Sotomayor, J., dissenting
“having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U. S., at 599. In reaching that conclusion, the Court purposefully excluded burglary convictions in a handful of States that “defin[ed] burglary more broadly” by “eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than buildings.” Ibid. Expanding the definition to include those statutes would have strayed too far from “the generic definition of bribery … intended by Congress.” Id., at 595 (internal quotation marks omitted).
The question presented in these cases—whether “an offense relating to obstruction of justice,” 8 U. S. C. §1101(a)(43)(S), necessarily involves a pending investigation or proceeding—is a question about the “basic elements” of “generic” obstruction of justice. Taylor, 495 U. S., at 599. That is, it is a question about how obstruction of justice was “commonly understood,” Descamps, 570 U. S., at 257, in 1996 when Congress enacted §1101(a)(43)(S). Answering that question requires focusing on the core, “generally accepted contemporary meaning,” Taylor, 495 U. S., at 596, of obstruction of justice, rather than on more unusual “nongeneric” variants that are “define[d] … more broadly,” id., at 599.
The Court loses sight of this fundamental point. Instead of focusing on whether a pending investigation or proceeding is part of the heartland of obstruction of justice, it wanders off into an array of obstruction-adjacent federal and state laws that do not require a pending investigation or proceeding. The Court then announces that those offenses are core obstruction of justice, even though the evidence it relies on, taken as a whole, reveals they are not. The result is predictable. By defining offenses that do not require a pending investigation or proceeding as core obstruction of justice, the majority forces through the conclusion that a
