Johnson v. United States

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

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

SUPREME COURT OF THE UNITED STATES

Syllabus

JOHNSON v. UNITED STATES

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

No. 08–6925. Argued October 6, 2009—Decided March 2, 2010
Petitioner Johnson pleaded guilty to possession of ammunition by a
convicted felon. 18 U. S. C. §922(g)(1). The Government sought sen
tencing under the Armed Career Criminal Act, which authorizes an
enhanced penalty for a person who violates §922(g) and who “has
three previous convictions” for “a violent felony,” §924(e)(1), defined
as, inter alia, an offense that “has as an element the use . . . of physi
cal force against the person of another,” §924(e)(2)(B)(i). Among the
three prior felony convictions the Government proffered was John
son’s 2003 Florida conviction for simple battery, which ordinarily is a
first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony
conviction for Johnson because he had previously been convicted of
another battery, Fla. Stat. §784.03(2). Under Florida law, a battery
occurs when a person either “[a]ctually and intentionally touches or
strikes another person against [his] will,” or “[i]ntentionally causes
bodily harm to another person.” §784.03(1)(a). Nothing in the record
permitted the District Court to conclude that Johnson’s 2003 convic
tion rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily
harm” elements of the offense. Accordingly, his conviction was a
predicate conviction for a “violent felony” under the Armed Career
Criminal Act only if “[a]ctually and intentionally touch[ing]” another
constitutes the use of “physical force” under §924(e)(2)(B)(i). Con
cluding it does, the District Court enhanced Johnson’s sentence un
der §924(e)(1), sentencing him to a term of 15 years and 5 months.
The Eleventh Circuit affirmed.
Held: The Florida felony offense of battery by “[a]ctually and intention
ally touch[ing]” another person does not have “as an element the use
. . . of physical force against the person of another,” §924(e)(2)(B)(i),
and thus does not constitute a “violent felony” under §924(e)(1).
2 JOHNSON v. UNITED STATES

Syllabus

Pp. 3–12.
(a) In interpreting the phrase “physical force” in §924(e)(2)(B)(i),
the Court is not bound by the Florida Supreme Court’s conclusion in
State v. Hearns, 961 So. 2d 211, 218, that, under Florida’s statutory
equivalent to the Armed Career Criminal Act, Fla. Stat. §775.084,
the offense of battery does not “involve the use . . . of physical force or
violence against any individual,” Fla. Stat. §776.08. The meaning of
“physical force” in §924(e)(2)(B)(i) is a question of federal law, not
state law. The Court is bound, however, by the Florida Supreme
Court’s interpretation of the elements of the state law offense, includ
ing the Florida Supreme Court’s holding that §784.03(1)(a)’s element
of “[a]ctually and intentionally touching” another person is satisfied
by any intentional physical contact, no matter how slight. Pp. 3–4.
(b) Because §924(e)(2)(B)(i) does not define “physical force,” the
Court gives the phrase its ordinary meaning. Bailey v. United States,
516 U. S. 137, 144–145. The adjective “physical” is clear. The noun
“force,” however, has a number of meanings. Its ordinary meaning
refers to the application of strength, power, and violence—in this con
text, against another person. Pp. 4–5.
(c) The Government suggests that “force” in §924(e)(2)(B)(i)’s defi
nition of “violent felony” is a legal term of art describing one of the
elements of the common-law crime of battery. At common law, that
element was satisfied by even the slightest offensive touching. Al
though a common-law term of art should be given its established
common-law meaning, the Court does not ascribe to a statutory term
a common-law meaning where that meaning does not fit. Here
“physical force” is used in defining not the crime of battery, but
rather the statutory category of “violent felony.” §924(e)(2)(B)(i). In
that context, “physical force” means violent force—i.e., force capable
of causing physical pain or injury to another person. Cf. Leocal v.
Ashcroft, 543 U. S. 1, 11. Moreover, it is significant that the meaning
the Government seeks to impute to the term “force” derives from the
elements of a common-law misdemeanor. Nothing in the text of
§924(e)(2)(B)(i) suggests that “force” in the definition of a “violent fel
ony” should be regarded as a common-law term of art used to define
the contours of a misdemeanor. Nor can any negative inference
about the amount of “force” required by §924(e)(2)(B)(i) be drawn
from §924(e)(2)(B)(ii) and §922(g)(8)(C)(ii). Pp. 5–9.
(d) There is no force to the Government’s prediction that this deci
sion will undermine its ability to enforce §922(g)(9)’s firearm disabil
ity against a person previously convicted of a misdemeanor crime of
domestic violence that has as an element the “use . . . of physical
force,” §921(a)(33)(A)(ii). The Court interprets the phrase “physical
force” only in the context of a statutory definition of “violent felony,”
 Cite as: 559 U. S. ____ (2010) 3

Syllabus

and does not decide whether the same meaning applies in the context
of defining the scope of misdemeanor offenses. Similarly misplaced is
the Government’s assertion that it will now be more difficult to ob
tain sentencing enhancements for individuals convicted under ge
neric felony-battery statutes that cover both violent force and un
wanted physical contact, and to remove an alien convicted of a
nonviolent battery conviction under the statutory provision for an
alien convicted of a “crime of domestic violence,” 8 U. S. C.
§1227(a)(2)(E). See, e.g., Chambers v. United States, 555 U. S. ___,
___; Shepard v. United States, 544 U. S. 13, 26. Pp. 9–11.
(e) Before the District Court the Government disclaimed any reli
ance upon the so-called “residual clause” of the definition of “violent
felony” in §924(e)(2)(B)(ii), which covers an offense that “involves
conduct that presents a serious potential risk of physical injury to
another.” Accordingly, the Court declines to remand for considera
tion whether Johnson’s 2003 battery conviction qualifies as a “violent
felony” under that provision. Pp. 11–12.
528 F. 3d 1318, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J.,
joined.
 Cite as: 559 U. S. ____ (2010) 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. 08–6925
_________________

CURTIS DARNELL JOHNSON, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[March 2, 2010]

JUSTICE SCALIA delivered the opinion of the Court.
We decide whether the Florida felony offense of battery
by “[a]ctually and intentionally touch[ing]” another per
son, Fla. Stat. §784.03(1)(a), (2) (2003), “has as an element
the use . . . of physical force against the person of an
other,” 18 U. S. C. §924(e)(2)(B)(i), and thus constitutes a
“violent felony” under the Armed Career Criminal Act,
§924(e)(1).
I
Curtis Johnson pleaded guilty to knowingly possessing
ammunition after having been convicted of a felony, in
violation of 18 U. S. C. §922(g)(1). The Government
sought an enhanced penalty under §924(e), which provides
that a person who violates §922(g) and who “has three
previous convictions” for “a violent felony” “committed on
occasions different from one another” shall be imprisoned
for a minimum of 15 years and a maximum of life. A
“violent felony” is defined as “any crime punishable by
imprisonment for a term exceeding one year” that:
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
2 JOHNSON v. UNITED STATES

Opinion of the Court

another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre
sents a serious potential risk of physical injury to an
other.” §924(e)(2)(B).
Johnson’s indictment specified five prior felony convic
tions. The Government contended that three of those
convictions—for aggravated battery and for burglary of a
dwelling in October 1986, and for battery in May 2003—
rendered Johnson eligible for sentencing under §924(e)(1).
At the sentencing hearing, Johnson did not dispute that
the two 1986 convictions were for “violent felon[ies],” but
he objected to counting his 2003 battery conviction. That
conviction was for simple battery under Florida law, which
ordinarily is a first-degree misdemeanor, Fla. Stat.
§784.03(1)(b), but is a third-degree felony for a defendant
who (like Johnson) has been convicted of battery (even
simple battery) before, §784.03(2).
Under §784.03(1)(a), a battery occurs when a person
either “1. [a]ctually and intentionally touches or strikes
another person against the will of the other,” or
“2. [i]ntentionally causes bodily harm to another person.”
Because the elements of the offense are disjunctive, the
prosecution can prove a battery in one of three ways.
State v. Hearns, 961 So. 2d 211, 218 (Fla. 2007). It can
prove that the defendant “[i]ntentionally caus[ed] bodily
harm,” that he “intentionally str[uck]” the victim, or that
he merely “[a]ctually and intentionally touche[d]” the
victim.
Since nothing in the record of Johnson’s 2003 battery
conviction permitted the District Court to conclude that it
rested upon anything more than the least of these acts, see
Shepard v. United States, 544 U. S. 13, 26 (2005) (plural
ity opinion), his conviction was a predicate conviction for a
“violent felony” under the Armed Career Criminal Act only
 Cite as: 559 U. S. ____ (2010) 3

Opinion of the Court

if “[a]ctually and intentionally touch[ing]” another person
constitutes the use of “physical force” within the meaning
of §924(e)(2)(B)(i). The District Court concluded that it
does, and accordingly sentenced Johnson under §924(e)(1)
to a prison term of 15 years and 5 months.
The Eleventh Circuit affirmed. 528 F. 3d 1318 (2008).
We granted certiorari, 555 U. S. ___ (2009).
II
Florida has a statute similar to the Armed Career
Criminal Act that imposes mandatory-minimum sentences
upon “violent career criminal[s],” Fla. Stat. §775.084(4)(d)
(2007), defined to mean persons who have three convic
tions for certain felonies, including any “forcible felony,”
§775.084(1)(d)(1)(a). “[F]orcible felony” is defined to in
clude a list of enumerated felonies—including murder,
manslaughter, sexual battery, carjacking, aggravated
assault, and aggravated battery—and also “any other
felony which involves the use or threat of physical force or
violence against any individual.” §776.08. In Hearns, the
Florida Supreme Court held that the felony offense of
battery on a law enforcement officer, §784.07(2)(b)—which
requires the same conduct (directed against a law en
forcement officer) as misdemeanor battery under
§784.03(1)(a)—was not a forcible felony. See 961 So. 2d, at
219. It said that since §784.03(1)(a) requires proof of only
the slightest unwanted physical touch, “the use . . . of
physical force” was not an element of the offense. Id., at
219.
Johnson argues that in deciding whether any unwanted
physical touching constitutes “physical force” under 18
U. S. C. §924(e)(2)(B)(i), we are bound by the Florida
Supreme Court’s conclusion in Hearns that it does not
constitute “physical force.” That is not so. The meaning of
“physical force” in §924(e)(2)(B)(i) is a question of federal
law, not state law. And in answering that question we are
4 JOHNSON v. UNITED STATES

Opinion of the Court

not bound by a state court’s interpretation of a similar—or
even identical—state statute.
We are, however, bound by the Florida Supreme Court’s
interpretation of state law, including its determination of
the elements of Fla. Stat. §784.03(2). See Johnson v.
Fankell, 520 U. S. 911, 916 (1997). The Florida Supreme
Court has held that the element of “actually and inten
tionally touching” under Florida’s battery law is satisfied
by any intentional physical contact, “no matter how
slight.” Hearns, 961 So. 2d, at 218. The most “nominal
contact,” such as a “ta[p] . . . on the shoulder without
consent,” id., at 219, establishes a violation. We apply
“th[is] substantive elemen[t] of the criminal offense,”
Jackson v. Virginia, 443 U. S. 307, 324, n. 16 (1979), in
determining whether a felony conviction for battery under
Fla. Stat. §784.03(2) meets the definition of “violent fel
ony” in 18 U. S. C. §924(e)(2)(B)(i).
III
Section 924(e)(2)(B)(i) does not define “physical force,”
and we therefore give the phrase its ordinary meaning.
Bailey v. United States, 516 U. S. 137, 144–145 (1995).
The adjective “physical” is clear in meaning but not of
much help to our inquiry. It plainly refers to force exerted
by and through concrete bodies—distinguishing physical
force from, for example, intellectual force or emotional
force. It is the noun that poses the difficulty; “force” has a
number of meanings. For present purposes we can ex
clude its specialized meaning in the field of physics: a
cause of the acceleration of mass. Webster’s New Interna
tional Dictionary 986 (2d ed. 1954) (hereinafter Webster’s
Second). In more general usage it means “[s]trength or
energy; active power; vigor; often an unusual degree of
strength or energy,” “[p]ower to affect strongly in physical
relations,” or “[p]ower, violence, compulsion, or constraint
exerted upon a person.” Id., at 985. Black’s Law Diction
 Cite as: 559 U. S. ____ (2010) 5

Opinion of the Court

ary 717 (9th ed. 2009) (hereinafter Black’s) defines “force”
as “[p]ower, violence, or pressure directed against a person
or thing.” And it defines “physical force” as “[f]orce con
sisting in a physical act, esp. a violent act directed against
a robbery victim.” Ibid. All of these definitions suggest a
degree of power that would not be satisfied by the merest
touching.
There is, however, a more specialized legal usage of the
word “force”: its use in describing one of the elements of
the common-law crime of battery, which consisted of the
intentional application of unlawful force against the per
son of another. See 2 W. LaFave & A. Scott, Substantive
Criminal Law §7.15(a), p. 301 (1986 and Supp. 2003);
accord, Black’s 173. The common law held this element of
“force” to be satisfied by even the slightest offensive touch
ing. See 3 W. Blackstone, Commentaries on the Laws of
England 120 (1768) (hereinafter Blackstone); Lynch v.
Commonwealth, 131 Va. 762, 765, 109 S. E. 427, 428
(1921); see also 2 LaFave & Scott, supra, §7.15(a). The
question is whether the term “force” in 18 U. S. C.
§924(e)(2)(B)(i) has the specialized meaning that it bore in
the common-law definition of battery. The Government
asserts that it does. We disagree.
Although a common-law term of art should be given its
established common-law meaning, United States v. Turley,
352 U. S. 407, 411 (1957), we do not assume that a statu
tory word is used as a term of art where that meaning
does not fit. Ultimately, context determines meaning,
Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961),
and we “do not force term-of-art definitions into contexts
where they plainly do not fit and produce nonsense,”
Gonzales v. Oregon, 546 U. S. 243, 282 (2006) (SCALIA, J.,
dissenting). Here we are interpreting the phrase “physical
force” as used in defining not the crime of battery, but
rather the statutory category of “violent felon[ies],”
§924(e)(2)(B). In Leocal v. Ashcroft, 543 U. S. 1 (2004), we
6 JOHNSON v. UNITED STATES

Opinion of the Court

interpreted the statutory definition of “crime of violence”
in 18 U. S. C. §16. That provision is very similar to
§924(e)(2)(B)(i), in that it includes any felony offense
which “has as an element the use . . . of physical force
against the person or property of another,” §16(a). We
stated:
“In construing both parts of §16, we cannot forget
that we ultimately are determining the meaning of
the term ‘crime of violence.’ The ordinary meaning of
this term, combined with §16’s emphasis on the use of
physical force against another person (or the risk of
having to use such force in committing a crime), sug
gests a category of violent, active crimes . . . .” 543
U. S., at 11.
Just so here. We think it clear that in the context of a
statutory definition of “violent felony,” the phrase “physi
cal force” means violent force—that is, force capable of
causing physical pain or injury to another person. See
Flores v. Ashcroft, 350 F. 3d 666, 672 (CA7 2003) (Easter
brook, J.). Even by itself, the word “violent” in
§924(e)(2)(B) connotes a substantial degree of force. Web
ster’s Second 2846 (defining “violent” as “[m]oving, acting,
or characterized, by physical force, esp. by extreme and
sudden or by unjust or improper force; furious; severe;
vehement . . .”); 19 Oxford English Dictionary 656 (2d ed.
1989) (“[c]haracterized by the exertion of great physical
force or strength”); Black’s 1706 (“[o]f, relating to, or char
acterized by strong physical force”). When the adjective
“violent” is attached to the noun “felony,” its connotation
of strong physical force is even clearer. See id., at 1188
(defining “violent felony” as “[a] crime characterized by
extreme physical force, such as murder, forcible rape, and
assault and battery with a dangerous weapon”); see also
United States v. Doe, 960 F. 2d 221, 225 (CA1 1992)
(Breyer, C. J.) (“[T]he term to be defined, ‘violent felony,’
 Cite as: 559 U. S. ____ (2010) 7

Opinion of the Court

. . . calls to mind a tradition of crimes that involve the
possibility of more closely related, active violence”).
It is significant, moreover, that the meaning of “physical
force” the Government would seek to import into this
definition of “violent felony” is a meaning derived from a
common-law misdemeanor. At common law, battery—all
battery, and not merely battery by the merest touching—
was a misdemeanor, not a felony. See 4 Blackstone 216–
218 (1769); see also 1 LaFave & Scott, supra, §2.1(b), at
90; ALI, Model Penal Code §211.1, Comment, p. 175
(1980). As the dissent points out, post, at 5–6 (opinion of
ALITO, J.), the dividing line between misdemeanors and
felonies has shifted over time. But even today a simple
battery—whether of the mere-touching or bodily-injury
variety—generally is punishable as a misdemeanor.1 See,
e.g., 2 W. LaFave, Substantive Criminal Law §16.1(b) (2d
ed. 2003 and Supp. 2009–2010); Cal. Penal Code Ann.
§§242 and 243 (West 2008); Fla. Stat. §784.03(1)(b); Ill.
Comp. Stat., ch. 720, §5/12–3(b) (West 2009); Tex. Penal
Code Ann. §22.01(b) (West Supp. 2008). It is unlikely that
Congress would select as a term of art defining “violent
felony” a phrase that the common law gave peculiar mean
ing only in its definition of a misdemeanor. Of course
“physical force” can be given its common-law misdemeanor
meaning by artful language, but here the only text that
can be claimed to accomplish that is the phrase “physical
force” itself. Since, as we have seen, that is as readily
——————
1 The dissent notes, post, at 5–6, that, around the time the Armed

Career Criminal Act became law, in “quite a few States” it was a felony
offense to commit an unwanted physical touching of certain victims,
such as police officers. That would be relevant for determining whether
a conviction under one of those statutes meets the 18 U. S. C.
§924(e)(2)(B) requirement of being a “felony” conviction. But it has no
bearing upon whether the substantive element of those offenses—
making unwanted physical contact with certain special categories of
individuals—involves the use of “force” within the meaning of
§924(e)(2)(B)(i), a statute applicable to all victims.
8 JOHNSON v. UNITED STATES

Opinion of the Court

(indeed, much more readily) taken to describe violent
force, there is no reason to define “violent felony” by refer
ence to a nonviolent misdemeanor.
The Government argues that we cannot construe 18
U. S. C. §924(e)(2)(B)(i) to reach only offenses that have as
an element the use of violent force, because there is no
modifier in §924(e)(2)(B)(i) that specifies the degree of
“physical force” required. As we have discussed, however,
the term “physical force” itself normally connotes force
strong enough to constitute “power”—and all the more so
when it is contained in a definition of “violent felony.” Nor
is there any merit to the dissent’s contention, post, at 4,
that the term “force” in §924(e)(2)(B)(i) cannot be read to
require violent force, because Congress specifically named
“burglary” and “extortion” as “violent felon[ies]” in
§924(e)(2)(B)(ii) notwithstanding that those offenses can
be committed without violence. The point would have
force (so to speak) if burglary and extortion were listed in
§924(e)(2)(B)(i), as felonies that have “as an element the
use, attempted use, or threatened use of physical force.”
In fact, however, they are listed in §924(e)(2)(B)(ii), as
examples of felonies that “presen[t] a serious potential risk
of physical injury to another.” The Government has not
argued that intentional, unwanted touching qualifies
under this latter provision. What the dissent’s argument
comes down to, then, is the contention that, since felonies
that create a serious risk of physical injury qualify as
violent felonies under subparagraph (B)(ii), felonies that
involve a mere unwanted touching must involve the use of
physical force and qualify as violent felonies under sub
paragraph (B)(i). That obviously does not follow. 2
——————
2 Even further afield is the dissent’s argument, post, at 2–3, that since

§924(e)(2)(B)(ii) requires conduct that “presents a serious potential risk
of physical injury to another,” §924(e)(2)(B)(i) must not. That is rather
like saying a provision which includes (i) apples and (ii) overripe
oranges must exclude overripe apples. It does not follow.
 Cite as: 559 U. S. ____ (2010) 9

Opinion of the Court

The Government also asks us to draw a negative infer
ence from the presence of the “bodily injury” specification
added to the phrase “physical force” in §922(g)(8)(C)(ii).
That provision forbids the possession of firearms by a
person subject to a court order explicitly prohibiting the
“use, attempted use, or threatened use of physical force
against [an] intimate partner or child that would reasona
bly be expected to cause bodily injury.” Ibid. The absence
of such language in §924(e)(2)(B)(i), the Government
contends, proves that the merest touch suffices. Even as a
matter of logic that does not follow. Specifying that
“physical force” must rise to the level of bodily injury does
not suggest that without the qualification “physical force”
would consist of the merest touch. It might consist, for
example, of only that degree of force necessary to inflict
pain—a slap in the face, for example. Moreover, this is
not a case where Congress has “include[d] particular
language in one section of a statute but omit[ted] it in
another section of the same Act,” Russello v. United States,
464 U. S. 16, 23 (1983) (internal quotation marks omitted;
emphasis added). Section 922(g)(8)(C)(ii) was enacted into
law in 1994—eight years after enactment of the language
in §924(e)(2)(B)(i). Compare Pub. L. 103–322, §110401,
108 Stat. 2015 (1994), with Pub. L. 99–570, §1402, 100
Stat. 3207–39 (1986).
IV
The Government contends that interpreting 18 U. S. C.
§924(e)(2)(B)(i) to require violent force will undermine its
ability to enforce the firearm disability in §922(g)(9) for
persons who previously have been convicted of a “misde
meanor crime of domestic violence,” which is defined to
include certain misdemeanor offenses that have, “as an
element, the use or attempted use of physical force . . . ,”
§921(a)(33)(A)(ii). The prediction is unfounded. We have
interpreted the phrase “physical force” only in the context
10 JOHNSON v. UNITED STATES

Opinion of the Court

of a statutory definition of “violent felony.” We do not
decide that the phrase has the same meaning in the con
text of defining a misdemeanor crime of domestic violence.
The issue is not before us, so we do not decide it.
In a similar vein, the Government asserts that our
interpretation will make it more difficult to remove, pur
suant to 8 U. S. C. §1227(a)(2)(E), an alien convicted of a
“crime of domestic violence.” That phrase is defined to
mean “any crime of violence (as defined in [18 U. S. C.
§16])” committed by certain persons, including spouses,
former spouses, and parents. §1227(a)(2)(E)(i). The Gov
ernment contends it will be harder to obtain removal
based upon battery convictions that, like those in Florida,
do not require the use of violent physical force. The dis
sent likewise anticipates that in the States it has identi
fied, post, at 6–7, and n. 3, as having generic felony
battery statutes that cover both violent force and un
wanted physical contact, our decision will render convic
tions under those statutes “outside the scope of [the
Armed Career Criminal Act],” post, at 8.
This exaggerates the practical effect of our decision.
When the law under which the defendant has been con
victed contains statutory phrases that cover several differ
ent generic crimes, some of which require violent force and
some of which do not, the “ ‘modified categorical approach’ ”
that we have approved, Nijhawan v. Holder, 557 U. S. ___,
___ (2009) (slip op., at 10), permits a court to determine
which statutory phrase was the basis for the conviction by
consulting the trial record—including charging docu
ments, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial,
and jury instructions and verdict forms. See Chambers v.
United States, 555 U. S. ___, ___ (2009) (slip op., at 4);
Shepard, 544 U. S., at 26 (plurality opinion); Taylor v.
United States, 495 U. S. 575, 602 (1990). Indeed, the
Government has in the past obtained convictions under
 Cite as: 559 U. S. ____ (2010) 11

Opinion of the Court

the Armed Career Criminal Act in precisely this manner.
See, e.g., United States v. Simms, 441 F. 3d 313, 316–317
(CA4 2006) (Maryland battery); cf. United States v.
Robledo-Leyva, 307 Fed. Appx. 859, 862 (CA5) (Florida
battery), cert. denied, 558 U. S. ___ (2009); United States
v. Luque-Barahona, 272 Fed. Appx. 521, 524–525 (CA7
2008) (same).
It may well be true, as the Government contends,
that in many cases state and local records from
battery convictions will be incomplete. But absence of
records will often frustrate application of the modified
categorical approach—not just to battery but to many
other crimes as well. See, e.g., Shepard, supra, at 22–23
(burglary). It is implausible that avoiding that common
enough consequence with respect to the single crime of
battery, under the single statute that is the Armed Career
Criminal Act, caused Congress to import a term of art
that is a comical misfit with the defined term “violent
felony.”
* * *
The Government asks us to remand to the Eleventh
Circuit for its consideration of whether Johnson’s 2003
battery conviction is a “violent felony” within the meaning
of the so-called “residual clause” in 18 U. S. C.
§924(e)(2)(B)(ii). We decline to do so. The Government
did not keep this option alive because it disclaimed at
sentencing any reliance upon the residual clause. App.
44–45. Moreover, the parties briefed the §924(e)(2)(B)(ii)
issue to the Eleventh Circuit, which nonetheless reasoned
that if Johnson’s conviction under Fla. Stat. §784.03(2)
satisfied §924(e)(2)(B)(i), then it was a predicate “violent
felony” under §924(e)(1); but “if not, then not.” 528 F. 3d,
at 1320.
We reverse the judgment of the Eleventh Circuit, set
aside Johnson’s sentence, and remand the case for further
12 JOHNSON v. UNITED STATES

Opinion of the Court

proceedings consistent with this opinion.
It is so ordered.
 Cite as: 559 U. S. ____ (2010) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–6925
_________________

CURTIS DARNELL JOHNSON, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[March 2, 2010]

JUSTICE ALITO, with whom JUSTICE THOMAS, joins,
dissenting.
The Armed Career Criminal Act (ACCA) defines a “vio
lent felony” to mean, among other things, “any crime
punishable by imprisonment for a term exceeding one year
. . . that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” 18 U. S. C. §924(e)(2)(B)(i) (emphasis added).
The classic definition of the crime of battery is the “inten
tional application of unlawful force against the person of
another.” Ante, at 5 (citing 2 W. LaFave & A. Scott, Sub
stantive Criminal Law §7.15, p. 301 (1986 and Supp.
2003); Black’s Law Dictionary 173 (9th ed. 2009)). Thus,
the crime of battery, as traditionally defined, falls
squarely within the plain language of ACCA. Because I
believe that ACCA was meant to incorporate this tradi
tional definition, I would affirm the decision of the Court
of Appeals.
I
The Court starts out in the right direction by noting
that the critical statutory language—“the use, attempted
use, or threatened use of physical force against the person
of another,” 18 U. S. C. §924(e)(2)(B)(i)—may mean either
(a) the use of violent force or (b) the use of force that is
2 JOHNSON v. UNITED STATES

ALITO, J., dissenting

sufficient to satisfy the traditional definition of a battery.
See ante, at 4–5. The Court veers off course, however, by
concluding that the statutory language reaches only vio
lent force.
The term “force,” as the Court correctly notes, had a
well-established meaning at common law that included
even the “slightest offensive touching.” Ante, at 5. See
also Respublica v. De Longchamps, 1 Dall. 111, 114 (O. T.
Phila. 1784) (“[T]hough no great bodily pain is suffered by
a blow on the palm of the hand, or the skirt of the coat, yet
these are clearly within the legal d[e]finition of Assault
and Battery. . .”); 3 W. Blackstone, Commentaries on the
Laws of England 120, 218 (1768) (hereinafter Blackstone).
This approach recognized that an offensive but nonviolent
touching (for example, unwanted sexual contact) may be
even more injurious than the use of force that is sufficient
to inflict physical pain or injury (for example, a sharp slap
in the face).
When Congress selects statutory language with a well
known common-law meaning, we generally presume that
Congress intended to adopt that meaning. See, e.g.,
United States v. Turley, 352 U. S. 407, 411 (1957) (“We
recognize that where a federal criminal statute uses a
common-law term of established meaning without other
wise defining it, the general practice is to give that term
its common-law meaning”); Morissette v. United States,
342 U. S. 246, 263 (1952); United States v. Carll, 105 U. S.
611, 612–613 (1882). And here, I see nothing to suggest
that Congress meant the phrase “use of physical force” in
ACCA to depart from that phrase’s meaning at common
law.
On the contrary, other standard canons of statutory
interpretation point to the same conclusion. “[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
 Cite as: 559 U. S. ____ (2010) 3

ALITO, J., dissenting

and purposely in the disparate inclusion or exclusion. ”
Russello v. United States, 464 U. S. 16, 23 (1983) (internal
quotation marks omitted). In 18 U. S. C.
§924(e)(2)(B)(ii)—the clause immediately following the
clause at issue in this case—the term “violent felony” is
defined as including any crime that “involves conduct that
presents a serious potential risk of physical injury to an
other.” (Emphasis added.) Because Congress did not
include a similar limitation in §924(e)(2)(B)(i), we should
presume that it did not intend for such a limitation to
apply.
The language used by Congress in §922(g)(8)(C)(ii)
further illustrates this point. This provision criminalizes,
among other things, the possession of a firearm by a per
son who is subject to a court order that “explicitly prohib
its the use, attempted use, or threatened use of physical
force against [an] intimate partner or child that would
reasonably be expected to cause bodily injury.” (Emphasis
added.) Although §922(g)(8)(C)(ii) was not enacted until
eight years after §924(e)(2)(B)(i), see ante, at 9, the former
provision is nevertheless instructive. If Congress had
wanted to include in §924(e)(2)(B)(i) a limitation similar to
those in §924(e)(2)(B)(ii) and §922(g)(8)(C)(ii), Congress
could have easily done so expressly.
II
The Court provides two reasons for refusing to interpret
18 U. S. C. §924(e)(2)(B)(i) in accordance with the com
mon-law understanding, but neither is persuasive.
A
The Court first argues that §924(e)(2)(B)(i) must be read
to refer to “violent” force because that provision defines
the term “violent felony.” Ante, at 6. But it is apparent
that ACCA uses “violent felony” as a term of art with a
wider meaning than the phrase may convey in ordinary
4 JOHNSON v. UNITED STATES

ALITO, J., dissenting

usage. ACCA specifically provides that burglary and
extortion are “violent felon[ies],” §924(e)(2)(B),(ii), and we
have held that ACCA also reaches the crime of attempted
burglary, James v. United States, 550 U. S. 192 (2007).
All of these offenses may be committed without violent
force,1 and it is therefore clear that the use of such force is
not a requirement under ACCA. Instead, ACCA classifies
crimes like burglary and extortion as violent felonies
because they often lead to violence. As we have put it,
these crimes create “significant risks of . . . confrontation
that might result in bodily injury,” id., at 199, and offen
sive touching creates just such a risk. For example, when
one bar patron spits on another, violence is a likely conse
quence. See United States v. Velazquez-Overa, 100 F. 3d
418, 422 (CA5 1996) (“If burglary, with its tendency to
cause alarm and to provoke physical confrontation, is
considered a violent crime under 18 U. S. C. §16(b), then
surely the same is true of the far greater intrusion that
occurs when a child is sexually molested”); United States
v. Wood, 52 F. 3d 272, 276 (CA9 1995) (same).

——————
1 For the purposes of ACCA, burglary is defined as “an unlawful or

unprivileged entry into, or remaining in, a building or other structure,
with intent to commit a crime.” Taylor v. United States, 495 U. S. 575,
598 (1990). See also James, 550 U. S., at 197, 198, 202–203 (attempted
burglary under Florida law requires “overt conduct directed toward
unlawfully entering or remaining in a dwelling, with the intent to
commit a felony therein” and that the “defendant fail in the perpetra
tion or be intercepted or prevented in the execution of the underlying
offense” (internal quotation marks omitted)). Although we have not
defined extortion under ACCA, the Hobbs Act defines it as “the obtain
ing of property from another, with his consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color of official
right.” 18 U. S. C. §1951(b)(2) (emphasis added); see also James, supra,
at 223–224 (SCALIA, J., dissenting) (defining extortion in ACCA as “the
obtaining of something of value from another, with his consent, induced
by the wrongful use or threatened use of force against the person or
property of another” (emphasis added)).
 Cite as: 559 U. S. ____ (2010) 5

ALITO, J., dissenting

B
The Court’s only other reason for rejecting the common
law definition is the fact that battery at common law was
a misdemeanor. The Court reasons that “[i]t is unlikely
that Congress would select as a term of art defining ‘vio
lent felony’ a phrase that the common law gave peculiar
meaning only in its definition of a misdemeanor.” Ante, at
7 (citing 4 Blackstone 216–218 (1769), and ALI, Model
Penal Code §211.1, Comment, p. 175 (1980)). The Court
does not spell out why Congress’ selection of this term
would be unlikely, but I assume that the Court’s point is
that Congress is unlikely to have decided to treat as a
violent felony an offense that was regarded at common law
as a mere misdemeanor. This argument overlooks the
significance of the misdemeanor label at common law, the
subsequent evolution of battery statutes, and the limita
tion imposed by 18 U. S. C. §924(e)(2)(B).
At common law, the terms “felony” and “misdemeanor”
did not have the same meaning as they do today. At that
time, imprisonment as a form of punishment was rare, see
Apprendi v. New Jersey, 530 U. S. 466, 480, n. 7 (2000);
most felonies were punishable by death, see Tennessee v.
Garner, 471 U. S. 1, 13 (1985); and many very serious
crimes, such as kidnaping and assault with the intent to
murder or rape, were categorized as misdemeanors. See
United States v. Watson, 423 U. S. 411, 439–440 (1976)
(Marshall, J., dissenting). Since that time, however, the
term “felony” has come to mean any offense punishable by
a lengthy term of imprisonment (commonly more than one
year, see Burgess v. United States, 553 U. S. 124, 130
(2008)); the term “misdemeanor” has been reserved for
minor offenses; and many crimes that were misdemeanors
at common law have been reclassified as felonies. And
when the relevant language in ACCA was enacted, quite a
few States had felony battery statutes that retained the
common-law definition of “force.” See Fla. Stat.
6 JOHNSON v. UNITED STATES

ALITO, J., dissenting

§784.07(2)(b) (1987) (making simple battery of a police
officer a felony); Idaho Code §18–915(c) (Lexis 1987)
(same); Ill. Crim. Code §12–4(b)(6) (1988) (same); La. Stat.
Ann. §§14:33, 14:43.1 (West 1986) (sexual battery punish
able by more than one year’s imprisonment); N. M. Stat.
Ann. §40A–22–23 (1972) (battery of a police officer a fel
ony); see also Kansas Stat. Ann. §21–3413(b) (Supp. 1994)
(simple battery of corrections officers a felony).2
ACCA’s mechanism for identifying the battery convic
tions that merit treatment as “violent felon[ies]” is con
tained in 18 U. S. C. §924(e)(2)(B), which provides that
an offense committed by an adult is not a “violent felony”
unless it is “punishable by imprisonment for a term ex
ceeding one year.” Consequently, while all convictions
under battery statutes that track the common-law defini
tion of the offense satisfy the requirements of
§924(e)(2)(B)(i)—because they have “as an element the
use, attempted use, or threatened use of physical force
against the person of another”—not all battery convictions
qualify as convictions for a violent felony because
§924(e)(2)(B) excludes any battery conviction that was not
regarded by the jurisdiction of conviction as being suffi
ciently serious to be punishable by imprisonment for more
than one year. There is nothing extraordinary or unlikely
about this approach.
III
The Court’s interpretation will have untoward conse
quences. Almost half of the States have statutes that
reach both the use of violent force and force that is not

——————
2 These state statutes show that Congress, by using a term of art,

“force,” did not adopt a meaning “peculiar . . . [to the] definition of a
misdemeanor,” see ante, at 7, and, therefore, they are relevant in
determining whether touching involves the use of force under ACCA.
See ante, at 7, n. 1.
 Cite as: 559 U. S. ____ (2010) 7

ALITO, J., dissenting

violent but is unlawful and offensive.3 Many of the States
classify these batteries as felonies or make them punish
able by imprisonment for more than one year.4 Although
the great majority of convictions under these statutes are,

——————
3 Ariz. Rev. Stat. Ann. §13–1203(A) (West 2001); Cal. Penal Code

Ann. §242 (West 2008); People v. Pinholster, 1 Cal. 4th 865, 961, 824
P. 2d 571, 622 (1992); D. C. Code §22–404(a) (2001); Ray v. United
States, 575 A. 2d 1196, 1199 (D. C. 1990); Fla. Stat. Ann. §784.03(1)(a)
(2007); Ga. Code Ann. §16–5–23(a) (2007); Idaho Code §18–903 (Lexis
2004); Ill. Comp. Stat., ch. 720, §5/12–3(a) (West 2009); Ind. Code §35–
42–2–1(a) (2004); Iowa Code §708.1 (West 2009); Kan. Stat. Ann. §21–
3412(a) (2007); La. Stat. Ann. §14:33 (West 2007); State v. Schenck, 513
So. 2d 1159, 1165 (La. 1987); Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A)
(2006); Md. Crim. Law Code Ann. §§3–201(b), 3–203(a) (Lexis Supp.
2009); Kellum v. State, 223 Md. 80, 84–85, 162 A. 2d 473, 476 (1960);
Mass. Gen. Laws, ch. 265, §13A(a) (West 2008); Commonwealth v.
Campbell, 352 Mass. 387, 397, 226 N. E. 2d 211, 218 (1967); Mich.
Comp. Laws Ann. §§750.81(1), (2) (West 2004); People v. Nickens, 470
Mich. 622, 627–628, 685 N. W. 2d 657, 661 (2004); Mo. Rev. Stat.
§565.070(5) (West 2000); Mont. Code Ann. §45–5–201(1)(c) (2009); N. H.
Rev. Stat. Ann. §631:2–aI(a) (West 2007); N. M. Stat. Ann. §30–3–4
(Supp. 2009); N. C. Gen. Stat. Ann. §14–33(a) (Lexis 2007); State v.
West, 146 N. C. App. 741, 744, 554 S. E. 2d 837, 840 (2001); Okla. Stat.
Ann., Tit. 21, §642 (West 2002); Steele v. State, 778 P. 2d 929, 931
(Okla. Crim. App. 1989); R. I. Gen. Laws §11–5–3(a) (Lexis 2002); State
v. Coningford, 901 A. 2d 623, 630 (R. I. 2006); S. C. Code Ann. §22–3–
560(A) (Supp. 2009); State v. Mims, 286 S. C. 553, 554, 335 S. E. 2d
237 (1985) (per curiam); Tenn. Code Ann. §39–13–101(a)(3) (2003); Tex.
Penal Code Ann. §22.01(a) (West Supp. 2009); Va. Code Ann. §18.2–
57(A) (Lexis 2009); Wood v. Commonwealth, 149 Va. 401, 404, 140 S. E.
114, 115 (1927); Wash. Rev. Code §9A.36.011 et seq. (2008); State v.
Stevens, 158 Wash. 2d 304, 311, 143 P. 3d 817, 821 (2006); W. Va. Code
Ann. §61–2–9(c) (Lexis 2005).
4 See Iowa Code §§708.1, 708.2(5) (2009); Kan. Stat. Ann. §§21–

3412(a), 21–3412a, 3413(b), 3448(b) (2007); La. Stat. Ann.
§§14:34.2(B)(2), 14:34.3(C)(2) (Supp. 2010), 14:34.5(B)(2); 14:35.3(E)
(2007); Md. Crim. Law Code Ann. §§3–201(b), 3–203(a), (b) (Supp.
2009); Mass. Gen. Laws, ch. 265, §13A(a) (2008); Mich. Comp. Laws
Ann. §750.81(4) (West 2004); Mo. Rev. Stat. §§565.070.1(5), 565.070.4
(2000); Okla. Stat. Ann., Tit. 21, §642 (West 2002), §644 (West Supp.
2010).
8 JOHNSON v. UNITED STATES

ALITO, J., dissenting

no doubt, based on the use of violent force, the effect of the
Court’s decision will be to take all these convictions out
side the scope of ACCA—unless the Government is able to
produce documents that may properly be consulted under
the modified categorical approach and that conclusively
show that the offender’s conduct involved the use of vio
lent force, see ante, at 10–11. As the Government notes,
however, this will often be impossible because, in those
States in which the same battery provision governs both
the use of violent force and offensive touching, charging
documents frequently simply track the language of the
statute, and jury instructions often do not require juries to
draw distinctions based on the type of force that the de
fendant employed. See Brief for United States 42–43.
In addition, the Court’s interpretation of the term
“physical force” may hobble at least two federal statutes
that contain this identical term. Under 18 U. S. C.
§922(g)(9), a person convicted of a “misdemeanor crime of
domestic violence” may not lawfully possess a firearm, and
the term “misdemeanor crime of domestic violence” is
defined as applying only to crimes that “ha[ve], as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon.” §921(a)(33)(A) (em
phasis added). As we recently explained, Congress recog
nized that “ ‘many people who engage in serious spousal or
child abuse ultimately are not charged with or convicted of
felonies,’ ” and Congress therefore enacted this provision to
keep firearms out of the hands of such abusers. United
States v. Hayes, 555 U. S. ___, ___ (2009) (slip op., at 10).
Cases of spousal and child abuse are frequently prosecuted
under generally applicable assault and battery statutes,
ibid., and as noted, the assault and battery statutes of
almost half the States apply both to cases involving the
use of violent force and cases involving offensive touching.
As a result, if the Court’s interpretation of the term
“physical force” in ACCA is applied to §922(g)(9), a great
 Cite as: 559 U. S. ____ (2010) 9

ALITO, J., dissenting

many persons convicted for serious spousal or child abuse
will be allowed to possess firearms.
Under 8 U. S. C. §1227(a)(2)(E), an alien convicted of a
“crime of domestic violence” is subject to removal, and the
term “crime of domestic violence” is defined as an offense
that, among other things, has “as an element the use [or]
attempted use . . . of physical force.” 18 U. S. C. §16(a).
Accordingly, if the Court’s interpretation of the term
“physical force” is applied to this provision, many con
victed spousal and child abusers will escape removal, a
result that Congress is unlikely to have intended.
* * *
For all these reasons, I believe that the Court’s decision
is incorrect, and I therefore respectfully dissent.