for the -- a statement of what a crime is at the outset?
Katherine M. Menendez: I -- I don't think in this case it deserves a lesser scrutiny because it's a sentencing provision precisely because it's both mandatory and onerous in the extreme.
Justice Anthony Kennedy: It's as if there were a new crime.
Katherine M. Menendez: It's as if there were a new crime.
And I'm not talking about for other aspects of this Court's jurisprudence, but for that question. And I think frankly Flipside v. Hoffman Estates itself suggests that criminal statutes deserve greater scrutiny even though the licensing and mere fine statute that gave rise to that statement of vague in every application, they deserve greater scrutiny.
And this is certainly one of the most onerous sentencing penalties that we as Federal defenders face in our practice.
Justice Ruth Bader Ginsburg: You say the congressional cure, as I understand your argument, could only be to add to the list of crimes, to add to arson, extortion, or to have whereas the -- an element of the crime is a serious risk.
That's the only things that Congress could do.
Katherine M. Menendez: Oh, no, Your Honor.
I don't mean to suggest that at all.
Congress can fix this however they see fit, and that's why it's a better congressional function than asking one defense attorney to --
Justice Ruth Bader Ginsburg: But I asked what were the routes that Congress could take.
One is to list every crime that they think should get the enhanced penalty. Another is to say this -- this statute has to have as an element that the conduct creates a serious risk of injury to others.
Sort of those two.
What could Congress do?
Katherine M. Menendez: Well, Your Honor, I don't think listing them is that difficult.
Other congressional enactments list a large number of things that --
Justice Ruth Bader Ginsburg: I'm just saying, is there anything else? Let's accept listing is okay.
Saying that the crime has to have as an element the risk of danger to another.
Katherine M. Menendez: Your Honor, I'm not trying to avoid the question.
I think it depends on what they want to accomplish.
If they want this to apply very broadly to almost any sort of felony, they can say so. If they want it to apply more narrowly to things that are actually violent, they can say so.
The problem is they didn't say much of anything when they wrote this statute.
Those are the two ideas I have, but I'm sure there are more.
Justice Samuel Alito: I -- I don't want to take up your rebuttal time, but just this quick question. If -- if Congress assigned a committee or a person to go through the criminal code of every single jurisdiction and identify those offenses that didn't fall within any other provision of ACCA, but met, in the judgment of those -- that individual or those individuals, the residual clause standard, how many do you think they would come up with?
Justice Samuel Alito: Dozens? Hundreds? Thousands?
Katherine M. Menendez: Again, I think it -- it depends on whether Congress wants this to be a narrowly applied enhancement for the worst of the worst or broadly applied three strikes rule.
And I think if they gave the commission that guidance instructed by this Court's previous cases that show the hard areas of questions, then the commission could decide. I -- I don't think that it's necessary to look at every State's code.
If they just specify the definitions like they did for burglary and robbery in the original 1984 enactment, that would save an enormous amount of question, and it would preclude them from having to look at each State's code. And with the Court's permission, I'll save my last moments.
Chief Justice John Roberts: Thank you, counsel. Mr. Dreeben.
Michael R. Dreeben: Mr. Chief Justice, and may it please the Court: The Armed Career Criminal Act states, as this Court noted in Sykes, a normative principle that can be applied to various crimes with a methodology that does not produce unconstitutional vagueness.
Chief Justice John Roberts: Well, we didn't say anything like that in Begay.
Michael R. Dreeben: I think the Court didn't volunteer an opinion about the vagueness of the statute in Begay.
It did comment on that in James, and it said that it was not unconstitutional.
Sykes came later after Begay, and the Court continued to adhere to the idea that this statute can be applied as it has been applied four times by the Court and in numerous instances by lower courts without substantial difficulty. Now, I'm not --
Chief Justice John Roberts: I didn't mean to suggest in Begay we specifically addressed vagueness, but the -- my -- my point was that Sykes provides a particular test, but as your friend has pointed out, Begay, it seems to me, points in an entirely different direction.
Michael R. Dreeben: What Begay did was conclude that the similarity of the offenses in the residual clause to the enumerated offenses had to be more than just similarity of risk; it also had to have a certain similarity in kind. In Sykes, the Court noted that the phrase that the Court developed in Begay, "purposeful, violent and aggressive," wasn't precisely linked to the text of the statute, and it made clear that for offenses with a mens rea of knowingly or intentionally risk levels ordinarily provide the manageable test that courts can apply.
Justice Stephen Breyer: That's true, but you see, Begay sort of points to the problem in my mind.
There is no doubt that drunk driving does cause a risk of physical injury.
But could it be that Congress really wanted to impose a 15-year mandatory minimum penalty to a person who has two drunk driving offenses prior? It seemed outside the ballpark of what they're actually interested in, and that's why I've had such a hard time, I think we've had such a hard time with this in part because of the sentence -- you know, a 15-year mandatory minimum -- and in part, because there seems like they had something in mind, but it's very hard to figure out.
Michael R. Dreeben: So I think, Justice Breyer, that it may have been a little bit too ambitious for the Court to try to develop a similarity-in-kind test from --
Justice Stephen Breyer: Yeah.
Michael R. Dreeben: -- as the Court did in Begay. That was the position of the government; four Justices agreed with that, five did not.
We're not asking the Court to revisit that today. But once the Court did develop it, it then considered in Sykes whether it provided a uniform, universally applicable test --
Justice Stephen Breyer: And it doesn't.
Michael R. Dreeben: -- and concluded that it was better to restrict it to crimes that involved negligence, strict liability, recklessness, potentially, so as not to allow it to basically subsume what's in the statute.
And I think that having done that, the Court has given guidance to the lower courts, there has been some confusion that the Court, in its opinion in this case, could clear up about the relationship between Begay and the risk test.
Justice Antonin Scalia: Is that all it takes? I mean, can we just patch up this statute in ways that have nothing to do with its text as -- as Begay didn't? I -- I thought we did not have any common law power to create crimes.
And if that's the case, it seems to me it has to be Congress that's done that.
Michael R. Dreeben: So I agree with --
Justice Antonin Scalia: And if Congress hasn't done it, and it hasn't done it, clearly, it seems to me our job is -- is over.
Michael R. Dreeben: So I agree with you, Justice Scalia, that the Court does not have the power to create common law crimes, and I don't think that it has done that.
It's engaged in statutory construction about which members of the Court may disagree. Now, if the Court believes that a similar-in-kind limitation is appropriate for ACCA, there actually is a textual vehicle for getting there. It's the same vehicle that Your Honor used in the other Johnson case, the one about whether batteries involved strong force or simply offensive touching, and Your Honor looked to --
Justice Antonin Scalia: Other laws.
Michael R. Dreeben: -- violent felony, the word being defined, and concluded that the word "violent" in that definition informed what kind of force would count. And I think that that was the essential impulse of the Court in the Begay case to distinguish between injuries that are caused by regulatory type violations, like pollution, and injuries that are caused in the way that the statute specifies.
Chief Justice John Roberts: Well, but that -- that phrase, it seems to me, could just as clearly be viewed as adding confusion.
And that's one -- the various hundreds whatever statutes you cite, I don't think -- certainly not many of them, I'm not sure any of them, involved that aspect of it.
In other words, it's not just a question of whether it's serious potential risk, but otherwise, what is its relationship to the enumerated offenses.
Michael R. Dreeben: So I think that that is not such a big problem if the Court applies that the way that it did in Sykes, and the way the lower courts predominantly do.
It is not a precise statistical empirical analysis.
Congress could not have envisioned that this Court and the lower courts have available to them statistics that for most crimes do not exist in order to gauge risk levels. It instead intended a judgment exercise, based on experience, just like the Court did in Sykes. And I want to remind the Court that eight members of the Court agreed in Sykes, that flight in a vehicle from a police officer in its ordinary case was sufficiently risky to trigger the residual clause.
There was disagreement because of the particular structure of the Indiana statute, which had an enhanced offense that involved vehicular flight that posed a risk of something.
Justice Antonin Scalia: I don't know what you mean by a judgment exercised based on experience.
What -- what experience do I have regarding these innumerable State crimes? I -- I've not heard any case involving any of those State crimes.
What -- what experience are you asking me to apply?
Michael R. Dreeben: I think the same kind of logical judgment that the lower courts have used, and let me give an example --
Justice Antonin Scalia: Well, that's not experience.
I mean, logic is not an experience.
You're asking me to apply logic or experience.
Which is it?
Michael R. Dreeben: Both.
Justice Antonin Scalia: Both.
Well, what's the experience part?
Michael R. Dreeben: Well, it may be a little bit easier if I start with the logic point, and I promise I will get to the experience point. The logic point involves looking at the elements of the offense and asking, what does the conduct in this offense consist of? Let me take an example which my friend on the other side has not challenged: Solicitation of a child under the age of 14 to engage in sodomy. Now, a court can look at that conduct and say what that requires is that an adult attempt to entice a child to a private place to engage in a sex act.
Is that the kind of act that is likely, as a matter of logic and ordinary human experience -- adults are bigger than children, sodomy requires physical contact -- is it likely to produce a serious potential risk of physical injury to another? Courts do not have very much difficulty answering that question.
Similarly, in cases of kidnapping, you ask what does it mean? Somebody is --
Justice Antonin Scalia: I suggest they have not much difficulty because it's a horrific crime, not because they have any basis for saying, you know, what the degree of risk of serious -- potential -- a serious potential risk of injury is.
Michael R. Dreeben: Well, I don't think that they have to say with precision what the degree of risk is. Congress gave four exemplar crimes to try to illustrate what it had in mind.
Two of them, burglary and extortion, involve conduct that's directed against property or potentially a threat of a person.
And the danger that can arise is of confrontation; if the burglar encounters somebody at the home, if the extortionist attempts to realize the threat.
Justice Stephen Breyer: All right, I see that. Now, wait, before -- because I want you to get back to the experience.
The thing also that sticks in my mind is that Indiana case.
Do you remember the one I'm talking about? Because -- because, in fact, you look at the words, but they're nested -- you see they're nested a set of other crimes.
Michael R. Dreeben: Yes.
Justice Stephen Breyer: And really you'd like to know an empirical fact, how is this bit of a larger nest actually used in Indiana? It might be that it's really used against people who are involved in a violent kind of situation, or it might not be, because there are a whole lot of other ones around. And now you turn to experience and say, use experience -- you know, I have no idea whatsoever.
And Posner has suggested, I think I picked that up, go and do some empirical research; why doesn't the government do it? The Sentencing Commission has tried to do it. It can't start.
It doesn't know where to begin, there are so many statutes.
Michael R. Dreeben: So I think, Justice Breyer, the very difficulty and unmanageability of the enterprise suggests that it's not what Congress had in mind.
Justice Stephen Breyer: All right.
Michael R. Dreeben: What Congress had in mind was identifying classes of offenses that judges are confident involve serious potential risks of physical injury to another, possibly the similarity-in-kind inquiry when the mens rea isn't satisfied.
And what Congress expected courts to do was to analyze what the conduct is that's involved in it, compare it to the listed offenses, and see if the risks are similar.
Justice Ruth Bader Ginsburg: Does the --
Justice Elena Kagan: But that -- that sounds --
Justice Ruth Bader Ginsburg: Does the Department of Justice do any of that? I mean, an ACCA sentence, as I understand it, is one that the prosecutor asks for.
And is there any guidance coming from the Department of Justice, guidance to the U.S. attorneys who are going to be asking for ACCA sentences, when they should and when they shouldn't?
Michael R. Dreeben: Yes, and the guidance keys, Justice Ginsburg, off this Court's decisions.
We use primarily an analysis that focuses on looking at the conduct that the elements of the crimes embrace, and logically analyzing what does it entail? Does it entail a risk of confrontation? The other kind of risk that's subsumed --
Justice Ruth Bader Ginsburg: Is there -- is there written guidance --
Michael R. Dreeben: Yes.
Justice Ruth Bader Ginsburg: -- from the Department of Justice to the U.S. attorneys?
Michael R. Dreeben: Yes, there is, in the form of guidance memos that we regard as work product, but they involve analytical efforts to separate different offenses into different categories, based on the conduct. And to the extent that statistics come into play, and I know that, Justice Breyer, your opinions have cited statistics, you've talked about the needs for statistics, we think that they play the -- exactly the role that the Court used them for in Sykes.
First, the Court talked in Sykes about what happens when someone pleas -- flees from a police officer.
What are the risks of --
Justice Stephen Breyer: Yeah, but what about extortion? I mean, extortion, that doesn't -- I mean, the other three I can see; burglary, arson, explosives, sure.
But what about extortion? I thought the -- it's like Hobbs Act, and I would be amazed if many of those involve violence, but you would know.
Do they --
Justice Antonin Scalia: Violence by the extortion -- extortee.
I mean, it certainly is not the first --
Justice Stephen Breyer: He's at the other end of a postal communication, or something.
I mean, they say, if you don't give me some money, I will, you know -- and I'm in New York, you're in Hawaii, I'm going to reveal such and such.
Michael R. Dreeben: Well, I think --
Justice Stephen Breyer: What are the facts on that?
Michael R. Dreeben: I think that what Congress had in mind was the kind of extortion where somebody threatens to inflict injury on a person or property. And if it's -- in order to achieve a demand.
And Congress was concerned that the person who makes that threat poses a risk of carrying it out, which creates a degree of danger.
It's the confront --
Justice Antonin Scalia: Is that the Justice Department's position, that other extortion is not covered by the provision?
Michael R. Dreeben: Well, I don't think --
Justice Antonin Scalia: If it's just blackmail, you threaten to reveal something about the person's life --
Justice Antonin Scalia: -- that isn't covered.
Michael R. Dreeben: We would argue that the generic definition of extortion is seeking to get some property from a person with his consent by the use of threats, force or fear.
Justice Antonin Scalia: Threat -- threats or force.
Michael R. Dreeben: Yes, yes.
Justice Antonin Scalia: You add or fear.
Michael R. Dreeben: Yes.
Justice Antonin Scalia: Well, I mean, fear includes being afraid that some events of your prior life will be --
Michael R. Dreeben: That's right.
Justice Antonin Scalia: So -- so you -- you don't assert that extortion means only the extortion that -- that the mafia might -- you know, pay up or -- or we're going to hurt you.
Michael R. Dreeben: I -- I think a normal method of statutory construction doesn't quite get you to the narrower view of extortion that you expressed in your separate opinion in James I believe, but that is a legal question.
I mean, the government might make that argument and this Court might conclude that under the principle that similar words should be construed similarly, extortion has a narrower meaning in this statute.
Chief Justice John Roberts: No.
But the problem is -- the problem is not what the government argues when it gets into court.
The problem is what the prosecutor threatens when he's entered into plea bargain negotiations.
This is the point that Justice Ginsburg touched on.
You are putting the defense counsel in a position where they have to interpret the vagueness in making the decision when -- whether they want to plead to five years or risk the mandatory minimum of -- of 15. And your guidelines say a lot, but I thought one of the things your guidelines say is that you should prosecute the -- the maximum extent that you can, right? Isn't it you should charge the maximum if you -- if you charge and then the prosecutors go in and say, look, I could charge you this much and -- or I could -- or I could -- I mean, I could add this charge to what I've got and then you'd face 15 years.
And defense counsel said, well, all right.
Let me see if we're guilty of that.
And he's going to read that and have no idea whether they're covered by it or not.
Michael R. Dreeben: I think no idea is not quite right.
Chief Justice John Roberts: No idea is an exaggeration, sure.
Michael R. Dreeben: It is an exaggeration and this may not completely answer --
Chief Justice John Roberts: Not enough of an -- not enough of an idea to risk an extra ten years for their client.
Michael R. Dreeben: Well, these aren't charges in the same way that a criminal charge is that's brought in the indictment.
Typically, criminal history isn't even assembled until after the defendant has pleaded guilty and a presentence report is being prepared.
And at that point the parties are more aware of whether the defendant might be exposed to the Armed Career Criminal Act or not.
Sometimes ex ante analysis is done and can be done fairly reliably. Again, this Court sees cases that really pose hard questions; that have generated circuit splits that result in legal questions that have divided the lower courts.
There is a wealth of activity below the surface that doesn't get to this Court in which there isn't nearly as much difficulty in figuring it out. Now, on pages 8 and 9 of our brief, which my friend referred to several times, we cited 17 examples of what we thought are easy cases.
In the reply brief, the Petitioner came back and said, well, three of those really aren't easy because they're circuit splits.
In two of them, the splits are really because the definitions, the offenses, the elements of the offenses were quite different.
Child abuse meant something very different in one jurisdiction from another.
Justice Antonin Scalia: So you -- you take the position so long as there's some easy cases, the statute can't be vague.
Michael R. Dreeben: I don't think the Court has to go nearly that far, Justice Scalia, because in this case you have four cases --
Justice Antonin Scalia: So you -- you don't take that position?
Michael R. Dreeben: This Court's decision --
Justice Antonin Scalia: I thought your brief took that position.
Michael R. Dreeben: This Court's decisions do suggest that.
Justice Antonin Scalia: Yes.
Michael R. Dreeben: I don't think the Court has to go all the way to that position in order to conclude --
Justice Elena Kagan: Well, what is the standard? And this goes back to what Justice Scalia was saying before.
I mean, there's conduct that everybody agrees is annoying.
There are rates that everybody agrees are just -- are unjust and unreasonable.
So how much do we have to say that the core has shrunk and the margins have taken over before we're willing to do this?
Michael R. Dreeben: So I think the starting point, Justice Kagan, is to look at whether the statute states something of an objective standard or a subjective standard.
So in the instance of unreasonable rates, that is a standard that -- an administrative agency could -- could flesh that out.
But for a court to do it would really just involve an -- an application of subjectivity.
Justice Elena Kagan: But I feel as though it's really the same inquiry.
I mean, even as you describe it, it's identify crimes where there -- you know, dangerous stuff, crimes that pose a risk of -- of danger. How much danger? Well, as much danger as these four enumerated offenses.
How much danger do they pose? Well, nobody's really sure.
One of them seems only to pose that a lot of danger in a few select cases. So it's a really -- it just seems, even as you describe it, as the kind of thing that Congress ought to be doing.
Michael R. Dreeben: Well, let me add one thing, Justice Kagan, to your description of what courts should do when they apply this analysis.
First, they're going to look to see if they can identify the ordinary case. Then they're going to try to determine whether the risk is essentially, I think, analogous to the burglary extortion risk of confrontation or the arson explosives risk of unleashing a direct -- a destructive force.
And then finally there may be some cases where the Begay analysis applies. But this is the really important point that I want Your Honor to think about in this context: If the Court is not satisfied that on any one of those issues, the government loses.
Not because the statute is vague, but because if the Court is not confident that an offense fits within the -- a normative criteria that Congress has established, the tie goes to the defendant.
Justice Antonin Scalia: So there's no so much thing as a vague statute.
Michael R. Dreeben: Well, no.
I think --
Justice Antonin Scalia: You're saying whenever the statute is vague, the government loses on the Rule of Lenity; therefore, there's no such thing as a vague statute.
Michael R. Dreeben: I think the kinds of things that are vague statutes as reflected in this Court's opinions are either those where there's a tinge of First Amendment or other protected activity, like in the annoying example, or cases like L. Cohen where the standard is unreasonable rates.
And sure, everybody would agree that some rates are unreasonable, but it's a -- it's a very subjective standard.
Chief Justice John Roberts: But what do you think --
Justice Antonin Scalia: The hardest -- the hardest part of this -- of this test is determining what is the typical case of -- of -- of this particular violation. What is the typical case of extortion? To take one of the four enumerated -- what is the typical case of extortion? You seem to think the typical case is the -- you know, I'll break your leg unless you pay up.
See, I would have thought the typical case is, you know, I'll -- I'll disclose something about your -- your life unless you pay up.
Michael R. Dreeben: And I think that if the Court is faced with that kind of conundrum, it looks to reported decisions of convicted cases, as the Court indicated in James, and it attempts to determine whether it can identify the ordinary convicted case.
And if it cannot conclude that the ordinary case involves the greater degree of violence, then it will conclude that the government has not prevailed.
Chief Justice John Roberts: What about one that you think is easy, kidnapping? What if the statistics would ever show that in 40 percent of the cases, they're talking about the parent that does not have custodial rights, you know, taking the child from school and not -- not returning him or her, whatever.
I mean, that doesn't pose, I would say, not a serious risk of potential violence.
The parent is not going to harm -- harm -- harm the child.
And yet you say that's an easy case.
Michael R. Dreeben: Well --
Chief Justice John Roberts: Maybe it's easy if it's at the margin, if one percent of the cases are.
I don't know whether kidnapping is prosecuted more often in a case like that or in another, you know, more, you know, violent case where it's extortion for money as opposed to just wanting more custody of the child.
Michael R. Dreeben: So we -- we would have to undertake the effort to try to persuade a court of what we thought the ordinary case was.
And if we failed, if we did not muster whatever the Court thought it needed to understand that --
Chief Justice John Roberts: But how do you -- how do you do that? Do you look at every charged case of kidnapping in the State of Arkansas, if it involves a law from Arkansas?
Michael R. Dreeben: We would look at the reported cases in Arkansas.
We would look to see whether --
Justice Stephen Breyer: The -- the reported cases. The problem is --
Justice Elena Kagan: But you know -- you know, Mr. Dreeben --
Justice Stephen Breyer: No.
I want to just get to Justice Kagan's earlier question, if that's all right. Is it? Okay. Because for the reasons that you've heard, I'd just like you spend now or sometime before you sit down, a minute on the suggestion of limiting it through the use of the -- your appendix, which you heard described a minute ago.
Michael R. Dreeben: Yes.
Justice Stephen Breyer: Because looking at the language, I think it is possible within the language to go to that interpretation.
Michael R. Dreeben: So I don't really think that that interpretation is correct, because if you look at the exemplar crimes --
Justice Antonin Scalia: I don't know what you're talking about.
Michael R. Dreeben: I think it's --
Justice Stephen Breyer: All right.
What I'm talking about specifically --
Justice Antonin Scalia: What interpretation?
Justice Stephen Breyer: -- is you read the words, "Otherwise involves conduct that presents a serious potential risk of physical injury to another." You look at the four examples.
You say in each of the four examples there was a jury determination that it fell within one of the four, and we should read those words, too, as requiring a jury to make a determination that there's a serious potential risk.
And the way you do that is that you insist that an element of the crime has the words, or the equivalent, of "serious potential risk." Now, that's roughly what the suggestion was on the other side.
I just didn't want you to sit down and -- at any point you'd like without -- without addressing that possibility.
Michael R. Dreeben: Well, I -- I can address it quickly, Justice Breyer, because I don't think that it is a construction of the statute that really works.
The exemplar crimes like --
Justice Antonin Scalia: Excuse me.
She didn't propose it as a construction of the statute.
She said very clearly that this Court could not adopt that, but that Congress could.
She was asked, you know, how Congress could fix this.
That was her proposal about how Congress could fix it --
Michael R. Dreeben: Justice Scalia, I --
Justice Stephen Breyer: I'm asking you as a saving construction.
Michael R. Dreeben: I just wanted to -- I think we agree with Petitioner on this one, that the exemplar crimes, burglary, extortion, arson, and so forth, don't involve as an element characteristically serious potential risk of physical injury to another.
It arises because of the elements of the crime.
And the residual clause, which was originally where ACCA came from as a freestanding clause, and then the exemplars were added back in before it was passed --
Justice Stephen Breyer: I see.
Michael R. Dreeben: -- illustrates --
Justice Stephen Breyer: Go back to Justice Kagan.
Michael R. Dreeben: Yes.
So that -- that I think is not really a viable solution to it, but I do think that the viable solution in this area is that for many crimes, they -- they don't pose the empirical conundrums that can be hypothesized.
And when they do and the government is not able to satisfy the Court or the Court isn't through its own research able to become satisfied that it is a fix on the ordinary case, that it can say with some degree of confidence that the risk is comparable to the exemplar crimes, the crime falls out. And so you have in the ACCA world many crimes that no one ever contests are covered; mail fraud, gambling.
And then you have crimes that we have listed that are not seriously contested.
We listed 17 of them.
They contested 3.
I think two of the contests really have to be satisfied but with --
Justice Elena Kagan: But I think even --
Michael R. Dreeben: -- are different -- please.
Chief Justice John Roberts: Justice Kagan.
Justice Elena Kagan: I -- I think even in the ones that you think are easy, they're only easy in the abstract. The vehicular flight one was a good example of that.
In the abstract, everybody just has a sense that it's really dangerous if people flee from a police officer in a car.
But then it turns out there are all kinds of degrees and we have zero idea what the charging is.
And I think that that's not -- that was not a fluke of that case.
That's kind of every case, is that we don't have a sense of how all the statutes connect to each other and what statutes are used for the dangerous ones and what statutes are used for more minor variants of the same offenses, and that that's kind of an endemic problem in this.
Is that not right?
Michael R. Dreeben: Justice Kagan, I think what the Court is asking itself when it attempts to apply ACCA is not a question at that fine-grained level of empirical precision.
Congress understood, for example, that in most burglaries, probably nobody is hurt.
Many extortions, nobody realizes the threat.
And yet, it regarded the kind of person who is willing to undertake a crime that could lead to that kind of confrontation as properly subject to an enhanced sentence when they have not just one, but two other convictions, and then they go out and use a gun.
Justice Elena Kagan: Well, but then you're talking about a very different inquiry, it seems to me. Then you're talking about just a gut check.
Do -- do, like, people that -- is this the kind of conduct that a bad person engages in?
Michael R. Dreeben: No.
I don't think that it's quite that amorphous.
There is a much more specific inquiry into the risk, and the way the courts have conducted it I think is really -- you know, in this Court's decision in Sykes was an exemplar, but there are many, many, many other cases where the lower courts look at the conduct, they examine the conduct, is this a sex crime that involves a minor and an adult? What is likely to ensue? And I think that it's kind of critical to keep a perspective here that the idea of substantial risk is shot through criminal law.
The very definition --
Justice Anthony Kennedy: That -- that brings me to the statutes in your appendix.
It did -- it does seem to me that those statutes do require a case-by-case determination by the finder of fact that there was a danger in the particular case.
Michael R. Dreeben: So there --
Justice Anthony Kennedy: And so -- and so that -- that's different from --
Michael R. Dreeben: Yes.
Justice Anthony Kennedy: -- from a categorical approach.
Michael R. Dreeben: Yes.
And, Justice Kennedy --
Justice Anthony Kennedy: And most of those statutes, it seemed to me, would survive if -- if this Court ruled against you here.
Michael R. Dreeben: It depends on the rationale, Justice Kennedy, because if the rationale were the concept of substantial risk is itself too amorphous to be grasped at all and to be applied in any kind of a consistent manner, I think that would raise serious questions.
Justice Antonin Scalia: We would never say that. We would never say that.
Michael R. Dreeben: But I think as a logical matter, that's essentially what Petitioner is saying, that it's not possible to really get a fix on what those words mean.
Justice Antonin Scalia: No.
He's saying -- she's saying that you can't tell what the typical crime is, and when you can't tell what the typical crime is, you can't tell what -- what -- what the risk is.
Michael R. Dreeben: And my answer to that is --
Justice Antonin Scalia: Just as you can't do it for extortion.
Michael R. Dreeben: If you can't tell what the typical crime is, the government loses.
Once you can tell what the --
Justice Antonin Scalia: That's not really an answer.
That sounds wonderful.
The government loses because of the -- the -- the rule that the tie goes to the defendant.
That sounds wonderful, but the fact is one court will say, yes, the government loses.
Another court, given the vagueness of it, will say the government wins.
Michael R. Dreeben: Yes.
I -- I don't think that's --
Justice Antonin Scalia: Are we going to have to review every one of these until the law is clear?
Michael R. Dreeben: No.
I think the Court does what it typically does, which is to review cases and establish general principles, and the lower courts make an effort to harmonize their rulings in light of them. It's not unique that this statute has generated a lot of litigation.
Section 924(c), for example, this Court has had three different cases interpreting the meaning of the word "use" and one interpreting the word "carry." I mean, that's a higher ratio of cases to words than this statute, but I think what it says is that when there's a lot at stake, when many years of prison time are at stake, people litigate hard.
Justice Anthony Kennedy: Is the test the same here for vagueness as when we're determining the validity of a statute that specifies a crime?
Michael R. Dreeben: So I don't think that's so clear, Justice Kennedy.
This Court in Chapman indicated that there's a lesser degree of -- of clarity required for vagueness doctrine in the sentencing context.
Justice Ruth Bader Ginsburg: Why should that be when it's a mandatory -- this is mandatory, and has five years, no possibility -- and this case is such a good illustration because the judge said, If it were up to me, this person should get half or most -- what did he say -- two-thirds, that would more than suffice, but I'm locked into this by ACCA. Shouldn't we demand from Congress, if it wants to have that kind of enhancement, a really clear statement?
Michael R. Dreeben: Let me say two things about that, Justice Ginsburg.
One is that this statue involves recidivism.
There -- the -- there was never any question that Petitioner should have had about what conduct was prohibited and not prohibited.
He knew or should have known that he could not possess a gun. And the second thing is because this statute is applied as a matter of law by courts with de novo appellate review, it achieves a degree of clarity through the litigation process that, I think, is going to be sufficient to meet whatever heightened standard the Court might impose on it. But I do want to come back --
Chief Justice John Roberts: Before you do, just -- because I disagree with the statement you made. You said if there's -- because there are so many years involved, people will litigate hard.
I think because there are so many years involved, people won't litigate at all.
I mean, if -- if they're facing when -- if they go to trial such a large enhancement, I think they're going to be compelled -- it gives so much more power to the prosecutor in the plea negotiations which is, of course, where almost all of the cases are disposed of.
Michael R. Dreeben: And not so much here for two reasons, Mr. Chief Justice.
One is that section 922(g) prohibits possession of a weapon by a firearm.
And I'm not going to say that there are no contested cases, but it's not the hardest crime to prove.
If you're found in a car with a gun and the suppression motion fails, trial is not going to get you lot. The second thing is it's not totally up to the prosecutor.
The presentence report will indicate the defendant's criminal history, and the judge is obligated to apply ACCA whether or not the government asks for it to be applied if, in fact, it is legally applicable.
So I don't think that this context presents quite the same plea bargaining pressure that Your Honor had in mind.
Justice Ruth Bader Ginsburg: How is the government going to know about the prior crimes unless the government -- and how is the judge supposed to know about the prior crimes unless the prosecutor tells the court?
Michael R. Dreeben: The -- may I answer, Mr. Chief Justice?
Chief Justice John Roberts: Sure.
Michael R. Dreeben: The -- the presentence report which is required to be prepared by the probation officer does a criminal history check, gathers that information, synthesizes it, makes recommendations to the sentencing court.
Chief Justice John Roberts: Thank you, counsel.
Michael R. Dreeben: Thank you.
Chief Justice John Roberts: Ms. Menendez, you have three minutes remaining.
Katherine M. Menendez: Thank you, Your Honor, Mr. Chief Justice.
Just briefly, Your Honor. First, I think lenity is an illusory solution in this case.
After the government suggested lenity is the answer, we looked through every opinion we could find from the courts of appeals and the district court.
We did not find a single case nationwide where a court has applied lenity to find that a marginal case should not count under the residual clause.
So if lenity is going to pose the solution that the government suggests, it needs substantial invigoration by this Court to be the -- the answer in the gray areas. The second thought is that this suggestion that the Court can decide what the ordinary case is from reported decisions is actually also skewed in favor of the government.
Consider a -- consider a standard offense where somebody commits a much less egregious case; resisting arrest where all they do is refused to be handcuffed versus resisting arrest where they kick and punch and fight the officer.
This case is likely to get a higher sentence and more likely to lead to appeals and challenges and a reported decision.
This case is perhaps more likely to be resolved with a suspended sentence and never to appear in the reported case law at all. So if all we're doing is turning to the reported case law to try to determine what the ordinary case is, that's going to give an artificially skewed sense of the aggressive nature of those cases. Finally, Your Honors, while it's true that this Court has grappled with things like 924(c) repeatedly, 924(c) provides an example of what's supposed to happen, which is when this Court points out a flaw in a statute, which they have -- Your Honors have now done four different times, Congress answered. Change 924(c) to try to address the Court's decision and address the Court's concerns from Bailey.
And then that answer has led to additional questions. That give and take, that discourse is missing in this case, where it's been clear for a long time that this statute needs help, and there's been inaction on the part of Congress.
Your Honors, I think that the idea that the tie should go to the defendant is important, but it's just not happening, because of the subjective gut check that Your Honor has mentioned. Judges substitute a feeling, boy, a sexual offense involving a minor sounds bad, and it sounds violent, so therefore, it must count.
But I'd invite Your Honors to look at the footnote in our brief where we highlight that there's actually several cases that find that where the offense is -- or is unlawful because of the age of the victim, it doesn't count as a violent offense.
So that gut check has to mean -- has to be more quantified, it has to be limited, it has to have specific guidance. The last point I'd like to make, Your Honors, is that whether this Court decides in favor of Mr. Johnson on the merits or an application of the Rule of Lenity, whether this Court decides that this statute is unconstitutionally vague as applied to possessory offenses, or as applied to mere possession of a short-barrel shotgun, or whether this Court takes the step that I think it's time for, and declares this clause unconstitutionally vague, in every instance, I think the appropriate result is for Mr. Johnson to win and be resentenced. Thank you.
Chief Justice John Roberts: Thank you, counsel. The case is submitted.