Begay v. United States – Oral Argument – January 15, 2008

Media for Begay v. United States

Audio Transcription for Opinion Announcement – April 16, 2008 in Begay v. United States

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John G. Roberts, Jr.:

We’ll hear argument next in Case 06-11543, Begay v. United States.

Ms. Katze.

Margaret A. Katze:

Mr. Chief Justice, and may it please the Court: The issue in this case is whether DWI is a violent felony for purposes of an Armed Career Criminal Act sentencing enhancement.

Sentencing enhancement takes the statutory sentencing range from zero to 10 years and raises it to 15 years to life.

The intent of the Armed Career Criminal Act is to punish most severely that category of recidivist violent offenders who are disproportionately responsible for the violent crimes and who, when they possess a weapon, are more dangerous.

The government is trying to expand the reach of the statute by so broadly reading the residual clause as to include any crime that presents a serious potential risk of injury to another.

Such a reading of that residual clause would swallow the entire statute.

Congress had no intention of including DWI within the ambit of the Armed Career Criminal Act.

As Justice Breyer, writing for the First Circuit in Doe, said,

“there is no reason to believe that Congress meant to enhance sentences pursuant to the Armed Career Criminal Act based on convictions– “

Stephen G. Breyer:

If you’re quoting that, then this is what’s now bothering me.

I’m not saying I have an answer one way or the other.

Let’s take two crimes and imagine that the same number of people injured or killed is identical for the two.

One let’s say is burglary and the other is driving under the influence.

Now, let’s imagine exactly the same number are put at risk, exactly the same number hurt, exactly the same number killed.

When I wrote that opinion, it seemed to me that there still is an important difference between the two crimes that is controlling here.

But if you look at what I wrote, I didn’t articulate that difference very well.

So I would like you to tell me what I should have said in order to have said very clearly just what that intuitive difference was.

Margaret A. Katze:

–Your Honor, I think what you said was sufficient, but you might have added that there are other attributes to the… the crimes in the… the enumerated crimes, those being burglary, arson, extortion, use of explosives.

There are certain attributes that they share in common that DWI does not share, and those would include those, as you stated, an active violent crime.

But in addition to that, they’re all property crimes, as this Court said in Taylor.

They are also all acts that have the intent of causing harm.

DWI does not have that.

They are all more dangerous when committed with a gun.

And they’re all typical of crimes that would be committed by career criminals.

Samuel A. Alito, Jr.:

Some of those characteristics don’t seem to apply to all of the specific crimes that are mentioned.

Take somebody who sends a series of letter bombs for the purpose of injuring other people.

Now, that would fall within a crime involving use of explosives.

But it’s not really a property crime and it’s not a crime that’s more dangerous when done with a gun.

So how… how can you say that those characteristics apply to every crime in the list?

Margaret A. Katze:

Your Honor, arguably they might not apply to everyone every time.

But I think the vast majority of them do.

And what we’re looking at are in ordinary cases.

And the example that you gave of the letter bomb, I believe that would be a property crime.

When we’re talking about a property crime as with arson or use of explosives, it’s the destruction of property.

Antonin Scalia:

I think you can say that all of the crimes that are listed require mens rea and DUI doesn’t; does it?

Margaret A. Katze:

Absolutely.

Antonin Scalia:

That’s a big different, isn’t it?

Margaret A. Katze:

I think it’s a huge difference.

DUI… DUI in New Mexico is a strict liability crime.

It has no mens rea whatsoever.

An individual doesn’t even have to have the intent to drive.

And, in fact, we have a case in New Mexico where a woman had taken Ambien and was driving, and she didn’t even know she was driving, but she still was convicted because she merely was in control of the vehicle.

So in New Mexico, a strict liability crime where you don’t even have to know you’re driving, as opposed to the four enumerated offenses, where there is clearly some intent to cause some harm–

Anthony M. Kennedy:

Would you have the same answer if you had a State statute which defined felony drunk driving, as many do, as felony drunk driving which causes serious death or serious physical injury to another?

Margaret A. Katze:

–I think it would… the analysis wouldn’t be different.

There would be an additional element, an additional piece of harm.

But the–

Anthony M. Kennedy:

You would still say that that statute does not qualify?

Margaret A. Katze:

–Not unless there is a definition of… if there is an actual intent to cause harm.

If there is just merely harm that’s caused–

Anthony M. Kennedy:

No, there isn’t in the usual felony drunk driving statute, there is–

Margaret A. Katze:

–And I agree.

I think in that case, then that also would not fall within the statute.

There is not the intent to cause harm.

Samuel A. Alito, Jr.:

What if the crime is vehicular homicide, defined as causing the death of another person while driving intoxicated?

Would that be a crime that creates a serious potential risk of physical injury to another?

Margaret A. Katze:

That would not fall under paragraph 2, because it would not meet any of the other attributes of the enumerated crimes.

Possibly could it fall under paragraph 1, the use of force?

It would depend how the elements described what the definition of use of force.

Margaret A. Katze:

This Court has previously defined use of force as an intentionality that I think normally in that type of vehicular homicide would not be included.

John G. Roberts, Jr.:

You are assuming, of course, that the canon of ejusdem generis applies to the statute, as opposed to Congress just singling out a couple of things it wanted to be sure were covered.

And we left that issue open in James, didn’t we?

Margaret A. Katze:

Yes, you did.

In James you were dealing with a clearly analogous case, and DWI is not analogous in any way, shape, or form with those four enumerated crimes.

And I think that it’s pretty clear–

Ruth Bader Ginsburg:

Well, in one way… in one way it is, in that like those other crimes it presents a serious risk of potential injury to another.

That’s what they all have in common.

It’s a residual… one argument that was made was when the statute was first drafted all it had was the residual,

“presents a serious risk of potential injury to another. “

So that’s, the argument is, that’s what drives this statute, and then these, these specific crimes, were added just to be sure they would be covered.

Margaret A. Katze:

–Your Honor, answering your question and the Chief Justice’s question, I think it’s important to remember that the first version of this statute came out in 1984, and that just involved burglary and robbery.

And then in 1986, we have the version that we have now.

What we are discussing is the debate in Congress that occurred between then and how the actual wording was made up.

But I submit that if Congress wanted to use those four enumerated crimes merely as an example, they would have structured the paragraph differently.

They would have made a third paragraph under definition of violent felony and they didn’t.

There are two paragraphs.

The second paragraph, the one that we’re dealing with, clearly there’s a substantive connection between the four enumerated crimes and it says,

“or otherwise crimes that present a serious potential risk of injury. “

It seems clear to me if we look at this under the rules of statutory interpretation… and this is a statutory interpretation case… that Congress added those four crimes as a means of limiting the residual clause.

David H. Souter:

Then why did it use the word “otherwise”?

Why didn’t it use the word “likewise”?

Margaret A. Katze:

I would agree, “likewise” would have been a more artful way to have written it.

David H. Souter:

It would have meant something different, wouldn’t it?

Margaret A. Katze:

I think, in fact–

David H. Souter:

“Otherwise” means in some other way.

Margaret A. Katze:

–That’s the dictionary definition, Your Honor.

David H. Souter:

Well, yes.

[Laughter]

That’s usually the best way to understand each other is by, you know, assuming that.

Margaret A. Katze:

I would agree that’s one thing that we look at.

But under… this is a statutory interpretation case, not a dictionary case, and we have to look at the plain meaning.

And that involves looking at this turn of the phrase in context, in the whole text.

What was… what was the intent of this statute?

What’s the term to be defined, “violent felony”.

Antonin Scalia:

You’ve run away from me on “otherwise”.

I think the “otherwise” ties the last paragraph to the… to the preceding four enumerated crimes.

And if… if it had just gone on to say

“or presents a serious risk of injury. “

without the “otherwise”, then I don’t think you’d have any argument that you have to somehow look to the degree of injury, the… the manner of injury that the four enumerated crimes have.

The “otherwise” ties it together,

“or otherwise presents a risk of serious injury. “

And I think the implication is that the… that the… the injury must be similar to the… at least in degree to the enumerated crimes beforehand.

I wouldn’t run away from the “otherwise”.

Margaret A. Katze:

Your Honor, and I’m not running away from the “otherwise”.

While I don’t agree that it’s the dictionary meaning, I do agree with you, Your Honor, that it is the substantive link.

It’s the connection.

It’s a word and we have to give meaning to every word in the statute–

David H. Souter:

But in… in doing that, you’ve got, in other words, to understand what “otherwise” means.

You’ve got to look at the language that follows “otherwise”.

And that’s… that then refers to

“risk of serious injury to a person. “

And in effect, it is saying the common element is risk of injury to the person.

How that risk is raised may be in different ways from the way the risk is raised, say, in a burglary case or what-not.

And if that is the proper analysis, then it seems to me you’ve got a tough row to hoe here.

Margaret A. Katze:

–I believe the correct analysis… and I do believe that ejusdem generis does apply here, because here we have a list of four specific offenses followed by a general term, and we have to read that general term narrowly so as not to give additional breadth to acts of Congress.

And we have to remember that we’re defining the term “violent felony”.

And those four violent felonies that have the certain attributes in common then are followed by “or otherwise”.

And in looking at it all in context, there has to be some–

John G. Roberts, Jr.:

No, but then I was wondering about that as well, that as a violent felony whether that gives you any traction.

John G. Roberts, Jr.:

But extortion, you don’t normally think of that as a violent felony and yet it’s clearly included in the definition.

Margaret A. Katze:

–It’s violent in the sense that extortion is trying to get something from somebody of value.

It’s the idea that–

John G. Roberts, Jr.:

Yes, but you don’t say, give me that or I’ll break your legs all the time.

You may say, give me that or I’ll release this embarrassing letter.

That’s extortion.

It’s not violent, though.

Margaret A. Katze:

–I think it is violent in the sense of the terms that this Court used in Leocal and that Justice Breyer used in Doe, the idea of some kind of violent act or more closely related action.

John G. Roberts, Jr.:

But then, releasing the letter is not violent and it may cause embarrassment rather than physical injury.

Yet it would qualify as extortion.

Margaret A. Katze:

It absolutely would, and this Court in Taylor said that the four crimes all have those… basically, in general, have those attributes.

But I think we have to look at the ordinary case.

I believe even in the hypothetical that you have given, Your Honor, is that… that that does involve an act of violence against an individual’s reputation, that reputation in the common law sense–

David H. Souter:

No, but it says “person”, not… it says “person”, not “reputation”.

Margaret A. Katze:

–I’m sorry, Your Honor?

David H. Souter:

You’re saying the violence can be against the reputation.

That’s not what the statute is talking about.

I mean that is… that’s inconsistent with the plain language of the statute.

Margaret A. Katze:

But the statute does talk about violence.

If we look at the–

David H. Souter:

It doesn’t talk about violence in the abstract.

It talks about physical force against the person of another in number 1; and in number 2, where we are here,

“a risk of physical injury to another. “

Margaret A. Katze:

–Yes, Your Honor.

And in the second paragraph it deals with property crimes.

And the whole… it all comes under the rubric of violent crimes.

That’s what Congress was concerned about.

Even the serious drug offenses, the reason those were added to the statute is the concern about violence with drugs.

So it all has to do with the idea of violence, and so, initially, it was–

David H. Souter:

Well, it has to do with the idea of risk of violence.

David H. Souter:

A burglar when he commits burglary does not want violence.

He wants to get the silver out of the sideboard and get back down the ladder.

He doesn’t want any violence with anybody.

Margaret A. Katze:

–I would agree with you, Your Honor.

David H. Souter:

And the problem is that, by being in the situation he’s in, he creates a risk that violence will occur.

Somebody may show up.

And the person, likewise, who commits DWI doesn’t want to hurt anybody, but he has placed himself in a situation in which, if somebody shows up driving another car in front of him or walking across the street or maybe even in apprehending him for his DWI, a risk of violence is raised.

The two cases in that respect are parallel.

Margaret A. Katze:

I would disagree, Your Honor, and here’s why I don’t think they’re parallel.

In a burglary, I agree with you, The individual doesn’t want to get caught, but goes with the fear or the knowledge that they may be apprehended.

They may arm themselves… again, the concern with those violent activities and being armed.

David H. Souter:

When the drunk leaves the bar, doesn’t he have the realization, unless he is just blind at that point, that he may be apprehended?

Margaret A. Katze:

It is just–

David H. Souter:

He’s not going to throw himself into the arms of the nearest cop.

Margaret A. Katze:

–Absolutely not, but here’s the big… the big difference.

If somebody is drunk and gets in a car, at most their intention is to get from Point A to Point B.

They have no intention of hurting an individual.

They don’t even have the intent of driving.

David H. Souter:

Right, but when a guy goes up the ladder for the silver in the sideboard, at most what he wants is the silver.

Margaret A. Katze:

But he intentionally goes to somebody else’s property to commit this act that will cause harm.

Anthony M. Kennedy:

–Well, the driver intentionally drives the car knowing that there’s a risk.

Margaret A. Katze:

With all due respect, Your Honor, in DWI there is no intention to drive.

It’s a strict liability offense, as the example I gave in–

Anthony M. Kennedy:

But that… that is because everybody knows there are… there are two conditions: One in which he just is reckless and he doesn’t care, in which case he has the intent; the other one, he’s so drunk he can’t form the intent.

Both of them are covered, and the latter is simply because we don’t want an excuse to exonerate the more culpable of the two.

Margaret A. Katze:

–Your Honor, in New Mexico, DWI is a strict liability.

There is no intent.

There is not even negligence.

It’s merely being in control of a vehicle.

Anthony M. Kennedy:

That’s true in almost every State, for the reasons that I’ve indicated, because many people have the intent, and those that don’t shouldn’t be exonerated because they’re more drunk.

Margaret A. Katze:

If I may just add as well, in some of the discussions about the actions of DWI and running into people, it’s important to note, if we’re looking at this with a categorical analysis, just to look at the elements of the offense.

DWI in New Mexico would necessarily… there would have to be another element.

If somebody–

Samuel A. Alito, Jr.:

The residual clause is a difficult problem, but I still have not heard what characteristic the enumerated offenses have in common, all of them, that provides a basis for limiting the residual clause.

They’re not all property crimes.

A lot of crimes involving explosives: Illegal possession of explosives, illegally manufacturing explosives, obtaining explosives by making false statements.

None of those are property crimes and none of them involve injury to a person… I mean involve the threat of the use of force against a person.

So what is the characteristic that all of the enumerated crimes have in common that would provide a limitation on the residual clause?

Margaret A. Katze:

–At their very least, they all are acts that intend to cause harm.

They all are property crimes.

This Court reiterated–

Samuel A. Alito, Jr.:

No, they’re not.

In 18 U.S.C. 842, explosives, unlawful…

“It shall be unlawful to engage in the business of importing, manufacturing, or dealing in explosive materials without a license issued under this chapter. “

Margaret A. Katze:

–Your Honor–

Samuel A. Alito, Jr.:

There’s no intent to cause harm there.

Margaret A. Katze:

–Your Honor, the term in the Armed Career Criminal Act is the “use of explosives”.

This Court has defined “use” as having an intentionality, and intent… and I think it’s fair to say that that intent to use those explosives… and, from a practical point of view, people who… and we could talk about the ordinary case.

People who use explosives, they blow up property.

They blow up houses.

They blow up bridges.

At the very least, they’re blowing up explosives.

That certainly… that certainly is an act to cause some type of harm to property.

And, with respect to whether they are property, I submit all four are property crimes.

This Court said in Taylor all four of them are property crimes.

This Court interpreted the congressional… the legislative history.

Those were four property crimes that Congress specifically wanted to add to the concern about violence–

Antonin Scalia:

I don’t… I don’t understand this line of argue.

You would exclude, let’s say, physical assault from… from this, I mean assault with intent to kill, because it’s not a property crime?

Margaret A. Katze:

–Yes.

Antonin Scalia:

That wouldn’t be included in the “otherwise involved”?

Margaret A. Katze:

No, Your Honor, that would not fit under paragraph 2.

That would fit under paragraph 1, the use of force against an individual.

Congress carefully crafted this statute.

They dealt with serious drug offenses and they dealt with offenses against people, and then they dealt with offenses against property where there was–

John G. Roberts, Jr.:

It’s kind of odd, when the catch-all is phrased in terms of physical injury to another, to say that it’s concerned only with property crimes.

Margaret A. Katze:

–Property crimes with the potential for physical injury to another, not just purely property crimes.

The four enumerated crimes all have the potential for physical injury to another.

Anthony M. Kennedy:

Well, it seems to me that your argument gives us greater reason to treat the last clause as independent just so that we can be sure that it doesn’t include only property crimes, because, as the Chief Justice just pointed out, “physical injury” is really the term that does the work in the second clause.

So it seems to me that you’re almost giving us a reason to make that clause more independent, more forceful, more significant.

Margaret A. Katze:

Absolutely not, Your Honor.

You wouldn’t be able to make that interpretation, which is basically what the government is suggesting, which would read “otherwise” out of the statute and therefore either make it tantamount to a third paragraph, which there is not a third paragraph, or would basically make the residual clause so broad it would swallow the entire statute.

And we can’t believe that Congress would have so carefully delineated the different areas of violent felonies and then eviscerate it all with this residual clause.

John Paul Stevens:

May I ask this question about your interpretation of the word “otherwise”.

Do you think it is the equivalent of the statute that omitted that word, but added in

“conduct that presents an equally serious potential risk of physical injury? “

Do you think… in other words, do you think that the four examples define the risk of physical injury that, the risk of potential physical injury the statute contemplates?

Margaret A. Katze:

Your Honor, I don’t know that I would agree “equally serious” would be the exact correct equivalent.

I think that that would be in keeping with Justice Scalia’s, more or less, my impression of Justice Scalia’s dissent in James, because I would submit that there has to be even more than just an equal balance of risk.

I do think that is an issue that needs to be compared, as this Court did in James.

The Court compared the risk of attempted burglary to burglary and found that they were similar.

I think in a non-analogous case there are other attributes that we’d have to look at, and that’s why we suggest–

John G. Roberts, Jr.:

Well, doesn’t that suggest that “otherwise” in the statute is in fact used to mean “likewise”?

I mean, if we said “attempted burglary” in James it’s obviously included because burglary is… attempted burglary doesn’t present a risk in a different fashion from burglary.

It presents it in the same fashion.

Margaret A. Katze:

–And that was this Court’s analysis in James, and I think that that’s reasonable to–

John G. Roberts, Jr.:

That was a helpful question.

[Laughter]

Margaret A. Katze:

–I think it’s important not to lose sight of the term that we are defining, “violent felony”, and that… as well as the purpose or intent of the statute was to punish a very small percentage, as this… as this Court said in Taylor, a very small percentage of very serious offenders.

This isn’t a statute that is written to say any individual who has three felony convictions that may cause serious potential risk of injury to an individual is going to get 15 years.

Margaret A. Katze:

That simply wasn’t the purpose.

The… the intent of the statute was to punish this small population of individuals.

John G. Roberts, Jr.:

Well, particularly when you look at subsection (i) in the broad reading of serious potential risk of (ii), why would… why would Congress mean to exclude a particular category of physical injury from the reach of the statute?

Margaret A. Katze:

Because if it… if it did include absolutely everything, then it would swallow the whole statute, because certainly–

John G. Roberts, Jr.:

No, not everything; everything that presents a serious potential risk of physical injury.

Margaret A. Katze:

–I think it… if it… for example, if it could include DWI, it would be hard to imagine what kind of crime wouldn’t be included in there.

Under that type of reading, if we look at the structure–

Anthony M. Kennedy:

Filling out a false income tax return.

I mean, I thought of one.

Margaret A. Katze:

–Other than maybe some white-collar crime.

Anthony M. Kennedy:

Well, there is a whole category of those.

So–

Margaret A. Katze:

But the… the problem with that analysis is that Congress was very clear who these… who this statute was geared at; and as Judge McConnell said in his dissent, the name of the statute, the Armed Career Criminal Act, is not just window dressing.

There’s a… I mean, that just reinforces our interpretation that there is this very small percentage of individuals.

It’s not supposed to be a general catch phrase.

And–

John G. Roberts, Jr.:

What do you think presents the most serious potential risk of injury to all of us, that we are going to be a victim of arson or that we are likely to get hit by a drunk driver?

Margaret A. Katze:

–Here’s why it’s hard to answer that: I wouldn’t argue with you that there are more people driving drunk than there are people burglarizing houses, but the relevant analysis is what’s the risk in an individual incident?

And in that case statistically there is a greater risk of injury in a burglary, under this Court’s… in Tennessee v Garner, it said 8.3 percent, as opposed to a quarter of a percent in an individual episode of drunk driving.

So we can’t put the cumulative drunk driving on the back of Mr. Begay.

We look at the individual incident, doing categorical analysis, looking at the elements in that individual incident.

Congress was very concerned about issues of federalism.

The reason for the Armed Career Criminal Act was to support law enforcement efforts on the part of States, not to federalize crime, not to federalize criminal investigation and prosecution.

We are suggesting that keeping that in mind and looking at the… the plain meaning of the phrase that we were discussing, and looking at the way the statute is actually structured and the fact that there are not three different paragraphs, as well as the fact that Congress could have picked to just say “or” as opposed to “or otherwise”, and we have to give “otherwise” a meaning; and we suggest that our meaning of “likewise” is one that this Court has adopted previously.

Previously this Court has said

“or otherwise qualified for a position. “

and found that people were qualified in a similar way than other people; “otherwise qualified to vote”, found that individuals were as qualified or similarly qualified as individuals of another race.

One other example, bringing a… by certiorari “or otherwise” was found to be found to mean to be by similar means as certiorari.

And, Your Honor, if I may reserve the remainder of my time?

John G. Roberts, Jr.:

Thank you, Counsel.

Margaret A. Katze:

Thank you.

John G. Roberts, Jr.:

Ms. Kruger.

Leondra R. Kruger:

Mr. Chief Justice, and may it please the Court: Drunk driving is an act that by its nature endangers people’s lives.

It is precisely for that reason that it is a crime under the laws of all 50 States.

When a person is repeatedly convicted of that offense and therefore becomes subject to punishment as a felon, he has committed a violent felony as Congress defined that term in the Armed Career Criminal Act, that is because he has committed a crime that in the words of the statute involves conduct that presents a serious potential risk of–

Ruth Bader Ginsburg:

How about a habitual speeder?

Leondra R. Kruger:

–Well, speeding isn’t a felony offense under the laws of any State, to my knowledge.

And we have to recall that the ACCA contains two requirements for treatment for prior conviction as a violent felony that would support enhanced sentencing under that act.

The felony requirement is not a trivial requirement.

It was in fact a focus of congressional debate, and it was intended to capture only serious crimes.

As a general matter, crimes of ordinary negligence, simple carelessness, or totally blameworthy acts don’t merit felony punishment.

As this Court recognized in Staples, to label a criminal act as a felony is indeed a serious thing and something that legislatures, by long tradition, reserved for truly serious acts.

Samuel A. Alito, Jr.:

And what is the… if the legislature made it a crime to send text messages on a cell phone while driving, and the punishment were severe enough to qualify here?

Would that be treated the same way?

Leondra R. Kruger:

Well, it would present a harder question, Justice Alito, and that’s because, for one thing, we don’t have the uniform judgment of legislatures that helps us know in this case that drunk driving does in all cases present a serious risk of injury.

And also because the conduct that’s defined by the DUI statute of New Mexico, as well as other States, by definition defines conduct that is unsafe.

You only violate the statute if you are impaired to such a degree that your faculties and motor skills are such that you are unable to drive a car safely.

With text messaging there isn’t quite that categorical mapping on of the risk to the conduct that’s proscribed.

Stephen G. Breyer:

So there is no State where speeding… even if maybe you hurt somebody or something… there is no State where speeding is under a statute that you could be imprisoned for more than a year?

Leondra R. Kruger:

To my knowledge, there is no State in which speeding itself is a felony offense.

Stephen G. Breyer:

Well, a felony as defined here.

I just wanted to be sure you’re focusing… it’s defined here as

“subject to by imprisonment for a term exceeding one year. “

Now is–

Leondra R. Kruger:

To my knowledge, at least, Justice Breyer–

Stephen G. Breyer:

–Okay, I just want to be sure we’re on the same wavelength.

Fine.

Leondra R. Kruger:

–Reckless driving, on the other hand, when it does result in serious physical injury to another, is often punished as a felony.

But there is obviously a difference between speeding by itself and reckless driving.

Antonin Scalia:

Ms. Kruger, what I don’t understand about this statute as you’re interpreting it is why you need any of it except the last phrase?

Antonin Scalia:

Once you give the last phrase,

“involves conduct that presents a serious potential risk of physical injury to another. “

all of the rest of it is automatically included.

“Has as an element the use, attempted use or threatened use of physical force against the person of another. “

–that obviously presents a serious potential risk of physical injury to another.

Or is burglary, arson, extortion, the use of explosives?

Congress could have saved itself a lot of trouble by simply erasing all the rest of the statute and simply saying any conduct that presents a serious potential risk of physical injury or not.

That can’t be what they meant.

Leondra R. Kruger:

Well, what this Court said about the structure of the statute in Taylor is that Congress’s purpose was first to identify crimes that do have as an element the use force, but also to capture a category of crimes that do not have as an element the use force but nevertheless present a potential harm to another human being.

Antonin Scalia:

Why… why would Congress go through that trouble, unless they wanted to suggest what other kind of crimes they need to include by this residual category of “any conduct” that presents a serious potential risk of physical injury?

Leondra R. Kruger:

Well, indeed as the Court said in Taylor and I think as the Court reiterated in James, it included the examples of four enumerated offenses in clause 2 to provide examples of the kinds of crimes that they believed to present a serious–

Antonin Scalia:

The degree of risk… the degree of risk, for example?

Leondra R. Kruger:

–Yes.

Antonin Scalia:

So if it doesn’t come up to the degree of risk that any of those four would, it would not be included?

Leondra R. Kruger:

Well, I don’t know that the–

Antonin Scalia:

No.

Leondra R. Kruger:

–that the enumerated crimes set an absolute four.

Congress could have written a statute that said that–

Antonin Scalia:

Well, then what did it do?

What’s it do?

Leondra R. Kruger:

–They do provide examples of the kinds of crimes that Congress thought did present a serious risk.

Antonin Scalia:

How?

How does it limit the latter part?

Is it because they are all crimes that require mens rea, intent?

So should we limit it by saying it has to be a… a conduct that’s intentional conduct that presents a serious risk?

Leondra R. Kruger:

Well, I think, as the Court said in James, all of these crimes are quite different offenses that don’t share very many characteristics in common, including incidentally intent to cause harm.

Antonin Scalia:

But you say it does limit it.

So tell me how it limits it?

Leondra R. Kruger:

Well, what it does is it provides a useful benchmark against which to assess the risks that are associated with any other crime.

Antonin Scalia:

That’s nice.

Antonin Scalia:

Benchmark of what?

Of intent, of degree of risk?

Leondra R. Kruger:

Of degree… it’s degree and kinds of risk.

Yes.

Antonin Scalia:

Okay.

So the degree of risk has to be pretty much similar to those four?

Leondra R. Kruger:

It has to be comparable, which is what the Court said in James–

Antonin Scalia:

Comparable–

Leondra R. Kruger:

–And in this case we do think that the risks associated with DUI are comparable to the risks–

John G. Roberts, Jr.:

How do we know that?

I guess this is a question I asked your friend.

I mean, degree of risk.

I mean what are the odds that we’re going to… that if there’s a burglary, some physical injury might result as opposed to an episode of drunk driving.

Leondra R. Kruger:

–Well, Your Honor–

John G. Roberts, Jr.:

In other words, I guess… do we really look at how… what percentage of drunk drivers are involved in accidents as opposed to what percentage of burglars are involved in violent confrontations?

Leondra R. Kruger:

–No, Your Honor.

I don’t think that the answer to the question can turn on statistical comparisons of the likelihood that harm will result in any given episode of any of these crimes.

I think that that is a proposition that the Court underscored in James, when it decided whether attempted burglary qualified without reference to hard statistics.

And the fact of the matter is that hard statistics in most of these crimes are simply unavailable.

So to make the answer in any case turn on the availability of statistics would lead to fundamentally arbitrary results.

Ruth Bader Ginsburg:

One of the anomalies about this, and we start out… this is an armed career criminal.

And you can say, well, burglary… burglary and arson, if you’re apprehended, you’re the career criminal; you commit these kinds of crimes.

Congress doesn’t want you to have a gun, or if you do, you’re going to get the book thrown at you.

But there doesn’t seem to be much of a connection.

I mean how… how is it going to make the dangerous… the drunk driver more or less dangerous if he happens to have a gun in the glove compartment?

Leondra R. Kruger:

Well, we think that it’s clear from the enumeration of the offenses in clause 2 in the definition of “violent felony” that Congress wasn’t intending to capture only a set of crimes that are made more dangerous when they’re committed with a firearm.

It is, in fact, the kind of statute that Congress wrote in 18 U.S.C. 942(c), which concerns the use or carrying of a firearm during and in relation to a crime of violence.

But here what Congress was concerned about was capturing a set of offenders who, by their criminal history, have demonstrated an inherent disregard for the value of human life and therefore should not only be prohibited from possessing firearms but should face particularly severe sanctions for failure to abide by that prohibition.

Our–

Stephen G. Breyer:

Then they could have turned it just on dangerousness.

Stephen G. Breyer:

I’m back to Justice Scalia and Justice Ginsburg’s question, and I’m simply sort of repeating those in a sense that make it quite specific.

Imagine a universe of crimes.

Every member of that universe we concede has precisely the same degree of danger as arson, explosives, burglary.

So there’s no argument about the risk to human life.

It is identical.

And now we write a statute, and the statute’s object is to take people who are felons in possession of a gun and those persons whom it is particularly bad that they have a gun are going to go away for 15 years minimum.

So what we’re looking are people who are particularly bad that they have a gun.

Now go back to our universe, and in that universe we have some things on the one hand like arson, but on the other hand… I have to name a few, environmental crimes committed by negligence or recklessness, where somebody flushed a toxic substance down the drain or… here’s a good one I found… if you are a steamboat captain or an executive of a steamboat company and you fail through negligence or simple inadvertence to stop somebody from not inspecting a lifeboat, well, felony or worse.

And there are quite a few dozens of these things: Failing to stop at an inspection station if you are a trucker.

You know?

There are quite a few, where what’s at issue is negligence, thoughtlessness, and maybe even recklessness, but it seems to have nothing… and it’s dangerous… but has nothing to do with whether, when later on you want a gun, you are a greater risk for having a gun, you’re more likely to pull the trigger, you’re more likely to aim it at somebody and shoot him.

Now, that’s I think what we are trying to drive at.

Leondra R. Kruger:

–Well, Your Honor, I think that the initial response to that question is that the statute that Congress wrote unequivocally focuses the inquiry on the risk of harm to other human beings.

Congress could very well have written a statute that required intent to harm.

It could have written a statute that required intentional use of force, as it did in–

Antonin Scalia:

–Oh, but it didn’t mean that… you said it didn’t mean that because they could have said that and nothing else.

If that’s what they meant, they could have eliminated everything else that they said.

They obviously meant to tie that to the preceding portions.

And when you tie it to the preceding portions, you come up with some limitations of the sort that Justice Breyer was suggesting.

Leondra R. Kruger:

–Well, I think you don’t, Your Honor, because I think the most obvious way to tie it to the preceding sections is, again, to import a kind of use-of-force requirement such as the 18 U.S.C. 16(b) requirements that would look at the risk of force intentionally will be used in the course of committing the offense, and–

John G. Roberts, Jr.:

How much of a limitation is the point Justice Breyer was making?

I mean, let’s say you’ve got a habitual drunk driver.

Everybody in town says he always drives drunk.

I mean, how would they greet the news: Guess what?

He’s just got a gun.

I mean, that raises the level of risk significantly, doesn’t it?

Leondra R. Kruger:

–Well, indeed, I think that it does, and I think the facts of this case bear out that Congress’s concern about possession of firearms by people who have committed crimes of a character that present a serious risk in a serial manner was indeed well-founded.

Anthony M. Kennedy:

Can you tell me what test, what conclusion, you want me to come to in your argument?

Drunk driving is within the last clause because–

Leondra R. Kruger:

It is because, first of all, the risks of drunk driving are commonly understood.

Leondra R. Kruger:

They’re supported by the uniform legislative judgment of the 50 States.

And also because those risks are comparable in both kind and degree to the kinds of risks that are associated with crimes that Congress specifically enumerated in the statute as meeting the test.

Antonin Scalia:

She says not at all.

Your friend on the other side says that it’s something like, what, two and a half percent for burglary and point something for the chances of hurting somebody if you’re driving DUI?

Leondra R. Kruger:

Well, I think, again, the statistical inquiry, while it can be helpful and relevant in individual cases, is not dispositive.

I think if you look at the statistics, the chances of injury resulting from a given arson fire are also well below 1 percent.

What Congress wasn’t concerned about was the statistical likelihood of any injury in a particular episode–

Anthony M. Kennedy:

–Well, I suppose you say most legislatures think this is dangerous.

That’s enough?

Leondra R. Kruger:

–Well, I think that Congress was entitled to look at–

Anthony M. Kennedy:

I’m not trying to be captious, but I… it’s difficult to find out what the standard is.

John Paul Stevens:

Isn’t the significance of Justice Breyer’s point that each of the listed crimes is more dangerous when a criminal is carrying a gun, but driving drunk isn’t made any more dangerous whether or not there’s a gun in the car?

Leondra R. Kruger:

–Well, Justice Stevens, it’s difficult to see how arson, for example, or explosives use is made more dangerous when the criminal is carrying a gun.

Presumably in those cases the criminal’s use… weapon of choice is fire or explosives rather than a gun.

The only risk that would inhere would be the risk that any criminal would pose when apprehended by the authorities, and it’s the same risk that a presumably a drunk driver would pose to others when apprehended by an officer who pulls them over.

Stephen G. Breyer:

Is a person who deliberately burns down buildings, is a person who if he had a gun might pull the trigger?

And I will suggest that’s a reasonable inference.

I also will give you this: That a person who’s so careless as to go drunk driving is a person whose gun might go off carelessly or he might leave it around the house.

So I’ll give you that one.

But my instinct is that Congress, in this Act, is not worried about guns going off carelessly around the house.

They are worried about a person being the kind of person who will point a gun at somebody and pull the trigger.

Now, is there something you can say that disabuses me of that instinct?

Leondra R. Kruger:

Well, I think one way to start to answer that question is by looking specifically at what Congress likely meant when it referred to “arson” in the statute.

Under 18 U.S.C. 844(i), arson is defined as maliciously damaging property by means of fire or explosives.

But the way courts have interpreted that language is not to require intent to damage property in all instances.

It also covers situations in which the fire is set with willful disregard for the likelihood that damage will occur; in other words, in situations in which the fire has occurred and recklessly poses harm.

And we think that that is the kind of injury that is at issue in this case; that is, fundamentally the same kind of risk that DUI poses.

Antonin Scalia:

You don’t think this is just limited to intentional arson?

You think negligent arson?

Wow.

Leondra R. Kruger:

Well, it’s certainly true that–

Antonin Scalia:

Negligent extortion, negligent use of explosives?

I mean, it’s in a list of things that are talking about, you know, intentional crimes that armed career criminals would be likely to do.

Leondra R. Kruger:

–Well, I think that Congress was more than likely aware of the fact that 18 U.S.C. 844 did treat arson in this manner, particularly considering that–

Antonin Scalia:

I don’t think Congress had the slightest idea.

[Laughter]

Leondra R. Kruger:

–Well, the definition of… the reach of the Federal arson statute came to encompass use of fire in 1982, only shortly before the ACCA was enacted.

And certainly it’s true that most State legislatures have also defined arson offenses to include similar kinds of intentional setting of fire with reckless disregard to the likelihood of damage or injury that would result.

John Paul Stevens:

Could you comment on one other point that Judge McConnell made in his opinion?

Is there significance in the title of this statute, “Armed Career Criminal Act”.

Does this statute intend to identify career criminals?

Leondra R. Kruger:

Well, I think it’s difficult to see how it would support a limitation to the kinds of crimes that are normally committed as a means of livelihood in that sense of “career”.

It certainly does refer to career criminals in the sense that they are habitual offenders, that they are recidivists.

But certainly not all the enumerated offenses, nor even the offenses that are encompassed by the definition that’s contained in clause 1 of the statute, are normally committed as a means of violent–

Anthony M. Kennedy:

Well, I’m not so sure.

It seems to me that the burglary, arson, extortion, explosives involves at least the stereotype of the armed career criminal that you see in movies and hear about in organized crimes testimony and so forth.

I don’t… I don’t think it’s completely far of the mark.

Leondra R. Kruger:

–Well, it is certainly true that the kind of–

Anthony M. Kennedy:

Obviously… obviously incomplete.

Leondra R. Kruger:

–Well, it’s certainly true that the kinds of crimes that are encompassed by clause 1 of the definition, sort of traditional crimes of violence like murder, assault, rape, are not ordinarily committed as a means of livelihood.

People rarely make a profession of those types of careers.

And it’s also true that ordinarily arson is not committed for insurance fraud, but is committed for a large number of other purposes that have nothing to do with the profit motive, including covering up evidence of other crimes, including simple vandalism.

So I think it’s implausible to think that Congress was really focused here on the kinds of crimes that are normally committed for profit.

Ruth Bader Ginsburg:

What else… what else would be in this catalogue?

You rejected my speeder, but I think you said something about a reckless driver might, habitually reckless driver.

What else would fit the description

“conduct that presents a serious potential risk of physical injury to another? “

Leondra R. Kruger:

We think the category of crimes of recklessness that pose an injury, reckless disregard of the risk of injury to others, would qualify because in those cases juries have necessarily found that there was objectively a serious risk and that failures to appreciate that risk and to act accordingly constitutes a gross deviation from the ordinary standard of care that a reasonable person would exercise.

Ruth Bader Ginsburg:

I’d like to know specifically.

You said reckless driving; and what else?

Leondra R. Kruger:

Reckless driving that results in serious bodily injury or death to another, which is a felony under the laws of many States, would qualify.

Ruth Bader Ginsburg:

That has the potential of doing that, not–

Leondra R. Kruger:

Yes, but reckless driving simple is ordinarily, not punishable as a felony under the traffic laws.

We think, similarly, reckless homicide would qualify.

Ruth Bader Ginsburg:

–But wouldn’t that come in in the first, the violent crime, the first part?

Leondra R. Kruger:

Well, presumably it wouldn’t, because by definition a reckless homicide does not involve the intentional use of force, the threatened use of force, or attempted use of force.

And the definition relates solely to the killing of another, whether or not by intentional use of force, in situations that disregard the great dangerousness to human life and those actions.

The other things that would qualify would be cases like DUI, where recklessness need not be proved as such, but that are underscored by legislative determinations that the conduct that is proscribed is by definition reckless, by definition poses a serious risk that a person should appreciate and should accordingly conform their conduct to a different standard.

Petitioner’s argument suffers from the fundamental flaw that it describes a statute that Congress didn’t write.

Congress did indeed consider incorporating the definition of 18 U.S.C. 16 when it redrafted the statute in 1986 and it decided against it, instead making the inquiry turn on the potential for risk to human life as opposed to the potential that… the risk that force would be used or on the intentional use of force.

We think that that decision is one that needs to be given effect in interpreting the statute.

As this Court recognized in Leocal, the risk of intentional use of force is simply not the same thing that a risk of… the risk that an accident will occur that will cause serious injury to another.

Ruth Bader Ginsburg:

May I ask about something in your brief on page 37?

You said:

“Congress settled on this language because it had two other proposals, one that it considered too narrow and one that it considered as potentially too broad. “

And the one that it considered potentially too broad is

“any felony that by its nature involves a substantial risk that physical force against a person or property of another may be used in the course of committing an offense is the. “

–this is on page 37 of your brief.

Leondra R. Kruger:

Yes, Your Honor.

That is the definition of 18 U.S.C. 16.

And it is, indeed, unquestionably broader than the definition of 924(e)(2)(D)(ii) in at least two respects.

One is that it would cover misdemeanors involving use of force as well as felonies.

And the second is that it would cover crimes that involve a risk that force would be used against property, rather than focusing exclusively on the risk of harm to a human being, as the definition of ACCA does.

Anthony M. Kennedy:

It would, in the case of drunk driving… though, it seems this would be a better case for the Petitioner if we were operating under this statute.

Leondra R. Kruger:

Well, indeed, I think that that is the thrust of the court’s decision–

Anthony M. Kennedy:

It’s narrower in that sense as applied to this case.

Leondra R. Kruger:

–That’s correct.

Anthony M. Kennedy:

May I ask you this question?

If the government were not to prevail in the first case, Rodriguez, should we remand in this case, because… because then he… the fourth felony would have been improperly found if we rule against the government in Rodriguez?

Leondra R. Kruger:

Well, if the Court decided to reach that issue in this case, even though the issue was not pressed or passed on in the court of appeals and wasn’t raised in the cert petition, we do think the Court’s analysis of the issue in that case applies equally to its analysis of the issue of whether or not the felony prong of the definition of “violent felony” is applicable in this case.

Leondra R. Kruger:

So were the Court to decide that the applicable maximum term of imprisonment that applies to a recidivist is the term of imprisonment that would apply to a hypothetical first-time offender, then that decision would control in this case as well.

And the Court should dispose of this case accordingly.

But it bears noting that that would not dispose of this question entirely, because there are, of course, other reasons why States treat drunk driving offenses as felony offenses, particularly in situations in which they result in serious bodily harm or death to another, as Your Honor previously noted.

The issue in this case comes down to the interpretation of the statute that Congress wrote, not a hypothetical statute that Congress could have written.

And that statute identifies one criterion for determining whether or not a felony offense qualifies as a violent felony under the ACCA, and that is its potential for harming other human beings.

Drunk driving is commonly understood to present a serious potential risks of injury.

The potential risks of injury are the only reason why it’s a crime under the laws of 50 States.

And the risks associated with drunk driving are comparable in both kind and degree to the risks associated with arson and explosives use, two crimes that Congress specifically identified in the statute as satisfying its definition.

For that reason, we think that the court of appeals correctly determined that Mr. Begay was sentenced properly under the Armed Career Criminal Act and would urge the Court to affirm its determination.

If there are no further questions, thank you.

John G. Roberts, Jr.:

Thank you, Ms. Kruger.

Ms. Katze, you have four minutes remaining.

Margaret A. Katze:

The problem with the Government’s interpretation is that it offers no limiting principle whatsoever.

It’s merely open to say absolutely any offense that would present a serious potential risk of injury to another would fall within the statute.

And that clearly does not take Congress’s intent to heart.

And there has to be some other limiting principle, something more than just the words in the residual clause, especially when we are giving every word in the statute meaning.

We suggest that our test of analyzing those four enumerated crimes which were intentionally put there by Congress, to look at the attributes of those four crimes.

That they are active, violent property crimes more typical of crimes committed by career offenders, more dangerous when committed with a gun–

Samuel A. Alito, Jr.:

Why wouldn’t drunk driving be property crime?

Doesn’t it cause an enormous amount of property damage?

Margaret A. Katze:

–Under a categorical analysis, there is no element that has anything to do with property whatsoever in DWI, which brings me to my next point that recidivism is not an element of DWI in New Mexico.

The elements to commit DWI in the first offense are exactly the same as the fourth offense.

There is no difference.

And there is… certainly, Congress, intended that there would be a distinction between violent, intentional felonies and accidental or, at worst, negligent crimes.

John G. Roberts, Jr.:

Extortion doesn’t involve property as an element.

Margaret A. Katze:

I believe it does.

It’s trying to get something of value from another person.

That thing of value is property.

John G. Roberts, Jr.:

Something of value… something of value could be, you know, a confession in a related case or something.

It doesn’t necessarily have to be property.

Margaret A. Katze:

In the ordinary case, it’s property even if we think of it as reputation; property in the sense of the common law, life, liberty, and property; that that includes more than just physical property, I think.

In addition, this Court has said that those four offenses are–

John G. Roberts, Jr.:

I don’t understand that.

Yes.

Life, liberty, and property include more than property, but–

Margaret A. Katze:

–“Property” includes more than tangible, physical property.

Reputation is considered property under that definition.

Merely stating that–

Ruth Bader Ginsburg:

I thought you said that you… you look at the generality of cases.

In most extortion cases what they want is money.

Margaret A. Katze:

–That is correct, and money is property.

And that is exactly what… in addition to the fact that this Court said in Taylor that those four offenses are property offenses.

And, again, in James this Court again referred to those four offenses as–

Samuel A. Alito, Jr.:

Well, if you look at the generality of drunk-driving offenses, those that result in physical injury almost always involve, or in the great majority of cases involve, property damage, too; don’t they?

Margaret A. Katze:

–But that’s not an element of the crime.

We can–

Samuel A. Alito, Jr.:

It’s not an element of some of these other crimes, either.

Is it an element in burglary?

Is there a property element in burglary?

Margaret A. Katze:

–Yes, Your Honor.

There is a breaking and entering into a building, in some type or respect a property.

Samuel A. Alito, Jr.:

That’s an entering.

An unlawful entering–

Margaret A. Katze:

Right.

Samuel A. Alito, Jr.:

–That’s a property element?

Margaret A. Katze:

Yes, sir.

John G. Roberts, Jr.:

–What about–

Margaret A. Katze:

You have to enter a property.

It’s this something… property–

John G. Roberts, Jr.:

–Well, we know that attempted burglary is covered, and you don’t have to enter the house in an attempted burglary.

Margaret A. Katze:

–I think that’s exactly the situation when there are analogous crimes.

It’s clear to see that–

John G. Roberts, Jr.:

Yes.

Well, you are saying this is an analogous crime to the four that are listed, or it is not an analogous crime to the four that are listed?

Margaret A. Katze:

–That’s correct, but this Court has said that the four offenses that were enumerated by Congress are, in fact, property crimes.

This Court has said that in Taylor and again referred to those four crimes as property crimes in James.

But even if this Court doesn’t believe they are property crimes, the bottom line is DWI is so far afield of the four enumerated crimes, the attributes that they had, at the very least the intent to do crime, that it’s clearly outside the scope of what Congress could ever have intended.

Thank you.

John G. Roberts, Jr.:

Thank you, Ms. Katze.

The case is submitted.