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11206/06 øòô 13/01/2009
11206/06 deondery chambers, petitioner v. united states
1 (slip opinion) oc
tober term, 2008
syllabus
note: where it is feasible, a syllabus (headnote) will be released, as isbeing done in c
onnec
tion with this c
ase, at the time the opinion is issued.the syllabus c
onstitutes no part of the opinion of the c
ourt but has beenprepared by the reporter of dec
isions for the c
onvenienc
e of the reader. see united states
v. detroit timber & lumber c
o., 200 u. s. 321, 337.
supreme c
ourt of the united states
syllabus
c
hambers v. united states
c
ertiorari to the united states
c
ourt of appeals for the seventh c
irc
uit
no. 06–11206. argued november 10, 2008—dec
ided january 13, 2009
the armed c
areer c
riminal ac
t (ac
c
a) imposes a 15-year mandatoryprison term on a felon unlawfully in possession of a firearm who has three prior c
onvic
tions for c
ommitting c
ertain drug c
rimes or “a violent felony,” 18 u. s. c
. §924(e)(1), defined as a c
rime punishable bymore than one year’s imprisonment that, inter alia, “involves c
onduc
t that presents a serious potential risk of physic
al injury to another,Ӥ924(e)(2)(b)(ii). at petitioner
c
hambers’ sentenc
ing for being a felonin possession of a firearm, the government sought ac
c
a’s 15-yearmandatory prison term. c
hambers disputed one of his prior c
onvic
tions—failing to report for weekend c
onfinement—as falling outsidethe ac
c
a definition of “violent felony.” the distric
t c
ourt treated the failure to report as a form of what the relevant state statute c
alls “esc
ape from [a] penal institution,” and held that it qualified as a“violent felony” under ac
c
a. the seventh c
irc
uit agreed.
held: illinois’ c
rime of failure to report for penal c
onfinement falls outside the sc
ope of ac
c
a’s “violent felony” definition. pp. 3–8.
(a) for purposes of ac
c
a’s definitions, it is the generic
c
rime thatc
ounts, not how the c
rime was c
ommitted on a partic
ular oc
c
asion. taylor v. united states
, 495 u. s. 575, 602. this c
ategoric
al approac
h requires c
ourts to c
hoose the right c
ategory, and sometimes the c
hoic
e is not obvious. the nature of the behavior that likely underlies a statutory phrase matters in this respec
t. the state statute at issue plac
es together in a single sec
tion several different kinds ofbehavior, whic
h, as relevant here, may be c
ategorized either as failure to report for detention or as esc
ape from c
ustody. failure to report is a separate c
rime from esc
ape. its underlying behavior differsfrom the more aggressive behavior underlying esc
ape, and it is listedseparately in the statute’s title and body and is of a different felony 2
c
hambers v. united states
syllabus
c
lass than esc
ape. at the same time, the statutory phrases settingforth the various kinds of failure to report desc
ribe roughly similarforms of behavior, thus c
onstituting a single c
ategory. c
onsequently, for ac
c
a purposes, the statute c
ontains at least two separate c
rimes,esc
ape and failure to report. pp. 3–5.
(b) the “failure to report” c
rime does not satisfy ac
c
a’s “violentfelony” definition. although it is punishable by imprisonment exc
eeding one year, it satisfies none of the other parts of the definition.most c
ritic
ally, it does not “involv[e] c
onduc
t that presents a serious potential risk of physic
al injury to another.” c
onc
eptually speaking,the c
rime amounts to a form of inac
tion, and there is no reason to believe that an offender who fails to report is otherwise doing something that poses a serious potential risk of physic
al injury. the government’s argument that a failure to report reveals the offender’sspec
ial, strong aversion to penal c
ustody—pointing to 3 state andfederal c
ases over 30 years in whic
h individuals shot at offic
ers attempting to rec
apture them—is unc
onvinc
ing. even assuming the relevanc
e of violenc
e that may oc
c
ur long after an offender fails to report, the offender’s aversion to penal c
ustody is beside the point. the question is whether suc
h an offender is signific
antly more likely than others to attac
k or resist an apprehender, thereby produc
ing a serious risk of physic
al injury. here a united states
sentenc
ing c
ommission report, showing no violenc
e in 160 federal failure-to-reportc
ases over 2 rec
ent years, helps provide a negative answer. the three reported c
ases to whic
h the government points do not show the c
ontrary. simple multiplic
ation (2 years versus 30 years; federal aloneversus federal-plus-state) suggests that they show only a statistic
allyinsignific
ant risk of physic
al violenc
e. and the government providesno other empiric
al information. pp. 5–8.
473 f. 3d 724, reversed and remanded.
breyer
, j., delivered the opinion of the c
ourt, in whic
h roberts,
c
. j., and stevens
, scalia
, kennedy
, souter
, and ginsburg
, jj., joined. alito
, j., filed an opinion c
onc
urring in the judgment, in whic
h thomas
, jj., joined. _________________ _________________ 1 c
ite as: 555 u. s. ____ (2009)
opinion of the c
ourt
notic
e: this opinion is subjec
t to formal revision before public
ation in thepreliminary print of the united states
reports. readers are requested tonotify the reporter of dec
isions, supreme c
ourt of the united states
, washington, d. c
. 20543, of any typographic
al or other formal errors, in orderthat c
orrec
tions may be made before the preliminary print goes to press.
supreme c
ourt of the united states
no. 06–11206
deondery c
hambers
, petitioner
v. united states
on writ of c
ertiorari to the united states
c
ourt ofappeals for the seventh c
irc
uit
[january 13, 2009]
justic
e breyer
delivered the opinion of the c
ourt.
the question before us is whether a “failure to report”for penal c
onfinement is a “‘violent felony’” within theterms of the armed c
areer c
riminal ac
t. 18 u. s. c
. §924(e). we hold that it is not.
i the armed c
areer c
riminal ac
t (ac
c
a) imposes a 15year mandatory prison term on an individual c
onvic
ted of being a felon in possession of a firearm if that individual has “three previous c
onvic
tions . . . for a violent felony or aserious drug offense, or both, c
ommitted on oc
c
asions different from one another.” §924(e)(1). ac
c
a defines a “violent felony” as a “c
rime punishable by imprisonment for a term exc
eeding one year” that also either
“(i) has as an element the use, attempted use, or threatened use of physic
al forc
e against the person ofanother; or
“(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves c
onduc
t that presents a serious potential risk of physic
al injury to an2 c
hambers v. united states
opinion of the c
ourt
other.” §924(e)(2)(b).
c
lause (ii), ac
c
a’s so-c
alled residual c
lause, is at issue here.
ii the petitioner
, deondery c
hambers
, pleaded guilty to ac
harge of being a felon unlawfully in possession of a firearm. §922(g). at sentenc
ing the government asked thedistric
t c
ourt to apply ac
c
a’s 15-year mandatory prison term bec
ause, in its view, three of c
hambers’ prior c
onvic
tions qualified as an ac
c
a “serious drug offense” or “violent felony.” c
hambers c
onc
eded that two of his prior c
onvic
tions, namely a 1998 c
onvic
tion for robbery and aggravated battery and a 1999 drug c
rime c
onvic
tion, fellwithin ac
c
a’s definitions. but he disputed the government’s c
laim as to a third c
onvic
tion. that third c
onvic
tion arose out of c
hambers’ sentenc
e for his 1998 robbery and battery offense. the sentenc
e required c
hambers toreport to a loc
al prison for 11 weekends of inc
arc
eration. he failed to report for weekend c
onfinement on four oc
c
asions, and was later c
onvic
ted of the c
rime of “fail[ing] to report to a penal institution.” ill. c
omp. stat., c
h. 720, §5/31–6(a) (west supp. 2008). the distric
t c
ourt treated the “failure to report” as aform of what the relevant illinois statute c
alls “esc
ape from [a] penal institution,” ibid., and held that the c
rime qualified as a “violent felony” under ac
c
a. the c
ourt of appeals agreed. 473 f. 3d 724 (c
a7 2007). in light of disagreement among the c
irc
uits as to whether failure toreport for imprisonment falls within the sc
ope of ac
c
a’sdefinition of “violent felony,” we granted c
ertiorari. c
ompare united states
v. winn, 364 f. 3d 7, 12 (c
a1 2004)(failure to report is a “violent felony”), with united states
v. pic
c
olo, 441 f. 3d 1084, 1088 (c
a9 2006) (failure toreport is not a “violent felony”). 3
c
ite as: 555 u. s. ____ (2009) opinion of the c
ourt iii
we initially c
onsider the c
lassific
ation of the c
rime. in ordinary speec
h, words suc
h as “c
rime” and “felony” c
an refer not only to a generic
set of ac
ts, say, burglary in general, but also to a spec
ific
ac
t c
ommitted on a partic
ular oc
c
asion, say the burglary that the defendant engaged in last month. we have made c
lear, however, that, for purposes of ac
c
a’s definitions, it is the generic
sense of the word “felony” that c
ounts. taylor v. united states
, 495
u. s. 575, 602 (1990); see also shepard v. united states
, 544 u. s. 13, 16–17 (2005). the statute’s defining language, read naturally, uses “felony” to refer to a c
rime asgenerally c
ommitted. and by so c
onstruing the statute,one avoids the prac
tic
al diffic
ulty of trying to asc
ertain atsentenc
ing, perhaps from a paper rec
ord mentioning onlya guilty plea, whether the present defendant’s prior c
rime,as c
ommitted on a partic
ular oc
c
asion, did or did not involve violent behavior. see id., at 20–21. thus, to determine, for example, whether attempted burglary is a “violent felony,” we have had to examine, not the unsuc
c
essful burglary the defendant attempted on a partic
ular oc
c
asion, but the generic
c
rime of attempted burglary. james
v. united states
, 550 u. s. 192, 204–206 (2007).
this c
ategoric
al approac
h requires c
ourts to c
hoose the right c
ategory. and sometimes the c
hoic
e is not obvious. the nature of the behavior that likely underlies a statutory phrase matters in this respec
t. where massac
husetts, for example, plac
ed within a single, separatelynumbered statutory sec
tion (entitled “breaking and entering at night,” mass. gen. laws ann., c
h. 266, §16 (west2008)) burglary of a “building, ship, vessel or vehic
le,” this c
ourt found that the behavior underlying, say, breakinginto a building, differs so signific
antly from the behavior underlying, say, breaking into a vehic
le, that for ac
c
a purposes a sentenc
ing c
ourt must treat the two as different c
rimes. see shepard, supra, at 16–17; see also taylor, 4 c
hambers v. united states
opinion of the c
ourt
supra, at 598.
the illinois statute now before us, like the massac
husetts statute, plac
es together in a single numbered statutory sec
tion several different kinds of behavior. it separately desc
ribes those behaviors as (1) esc
ape from a penalinstitution, (2) esc
ape from the c
ustody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic
imprisonment, (5) failing to return from furlough, (6) failing to return fromwork and day release, and (7) failing to abide by the terms of home c
onfinement. ill. c
omp. stat., c
h. 720, §5/31–6(a); see appendix a, infra. we know from the state-c
ourt information in the rec
ord that c
hambers pleaded guilty to “knowingly fail[ing] to report” for periodic
imprisonment “to the jefferson c
ounty jail, a penal institution.” app.68; see shepard, supra, at 25 (sentenc
ing c
ourt may look, for example, to c
harging doc
ument, plea agreement, juryinstruc
tions, or transc
ript of plea c
olloquy to determinec
rime at issue). but we must dec
ide whether for ac
c
a purposes a failure to report c
ounts as a separate c
rime.
unlike the lower c
ourts, we believe that a failure to report (as desc
ribed in the statutory provision’s third, fourth, fifth, and sixth phrases) is a separate c
rime, different from esc
ape (the subjec
t matter of the statute’s firstand sec
ond phrases), and from the potentially less seriousfailure to abide by the terms of home c
onfinement (thesubjec
t of the final phrase). the behavior that likely underlies a failure to report would seem less likely toinvolve a risk of physic
al harm than the less passive, more aggressive behavior underlying an esc
ape from c
ustody.see begay v. united states
, 553 u. s. ___, ___ (2008) (slip op., at 7). moreover, the statute itself not only lists esc
apeand failure to report separately (in its title and its body) but also plac
es the behaviors in two different felonyc
lasses (c
lass two and c
lass three) of different degrees of seriousness. see appendix a, infra. 5 c
ite as: 555 u. s. ____ (2009) opinion of the c
ourt
at the same time, we believe the statutory phrases setting forth various kinds of failure to report (or to return) desc
ribe roughly similar forms of behavior. eac
h is c
harac
terized by a failure to present oneself for detentionon a spec
ified oc
c
asion. all amount to variations on a single theme. for that reason we c
onsider them as together c
onstituting a single c
ategory. c
f. james, supra, at 207–209 (determining that where separately listed behaviors pose a similar degree of risk, sentenc
ing c
ourts mayc
onsider all listed behaviors as a single c
rime). we c
onsequently treat the statute for ac
c
a purposes as c
ontaining at least two separate c
rimes, namely esc
ape from c
ustody on the one hand, and a failure to report on the other.failure to abide by home c
onfinement terms—potentiallythe least serious of the offenses—is not at issue here.
iv we now must c
onsider whether the “failure to report”c
rime satisfies ac
c
a’s “violent felony” definition. it c
learly satisfies the first part of that definition, for it is a“c
rime punishable by imprisonment for a term exc
eedingone year.” 18 u. s. c
. §924(e)(2)(b). but it satisfies none of the other parts. it does not have “as an element the use, attempted use, or threatened use of physic
al forc
e against the person of another.” §924(e)(2)(b)(i). it does not c
onsist of “burglary, arson, or extortion,” or “involv[e] use of explosives.” §924(e)(2)(b)(ii). and, more c
ritic
ally for present purposes, it does not “‘involve c
onduc
t that presents a serious potential risk of physic
al injury toanother.’” see begay, 553 u. s., at ___ (slip op., at 2–4); id., at ___ (slip op., at 6) (scalia
, j., c
onc
urring in judgment) (treating serious risk of physic
al injury to anotheras c
ritic
al definitional fac
tor); id., at ___ (slip op., at 2) (alito
, j., dissenting) (same).c
onc
eptually speaking, the c
rime amounts to a form of inac
tion, a far c
ry from the “purposeful, ‘violent,’ and 6 c
hambers v. united states
opinion of the c
ourt
‘aggressive’ c
onduc
t” potentially at issue when an offender uses explosives against property, c
ommits arson, burgles a dwelling or residenc
e, or engages in c
ertain forms of extortion. c
f. id., at ___ (slip op., at 7). while an offender who fails to report must of c
ourse be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physic
al injury. c
f. james, 550 u. s., at 203–204. to the c
ontrary, an individual who fails to report would seem unlikely, not likely,to c
all attention to his whereabouts by simultaneouslyengaging in additional violent and unlawful c
onduc
t.
the government argues that a failure to report revealsthe offender’s spec
ial, strong aversion to penal c
ustody. and it points to three c
ases arising over a period of 30 years in whic
h reported opinions indic
ate that individualsshot at offic
ers attempting to rec
apture them. see united states
v. eaglin, 571 f. 2d 1069, 1072 (c
a9 1977); state v. johnson, 245 s. w. 3d 288, 291 (mo. c
t. app. 2008); state
v. jones, 96 wash. app. 369, 371–372, 979 p. 2d 898, 899 (1999). but even if we assume for argument’s sake therelevanc
e of violenc
e that may oc
c
ur long after an offenderfails to report, we are not c
onvinc
ed by the government’s argument. the offender’s aversion to penal c
ustody, even if spec
ial, is beside the point. the question is whether suc
h an offender is signific
antly more likely than others toattac
k, or physic
ally to resist, an apprehender, thereby produc
ing a “serious potential risk of physic
al injury.” §924(e)(2)(b)(ii). and here a united states
sentenc
ingc
ommission report helps provide a c
onc
lusive, negative answer. see report on federal esc
ape offenses in fisc
al years 2006 and 2007, p. 6 (nov. 2008) (hereinafter c
ommission’s report), reprinted in part in appendix b, infra. see also 473 f. 3d, at 727 (posner, j.) (urging that suc
h researc
h be done).
the c
ommission’s report identifies every federal c
ase in 2006 or 2007 in whic
h a federal sentenc
ing c
ourt applied 7 c
ite as: 555 u. s. ____ (2009)
opinion of the c
ourt
the sentenc
ing guideline, “esc
ape, instigating or assisting esc
ape,” 1 united states
sentenc
ing c
ommission,guidelines manual §2p1.1 (nov. 2008), and in whic
h suffic
ient detail was provided, say, in the presentenc
ereport, about the c
irc
umstanc
es of the c
rime to permitanalysis. the analysis inc
luded c
alc
ulation of the likelihood that violenc
e would ac
c
ompany c
ommission of theesc
ape or the offender’s later apprehension.
of 414 suc
h c
ases, 160 involved a failure to report either for inc
arc
eration (42) or for c
ustody after having been temporarily released (118). c
ommission’s report 7; see also appendix b, infra. of these 160 c
ases, none at all involved violenc
e—not during c
ommission of the offense itself, not during the offender’s later apprehension—although in 5 instanc
es (3.1%) the offenders were armed. ibid. the upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physic
al injury.
the three reported c
ases to whic
h the governmentpoints do not show the c
ontrary. the sentenc
ing c
ommission c
ulled its 160 instanc
es from a set of federal sentenc
es imposed over a period of 2 years. the government apparently c
ulled its three examples from a set of state and federal sentenc
es imposed over a period of 30 years. c
ompare eaglin, supra (c
a9 1977) with johnson, supra (mo.c
t. app. 2008). given the larger set, the presenc
e of three instanc
es of violenc
e is c
onsistent with the c
ommission’s data. simple multiplic
ation (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physic
al violenc
e (less than one in several thousand). and the government provides noother empiric
al information.
for these reasons we c
onc
lude that the c
rime here at issue falls outside the sc
ope of ac
c
a’s definition of “violent felony.” §924(e)(2)(b)(ii). the judgment of the c
ourt of appeals is reversed, and the c
ase is remanded for pro8
c
hambers v. united states
opinion of the c
ourt c
eedings c
onsistent with this opinion.
it is so ordered. opinion of the c
ourt 9 c
ite as: 555 u. s. ____ (2009)
appendix a to opinion of the c
ourt
appendix a to opinion of the c
ourt
“esc
ape; failure to report to a penal institution or to report
for periodic
imprisonment. “a person c
onvic
ted of a felony, adjudic
ated a delinquent minor for the c
ommission of a felony offense under the juvenile c
ourt ac
t of 1987, or c
harged with the c
ommission of a felony who intentionally esc
apes from any penal institution or from the c
ustody of an employee of that institution c
ommits a c
lass 2 felony; however, a person c
onvic
ted of a felony or adjudic
ated a delinquent minor for thec
ommission of a felony offense under the juvenilec
ourt ac
t of 1987 who knowingly fails to report to apenal institution or to report for periodic
imprisonment at any time or knowingly fails to return from furlough or from work and day release or whoknowingly fails to abide by the terms of home c
onfinement is guilty of a c
lass 3 felony.” ill. c
omp.stat., c
h. 720, §5/31–6(a) (west supp. 2008). opinion of the c
ourt 10 c
hambers v. united states
appendix b to opinion of the c
ourt
appendix b to opinion of the c
ourt
report on federal esc
ape offenses in fisc
al years 2006and 2007, p. 7, fig. 1 (nov. 2008).*
leavingsec
ure c
ustody
leavinglaw enforc
e-ment c
ustody
leavingnonsec
ure c
ustody
failing toreport
failing toreturn
number of c
ases
64
13
177
42
118
forc
e
10 (15.6%)
1 (7.7%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
dangerous weapon
20 (31.3%)
1 (7.7%)
4 (2.3%)
3 (7.1%)
2 (1.7%)
injury
7 (10.9%)
2 (15.4%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
1 (slip opinion) oc
tober term, 2008
syllabus
note: where it is feasible, a syllabus (headnote) will be released, as isbeing done in c
onnec
tion with this c
ase, at the time the opinion is issued.the syllabus c
onstitutes no part of the opinion of the c
ourt but has beenprepared by the reporter of dec
isions for the c
onvenienc
e of the reader. see united states
v. detroit timber & lumber c
o., 200 u. s. 321, 337.
supreme c
ourt of the united states
syllabus
c
hambers v. united states
c
ertiorari to the united states
c
ourt of appeals for the seventh c
irc
uit
no. 06–11206. argued november 10, 2008—dec
ided january 13, 2009
the armed c
areer c
riminal ac
t (ac
c
a) imposes a 15-year mandatoryprison term on a felon unlawfully in possession of a firearm who has three prior c
onvic
tions for c
ommitting c
ertain drug c
rimes or “a violent felony,” 18 u. s. c
. §924(e)(1), defined as a c
rime punishable bymore than one year’s imprisonment that, inter alia, “involves c
onduc
t that presents a serious potential risk of physic
al injury to another,Ӥ924(e)(2)(b)(ii). at petitioner
c
hambers’ sentenc
ing for being a felonin possession of a firearm, the government sought ac
c
a’s 15-yearmandatory prison term. c
hambers disputed one of his prior c
onvic
tions—failing to report for weekend c
onfinement—as falling outsidethe ac
c
a definition of “violent felony.” the distric
t c
ourt treated the failure to report as a form of what the relevant state statute c
alls “esc
ape from [a] penal institution,” and held that it qualified as a“violent felony” under ac
c
a. the seventh c
irc
uit agreed.
held: illinois’ c
rime of failure to report for penal c
onfinement falls outside the sc
ope of ac
c
a’s “violent felony” definition. pp. 3–8.
(a) for purposes of ac
c
a’s definitions, it is the generic
c
rime thatc
ounts, not how the c
rime was c
ommitted on a partic
ular oc
c
asion. taylor v. united states
, 495 u. s. 575, 602. this c
ategoric
al approac
h requires c
ourts to c
hoose the right c
ategory, and sometimes the c
hoic
e is not obvious. the nature of the behavior that likely underlies a statutory phrase matters in this respec
t. the state statute at issue plac
es together in a single sec
tion several different kinds ofbehavior, whic
h, as relevant here, may be c
ategorized either as failure to report for detention or as esc
ape from c
ustody. failure to report is a separate c
rime from esc
ape. its underlying behavior differsfrom the more aggressive behavior underlying esc
ape, and it is listedseparately in the statute’s title and body and is of a different felony 2
c
hambers v. united states
syllabus
c
lass than esc
ape. at the same time, the statutory phrases settingforth the various kinds of failure to report desc
ribe roughly similarforms of behavior, thus c
onstituting a single c
ategory. c
onsequently, for ac
c
a purposes, the statute c
ontains at least two separate c
rimes,esc
ape and failure to report. pp. 3–5.
(b) the “failure to report” c
rime does not satisfy ac
c
a’s “violentfelony” definition. although it is punishable by imprisonment exc
eeding one year, it satisfies none of the other parts of the definition.most c
ritic
ally, it does not “involv[e] c
onduc
t that presents a serious potential risk of physic
al injury to another.” c
onc
eptually speaking,the c
rime amounts to a form of inac
tion, and there is no reason to believe that an offender who fails to report is otherwise doing something that poses a serious potential risk of physic
al injury. the government’s argument that a failure to report reveals the offender’sspec
ial, strong aversion to penal c
ustody—pointing to 3 state andfederal c
ases over 30 years in whic
h individuals shot at offic
ers attempting to rec
apture them—is unc
onvinc
ing. even assuming the relevanc
e of violenc
e that may oc
c
ur long after an offender fails to report, the offender’s aversion to penal c
ustody is beside the point. the question is whether suc
h an offender is signific
antly more likely than others to attac
k or resist an apprehender, thereby produc
ing a serious risk of physic
al injury. here a united states
sentenc
ing c
ommission report, showing no violenc
e in 160 federal failure-to-reportc
ases over 2 rec
ent years, helps provide a negative answer. the three reported c
ases to whic
h the government points do not show the c
ontrary. simple multiplic
ation (2 years versus 30 years; federal aloneversus federal-plus-state) suggests that they show only a statistic
allyinsignific
ant risk of physic
al violenc
e. and the government providesno other empiric
al information. pp. 5–8.
473 f. 3d 724, reversed and remanded.
breyer
, j., delivered the opinion of the c
ourt, in whic
h roberts,
c
. j., and stevens
, scalia
, kennedy
, souter
, and ginsburg
, jj., joined. alito
, j., filed an opinion c
onc
urring in the judgment, in whic
h thomas
, jj., joined. _________________ _________________ 1 c
ite as: 555 u. s. ____ (2009)
opinion of the c
ourt
notic
e: this opinion is subjec
t to formal revision before public
ation in thepreliminary print of the united states
reports. readers are requested tonotify the reporter of dec
isions, supreme c
ourt of the united states
, washington, d. c
. 20543, of any typographic
al or other formal errors, in orderthat c
orrec
tions may be made before the preliminary print goes to press.
supreme c
ourt of the united states
no. 06–11206
deondery c
hambers
, petitioner
v. united states
on writ of c
ertiorari to the united states
c
ourt ofappeals for the seventh c
irc
uit
[january 13, 2009]
justic
e breyer
delivered the opinion of the c
ourt.
the question before us is whether a “failure to report”for penal c
onfinement is a “‘violent felony’” within theterms of the armed c
areer c
riminal ac
t. 18 u. s. c
. §924(e). we hold that it is not.
i the armed c
areer c
riminal ac
t (ac
c
a) imposes a 15year mandatory prison term on an individual c
onvic
ted of being a felon in possession of a firearm if that individual has “three previous c
onvic
tions . . . for a violent felony or aserious drug offense, or both, c
ommitted on oc
c
asions different from one another.” §924(e)(1). ac
c
a defines a “violent felony” as a “c
rime punishable by imprisonment for a term exc
eeding one year” that also either
“(i) has as an element the use, attempted use, or threatened use of physic
al forc
e against the person ofanother; or
“(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves c
onduc
t that presents a serious potential risk of physic
al injury to an2 c
hambers v. united states
opinion of the c
ourt
other.” §924(e)(2)(b).
c
lause (ii), ac
c
a’s so-c
alled residual c
lause, is at issue here.
ii the petitioner
, deondery c
hambers
, pleaded guilty to ac
harge of being a felon unlawfully in possession of a firearm. §922(g). at sentenc
ing the government asked thedistric
t c
ourt to apply ac
c
a’s 15-year mandatory prison term bec
ause, in its view, three of c
hambers’ prior c
onvic
tions qualified as an ac
c
a “serious drug offense” or “violent felony.” c
hambers c
onc
eded that two of his prior c
onvic
tions, namely a 1998 c
onvic
tion for robbery and aggravated battery and a 1999 drug c
rime c
onvic
tion, fellwithin ac
c
a’s definitions. but he disputed the government’s c
laim as to a third c
onvic
tion. that third c
onvic
tion arose out of c
hambers’ sentenc
e for his 1998 robbery and battery offense. the sentenc
e required c
hambers toreport to a loc
al prison for 11 weekends of inc
arc
eration. he failed to report for weekend c
onfinement on four oc
c
asions, and was later c
onvic
ted of the c
rime of “fail[ing] to report to a penal institution.” ill. c
omp. stat., c
h. 720, §5/31–6(a) (west supp. 2008). the distric
t c
ourt treated the “failure to report” as aform of what the relevant illinois statute c
alls “esc
ape from [a] penal institution,” ibid., and held that the c
rime qualified as a “violent felony” under ac
c
a. the c
ourt of appeals agreed. 473 f. 3d 724 (c
a7 2007). in light of disagreement among the c
irc
uits as to whether failure toreport for imprisonment falls within the sc
ope of ac
c
a’sdefinition of “violent felony,” we granted c
ertiorari. c
ompare united states
v. winn, 364 f. 3d 7, 12 (c
a1 2004)(failure to report is a “violent felony”), with united states
v. pic
c
olo, 441 f. 3d 1084, 1088 (c
a9 2006) (failure toreport is not a “violent felony”). 3
c
ite as: 555 u. s. ____ (2009) opinion of the c
ourt iii
we initially c
onsider the c
lassific
ation of the c
rime. in ordinary speec
h, words suc
h as “c
rime” and “felony” c
an refer not only to a generic
set of ac
ts, say, burglary in general, but also to a spec
ific
ac
t c
ommitted on a partic
ular oc
c
asion, say the burglary that the defendant engaged in last month. we have made c
lear, however, that, for purposes of ac
c
a’s definitions, it is the generic
sense of the word “felony” that c
ounts. taylor v. united states
, 495
u. s. 575, 602 (1990); see also shepard v. united states
, 544 u. s. 13, 16–17 (2005). the statute’s defining language, read naturally, uses “felony” to refer to a c
rime asgenerally c
ommitted. and by so c
onstruing the statute,one avoids the prac
tic
al diffic
ulty of trying to asc
ertain atsentenc
ing, perhaps from a paper rec
ord mentioning onlya guilty plea, whether the present defendant’s prior c
rime,as c
ommitted on a partic
ular oc
c
asion, did or did not involve violent behavior. see id., at 20–21. thus, to determine, for example, whether attempted burglary is a “violent felony,” we have had to examine, not the unsuc
c
essful burglary the defendant attempted on a partic
ular oc
c
asion, but the generic
c
rime of attempted burglary. james
v. united states
, 550 u. s. 192, 204–206 (2007).
this c
ategoric
al approac
h requires c
ourts to c
hoose the right c
ategory. and sometimes the c
hoic
e is not obvious. the nature of the behavior that likely underlies a statutory phrase matters in this respec
t. where massac
husetts, for example, plac
ed within a single, separatelynumbered statutory sec
tion (entitled “breaking and entering at night,” mass. gen. laws ann., c
h. 266, §16 (west2008)) burglary of a “building, ship, vessel or vehic
le,” this c
ourt found that the behavior underlying, say, breakinginto a building, differs so signific
antly from the behavior underlying, say, breaking into a vehic
le, that for ac
c
a purposes a sentenc
ing c
ourt must treat the two as different c
rimes. see shepard, supra, at 16–17; see also taylor, 4 c
hambers v. united states
opinion of the c
ourt
supra, at 598.
the illinois statute now before us, like the massac
husetts statute, plac
es together in a single numbered statutory sec
tion several different kinds of behavior. it separately desc
ribes those behaviors as (1) esc
ape from a penalinstitution, (2) esc
ape from the c
ustody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic
imprisonment, (5) failing to return from furlough, (6) failing to return fromwork and day release, and (7) failing to abide by the terms of home c
onfinement. ill. c
omp. stat., c
h. 720, §5/31–6(a); see appendix a, infra. we know from the state-c
ourt information in the rec
ord that c
hambers pleaded guilty to “knowingly fail[ing] to report” for periodic
imprisonment “to the jefferson c
ounty jail, a penal institution.” app.68; see shepard, supra, at 25 (sentenc
ing c
ourt may look, for example, to c
harging doc
ument, plea agreement, juryinstruc
tions, or transc
ript of plea c
olloquy to determinec
rime at issue). but we must dec
ide whether for ac
c
a purposes a failure to report c
ounts as a separate c
rime.
unlike the lower c
ourts, we believe that a failure to report (as desc
ribed in the statutory provision’s third, fourth, fifth, and sixth phrases) is a separate c
rime, different from esc
ape (the subjec
t matter of the statute’s firstand sec
ond phrases), and from the potentially less seriousfailure to abide by the terms of home c
onfinement (thesubjec
t of the final phrase). the behavior that likely underlies a failure to report would seem less likely toinvolve a risk of physic
al harm than the less passive, more aggressive behavior underlying an esc
ape from c
ustody.see begay v. united states
, 553 u. s. ___, ___ (2008) (slip op., at 7). moreover, the statute itself not only lists esc
apeand failure to report separately (in its title and its body) but also plac
es the behaviors in two different felonyc
lasses (c
lass two and c
lass three) of different degrees of seriousness. see appendix a, infra. 5 c
ite as: 555 u. s. ____ (2009) opinion of the c
ourt
at the same time, we believe the statutory phrases setting forth various kinds of failure to report (or to return) desc
ribe roughly similar forms of behavior. eac
h is c
harac
terized by a failure to present oneself for detentionon a spec
ified oc
c
asion. all amount to variations on a single theme. for that reason we c
onsider them as together c
onstituting a single c
ategory. c
f. james, supra, at 207–209 (determining that where separately listed behaviors pose a similar degree of risk, sentenc
ing c
ourts mayc
onsider all listed behaviors as a single c
rime). we c
onsequently treat the statute for ac
c
a purposes as c
ontaining at least two separate c
rimes, namely esc
ape from c
ustody on the one hand, and a failure to report on the other.failure to abide by home c
onfinement terms—potentiallythe least serious of the offenses—is not at issue here.
iv we now must c
onsider whether the “failure to report”c
rime satisfies ac
c
a’s “violent felony” definition. it c
learly satisfies the first part of that definition, for it is a“c
rime punishable by imprisonment for a term exc
eedingone year.” 18 u. s. c
. §924(e)(2)(b). but it satisfies none of the other parts. it does not have “as an element the use, attempted use, or threatened use of physic
al forc
e against the person of another.” §924(e)(2)(b)(i). it does not c
onsist of “burglary, arson, or extortion,” or “involv[e] use of explosives.” §924(e)(2)(b)(ii). and, more c
ritic
ally for present purposes, it does not “‘involve c
onduc
t that presents a serious potential risk of physic
al injury toanother.’” see begay, 553 u. s., at ___ (slip op., at 2–4); id., at ___ (slip op., at 6) (scalia
, j., c
onc
urring in judgment) (treating serious risk of physic
al injury to anotheras c
ritic
al definitional fac
tor); id., at ___ (slip op., at 2) (alito
, j., dissenting) (same).c
onc
eptually speaking, the c
rime amounts to a form of inac
tion, a far c
ry from the “purposeful, ‘violent,’ and 6 c
hambers v. united states
opinion of the c
ourt
‘aggressive’ c
onduc
t” potentially at issue when an offender uses explosives against property, c
ommits arson, burgles a dwelling or residenc
e, or engages in c
ertain forms of extortion. c
f. id., at ___ (slip op., at 7). while an offender who fails to report must of c
ourse be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physic
al injury. c
f. james, 550 u. s., at 203–204. to the c
ontrary, an individual who fails to report would seem unlikely, not likely,to c
all attention to his whereabouts by simultaneouslyengaging in additional violent and unlawful c
onduc
t.
the government argues that a failure to report revealsthe offender’s spec
ial, strong aversion to penal c
ustody. and it points to three c
ases arising over a period of 30 years in whic
h reported opinions indic
ate that individualsshot at offic
ers attempting to rec
apture them. see united states
v. eaglin, 571 f. 2d 1069, 1072 (c
a9 1977); state v. johnson, 245 s. w. 3d 288, 291 (mo. c
t. app. 2008); state
v. jones, 96 wash. app. 369, 371–372, 979 p. 2d 898, 899 (1999). but even if we assume for argument’s sake therelevanc
e of violenc
e that may oc
c
ur long after an offenderfails to report, we are not c
onvinc
ed by the government’s argument. the offender’s aversion to penal c
ustody, even if spec
ial, is beside the point. the question is whether suc
h an offender is signific
antly more likely than others toattac
k, or physic
ally to resist, an apprehender, thereby produc
ing a “serious potential risk of physic
al injury.” §924(e)(2)(b)(ii). and here a united states
sentenc
ingc
ommission report helps provide a c
onc
lusive, negative answer. see report on federal esc
ape offenses in fisc
al years 2006 and 2007, p. 6 (nov. 2008) (hereinafter c
ommission’s report), reprinted in part in appendix b, infra. see also 473 f. 3d, at 727 (posner, j.) (urging that suc
h researc
h be done).
the c
ommission’s report identifies every federal c
ase in 2006 or 2007 in whic
h a federal sentenc
ing c
ourt applied 7 c
ite as: 555 u. s. ____ (2009)
opinion of the c
ourt
the sentenc
ing guideline, “esc
ape, instigating or assisting esc
ape,” 1 united states
sentenc
ing c
ommission,guidelines manual §2p1.1 (nov. 2008), and in whic
h suffic
ient detail was provided, say, in the presentenc
ereport, about the c
irc
umstanc
es of the c
rime to permitanalysis. the analysis inc
luded c
alc
ulation of the likelihood that violenc
e would ac
c
ompany c
ommission of theesc
ape or the offender’s later apprehension.
of 414 suc
h c
ases, 160 involved a failure to report either for inc
arc
eration (42) or for c
ustody after having been temporarily released (118). c
ommission’s report 7; see also appendix b, infra. of these 160 c
ases, none at all involved violenc
e—not during c
ommission of the offense itself, not during the offender’s later apprehension—although in 5 instanc
es (3.1%) the offenders were armed. ibid. the upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physic
al injury.
the three reported c
ases to whic
h the governmentpoints do not show the c
ontrary. the sentenc
ing c
ommission c
ulled its 160 instanc
es from a set of federal sentenc
es imposed over a period of 2 years. the government apparently c
ulled its three examples from a set of state and federal sentenc
es imposed over a period of 30 years. c
ompare eaglin, supra (c
a9 1977) with johnson, supra (mo.c
t. app. 2008). given the larger set, the presenc
e of three instanc
es of violenc
e is c
onsistent with the c
ommission’s data. simple multiplic
ation (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physic
al violenc
e (less than one in several thousand). and the government provides noother empiric
al information.
for these reasons we c
onc
lude that the c
rime here at issue falls outside the sc
ope of ac
c
a’s definition of “violent felony.” §924(e)(2)(b)(ii). the judgment of the c
ourt of appeals is reversed, and the c
ase is remanded for pro8
c
hambers v. united states
opinion of the c
ourt c
eedings c
onsistent with this opinion.
it is so ordered. opinion of the c
ourt 9 c
ite as: 555 u. s. ____ (2009)
appendix a to opinion of the c
ourt
appendix a to opinion of the c
ourt
“esc
ape; failure to report to a penal institution or to report
for periodic
imprisonment. “a person c
onvic
ted of a felony, adjudic
ated a delinquent minor for the c
ommission of a felony offense under the juvenile c
ourt ac
t of 1987, or c
harged with the c
ommission of a felony who intentionally esc
apes from any penal institution or from the c
ustody of an employee of that institution c
ommits a c
lass 2 felony; however, a person c
onvic
ted of a felony or adjudic
ated a delinquent minor for thec
ommission of a felony offense under the juvenilec
ourt ac
t of 1987 who knowingly fails to report to apenal institution or to report for periodic
imprisonment at any time or knowingly fails to return from furlough or from work and day release or whoknowingly fails to abide by the terms of home c
onfinement is guilty of a c
lass 3 felony.” ill. c
omp.stat., c
h. 720, §5/31–6(a) (west supp. 2008). opinion of the c
ourt 10 c
hambers v. united states
appendix b to opinion of the c
ourt
appendix b to opinion of the c
ourt
report on federal esc
ape offenses in fisc
al years 2006and 2007, p. 7, fig. 1 (nov. 2008).*
leavingsec
ure c
ustody
leavinglaw enforc
e-ment c
ustody
leavingnonsec
ure c
ustody
failing toreport
failing toreturn
number of c
ases
64
13
177
42
118
forc
e
10 (15.6%)
1 (7.7%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
dangerous weapon
20 (31.3%)
1 (7.7%)
4 (2.3%)
3 (7.1%)
2 (1.7%)
injury
7 (10.9%)
2 (15.4%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
——————
*c
ases c
an fall into more than one c
ategory. for example, one c
ase c
ould involve both forc
e and injury. suc
h a c
ase would be represented in the table for forc
e and also for injury. therefore, the reader should not aggregate the numbers in any c
olumn.
supreme c
ourt of the united states
no. 06–11206
deondery c
hambers
, petitioner
v. united states
on writ of c
ertiorari to the united states
c
ourt ofappeals for the seventh c
irc
uit
[january 13, 2009]
justic
e alito
, with whom justic
e thomas
joins,c
onc
urring in the judgment.
as i have previously explained, i believe that thec
ourt’s approac
h in begay, like its approac
h in this c
ase,“c
annot be rec
onc
iled with the statutory text.” begay v. united states
, 553 u. s. ___, ___ (2008) (slip op., at 1) (dissenting opinion). i nonetheless rec
ognize that “stare dec
isis in respec
t to statutory interpretation has ‘spec
ial forc
e,’” john r. sand & gravel c
o. v. united states
, 552
u. s. ___, ___ (2008) (slip op., at 8), and i am sympathetic
to the majority’s efforts to provide a workable interpretation of the “residual c
lause” of the armed c
areer c
riminal ac
t (ac
c
a), while retaining the “c
ategoric
al approac
h”that we adopted in taylor v. united states
, 495 u. s. 575, 602 (1990). in light of taylor and begay, i agree that thisc
ase should be remanded for resentenc
ing. i write separately, however, to emphasize that only c
ongress c
anresc
ue the federal c
ourts from the mire into whic
h ac
c
a’s draftsmanship and taylor’s “c
ategoric
al approac
h” have pushed us.
in 1986, when c
ongress enac
ted ac
c
a’s residualc
lause, 18 u. s. c
. §924(e)(2)(b)(ii), few c
ould have foreseen the diffic
ulties that lay ahead.1 only four months
—————— 1c
ongress originally enac
ted ac
c
a in 1984. see §1802, 93 stat. 2 c
hambers v. united states
alito
, j., c
onc
urring in judgment
before c
ongress framed the residual c
lause, this c
ourtupheld a state sentenc
ing provision that imposed a mandatory minimum sentenc
e where the judge found by apreponderanc
e of the evidenc
e that the defendant visibly possessed a firearm during the c
ommission of c
ertain felonies (inc
luding robbery). see mc
millan v. pennsylvania, 477 u. s. 79 (1986). legislating against the bac
kground of mc
millan, c
ongress may have assumed that ac
c
a’s residual c
lause would similarly require federal sentenc
ing judges to determine whether the partic
ularfac
ts of a partic
ular c
ase triggered a mandatory minimum sentenc
e.
but history took a different trac
k. in taylor, the c
ourt held that ac
c
a requires “the sentenc
ing c
ourt to look only to the fac
t that the defendant had been c
onvic
ted of c
rimes falling within c
ertain c
ategories, and not to the fac
ts underlying the prior c
onvic
tions.” 495 u. s., at 600. thus, we held that sentenc
ing judges should apply a “c
ategoric
alapproac
h” to determine whether an underlying stateoffense meets the “generic
” definition of burglary that thisc
ourt—not c
ongress—c
reated. id., at 598. the c
ourt justified its dec
ision with a 10-page disc
ussion of ac
c
a’spurpose and legislative history, id., at 581–590; see also id., at 603 (scalia
, j., c
onc
urring in part and c
onc
urringin judgment) (c
ritic
izing the c
ourt’s approac
h), and explained that its c
onc
lusion was nec
essary to undo “aninadvertent c
asualty [in ac
c
a’s] c
omplex drafting proc
ess,” id., at 589–590.
ac
c
a’s c
larity has been the true inadvertent c
asualty.
—————— 2185, 18 u. s. c
. app. §1202(a) (1982 ed. and supp. ii) (repealed in1986 by firearms owner’s protec
tion ac
t, §104(b), 100 stat. 459). that statute, however, applied a mandatory sentenc
ing enhanc
ement to only two predic
ate felonies—robbery and burglary—whic
h the statute expressly defined. 18 u. s. c
. app. §§1202(c
)(8)–(9) (1982 ed., supp. ii). c
ongress did not add the undefined “otherwise c
lause” until 1986. see c
areer c
riminals amendment ac
t of 1986, §1402, 100 stat. 3207–39. 3 c
ite as: 555 u. s. ____ (2009) alito
, j., c
onc
urring in judgment
after almost two dec
ades with taylor’s “c
ategoric
al approac
h,” only one thing is c
lear: ac
c
a’s residual c
lause is nearly impossible to apply c
onsistently. indeed, the “c
ategoric
al approac
h” to predic
ate offenses has c
reated numerous splits among the lower federal c
ourts,2 the resolution of whic
h c
ould oc
c
upy this c
ourt for years. what is worse is that eac
h new applic
ation of the residual c
lause seemsto lead us further and further away from the statutory text. today’s dec
ision, for example, turns on little morethan a statistic
al analysis of a researc
h report prepared by the united states
sentenc
ing c
ommission. ante, at 6–7; 10 (app. b).
at this point, the only tenable, long-term solution is for
—————— 2for example, the lower c
ourts have split over whether it is a “violentfelony” under ac
c
a’s residual c
lause to c
ommit rape, c
ompare united states
v. sawyers, 409 f. 3d 732 (c
a6 2005) (statutory rape not c
ategoric
ally violent), with united states
v. williams, 120 f. 3d 575 (c
a51997) (induc
ement of minor to c
ommit sodomy violent), and united states
v. thomas
, 231 fed. appx. 765 (c
a9 2007) (all rape violent);retaliate against a government offic
er, c
ompare united states
v. montgomery, 402 f. 3d 482 (c
a5 2005) (not violent), with sawyers, supra (violent); attempt or c
onspire to c
ommit burglary, c
ompare united states
v. fell, 511 f. 3d 1035 (c
a10 2007) (even after james v. united states
, 550 u. s. 192 (2007), and even where statute requires an overtac
t, c
onspirac
y to c
ommit burglary not violent), with united states
v. moore, 108 f. 3d 878 (c
a8 1997) (attempted burglary violent if statuterequires proof of overt ac
t); c
arry a c
onc
ealed weapon, c
ompare united states
v. whitfield, 907 f. 2d 798 (c
a8 1990) (not violent), with united states
v. hall, 77 f. 3d 398 (c
a11 1996) (violent); and possess a sawedoff shotgun as a felon, c
ompare united states
v. amos, 501 f. 3d 524 (c
a6 2007) (not violent), with united states
v. bishop, 453 f. 3d 30 (c
a1 2006) (violent). c
ompare also united states
v. sanc
hez-garc
ia, 501 f. 3d 1208 (c
a10 2007) (unauthorized use of a motor vehic
le not a “violent felony” under 18 u. s. c
. §16(b), whic
h c
losely resemblesac
c
a’s residual c
lause), with united states
v. reliford, 471 f. 3d 913 (c
a8 2006) (automobile tampering violent under ac
c
a’s residual c
lause), and united states
v. galvan-rodriguez, 169 f. 3d 217 (c
a5 1999) (per c
uriam) (unauthorized use of a motor vehic
le a “violent felony” under §16(b)). 4 c
hambers v. united states
alito
, j., c
onc
urring in judgment
c
ongress to formulate a spec
ific
list of expressly defined c
rimes that are deemed to be worthy of ac
c
a’s sentenc
ingenhanc
ement. that is the approac
h that c
ongress took in 1984, when it applied ac
c
a to two enumerated and expressly defined felonies. see n. 1, supra. and that approac
h is the only way to right ac
c
a’s ship.
ôñé÷ä æøä 11206/06 deondery chambers, petitioner ð' united states (ôåøñí á-Í 13/01/2009)