Sykes v. United States

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

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

SYKES v. UNITED STATES

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

No. 09–11311. Argued January 12, 2011—Decided June 9, 2011
When he pleaded guilty to being a felon in possession of a firearm, see 8
U. S. C. §922(g)(1), petitioner Sykes had prior convictions for at least
three felonies, including the state-law crime of “us[ing] a vehicle” to
“knowingly or intentionally” “fle[e] from a law enforcement officer”
after being ordered to stop, Ind. Code §35–44–3–3(b)(1)(A) (2004).
The Federal District Court decided that the prior convictions sub
jected Sykes to the 15-year mandatory minimum prison term that the
Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e), provides for
an armed defendant who has three prior “violent felony” convictions.
Rejecting Sykes’ argument that his vehicle flight felony was not “vio
lent” under ACCA, the Seventh Circuit affirmed.
Held: Felony vehicle flight, as proscribed by Indiana law, is a violent
felony for purposes of ACCA. Pp. 5–14.
(a) The “categorical approach” used to determine if a particular
crime is a violent felony “consider[s] whether the elements of the of
fense are of the type that would justify its inclusion within the resid
ual provision [of 18 U. S. C. §924(e)(2)(B)], without inquiring into the
specific conduct of th[e] particular offender.” James v. United States,
550 U. S. 192, 202 (emphasis deleted). When punishable by more
than one year in prison, burglary, arson, extortion, and crimes that
involve use of explosives are violet felonies. Under the residual
clause in question so too is a crime that “otherwise involves conduct
that presents a serious potential risk of physical injury to another,”
§924(e)(2)(B)(ii), i.e., a risk “comparable to that posed by its closest
analog among” the statute’s enumerated offenses. Id., at 203. When
a perpetrator flees police in a car, his determination to elude capture
makes a lack of concern for the safety of others an inherent part of
the offense. Even if he drives without going full speed or the wrong
2 SYKES v. UNITED STATES

Syllabus

way, he creates the possibility that police will, in a legitimate and
lawful manner, exceed or almost match his speed or use force to bring
him within their custody. His indifference to these collateral conse
quences has violent—even lethal—potential for others. A fleeing
criminal who creates a risk of this dimension takes action similar in
degree of danger to that involved in arson, which also entails inten
tional release of a destructive force dangerous to others. Also telling
is a comparison to burglary, which is dangerous because it can end in
confrontation leading to violence. In fact, the risks associated with
vehicle flight may outstrip the dangers of both burglary and arson.
While statistics are not dispositive, studies show that the risk of per
sonal injuries is about 20% lower for each of those enumerated crimes
than for vehicle pursuits. Thus, Indiana’s prohibition on vehicle
flight falls within §924(e)(2)(B)(ii)’s residual clause because, as a
categorical matter, it presents a serious potential risk of physical in
jury to another. Pp. 5–9.
(b) Sykes’ argument—that Begay v. United States, 553 U. S. 137,
and Chambers v. United States, 555 U. S. 122, require ACCA predi
cate crimes to be purposeful, violent, and aggressive in ways that ve
hicle flight is not—overreads those opinions. In general, levels of risk
divide crimes that qualify as violent felonies from those that do not.
Chambers is no exception: It explained that failure to report does not
qualify because the typical offender is not “significantly more likely
than others to attack, or physically to resist, an apprehender.” 555
U. S., at ___–___. Begay, which held that driving under the influence
(DUI) is not an ACCA predicate and stated that it is not purposeful,
violent, and aggressive, 553 U. S., at 145–148, is the Court’s sole re
sidual clause decision in which risk was not the dispositive factor.
But Begay also gave a more specific reason for its holding: DUI “need
not be purposeful or deliberate,” id., at 145, and is analogous to
strict-liability, negligence, and recklessness crimes. Begay’s “pur
poseful, violent, and aggressive” phrase is an addition to the statu
tory text that has no precise link to the residual clause. Because ve
hicle flight is not a strict-liability, negligence, or recklessness crime
and is, as a categorical matter, similar in risk to the crimes listed in
the residual clause, it is a violent felony. Pp. 10–11
(c) Sykes contends that the fact that Ind. Code §35–44–3–3(b)(1)(B)
criminalizes flight by an offender who “operates a vehicle in a man
ner that creates a substantial risk of bodily injury to another person”
indicates that Indiana did not intend for §35–44–3–3(b)(1)(A), under
which he was convicted, to encompass the particular class of vehicle
flights reached by subsection (b)(1)(B). This argument is unconvinc
ing. Indiana treats the two subsections as felonies of the same mag
nitude carrying similar prison terms, suggesting that subsection
 Cite as: 564 U. S. ____ (2011) 3

Syllabus

(b)(1)(A) is roughly equivalent to one type of subsection (b)(1)(B) vio
lation. Pp. 11–13.
(d) Congress framed ACCA in general and qualitative, rather than
encyclopedic, terms. The residual clause imposes enhanced punish
ment for unlawful firearm possession when the relevant prior of
fenses involved a potential risk of physical injury similar to that pre
sented by several enumerated offenses. It instructs potential
recidivists regarding the applicable sentencing regime if they again
transgress. This intelligible principle provides guidance, allowing a
person to conform his conduct to the law. While this approach may at
times be more difficult for courts to implement, it is within congres
sional power to enact. Pp. 13–14.
598 F. 3d 334, affirmed

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, ALITO, and SOTOMAYOR, JJ., joined. THOMAS, J., filed
an opinion concurring in the judgment. SCALIA, J., filed a dissenting
opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, J.,
joined.
 Cite as: 564 U. S. ____ (2011) 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. 09–11311
_________________

MARCUS SYKES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.
It is a federal crime for a convicted felon to be in unlaw
ful possession of a firearm. 18 U. S. C. §922(g)(1). The or
dinary maximum sentence for that crime is 10 years of
imprisonment. §924(a)(2). If, however, when the unlawful
possession occurred, the felon had three previous convic
tions for a violent felony or serious drug offense, the
punishment is increased to a minimum term of 15 years.
§924(e). The instant case is another in a series in which
the Court is called upon to interpret §924(e) to determine
if a particular previous conviction was for a “violent fel
ony,” as that term is used in the punishment enhancement
statute. See James v. United States, 550 U. S. 192 (2007);
Begay v. United States, 553 U. S. 137 (2008); Chambers v.
United States, 555 U. S. 122 (2009).
In this case the previous conviction in question is under
an Indiana statute that makes it a criminal offense when
ever the driver of a vehicle knowingly or intentionally
“flees from a law enforcement officer.” Ind. Code §35–44–
3–3 (2004). The relevant text of the statute is set out
in the discussion below. For the reasons explained, the
vehicle flight that the statute proscribes is a violent felony
2 SYKES v. UNITED STATES

Opinion of the Court

as the federal statute uses that term.
I
Petitioner Marcus Sykes pleaded guilty to being a felon
in possession of a firearm, 18 U. S. C. §922(g)(1), in con
nection with an attempted robbery of two people at gun
point. Sykes had previous convictions for at least three
felonies. On two separate occasions Sykes used a firearm
to commit robbery, in one case to rob a man of his $200
wristwatch and in another to rob a woman of her purse.
His third prior felony is the one of concern here. Sykes
was convicted for vehicle flight, in violation of Indiana’s
“resisting law enforcement” law. Ind. Code §35–44–3–3.
That law provides:
“(a) A person who knowingly or intentionally:
“(1) forcibly resists, obstructs, or interferes with a
law enforcement officer or a person assisting the offi
cer while the officer is lawfully engaged in the execu
tion of his duties as an officer;
“(2) forcibly resists, obstructs, or interferes with the
authorized service or execution of a civil or criminal
process or order of a court; or
“(3) flees from a law enforcement officer after the of
ficer has, by visible or audible means, identified him
self and ordered the person to stop;
“commits resisting law enforcement, a Class A mis
demeanor, except as provided in subsection (b).
“(b) The offense under subsection (a) is a:
“(1) Class D felony if:
“(A) the offense is described in subsection (a)(3) and
the person uses a vehicle to commit the offense; or
“(B) while committing any offense described in sub
section (a), the person draws or uses a deadly weapon,
inflicts bodily injury on another person, or operates a
vehicle in a manner that creates a substantial risk of
bodily injury to another person;
 Cite as: 564 U. S. ____ (2011) 3

Opinion of the Court

(2) Class C felony if, while committing any offense
described in subsection (a), the person operates a ve
hicle in a manner that causes serious bodily injury to
another person; and
(3) Class B felony if, while committing any offense
described in subsection (a), the person operates a ve
hicle in a manner that causes the death of another
person.”
Here, as will be further explained, Sykes used a vehicle
to flee after an officer ordered him to stop, which was, as
the statute provides, a class D felony. The Court of Ap
peals of Indiana has interpreted the crime of vehicle flight
to require “a knowing attempt to escape law enforcement.”
Woodward v. State, 770 N. E. 2d 897, 901 (2002) (internal
quotation marks omitted). Woodward involved a driver
who repeatedly flashed his bright lights and failed to obey
traffic signals. Id., at 898. When an officer activated his
emergency equipment, the defendant became “aware . . .
that [the officer] wanted him to pull his vehicle over,” but
instead drove for a mile without “stopping, slowing, or
otherwise acknowledging” the officer because, he later
testified, he “was ‘trying to rationalize why [he] would be
pulled over.’ ” Id., at 898, 901. Though the defendant later
claimed that he was also seeking a “well-lighted place to
stop where there would be someone who knew him,” id.,
at 901, his actions suggested otherwise. He passed two
gas stations, a food outlet store, and a McDonald’s be-
fore pulling over. When he got out of the car, he began to
shout profanities at the pursuing officer. Ibid. By that
time, the officer had called for backup and exited his own
vehicle with his gun drawn. Id., at 898. In answering the
defendant’s challenge to the sufficiency of the above evi
dence, the Indiana court held that because he knew that a
police officer sought to stop him, the defendant could not
“choose the location of the stop” and insist on completing
4 SYKES v. UNITED STATES

Opinion of the Court

the stop “on his own terms,” as he had done, “without
adequate justification,” which he lacked. Id., at 901–902.
In the instant case a report prepared for Sykes’ federal
sentencing describes the details of the Indiana crime.
After observing Sykes driving without using needed head
lights, police activated their emergency equipment for a
traffic stop. Sykes did not stop. A chase ensued. Sykes
wove through traffic, drove on the wrong side of the road
and through yards containing bystanders, passed through
a fence, and struck the rear of a house. Then he fled on
foot. He was found only with the aid of a police dog.
The District Court decided that his three prior convic
tions, including the one for violating the prohibition on
vehicle flight in subsection (b)(1)(A) of the Indiana statute
just discussed, were violent felonies for purposes of §924(e)
and sentenced Sykes to 188 months of imprisonment. On
appeal Sykes conceded that his two prior robbery con
victions were violent felonies. He did not dispute that his
vehicle flight offense was a felony, but he did argue that it
was not violent. The Court of Appeals for the Seventh
Circuit affirmed. 598 F. 3d 334 (2010). The court’s opin
ion was consistent with the rulings of the Courts of Ap
peals in the First, Fifth, Sixth, and Tenth Circuits. Powell
v. United States, 430 F. 3d 490 (CA1 2005) (per curiam);
United States v. Harrimon, 568 F. 3d 531, 534–537 (CA5
2009); United States v. LaCasse, 567 F. 3d 763, 765–767
(CA6 2009); United States v. McConnell, 605 F. 3d 822,
827–830 (CA10 2010) (finding the flight to be a “crime of
violence” under the “nearly identical” §4B1.2(a)(2) of the
United States Sentencing Guidelines). It was in conflict
with a ruling by a Court of Appeals for the Eleventh Cir
cuit in United States v. Harrison, 558 F. 3d 1280, 1291–
1296 (2009), and at least in tension, if not in conflict, with
the reasoning of the Court of Appeals for the Eighth Cir
cuit in United States v. Tyler, 580 F. 3d 722, 724–726
(2009), and for the Ninth Circuit in United States v. Kelly,
 Cite as: 564 U. S. ____ (2011) 5

Opinion of the Court

422 F. 3d 889, 892–897 (2005), United States v. Jennings,
515 F. 3d 980, 992–993 (2008), and United States v. Peter
son, No. 07–30465, 2009 WL 3437834, *1 (Oct. 27, 2009).
The writ of certiorari, 561 U. S. ___ (2010), allows this
Court to address the conflict.
II
In determining whether an offense is a violent felony,
this Court has explained,
“we employ the categorical approach . . . . Under this
approach, we look only to the fact of conviction and
the statutory definition of the prior offense, and do not
generally consider the particular facts disclosed by the
record of conviction. 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 par
ticular offender.” James, 550 U. S., at 202 (internal
quotation marks and citations omitted); see also Tay
lor v. United States, 495 U. S. 575, 599–602 (1990).
So while there may be little doubt that the circumstances
of the flight in Sykes’ own case were violent, the question
is whether §35–44–3–3 of the Indiana Code, as a categori
cal matter, is a violent felony.
Under 18 U. S. C. §924(e)(2)(B), an offense is deemed a
violent felony if it is a crime punishable by more than one
year of imprisonment 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
another.”
Resisting law enforcement through felonious vehicle flight
6 SYKES v. UNITED STATES

Opinion of the Court

does not meet the requirements of clause (i), and it is not
among the specific offenses named in clause (ii). Thus, it
is violent under this statutory scheme only if it fits within
the so-called residual provision of clause (ii). To be a vio
lent crime, it must be an offense that “otherwise in-
volves conduct that presents a serious potential risk of
physical injury to another.”
The question, then, is whether Indiana’s prohibition on
flight from an officer by driving a vehicle—the violation of
Indiana law for which Sykes sustained his earlier convic
tion—falls within the residual clause because, as a cate
gorical matter, it presents a serious potential risk of
physical injury to another. The offenses enumerated in
§924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes
involving use of explosives—provide guidance in making
this determination. For instance, a crime involves the
requisite risk when “the risk posed by [the crime in ques
tion] is comparable to that posed by its closest analog
among the enumerated offenses.” James, 550 U. S., at 203
(explaining that attempted burglary poses risks akin to
that of completed burglary).
When a perpetrator defies a law enforcement command
by fleeing in a car, the determination to elude capture
makes a lack of concern for the safety of property and
persons of pedestrians and other drivers an inherent part
of the offense. Even if the criminal attempting to elude
capture drives without going at full speed or going the
wrong way, he creates the possibility that police will, in a
legitimate and lawful manner, exceed or almost match his
speed or use force to bring him within their custody. A
perpetrator’s indifference to these collateral consequences
has violent—even lethal—potential for others. A criminal
who takes flight and creates a risk of this dimension takes
action similar in degree of danger to that involved in
arson, which also entails intentional release of a destruc
tive force dangerous to others. This similarity is a begin
 Cite as: 564 U. S. ____ (2011) 7

Opinion of the Court

ning point in establishing that vehicle flight presents a
serious potential risk of physical injury to another.
Another consideration is a comparison to the crime of
burglary. Burglary is dangerous because it can end in
confrontation leading to violence. Id., at 200. The same is
true of vehicle flight, but to an even greater degree. The
attempt to elude capture is a direct challenge to an offi
cer’s authority. It is a provocative and dangerous act that
dares, and in a typical case requires, the officer to give
chase. The felon’s conduct gives the officer reason to
believe that the defendant has something more serious
than a traffic violation to hide. In Sykes’ case, officers
pursued a man with two prior violent felony convictions
and marijuana in his possession. In other cases officers
may discover more about the violent potential of the flee
ing suspect by running a check on the license plate or by
recognizing the fugitive as a convicted felon. See, e.g.,
Arizona v. Gant, 556 U. S. ___, ___ (2009) (slip op., at 2).
Because an accepted way to restrain a driver who poses
dangers to others is through seizure, officers pursuing
fleeing drivers may deem themselves duty bound to esca
late their response to ensure the felon is apprehended.
Scott v. Harris, 550 U. S. 372, 385 (2007), rejected the
possibility that police could eliminate the danger from a
vehicle flight by giving up the chase because the perpetra
tor “might have been just as likely to respond by continu
ing to drive recklessly as by slowing down and wiping his
brow.” And once the pursued vehicle is stopped, it is
sometimes necessary for officers to approach with guns
drawn to effect arrest. Confrontation with police is the
expected result of vehicle flight. It places property and
persons at serious risk of injury.
Risk of violence is inherent to vehicle flight. Between
the confrontations that initiate and terminate the inci
dent, the intervening pursuit creates high risks of crashes.
It presents more certain risk as a categorical matter than
8 SYKES v. UNITED STATES

Opinion of the Court

burglary. It is well known that when offenders use motor
vehicles as their means of escape they create serious po
tential risks of physical injury to others. Flight from a
law enforcement officer invites, even demands, pursuit.
As that pursuit continues, the risk of an accident accumu
lates. And having chosen to flee, and thereby commit a
crime, the perpetrator has all the more reason to seek to
avoid capture.
Unlike burglaries, vehicle flights from an officer by
definitional necessity occur when police are present, are
flights in defiance of their instructions, and are effected
with a vehicle that can be used in a way to cause serious
potential risk of physical injury to another. See post, at 5–
6 (THOMAS, J., concurring in judgment); see also post, at
6–7 (listing Indiana cases addressing ordinary intentional
vehicle flight and noting the high-risk conduct that those
convictions involved).
Although statistics are not dispositive, here they con
firm the commonsense conclusion that Indiana’s vehicular
flight crime is a violent felony. See Chambers, 555 U. S.,
at 129 (explaining that statistical evidence sometimes
“helps provide a conclusive . . . answer” concerning the
risks that crimes present). As JUSTICE THOMAS explains,
chase-related crashes kill more than 100 nonsuspects
every year. See post, at 4–5. Injury rates are much
higher. Studies show that between 18% and 41% of chases
involve crashes, which always carry a risk of injury, and
that between 4% and 17% of all chases end in injury. See
ibid.
A 2008 International Association of Chiefs of Police
(IACP) study examined 7,737 police pursuits reported by
56 agencies in 30 States during 2001–2007. C. Lum & G.
Fachner, Police Pursuits in an Age of Innovation and
Reform 54. Those pursuits, the study found, resulted in
313 injuries to police and bystanders, a rate of slightly
over 4 injuries to these nonsuspects per 100 pursuits. Id.,
 Cite as: 564 U. S. ____ (2011) 9

Opinion of the Court

at 57. Given that police may be least likely to pursue
suspects where the dangers to bystanders are greatest—
i.e., when flights occur at extraordinarily high speeds—
it is possible that risks associated with vehicle flight are
even higher.
Those risks may outstrip the dangers of at least two
offenses enumerated in 18 U. S. C. §924(e)(2)(B)(ii). Ac
cording to a study by the Department of Justice, approxi
mately 3.7 million burglaries occurred on average each
year in the United States between 2003 and 2007. Bureau
of Justice Statistics, S. Catalano, Victimization during
Household Burglary 1 (Sept. 2010). Those burglaries
resulted in an annual average of approximately 118,000
injuries, or 3.2 injuries for every 100 burglaries. Id., at 9–
10. That risk level is 20% lower than that which the IACP
found for vehicle pursuits.
The U. S. Fire Administration (USFA) maintains the
world’s largest data bank on fires. It secures participation
from over one-third of U. S. fire departments. It reports
an estimated 38,400 arsons in 2008. Those fires resulted
in an estimated 1,255 injuries, or 3.3 injuries per 100
arsons. USFA, Methodology Used in the Development of
the Topical Fire Research Series, http://www.usfa.dhs.gov/
downloads/pdf/tfrs/methodology.pdf (all Internet materials
as visited June 3, 2011, and available in Clerk of Court’s
case file); USFA, Nonresidential Building Intentional Fire
Trends (Dec. 2010), http://www.usfa.dhs.gov/downloads/
pdf/statistics/nonres_bldg_intentional_fire_trends.pdf; USFA,
Residential Building Causes, http://www.usfa.dhs.gov/
downloads/xls/estimates/res_bldg_fire_cause.xlsx; USFA
Residential and Nonresidential Fire Estimate Summaries,
2003–2009, http://www.usfa.dhs.gov/statistics/estimates/
index.shtm. That risk level is about 20% lower than that
reported by the IACP for vehicle flight.
10 SYKES v. UNITED STATES

Opinion of the Court

III

Sykes argues that, regardless of risk level, typical vehi
cle flights do not involve the kinds of dangers that the
Armed Career Criminal Act’s (ACCA) residual clause
demands. In his view this Court’s decisions in Begay and
Chambers require ACCA predicates to be purposeful,
violent, and aggressive in ways that vehicle flight is not.
Sykes, in taking this position, overreads the opinions of
this Court.
ACCA limits the residual clause to crimes “typically
committed by those whom one normally labels ‘armed
career criminals,’ ” that is, crimes that “show an increased
likelihood that the offender is the kind of person who
might deliberately point the gun and pull the trigger.”
Begay, 553 U. S., at 146. In general, levels of risk divide
crimes that qualify from those that do not. See, e.g.,
James, 550 U. S. 192 (finding attempted burglary risky
enough to qualify). Chambers is no exception. 555 U. S.,
at ___–___ (slip op., at 5–6) (explaining that failure to
report does not qualify because the typical offender is not
“significantly more likely than others to attack, or physi
cally to resist, an apprehender”).
The sole decision of this Court concerning the reach of
ACCA’s residual clause in which risk was not the dis
positive factor is Begay, which held that driving under
the influence (DUI) is not an ACCA predicate. There, the
Court stated that DUI is not purposeful, violent, and
aggressive. 553 U. S., at 145–148. But the Court also
gave a more specific reason for its holding. “[T]he conduct
for which the drunk driver is convicted (driving under the
influence) need not be purposeful or deliberate,” id., at 145
(analogizing DUI to strict-liability, negligence, and reck
lessness crimes). By contrast, the Indiana statute at issue
here has a stringent mens rea requirement. Violators
must act “knowingly or intentionally.” Ind. Code §35–44–
3–3(a); see Woodward, 770 N. E. 2d, at 901 (construing the
 Cite as: 564 U. S. ____ (2011) 11

Opinion of the Court

statute to require “a knowing attempt to escape law en
forcement” (internal quotation marks omitted)).
The phrase “purposeful, violent, and aggressive” has no
precise textual link to the residual clause, which requires
that an ACCA predicate “otherwise involv[e] conduct that
presents a serious potential risk of physical injury to
another.” §924(e)(2)(B)(ii). The Begay phrase is an addi
tion to the statutory text. In many cases the purposeful,
violent, and aggressive inquiry will be redundant with the
inquiry into risk, for crimes that fall within the former
formulation and those that present serious potential risks
of physical injury to others tend to be one and the same.
As between the two inquiries, risk levels provide a cate
gorical and manageable standard that suffices to resolve
the case before us.
Begay involved a crime akin to strict liability, negli
gence, and recklessness crimes; and the purposeful, vio
lent, and aggressive formulation was used in that case to
explain the result. The felony at issue here is not a strict
liability, negligence, or recklessness crime and because it
is, for the reasons stated and as a categorical matter,
similar in risk to the listed crimes, it is a crime that “oth
erwise involves conduct that presents a serious potential
risk of physical injury to another.” §924(e)(2)(B)(ii).
IV
Sykes finds it significant that his flight conviction was
not under the Indiana provision that criminalizes flight in
which the offender “operates a vehicle in a manner that
creates a substantial risk of bodily injury to another per
son.” Ind. Code §35–44–3–3(b)(1)(B). In structuring its
laws in this way, Sykes contends, Indiana confirmed that
it did not intend subsection (b)(1)(A)’s general prohibition
on vehicle flight to encompass the particular class of vehi
cle flights that subsection (b)(1)(B) reaches.
Sykes’ argument is unconvincing. Indiana treats viola
12 SYKES v. UNITED STATES

Opinion of the Court

tions of subsections (b)(1)(A) and (b)(1)(B) as crimes of the
same magnitude. They are both class D felonies, and both
carry terms of between six months and three years, Ind.
Code §35–50–2–7(a). The distinction between the provi
sions is their relationship to subsection (a), which prohib
its, among other acts, much conduct in which a person
“(1) forcibly resists, obstructs, or interferes with a law en
forcement officer . . . ; (2) forcibly resists, obstructs, or
interferes with the authorized service or execution of . . .
process . . . ; or (3) flees from a law enforcement officer.”
§35–44–3–3(a). Subsection (b)(1)(A) only involves the
conduct barred by subsection (a)(3)—flight—which, it
states, is a felony whenever committed with a vehicle.
Under subsection (b)(1)(B), by contrast, any of the offenses
in subsection (a) is a felony if the offender commits it
while using a vehicle to create a substantial risk of bodily
injury to another. Taken together, the statutory incen
tives always favor prosecuting vehicle flights under sub
section (b)(1)(A) rather than subsection (b)(1)(B). They
reflect a judgment that some offenses in subsection (a) can
be committed without a vehicle or without creating sub
stantial risks. They reflect the further judgment that this
is not so for vehicle flights.
Serious and substantial risks are an inherent part of
vehicle flight. Under subsection (b)(1)(A), they need not be
proved separately to secure a conviction equal in magni
tude to those available for other forms of resisting law
enforcement with a vehicle that involve similar risks.
In other words, the “similarity in punishment for these
related, overlapping offenses suggests that [subsection
(b)(1)(A)] is the rough equivalent of one type of [subsection
(b)(1)(B)] violation.” Post, at 10 (THOMAS, J., concurring in
judgment); see also ibid., n. 2. By adding subsection
(b)(1)(A) in 1998, the Indiana Legislature determined that
subsection (b)(1)(A) by itself sufficed as a basis for the
punishments available under subsection (b)(1)(B). Post, at
 Cite as: 564 U. S. ____ (2011) 13

Opinion of the Court

10–11; see also post, at 10, n. 2 (identifying reckless en
dangerment statutes with similar structures); cf. post, at
12 (explaining that because in most cases Indiana does not
“specify what additional punishment is warranted when
[a] crime kills or injures,” its provisions creating higher
penalties for vehicle flights that do so reflect a judgment
that these flights are “inherently risky”).
The Government would go further and deem it irrele
vant under the residual clause whether a crime is a lesser
included offense even in cases where that offense carries a
less severe penalty than the offense that includes it. As
the above discussion indicates, however, the case at hand
does not present the occasion to decide that question.
V
Congress chose to frame ACCA in general and qualita
tive, rather than encyclopedic, terms. It could have de
fined violent felonies by compiling a list of specific covered
offenses. Under the principle that all are deemed to know
the law, every armed felon would then be assumed to
know which of his prior felonies could serve to increase
his sentence. Given that ACCA “requires judges to make
sometimes difficult evaluations of the risks posed by dif
ferent offenses,” this approach could simplify adjudica
tions for judges in some cases. James, 550 U. S., at 210,
n. 6.
Congress instead stated a normative principle. The re
sidual clause imposes enhanced punishment for unlaw-
ful possession of the firearm when the relevant prior
offenses involved a potential risk of physical injury similar
to that presented by burglary, extortion, arson, and crimes
involving use of explosives. The provision instructs poten
tial recidivists regarding the applicable sentencing regime
if they again transgress. It states an intelligible principle
and provides guidance that allows a person to “conform his
or her conduct to the law.” Chicago v. Morales, 527 U. S.
14 SYKES v. UNITED STATES

Opinion of the Court

41, 58 (1999) (plurality opinion). Although this approach
may at times be more difficult for courts to implement, it
is within congressional power to enact. See James, supra,
at 210, n. 6 (giving examples of federal laws similar to
ACCA’s residual clause); see also 18 U. S. C. §1031(b)(2)
(“conscious or reckless risk of serious personal injury”);
§2118(e)(3) (“risk of death, significant physical pain . . .”);
§2246(4) (“substantial risk of death, unconsciousness,
extreme physical pain . . .”); §2258B(b)(2)(B) (2006 ed.,
Supp. III) (“substantial risk of causing physical injury”);
§3286(b) (2006 ed.) (“forseeable risk of . . . death or seri
ous bodily injury to another person” (footnote omitted));
§4243(d) (“substantial risk of bodily injury to another
person”); §§4246(a), (d), (d)(2), (e), (e)(1), (e)(2), (f), (g)
(same); §4247(c)(4)(C) (same).
VI
Felony vehicle flight is a violent felony for purposes of
ACCA. The judgment of the Court of Appeals is
Affirmed.
 Cite as: 564 U. S. ____ (2011) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11311
_________________

MARCUS SYKES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE THOMAS, concurring in the judgment.
I agree with the Court that the Indiana crime of in
tentional vehicular flight, Ind. Code §35–44–3–3(b)(1)(A)
(2004), is a “violent felony” under the Armed Career
Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii). The
majority also correctly refuses to apply the “ purposeful,
violent, and aggressive ” test created in Begay v. United
States, 553 U. S. 137, 145 (2008). However, the majority
errs by implying that the “purposeful, violent, and aggres
sive” test may still apply to offenses “akin to strict liabil
ity, negligence, and recklessness crimes.” Ante, at 11.
The error in imposing that test, which does not appear
in ACCA, is well catalogued. See, e.g., Begay, 553 U. S., at
150–152 (SCALIA, J., concurring in judgment); id., at 158–
159 (ALITO, J., dissenting); ante, at 11 (finding “no pre
cise textual link” in the statute). I agree with JUSTICES
SCALIA and KAGAN that the majority’s partial retreat from
Begay only further muddies ACCA’s residual clause. Post,
at 1 (SCALIA, J., dissenting); post, at 1, n. 1 (KAGAN, J.,
dissenting).
The only question here is whether, in the ordinary case,
using a vehicle to knowingly flee from the police after
being ordered to stop “involves conduct that presents a
serious potential risk of physical injury to another.”
§924(e)(2)(B)(ii). I believe that it does. Therefore I concur
in the judgment.
2 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

I
Under Indiana law, intentional vehicular flight is a
felony. Any person who “knowingly or intentionally . . .
flees from a law enforcement officer after the officer has,
by visible or audible means, identified himself and ordered
the person to stop” commits a misdemeanor. Ind. Code
§35–44–3–3(a)(3). If the person “uses a vehicle” to flee,
however, the offense is elevated to a class D felony.
§3(b)(1)(A). That felony, the parties agree, qualifies as a
“violent felony” under ACCA if it is “burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U. S. C. §924(e)(2)(B)(ii).
As explained below, Indiana’s crime of intentional ve
hicular flight “involves conduct that presents a serious
potential risk of physical injury to another.” Ibid. The
elements of §3(b)(1)(A), compared to those of the enumer
ated ACCA offense of burglary, suggest that an ordinary
violation of §3(b)(1)(A) is far riskier than an ordinary
burglary. Statistics, common experience, and Indiana
cases support this conclusion.
A
The specific crimes Congress listed as “violent felon
[ies]” in ACCA—arson, extortion, burglary, and use of
explosives—provide a “baseline against which to measure
the degree of risk” that a nonenumerated offense must
present in order to qualify as a violent felony. James v.
United States, 550 U. S. 192, 208 (2007); see also ante, at
6. Burglary, for instance, sets a low baseline level for risk.
Its elements are “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to com
mit a crime.” Taylor v. United States, 495 U. S. 575, 599
(1990). As this Court has recognized, the risk of burglary
is in “the possibility that an innocent person might appear
while the crime is in progress” and the danger inherent in
 Cite as: 564 U. S. ____ (2011) 3

THOMAS, J., concurring in judgment

such a “face-to-face confrontation.” James, 550 U. S., at
203. The chance of an interruption or confrontation in an
ordinary burglary is, of course, quite small; burglars gen
erally plan and commit their crimes with an eye toward
avoiding detection. Nevertheless, that small chance suf
ficed for Congress to list burglary as a “violent felony,” and
for this Court to hold that attempted burglary also quali
fies. See id., at 195.
Compared to burglary, the elements of intentional ve
hicular flight describe conduct that ordinarily poses
greater potential risk. Although interruption and confron
tation are quite rare for burglary, every §3(a)(3) flight is
committed in the presence of a police officer. Every
§3(a)(3) flight also involves a perpetrator acting in know
ing defiance of an officer’s direct order to stop, “which is a
clear challenge to the officer’s authority and typically
initiates pursuit.” United States v. Harrimon, 568 F. 3d
531, 535 (CA5 2009); see also United States v. Spells, 537
F. 3d 743, 752 (CA7 2008) (“Taking flight calls the officer
to give chase, and aside from any accompanying risk to
pedestrians and other motorists, such flight dares the
officer to needlessly endanger himself in pursuit”). Fi
nally, in every §3(b)(1)(A) flight, the perpetrator is armed
with what can be a deadly weapon: a vehicle. See, e.g.,
Scott v. Harris, 550 U. S. 372, 383 (2007) (noting that “the
threat posed by the flight on foot of an unarmed suspect”
was not “even remotely comparable to the extreme danger
to human life” posed by that vehicular chase); United
States v. Kendrick, 423 F. 3d 803, 809 (CA8 2005) (“[T]he
dangerous circumstances surrounding a person’s attempt
to flee from law enforcement are compounded by the
person’s operation of a motor vehicle”); United States v.
Aceves-Rosales, 832 F. 2d 1155, 1157 (CA9 1987) (per
curiam) (“It is indisputable that an automobile . . . can be
used as a deadly weapon”).
In sum, every violation of §3(b)(1)(A) involves a defiant
4 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

suspect with a dangerous weapon committing a felony in
front of a police officer. Based on its elements, the poten
tial risk of intentional vehicular flight resembles “armed
burglary in the presence of a security guard” more than
simple burglary. Section 3(b)(1)(A) outlaws conduct with
much more risk—a far greater likelihood of confrontation
with police and a greater chance of violence in that
confrontation—than burglary. It follows that the “the con
duct encompassed by the elements of the offense, in the ordi
nary case,” poses a greater risk of harm than the enumer
ated offense of burglary. James, supra, at 208.
B
Common experience and statistical evidence confirm the
“potential risk” of intentional vehicular flight. Cf. Cham
bers v. United States, 555 U. S. 122, 129 (2009) (statistical
evidence, though not always necessary, “strongly supports
the intuitive belief that failure to report does not involve a
serious potential risk of physical injury”). Data from the
National Highway Traffic Safety Administration shows
that approximately 100 police officers, pedestrians, and
occupants of other cars are killed each year in chase
related crashes. National Center for Statistics & Analysis,
Fatalities in Motor Vehicle Traffic Crashes Involving
Police in Pursuit 37–56 (2010) (reporting 1,269 such
deaths between 2000 and 2009).
The number injured must be much higher. Many thou
sands of police chases occur every year. In California and
Pennsylvania, which collect statewide pursuit data, police
were involved in a combined total of more than 8,700
chases in 2007 alone. See Pennsylvania State Police
Bureau of Research & Development, Police Pursuits 2007
Annual Report; Report to the Legislature, Senate Bill 719,
California Police Pursuits (March 2008); see also Schultz,
Hudak, & Alpert, Emergency Driving and Pursuits, FBI
Law Enforcement Bulletin, Apr. 2009, pp. 1, 4 (surveying
 Cite as: 564 U. S. ____ (2011) 5

THOMAS, J., concurring in judgment

more than 2,100 police officers and finding an average of
just over one pursuit per officer each year). And up to 41%
of all chases involve a crash, which always carries some
risk of injury. Wells & Falcone, Research on Police Pur
suits: Advantages of Multiple Data Collection Strategies,
20 Policing: Int’l J. Police Strategies & Management 729,
740 (1997) (citing nine studies, each showing a crash rate
between 18% and 41%). Indeed, studies show that 4% to
17% of all chases actually cause injury. Ibid.; see also C.
Lum & G. Fachner, Police Pursuits in an Age of Innova
tion and Reform 57 (2008) (finding that 23.5% of flights
involve a crash, and 9% of flights cause injury).
An International Association of Chiefs of Police study
of 7,737 pursuits across 30 States found 900 injuries, of
which 313 were to police or bystanders. Ibid. As the
majority observes, that injury rate is just over 4 injuries
per 100 chases, excluding injuries to the perpetrator.
Ante, at 8. By comparison, the injury rate for burglary
and arson is around 3 injuries per 100 crimes, or less.
Ante, at 9; see also Harrimon, supra, at 537 (citing similar
arson statistics, showing between 1 and 3 injuries per 100
fires, apparently including injuries to perpetrators). Sta
tistics support what logic suggests: The ordinary case of
intentional vehicular flight is risky, indeed, more so than
some offenses listed in ACCA.
These statistical risks of intentional flight merely rein
force common sense and real world experience. See, e.g.,
Carroll & Woomer, Family Killed in Visalia Crash After
Man Flees From Sheriff’s Deputy, Visalia Times-Delta,
Apr. 2–3, 2011, p. 1A; Broward & Butler, Fleeing Car Hits
Another; 5 People Injured, Florida Times-Union, Mar. 15,
2011, p. C2; Klopott, Crash During Police Chase Kills
Father of Four, Washington Examiner, Nov. 22, 2010, p. 4;
Fenton, Woman Killed During Pursuit Identified, Balti
more Sun, July 27, 2010, p. 4A (reporting that a woman
was killed when a fleeing suspect crashed into her car);
6 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

Rein & Hohmann, Crashes, Injuries Left in Wake of Pr.
George’s-Baltimore Chase, Washington Post, Nov. 22,
2009, p. C3 (noting injuries to two police officers and an
innocent motorist).
Also well known are the lawsuits that result from these
chases. See, e.g., Bowes, Claim Settled in Death of Officer,
Richmond Times-Dispatch, Mar. 28, 2007, p. B1 ($2.35
million settlement for the family of an off-duty police
officer killed in a head-on collision with a police car
chasing a suspect); Cuculiansky, Stop-Stick Death Suit
Settled, Daytona Beach News-Journal, Aug. 4, 2010, p. 1C
($100,000 settlement for the family of a man killed by a
fleeing vehicle); Ostendorff, Woman Sues City Police,
Asheville Citizen-Times, June 17, 2010, p. A1 (woman
sued police after they fired 10 shots into the fleeing car
she was riding in, wounding her); Gates, $375,000
Awarded in Crash Lawsuit, Jackson, Miss., Clarion-
Ledger, May 9, 2010, p. 1B (noting four police-chase law
suits won against the city in a single year and describing
an opinion awarding $375,000 to an injured third-party);
Pallasch, $17.5 Million Awarded to Motorist Disabled
in Police Chase, Chicago Sun Times, Mar. 23, 2005,
p. 18. In the real world, everyone—police, citizens, and
suspects who elect to flee—knows that vehicular flight is
dangerous.
C
Convictions under §3(b)(1)(A) further support this con
clusion. See, e.g., Mason v. State, 944 N. E. 2d 68, 69–70
(Ind. App. 2011) (defendant suddenly drove his car toward
police officers, who then fired at him; he crashed into other
cars and was Tasered); Jones v. State, 938 N. E. 2d 1248,
1253 (Ind. App. 2010) (defendant accelerated and crashed
into a police car); Haney v. State, 920 N. E. 2d 818, 2010
WL 305813, *1 (Ind. App., Jan. 27, 2010) (defendant, who
had been speeding, drove into a yard, between two houses,
 Cite as: 564 U. S. ____ (2011) 7

THOMAS, J., concurring in judgment

and then into a field where he crashed into a tree); Hape
v. State, 903 N. E. 2d 977, 984, 985, n. 4, 994 (Ind. App.
2009) (defendant fled for 40 minutes, at times in excess of
100 mph and into oncoming traffic; police fired at his truck
at least 20 times; he was captured only after driving into a
flooded area); Smith v. State, 908 N. E. 2d 1280, 2009 WL
1766526, *1 (Ind. App., June 23, 2009) (defendant led
police on a stop-and-go chase for five minutes, which
included traveling at 30 mph through a stop sign and
crowded parking lot; he ultimately had to be chemical
sprayed); Butler v. State, 912 N. E. 2d 449, 2009 WL
2706123, *1 (Ind. App., Aug. 28, 2009) (defendant led a
chase at speeds up to 80 mph, swerved into the path of an
oncoming vehicle, and eventually jumped from the car
while it was still moving); Amore v. State, 884 N. E. 2d
434, 2008 WL 1032611, *1 (Ind. App., Apr. 11, 2008) (de
fendant led police on a 15-mile chase at speeds up to 125
mph, ending in a crash); Johnson v. State, 879 N. E. 2d 24,
2008 WL 131195, *1 (Ind. App., Jan. 14, 2008) (defendant
led a chase at 65–70 mph at 1 a.m. with no tail lights,
crashed his car, and caused a police car to crash); Tinder
v. State, 881 N. E. 2d 735, 2008 WL 540772, *1, *3 (Ind.
App., Feb. 29, 2008) (rev’g on other grounds) (defendant
led a 12:30 a.m. chase, which ended when he ran off the
road, crashed through a corn silo, and hit a fence). Al
though these cases are only a limited collection, their facts
illustrate that convictions under §3(b)(1)(A) often involve
highly dangerous conduct.
II
Sykes argues that intentional vehicular flight is not a
violent felony for two main reasons. First, he asserts that
it is possible to violate Indiana’s intentional vehicular
flight statute without doing anything dangerous. Second,
he urges that the existence of Ind. Code §35–44–3–
3(b)(1)(B), which includes “substantial risk” as an addi
8 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

tional element, indicates that §3(b)(1)(A) is nonrisky.
Neither argument is persuasive.
A
Sykes observes that it would violate the statute to flee
at low speed, obeying traffic signs and stopping after only
a short distance. See Woodward v. State, 770 N. E. 2d
897, 900–901 (Ind. App. 2002); post, at 4 (KAGAN, J., dis
senting). Such a flight, he urges, would not present “a
serious potential risk of physical injury to another,” so
a conviction under the statute cannot categorically be a
violent felony.
The fact that Sykes can imagine a nonrisky way to
violate §3(b)(1)(A) does not disprove that intentional ve
hicular flight is dangerous “in the ordinary case.” See
James, 550 U. S., at 208. It is also possible to imagine
committing burglary—an enumerated offense—under
circumstances that pose virtually no risk of physical in
jury. See id., at 207 (hypothesizing a “break-in of an
unoccupied structure located far off the beaten path and
away from any potential intervenors”).
Nor has Sykes established that the nonrisky scenario he
imagines is the ordinary violation of §3(b)(1)(A). Sykes
offers nothing more than two Indiana cases that, in his
view, are instances of nonrisky vehicular flight. See
Swain v. State, 923 N. E. 2d 32, 2010 WL 623720 (Ind.
App., Feb. 23, 2010); Woodward, supra, at 898. Yet not
even those cases obviously involve nonrisky conduct. In
Swain, the defendant was a getaway driver who picked up
her boyfriend’s accomplice as he ran on foot from two
police officers. 2010 WL 623720, *1, *3. As the officers
approached the car and shouted to stop, she yelled,
“ ‘Hurry up. Come on. They’re coming,’ ” and drove off as
the runner jumped in. Id., at *1. She stopped 10 to 15
seconds later, when police vehicles converging on the
scene took up pursuit. Ibid. In Woodward, the defendant
 Cite as: 564 U. S. ____ (2011) 9

THOMAS, J., concurring in judgment

ignored a police siren for approximately a mile, passed
several good places to pull over, and drove all the way
home, but traveled at the speed limit of 45 mph and
obeyed traffic laws. 770 N. E. 2d, at 898. Eventually the
defendant got out of his car and shouted profanities at the
officer, who drew his pistol. Id., at 898, 901; see also id.,
at 901, 902 (observing that the defendant had refused to
stop “except on his own terms” and noting “the dangers
that could await a police officer stopping where the citizen
selects”). These two cases fall well short of showing
that intentional flight in Indiana is ordinarily nonrisky.1
See also post, at 6 (KAGAN, J., dissenting) (noting that
the “intuition that dangerous flights outstrip mere failures
to stop . . . seems consistent with common sense and
experience”).
B
Sykes also notes that a different subparagraph, §3(b)
(1)(B), covers intentional flight committed while “oper
at[ing] a vehicle in a manner that creates a substan-
tial risk of bodily injury to another person,” whereas
§3(b)(1)(A) has no such element. From this, Sykes infers
that §3(b)(1)(A) necessarily concerns only flight that does
not present a serious potential risk. The argument is that,
even though the elements of §3(b)(1)(A) describe conduct
that ordinarily will satisfy the requisite level of risk, the
presence of §3(b)(1)(B) casts §3(b)(1)(A) in a less dangerous
light. Post, at 8 (KAGAN, J., dissenting). But the fact that
§3(b)(1)(B) includes “substantial risk of bodily injury”
as an element does not restrict §3(b)(1)(A) to nonrisky
——————
1 Sykes certainly cannot use his own flight as an example. His
§3(b)(1)(A) conviction was based on fleeing from police in a damaged car
at night without headlights, driving on the wrong side of the road,
weaving through traffic, barreling through two yards and among
bystanders, destroying a fence, and crashing into a house. Ante, at 4; 2
App. 11 (Sealed).
10 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

conduct.
First, apart from the existence of §3(b)(1)(B), the ab
sence of risk as an element of §3(b)(1)(A) does not mean
that the offense is not a violent felony. ACCA does not
require that a violent felony expressly include a risk of
injury as an element of the offense. Enumerated violent
felonies like arson and burglary have no such element.
Second, §3(b)(1)(B) is not a risky, aggravated version
of §3(b)(1)(A). Both are class D felonies, and at the time of
Sykes’ conviction, there was no statutory difference in
punishment between them. Even now, the offenses re
main of a single class, meriting similar punishments.
The similarity in punishment for these related, overlap
ping offenses suggests that §3(b)(1)(A) is the rough equiva
lent of one type of §3(b)(1)(B) violation. Section 3(b)(1)(B)
enhances punishments for three separate types of in
tentional misdemeanors: obstructing an officer, §3(a)(1);
interfering with service of process, §3(a)(2); and fleeing
from a police officer, §3(a)(3). Under §3(b)(1)(B), commit
ting any of those offenses while also drawing a deadly
weapon, inflicting injury, or “operat[ing] a vehicle in a
manner that creates a substantial risk of bodily injury to
another person” has long been a class D felony.
In 1998, the Indiana Legislature added §3(b)(1)(A) to
provide that any use of a vehicle to flee from an officer
under §3(a)(3) is always a class D felony. Section
3(b)(1)(A) is, in effect, a shortcut to the same punishment
for one particular violation of §3(b)(1)(B).2 It is still the
——————
2 Indiana law at the time of Sykes’ conviction presented two related
provisions, within a single statute, carrying the same punishment. One
was a broad provision that had risk as an element, and the other was a
narrower provision that did not. While JUSTICE KAGAN would infer that
the offense lacking risk as an element was likely not ordinarily risky,
post, at 6–8, I think it makes more sense to infer the opposite.
Consider reckless endangerment statutes. In Hawaii, for instance, it
is “reckless endangering in the second degree” either to “recklessly
 Cite as: 564 U. S. ____ (2011) 11

THOMAS, J., concurring in judgment

case that under §3(b)(1)(B), using a vehicle to obstruct an
officer or interfere with service of process is a class D
felony only if the vehicle is “operate[d] . . . in a manner
that creates a substantial risk of bodily injury to another
person.” §3(b)(1)(B). But using a vehicle to intentionally
flee is always a class D felony, without any need to prove
risk. §3(b)(1)(A).
This rough equivalence between §3(b)(1)(A) and §3(b)
(1)(B) is borne out in Indiana case law. The conduct
underlying the Indiana cases discussed above, see supra,
at 6–7, demonstrates that despite §3(b)(1)(B), convictions
under §3(b)(1)(A) include risky flights.
Third, the remainder of Indiana’s resisting law enforce

——————
plac[e] another person in danger of death or serious bodily injury,”
Haw. Rev. Stat. §707–714(1)(a) (2009 Cum. Supp.), or to “[i]ntentionally
discharg[e] a firearm in a populated area,” §707–714(1)(b). I would
infer that discharging the firearm is deemed dangerous enough per se
that the statute does not require the State to prove danger in any given
case. Other States have similar statutes. See, e.g., Del. Code Ann., Tit.
11, §§603(a)(1), (2) (2007); Wyo. Stat. Ann. §§6–2–504(a), (b) (2009); Me.
Rev. Stat. Ann., Tit. 17–A, §§301(1)(B)(1), (2) (Supp. 2010).
Similarly here, I infer that §3(b)(1)(A)’s upgrade of intentional flight
to a class D felony based on the use of a vehicle alone indicates that the
offense inherently qualifies as, or approximates, “operat[ing] a vehicle
in a manner that creates a substantial risk of bodily injury to another
person” under §3(b)(1)(B).
JUSTICE KAGAN argues that if my reading were correct, the Indiana
Legislature would have removed the reference to vehicular flight from
§3(b)(1)(B) when it added §3(b)(1)(A). Post, at 12. There are at least
two problems with this reasoning. First, even though §3(b)(1)(A) may
be redundant with §3(b)(1)(B) as to the vehicular flight offenses in
subsection (a)(3), the reference to “operat[ing] a vehicle” in §3(b)(1)(B) is
still independently useful for the offenses in subsections (a)(1) and (2).
Thus, it is hardly strange for the legislature to have left the reference
to “operat[ing] a vehicle” in §3(b)(1)(B). Second, although JUSTICE
KAGAN can envision a more perfectly drafted statute, we do not require
perfection in statutory drafting. See, e.g., Bruesewitz v. Wyeth LLC,
562 U. S. ___, ___ (2011) (slip op., at 12). I think it clear enough what
the statute means.
12 SYKES v. UNITED STATES

THOMAS, J., concurring in judgment

ment statute confirms that its other provisions do not
reserve §3(b)(1)(A) for nonrisky conduct. An intentional
vehicular flight becomes a class C felony if the vehicle is
operated “in a manner that causes serious bodily injury.”
Ind. Code §35–44–3–3(b)(2). The same act becomes a class
B felony if someone is killed. §35–44–3–3(b)(3).3 JUSTICE
KAGAN asserts that each of these “separate, escalating
crimes” captures an increasing degree of risk and neces
sarily means that §3(b)(1)(A), the offense simpliciter, is
less risky than it otherwise seems. Post, at 7.
The flaw in this reasoning is that §§3(b)(2) and (3) en
hance punishment based solely on the results of the flight,
not the degree of risk it posed. Neither provision requires
any action by a suspect beyond that which satisfies the
elements of §3(b)(1)(A).4 Rather, each provision addresses
what happens when the risk inherent in a violation of
§3(b)(1)(A) is actualized and someone is hurt or killed.
The risk of physical injury inherent in intentional vehicu
lar flight simpliciter was apparently clear enough to spur
the Indiana Legislature to specify greater penalties for the
inevitable occasions when physical injury actually occurs.
By comparison, for obviously nonrisky felonies like insur
ance fraud or misappropriation of escrow funds, legisla
tures do not specify what additional punishment is war
ranted when the crime kills or injures bystanders or
police. See, e.g., Ind. Code §35–43–5–7.2; §35–43–9–7. In
sum, §§3(b)(2) and (3) do not demonstrate that §3(b)(1)(A)
is less risky than it otherwise seems, but instead support
the idea that it is inherently risky.
——————
3 Indiana recently added that if a police officer dies, it becomes a class

A felony. 2010 Ind. Acts p. 1197.
4 For that matter, each provision also could be satisfied by a flight

that did not satisfy §3(b)(1)(B), which casts further doubt on JUSTICE
KAGAN’s vision of the statutory scheme as a unified structure of neatly
progressing offenses with corresponding risk levels and punishments.
See post, at 7.
 Cite as: 564 U. S. ____ (2011) 13

THOMAS, J., concurring in judgment

* * *
Looking to the elements, statistics, common experience,
and cases, I conclude that in the ordinary case, Indiana’s
crime of intentional vehicular flight, §3(b)(1)(A), “involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). The crime
is therefore a violent felony under ACCA.
 Cite as: 564 U. S. ____ (2011) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11311
_________________

MARCUS SYKES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE SCALIA, dissenting.
As the Court's opinion acknowledges, this case is “an
other in a series,” ante, at 1. More specifically, it is an at
tempt to clarify, for the fourth time since 2007, what
distinguishes “violent felonies” under the residual clause
of the Armed Career Criminal Act (ACCA), 18 U. S. C.
§924(e)(2)(B)(ii), from other crimes. See James v. United
States, 550 U. S. 192 (2007); Begay v. United States, 553
U. S. 137 (2008); Chambers v. United States, 555 U. S. 122
(2009). We try to include an ACCA residual-clause case in
about every second or third volume of the United States
Reports.
As was perhaps predictable, instead of producing a clar
ification of the Delphic residual clause, today’s opinion
produces a fourth ad hoc judgment that will sow further
confusion. Insanity, it has been said, is doing the same
thing over and over again, but expecting different results.
Four times is enough. We should admit that ACCA’s
residual provision is a drafting failure and declare it void
for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357
(1983).
I
ACCA defines “violent felony,” in relevant part, as “any
crime punishable by imprisonment for a term exceeding
one year . . . that . . . is burglary, arson, or extortion, in
2 SYKES v. UNITED STATES

SCALIA, J., dissenting

volves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” 18 U. S. C. §924(e)(2)(B)(ii). Many years of
prison hinge on whether a crime falls within this defini
tion. A felon convicted of possessing a firearm who has
three prior violent-felony convictions faces a 15-year man
datory minimum sentence and the possibility of life im
prisonment. See §924(e)(1); see United States v. Harrison,
558 F. 3d 1280, 1282, n. 1 (CA11 2009). Without those
prior convictions, he would face a much lesser sentence,
which could not possibly exceed 10 years. See §924(a)(2).
Vehicular flight is a violent felony only if it falls within
ACCA’s residual clause; that is, if it “involves conduct
that presents a serious potential risk of physical injury to
another.” §924(e)(2)(B)(ii). Today’s opinion says, or ini
tially seems to say, that an offense qualifies as a violent
felony if its elements, in the typical case, create a degree
of risk “ ‘comparable to that posed by its closest analog
among the enumerated offenses.’ ” Ante, at 6. That is a
quotation from the Court’s opinion in the first of our
residual-clause trilogy, James, 550 U. S., at 203. I did not
join that opinion because I thought it should suffice if the
elements created a degree of risk comparable to the least
risky of the enumerated offenses, whether or not it was
the closest analog. See id., at 230 (SCALIA, J., dissenting).
The problem with applying the James standard to the pres
ent case is that the elements of vehicular flight under
Indiana law are not analogous to any of the four enumer
ated offenses. See Ind. Code §35–44–3–3 (2004). Nor is it
apparent which of the enumerated offenses most closely
resembles, for example, statutory rape, see United States
v. Daye, 571 F. 3d 225, 228–236 (CA2 2009); possession of
a sawed-off shotgun, see United States v. Upton, 512 F. 3d
394, 403–405 (CA7 2008); or a failure to report to prison,
see Chambers, supra. I predicted this inadequacy of the
“closest analog” test in my James dissent. See 550 U. S.,
 Cite as: 564 U. S. ____ (2011) 3

SCALIA, J., dissenting

at 215.
But as it turns out, the Court’s inability to identify an
analog makes no difference to the outcome of the present
case. For today’s opinion introduces the James standard
with the words “[f]or instance,” ante, at 6. It is (according
to the Court) merely one example of how the enumerated
crimes (burglary, arson, extortion, and crimes using explo
sives) “provide guidance.” Ibid. And the opinion then
proceeds to obtain guidance from the risky-as-the-least
risky test that I suggested (but the Court rejected) in
James—finding vehicular flight at least as risky as both
arson and burglary. See ante, at 6–9.
But what about the test that determined the outcome in
our second case in this “series”—the “purposeful, violent,
and aggressive” test of Begay? Fear not. That incompati
ble variation has been neither overlooked nor renounced in
today’s tutti-frutti opinion. “In many cases,” we are told,
it “will be redundant with the inquiry into risk.” Ante, at
11. That seems to be the case here—though why, and
when it will not be the case, are not entirely clear. The
Court’s accusation that Sykes “overreads the opinions of
this Court,” ante, at 10, apparently applies to his interpre
tation of Begay’s “purposeful, violent, and aggressive” test,
which the Court now suggests applies only “to strict liabil
ity, negligence, and recklessness crimes,” ante, at 11. But
that makes no sense. If the test excluded only those unin
tentional crimes, it would be recast as the “purposeful”
test, since the last two adjectives (“violent, and aggres
sive”) would do no work. For that reason, perhaps, all 11
Circuits that have addressed Begay “overrea[d]” it just as
Sykes does*—and as does the Government, see Brief for
——————
* See United States v. Holloway, 630 F. 3d 252, 260 (CA1 2011);
United States v. Brown, 629 F. 3d 290, 295–296 (CA2 2011) (per cu
riam); United States v. Lee, 612 F. 3d 170, 196 (CA3 2010); United
States v. Jenkins, 631 F. 3d 680, 683 (CA4 2011); United States v.
Harrimon, 568 F. 3d 531, 534 (CA5 2009); United States v. Young, 580
4 SYKES v. UNITED STATES

SCALIA, J., dissenting

United States 8.
The only case that is not brought forward in today’s
opinion to represent yet another test is the third and most
recent in the trilogy, Chambers, 555 U. S. 122—which
applied both the risky-as-the-least-risky test and the “pur
poseful, violent, and aggressive” test to reach the con
clusion that failure to report for periodic incarceration
was not a crime of violence under ACCA. But today’s
opinion does cite Chambers for another point: Whereas
James rejected the risky-as-the-least-risky approach be
cause, among other reasons, no “hard statistics” on risk
iness “have been called to our attention,” 550 U. S., at
210; and whereas Begay made no mention of statistics;
Chambers explained (as today’s opinion points out) that
“statistical evidence sometimes ‘helps provide a conclusive
. . . answer’ concerning the risks that crimes present,”
ante, at 8 (quoting Chambers, supra, at 129). Today’s
opinion then outdoes Chambers in the volume of statistics
that it spews forth—statistics compiled by the Interna
tional Association of Chiefs of Police concerning injuries
attributable to police pursuits, ante, at 8; statistics from
the Department of Justice concerning injuries attributable
to burglaries, ante, at 9; statistics from the U. S. Fire
Administration concerning injuries attributable to fires,
ibid., and (by reference to JUSTICE THOMAS’s concurrence)
statistics from the National Center for Statistics & Analy
sis, the Pennsylvania State Police Bureau of Research, the
FBI Law Enforcement Bulletin and several articles pub
lished elsewhere concerning injuries attributable to police
pursuits, ante, at 8 (citing ante, at 4–5 (THOMAS, J., con
curring in judgment)).
——————
F. 3d 373, 377 (CA6 2009); United States v. Sonnenberg, 628 F. 3d 361,
364 (CA7 2010); United States v. Boyce, 633 F. 3d 708, 711 (CA8 2011);
United States v. Terrell, 593 F. 3d 1084, 1089–1091 (CA9 2010); United
States v. Ford, 613 F. 3d 1263, 1272–1273 (CA10 2010); United States v.
Harrison, 558 F. 3d 1280, 1295–1296 (CA11 2009).
 Cite as: 564 U. S. ____ (2011) 5

SCALIA, J., dissenting

Supreme Court briefs are an inappropriate place to
develop the key facts in a case. We normally give parties
more robust protection, leaving important factual ques
tions to district courts and juries aided by expert wit
nesses and the procedural protections of discovery. See
Fed. Rule Crim. Proc. 16(a)(1)(F), (G); Fed. Rules Evid.
702–703, 705. An adversarial process in the trial courts
can identify flaws in the methodology of the studies that
the parties put forward; here, we accept the studies’ find
ings on faith, without examining their methodology at all.
The Court does not examine, for example, whether the
police-pursuit data on which it relies is a representative
sample of all vehicular flights. The data may be skewed
towards the rare and riskier forms of flight. See post, at 6,
n. 4 (KAGAN, J., dissenting). We also have no way of
knowing how many injuries reported in that data would
have occurred even absent pursuit, by a driver who was
driving recklessly even before the police gave chase.
Similar questions undermine confidence in the burglary
and arson data the Court cites. For example, the Court
relies on a U. S. Fire Administration dataset to conclude
that 3.3 injuries occur per 100 arsons. See ante, at 9. But
a 2001 report from the same U. S. Fire Administration
suggests that roughly 1 injury occurs per 100 arsons. See
Arson in the United States, Vol. 1 Topical Fire Research
Series, No. 8, pp. 1–2 (rev. Dec. 2001), online at
http://www.usfa.dhs.gov/downloads/pdf/tfrs/v1i8-508.pdf
(as visited May 27, 2011, and available in Clerk of Court’s
case file). The Court does not reveal why it chose one
dataset over another. In sum, our statistical analysis in
ACCA cases is untested judicial factfinding masquerading
as statutory interpretation. Most of the statistics on
which the Court relies today come from government
funded studies, and did not make an appearance in this
litigation until the Government’s merits brief to this
Court. See Brief for Petitioner 17; see also Chambers,
6 SYKES v. UNITED STATES

SCALIA, J., dissenting

supra, at 128–129 (demonstrating that the same was true
in that case).
But the more fundamental problem with the Court’s use
of statistics is that, far from eliminating the vagueness
of the residual clause, it increases the vagueness. Vague
ness, of course, must be measured ex ante—before the
Court gives definitive meaning to a statutory provision,
not after. Nothing is vague once the Court decrees pre
cisely what it means. And is it seriously to be expected
that the average citizen would be familiar with the sundry
statistical studies showing (if they are to be believed) that
this-or-that crime is more likely to lead to physical injury
than what sundry statistical studies (if they are to be
believed) show to be the case for burglary, arson, extor
tion, or use of explosives? To ask the question is to answer
it. A few words, then, about unconstitutional vagueness.
II
When I dissented from the Court’s judgment in James, I
said that the residual clause’s “shoddy draftsmanship” put
courts to a difficult choice:
“They can (1) apply the ACCA enhancement to virtu
ally all predicate offenses, . . . ; (2) apply it case by
case in its pristine abstraction, finding it applicable
whenever the particular sentencing judge (or the par
ticular reviewing panel) believes there is a ‘serious po
tential risk of physical injury to another’ (whatever
that means); (3) try to figure out a coherent way of in
terpreting 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
. . . .” 550 U. S., at 229–230.
My dissent “tried to implement,” id., at 230, the third
option; and the Court, I believed, had chosen the second.
 Cite as: 564 U. S. ____ (2011) 7

SCALIA, J., dissenting

“Today’s opinion,” I wrote, “permits an unintelligible crim
inal statute to survive uncorrected, unguided, and unex
plained.” Id., at 230–231.
My assessment has not been changed by the Court’s
later decisions in the ACCA “series.” Today’s opinion,
which adds to the “closest analog” test (James) the “pur
poseful, violent, and aggressive” test (Begay), and even the
risky-as-the-least-risky test that I had proposed as the
exclusive criterion, has not made the statute’s applica
tion clear and predictable. And all of them together—or
even the risky-as-the-least-risky test alone, I am now
convinced—never will. The residual-clause series will be
endless, and we will be doing ad hoc application of ACCA
to the vast variety of state criminal offenses until the cows
come home.
That does not violate the Constitution. What does vio
late the Constitution is approving the enforcement of a
sentencing statute that does not “give a person of ordinar
ily intelligence fair notice” of its reach, United States v.
Batchelder, 442 U. S. 114, 123 (1979) (internal quotation
marks omitted), and that permits, indeed invites, arbi
trary enforcement, see Kolender, 461 U. S., at 357. The
Court’s ever-evolving interpretation of the residual clause
will keep defendants and judges guessing for years to
come. The reality is that the phrase “otherwise involves
conduct that presents a serious potential risk of physical
injury to another” does not clearly define the crimes that
will subject defendants to the greatly increased ACCA
penalties. It is not the job of this Court to impose a clarity
which the text itself does not honestly contain. And even
if that were our job, the further reality is that we have by
now demonstrated our inability to accomplish the task.
We have, I recognize, upheld hopelessly vague criminal
statutes in the past—indeed, in the recent past. See, e.g.,
Skilling v. United States, 561 U. S. ___ (2010). That is
regrettable, see id., at ___ (SCALIA, J., concurring in part
8 SYKES v. UNITED STATES

SCALIA, J., dissenting

and concurring in judgment) (slip op., at 1). What sets
ACCA apart from those statutes—and what confirms its
incurable vagueness—is our repeated inability to craft a
principled test out of the statutory text. We have demon-
strated by our opinions that the clause is too vague to
yield “an intelligible principle,” ante, at 13, each attempt
to ignore that reality producing a new regime that is less
predictable and more arbitrary than the last. ACCA’s
residual clause fails to speak with the clarity that criminal
proscriptions require. See United States v. L. Cohen Gro-
cery Co., 255 U. S. 81, 89–90 (1921).
The Court believes that the residual clause cannot be
unconstitutionally vague because other criminal prohibi-
tions also refer to the degree of risk posed by a defendant’s
conduct. See ante, at 14. Even apart from the fact that
our opinions dealing with those statutes have not dis-
played the confusion evident in our four ACCA efforts,
this is not the first time I have found the comparison
unpersuasive:
“None of the provisions the Court cites . . . is similar
in the crucial relevant respect: None prefaces its judi-
cially-to-be-determined requirement of risk of physical
injury with the word ‘otherwise,’ preceded by four con-
fusing examples that have little in common with re-
spect to the supposedly defining characteristic. The
phrase ‘shades of red,’ standing alone, does not gener-
ate confusion or unpredictability; but the phrase ‘fire-
engine red, light pink, maroon, navy blue, or colors
that otherwise involve shades of red’ assuredly does
so.” James, 550 U. S., at 230, n. 7.
Of course even if the cited statutes were comparable,
repetition of constitutional error does not produce consti-
tutional truth.
 Cite as: 564 U. S. ____ (2011)
9

SCALIA, J., dissenting

* * *

We face a Congress that puts forth an ever-increasing
volume of laws in general, and of criminal laws in particu
lar. It should be no surprise that as the volume increases,
so do the number of imprecise laws. And no surprise that
our indulgence of imprecisions that violate the Consti
tution encourages imprecisions that violate the Constitu
tion. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts
legislation is attractive to the Congressman who wants
credit for addressing a national problem but does not have
the time (or perhaps the votes) to grapple with the nitty
gritty. In the field of criminal law, at least, it is time to
call a halt. I do not think it would be a radical step—
indeed, I think it would be highly responsible—to limit
ACCA to the named violent crimes. Congress can quickly
add what it wishes. Because the majority prefers to let
vagueness reign, I respectfully dissent.
 Cite as: 564 U. S. ____ (2011) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11311
_________________

MARCUS SYKES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 9, 2011]

JUSTICE KAGAN, with whom JUSTICE GINSBURG joins,
dissenting.
Vehicular flight comes in different varieties, and so too
the statutes that criminalize the conduct. A person may
attempt to outrun police officers by driving recklessly and
at high speed, in disregard of traffic laws and with disdain
for others’ safety. Or a person may fail to heed an officer’s
command to pull over, but otherwise drive in a lawful
manner, perhaps just trying to find a better place to stop.
In Indiana, as in most States, both of these individuals are
lawbreakers. But in Indiana, again as in most States, the
law takes account of the differences between them, by
distinguishing simple from aggravated forms of vehicular
flight. Unlike the Court, I would attend to these distinc
tions when deciding which of Indiana’s several vehicular
flight crimes count as “violent felon[ies]” under the Armed
Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B).
Because petitioner Marcus Sykes was convicted only of
simple vehicular flight, and not of any flight offense in
volving aggressive or dangerous activity, I would find that
he did not commit a “violent felony” under ACCA.
I
As the Court relates, we must decide whether the crime
of which Sykes was convicted falls within ACCA’s “resid
ual clause.” See ante, at 5–6. To do so, the crime must
2 SYKES v. UNITED STATES

KAGAN, J., dissenting

“presen[t] a serious potential risk of physical injury to
another,” §924(e)(2)(B)(ii), and involve conduct that is
“purposeful, violent, and aggressive,” Begay v. United
States, 553 U. S. 137, 145 (2008).1 Because we use the
“categorical approach,” we do not concern ourselves with
Sykes’s own conduct. See Taylor v. United States, 495
U. S. 575, 602 (1990). Nor do we proceed by exploring
whether some platonic form of an offense—here, some
abstract notion of vehicular flight—satisfies ACCA’s re
sidual clause. We instead focus on the elements of the
actual state statute at issue. Cf. Chambers v. United
States, 555 U. S. 122, 126–127 (2009) (breaking down an
Illinois statute into discrete offenses to decide whether the
crime of conviction fit within the residual clause); James v.
United States, 550 U. S. 192, 202 (2007) (examining how
Florida’s law defined attempted burglary to determine if
the residual clause included that offense). More particu
larly, we ask whether “the conduct encompassed by the
elements” of that statute, “in the ordinary case” (not in
every conceivable case), involves the requisite danger and
violence. Id., at 208. By making this inquiry, we attempt
——————
1 I understand the majority to retain the “purposeful, violent, and

aggressive” test, but to conclude that it is “redundant” in this case. See
ante, at 11. Like JUSTICE SCALIA, see ante, at 3 (dissenting opinion), I
find this conclusion puzzling. I do not think the majority could mean to
limit the test to “strict liability, negligence, and recklessness crimes.”
Ante, at 11 (majority opinion). As JUSTICE SCALIA notes, see ante, at 3,
that would be to eliminate the test’s focus on “violence” and “aggres
sion.” And it would collide with Chambers v. United States, 555 U. S.
122 (2009)—a decision the majority cites approvingly, see ante, at 8—
which applied the test to an intentional crime. See 555 U. S., at 128
(opinion of the Court), 130 (Appendix A to opinion of the Court) (hold
ing that “knowin[g] fail[ure] to report to a penal institution” does not
involve “purposeful, violent, or aggressive conduct” (internal quotation
marks omitted)). So I assume this test will make a resurgence—that it
will be declared non-redundant—the next time the Court considers a
crime, whether intentional or not, that involves risk of injury but not
aggression or violence.
 Cite as: 564 U. S. ____ (2011) 3

KAGAN, J., dissenting

to determine whether the crime involved is “characteristic
of the armed career criminal”—or otherwise said, whether
the prohibited conduct is of a kind that “makes more likely
that an offender, later possessing a gun, will use that gun
deliberately to harm a victim.” Begay, 553 U. S., at 145 (in
ternal quotation marks omitted).
Under this approach, some vehicular flight offenses
should count as violent felonies under ACCA. Consider,
for example, a statute that makes it a crime to “willfully
flee from a law enforcement officer by driving at high
speed or otherwise demonstrating reckless disregard for
the safety of others.” Such a statute, by its terms, encom
passes conduct that ordinarily “presents a serious poten
tial risk of physical injury to another.” §924(e)(2)(B)(ii).
And the covered conduct qualifies as “purposeful, violent,
and aggressive.” Id., at 145. When a motorist responds to
an officer’s signal to stop by increasing his speed or taking
reckless evasive action, he turns his car into a weapon and
provokes confrontation. In so doing, he engages in behav
ior “roughly similar, in kind as well as in degree of risk
posed,” to that involved in ACCA’s enumerated offenses—
the sort of conduct, in other words, “typically committed
by . . . ‘armed career criminals.’ ” Id., at 143, 146. Like the
majority, see ante, at 9–10, I therefore would classify
crimes of this type—call them aggravated vehicular flight
offenses—as violent felonies under ACCA.
But a vehicular flight offense need not target aggressive
and dangerous behavior. Imagine the converse of the
statute described above—a statute making it a crime to
“willfully flee from a law enforcement officer without
driving at high speed or otherwise demonstrating reckless
disregard for the safety of others.” That hypothetical
statute addresses only simple vehicular flight: mere dis
regard of a police officer’s directive to stop, devoid of addi
tional conduct creating risk to others. This behavior—
often called “failure to stop”—is illegal in most States
4 SYKES v. UNITED STATES

KAGAN, J., dissenting

(under a wide variety of statutory provisions). In Indiana,
for example, a driver who “know[s] that a police officer
wishes to effectuate a traffic stop” may commit a felony if
he attempts to “choose the location of the stop,” rather
than pulling over immediately; it makes no difference that
the driver “did not speed or disobey any . . . traffic laws.”
Woodward v. State, 770 N. E. 2d 897, 902 (Ind. App.
2002).2 But a mere failure to stop does not usually “pre
sen[t] a serious potential risk of physical injury to an
other,” §924(e)(2)(B)(ii), any more than normal driving
does. Nor is this conduct “violent . . . and aggressive.”
Begay, 553 U. S., at 145; see Brief for United States 43
(characterizing as “nonviolent” a flight from police that
complies with “all traffic laws”). True, the offender is
ignoring a command he should obey. But nothing in his
behavior is affirmatively belligerent: It does not “show an
increased likelihood that [he] is the kind of person who
might deliberately point the gun and pull the trigger.”
Begay, 553 U. S., at 146.3 And so, under our precedents, a
statute criminalizing only simple vehicular flight would
not fall within ACCA’s residual clause. I do not under
——————
2 The majority attempts to show that Woodward involved conduct

more risky and violent than a simple failure to stop. See ante, at 3; see
also ante, at 7 (THOMAS, J., concurring in judgment). But the facts of
that case, like the facts of this one, are irrelevant. Under ACCA, all
that matters is the elements of the offense, and the Indiana Court of
Appeals held in Woodward that a person who “merely fail[s] to stop” for
police, and does nothing more, commits a felony under state law. 770
N. E. 2d, at 900–902.
3 Indeed, a driver may refrain from pulling over immediately out of

concern for his own safety. He may worry, for example, that road con
ditions make it hazardous to stop. Or a driver may fear that the
person initiating the stop is a criminal rather than a police officer. See,
e.g., Brennan, Rapist to Spend Life in Prison, Tampa Tribune, Feb. 18,
2011, Metro section, p. 3 (“[A man] impersonating a police officer . . .
used the ruse to pull over a woman . . . and then kidnap and rape her”);
DeKunder, Watch for “Fake” Police, Local Authorities Warn, Northeast
Herald, Jan. 14, 2010, pp. 12, 13 (noting several similar incidents).
 Cite as: 564 U. S. ____ (2011) 5

KAGAN, J., dissenting

stand the majority to disagree.
The Indiana provision under which Sykes was convicted
straddles the two hypothetical statutes I have just de
scribed. That provision, subsection (b)(1)(A), states that a
person commits a felony if he “flees from a law enforce
ment officer” while “us[ing] a vehicle.” Ind. Code §§35–44–
3–3(a)(3), (b)(1)(A) (2009). As the Indiana courts have
recognized, the subsection thus criminalizes mere failure
to stop, which should not count as a violent felony under
ACCA. See Woodward, 770 N. E. 2d 897; supra, at 4, and
n. 2. But the provision also includes more violent forms of
vehicular flight: It covers a person who speeds or drives
recklessly, who leads the police on a “Hollywood-style car
chase,” Scott v. Harris, 550 U. S. 372, 380 (2007), and who
endangers police officers, other drivers, and pedestrians.
And so the “conduct encompassed by the elements” of
this subsection, James, 550 U. S., at 208, runs the gamut—
from simple to aggravated vehicular flight, from the least
violent to the most violent form of the activity. Accord,
ante, at 9–10 (THOMAS, J., concurring in judgment) (stat
ing that subsection (b)(1)(A) is “not restrict[ed] . . . to
nonrisky conduct”). The question presented is whether
such a facially broad provision meets the requirements of
ACCA’s residual clause.
If subsection (b)(1)(A) were the whole of Indiana’s law
on vehicular flight, the majority would have a reasonable
argument that the provision does so. As noted, a statute
fits within the residual clause if it covers conduct that in
the ordinary case—not in every conceivable case—poses
serious risk of physical injury and is purposeful, violent,
and aggressive. See James, 550 U. S., at 208; Begay, 553
U. S., at 145. We therefore must decide what the ordinary
case of vehicular flight actually is. Is it the person trying
to escape from police by speeding or driving recklessly, in
a way that endangers others? Or is it instead the person
driving normally who, for whatever reason, fails to re
6 SYKES v. UNITED STATES

KAGAN, J., dissenting

spond immediately to a police officer’s signal? The Gov
ernment has not presented any empirical evidence ad
dressing this question, and such evidence may not in fact
exist.4 See Wells & Falcone, Research on Police Pursuits:
Advantages of Multiple Data Collection Strategies, 20
Policing Int’l J. Police Strategies & Management 729
(1997) (“Collecting valid and reliable data on policing
activities is a perennial problem . . . . This is particularly
true when studying . . . vehicle pursuits”); cf. Begay, 553
U. S., at 154 (SCALIA, J., concurring in judgment) (“Need
less to say, we do not have these relevant statistics”). But
the majority’s intuition that dangerous flights outstrip
mere failures to stop—that the aggravated form of the
activity is also the ordinary form—seems consistent with
common sense and experience. So that judgment, even
though unsupported by data, would likely be sufficient to
justify the Court’s conclusion were subsection (b)(1)(A) the
only relevant provision.
But subsection (b)(1)(A) does not stand alone, and the
context of the provision casts a different light on it. Like a
great many States (45 by my count), Indiana divides the
——————
4 The Government offers anecdotal examples and statistical surveys

of vehicular flights, see Brief for United States 13–15, 17–22, but none
helps to answer whether the “ordinary” case of vehicular flight is
aggravated or simple. Cf. ante, at 4–6 (SCALIA, J., dissenting). The an
ecdotes and all but one of the surveys demonstrate only that some
vehicular flights result in serious injury, a proposition no one does or
could dispute. The single statistical study cited by the Government
that posits an injury rate for vehicular flight concludes that about 4% of
7,737 reported police pursuits harmed police or bystanders. But that
study may well involve only aggravated flights. See C. Lum & G.
Fachner, Police Pursuits in an Age of Innovation and Reform 55 (2008)
(noting that the study relies on voluntary and non-systematic reporting
and that participating police departments might not have reported
“informal” incidents). And even assuming the study is comprehensive,
it is entirely consistent with the possibility that the “ordinary case”—
i.e., the most common form—of vehicular flight is mere failure to stop,
which produces a much lower rate of injury.
 Cite as: 564 U. S. ____ (2011) 7

KAGAN, J., dissenting

world of vehicular flight into discrete categories, corre
sponding to the seriousness of the criminal behavior. At
the time of Sykes’s conviction, Indiana had four degrees
of vehicular flight, only the first of which—subsection
(b)(1)(A)—covered mere failure to stop.5 See Ind. Code
§35–44–3–3. Indiana classified as a felon any person who:
• “flees from a law enforcement officer” while “us[ing]
a vehicle,” §3(b)(1)(A);
• “flees from a law enforcement officer” while “op
erat[ing] a vehicle in a manner that creates a sub
stantial risk of bodily injury to another person,”
§3(b)(1)(B);6
• “flees from a law enforcement officer” while “op
erat[ing] a vehicle in a manner that causes serious
bodily injury to another person,” §3(b)(2); or
• “flees from a law enforcement officer” while “op
erat[ing] a vehicle in a manner that causes the
death of another person,” §3(b)(3) (all emphasis
added).
Vehicular flight in Indiana is therefore not a single of
fense, but instead a series of separate, escalating crimes.
Each category captures conduct more dangerous than the
one before it, as shown by the language italicized above.7
——————
5 After Sykes’s conviction, Indiana added yet a fifth degree. See 2010

Ind. Acts p. 1197. The four degrees described above remain unchanged.
6 This provision also bars a range of other conduct. See n. 9, infra.
7 JUSTICE THOMAS attempts to bisect this series by stating that the

two most serious degrees of aggravated vehicular flight “enhance
punishment based solely on the results of the flight, not the degree of
risk it posed.” Ante, at 11–12. But conduct that leads to serious injury
or death is ordinarily more risky, viewed ex ante, than conduct that
does not produce these results. And in any event, the fundamental
point here is that the Indiana statute grades vehicular flight according
to the seriousness of the behavior—ranging from flight that need not
pose any risk of harm, through flight posing a substantial risk of harm,
to flight involving a certainty of harm. Subsections (b)(2) and (b)(3)
8 SYKES v. UNITED STATES

KAGAN, J., dissenting

And at the very beginning of this series is subsection
(b)(1)(A), the offense of which Sykes was convicted.
That placement alters the nature of the analysis. We
have previously examined the way statutory provisions
relate to each other to determine whether a particular
provision counts as a violent felony under ACCA. In
Chambers, 555 U. S., at 126–127, we considered an Illinois
statute prohibiting within a single section several differ
ent kinds of behavior, including escape from a penal insti
tution and failure to report to a penal institution. The
courts below had treated the statute as defining a single
crime of felonious escape and held that crime to qualify as
a violent felony under ACCA. See id., at 125; United
States v. Chambers, 473 F. 3d 724, 725–726 (CA7 2007).
We disagreed, stating that failure to report was a distinct
offense, which did not meet ACCA’s requirements. That
was so, we stated, because “[t]he behavior that likely
underlies a failure to report would seem less likely to
involve a risk of physical harm than the less passive, more
aggressive behavior underlying an escape from custody.”
Chambers, 555 U. S., at 127. In addition, we noted, the
statute “list[ed] escape and failure to report separately
(in its title and its body).” Ibid. We thus considered
the failure-to-report clause in its statutory context—as
one part of a legislature’s delineation of related criminal
offenses—to determine whether the behavior it encom
passed ordinarily poses a serious risk of injury.
That same focus on statutory structure resolves this
case, because it reveals subsection (b)(1)(A) to aim at a
single form—the least serious form—of vehicular flight.
Remember: Indiana has made a purposeful choice to di
vide the full spectrum of vehicular flight into different
——————

thus underscore that Indiana has divided the world of vehicular flight

into discrete, ascending crimes, rather than treating all vehicular flight

as of a piece.

 Cite as: 564 U. S. ____ (2011) 9

KAGAN, J., dissenting

degrees, based on the danger associated with a driver’s
conduct. Once again, starting with the most serious con
duct: flight resulting in death; flight resulting in physical
injury; flight creating a substantial risk of physical in-
jury; flight. That last category—flight—almost screams to
have the word “mere” placed before it. Under the In
diana statute, flight—the conduct prohibited by subsection
(b)(1)(A)—is what is left over when no aggravating factor
causing substantial risk or harm exists. Put on blinders,
and the subsection is naturally understood to address all
flight, up to and including the most dangerous kinds. But
take off those blinders—view the statute as a whole—and
the subsection is instead seen to target failures to stop.
In this vein, the distinction between subsections
(b)(1)(A) and (b)(1)(B) is especially telling. As noted,
subsection (b)(1)(B) prohibits vehicular flight that “creates
a substantial risk of bodily injury to another person.”
That language almost precisely tracks the phrasing of
ACCA’s residual clause, which refers to conduct that
“presents a serious potential risk of physical injury to
another.” 18 U. S. C. §924(e)(2)(B)(ii). This correspon
dence indicates that the conduct criminalized under sub
section (b)(1)(B) qualifies as a violent felony under ACCA.
But subsection (b)(1)(A) lacks the very feature that makes
subsection (b)(1)(B) and ACCA such a perfect match: It
does not require any behavior that poses serious risk to
others. This difference in statutory elements indicates
that subsection (b)(1)(B)—but not subsection (b)(1)(A)—is
directed toward the conduct described in ACCA’s residual
clause. To count both as ACCA offenses is to pay insuffi
cient heed to the way the Indiana Legislature drafted its
statute—as a series of escalating offenses, ranging from
the simple to the most aggravated.8
——————
8 None of this is to deny that prosecutors may sometimes charge vio

lent and dangerous offenders under subsection (b)(1)(A). A prosecutor
10 SYKES v. UNITED STATES

KAGAN, J., dissenting

II

The Court does not deny that a State’s decision to divide
a generic form of conduct (like vehicular flight) into sep
arate, escalating crimes may make a difference under
ACCA; rather, the Court declines to address that question.
See ante, at 13. The Court rejects the structural argument
here for one, and only one, reason. Indiana, the major-
ity says, “treats violations of subsections (b)(1)(A) and
(b)(1)(B) as crimes of the same magnitude”: They are both
class D felonies carrying the same punishment.9 See also
——————
may elect to use a lower grade of vehicular flight when he could use a
higher one, either as a matter of discretion or because the defendant
entered into a plea bargain. This case provides one example, see ante,
at 4 (majority opinion), and JUSTICE THOMAS offers several others, see
ante, at 6–7. But as everyone agrees, what matters in determining
whether an offense qualifies under ACCA’s residual clause is the
“ordinary case” of conviction. And in the absence of reliable empirical
evidence, the structure of the Indiana statute provides the best way to
discern the ordinary case under each subsection.
9 The Government spurns the structural argument on a different

ground, contending that subsection (b)(1)(A) is not a lesser included
offense of subsection (b)(1)(B). The Court wisely does not accept this
claim. Both subsections (b)(1)(A) and (b)(1)(B) involve the use of a
vehicle to flee, with subsection (b)(1)(B) additionally requiring that this
use “creat[e] a substantial risk of bodily injury.” So a fleeing driver
who violates subsection (b)(1)(B) necessarily runs afoul of subsection
(b)(1)(A) as well. The Government contends, in response, that a person
can violate subsection (b)(1)(B) and not (b)(1)(A) by engaging in conduct
other than vehicular flight. See Brief for United States 48–49, n. 11.
That is because subsection (b)(1)(B) additionally prohibits “obstruct
[ing]” or “resist[ing]” a police officer by a variety of means, including
through use of a vehicle. But Indiana law makes clear that subsec
tion (b)(1)(A) still counts as a lesser included offense of subsection
(b)(1)(B) in any prosecution involving vehicular flight. See Wright v.
State, 658 N. E. 2d 563, 566–567 (Ind. 1995) (holding a crime to be a
lesser included offense if its elements are “factually” subsumed within
another offense). And even if that were not the case, it should make no
difference. The meaningful question for purposes of ACCA is whether
subsection (b)(1)(B)’s prohibition of aggravated vehicular flight indi
cates that subsection (b)(1)(A) targets simple vehicular flight. That a
 Cite as: 564 U. S. ____ (2011) 11

KAGAN, J., dissenting

ante, at 8–9 (THOMAS, J., concurring in judgment). But
the Court is wrong to think that fact dispositive.
In general, “similar punishment does not necessarily
imply similar risk” (or similar violence). James, 550 U. S.,
at 217 (SCALIA, J., dissenting). Because this is so, the
Court has never suggested that all state offenses falling
within a single felony class and subject to the same penal
ties must receive the same treatment under ACCA. To the
contrary, we have always focused on the “conduct encom
passed by the elements of the offense,” id., at 208 (major
ity opinion)—an inquiry that does not mention the of
fense’s sentencing consequences. And that is for good
reason. It would be quite remarkable if either all or none
of Indiana’s (or any State’s) class D felonies satisfied the
requirements of the residual clause. In Indiana, other
such felonies, subject to “the same magnitude” of punish
ment, ante, at 12, include election fraud, computer tam
pering, and “cemetery mischief.” See Ind. Code §3–14–2–1
et seq. (2009); §35–43–1–4; §35–43–1–2.1. I presume the
Court does not also intend to treat these offenses as vio
lent felonies under ACCA.
Moreover, Indiana sentencing law has always enabled
judges to take account of the difference between subsec
tions (b)(1)(A) and (b)(1)(B) in imposing punishment. As
the majority notes, ante, at 12, Indiana provides for a
range of prison terms for class D felonies, stretching
from six months to three years. And in deciding what
term to impose (or whether to suspend the term), courts
may consider an array of aggravating factors—including
whether the crime “threatened serious harm to per-
sons,” §35–38–1–7.1(b)(1). Convictions under subsections
(b)(1)(A) and (b)(1)(B) therefore may produce widely vary
ing sentences, as judges respond to the different forms
——————

person can violate subsection (b)(1)(B) by means independent of any

vehicular flight has no bearing on that question.

12 SYKES v. UNITED STATES

KAGAN, J., dissenting

of vehicular flight targeted by the offenses.
The Court argues, in support of its position, that the
“similarity in punishment” reveals that the conduct falling
within subsection (b)(1)(A) is “rough[ly] equivalent,” in
terms of risk, to the conduct falling within subsection
(b)(1)(B). Ante, at 12 (internal quotation marks omitted);
see also ante, at 10–11 (THOMAS, J., concurring in judg
ment). More specifically, the Court claims that the Indi
ana Legislature added subsection (b)(1)(A) to the statute
in 1998 because it determined that vehicular flight is per
se risky—and that all such flight therefore deserves the
same punishment as is meted out to the various non-flight
conduct that subsection (b)(1)(B) prohibits upon a showing
of risk. See ante, at 12; see also n. 9, supra. But that
argument disregards the legislature’s decision to criminal
ize vehicular flight in both provisions—that is, to retain
subsection (b)(1)(B)’s prohibition on risky vehicular flight
alongside subsection (b)(1)(A)’s ban on simple flight. In
effect, the Court reads subsection (b)(1)(A) as including all
vehicular flight and subsection (b)(1)(B) as including only
the other (non-flight) things it mentions—even though
subsection (b)(1)(B) specifically bars “flee[ing] from a law
enforcement officer . . . in a manner that creates a sub
stantial risk of bodily injury.”
Perhaps the Court assumes that the Indiana Legisla
ture, in enacting subsection (b)(1)(A), simply forgot to
remove the reference to vehicular flight in subsection
(b)(1)(B). Cf. ante, at 10 (THOMAS, J., concurring in judg
ment) (acknowledging superfluity). But if so, the legis
lature forgot four more times to correct its error, as it
serially amended and re-amended its vehicular-flight stat-
ute over the last 13 years.10 And more fundamentally, a
——————
10 See 2011 Ind. Acts pp. 91–92; 2010 Ind. Acts pp. 1196–1197, 1186–

1187; 2006 Ind. Acts p. 2470. Notably, one of these amendments
revised subsection (b)(1)(B) itself. See ibid.
 Cite as: 564 U. S. ____ (2011) 13

KAGAN, J., dissenting

better explanation than legislative mistake is available for
Indiana’s decision to enact subsection (b)(1)(A) while
keeping subsection (b)(1)(B)’s ban on risky vehicular flight.
Prior to 1998, Indiana, unlike most other States in the
nation, cf. infra, at 13, did not criminalize simple vehicu
lar flight (i.e., failure to stop) at all. See 1998 Ind. Acts
677–678. So Indiana’s decision to create that offense in
subsection (b)(1)(A)—and to distinguish it from the more
aggravated forms of vehicular flight already penalized
under subsections (b)(1)(B), (b)(2), and (b)(3)—brought
the State’s vehicular-flight statute into conformity with
the prevailing approach used nationwide. Especially given
that backdrop, I would not impute shoddy draftsmanship
to the Indiana Legislature. I would heed what that body
said, rather than assume (just because it made both of
fenses class D felonies) that it must have meant something
different. And what the legislature said is that vehicular
flight comes in different forms—one posing substantial
risk of injury (subsection (b)(1)(B)) and one not (subsection
(b)(1)(A)).
The best that can be said for the Court’s approach is
that it is very narrow—indeed, that it decides almost no
case other than this one. As noted above, see supra, at 10,
the Court reserves the question whether a vehicular flight
provision like subsection (b)(1)(A) is a crime of violence
under ACCA “where that offense carries a less severe
penalty than [a greater] offense that includes it.” Ante, at
13. But as fate would have it, that reservation describes
the great majority of vehicular flight statutes across the
country. Indiana is idiosyncratic in this respect; other
States not only separately prohibit, but also differently
punish, simple and aggravated vehicular flight.11 Or
——————
11 See, e.g., Fla. Stat. §316.1935 (2010); Mich. Comp. Laws Ann.

§257.602a (West 2010); Minn. Stat. §609.487 (2009); N. J. Stat. Ann.
§2C:29–2 (West Supp. 2011); S. C. Code Ann. §56–5–750 (2006); Tenn.
14 SYKES v. UNITED STATES

KAGAN, J., dissenting

perhaps I should say Indiana was idiosyncratic. That is
because in 2006, a few years after Sykes’s conviction,
Indiana amended its vehicular flight statute to set differ
ent penalties for violations of subsections (b)(1)(A) and
(b)(1)(B). A person who violates subsection (b)(1)(B) today
faces a mandatory 30-day sentence that cannot be sus
pended; that sentence rises to six months or one year
for repeat offenders. See Ind. Code §35–44–3–3(d). By
contrast, a person who violates subsection (b)(1)(A), even
more than once, is not subject to any mandatory jail time.
See §35–44–3–3(d). So by its own terms, the Court’s
opinion—our fourth applying ACCA’s residual clause in as
many years—applies only to a single State’s vehicular
flight statute as it existed from 1998 to 2006. Cf. ante, at
7 (SCALIA, J., dissenting) (“[W]e will be doing ad hoc appli
cation of ACCA . . . until the cows come home”).
* * *
The Indiana statute before us creates a series of escalat
ing offenses dividing the universe of vehicular flight into
discrete categories. One of those categories, subsection
(b)(1)(B), requires proof that the defendant operated “a
vehicle in a manner that creates a substantial risk of
bodily injury.” That phrase tracks the language that
ACCA’s residual clause uses to define a crime of violence.
Other provisions in the Indiana statute demand even
more—actual injury or death. In stark contrast, subsec
tion (b)(1)(A), the least severe of the State’s vehicular
flight offenses and the one of which Sykes was convicted,
lacks any element relating to threat of physical injury. In
deciding this case, I would respect that statutory differ
ence. And because I would take the Indiana Legislature
at its word, I respectfully dissent.

——————
Code Ann. §39–16–603 (Supp. 2011); Tex. Penal Code §38.04 (West
2011); Utah Code Ann. §76–8–305.5 (Lexis 2008).