Johnson v. United States - Oral Argument - November 05, 2014

Johnson v. United States

Media for Johnson v. United States

Audio Transcription for Opinion Announcement - June 26, 2015 in Johnson v. United States
Audio Transcription for Oral Reargument - April 20, 2015 in Johnson v. United States

Audio Transcription for Oral Argument - November 05, 2014 in Johnson v. United States

John G. Roberts, Jr.:

We will hear argument next in Case 13-7120, Samuel Johnson v. United States.

Ms. Menendez.

Katherine M. Menendez:

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

Mere possession of a short-barreled shotgun is not a violent felony within the definition of the Armed Career Criminal Act's residual clause because it is neither similar in the degree of risk nor similar in kind to the enumerated offenses set forth in the language that immediately precedes that clause.

And this Court has repeatedly held that those enumerated offenses provide important both qualitative and quantitative parameters to lower courts in examining whether a particular predicate offense counts as a violent felony.

Just 6 years ago in Begay, this Court made clear that the enumerated offenses must be similar -- I'm sorry, a question predicate offense must be similar in kind to one of the enumerated offenses as well as similar in degree of risk.

And when that proper framework is applied to the question of mere possession of a short-barreled shotgun, it satisfies neither test.

Ruth Bader Ginsburg:

Should the Court -- should the Court take into account that in the sentencing guidelines possession of a short-barreled shotgun is ranked under career, is under the career offenses?

Katherine M. Menendez:

Your Honor, in Guideline Amendment 674 in 2004, which Your Honor asks about, the Sentencing Commission included mere possession of an unregistered short-barreled shotgun or possession of a short-barreled shotgun as a crime of violence.

But it did not do so after an examination of the empirical data or an assessment of the pool of data that gives us great confidence in the Sentencing Commission's decisions.

In marked contrast, Your Honor, in 1991, when the Sentencing Commission adopted Amendment 433 that concluded that being a felon in possession of a firearm should not count as a crime of violence under the guidelines, it reached that conclusion after an extensive examination of empirical data.

The difference between the adoption of those two amendments highlights the reason that the Sentencing Commission's decision on this point does not deserve deference in this case.

An additional consideration, Your Honor, is that in making that decision in 2004, the Sentencing Commission was not anticipating the guidance that this Court provided in James, Begay, Chambers, and Sykes, and it doesn't engage in any of the proper analysis.

So whether we look at it as the Sentencing Commission not serving their traditional role as factfinders and the keepers of empirical data or whether we acknowledge the fact that it preceded very important guidance from this Court, I don't think it controls this Court's decision.

Sonia Sotomayor:

Is it--

Samuel A. Alito, Jr.:

Is it possible--

Sonia Sotomayor:

--I'm sorry.

Samuel A. Alito, Jr.:

--Is it possible for any possession offense to qualify as a violent felony?

Katherine M. Menendez:

Your Honor, I believe it would be possible for a very rare possession offense to qualify as a violent felony if the possession alone presents a serious potential risk of injury.

Respectfully, I believe the flaw with the other side's position in this case is their entire analysis is based not on the risk inherent in the mere possession, but on the risk inherent in committing a further violent crime with that weapon.

And so I believe that any mere possession of a firearm, including a short-barreled firearm, is not going to satisfy the definition.

Elena Kagan:

But if I understand the government's argument, it's that there's a very strong correlation between possession in this case and use for criminal purposes of a kind that clearly would pose a risk of -- of violent conduct and injury.

So are you saying that we never can take that kind of correlation into account, that possession crimes just have to be treated in a box, and we can't think about whether the possession of something increases the risk of use which then will pose a serious risk of injury?

Katherine M. Menendez:

Your -- Your Honor, my response is twofold.

First, although the government has asserted that correlation, they have not substantiated it in any way.

And there's no data before the Court that supports the claim that merely possessing a short-barreled shotgun is somehow connected with frequent or even regular use.

Elena Kagan:

So -- so that seems right, that it's a question to pose to the government.

It's like, what's in back of this correlation?

But is your argument, then, they haven't made their empirical case or even if they had lots of statistics, it still wouldn't be enough?

Katherine M. Menendez:

And that is correct, Your Honor.