Denard Stokeling v. United States/Opinion of Justice Sotomayor
SUPREME COURT OF THE UNITED STATES
No. 17–5554
DENARD STOKELING, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[January 15, 2019]
Justice Sotomayor, with whom The Chief Justice, Justice Ginsburg, and Justice Kagan join, dissenting.
In Johnson v. United States, 559 U. S. 133 (2010), this Court ruled that the words “physical force” in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2), denote a heightened degree of force, rather than the minimal contact that would have qualified as “force” for purposes of the common-law crime of battery. Id., at 139–140. This case asks whether Florida robbery requires such “physical force,” and thus qualifies as a “violent felony” under the ACCA, even though it can be committed through use of only slight force. See §924(e)(2)(B). Under Johnson, the answer to that question is no. Because the Court’s contrary ruling distorts Johnson, I respectfully dissent.
I
As the majority explains, petitioner Denard Stokeling pleaded guilty in 2016 to being a felon in possession of a firearm in violation of 18 U. S. C. §922(g)(1). The Government and the probation department argued for an increased sentence under the ACCA. Stokeling objected.
The ACCA imposes a 15-year mandatory-minimum sentence on any §922(g) offender who has been convicted of at least three qualifying predicate convictions. §924(e)(1). As relevant here, a past conviction can qualify as an ACCA predicate if it is what ACCA calls a “violent felony”–that is, “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 another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B).
Clause (i) is often called the “elements clause” (or “force clause”), because it requires each qualifying crime to have an element involving force. The first part of clause (ii) is often called the “enumerated clause,” because it enumerates certain generic crimes–such as burglary–that Congress sought to cover. The final part of clause (ii), often called the “residual clause,” once offered a catchall to sweep in otherwise uncovered convictions, but the Court struck it down as unconstitutionally vague in 2015. See Johnson v. United States, 576 U. S. ___, ___ (slip op., at 15). So the elements clause and the enumerated clause are now the only channels by which a prior conviction can qualify as an ACCA “violent felony.”
Whether Stokeling is subject to the ACCA’s 15-year mandatory minimum hinges on whether his 1997 conviction for Florida robbery, see App. 10, qualifies under the elements clause. To determine whether a conviction qualifies as a violent felony under the ACCA, courts apply a method called the categorical approach. See Taylor v. United States, 495 U. S. 575, 600–602 (1990). In the elements-clause context, that method requires asking whether the least culpable conduct covered by the statute at issue nevertheless “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See §924(e)(2); Johnson, 559 U. S., at 137. If it does not, then the statute is too broad to qualify as a “violent felony.” In determining what a state crime covers for purposes of this federal sentencing enhancement, federal courts look to, and are constrained by, state courts’ interpretations of state law. See id., at 138.
As relevant here, Florida law defines robbery as “the taking of money or other property… from the person or custody of another… when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1) (2017). The Florida Supreme Court has interpreted the statute’s reference to force to require “force sufficient to overcome a victim’s resistance.” Robinson v. State, 692 So. 2d 883, 887 (1997). Otherwise, the “degree of force used is immaterial.” Montsdoca v. State, 84 Fla. 82, 86, 93 So. 157, 159 (1922). If the resistance is minimal, the force need only be minimal as well.
II
Florida robbery, as interpreted and applied by the Florida courts, covers too broad a range of conduct to qualify as a “violent felony” under the ACCA. Both the text and purpose of the ACCA–particularly as they have already been construed by our precedents–demonstrate why.
A
In considering the text of the ACCA, we do not write on a clean slate. As everyone seems to agree, the key precedent here is this Court’s decision in Johnson v. United States, 559 U. S. 133. See ante, at 3, 8. But while the majority claims to honor Johnson, ante, at 8–10, it does so in the breach.
Johnson concerned whether Florida battery qualified as an ACCA predicate under the elements clause. This Court held that it did not. To arrive at that answer, the Court was required to interpret what exactly Congress meant when it used the words “physical force” to define the kind of “violent felony” that should be captured by the ACCA’s elements clause. See 559 U. S., at 138–143.
Rather than parsing “cherry pick[ed] adjectives,” ante, at 10, it is instructive to look to how Johnson actually answered that question. Writing for the Court, Justice Scalia explained:
“We think it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical 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) (Easterbrook, J.). Even by itself, the word ‘violent’ in §924(e)(2)(B) connotes a substantial degree of force. Webster’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 [Law Dictionary] 1706 [(9th ed. 2009)] (‘[o]f, relating to, or characterized 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,”… calls to mind a tradition of crimes that involve the possibility of more closely related, active violence’).” 559 U. S., at 140–141.
In other words, in the context of a statute delineating “violent felon[ies],” the phrase “physical force” signifies a degree of force that is “violent,” “substantial,” and “strong”–“that is, force capable of causing physical pain or injury to another person.” See id., at 140; see also id., at 142 (“As we have discussed… 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’ ”).
The majority, slicing Johnson up, concentrates heavily on the phrase “capable of causing physical pain or injury” and emphasizes the dictionary definition of the word “capable” to suggest that Johnson “does not require any particular degree of likelihood or probability” of “pain or injury”–merely, as with any law professor’s eggshell-victim hypothetical, “potentiality.” Ante, at 10–11. Our opinions, however, should not be “parsed as though we were dealing with the language of a statute,” Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979), and in any event, the majority’s parsing goes astray. It is clear in context that the Court in Johnson did not mean the word “capable” in the way that the majority uses it today, because Johnson rejected an interpretation of “physical force” that would have included a crime of battery that could be satisfied by “[t]he most ‘nominal contact,’ such as a ‘ta[p]… on the shoulder without consent.’ ” 559 U. S., at 138. As any first-year torts student (or person with a shoulder injury) quickly learns, even a tap on the shoulder is “capable of causing physical pain or injury” in certain cases. So the Court could not have meant “capable” in the “potentiality” sense that the majority, see ante, at 11, ascribes to it. Rather, it meant it in the sense that its entire text indicates: “force capable of causing physical pain or injury” in the sense that a “strong” or “substantial degree of force” can cause physical pain or injury. See Johnson, 559 U. S., at 140. The phrase denoted, that is, a heightened degree of force.
Florida robbery, as interpreted by the Florida Supreme Court, cannot meet Johnson’s definition of physical force. As noted above, Florida robbery requires “force sufficient to overcome a victim’s resistance.” Robinson, 692 So. 2d, at 887. But that can mean essentially no force at all. See McCloud v. State, 335 So. 2d 257, 258 (Fla. 1976) (“Any degree of force suffices to convert larceny into a robbery”); Montsdoca, 84 Fla., at 86, 93 So., at 159 (“The degree of force used is immaterial”). For example, the force element of Florida robbery is satisfied by a pickpocket who attempts to pull free after the victim catches his arm. See Robinson, 692 So. 2d, at 887, n. 10 (citing Colby v. State, 46 Fla. 112, 113, 35 So. 189, 190 (1903)). Florida courts have held the same for a thief who pulls cash from a victim’s hand by “ ‘peel[ing] [his] fingers back,’ ” regardless of “[t]he fact that [the victim] did not put up greater resistance.” Sanders v. State, 769 So. 2d 506, 507 (Fla. App. 2000). The Government concedes, similarly, that a thief who grabs a bag from a victim’s shoulder also commits Florida robbery, so long as the victim instinctively holds on to the bag’s strap for a moment. See Tr. of Oral Arg. 32–34; see also Benitez-Saldana v. State, 67 So. 3d 320, 322–323 (Fla. App. 2011). And Stokeling points to at least one person who was convicted of Florida robbery after causing a bill to rip while pulling cash from a victim’s hand. See App. B to Brief for Petitioner.
While these acts can, of course, be accomplished with more than minimal force, they need not be. The thief who loosens an already loose grasp or (assuming the angle is right) tears the side of a $5 bill has hardly used any force at all. Nor does the thief who simply pulls his arm free from a store employee’s weak grasp or snatches a handbag onto which a victim fleetingly holds use “force capable of causing physical pain or injury to another person” in the sense that Johnson meant the phrase, because he does not use “a substantial degree of force” or “strong physical force.” See Johnson, 559 U. S., at 140. By providing that “[a]ny degree of force suffices to convert larceny into a robbery,” McCloud, 335 So. 2d, at 258–and thus making robbers out of thieves who use minimal force–Florida expands its law beyond the line that Johnson drew. The least culpable conduct proscribed by Fla. Stat. §812.13 does not entail “physical force,” §924(e)(2)(B)(i), as this Court properly construed that phrase in Johnson.
B
The purpose underlying the ACCA confirms that a robbery statute that sweeps as broadly as Florida’s does not qualify as an ACCA predicate.
As noted above, the ACCA prescribes a 15-year mandatory-minimum prison term for anyone convicted of being a felon in possession of a firearm so long as that person has three qualifying past convictions. In Begay v. United States, 553 U. S. 137 (2008), this Court explained that, “[a]s suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender–a violent criminal or drug trafficker–possesses a gun.” Id., at 146. The ACCA, that is to say, does not look to past crimes simply to get a sense of whether a particular defendant is generally a recidivist; rather, it looks to past crimes to determine specifically “the kind or degree of danger the offender would pose were he to possess a gun.” Ibid.
Begay considered whether a New Mexico felony conviction for driving under the influence of alcohol (DUI) qualified as an ACCA predicate under the now-defunct residual clause. See id., at 141–142. Felony DUI, the Court explained, did not fit with the types of crimes that Congress was trying to capture, because while it “reveal[ed] a degree of callousness toward risk,” it did not “show an increased likelihood that the offender is the kind of person who might deliberately point [a] gun and pull the trigger.” Id., at 146. The Court had “no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.” Ibid.
The same is true here. The lower grade offenders whom Florida still chooses to call “robbers” do not bear the hallmarks of being the kind of people who are likely to point a gun and pull the trigger, nor have they committed the more aggravated conduct–pointing a weapon, inflicting bodily injury–that most people think of when they hear the colloquial term “robbery.” Under Florida law, “robbers” can be glorified pickpockets, shoplifters, and purse snatchers. No one disputes that such an offender, if later discovered illegally in possession of a firearm, will in many cases merit greater punishment as a result of the past offense; unless it occurred far in the past, such a conviction will typically increase that defendant’s advisory sentencing range under the U. S. Sentencing Guidelines. See Rosales-Mireles v. United States, 585 U. S. ___, ___–___ (2018) (slip op., at 2–3); United States Sentencing Commission, Guidelines Manual §§1B1.1(a)(6)–(7), 4A1.1, 4A1.2(e) (Nov. 2018). But there is “no reason to believe that Congress intended a 15-year mandatory prison term” for such offenders, who do not present the increased risk of gun violence that more aggravated offenders present. See Begay, 553 U. S., at 146.
III
Unable to rely heavily on text, precedent, or purpose to support its holding that Florida robbery qualifies as an ACCA “violent felony,” the majority turns to the common law, to legislative and statutory history, and finally to what it perceives as the consequences of ruling for Stokeling. None of these rationales is persuasive.
A
The majority observes that Florida’s statute requires no less force than was necessary to commit common-law robbery. That may well be true: The majority notes, for example, that at common law “it was robbery to pull a diamond pin out of a woman’s hair when doing so tore away hair attached to the pin,” ante, at 4, and as anyone who has ever pulled a bobby pin out of her hair knows, hair can break from even the most minimal force. In the majority’s telling, however, the ACCA itself “encompasses the degree of force necessary to commit common-law robbery.” Ante, at 13. That proposition is flatly inconsistent with Johnson.
In explaining its interpretation of “physical force,” the Court in Johnson expressly rejected the common law’s definition of “force,” see 559 U. S., at 139, instead recognizing that the phrase should be “give[n]… its ordinary meaning,” id., at 138. At common law, “force” could be “satisfied by even the slightest offensive touching.” Id., at 139. But as the Court observed, “[a]lthough a common-law term of art should be given its established common-law meaning, we do not assume that a statutory word is used as a term of art where that meaning does not fit.” Ibid. (citation omitted). Rather, “context determines meaning,” ibid., and, “in the context of a statutory definition of ‘violent felony,’ ” the ordinary rather than the common-law meaning of “force” was what fit, id., at 140.
The majority now says that while Johnson rejected the common-law meaning of force with regard to battery, it nevertheless meant somehow to preserve the common-law meaning of force with regard to robbery. See ante, at 4–6, 8–10. In other words, to reach its conclusion, the majority must construe “physical force” in §924(e)(2)(B)(i) to bear two different meanings–Johnson’s and the majority’s–depending on the crime to which it is being applied. That is a radical and unsupportable step.
To be clear, the majority does not simply rule that the phrase “physical force” carries the common-law meaning in one place but a different meaning in another statutory provision. There would certainly be precedent for that. See, e. g., United States v. Castleman, 572 U. S. 157, 162–168 (2014) (explaining why the phrase “physical force” took on a common-law meaning, rather than its ACCA meaning under Johnson, in the context of a statute defining a “ ‘misdemeanor crime of domestic violence’ ”). Johnson, in fact, expressly reserved the question whether “physical force” might mean something different in the context of a different statutory definition. See 559 U. S., at 143–144.
What Johnson did not do, however, was suggest that “physical force” in a single clause–the elements clause–that Johnson addressed might mean two different things for two different crimes. See id., at 143 (“We have interpreted the phrase ‘physical force’ only in the context of a statutory definition of ‘violent felony’ ”); see also id., at 138–142. Johnson had good reason not to say so: because that is not how we have said that statutory interpretation works. See, e. g., Clark v. Martinez, 543 U. S. 371, 378 (2005) (observing that a single statutory word or phrase “cannot… be interpreted to do” two different things “at the same time”); Ratzlaf v. United States, 510 U. S. 135, 143 (1994) (similar).
Starting today, however, the phrase “physical force” in §924(e)(2)(B)(i) will apparently lead a Janus-faced existence. When it comes to battery, that phrase will look toward ordinary meaning; when it comes to robbery, that same piece of statutory text will look toward the common law. To the extent that is a tenable construction, the majority has announced a brave new world of textual interpretation. To the extent that a phrase so divided cannot stand, meanwhile, one could be forgiven for thinking that the majority, though it claims to praise Johnson, comes instead to bury it. B
To shore up its argument that the ACCA’s use of the phrase “physical force,” at least in the context of robbery, takes on the common-law meaning of “force,” the majority invokes the history of the ACCA. Statutory history is no help to the majority here.
As the majority notes, a precursor to the ACCA prescribed a mandatory-minimum sentence for people convicted of firearm offenses who had three qualifying prior convictions “for robbery or burglary.” 18 U. S. C. App. §1202(a) (1982 ed., Supp. II). That statute defined robbery, as relevant, as “the taking of the property of another… by force or violence.” §1202(c)(8) (1982 ed., Supp. II). See ante, at 3–4. In other words, it is undisputed that at one point, in a previous statute, Congress enumerated robbery as a qualifying predicate and used the words “force or violence” to describe a generic version of the crime.
Then, in 1986, Congress changed the statute, substituting instead the language we know today. See Career Criminals Amendment Act of 1986, §1402, 100 Stat. 3207–39. Gone was any explicit reference to “robbery”; in its place came not only the elements clause (our focus here) but also the enumerated clause (which retained an express reference to “burglary” but omitted “robbery”) and the capacious residual clause (struck down in 2015). See ante, at 6; supra, at 2; see also Taylor, 495 U. S., at 582–584. So Congress did two salient things: It expanded the predicates in general, and it deleted an express reference to robbery.
The majority reasons that because (1) the old law’s definition of “robbery” as a taking involving “force or violence” matched various common-law definitions of robbery, (2) Congress kept the word “force” (though not “or violence”) in the new law’s elements clause while deleting the word “robbery,” and (3) Congress meant to expand the enhancement’s reach in a general sense, Congress must have meant for the phrase “physical force” in the new law also to carry the common-law meaning of robbery. See ante, at 4–7. The conclusion that the majority draws from these premises does not follow, for at least four reasons.
First, as already discussed, the question whether Congress’ use of the phrase “physical force” in the new law–that is, in the ACCA’s elements clause–carries the common-law meaning of “force” was already asked and answered by Johnson: It does not. See 559 U. S., at 138–143, 145; supra, at 9–10. This part of the majority’s argument may be couched in statutory history, but it is no more than an attempt to relitigate Johnson.
Second, Congress deleted the word “robbery” from the statute altogether while still enumerating robbery’s former neighbor, “burglary,” in the enumerated clause. See supra, at 2, 11. When Congress keeps one piece of statutory text while deleting another, we generally “have no trouble concluding that” it does so with purpose, see, e. g., Director of Revenue of Mo. v. CoBank ACB, 531 U. S. 316, 324 (2001), absent some reason to believe that the missing term simply got “lost in the shuffle,” United States v. Wilson, 503 U. S. 329, 336 (1992). See also, e. g., Russello v. United States, 464 U. S. 16, 23–24 (1983) (“Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended”). Here, it is inconceivable that Congress simply lost track of robbery, one of only two generic crimes that it enumerated in the old statute. Accordingly, if Congress had wanted to retain the old statute’s specific emphasis on robbery, the natural reading is that it would have accomplished that goal the same way it did with burglary: by making it an enumerated offense. That it did not do so is telling.
Third, the fact that Congress wished to “expan[d] the predicate offenses triggering the sentence enhancement,” Taylor, 495 U. S., at 582, is entirely consistent with paring back the statute’s sweep with regard to robbery specifically. I may wish to expand the contents of my refrigerator, but that does not mean that I will buy more of every single item that is currently in it the next time that I go shopping. Here, the ACCA–with its (new, generalized) elements clause, its (augmented) enumerated clause, and (until recently) its highly capacious residual clause–undeniably expanded the precursor statute’s bare enumeration of robbery and burglary, regardless of how many robbery statutes qualify as predicates specifically under the elements clause.[1]
Fourth, even assuming that Congress wanted robbery to remain largely encompassed by the ACCA despite deleting the word from the precursor statute, that intent is fully consistent with properly applying Johnson here. The majority, by focusing on the elements clause, ignores the residual clause, which–until it was declared unconstitutional in 2015–provided a home for many crimes regardless of whether they included an element of violent “physical force.”[2] Hewing to a proper reading of Johnson, in other words, does not require assuming that Congress constricted the precursor statute’s application to robbery when it enacted today’s ACCA; whatever robberies would have qualified under the old statute presumably could have still qualified under the residual clause during its nearly 20-year existence.
In short, the statutory history does not undermine the conclusion that the ACCA’s elements clause, under our precedents, is not broad enough to encompass Florida’s robbery statute. Congress deleted the word “robbery,” kept the word “burglary,” supplemented burglary with the catchall residual clause that still captured many robberies outside the elements clause, and used the phrase “physical force” in the elements clause to define a type of “violent felony,” which Johnson tells us requires more force than the term’s common-law meaning denotes. See 559 U. S., at 138–143, 145. Statutory history cannot get the majority past both the text and the force of stare decisis here.
C
That leaves the majority with only the practical consequences that it asserts would follow if this Court were to hold that Florida robbery does not qualify under the ACCA’s elements clause. See ante, at 7–8. While looking to how an interpretation of a federal statute would affect the applicability of related state statutes can be a useful approach in these cases, see, e. g., Castleman, 572 U. S., at 167, the results that follow from a proper reading of Johnson are not nearly as incongruous as the majority suggests.
To begin, take the majority’s assertion “that many States’ robbery statutes would not qualify as ACCA predicates,” ante, at 7, if the Court were to apply Johnson as it was written. The accuracy of this statement is far less certain than the majority’s opinion lets on. While Stokeling and the Government come close to agreeing that at least 31 States’ robbery statutes do have an overcoming-resistance requirement, see ante, at 7, that number is not conclusive because neither Stokeling nor the Government has offered an accounting of how many of those States allow minimal force to satisfy that requirement, as Florida does. Because robbery laws vary from State to State, and because even similarly worded statutes may be construed differently by different States’ courts, some of those 31 States may well require more force than Florida does. See, e. g., United States v. Doctor, 842 F. 3d 306, 312 (CA4 2016) (ruling that “there is no indication that South Carolina robbery by violence”–a statute cited by the Government here–“can be committed with minimal actual force”); see also Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007) (explaining that the categorical approach “requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”).[3]
Furthermore, even if it is true “that many States’ robbery statutes would not qualify as ACCA predicates” under a faithful reading of Johnson, see ante, at 7, that outcome would stem just as much (if not more) from the death of the residual clause as from a decision in this case. As discussed above, various state robbery statutes qualified under that expansive clause for nearly 20 years, until vagueness problems led this Court to strike the clause down as unconstitutional. See supra, at 13–14, and n. 2; see also Johnson v. United States, 576 U. S. ___ (2015). The fall of that clause would therefore be an independent cause of any drop in qualifying predicates, regardless of what this Court decides today. (A drop in robbery statutes qualifying as ACCA predicates could also, of course, be traceable to Congress’ decision not to continue enumerating robbery when it enacted the ACCA in the first place.) In short, the majority, fearful for the camel, errs in blaming the most recent straw.[4]
Separately, even if a number of simple robbery statutes were to cease qualifying as ACCA predicates, that does not mean–as the majority implies, see ante, at 7–that the same fate necessarily would befall most or even many aggravated robbery statutes. The majority offers the single example of Florida aggravated robbery, noting that “Florida requires the same element of ‘force’ for both armed robbery and basic robbery.” Ibid. But while the majority accurately describes Florida law, there is scant reason to believe that a great many other States’ statutes would be similarly affected, because the effect that hewing to Johnson would have on Florida aggravated robbery stems from the idiosyncrasy that Florida aggravated robbery requires neither displaying a weapon nor threatening or inflicting bodily injury.[5] The result for Florida aggravated robbery therefore sheds little light on what would happen to other aggravated-robbery statutes, the vast majority of which do (and did at the time of the ACCA’s enactment) appear to provide for convictions on such grounds—and whose validity as ACCA predicates would not necessarily turn on the question the Court faces today.[6] The majority mistakes one anomalous result for a reason not to apply Johnson as it was written.
IV
This Court’s decision in Johnson tells us that when Congress wrote the words “physical force” in the context of a statute targeting “violent felon[ies],” it eschewed the common-law meaning of those words and instead required a higher degree of force. See 559 U. S., at 138–143, 145. Johnson resolves this case. Florida law requires no more than minimal force to commit Florida robbery, and Florida law therefore defines that crime more broadly than Congress defined the elements clause. The crime that most people think of when they think of “robbery” is a serious one. That is all the more reason, however, that this Court should not allow a dilution of the term in state law to drive the expansion of a federal statute targeted at violent recidivists. Florida law applies the label “robbery” to crimes that are, at most, a half-notch above garden-variety pickpocketing or shoplifting. The Court today does no service to Congress’ purposes or our own precedent in deeming such crimes to be “violent felonies”–and thus predicates for a 15-year mandatory-minimum sentence in federal prison.
I respectfully dissent.
- ↑ Of course, whether Congress wished to pull back the throttle with regard to robbery across the whole ACCA is less certain. (Recall that Congress also enacted the capacious residual clause.) But that is why the statutory history cannot tell us what the majority claims that it can about the elements clause specifically. Instead, the more reliable guide is the new text that Congress enacted to replace the old. Cf. West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 98 (1991) (“The best evidence of [Congress’] purpose is the statutory text adopted by both Houses of Congress and submitted to the President”). And here, Congress omitted generic robbery altogether and made the “violent felony” clause at issue require “physical force.” See supra, at 2, 4–5, 11.
- ↑ In fact, the case in which this Court ruled that its decision striking down the residual clause applied retroactively on collateral review centered on a Florida robbery conviction under §812.13(1). See Welch v. United States, 578 U. S. ___, ___–___ (2016) (slip op., at 4–5). The Eleventh Circuit, reviewing the defendant’s ACCA enhancement on direct appeal, had ruled that Florida robbery (including when, under previous law, it could be accomplished merely “by sudden snatching”) qualified as an ACCA predicate under the residual clause without deciding whether it also qualified under the elements clause. See United States v. Welch, 683 F. 3d 1304, 1310–1314 (2012). Other Circuits likewise ruled, in the years before the clause’s demise, that other state robbery statutes qualified under the residual clause. See, e. g., United States v. Mitchell, 743 F. 3d 1054, 1062–1063 (CA6 2014) (collecting cases).
- ↑ The majority is able to suggest that following Johnson would beget a larger practical effect because it frames the question presented more broadly than is warranted. The majority avers that “[t]his case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of ‘physical force’ within the meaning of the [ACCA].” Ante, at 1. But this case hinges on the fact that the Florida courts have ruled that the amount of resistance offered—and therefore the amount of force necessary to overcome it—is irrelevant. See supra, at 6–7. In other words, this case presents only the narrower question whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance–even if that resistance is minimal–necessitates the use of “physical force” within the meaning of the ACCA. See also Brief for Petitioner i. If a state robbery statute’s overcoming-resistance requirement were pegged under state law to more than minimal resistance, this would be a different case.
- ↑ The majority’s doubling down on Johnson’s “capable of causing physical pain or injury” language, see ante, at 10–11, suggests nostalgia for the residual clause (which reads: “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)). Congress could, at any time, re-enumerate robbery (and any other crimes it might have intended the residual clause to cover) if it so chose. The majority’s decision today, meanwhile–with its endorsement of the mere “potentiality” of injury, see ante, at 11–risks sowing confusion in the lower courts for years to come.
- ↑ Specifically, hewing to a proper reading of Johnson would also affect Florida’s aggravated robbery statute because the crime’s only element involving force is the one that it shares with Florida simple robbery. See Fla. Stat. §812.13(1). In Florida, robbery becomes aggravated if the defendant “carrie[s]” a weapon, see §812.13(2), but that means that the crime sweeps in offenders who never brandished, used, or otherwise intimated that they were armed, see, e. g., State v. Burris, 875 So. 2d 408, 413 (Fla. 2004), and therefore prevents the crime from necessarily involving the “threatened use of physical force,” see 18 U. S. C. §924(e)(2)(B)(i). See also Tr. of Oral Arg. 4 (explaining this point).
- ↑ See, e. g., Ala. Code §13A–8–41(a)(2) (2015); Alaska Stat. §§11.41.500(a)(2)–(3) (2016); Ariz. Rev. Stat. Ann. §13–1904(A)(2) (2018); Ark. Code Ann. §§5–12–103(a)(2)–(3) (2013); Cal. Penal Code Ann. §§12022.53, 12022.7 (West 2018 Cum. Supp.); Colo. Rev. Stat. Ann. §18–4–302(1)(b) (2018); Conn. Gen. Stat. §§53a–134(a)(1), (3) (2017); Del. Code Ann., Tit. 11, §§832(a)(1)–(3) (2015); Ga. Code Ann. §16–8–41(a) (2018); Haw. Rev. Stat. §§708–840(1)(a), (b)(ii) (2014); Ill. Comp. Stat., ch. 720, §§5/18–1(b)(1), 5/18–2(a)(3)–(4) (2018 Cum. Supp.); Ind. Code §35–42–5–1 (2018 Cum. Supp.); Kan. Stat. Ann. §21–5420(b)(2) (Supp. 2017); Ky. Rev. Stat. Ann. §§515.020(1)(a), (c) (Lexis 2014); La. Rev. Stat. Ann. §§14:64.1(A), 64.3, 64.4(A)(1) (West 2016); Me. Rev. Stat. Ann., Tit. 17–A, §651(1)(D) (2018 Cum. Supp.); Md. Crim. Law Code Ann. §3–403(a)(2) (2012); Mich. Comp. Laws Ann. §750.529 (West 2004); Minn. Stat. §609.245(2) (2018); Miss. Code Ann. §97–3–79 (2014); Mo. Rev. Stat. §§570.023(1)(1), (3)–(4) (2016); Neb. Rev. Stat. §§28–324, 28–1205 (2015); N. H. Rev. Stat. Ann. §636:1(III)(b) (2016); N. Y. Penal Law Ann. §§160.10(2)(a)–(b), 160.15(1), (3)–(4) (West 2015); N. D. Cent. Code Ann. §§12.1–22–01(1)–(2) (2012); Ohio Rev. Code Ann. §§2911.01(A)(1), (3) (Lexis 2014); Okla. Stat. Ann., Tit. 21, §§797(1)–(3), 801 (2015); Ore. Rev. Stat. §§164.405(1)(a), 164.415(1)(b)–(c) (2017); 18 Pa. Cons. Stat. §§3701(a)(1)(i)–(ii), (iv) (2015); R. I. Gen. Laws §11–39–1(a) (2002); S. D. Codified Laws §22–30–6 (2017); Tenn. Code Ann. §§39–13–402(a), 39–13–403(a) (2011); Tex. Penal Code Ann. §29.03(a) (West 2011); Utah Code §§76–6–302(1)(a)–(b) (2017); V t. Stat. Ann., Tit. 13, §608(c) (2009); V a. Code Ann. §§18.2–53.1, 18.2–58 (2014); Wash. Rev. Code §§9A.56.200(1)(a)(ii)–(iii) (2015); W. V a. Code Ann. §61–2–12(a) (Lexis 2014); Wis. Stat. §943.32(2) (2005); Wyo. Stat. Ann. §§6–2–401(c) (2017); see also Reply Brief 22–23; App. to Reply Brief 9a–18a (listing 29 States with aggravated-robbery statutes that could have qualified at the time of the ACCA’s enactment because of a weapon-using, weapon-displaying, or weapon-representing element; an additional 10 States, excluding duplicates, that could have potentially qualified at that time because of a physical-injury element; and an additional 15 States, some duplicative, with potentially qualifying statutes that have been enacted since).