James v. United States

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JAMES v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT

No. 05–9264. Argued November 7, 2006—Decided April 18, 2007
Pleading guilty to possessing a firearm after a felony conviction in vio
lation of 18 U. S. C. §922(g)(1), petitioner James admitted to the
three prior felony convictions listed in his federal indictment, includ
ing a Florida state-law conviction for attempted burglary. The Gov
ernment argued at sentencing that those convictions subjected James
to the 15-year mandatory minimum prison term provided by the
Armed Career Criminal Act (ACCA), §924(e), for an armed defendant
who has three prior “violent felony” convictions. James objected that
his attempted burglary conviction was not for a “violent felony.” The
District Court held that it was, and the Eleventh Circuit affirmed.
Held: Attempted burglary, as defined by Florida law, is a “violent fel
ony” under ACCA. Pp. 2–20.
(a) James’ argument that ACCA’s text and structure categorically
exclude attempt offenses is rejected. Pp. 2–7.
(i) Section 924(e)(2)(B) defines “violent felony” as “any crime pun
ishable by imprisonment for [more than] one year . . . that . . . (i) has
as an element the use, attempted use, or threatened use of physical
force against . . . another . . . or . . . (ii) is burglary, arson, or extor
tion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” Flor
ida law defined “burglary” when James was convicted as “entering or
remaining in a structure . . . with the intent to commit an offense
therein,” Fla. Stat. §810.02(1), and declared: “A person who . . . does
any act toward the commission of [an offense] but fails in the perpetra
tion or . . . execution thereof, commits the offense of criminal attempt,”
§777.04(1). The attempted burglary conviction at issue was punish
able by imprisonment exceeding one year. The parties agree that it
does not qualify as a “violent felony” under clause (i) of §924(e)(2)(B)
2 JAMES v. UNITED STATES

Syllabus

or as one of the specific crimes enumerated in clause (ii). For exam
ple, it is not “burglary” because it does not meet the definition of “ge
neric burglary” found in Taylor v. United States, 495 U. S. 575, 598:
“an unlawful or unprivileged entry into, or remaining in, a building
or other structure, with intent to commit a crime.” Thus, the ques
tion here is whether attempted burglary, as defined by Florida, falls
within clause (ii)’s residual provision for crimes that “otherwise in
volv[e] conduct that presents a serious potential risk of physical in
jury to another.” Pp. 2–3.
(ii) ACCA’s text does not exclude attempt offenses from the re
sidual provision’s scope. James’ claim that clause (i)s’ express inclu
sion of attempts, combined with clause (ii)’s failure to mention them,
demonstrates an intent to categorically exclude them from clause (ii)
would unduly narrow the residual provision, which does not suggest
any intent to exclude attempts that otherwise meet the statutory crite
ria. See, e.g., Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80.
James also argues to no avail that, under the ejusdem generis canon,
the residual provision must be read to extend only to completed of
fenses because the specifically enumerated offenses—burglary, arson,
extortion, and explosives crimes—all have that common attribute.
Rather, the most relevant common attribute of the enumerated of
fenses is that, while not technically crimes against the person, they
nevertheless create significant risks of bodily injury to others, or of
violent confrontation that could lead to such injury. See e.g., Taylor,
supra, at 597. The inclusion of the residual provision indicates Con
gress’ intent that the preceding enumerated offenses not be an ex
haustive list. Pp. 3–6.
(iii) Nor does the legislative history exclude attempt offenses
from ACCA’s residual provision. Whatever weight might ordinarily
be given the House’s 1984 rejection of language that would have in
cluded attempted robbery and attempted burglary as ACCA predicate
offenses, it is not probative here because the 1984 action was not
Congress’ last word on the subject. Since clause (ii)’s residual provi
sion was added to ACCA in 1988, Congress’ 1984 rejection of the lan
guage including attempt offenses is not dispositive. Pp. 6–7.
(b) Attempted burglary, as defined by Florida law, “involves con
duct that presents a serious potential risk of physical injury to an
other” under the residual provision. Under the “categorical ap
proach” it has used for other ACCA offenses, the Court considers
whether the offense’s elements are of the type that would justify its
inclusion within the residual provision, without inquiring into the
particular offender’s specific conduct. See, e.g., Taylor, supra, at 602.
Pp. 7–18.
(i) On its face, Florida’s attempt statute requires only that a de
 Cite as: 550 U. S. ____ (2007) 3

Syllabus

fendant take “any act toward the commission” of burglary. But be
cause the Florida Supreme Court’s Jones decision considerably nar
rowed the application of this broad language in the context of at
tempted burglary, requiring an overt act directed toward entering or
remaining in a structure, merely preparatory activity posing no real
danger of harm to others, e.g., acquiring burglars’ tools or casing a
structure, is not enough. Pp. 8–9.
(ii) Overt conduct directed toward unlawfully entering or remain
ing in a dwelling, with the intent to commit a felony therein, “pre
sents a serious potential risk of physical injury to another” under the
residual provision of clause (ii). The clause’s enumerated offenses
provide one baseline from which to measure whether similar conduct
satisfies the quoted language. Here, the risk posed by attempted
burglary is comparable to that posed by its closest analog among the
enumerated offenses, completed burglary. See Taylor, supra, at 600,
n. 9. The main risk of burglary arises not from the simple physical act
of wrongfully entering another’s property, but from the possibility that
an innocent person might confront the burglar during the crime. At
tempted burglary poses the same kind of risk. Indeed, that risk may
be even greater than the risk posed by a typical completed burglary.
Many completed burglaries do not involve confrontations, but at
tempted burglaries often do. Every Court of Appeals that has con
strued an attempted burglary law similar to Florida’s has held that
attempted burglary qualifies as a “violent felony.” Support is also
found in the U. S. Sentencing Commission’s determination that a
predicate “crime of violence” for purposes of the Sentencing Guide
lines’ career offender enhancement “include[s] . . . attempting to
commit [an] offens[e].” See Guidelines Manual §4B1.2, comment.,
n. 1. Pp. 9–13.
(iii) Neither ACCA nor Taylor supports James’ argument that,
under the categorical approach, attempted burglary cannot be
treated as an ACCA predicate offense unless all cases present a risk
of physical injury to others. ACCA does not require such certainty,
and James’ argument misapprehends Taylor, under which the proper
inquiry is not whether every factual offense conceivably covered by a
statute necessarily presents a serious potential risk of injury, but
whether the conduct encompassed by the offense’s elements, in the
ordinary case, presents such a risk. Pp. 13–15.
(c) James’ argument that the scope of Florida’s underlying burglary
statute itself precludes treating attempted burglary as an ACCA
predicate offense is not persuasive. Although the state-law definition
of “[d]welling” to include the “curtilage thereof,” Fla. Stat.
§810.011(2), takes Florida’s underlying burglary offense outside Tay
lor’s “generic burglary” definition, 495 U. S., at 598, that is not dispo
4 JAMES v. UNITED STATES

Syllabus

sitive because the Government does not argue that James’ conviction
constitutes “burglary” under ACCA. Rather, it relies on the residual
provision, which—as Taylor recognized—can cover conduct outside
the strict definition of, but nevertheless similar to, generic burglary.
Id., at 600, n. 9. The Florida Supreme Court’s Hamilton decision
construed curtilage narrowly, requiring some form of enclosure for
the area surrounding a residence. A burglar illegally attempting to
enter the curtilage around a dwelling creates much the same risk of
confrontation as one attempting to enter the structure itself. Pp. 18–
20.
(d) Because the Court is here engaging in statutory interpretation,
not judicial factfinding, James’ argument that construing attempted
burglary as a violent felony raises Sixth Amendment issues under
Apprendi v. New Jersey, 530 U. S. 466, lacks merit. P. 20.
430 F. 3d 1150, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, SOUTER, and BREYER, JJ., joined. SCALIA, J., filed a dis
senting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS,
J., filed a dissenting opinion.
 Cite as: 550 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–9264
_________________

ALPHONSO JAMES, JR., PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 18, 2007]

JUSTICE ALITO delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA), 18 U. S. C.
§924(e), provides that a defendant convicted of possession
of a firearm by a convicted felon, in violation of §922(g), is
subject to a mandatory sentence of 15 years of imprison
ment if the defendant has three prior convictions “for a
violent felony or a serious drug offense.”
The question before us is whether attempted burglary, as
defined by Florida law, is a “violent felony” under ACCA.
We hold that it is, and we therefore affirm the judgment of
the Court of Appeals.
I
Petitioner Alphonso James pleaded guilty in federal
court to one count of possessing a firearm after being
convicted of a felony, in violation of §922(g)(1). In his
guilty plea, James admitted to the three prior felony con
victions listed in his federal indictment. These included a
conviction in Florida state court for attempted burglary of
a dwelling, in violation of Florida Statutes §§810.02 and
777.04.1
——————
1 James’ two other prior convictions—for possession of cocaine and
2 JAMES v. UNITED STATES

Opinion of the Court

At sentencing, the Government argued that James was
subject to ACCA’s 15-year mandatory minimum term
because of his three prior convictions. James objected,
arguing that his attempted burglary conviction did not
qualify as a “violent felony” under 18 U. S. C. §924(e). The
District Court held that attempted burglary is a violent
felony, and the Court of Appeals for the Eleventh Circuit
affirmed that holding, 430 F. 3d 1150, 1157 (2005). We
granted certiorari, 547 U. S. ___ (2006).
II

A

ACCA’s 15-year mandatory minimum applies “[i]n the
case of a person who violates section 922(g) of this title
[the felon in possession of a firearm provision] and has
three prior convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different
from one another.” §924(e)(1). ACCA defines a “violent
felony” as
“any crime punishable by imprisonment for a term ex
ceeding one year . . . that—
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre
sents a serious potential risk of physical injury to an
other.” §924(2)(B).
Florida defined the crime of burglary at the time of
James’ conviction as follows: “ ‘Burglary’ means entering or
remaining in a structure or a conveyance with the intent to
commit an offense therein, unless the premises are at the
time open to the public or the defendant is licensed or
——————
trafficking in cocaine—were determined to be “serious drug offense[s]”
under ACCA, see 18 U. S. C. §924(e)(1), and are not at issue here.
 Cite as: 550 U. S. ____ (2007) 3

Opinion of the Court

invited to enter or remain.” Fla. Stat. §810.02(1) (1993).
Florida’s criminal attempt statute provided: “A person who
attempts to commit an offense prohibited by law and in
such attempt does any act toward the commission of such
offense, but fails in the perpetration or is intercepted or
prevented in the execution thereof, commits the offense of
criminal attempt.” §777.04(1). The attempted burglary
conviction at issue here was punishable by imprisonment
for a term exceeding one year.
The parties agree that attempted burglary does not
qualify as a “violent felony” under clause (i) of ACCA’s
definition because it does not have “as an element the use,
attempted use, or threatened use of physical force against
the person of another.” 18 U. S. C. §924(e)(2)(B)(i). Nor
does it qualify as one of the specific crimes enumerated in
clause (ii). Attempted burglary is not robbery or extortion.
It does not involve the use of explosives. And it is not
“burglary” because it does not meet the definition of bur
glary under ACCA that this Court set forth in Taylor v.
United States, 495 U. S. 575, 598 (1990): “an unlawful or
unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime.” See Fla.
Stat. §777.04(1) (crime of attempt under Florida law re
quires as an element that the defendant “fai[l] in the
perpetration or [be] intercepted or prevented in the execu
tion” of the underlying offense).
The question before the Court, then, is whether at
tempted burglary, as defined by Florida law, falls within
ACCA’s residual provision for crimes that “otherwise
involv[e] conduct that presents a serious potential risk of
physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).
B
Before determining whether the elements of attempted
burglary under Florida law qualify under ACCA’s residual
provision, we first consider James’ argument that the
4 JAMES v. UNITED STATES

Opinion of the Court

statute’s text and structure categorically exclude attempt
offenses from the scope of the residual provision. We
conclude that nothing in the plain language of clause (ii),
when read together with the rest of the statute, prohibits
attempt offenses from qualifying as ACCA predicates
when they involve conduct that presents a serious poten
tial risk of physical injury to another.
James first argues that the residual provision of clause
(ii) must be read in conjunction with clause (i), which
expressly includes in its definition of “violent felony”
offenses that have “as an element the . . . attempted use
. . . of physical force against another.” §924(e)(2)(B)(i)
(emphasis added). James thus concludes that Congress’
express inclusion of attempt offenses in clause (i), com
bined with its failure to mention attempts in clause (ii),
demonstrates an intent to categorically exclude attempt
offenses from the latter provision.
We are not persuaded. James’ reading would unduly
narrow clause (ii)’s residual provision, the language of
which does not suggest any intent to exclude attempt of
fenses that otherwise meet the statutory criteria. Clause
(i), in contrast, lacks a broad residual provision, thus mak
ing it necessary to specify exactly what types of offenses—
including attempt offenses—are covered by its language. In
short, “the expansive phrasing of” clause (ii) “points directly
away from the sort of exclusive specification” that James
would read into it. Chevron U. S. A. Inc. v. Echazabal, 536
U. S. 73, 80 (2002); see also United States v. Davis, 16 F. 3d
212, 217 (CA7) (rejecting argument that “had Congress
wished to include attempted burglary as a §924(e) predicate
offense, it would have done so expressly” as “untenable in
light of the very existence of the ‘otherwise’ clause, which
Congress plainly intended to serve as a catch-all provi
sion”), cert. denied, 513 U. S. 945 (1994).
James next invokes the canon of ejusdem generis—that
when a general phrase follows a list of specifics, it should
 Cite as: 550 U. S. ____ (2007) 5

Opinion of the Court

be read to include only things of the same type as those
specifically enumerated. He argues that the “common
attribute” of the offenses specifically enumerated in clause
(ii)—burglary, arson, extortion, and crimes involving the
use of explosives—is that they are all completed offenses.
The residual provision, he contends, should similarly be
read to extend only to completed offenses.
This argument is unavailing. As an initial matter, the
premise on which it depends—that clause (ii)’s specifically
enumerated crimes are limited to completed offenses—is
false. An unsuccessful attempt to blow up a government
building, for example, would qualify as a specifically enu
merated predicate offense because it would “involv[e] [the]
use of explosives.” See, e.g., §844(f)(1) (making it a crime
to “maliciously damag[e] or destro[y], or attemp[t] to dam
age or destroy, by means of fire or an explosive,” certain
property used in or affecting interstate commerce (empha
sis added)).
In any event, the most relevant common attribute of the
enumerated offenses of burglary, arson, extortion, and
explosives use is not “completion.” Rather, it is that all of
these offenses, while not technically crimes against the
person, nevertheless create significant risks of bodily
injury or confrontation that might result in bodily injury.
As we noted in Taylor,
“Congress thought that certain general categories of
property crimes—namely burglary, arson, extortion,
and the use of explosives—so often presented a risk of
injury to persons, or were so often committed by ca
reer criminals, that they should be included in the en
hancement statute even though, considered solely in
terms of their statutory elements, they do not neces
sarily involve the use or threat of force against a per
son.” 495 U. S., at 597.
See also id., at 588 (noting that Congress singled out bur
6 JAMES v. UNITED STATES

Opinion of the Court

glary because it “often creates the possibility of a violent
confrontation”); United States v. Adams, 51 Fed. Appx. 507,
508 (CA6 2002) (arson presents “a serious risk of physical
injury to another” because “[n]ot only might the targeted
building be occupied,” but also “the fire could harm fire
fighters and onlookers and could spread to occupied struc
tures”); H. R. Rep. No. 99–849, p. 3 (1986) (purpose of clause
(ii) was to “add State and Federal crimes against property
such as burglary, arson, extortion, use of explosives and
similar crimes as predicate offenses where the conduct
involved presents a serious risk of injury to a person”).
Congress’ inclusion of a broad residual provision in
clause (ii) indicates that it did not intend the preceding
enumerated offenses to be an exhaustive list of the types
of crimes that might present a serious risk of injury to
others and therefore merit status as a §924(e) predicate
offense. Nothing in the statutory language supports the
view that Congress intended to limit this category solely to
completed offenses.
C
James also relies on ACCA’s legislative history to but
tress his argument that clause (ii) categorically excludes
attempt offenses. In the deliberations leading up to ACCA’s
adoption in 1984, the House rejected a version of the stat
ute that would have provided enhanced penalties for use of
a firearm by persons with two prior convictions for “any
robbery or burglary offense, or a conspiracy or attempt to
commit such an offense.” S. 52, 98th Cong., 2d Sess., §2
(1984) (emphasis added). The bill that ultimately became
law omitted any reference to attempts, and simply defined
“violent felony” to include “robbery or burglary, or both.”
Armed Career Criminal Act of 1984, §1802, 98 Stat. 2185,
repealed in 1986 by Pub. L. 99–308, §104(b), 100 Stat. 459.
James argues that Congress’ rejection of this explicit “at
tempt” language in 1984 evidenced an intent to exclude
 Cite as: 550 U. S. ____ (2007) 7

Opinion of the Court

attempted burglary as a predicate offense.
Whatever weight this legislative history might ordinarily
have, we do not find it probative here, because the 1984
enactment on which James relies was not Congress’ last
word on the subject. In 1986, Congress amended ACCA for
the purpose of “ ‘expanding’ the range of predicate offenses.”
Taylor, supra, at 584. The 1986 amendments added the
more expansive language that is at issue in this case—
including clause (ii)’s language defining as violent felonies
offenses that are “burglary, arson, extortion, involv[e] use of
explosives, or otherwise involv[e] conduct that presents a
serious potential risk of physical injury to another.” Career
Criminals Amendment Act of 1986, §1402(b), 100 Stat.
3207–40, codified at 18 U. S. C. §924(e)(2)(B)(ii). This
language is substantially broader than the 1984 provision
that it amended. Because both the Government and the
Court of Appeals relied on the broader language of the 1986
amendments—specifically, the residual provision—as the
textual basis for including attempted burglary within the
law’s scope, Congress’ rejection of express language includ
ing attempt offenses in the 1984 provision is not dispositive.
Congress did not consider, much less reject, any such lan
guage when it enacted the 1986 amendments. What it did
consider, and ultimately adopted, was a broadly worded
residual clause that does not by its terms exclude attempt
offenses, and whose reach is broad enough to encompass at
least some such offenses.
III
Having concluded that neither the statutory text nor the
legislative history discloses any congressional intent to
categorically exclude attempt offenses from the scope of
§924(e)(2)(B)(ii)’s residual provision, we next ask whether
attempted burglary, as defined by Florida law, is an of
fense that “involves conduct that presents a serious poten
tial risk of physical injury to another.” In answering this
8 JAMES v. UNITED STATES

Opinion of the Court

question, we employ the “ ‘categorical approach’ ” that this
Court has taken with respect to other offenses under
ACCA. Under this approach, we “ ‘look only to the fact of
conviction and the statutory definition of the prior of
fense,’ ” and do not generally consider the “particular facts
disclosed by the record of conviction.” Shepard v. United
States, 544 U. S. 13, 17 (2005) (quoting Taylor, 495 U. S.,
at 602). That is, we consider whether the elements of the
offense are of the type that would justify its inclusion
within the residual provision, without inquiring into the
specific conduct of this particular offender.
A
We begin by examining what constitutes attempted
burglary under Florida law. On its face, Florida’s attempt
statute requires only that a defendant take “any act to
ward the commission” of burglary. Fla. Stat. §777.04(1).
James contends that this broad statutory language sweeps
in merely preparatory activity that poses no real danger of
harm to others—for example, acquiring burglars’ tools or
casing a structure while planning a burglary.
But while the statutory language is broad, the Florida
Supreme Court has considerably narrowed its application
in the context of attempted burglary, requiring an “overt
act directed toward entering or remaining in a structure or
conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992).
Mere preparation is not enough. See ibid.2 Florida’s lower
——————
2 The Jones court distinguished its earlier holding in Thomas v. State,

531 So. 2d 708 (1988). There, the State Supreme Court upheld a
conviction under a state statute criminalizing the possession of bur
glary tools, Fla. Stat. §810.06, where the defendant had been arrested
after jumping a fence and trying to run away from police while carrying
a screwdriver. Jones held that “the overt act necessary to convict of the
burglary tool crime is not the same as the overt act required to prove
attempted burglary,” and noted that the conduct charged in Thomas
would not be sufficient to prove attempted burglary because the defen
dant in that case committed no overt act directed toward entering or
 Cite as: 550 U. S. ____ (2007) 9

Opinion of the Court

courts appear to have consistently applied this heightened
standard. See, e.g., Richardson v. State, 922 So. 2d 331,
334 (App. 2006); Davis v. State, 741 So. 2d 1213, 1214
(App. 1999).
The pivotal question, then, is whether overt conduct
directed toward unlawfully entering or remaining in a
dwelling, with the intent to commit a felony therein, is
“conduct that presents a serious potential risk of physical
injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).
B
In answering this question, we look to the statutory
language for guidance. The specific offenses enumerated
in clause (ii) provide one baseline from which to measure
whether other similar conduct “otherwise . . . presents a
serious potential risk of physical injury.” In this case, we
can ask whether the risk posed by attempted burglary is
comparable to that posed by its closest analog among the
enumerated offenses—here, completed burglary. See
Taylor, supra, at 600, n. 9 (“The Government remains free
to argue that any offense—including offenses similar to
generic burglary—should count towards enhancement as
one that ‘otherwise involves conduct that presents a seri
ous potential risk of physical injury to another’ under
§924(e)(2)(B)(ii)”).
The main risk of burglary arises not from the simple
physical act of wrongfully entering onto another’s property,
but rather from the possibility of a face-to-face confronta
tion between the burglar and a third party—whether an
occupant, a police officer, or a bystander—who comes to
investigate. That is, the risk arises not from the completion
of the burglary, but from the possibility that an innocent
person might appear while the crime is in progress.
Attempted burglary poses the same kind of risk. Inter
——————

remaining in a building. 608 So. 2d, at 799.

10 JAMES v. UNITED STATES

Opinion of the Court

rupting an intruder at the doorstep while the would-be
burglar is attempting a break-in creates a risk of violent
confrontation comparable to that posed by finding him
inside the structure itself. As one court has explained:
“In all of these cases the risk of injury arises, not from
the completion of the break-in, but rather from the
possibility that some innocent party may appear on
the scene while the break-in is occurring. This is just
as likely to happen before the defendant succeeds in
breaking in as after. Indeed, the possibility may be at
its peak while the defendant is still outside trying to
break in, as that is when he is likely to be making
noise and exposed to the public view. . . . [T]here is a
serious risk of confrontation while a perpetrator is at
tempting to enter the building.” United States v.
Payne, 966 F. 2d 4, 8 (CA1 1992).
Indeed, the risk posed by an attempted burglary that
can serve as the basis for an ACCA enhancement may be
even greater than that posed by a typical completed bur
glary. All burglaries begin as attempted burglaries. But
ACCA only concerns that subset of attempted burglaries
where the offender has been apprehended, prosecuted, and
convicted. This will typically occur when the attempt is
thwarted by some outside intervenor—be it a property
owner or law enforcement officer. Many completed bur
glaries do not involve such confrontations. But attempted
burglaries often do; indeed, it is often just such outside
intervention that prevents the attempt from ripening into
completion.
Concluding that attempted burglary presents a risk that
is comparable to the risk posed by the completed offense,
every Court of Appeals that has construed an attempted
burglary law similar in scope to Florida’s has held that the
offense qualifies as a “violent felony” under clause (ii)’s
 Cite as: 550 U. S. ____ (2007) 11

Opinion of the Court

residual provision.3 The only cases holding to the contrary
involved attempt laws that could be satisfied by prepara
——————
3 See United States v. Lane, 909 F. 2d 895, 903 (CA6 1990) (constru

ing Ohio attempted burglary law: “ ‘The fact that an offender enters a
building to commit a crime often creates the possibility of a violent
confrontation between the offender and an occupant, caretaker, or some
other person who comes to investigate.’. . . The fact that [the defendant]
did not complete the burglary offense does not diminish the serious
potential risk of injury to another arising from an attempted burglary”);
United States v. Fish, 928 F. 2d 185, 188 (CA6 1991) (Michigan at
tempted burglary law); United States v. Payne, 966 F. 2d 4, 8 (CA1
1992) (Massachusetts attempted-breaking-and-entering law); United
States v. O’Brien, 972 F. 2d 47, 52 (CA3 1992) (Massachusetts at
tempted-breaking-and-entering law: “[T]he possibility of a violent
confrontation with an innocent party is always present when a perpe
trator attempts to enter a building illegally, even when the crime is not
actually completed”); United States v. Solomon, 998 F. 2d 587, 590 (CA8
1993) (Minnesota attempted burglary law); United States v. Custis, 988
F. 2d 1355, 1364 (CA4 1993) (Maryland attempted-breaking-and
entering law: “In most cases, attempted breaking and entering will be
charged when a defendant has been interrupted in the course of ille
gally entering a home. Interrupting an intruder while breaking into a
home involves a risk of confrontation nearly as great as finding him
inside the house”); United States v. Thomas, 2 F. 3d 79, 80 (CA4 1993)
(New Jersey attempted burglary law); United States v. Andrello, 9 F. 3d
247, 249–250 (CA2 1993) (New York attempted burglary law); United
States v. Davis, 16 F. 3d 212, 218 (CA7 1994) (Illinois attempted bur
glary law); United States v. Bureau, 52 F. 3d 584, 593 (CA6 1995)
(Tennessee attempted burglary law: “[T]he propensity for a violent
confrontation and the serious potential risk of injury inherent in
burglary is not diminished where the burglar is not successful in
completing the crime. The potential risk of injury is especially great
where the burglar succeeds in entry or near-entry despite not fully
committing the crime”); United States v. Demint, 74 F. 3d 876, 878
(CA8 1996) (Florida attempted burglary law); United States v. Collins,
150 F. 3d 668, 671 (CA7 1998) (Wisconsin attempted burglary law: “We
have already recognized the inherently dangerous situation and possi
bility of confrontation that is created when a burglar attempts to
illegally enter a building or residence. . . . Wisconsin’s requirement that
a defendant must attempt to enter a building before he can be found
guilty of attempted burglary is sufficient to mandate that attempted
burglary in Wisconsin constitute a violent felony”).
12 JAMES v. UNITED STATES

Opinion of the Court

tory conduct that does not pose the same risk of violent
confrontation and physical harm posed by an attempt to
enter a structure illegally.4 Given that Florida law, as
interpreted by that State’s highest court, requires an overt
act directed toward the entry of a structure, we need not
consider whether the more attenuated conduct encom
passed by such laws presents a potential risk of serious
injury under ACCA.
The United States Sentencing Commission has come to
a similar conclusion with regard to the Sentencing Guide
lines’ career offender enhancement, whose definition of a
predicate “crime of violence” closely tracks ACCA’s defini
tion of “violent felony.” See United States Sentencing
Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006)
(USSG). The Commission has determined that “crime[s]
of violence” for the purpose of the Guidelines enhancement
“include the offenses of aiding and abetting, conspiring,
and attempting to commit such offenses.” §4B1.2, com
ment., n. 1. This judgment was based on the Commis
sion’s review of empirical sentencing data and presumably
reflects an assessment that attempt crimes often pose a
similar risk of injury as completed offenses. As then
——————
4 In United States v. Strahl, 958 F. 2d 980, 986 (1992), the Tenth

Circuit held that attempted burglary under Utah law did not qualify as
an ACCA predicate offense because a conviction could be “based upon
conduct such as making a duplicate key, ‘casing’ the targeted building,
obtaining floor plans of a structure, or possessing burglary tools.”
United States v. Permenter, 969 F. 2d 911, 913 (CA10 1992), similarly
excluded a conviction under an Oklahoma statute that could be satis
fied by the defendant’s “merely ‘casing’ the targeted structure.” In
United States v. Martinez, 954 F. 2d 1050, 1054 (1992), the Fifth
Circuit came to the same conclusion as to a Texas attempted burglary
statute that did not require that the defendant be “in the vicinity of any
building.” And in United States v. Weekley, 24 F. 3d 1125, 1127 (CA9
1994), the Court of Appeals concluded that ACCA was not satisfied by a
conviction under a Washington law that covered “relatively unrisky”
conduct such as casing the neighborhood, selecting a house to burgle,
and possessing neckties to be used in the burglary.
 Cite as: 550 U. S. ____ (2007) 13

Opinion of the Court

Judge Breyer explained, “[t]he Commission, which collects
detailed sentencing data on virtually every federal crimi
nal case, is better able than any individual court to make
an informed judgment about the relation between” a par
ticular offense and “the likelihood of accompanying vio
lence.” United States v. Doe, 960 F. 2d 221, 225 (CA1
1992); see also USSG §1A3 (Nov. 1987), reprinted in
§1A1.1 comment. (Nov. 2006) (describing empirical basis
of Commission’s formulation of Guidelines); United States
v. Chambers, 473 F. 3d 724 (CA7 2007) (noting the useful
ness of empirical analysis from the Commission in deter
mining whether an unenumerated crime poses a risk of
violence). While we are not bound by the Sentencing
Commission’s conclusion, we view it as further evidence
that a crime like attempted burglary poses a risk of vio
lence similar to that presented by the completed offense.
C
James responds that it is not enough that attempted
burglary “ ‘generally’ ” or in “ ‘most cases’ ” will create a risk
of physical injury to others. Brief for Petitioner 32. Citing
the categorical approach we employed in Taylor, he argues
that we cannot treat attempted burglary as an ACCA
predicate offense unless all cases present such a risk.
James’ approach is supported by neither the statute’s text
nor this Court’s holding in Taylor.
One could, of course, imagine a situation in which at
tempted burglary might not pose a realistic risk of confron
tation or injury to anyone—for example, a break-in of an
unoccupied structure located far off the beaten path and
away from any potential intervenors. But ACCA does not
require metaphysical certainty. Rather, §924(e)(2)(B)(ii)’s
residual provision speaks in terms of a “potential risk.”
These are inherently probabilistic concepts.5 Indeed, the
——————
5 See, e.g., Black’s Law Dictionary 1188 (7th ed. 1999) (potential:
14 JAMES v. UNITED STATES

Opinion of the Court

combination of the two terms suggests that Congress in
tended to encompass possibilities even more contingent or
remote than a simple “risk,” much less a certainty. While
there may be some attempted burglaries that do not pre
sent a serious potential risk of physical injury to another,
the same is true of completed burglaries—which are explic
itly covered by the statutory language and provide a base
line against which to measure the degree of risk that a non-
enumerated offense must “otherwise” present in order to
qualify.
James’ argument also misapprehends Taylor’s categori
cal approach. We do not view that approach as requiring
that every conceivable factual offense covered by a statute
must necessarily present a serious potential risk of injury
before the offense can be deemed a violent felony. Cf.
Gonzales v. Duenas-Alvarez, 549 U. S. ___, ___ (2007) (slip
op., at 9) (“[T]o find that a state statute creates a crime
outside the generic definition of a listed crime in a federal
statute requires more than the application of legal imagi
nation to a state statute’s language. It requires a realistic
probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the
generic definition of a crime”).
Rather, the proper inquiry is whether the conduct en
compassed by the elements of the offense, in the ordinary
case, presents a serious potential risk of injury to another.
One can always hypothesize unusual cases in which even
a prototypically violent crime might not present a genuine
risk of injury—for example, an attempted murder where
the gun, unbeknownst to the shooter, had no bullets, see
——————
“[c]apable of coming into being; possible”); id., at 1328 (risk: “[t]he
chance of injury, damage or loss; danger or hazard”); Webster’s Third
New International Dictionary 1775 (1971) (potential: “existing in
possibility: having the capacity or a strong possibility for development
into a state of actuality”); id., at 1961 (risk: “the possibility of loss,
injury, disadvantage, or destruction”).
 Cite as: 550 U. S. ____ (2007) 15

Opinion of the Court

United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004).
Or, to take an example from the offenses specifically enu
merated in §924(e)(2)(B)(ii), one could imagine an extor
tion scheme where an anonymous blackmailer threatens
to release embarrassing personal information about the
victim unless he is mailed regular payments. In both
cases, the risk of physical injury to another approaches
zero. But that does not mean that the offenses of at
tempted murder or extortion are categorically nonviolent.
As long as an offense is of a type that, by its nature,
presents a serious potential risk of injury to another, it
satisfies the requirements of §924(e)(2)(B)(ii)’s residual
provision. Attempted burglary under Florida law—as
construed in Jones to require an overt act directed toward
entry of a structure—satisfies this test.
D
JUSTICE SCALIA’s dissent criticizes our approach on the
ground that it does not provide sufficient guidance for
lower courts required to decide whether unenumerated
offenses other than attempted burglary qualify as violent
felonies under ACCA. But the dissent’s alternative ap
proach has more serious disadvantages. Among other
things, that approach unnecessarily decides an important
question that the parties have not briefed (the meaning of
the term “extortion” in §924(e)(2)(B)(ii)), decides that
question in a way that is hardly free from doubt, and fails
to provide an interpretation of the residual provision that
furnishes clear guidance for future cases.
The dissent interprets the residual provision to require
at least as much risk as the least dangerous enumerated
offense. But the ordinary meaning of the language of the
residual clause does not impose such a requirement. What
the clause demands is “a serious potential risk of physical
injury to another.” While it may be reasonable to infer
that the risks presented by the enumerated offenses in
16 JAMES v. UNITED STATES

Opinion of the Court

volve a risk of this magnitude, it does not follow that an
offense that presents a lesser risk necessarily fails to
qualify. Nothing in the language of §924(e)(2)(B)(ii) rules
out the possibility that an offense may present “a serious
risk of physical injury to another” without presenting as
great a risk as any of the enumerated offenses.
Moreover, even if an unenumerated offense could not
qualify without presenting at least as much risk as the
least risky of the enumerated offenses, it would not be
necessary to identify the least risky of those offenses in
order to decide this case. Rather, it would be sufficient to
establish simply that the unenumerated offense presented
at least as much risk as one of the enumerated offenses.
Thus, JUSTICE SCALIA’s interpretation of the meaning of
the term “extortion” is unnecessary—and inadvisable.
The parties have not briefed this issue, and the proposed
interpretation is hardly beyond question. Instead of in
terpreting the meaning of the term “extortion” in accor
dance with its meaning at common law or in modern
federal and state statutes, see Taylor, 495 U. S., at 598, it
is suggested that we adopt an interpretation that seems to
be entirely novel and that greatly reduces the reach of
ACCA.
The stated reason for tackling this question is to provide
guidance for the lower courts in future cases—surely a
worthy objective. But in practical terms, the proposed
interpretation of the residual clause would not make it
much easier for the lower courts to decide whether other
unenumerated offenses qualify. Without hard statistics—
and no such statistics have been called to our attention—
how is a lower court to determine whether the risk posed
by generic burglary is greater or less than the risk posed
by an entirely unrelated unenumerated offense—say,
escape from prison? 6
——————
6 While ACCA requires judges to make sometimes difficult evalua
 Cite as: 550 U. S. ____ (2007) 17

Opinion of the Court

In the end, JUSTICE SCALIA’s analysis of this case turns
on the same question as ours—i.e., the comparative risks
presented by burglary and attempted burglary. The risk
of physical injury in both cases occurs when there is a
confrontation between the criminal and another person,
whether an occupant of the structure, a law enforcement
officer or security guard, or someone else. It is argued
that when such an encounter occurs during a consum
mated burglary (i.e., after entry), the risk is greater than
it is when the encounter occurs during an attempted
burglary (i.e., before entry is effected), and that may be
true. But this argument fails to come to grips with the
fact that such encounters may occur much more frequently
during attempted burglaries because it is precisely due to
such encounters that many planned burglaries do not
progress beyond the attempt stage. JUSTICE SCALIA dis
misses the danger involved when an encounter occur
during attempted burglaries, stating that such encounters
——————
tions of the risks posed by different offenses, we are not persuaded by
JUSTICE SCALIA’s suggestion—which was not pressed by James or his
amici—that the residual provision is unconstitutionally vague. See
post, at 17. The statutory requirement that an unenumerated crime
“otherwise involv[e] conduct that presents a serious potential risk of
physical injury to another” is not so indefinite as to prevent an ordinary
person from understanding what conduct it prohibits. See Kolender v.
Lawson, 461 U. S. 352, 357 (1983). Similar formulations have been
used in other federal and state criminal statutes. See, e.g., 18 U. S. C.
§2332b(a)(1)(B) (defining “terrorist act” as conduct that, among other
things, “creates a substantial risk of serious bodily injury to any other
person”); Ariz. Rev. Stat. Ann. §13–2508(A)(2) (West 2001) (offense of
resisting arrest requires preventing an officer from effectuating an
arrest by “any . . . means creating a substantial risk of causing physical
injury to the peace officer or another”); Cal. Health & Safety Code Ann.
§42400.3(b) (West 2006) (criminalizing air pollution that “results in any
unreasonable risk of great bodily injury to, or death of, any person”);
N. Y. Penal Law Ann. §490.47 (West Supp. 2007) (“[c]riminal use of a
chemical weapon or biological weapon” requires “a grave risk of death
or serious physical injury to another person not a participant in the
crime”).
18 JAMES v. UNITED STATES

Opinion of the Court

are “likely to consist of nothing more than the occupant’s
yelling, ‘Who’s there?’ from his window, and the burglar’s
running away.” Post, at 13. But there are many other
possible scenarios. An armed would-be burglar may be
spotted by a police officer, a private security guard, or a
participant in a neighborhood watch program. Or a home
owner angered by the sort of conduct recited in James’
presentence report—throwing a hammer through a win
dow—may give chase, and a violent encounter may ensue.
For these reasons and the reasons discussed above, we are
convinced that the offense of attempted burglary, as de
fined by Florida law, qualifies under ACCA’s residual
clause.
IV
Although the question on which this Court granted
certiorari focused on the attempt prong of Florida’s at
tempted burglary law, James also argues that the scope of
the State’s underlying burglary statute itself precludes
treating attempted burglary as a violent felony for ACCA
purposes. Specifically, he argues that Florida’s burglary
statute differs from “generic” burglary as defined in Tay
lor, supra, at 598, because it defines a “ ‘[d]welling’ ” to
include not only the structure itself, but also the “curtilage
thereof,”7 Fla. Stat. §810.011(2) (1993).
We agree that the inclusion of curtilage takes Florida’s
underlying offense of burglary outside the definition of
“generic burglary” set forth in Taylor, which requires an
unlawful entry into, or remaining in, “a building or other
structure.” 495 U. S., at 598 (emphasis added). But that
——————
7 Burglary under Florida law differs from “generic” burglary in a sec

ond respect: It extends not just to entries of structures, but also of
“conveyance[s].” Fla. Stat. §810.02(1). But because James (in accor
dance with what appears to be the general practice in Florida) was
specifically charged with and convicted of “attempted burglary of a
dwelling,” we need not examine this point further.
 Cite as: 550 U. S. ____ (2007) 19

Opinion of the Court

conclusion is not dispositive, because the Government does
not argue that James’ conviction for attempted burglary
constitutes “burglary” under §924(e)(2)(B)(ii). Rather, it
relies on the residual provision of that clause, which—as
the Court has recognized—can cover conduct that is out
side the strict definition of, but nevertheless similar to,
generic burglary. Id., at 600, n. 9.
Is the risk posed by an attempted entry of the curtilage
comparable to that posed by the attempted entry of a
structure (which, as we concluded above, is sufficient to
qualify under the residual provision)? We must again
turn to state law in order to answer this question.
The Florida Supreme Court has construed curtilage
narrowly, requiring “some form of an enclosure in order
for the area surrounding a residence to be considered part
of the ‘curtilage’ as referred to in the burglary statute.”
State v. Hamilton, 660 So. 2d 1038, 1044 (1995) (holding
that a yard surrounded by trees was not “curtilage”); see
also United States v. Matthews, 466 F. 3d 1271, 1274
(CA11 2006) (“Florida case law construes curtilage nar
rowly, to include only an enclosed area surrounding a
structure”). Given this narrow definition, we do not be
lieve that the inclusion of curtilage so mitigates the risk
presented by attempted burglary as to take the offense
outside the scope of clause (ii)’s residual provision.
A typical reason for enclosing the curtilage adjacent to a
structure is to keep out unwanted visitors—especially
those with criminal motives. And a burglar who illegally
attempts to enter the enclosed area surrounding a dwell
ing creates much the same risk of physical confrontation
with a property owner, law enforcement official, or other
third party as does one who attempts to enter the struc
ture itself. In light of Florida’s narrow definition of curti
lage, attempted burglary of the curtilage requires both
physical proximity to the structure and an overt act di
rected toward breaching the enclosure. Such an attempt
20 JAMES v. UNITED STATES

Opinion of the Court

“presents a serious potential risk that violence will ensue
and someone will be injured.” Id., at 1275 (holding that
burglary of the curtilage is a violent felony under ACCA’s
residual provision).
V
Finally, James argues that construing attempted bur
glary as a violent felony raises Sixth Amendment issues
under Apprendi v. New Jersey, 530 U. S. 466 (2000), and
its progeny because it is based on “judicial fact finding”
about the risk presented by “the acts that underlie ‘most’
convictions for attempted burglary.” Brief for Petitioner
34, 35. This argument is without merit.
In determining whether attempted burglary under Flor
ida law qualifies as a violent felony under §924(e)(2)(B)(ii),
the Court is engaging in statutory interpretation, not judi
cial factfinding. Indeed, by applying Taylor’s categorical
approach, we have avoided any inquiry into the underlying
facts of James’ particular offense, and have looked solely to
the elements of attempted burglary as defined by Florida
law. Such analysis raises no Sixth Amendment issue.8
* * *
For these reasons, the judgment of the Court of Appeals
for the Eleventh Circuit is affirmed.
It is so ordered.

——————
8 To the extent that James contends that the simple fact of his prior

conviction was required to be found by a jury, his position is baseless.
James admitted the fact of his prior conviction in his guilty plea, and in
any case, we have held that prior convictions need not be treated as an
element of the offense for Sixth Amendment purposes. Almendarez-
Torres v. United States, 523 U. S. 224 (1998).
 Cite as: 550 U. S. ____ (2007) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–9264
_________________

ALPHONSO JAMES, JR., PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 18, 2007]

JUSTICE SCALIA, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, dissenting.
I disagree with the Court’s basic approach in this case,
and must therefore lay out my own.
I
As the Court acknowledges, ante, at 3, the only way
attempted burglary can qualify as a violent felony under
the Armed Career Criminal Act (ACCA) is by falling
within the “residual provision” of clause (ii)—that is, if it
is a crime that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18
U. S. C. §924(e)(2)(B)(ii). This was the basis for the Elev
enth Circuit’s decision. (“We . . . hold that an attempt to
commit burglary . . . presents the potential risk of physical
injury to another sufficient to satisfy the ACCA’s defini
tion of a ‘violent felony,’ ” 430 F. 3d 1150, 1157 (2005)), and
it is the center of the parties’ dispute before this Court.
The problem with the Court’s approach to determining
which crimes fit within the residual provision is that it is
almost entirely ad hoc. This crime, the Court says, does
“involv[e] conduct that presents a serious potential risk of
physical injury to another.” That gets this case off our
docket, sure enough. But it utterly fails to do what this
Court is supposed to do: provide guidance concrete enough
2 JAMES v. UNITED STATES

SCALIA, J., dissenting

to ensure that the ACCA residual provision will be applied
with an acceptable degree of consistency by the hundreds
of district judges that impose sentences every day. The
one guideline the Court does suggest is that the sentencer
should compare the unenumerated offense at issue with
the “closest analog” among the four offenses that are set
forth (burglary, arson, extortion, and crimes involving the
use of explosives), and should include the unenumerated
offense within ACCA if the risk it poses is “comparable.”
Ante, at 9. The principal attraction of this test, I suspect,
is that it makes it relatively easy to decide the present
case (though, as I shall subsequently discuss, I think the
Court reaches the wrong conclusion as to whether at
tempted burglary poses a comparable risk). Assuming
that “comparable” means “about the same,” the Court’s
test does provide some guidance where the most closely
analogous offense is clear (as here) and the risk is compa
rable. But what if, as will very often be the case, it is not
at all obvious which of the four enumerated offenses is the
closest analog—or if (to tell the truth) none of them is
analogous at all? Is, for example, driving under the influ
ence of alcohol more analogous to burglary, arson, extor
tion, or a crime involving use of explosives? And if an
analog is identified, what is to be done if the offense at
issue does not present a comparable risk? The Court
declines to say, but it seems inconceivable that it means
the offense to be excluded from ACCA for that reason. For
example, it does not comport with any conceivable con
gressional intent to disqualify an unenumerated crime
that is most analogous to arson and presents nowhere
near the risk of injury posed by arson, but presents a far
greater risk of injury than burglary, which Congress has
explicitly included. Thus, for what is probably the vast
majority of cases, today’s opinion provides no guidance
whatever, leaving the lower courts to their own devices in
deciding, crime-by-crime, which conviction “involves con
 Cite as: 550 U. S. ____ (2007) 3

SCALIA, J., dissenting

duct that presents a serious potential risk of physical
injury to another.” It will take decades, and dozens of
grants of certiorari, to allocate all the Nation’s crimes to
one or the other side of this entirely reasonable and en
tirely indeterminate line. Compare ante, at 10 (concluding
that attempted burglary poses sufficient risk), with Leocal
v. Ashcroft, 543 U. S. 1 (2004) (concluding that driving
under the influence of alcohol does not pose a “substantial
risk that physical force against the person or property of
another may be used,” 18 U. S. C. §16(b)).
Imprecision and indeterminacy are particularly inap
propriate in the application of a criminal statute. Years of
prison hinge on the scope of ACCA’s residual provision, yet
its boundaries are ill defined. If we are not going to deny
effect to this statute as being impermissibly vague, see
Part III, infra, we have the responsibility to derive from
the text rules of application that will provide notice of
what is covered and prevent arbitrary or discriminatory
sentencing. See Kolender v. Lawson, 461 U. S. 352, 357
(1983). Offenders should be on notice that a particular
course of conduct will result in a mandatory minimum
prison term of 15 years. The Court prefers to keep them
guessing.
II
The residual provision of clause (ii) of ACCA’s definition
of violent felony—the clause that sweeps within ACCA’s
ambit any crime that “otherwise involves conduct that
presents a serious potential risk of physical injury to
another”—is, to put it mildly, not a model of clarity. I do
not pretend to have an all-encompassing solution that
provides for crystal-clear application of the statute in all
contexts. But we can do much better than today’s opinion
with what Congress has given us.
4 JAMES v. UNITED STATES

SCALIA, J., dissenting

A
The Eleventh Circuit properly sought to resolve this
case by employing the “categorical approach” of looking
only to the statutory elements of attempted burglary. See
430 F. 3d, at 1154, 1156–1157. This “generally prohibits
the later court from delving into particular facts disclosed
by the record of conviction, thus leaving the court nor
mally to ‘look only to the fact of conviction and the statu
tory definition of the prior offense.’ ” Shepard v. United
States, 544 U. S. 13, 17 (2005) (quoting Taylor v. United
States, 495 U. S. 575, 602 (1990)). As the Court does, ante,
at 8, I would also begin with this approach.
The Government would have us provide some cer
tainty—at least enough to decide the present case—by
holding that the attempt to commit a crime of violence
should be treated the same as the completed crime. It
points out that various federal laws, and many state laws,
punish attempt with the same sanction as the completed
crime. See Brief for United States 18–20. This would be
persuasive if punishment were meted out solely on the
basis of the risk of physical injury that a crime presents.
It seems to me, however, that similar punishment does not
necessarily imply similar risk; it more likely represents a
judgment that the two crimes display a similar degree of
depravity deserving of punishment or needful of deter
rence. A person guilty of attempted burglary may not
have placed anyone at physical risk, but he was just as
willing to do so as the successful burglar. It seems to me
impossible to say that equivalence of punishment suggests
equivalence of imposed risk. I therefore look elsewhere for
some clarification of the statutory text.
First to invite analysis is the word Congress placed at
the forefront of the residual provision: “otherwise.” When
used as an adverb (as it is in §924(e)(2)(B)(ii), modifying
the verb “involves”), “otherwise” is defined as “[i]n a differ
ent manner” or “in another way.” Webster’s New Interna
 Cite as: 550 U. S. ____ (2007) 5

SCALIA, J., dissenting

tional Dictionary 1729 (2d ed. 1954). Thus, the most
natural reading of the statute is that committing one of
the enumerated crimes (burglary, arson, extortion, or
crimes involving explosives) is one way to commit a crime
“involv[ing] conduct that presents a serious potential risk
of physical injury to another”; and that other ways of
committing a crime of that character similarly constitute
“violent felon[ies].” In other words, the enumerated
crimes are examples of what Congress had in mind under
the residual provision, and the residual provision should
be interpreted with those examples in mind. This com
monsense principle of construction is sometimes referred
to as the canon of ejusdem generis: “[W]hen a general word
or phrase follows a list of specific persons or things, the
general word or phrase will be interpreted to include only
persons or things of the same type as those listed.” Black’s
Law Dictionary 535 (7th ed. 1999) (Black’s) see, e.g.,
Washington State Dept. of Social and Health Servs. v.
Guardianship Estate of Keffeler, 537 U. S. 371, 384–385
(2003). In this case, the application of that principle
suggests that what the residual provision means by the
general phrase “conduct that presents a serious potential
risk of physical injury to another” is conduct that resem
bles, insofar as the degree of such risk is concerned, the
previously enumerated crimes.1
In another context, I might conclude that any degree of
risk that is merely similar, even if slightly less, would
qualify. Obviously, such an interpretation would leave a
——————
1 The Court imprecisely identifies the common characteristic of the
enumerated offenses, and therefore the defining characteristic of the
residual provision, as crimes that “create significant risks of bodily
injury or confrontation that might result in bodily injury.” Ante, at 5
(emphasis added). Of course, adding the word “confrontation” is a
convenient way of shoehorning attempted burglary into the ambit of
the residual provision, but it is an invention entirely divorced from the
statutory text.
6 JAMES v. UNITED STATES

SCALIA, J., dissenting

good deal of ambiguity on the downside: How low on the
risk scale can one go before the risk becomes too dissimilar
from the enumerated crimes? Since the text sets forth no
criterion, courts might vary dramatically in their answer.
Cf. Leocal, 543 U. S. 1 (reversing the Eleventh Circuit’s
determination that driving under the influence of alcohol
qualifies as a crime of violence under 18 U. S. C. §16).
Where it is reasonably avoidable, such indeterminateness
is unacceptable in the context of criminal sanctions. The
rule of lenity, grounded in part on the need to give “ ‘fair
warning’ ” of what is encompassed by a criminal statute,
United States v. Bass, 404 U. S. 336, 348 (1971) (quoting
McBoyle v. United States, 283 U. S. 25, 27 (1931)), de
mands that we give this text the more narrow reading of
which it is susceptible. The requirement that the degree
of risk be similar to that for the enumerated crimes means
that it be no lesser than the risk posed by the least dan
gerous of those enumerated crimes.
B
I would turn, then, to the next logical question: Which of
the four enumerated crimes—burglary, arson, extortion, or
crimes involving use of explosives—poses the least “seri
ous potential risk of physical injury to another”? The two
that involve use of fire or explosives cannot possibly qual
ify. Thus, the question I must address is whether bur
glary or extortion poses a lesser risk. To do so, I must first
define those crimes.
In Taylor, we defined “burglary” as used in the very
provision of ACCA at issue here. We first determined that
“ ‘burglary’ in §924(e) must have some uniform definition
independent of the labels employed by the various States’
criminal codes.” 495 U. S., at 592. We considered but
rejected the common-law definition, finding that “the
contemporary understanding of ‘burglary’ has diverged a
long way from its common-law roots.” Id., at 593. Ulti
 Cite as: 550 U. S. ____ (2007) 7

SCALIA, J., dissenting

mately, we concluded that “Congress meant by ‘burglary’
the generic sense in which the term is now used in the
criminal codes of most States.” Id., at 598. To determine
that sense, we looked for guidance to W. LaFave & A.
Scott, Substantive Criminal Law (1986) and the American
Law Institute’s Model Penal Code (1980). We defined
“burglary” as “any crime, regardless of its exact definition
or label, having the basic elements of unlawful or unprivi
leged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Taylor, supra, at 599.
In defining “extortion” for purposes of ACCA, I would
follow the same approach. “At common law, extortion was
a property offense committed by a public official who took
‘any money or thing of value’ that was not due to him
under the pretense that he was entitled to such property
by virtue of his office.” Scheidler v. National Organization
for Women, Inc., 537 U. S. 393, 402 (2003) (quoting 4 W.
Blackstone, Commentaries on the Laws of England 141
(1769), and citing 3 R. Anderson, Wharton’s Criminal Law
and Procedure §1393, pp. 790–791 (1957)); see also 3 W.
LaFave, Substantive Criminal Law §20.4 (2d ed. 2003).
As with burglary, however, modern conceptions of extor
tion have gone well beyond the common-law understand
ing. In the Hobbs Act, for example, Congress “explicitly
‘expanded the common-law definition of extortion to in
clude acts by private individuals.’ ” Scheidler, supra, at
402 (quoting Evans v. United States, 504 U. S. 255, 261
(1992)). And whereas the Hobbs Act retained the com
mon-law requirement that something of value actually be
acquired by the extortionist, Scheidler, supra, at 404–405,
the majority of state statutes require only “that the defen
dant make a threat with intent thereby to acquire the
victim’s property,” 3 LaFave, Substantive Criminal Law
§20.4(a)(1), at 199 (emphasis added). Further, under most
state statutes, the category of qualifying threats has ex
panded dramatically, to include threats to: “kill the victim
8 JAMES v. UNITED STATES

SCALIA, J., dissenting

in the future,” “cause economic harm,” “ ‘bring about or
continue a strike, boycott or other collective unofficial
action,’ ” “unlawfully detain,” “accuse the victim of a
crime,” “expose some disgraceful defect or secret of the
victim which, when known, would subject him to public
ridicule or disgrace,” and “impair one’s credit or business
repute.” Id., §20.4(a)(4), at 200, 201.
The Model Penal Code’s definition of “Theft by Extor
tion” reflects this expansive modern notion of the crime:
“A person is guilty of theft [by extortion] if he pur
posely obtains property of another by threatening to:
“(1) inflict bodily injury on anyone or commit any
other criminal offense; or
“(2) accuse anyone of a criminal offense; or
“(3) expose any secret tending to subject any person
to hatred, contempt or ridicule, or to impair his credit
or business repute; or
“(4) take or withhold action as an official, or cause
an official to take or withhold action; or
“(5) bring about or continue a strike, boycott or
other collective unofficial action, if the property is not
demanded or received for the benefit of the group in
whose interest the actor purports to act; or
“(6) testify or provide information or withhold tes
timony or information with respect to another’s legal
claim or defense; or
“(7) inflict any other harm which would not benefit
the actor.” §223.4.
Other federal statutes, including the Hobbs Act, 18
U. S. C. §1951, the Travel Act, §1952 (2000 ed. and Supp.
IV), and the Racketeer Influenced and Corrupt Organiza
tions Act (RICO), §1961 et seq., use a similarly broad
conception of extortion. See United States v. Nardello, 393
U. S. 286 (1969) (Travel Act); Scheidler, supra (Hobbs Act
 Cite as: 550 U. S. ____ (2007) 9

SCALIA, J., dissenting

and RICO).2
The word “extortion” in ACCA’s definition of “violent
felony” cannot, however, incorporate the full panoply of
threats that would qualify under the Model Penal Code,
many of which are inherently nonviolent. I arrive at this
conclusion for two reasons: First, another canon of statu
tory construction, noscitur a sociis, which counsels that
“the meaning of an unclear word or phrase should be
determined by the words immediately surrounding it.”
Black’s 1084; see Keffeler, 537 U. S., at 384–385. Of
course noscitur a sociis is just an erudite (or some would
say antiquated) way of saying what common sense tells us
to be true: “[A] word is known by the company it keeps,”
Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)—
that is to say, which of various possible meanings a word
should be given must be determined in a manner that
makes it “fit” with the words with which it is closely asso
ciated. The words immediately surrounding “extortion” in
§924(e)(2)(B)(ii) are “burglary,” “arson,” and crimes “in
volv[ing] use of explosives.” The Model Penal Code’s
sweeping definition of extortion would sit uncomfortably
indeed amidst this list of crimes which, as the “otherwise”
residual provision makes plain, are characterized by their
potential for violence and their risk of physical harm to
others. ACCA’s usage of “extortion” differs from the con
——————
2 The Hobbs Act contains its own definition of extortion: “the obtain

ing of property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color of official
right.” 18 U. S. C. §1951(b)(2). In Nardello and Scheidler—where we
were required to define generic extortion for purposes of the Travel Act
and RICO, both of which leave the term undefined—we defined it as
“obtaining something of value from another with his consent induced by
the wrongful use of force, fear, or threats.” Scheidler, 537 U. S., at 409
(internal quotation marks omitted); see also Nardello, 393 U. S., at 290,
296 (agreeing with the Government that extortion means “obtaining
something of value from another with his consent induced by the
wrongful use of force, fear, or threats”).
10 JAMES v. UNITED STATES

SCALIA, J., dissenting

text in which the word appears in the Travel Act, where it
is one of a list of crimes “often used by organized crime to
collect . . . revenue,” Nardello, supra, at 291, n. 8, includ
ing bribery. And it differs from the context in which “ex
tortion” appears in RICO, where it is part of a laundry list
of nearly every federal crime under the sun. See 18
U. S. C. §1961(1) (2000 ed., Supp. IV).3
What is suggested by the canon is reinforced by the fact
that both the original common-law notion of extortion, and
the full expanse of the modern definition, include crimes
so inherently unlikely to cause physical harm that it would
set the bar of the residual provision at a level that could
embrace virtually any offense—making the limitation to
“serious potential risk of physical injury to another” ut
terly incomprehensible.4 See Part III, infra. I therefore
——————
3 Two Courts of Appeals have also demonstrated the conundrum
posed by Congress’s inclusion of extortion in ACCA’s list of enumerated
violent felonies. See United States v. DeLuca, 17 F. 3d 6, 8 (CA1 1994)
(“The linchpin of [appellant’s] theory is the suggestion that all extor
tions are not equal. . . . [W]e give appellant high marks for ingenuity”);
United States v. Anderson, 989 F. 2d 310, 312 (CA9 1993) (Kozinski, J.)
(“Determin[ing] whether a crime [is a violent felony] . . . is not, with
regard to ‘extortion,’ an easy matter. In Taylor, the Court focused on
the interstate consensus on the definition of ‘burglary,’ . . . but there’s
no such consensus on extortion. . . . It’s impossible to know which
definition the legislators who voted for [ACCA] had in mind. Quite
likely most of them weren’t thinking of any particular definition at
all”). These Courts ultimately decided to use different definitions of
extortion. See DeLuca, supra, at 9 (deciding on the Model Penal Code
approach); Anderson, supra, at 313 (deciding on the Hobbs Act
definition).
4 The Court explains, for example, that modern extortion could in

clude “an anonymous blackmailer threaten[ing] to release embarrass
ing personal information about the victim unless he is mailed regular
payments,” a crime involving a “risk of physical injury to another
approach[ing] zero.” Ante, at 15. Thus, were the complete modern
notion of extortion adopted, it is clear that extortion would be the least
risky of the four enumerated crimes. That would mean that any crime
posing at least as much risk of physical injury as extortion would
 Cite as: 550 U. S. ____ (2007) 11

SCALIA, J., dissenting

assume that extortion under ACCA is: the obtaining of
something of value from another, with his consent, in
duced by the wrongful use or threatened use of force
against the person or property of another. Cf. Leocal, 543
U. S., at 13 (discussing the relationship between the “use
of force against the person or property of another” and
“crime[s] of violence under 18 U. S. C. §16”).
One final consideration is worthy of mention. I must
make sure that my restricted definition of generic extor
tion does not render the inclusion of extortion in
§924(e)(2)(B)(ii) superfluous in light of §924(e)(2)(B)(i). “It
is our duty to give effect, if possible, to every clause and
word of a statute.” Duncan v. Walker, 533 U. S. 167, 174
(2001) (internal quotation marks omitted). Clause (i)
already includes in ACCA’s definition of “violent felony”
any crime that “has as an element the use, attempted use,
or threatened use of physical force against the person of
another.” My narrow definition of extortion passes the
surplusage test only if it includes crimes that would not be
covered by this provision. That is not a problem, since my
definition includes the use or threatened use of force
against property, whereas clause (i) is limited to force
against the person. Thus, the obtaining of someone else’s
money by threatening to wreck his place of business would
fit within clause (ii) but not within clause (i).
Having defined burglary and extortion, I return to the
question that launched this investigation in the first place:

——————

qualify under the ACCA residual provision. But virtually any crime

could qualify, so that courts would have the power to subject almost

any repeat offender to ACCA’s 15-year mandatory minimum. Indeed,

this seems to be the reality of what is taking place in the lower courts.

See, e.g., United States v. Johnson, 417 F. 3d 990 (CA8 2005) (operating

a dump truck without consent of the owner is a violent felony under

ACCA); United States v. Springfield, 196 F. 3d 1180 (CA10 1999)

(“walkaway” escape from prison honor camp is a violent felony under

ACCA).

12 JAMES v. UNITED STATES

SCALIA, J., dissenting

Which of the two poses the least “serious potential risk of
physical injury to another”? Recall the definitions: bur
glary is the “unlawful or unprivileged entry into, or re
maining in, a building or structure, with intent to commit
a crime”; extortion is “the obtaining of something of value
from another, with his consent, induced by the wrongful
use or threatened use of force against the person or prop
erty of another.” Every victim of extortion is the object of
a threat, to his person or his property; if he ignores that
threat, or resists it by seeking to protect his property, he
may be harmed. Burglary, on the other hand, involves
only the possibility that a confrontation will take place
while the crime is underway; the risk of physical harm can
become a reality only if the property owner happens to be
present, a situation which the burglar ordinarily seeks to
avoid. The extortionist, moreover, has already expressed
his willingness to commit a violent act; the burglar may be
prepared to flee at the first sign of human presence. I
think it obvious that burglary is less inherently risky than
extortion, and thus the least inherently risky of the four
crimes enumerated in §924(e)(2)(B)(ii).
C
Having concluded in Part II–A that a crime may qualify
under ACCA’s violent felony residual provision only if it
poses at least as much risk of physical injury to another as
the least risky of the enumerated crimes; and in Part II–B
that the least risky of the enumerated crimes is burglary; I
am finally able to turn to the ultimate question posed by
this case: Does attempted burglary categorically qualify as
a violent felony under ACCA’s residual provision? Or as
my analysis has recast that question, does attempted
burglary categorically involve conduct that poses at least
as much risk of physical injury to another as completed
burglary? Contrary to what the Court says, ante, at 9–13,
the answer must be no.
 Cite as: 550 U. S. ____ (2007) 13

SCALIA, J., dissenting

In Taylor, we discussed the risks posed by the conduct
involved in a completed burglary. We found it significant
that a burglary involves “invasion of victims’ homes or
workplaces,” 495 U. S., at 581 (internal quotation marks
and brackets omitted), and we dwelled on such an inva
sion’s “inherent potential for harm to persons,” id., at 588.
In comparing attempted burglary to completed burglary,
the Court focuses almost exclusively on “the possibility of
a face-to-face confrontation between the burglar and a
third party.” Ante, at 9. But it ignores numerous other
factors that make a completed burglary far more danger
ous than a failed one: the closer proximity between bur
glar and victim where a confrontation takes place inside
the confined space of the victim’s home; the greater likeli
hood of the victim’s initiating violence inside his home to
protect his family and property; the greater likelihood that
any confrontation inside the home will be between the
burglar and the occupant of the home, rather than the
police. The so-called “confrontation” the Court envisions
between a would-be burglar and a third party while the
burglar is still outside the home is likely to consist of
nothing more than the occupant’s yelling “Who’s there?”
from his window, and the burglar’s running away. It is
simply not the case, as the Court apparently believes, that
would-be home entries are often reduced to attempted
home entries by physical confrontation between home
owner and criminal while the latter is still outside the
house. (One must envision a householder throwing open
his front door, shotgun in hand, just as the would-be bur
glar is trying to pick the lock.)
As we have previously stated, it is “[t]he fact that an
offender enters a building to commit a crime [that] creates
the possibility of a violent confrontation between the
offender and an occupant, caretaker, or some other person
who comes to investigate.” Taylor, supra, at 588 (empha
sis added); see also Leocal, supra, at 10 (“[B]urglary, by its
14 JAMES v. UNITED STATES

SCALIA, J., dissenting

nature, involves a substantial risk that the burglar will
use force against a victim in completing the crime” (em
phasis added)). By definition, a perpetrator who has been
convicted only of attempted burglary has failed to make it
inside the home or workplace. (Indeed, a criminal con
victed only of attempted burglary almost certainly injured
no one; otherwise, he would have been convicted of some
thing far more serious, such as assault or murder.) Thus,
the full extent of the risk that burglary poses—the entry
into the home that makes burglary such a threat to the
physical safety of its victim—is necessarily absent in
attempted burglary, however “attempt” is defined.
Because attempted burglary categorically poses a less
“serious potential risk of physical injury to another” than
burglary, the least risky of ACCA’s enumerated crimes, I
would hold that it cannot be a predicate “violent felony”
for purposes of ACCA’s mandatory minimum sentencing
enhancement, §924(e) (2000 ed. and Supp. IV), regardless
of how close a State’s attempt statute requires the perpe
trator come to completing the underlying offense.5
D
The Court observes, with undoubted accuracy, that my
approach is not perfect. It leaves it to courts to decide,
“[w]ithout hard statistics” to guide them, ante, at 16, the
degree of risk of physical injury posed by various crimes.
But this is an imponderable that cannot be avoided when
dealing with a statute that turns upon “a serious potential
risk of physical injury to another.” It inheres in the
Court’s puny solution as well (how does the Court know
——————
5 There is no need to apply the modified categorical approach in this

case. Under that approach, the most the Government could achieve
would be to narrow the type of Florida burglary underlying James’s
conviction so that it falls within generic ACCA burglary. As I discussed
above, however, even the attempt to commit a generic ACCA burglary
could not qualify as a violent felony under ACCA. Thus, there is no
need to remand; the Eleventh Circuit should simply be reversed.
 Cite as: 550 U. S. ____ (2007) 15

SCALIA, J., dissenting

that attempted burglary poses the same risk as burglary?).
What this dissent must establish is not that my solution is
perfect, but that it is substantially better than what the
Court proposes. And there is little doubt of that. For in
addition to leaving up in the air for judicial determination
how much risk of physical injury each crime presents, the
Court’s uninformative opinion leaves open, to be guessed
at by lower courts and by those subjected to this law: (1)
whether the degree of risk covered by the residual provi
sion is limited by the degrees of risk presented by the
enumerated crimes;6 (2) if so, whether extortion is to be
given its broadest meaning, which would embrace crimes
with virtually no risk of physical injury; and most impor
tantly (3) where in the world to set the minimum risk of
physical injury that will qualify. This indeed leaves the
lower courts and those subject to this law to sail upon a
virtual sea of doubt. The only thing the Court decides
(and that, in my view, erroneously) is that attempted
burglary poses the same risk of physical injury as bur
glary, and hence is covered without the need to address
these other bothersome questions (how wonderfully
convenient!).
It is only the Court’s decision-averse solution that en
ables it to accuse me of “unnecessarily decid[ing]” the
meaning of extortion, ante, at 15. The Court accurately,
but quite irrelevantly, asserts the following:
“[E]ven if an unenumerated offense could not qualify
without presenting at least as much risk as the least
——————
6 The Court plays with this question, but does not resolve it, merely
stating that there is a “possibility that an offense may present ‘a
serious risk of physical injury to another’ without presenting as great a
risk as any of the enumerated offenses.” Ante, at 16. Of course, in light
of its ultimate conclusion regarding attempted burglary, the Court
could not resolve this question without being guilty of what it accuses
me of: “unnecessarily decid[ing] an important question,” ante, at 15;
any pronouncement on this point would be pure dictum.
16 JAMES v. UNITED STATES

SCALIA, J., dissenting

risky of the enumerated offenses, it would not be nec
essary to identify the least risky of those offenses in
order to decide this case. Rather, it would be suffi
cient to establish simply that the unenumerated of
fense presented at least as much risk as one of the
enumerated offenses.” Ante, at 16 (emphasis added).
That is true enough, and I would be properly criticized for
reaching an unnecessary question if, like the Court, I
found attempted burglary to be as risky as burglary.
Since I do not, however, it is unavoidable that I determine
the meaning of extortion, in order to decide whether at
tempted burglary is less risky than that. The Court’s
criticism amounts to nothing more than a procedural
quibble: Instead of deciding, as I have, (1) that arson and
the use of explosives are the most risky of the enumerated
crimes; (2) that as between burglary and extortion, bur
glary is the less risky (a determination requiring me to
decide the meaning of extortion); and finally (3) that at
tempted burglary is less risky than burglary, I should
have decided (1) that attempted burglary is less risky than
arson, the use of explosives, and burglary; and only then
(2) that attempted burglary is less risky than extortion (a
determination requiring me to decide the meaning of
extortion). Perhaps so, but it is surely a distinction with
out a real-world difference. Under either approach, de
termining the meaning of extortion is unquestionably
necessary.
III
Congress passed ACCA to enhance punishment for gun-
wielding offenders who have, inter alia, previously com
mitted crimes that pose a “serious potential risk of physi
cal injury to another.” Congress provided examples of
crimes that meet this eminently reasonable but entirely
abstract condition. Unfortunately, however, the four
examples have little in common, most especially with
 Cite as: 550 U. S. ____ (2007) 17

SCALIA, J., dissenting

respect to the level of risk of physical injury they pose.
Such shoddy draftsmanship puts courts to a difficult
choice: They can (1) apply the ACCA enhancement to
virtually all predicate offenses, see n. 4, supra; (2) apply it
case-by-case in its pristine abstraction, finding it applica
ble whenever the particular sentencing judge (or the par
ticular reviewing panel) believes there is a “serious poten
tial risk of physical injury to another” (whatever that
means); (3) try to figure out a coherent way of interpreting
the statute so that it applies in a relatively predictable
and administrable fashion to a smaller subset of crimes; or
(4) recognize the statute for the drafting failure it is and
hold it void for vagueness, see Kolender, 461 U. S., at 357;
Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939).
I would choose either the third option (which I have
tried to implement) or the fourth, since I believe the first
two to be impermissible. If Congress wanted the first—
subjecting all repeat offenders to a 15-year mandatory
minimum prison term—it could very easily have crafted a
statute which said that. ACCA, with its tedious definition
of “violent felony,” was obviously not meant to have such
an effect. The second option (the one chosen by the Court
today)—essentially leaving it to the courts to apply the
vague language in a manner that is ex ante (if not at the
end of the day) highly unpredictable—violates, in my view,
the constitutional prohibition against vague criminal
laws.7 Congress has simply abdicated its responsibility
——————
7 The Court contends that the provision at issue here, even when left

entirely unexplained (as today’s opinion skillfully accomplishes) cannot
be unconstitutionally vague, because “[s]imilar formulations have been
used in other federal and state criminal statutes.” Ante, at 17, n. 6.
None of the provisions the Court cites, however, is similar in the crucial
relevant respect: None prefaces its judicially-to-be-determined re
quirement of risk of physical injury with the word “otherwise,” preceded
by four confusing examples that have little in common with respect to
the supposedly defining characteristic. The phrase “shades of red,”
standing alone, does not generate confusion or unpredictability; but the
18 JAMES v. UNITED STATES

SCALIA, J., dissenting

when it passes a criminal statute insusceptible of an
interpretation that enables principled, predictable applica
tion; and this Court has abdicated its responsibility when
it allows that. Today’s opinion permits an unintelligible
criminal statute to survive uncorrected, unguided, and
unexplained. I respectfully dissent.

——————

phrase “fire-engine red, light pink, maroon, navy blue, or colors that

otherwise involve shades of red” assuredly does so.

 Cite as: 550 U. S. ____ (2007) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–9264
_________________

ALPHONSO JAMES, JR., PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 18, 2007]

JUSTICE THOMAS, dissenting.
For the reasons set forth in my opinion concurring in
part and concurring in the judgment in Shepard v. United
States, 544 U. S. 13, 27 (2005), I believe that “[t]he consti
tutional infirmity of §924(e)(1) as applied to [James]
makes today’s decision an unnecessary exercise.” Ap
prendi v. New Jersey, 530 U. S. 466 (2000), and its progeny
prohibit judges from “mak[ing] a finding that raises [a
defendant’s] sentence beyond the sentence that could have
lawfully been imposed by reference to facts found by the
jury or admitted by the defendant.” United States v.
Booker, 543 U. S. 220, 317–318 (2005) (THOMAS, J., dis
senting in part). Yet that is precisely what the Armed
Career Criminal Act, 18 U. S. C. §924(e) (2000 ed. and
Supp. IV), permits in this case.
Petitioner Alphonso James pleaded guilty to being a
felon in possession of a firearm, in violation of §922(g)(1)
(2000 ed.), which exposed him to a maximum sentence of
10 years under §924(a)(2). Section 924(e)(1) (2000 ed.,
Supp. IV), however, mandated a minimum 15-year sen
tence if James had three prior convictions for “a violent
felony or a serious drug offense.” James admitted he had
been convicted of three prior felonies, but he argued that
one of those felonies—his conviction for attempted bur
glary of a dwelling, in violation of Fla. Stat. §§810.02 and
2 JAMES v. UNITED STATES

THOMAS, J., dissenting

777.04 (2006)—was not a “violent felony” for purposes of
18 U. S. C. §924(e)(1) (2000 ed., Supp. IV). The District
Court resolved this disputed fact in favor of the Govern
ment and increased James’ sentence accordingly. Relying
on the scheme we initially created in Taylor v. United
States, 495 U. S. 575 (1990), the Court of Appeals
affirmed.
Section 924(e)(1), in conjunction with Taylor, Shepard,
and now today’s decision, “explain[s] to lower courts how
to conduct factfinding that is, according to the logic of this
Court’s intervening precedents, unconstitutional in this
very case.” Shepard, supra, at 27. For that reason, I
respectfully dissent.