Sotomayor, J., dissenting
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”).[1]
- ↑ 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
