OPINION OF THE COURT
CHAMBERS V. UNITED STATES
555 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 06-11206
DEONDERY CHAMBERS, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the seventh circuit
[January 13, 2009]
Justice Breyer delivered the
opinion of the Court.
The question before us is whether
a “failure to report” for penal confinement is a “ ‘violent
felony’ ” within the terms of the Armed Career Criminal Act.
18 U. S. C. §924(e). We hold that it is not.
I
The Armed Career Criminal Act
(ACCA) imposes a 15-year mandatory prison term on an individual
convicted of being a felon in possession of a firearm
if
that individual has “three previous convictions . . . for a violent
felony or a serious drug offense, or both, committed on occasions
different from one another.” §924(e)(1). ACCA defines a “violent
felony” as a “crime punishable by imprisonment for a term exceeding
one year” that also either
“(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 the use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” §924(e)(2)(B).
Clause (ii), ACCA’s so-called residual clause, is
at issue here.
II
The petitioner, Deondery
Chambers, pleaded guilty to a charge of being a felon unlawfully in
possession of a firearm. §922(g). At sentencing the Government
asked the District Court to apply ACCA’s 15-year mandatory prison
term because, in its view, three of Chambers’ prior convictions
qualified as an ACCA “serious drug offense” or “violent felony.”
Chambers conceded that two of his prior convictions, namely a 1998
conviction for robbery and aggravated battery and a 1999 drug crime
conviction, fell within ACCA’s definitions. But he disputed the
Government’s claim as to a third conviction. That third conviction
arose out of Chambers’ sentence for his 1998 robbery and battery
offense. The sentence required Chambers to report to a local prison
for 11 weekends of incarceration. He failed to report for weekend
confinement on four occasions, and was later convicted of the crime
of “fail[ing] to report to a penal institution.” Ill. Comp. Stat.,
ch. 720, §5/31–6(a) (West Supp. 2008).
The District Court treated the
“failure to report” as a form of what the relevant Illinois statute
calls “escape from [a] penal institution,”
ibid., and held
that the crime qualified as a “violent felony” under ACCA. The
Court of Appeals agreed. 473 F. 3d 724 (CA7 2007). In light of
disagreement among the Circuits as to whether failure to report for
imprisonment falls within the scope of ACCA’s definition of
“violent felony,” we granted certiorari. Compare
United
States v.
Winn, 364 F. 3d 7, 12 (CA1 2004)
(failure to report is a “violent felony”), with
United
States v.
Piccolo, 441 F. 3d 1084, 1088 (CA9
2006) (failure to report is not a “violent felony”).
III
We initially consider the
classification of the crime. In ordinary speech, words such as
“crime” and “felony” can refer not only to a generic
set
of acts, say, burglary in general, but also to a specific act
committed on a particular occasion, say
the burglary that
the defendant engaged in last month. We have made clear, however,
that, for purposes of ACCA’s definitions, it is the generic sense
of the word “felony” that counts.
Taylor v.
United
States,
495 U.
S. 575, 602 (1990); see also
Shepard v.
United
States,
544 U.
S. 13, 16–17 (2005)
. The statute’s defining language,
read naturally, uses “felony” to refer to a crime as generally
committed. And by so construing the statute, one avoids the
practical difficulty of trying to ascertain at sentencing, perhaps
from a paper record mentioning only a guilty plea, whether the
present defendant’s prior crime, as committed on a particular
occasion, did or did not involve violent behavior. See
id., at 20–21. Thus, to determine, for example, whether
attempted burglary is a “violent felony,” we have had to examine,
not the unsuccessful burglary the defendant attempted on a
particular occasion, but the generic crime of attempted burglary.
James v.
United States,
550 U. S. 192, 204–206
(2007).
This categorical approach
requires courts to choose the right category. And sometimes the
choice is not obvious. The nature of the behavior that likely
underlies a statutory phrase matters in this respect. Where
Massachusetts, for example, placed within a single, separately
numbered statutory section (entitled “Breaking and entering at
night,” Mass. Gen. Laws Ann., ch. 266, §16 (West 2008)) burglary of
a “building, ship, vessel or vehicle,” this Court found that the
behavior underlying, say, breaking into a building, differs so
significantly from the behavior underlying, say, breaking into a
vehicle, that for ACCA purposes a sentencing court must treat the
two as different crimes. See
Shepard,
supra, at
16–17; see also
Taylor,
supra, at 598.
The Illinois statute now before us, like the
Massachusetts statute, places together in a single numbered
statutory section several different kinds of behavior. It
separately describes those behaviors as (1) escape from a penal
institution, (2) escape from the custody of an employee of a penal
institution, (3) failing to report to a penal institution, (4)
failing to report for periodic imprisonment, (5) failing to return
from furlough, (6) failing to return from work and day release, and
(7) failing to abide by the terms of home confinement. Ill. Comp.
Stat., ch. 720, §5/31–6(a); see Appendix A,
infra. We know
from the state-court information in the record that Chambers
pleaded guilty to “knowingly fail[ing] to report” for periodic
imprisonment “to the Jefferson County Jail, a penal institution.”
App. 68; see
Shepard,
supra, at 25 (sentencing
court may look, for example, to charging document, plea agreement,
jury instructions, or transcript of plea colloquy to determine
crime at issue). But we must decide whether for ACCA purposes a
failure to report counts as a separate crime.
Unlike the lower courts, we believe that a
failure to report (as described in the statutory provision’s third,
fourth, fifth, and sixth phrases) is a separate crime, different
from escape (the subject matter of the statute’s first and second
phrases), and from the potentially less serious failure to abide by
the terms of home confinement (the subject of the final phrase).
The 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. See
Begay v.
United States, 553 U. S.
___, ___ (2008) (slip op., at 7). Moreover, the statute itself not
only lists escape and failure to report separately (in its title
and its body) but also places the behaviors in two different felony
classes (Class Two and Class Three) of different degrees of
seriousness. See Appendix A,
infra.
At the same time, we believe the statutory
phrases setting forth various kinds of failure to report (or to
return) describe roughly similar forms of behavior. Each is
characterized by a failure to present oneself for detention on a
specified occasion. All amount to variations on a single theme. For
that reason we consider them as together constituting a single
category. Cf.
James,
supra, at 207–209
(determining that where separately listed behaviors pose a similar
degree of risk, sentencing courts may consider all listed behaviors
as a single crime). We consequently treat the statute for ACCA
purposes as containing at least two separate crimes, namely escape
from custody on the one hand, and a failure to report on the other.
Failure to abide by home confinement terms—potentially the least
serious of the offenses—is not at issue here.
IV
We now must consider whether the
“failure to report” crime satisfies ACCA’s “violent felony”
definition. It clearly satisfies the first part of that definition,
for it is a “crime punishable by imprisonment for a term exceeding
one year.” 18 U. S. C. §924(e)(2)(B). But it satisfies none of
the other parts. It does not have “as an element the use, attempted
use, or threatened use of physical force against the person of
another.” §924(e)(2)(B)(i). It does not consist of “burglary,
arson, or extortion,” or “involv[e] use of explosives.”
§924(e)(2)(B)(ii). And, more critically for present purposes, it
does not “ ‘involve conduct that presents a serious potential
risk of physical injury to another.’ ” See
Begay, 553
U. S., at ___ (slip op., at 2–4);
id., at ___ (slip op.,
at 6) (Scalia, J., concurring in judgment) (treating serious risk
of physical injury to another as critical definitional factor);
id., at ___ (slip op., at 2) (Alito, J., dissenting)
(same).
Conceptually speaking, the crime
amounts to a form of inaction, a far cry from the “purposeful,
‘violent,’ and ‘aggressive’ conduct” potentially at issue when an
offender uses explosives against property, commits arson, burgles a
dwelling or residence, or engages in certain forms of extortion.
Cf.
id., at ___ (slip op., at 7)
. While an
offender who fails to report must of course be doing
something at the relevant time, there is no reason to
believe that the
something poses a serious potential risk
of physical injury. Cf.
James, 550 U. S., at 203–204. To
the contrary, an individual who fails to report would seem
unlikely, not likely, to call attention to his whereabouts by
simultaneously engaging in additional violent and unlawful
conduct.
The Government argues that a failure to report
reveals the offender’s special, strong aversion to penal custody.
And it points to three cases arising over a period of 30 years in
which reported opinions indicate that individuals shot at officers
attempting to recapture them. See
United States v.
Eaglin, 571 F. 2d 1069, 1072 (CA9 1977);
State v.
Johnson, 245 S. W. 3d 288, 291 (Mo.
Ct. App. 2008);
State v.
Jones, 96 Wash. App.
369, 371–372, 979 P. 2d 898, 899 (1999). But even if we assume
for argument’s sake the relevance of violence that may occur long
after an offender fails to report, we are not convinced by the
Government’s argument. The offender’s aversion to penal custody,
even if special, is beside the point. The question is whether such
an offender is significantly more likely than others to attack, or
physically to resist, an apprehender, thereby producing a “serious
potential risk of physical injury.” §924(e)(2)(B)(ii). And here a
United States Sentencing Commission report helps provide a
conclusive, negative answer. See Report on Federal Escape Offenses
in Fiscal Years 2006 and 2007, p. 6 (Nov. 2008) (hereinafter
Commission’s Report), reprinted in part in Appendix B,
infra. See also 473 F. 3d, at 727 (Posner, J.)
(urging that such research be done).
The Commission’s Report identifies every
federal case in 2006 or 2007 in which a federal sentencing court
applied the Sentencing Guideline, “Escape, Instigating or Assisting
Escape,” 1 United States Sentencing Commission, Guidelines Manual
§2P1.1 (Nov. 2008), and in which sufficient detail was provided,
say, in the presentence report, about the circumstances of the
crime to permit analysis. The analysis included calculation of the
likelihood that violence would accompany commission of the escape
or the offender’s later apprehension.
Of 414 such cases, 160 involved a failure to
report either for incarceration (42) or for custody after having
been temporarily released (118). Commission’s Report 7; see also
Appendix B,
infra. Of these 160 cases, none at all
involved violence—not during commission of the offense itself, not
during the offender’s later apprehension—although in 5 instances
(3.1%) the offenders were armed.
Ibid. The upshot is that
the study strongly supports the intuitive belief that failure to
report does not involve a serious potential risk of physical
injury.
The three reported cases to which the
Government points do not show the contrary. The Sentencing
Commission culled its 160 instances from a set of federal sentences
imposed over a period of 2 years. The Government apparently culled
its three examples from a set of state and federal sentences
imposed over a period of 30 years. Compare
Eaglin,
supra (CA9 1977) with
Johnson,
supra
(Mo. Ct. App. 2008). Given the larger set, the presence of three
instances of violence is consistent with the Commission’s data.
Simple multiplication (2 years versus 30 years; federal alone
versus federal-plus-state) suggests that they show only a small
risk of physical violence (less than one in several thousand). And
the Government provides no other empirical information.
For these reasons we conclude that the crime
here at issue falls outside the scope of ACCA’s definition of
“violent felony.” §924(e)(2)(B)(ii). The judgment of the Court of
Appeals is reversed, and the case is remanded for proceedings
consistent with this opinion.
It is so ordered.
APPENDIX A TO OPINION OF THE COURT
“Escape; failure to report to a penal institution or to report
for periodic imprisonment.
“A person convicted of a felony, adjudicated a
delinquent minor for the commission of a felony offense under the
Juvenile Court Act of 1987, or charged with the commission of a
felony who intentionally escapes from any penal institution or from
the custody of an employee of that institution commits a Class 2
felony; however, a person convicted of a felony or adjudicated a
delinquent minor for the commission of a felony offense under the
Juvenile Court Act of 1987 who knowingly fails to report to a penal
institution or to report for periodic imprisonment at any time or
knowingly fails to return from furlough or from work and day
release or who knowingly fails to abide by the terms of home
confinement is guilty of a Class 3 felony.” Ill. Comp. Stat., ch.
720, §5/31–6(a) (West Supp. 2008).
APPENDIX B TO OPINION OF THE COURT
Report on Federal Escape Offenses in Fiscal Years 2006 and 2007,
p. 7, fig. 1 (Nov. 2008).*
Leaving Secure Custody
Leaving Law Enforce-
ment Custody
Leaving Nonsecure Custody
Failing to
Report
Failing to
Return
Number of Cases
64
13
177
42
118
Force
10 (15.6%)
1 (7.7%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
Dangerous Weapon
20 (31.3%)
1 (7.7%)
4 (2.3%)
3 (7.1%)
2 (1.7%)
Injury
7 (10.9%)
2 (15.4%)
3 (1.7%)
0 (0.0%)
0 (0.0%)
* Cases can fall into more than one category.
For example, one case could involve both force and injury. Such a
case would be represented in the table for force and also for
injury. Therefore, the reader should not aggregate the numbers in
any column.
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