SUPREME COURT OF THE UNITED STATES
_________________
No. 20–1459
_________________
UNITED STATES, PETITIONER
v. JUSTIN
EUGENE TAYLOR
on writ of certiorari to the united states
court of appeals for the fourth circuit
[June 21, 2022]
Justice Thomas, dissenting.
Justin Eugene Taylor and an accomplice pulled
a gun on a fellow drug dealer as they tried to rob him. During the
attempted robbery, the victim was shot and killed. Taylor pleaded
guilty to using a firearm during an attempted Hobbs Act robbery,
which he conceded was a “crime of violence” under 18
U. S. C. §924(c)(3). Taylor made that concession because
threatening to shoot someone during a robbery is undoubtedly a
violent act. Yet, the Court holds that Taylor did not actually
commit a “crime of violence” because a hypothetical defendant—the
Court calls him “Adam”—could have been convicted of attempting to
commit Hobbs Act robbery without using, attempting to use, or
threatening to use physical force.
Ante, at 5; see
§924(c)(3)(A).
This holding exemplifies just how this Court’s
“categorical approach” has led the Federal Judiciary on a “journey
Through the Looking Glass,” during which we have found many
“strange things.” L. Carroll, Alice in Wonderland and Through the
Looking Glass 227 (J. Messner ed. 1982). Rather than continue this
30-year excursion into the absurd, I would hold Taylor accountable
for what he actually did and uphold his conviction. Accordingly, I
respectfully dissent.
I
In 2002 and 2003, Justin Eugene Taylor was a
middleman in the Richmond, Virginia, marijuana trade. He bought the
drug wholesale and sold it to retail distributors. On August 14,
2003, he offered to obtain marijuana for retail distributor Martin
Sylvester. Taylor ultimately failed to procure the drug but still
aimed to purloin Sylvester’s cash. To that end, Taylor contacted a
co-conspirator who had a handgun. The two met Sylvester in an
alley, ostensibly for the sale. They brandished the handgun and
demanded the money. Sylvester resisted and was shot. The robbers
fled, leaving Sylvester to die. 979 F.3d 203, 205 (CA4 2020).
Prosecutors in the Eastern District of Virginia
charged Taylor with various drug and firearms offenses. Most
relevant here, they charged him with violating 18
U. S. C. §924(c), which punishes anyone who “uses or
carries a firearm” “during and in relation to any crime of
violence,” or who possesses a firearm “in furtherance of any such
crime.” Congress defined a “crime of violence” in one of two ways:
as an offense that has “as an element the use, attempted use, or
threatened use of physical force against the person or property of
another” (commonly called the “elements clause”), or as an offense
that, “by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense” (commonly called the “residual
clause”). §§924(c)(3)(A), (B).
Prosecutors predicated Taylor’s §924(c) charge
on his commission of attempted Hobbs Act robbery.
Ante, at 1
(describing Hobbs Act robbery). In 2009, in exchange for the
Government dropping most of the charges, Taylor pleaded guilty to
conspiracy to commit Hobbs Act robbery and the §924(c) charge—that
is, using a firearm during and in relation to a crime of violence.
In doing so, he admitted to the attempted robbery and the shooting.
He also admitted that attempted Hobbs Act robbery is a “crime of
violence” under §924(c).
The District Court sentenced Taylor to 360
months’ imprisonment—a 240-month sentence for the conspiracy and a
120-month consecutive sentence for the §924(c) conviction. Taylor
appealed, but in 2011 the Court of Appeals dismissed the appeal
because Taylor had waived his appellate rights in his plea
agreement. Order in
United States v.
Taylor, No.
09–4468, ECF Doc. 54 (CA4, Jan. 7, 2011). In 2015, he then
unsuccessfully sought postconviction relief under 28
U. S. C. §2255.
United States v.
Taylor,
2015 WL 4095845, *1 (ED Va., July 7, 2015)
.
Decided around the time of his failed §2255
motion, one of this Court’s cases appeared to give Taylor another
chance to challenge his conviction. In
Johnson v.
United
States, 576 U.S. 591 (2015), the Court struck down the
similarly worded residual clause of the Armed Career Criminal Act
(ACCA), as unconstitutionally vague. The following year, in
Welch v.
United States, 578 U.S. 120 (2016), the
Court held that
Johnson applies retroactively on collateral
review. Citing those two decisions, Taylor moved for permission to
file a second-or-successive §2255 petition. He argued that
§924(c)’s residual clause paralleled ACCA’s residual clause and
therefore was unconstitutionally vague. 979 F. 3d, at 206. He
further argued that attempted Hobbs Act robbery was not a “crime of
violence” under §924(c)’s elements clause because it lacked “as an
element the use, attempted use, or threatened use of physical
force.” §924(c)(3)(A).
The Court of Appeals granted the motion to file
a successive habeas petition and, in 2020, vacated Taylor’s §924(c)
conviction. It did so because, as the Court explains, our
precedents require that courts apply a “categorical approach” when
interpreting the elements clause.
Ante, at 11. Under that
approach, a criminal defendant who commits a violent crime
nonetheless does not commit a “crime of violence” if a hypothetical
criminal could commit the same offense without satisfying §924(c)’s
physical-force requirement. See
ibid. Because someone
else—“Adam”—could have committed attempted Hobbs Act robbery
without physical force, the Court holds, Taylor’s armed robbery
that resulted in the victim’s death is not a “crime of violence”
under §924(c).
II
We have reached this point of absurdity only
because this Court applies a narrow categorical approach to
§924(c)’s elements clause and has nullified the residual clause
that would have captured crimes like Taylor’s. It is hard to fathom
why this makes sense or why any rational Congress would countenance
such an outcome so divorced from reality.
A
Our odyssey began in 1990, as the Court
wrestled with a different clause found in a different part of §924:
ACCA’s sentencing enhancement in §924(e). Unlike §924(c), which
defines a substantive crime, ACCA imposes a sentencing enhancement
that applies to any defendant with three or more prior “violent
felon[ies]” whom the Federal Government convicts of illegally
possessing a firearm. §§922(g), 924(e)(2). Like §924(c), ACCA
defines “violent felony” with an elements clause and a residual
clause. The Act also includes an “enumerated-offenses” clause
defining “violent felony” to include any crime that “is burglary,
arson, or extortion, [or] involves use of explosives.”
§924(e)(2).
In
Taylor v.
United States,
495 U.S.
575 (1990), the Court first adopted a categorical approach when
interpreting “burglary” under ACCA’s enumerated-offenses clause.
Id., at 598. The Court construed “burglary” in the abstract,
as a “generic burglary” with elements derived from a treatise and
the Model Penal Code.
Id., at 593–598, and n. 8. The
Court then held that the enumerated-offenses clause prohibits
courts from looking to the “particular facts” of a defendant’s
burglary to see if the conduct satisfies the elements of generic
burglary.
Id., at 600. It does not matter how violent the
defendant’s actual conduct was. Instead, courts must determine
whether the elements of the burglary statute under which a
defendant was convicted “substantially correspon[d]” to generic
burglary.
Id., at 600, 602. Though
Taylor gave “few
reasons why” this so-called categorical approach “was the correct
reading of ACCA,” at the “ ‘heart of the decision’ ” were
“worrie[s]” that a conduct-based approach to a sentencing
enhancement might violate the Sixth Amendment by leading to
“full-blown mini-trial[s], with factfinding by the judge instead of
the jury.”
Sessions v.
Dimaya, 584 U. S. ___,
___–___ (2018) (Thomas, J., dissenting) (slip op., at 21–22).
While
Taylor applied the categorical
approach only to ACCA’s enumerated-offenses clause, the approach
soon migrated to the elements clauses in ACCA and elsewhere. See,
e.g., Borden v.
United States, 593 U. S.
___, ___ (2021) (plurality opinion) (slip op., at 2). In that
context, the categorical approach demands that a court divine what
constitutes the “
least serious conduct [the prior conviction
or predicate offense] covers” and decide whether that conduct
“falls within the elements clause.”
Id., at ___ (slip op.,
at 20). To do that, a judge must “mull through any number of
hypothetical ways to commit a crime that have nothing to do with
the facts of the prior conviction” or the facts underlying a
predicate §924(c) offense.
United States v.
Burris,
912 F.3d 386, 409 (CA6 2019) (Thapar, J., concurring). If a court
identifies a way to commit the crime without using, attempting to
use, or threatening to use force, then the crime is not a “violent
felony” or “crime of violence” under ACCA’s or §924(c)’s elements
clauses. See
Borden, 593 U. S., at ___ (slip op., at
20).
This Court eventually extended the categorical
approach to ACCA’s residual clause as well. In
James v.
United States,
550 U.S.
192 (2007), the Court, at the urging of both parties,
“employ[ed] the ‘categorical approach’ ” to analyze ACCA’s
residual clause.
Id., at 202 (quoting
Shepard v.
United States,
544 U.S.
13, 17 (2005)). That clause defines a “violent felony” as one
that “otherwise involves conduct that presents a serious potential
risk of physical injury to another.” §924(e)(2)(B)(ii).
James explained that ACCA’s residual-clause categorical
approach boiled down to two steps. First, a court looked to the
elements of the crime for which the defendant was convicted and
asked what conduct the “ordinary case” of that crime entailed. 550
U. S.
, at 208. Second, the court asked whether that
“ordinary case” “present[ed] a serious potential risk of injury to
another” comparable to that posed by the specific crimes listed in
the enumerated-offenses clause.
Id., at 204, 208–209
.
If it did, then the predicate crime was a “violent felony.”
That test proved difficult to apply. In
particular, the Court struggled with how to define the “ordinary
case” of a given predicate crime. See
Johnson, 576
U. S., at 597 (“How does one go about deciding what kind of
conduct the ordinary case of a crime involves? A statistical
analysis of the state reporter? A survey? Expert evidence? Google?
Gut instinct?” (internal quotation marks omitted)). The Court
likewise struggled in assessing what level of risk the ordinary
case presented.
Id., at 598. After trying to apply this
approach several times, see,
e.g., Begay v.
United
States,
553 U.S.
137 (2008), the Court in
Johnson ultimately abandoned
the project. But rather than reassess whether it had adopted the
right analytical framework in light of ACCA’s text and statutory
context, the Court in
Johnson nullified ACCA’s residual
clause altogether. See 576 U. S., at 624 (Thomas, J.,
concurring in judgment). According to the Court, the “[t]wo
features” of the residual-clause analysis that the Court set out in
James—identifying “ordinary case” conduct and judging
whether that abstracted conduct “presents a serious risk of
physical injury”—“conspire[d] to make [the residual clause]
unconstitutionally vague.” 576 U. S., at 597–598 (majority
opinion).
That conclusion was not inevitable. The
Johnson Court did “not doubt the constitutionality of laws
that call for the application of a qualitative standard such as
‘substantial risk’ to real-world conduct.”
Id., at 603–604.
Thus, the Court “all but concede[d] that the residual clause would
be constitutional if,” rather than incorporating
James’
categorical approach, it looked to whether the “ ‘real-world
conduct’ ” of the underlying conviction presented a serious
risk of physical injury to another. 576 U. S., at 632 (Alito,
J., dissenting).
Despite recognizing that a conduct-based
approach was constitutionally sound, the Court later extended
Johnson to the residual clause in §924(c). See
United
States v.
Davis, 588 U. S. ___, ___ (2019). The
Davis Court decided that the §924(c) residual clause’s
language was so similar to the ACCA residual clause that it, too,
must be void for vagueness.
Id., at ___–___, ___–___ (slip
op., at 6–7, 24–25). Four of us, however, advanced a more sensible
approach: Rather than extend
Johnson to nullify §924(c)’s
residual clause, we should simply not use the categorical approach
when interpreting residual clauses and adopt a framework focused on
the defendant’s actual conduct that
Johnson conceded was
constitutional. See 588 U. S., at ___–___ (slip op., at 16–17)
(Kavanaugh, J., dissenting).
As the
Davis dissent explained, §924(c)’s
residual clause is best interpreted to call for a conduct-based
approach.
Id., at ___–___ (slip op., at 17–24). To begin
with, the plain text of the residual clause strongly supports a
conduct-based approach. See
ibid. Further, none of the
perceived Sixth Amendment concerns that attend to ACCA’s sentencing
enhancement are present in the §924(c) context, because a “jury
will find the facts or, if the case ends in a guilty plea, the
defendant will accept the facts in the plea agreement.”
Id.,
at ___ (slip op., at 16). Finally, if any ambiguity remains, a
conduct-based approach to §924(c)’s residual clause best accords
with the canon counseling courts to construe statutes not to
violate the Constitution whenever possible. See
id., at
___–___ (slip op., at 26–27) (“To be clear, the case before us is
not a case of avoiding
possible unconstitutionality. This is
a case of avoiding
actual unconstitutionality”); see also
Dimaya, 584 U. S., at ___ (Thomas, J., dissenting)
(slip op., at 20). Thus, read properly, the residual clause is as
constitutionally sound as any other criminal law applying “ ‘a
qualitative standard . . . to real-world conduct.’ ”
Davis, 588 U. S., at ___ (Kavanaugh, J., dissenting)
(slip op., at 6) (quoting
Johnson, 576 U. S., at 604).
Nothing in the three years since
Davis has changed that.
B
To the contrary, the last three years have
instead shown how our §924(c) precedents have “left prosecutors and
courts in a bind.”
Borden, 593 U. S., at ___ (Thomas,
J., concurring in judgment) (slip op., at 2). Section 924(c)’s
residual clause—which squarely applies to the mine run of violent
crimes—is no longer available. The categorical approach, meanwhile,
forecloses §924(c)’s elements clause unless, in every hypothetical
prosecution, the crime of conviction requires the Government to
prove that physical force against another was used, attempted, or
threatened. In case after case, our precedents have compelled
courts to hold that heinous crimes are not “crimes of violence”
just because someone, somewhere,
might commit that crime
without using force.
A few examples from the Courts of Appeals
demonstrate how our precedents have emasculated §924(c). First, in
United States v.
Walker, 934 F.3d 375 (2019), the
Fourth Circuit considered whether a conviction for federal
kidnaping could predicate a §924(c) conviction. See
id., at
376 (citing §1201(a)). Walker and an accomplice had kicked in the
door of a family’s home, held the victims at gunpoint, beat some of
them, demanded money, and threatened to kill the family’s
4-year-old daughter, all before locking the family in a closet and
ransacking the house. Factual Basis for Guilty Plea in
United
States v.
Walker, No. 14–cr–00271, ECF Doc. 13 (MDNC,
Nov. 3, 2014). No one could dispute that Walker’s conduct presented
a “substantial risk that physical force” would be used “in the
course of committing the offense.” §924(c)(3)(B). Yet, because of
Davis, the Fourth Circuit could not invoke the residual
clause. See
Walker, 934 F. 3d, at 378. That left only
§924(c)(3)’s elements clause, interpreted according to the
inflexible categorical approach. Compelled to imagine whether
federal kidnaping could hypothetically be committed without the use
of physical force, the Fourth Circuit ultimately vacated Walker’s
§924(c) conviction because a criminal could commit the offense by
“inveigl[ing]” a victim and then holding him in captivity with a
“mental restraint.”
Id., at 378–379 (emphasis
deleted).[
1]
Second, in
United States v.
Tsarnaev, 968 F.3d 24 (CA1 2020), reversed on other grounds,
595 U. S. ___ (2022), the First Circuit considered whether a
terrorist’s conviction for federal arson—which he committed in the
course of carrying out the Boston Marathon bombings—counted as a
crime of violence under §924(c). Tsarnaev and his brother
intentionally detonated bombs that killed three people, including
an 8-year-old, and injured hundreds more. See
id., at
___–___ (slip op., at 2–3). Yet, the categorical-approach
precedents led the First Circuit to the admittedly
“counterintuitive” conclusion that federal arson resulting in death
arising from a terrorist bombing was not a crime of violence.
Tsarnaev, 968 F. 3d, at 102. The residual clause had
been nullified,
id., at 99, and the First Circuit held that
federal arson did not satisfy the elements clause because it
theoretically could have been committed recklessly,
id., at
102,[
2] which, we have held in
the ACCA context, renders a crime outside the elements clause, see
Borden, 593 U. S., at ___–___ (plurality opinion) (slip
op., at 7–8).
Finally, in
United States v.
Ledbetter, 929 F.3d 338 (CA6 2019), the Sixth Circuit
vacated two convictions under 18 U. S. C. §924(j), which
criminalizes “caus[ing] the death of a person through the use of a
firearm” “in the course of a violation of ” §924(c). 929 F.
3d
, at 360–361
. The two defendants were associated
with a gang called the “Short North Posse.”
Id., at 359. One
belonged to a subunit of the gang, appropriately named the
“ ‘Homicide Squad,’ ” which “specializ[ed] in murders and
robberies.”
Id., at 345. In August 2007, they joined a team
of gang members who broke into a home and shot a victim to death.
Id., at 359. Section 924(c)’s residual clause would have
covered the defendants’ conduct, given that there is obviously a
“substantial risk that physical force” would be “used in the course
of ” a gangland home-invasion murder. §924(c)(3)(B). But
Davis had nullified that clause, and the Government conceded
that conspiracy to commit Hobbs Act robbery—the
predicate crime for the defendants’ §924(j)
convictions—was not a crime of violence under this Court’s
elements-clause precedents. 929 F. 3d, at 360–361. These are
not the only homicide-related §924 convictions that
Davis
has undermined.[
3]
These examples show how our precedents have led
the Federal Judiciary to “a pretend place.”
United States v.
Davis, 875 F.3d 592, 595 (CA11 2017). With the residual
clause nullified, courts cannot look to it to capture violent
crimes. And, because of the categorical approach, the elements
clause often does not apply because “other defendants at other
times may have been convicted, or future defendants could be
convicted, of violating the same statute without violence.”
Ibid. Like Alice, we have strayed far “down the rabbit
hole,” and “[c]uriouser and curiouser it has all become.”
Ibid.
III
There is a straightforward solution to this
problem—overrule
Davis. Cf.
Borden, 593 U. S.,
at ___ (opinion of Thomas, J.) (slip op., at 3) (“There is a
straightforward solution to this dilemma—overrule
Johnson”).
It is a demonstrably erroneous precedent that veered from the best
interpretation of §924(c)’s residual clause. See
supra, at
7–8 (citing
Davis, 588 U. S., at ___–___ (Kavanaugh,
J., dissenting) (slip op., at 16–17)); cf.
Johnson, 576
U. S., at 613 (Thomas, J., concurring in judgment) (noting
this Court’s habit of wielding due process doctrines like vagueness
“to achieve its own policy goals”). Accordingly, I would overrule
Davis and adopt in its place the conduct-based approach that
the
Davis dissent described. Overruling
Davis would
revive §924(c)’s residual clause, once again allowing the statute
to capture the vast majority of §924(c) convictions that elude an
elements clause straightjacketed by the categorical approach.
With a revived residual clause, resolving this
case is easy. Taylor’s counsel acknowledged that Congress “enacted
the residual clause to capture cases just like” Taylor’s. Tr. of
Oral Arg. 48–49. His confessed conduct—an attempted armed robbery
during which the victim was shot and killed—“by its nature,
involve[d] a substantial risk that physical force” would be used.
§924(c)(3)(B). Thus, Taylor committed a predicate offense that
supported his §924(c) conviction. Taylor’s appeal should therefore
fail, and he should serve the 10 years in prison he received for
the §924(c) conviction.
This same logic would have saved the other
convictions described above. Equipped with a revived residual
clause focused on the defendant’s actual conduct, those federal
courts would not have had to vacate the §924(c) convictions of
kidnapers who threatened families, terrorists who bombed sporting
events, or murderers who shot their victims. In other words, those
courts could have applied the statute that Congress enacted rather
than the one this Court effectively rewrote and then nullified.
IV
The costs of our decisions imposing the
categorical approach on §924(c) and other statutes have been
immense. Apart from the unnatural results it produces in §924(c)
cases, the categorical approach has led to equally baffling ones in
the ACCA context and elsewhere. See,
e.g.,
Burris,
912 F. 3d, at 407 (Thapar, J., concurring) (“A casual reader
. . . might struggle to understand why we are even
debating if ramming a vehicle into a police officer is a crime of
violence”);
Davis, 875 F. 3d, at 604 (holding that a
man charged with first-degree rape who pleaded to first-degree
sexual abuse by forcible compulsion had not committed an ACCA
“violent felony” because the force required was insufficiently
violent). Moreover, courts attempting to apply the categorical
approach waste time thinking up improbable hypotheticals, making
the approach “very difficult to administer.”
Burris, 912
F. 3d, at 407 (Thapar, J., concurring); see also,
e.g.,
Cradler v.
United States, 891 F.3d 659, 672
(CA6 2018) (Kethledge, J., concurring) (“Whatever the merits of
this approach, accuracy and judicial efficiency are not among
them”). Finally, Congress, through legislation, created crimes like
§924(c) and enhancements like ACCA to reduce gun crime rates by
imposing long sentences on violent criminals who use firearms. See
Davis, 588 U. S., at ___–___ (Kavanaugh, J.,
dissenting) (slip op., at 1–2). Yet, as a growing chorus of Court
of Appeals judges has explained, the categorical approach stymies
that effort. See,
e.g., United States v.
Ovalles, 905 F.3d 1231, 1253–1257 (CA11 2018) (W. Pryor, J.,
concurring). No rational legislature would have implicitly imposed
this byzantine and resource-depleting legal doctrine that so
encumbers federal courts and threatens public safety.
Worse still, this Court has imposed these costs
on the federal courts and the public even though the text of these
provisions does not demand them. I have already pointed out the
“absurdity of applying the categorical approach to the
enumerated-offenses clause” of ACCA and have suggested that a
conduct-based approach better fits the text.
Quarles v.
United States, 587 U. S. ___, ___–___ (2019) (Thomas,
J., concurring) (slip op., at 1–2). And although the categorical
approach might be a “linguistically possible” interpretation of the
residual clauses, “the underlying-conduct approach is the better
one.”
Dimaya, 584 U. S., at ___ (Thomas, J.,
dissenting) (slip op., at 25). And finally, while I have suggested
that the categorical approach applies most plausibly in the
elements-clause context, see
id., at ___ (slip op., at 26),
the Government has suggested that even that clause might better
accord with a conduct-based approach. Tr. of Oral Arg. 5–6; see
also
Burris, 912 F. 3d, at 409–410 (Thapar, J.,
concurring).
In light of the mischief that the categorical
approach has caused, we should welcome briefing on whether a
conduct-based approach tacks closer to statutory text and common
sense—especially in the elements-clause context. If it does, we
should adopt it.[
4]
* * *
Even Alice, having slaked her curiosity,
eventually returned from the land beyond the looking glass. It is
high time that this Court do the same. In this case, I would begin
the trek back by adopting the
Davis dissent’s conduct-based
approach, reviving §924(c)’s residual clause, and reversing the
judgment below. And in future cases, when it comes to interpreting
§924(c)’s elements clause, I will carefully consider alternatives
to this Court’s atextual and ever-more-absurd categorical approach.
For these reasons, I respectfully dissent.
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