Begay v. United States

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BEGAY v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 06–11543. Argued January 15, 2008—Decided April 16, 2008

The Armed Career Criminal Act (Act) imposes a special mandatory 15-

year prison term upon a felon who unlawfully possesses a firearm

and who has three or more prior convictions for committing certain

drug crimes or “a violent felony.” 18 U. S. C. §924(e)(1). The Act de-

fines “violent felony” as, inter alia, a crime punishable by more than

one year’s imprisonment that “is burglary, arson, or extortion, in-

volves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.” §924(e)(2)(B)(ii)

(hereinafter clause (ii)). After petitioner Begay pleaded guilty to fel-

ony possession of a firearm, his presentence report revealed he had

12 New Mexico convictions for driving under the influence of alcohol

(DUI), which state law makes a felony (punishable by a prison term

of more than one year) the fourth (or subsequent) time an individual

commits it. Based on these convictions, the sentencing judge con-

cluded that Begay had three or more “violent felony” convictions and,

therefore, sentenced him to an enhanced 15-year sentence. The

Tenth Circuit rejected Begay’s claim that DUI is not a “violent fel-

ony” under the Act.

Held: New Mexico’s felony DUI crime falls outside the scope of the

Act’s clause (ii) “violent felony” definition. Pp. 3–10.

(a) Whether a crime is a violent felony is determined by how the

law defines it and not how an individual offender might have com-

mitted it on a particular occasion. Pp. 3–4.

(b) Even assuming that DUI involves conduct that “presents a seri-

ous potential risk of physical injury to another” under clause (ii), the

crime falls outside the clause’s scope because it is simply too unlike

clause (ii)’s example crimes to indicate that Congress intended that

provision to cover it. Pp. 4–10.

2 BEGAY v. UNITED STATES

Syllabus

(i) Clause (ii)’s listed examples—burglary, arson, extortion, and

crimes involving the use of explosives—should be read as limiting the

crimes the clause covers to those that are roughly similar, in kind as

well as in degree of risk posed, to the examples themselves. Their

presence in the statute indicates that Congress meant for the statute

to cover only similar crimes, rather than every crime that “presents a

serious potential risk of physical injury to another,” §924(e)(2)(B)(ii).

If Congress meant the statute to be all encompassing, it would not

have needed to include the examples at all. Moreover, if clause (ii)

were meant to include all risky crimes, Congress likely would not

have included clause (i), which includes crimes that have “as an ele-

ment the use, attempted use, or threatened use of physical force

against the person of another.” And had Congress included the ex-

amples solely for quantitative purposes, demonstrating no more than

the degree of risk of physical injury sufficient to bring a crime within

the statute’s scope, it would likely have chosen examples that better

illustrated the degree of risk it had in mind rather than these that

are far from clear in respect to the degree of risk each poses. The

Government’s argument that the word “otherwise” just after the ex-

amples is sufficient to demonstrate that they do not limit the clause’s

scope is rejected because “otherwise” can refer to a crime that is, e.g.,

similar to the examples in respect to the degree of risk it produces,

but different in respect to the way or manner in which it produces

that risk. Pp. 4–7.

(ii) DUI differs from the example crimes in at least one impor-

tant respect: The examples typically involve purposeful, violent, and

aggressive conduct, whereas DUI statutes typically do not. When

viewed in terms of the Act’s purposes, this distinction matters con-

siderably. The Act looks to past crimes to determine which offenders

create a special danger by possessing a gun. In this respect, a history

of crimes involving purposeful, violent, and aggressive conduct, which

shows an increased likelihood that the offender is the kind of person

who might deliberately point a gun and pull the trigger, is different

from a history of DUI, which does not involve the deliberate kind of

behavior associated with violent criminal use of firearms. Pp. 7–10.

470 F. 3d 964, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, KENNEDY, and GINSBURG, JJ., joined. SCALIA, J.,

filed an opinion concurring in the judgment. ALITO, J., filed a dissent-

ing opinion, in which SOUTER and THOMAS, JJ., joined.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–11543

_________________

LARRY BEGAY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 16, 2008]

JUSTICE BREYER delivered the opinion of the Court.

The Armed Career Criminal Act imposes a special man-

datory 15-year prison term upon felons who unlawfully

possess a firearm and who also have three or more previ-

ous convictions for committing certain drug crimes or

“violent felon[ies].” 18 U. S. C. §924(e)(1) (2000 ed., Supp.

V). The question in this case is whether driving under the

influence of alcohol is a “violent felony” as the Act defines

it. We conclude that it is not.

I

A

Federal law prohibits a previously convicted felon from

possessing a firearm. §922(g)(1) (2000 ed.). A related

provision provides for a prison term of up to 10 years for

an ordinary offender. §924(a)(2). The Armed Career

Criminal Act imposes a more stringent 15-year mandatory

minimum sentence on an offender who has three prior

convictions “for a violent felony or a serious drug offense.”

§924(e)(1) (2000 ed., Supp. V).

The Act defines a “violent felony” as “any crime punish-

able by imprisonment for a term exceeding one year” that

“(i) has as an element the use, attempted use, or

2 BEGAY v. UNITED STATES

Opinion of the Court

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 pre-

sents a serious potential risk of physical injury to an-

other.” §924(e)(2)(B) (2000 ed.).

We here consider whether driving under the influence of

alcohol (DUI), as set forth in New Mexico’s criminal stat-

utes, falls within the scope of the second clause.

B

The relevant background circumstances include the

following: In September 2004, New Mexico police officers

received a report that Larry Begay, the petitioner here,

had threatened his sister and aunt with a rifle. The police

arrested him. Begay subsequently conceded he was a

felon and pleaded guilty to a federal charge of unlawful

possession of a firearm in violation of §922(g)(1). Begay’s

presentence report said that he had been convicted a

dozen times for DUI, which under New Mexico’s law,

becomes a felony (punishable by a prison term of more

than one year) the fourth (or subsequent) time an individ-

ual commits it. See N. M. Stat. Ann. §§66–8–102(G) to (J)

(Supp. 2007). The sentencing judge consequently found

that Begay had at least three prior convictions for a crime

“punishable by imprisonment for a term exceeding one

year.” 377 F. Supp. 2d 1141, 1143 (NM 2005). The judge

also concluded that Begay’s “three felony DUI convictions

involve conduct that presents a serious potential risk of

physical injury to another.” Id., at 1145. The judge con-

sequently concluded that Begay had three or more prior

convictions for a “violent felony” and should receive a

sentence that reflected a mandatory minimum prison term

of 15 years. Ibid.

Begay, claiming that DUI is not a “violent felony” within

the terms of the statute, appealed. The Court of Appeals

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

panel by a vote of 2 to 1 rejected that claim. 470 F. 3d 964

(CA10 2006). Begay sought certiorari, and we agreed to

decide the question.

II

A

New Mexico’s DUI statute makes it a crime (and a

felony after three earlier convictions) to “drive a vehicle

within [the] state” if the driver “is under the influence of

intoxicating liquor” (or has an alcohol concentration of .08

or more in his blood or breath within three hours of having

driven the vehicle resulting from “alcohol consumed before

or while driving the vehicle”). §§66–8–102(A), (C). In

determining whether this crime is a violent felony, we

consider the offense generically, that is to say, we examine

it in terms of how the law defines the offense and not in

terms of how an individual offender might have committed

it on a particular occasion. See Taylor v. United States,

495 U. S. 575, 602 (1990) (adopting this “categorical ap-

proach”); see also James v. United States, 550 U. S. ___ ,

___ (2007) (slip op., at 14–15) (attempted burglary is a

violent felony even if, on some occasions, it can be commit-

ted in a way that poses no serious risk of physical harm).

We also take as a given that DUI does not fall within

the scope of the Act’s clause (i) “violent felony” definition.

DUI, as New Mexico defines it, nowhere “has as an ele-

ment the use, attempted use, or threatened use of physical

force against the person of another.” 18 U. S. C.

§924(e)(2)(B)(i).

Finally, we assume that the lower courts were right in

concluding that DUI involves conduct that “presents a

serious potential risk of physical injury to another.”

§924(e)(2)(B)(ii). Drunk driving is an extremely dangerous

crime. In the United States in 2006, alcohol-related motor

vehicle crashes claimed the lives of more than 17,000

individuals and harmed untold amounts of property.

4 BEGAY v. UNITED STATES

Opinion of the Court

National Highway Traffic Safety Admin., Traffic Safety

Facts, 2006 Traffic Safety Annual Assessment—Alcohol-

Related Fatalities 1 (No. 810821, Aug. 2007), http://www-

nrd.nhtsa.dot.gov/Pubs/810821.PDF (as visited Apr. 11,

2008, and available in Clerk of Court’s case file). Even so,

we find that DUI falls outside the scope of clause (ii). It is

simply too unlike the provision’s listed examples for us to

believe that Congress intended the provision to cover it.

B

1

In our view, the provision’s listed examples—burglary,

arson, extortion, or crimes involving the use of explo-

sives—illustrate the kinds of crimes that fall within the

statute’s scope. Their presence indicates that the statute

covers only similar crimes, rather than every crime that

“presents a serious potential risk of physical injury to

another.” §924(e)(2)(B)(ii). If Congress meant the latter,

i.e., if it meant the statute to be all-encompassing, it is

hard to see why it would have needed to include the ex-

amples at all. Without them, clause (ii) would cover all

crimes that present a “serious potential risk of physical

injury.” Ibid. Additionally, if Congress meant clause (ii)

to include all risky crimes, why would it have included

clause (i)? A crime which has as an element the “use,

attempted use, or threatened use of physical force” against

the person (as clause (i) specifies) is likely to create “a

serious potential risk of physical injury” and would seem

to fall within the scope of clause (ii).

Of course, Congress might have included the examples

solely for quantitative purposes. Congress might have

intended them to demonstrate no more than the degree of

risk sufficient to bring a crime within the statute’s scope.

But were that the case, Congress would have likely chosen

examples that better illustrated the “degree of risk” it had

in mind. Our recent case, James v. United States—where

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

we considered only matters of degree, i.e., whether the

amount of risk posed by attempted burglary was compara-

ble to the amount of risk posed by the example crime of

burglary—illustrates the difficulty of interpreting the

examples in this respect. Compare 550 U. S., at ___ (slip

op., at 9–13), with id., at ___ (slip op., at 2, 5–6, 16–17)

(SCALIA, J., dissenting). Indeed, the examples are so far

from clear in respect to the degree of risk each poses that

it is difficult to accept clarification in respect to degree of

risk as Congress’ only reason for including them. See id.,

at ___ (slip op., at 16–17) (“Congress provided examples

[that] . . . have little in common, most especially with

respect to the level of risk of physical injury that they

pose”).

These considerations taken together convince us that,

“ ‘to give effect . . . to every clause and word’ ” of this stat-

ute, we should read the examples as limiting the crimes

that clause (ii) covers to crimes that are roughly similar,

in kind as well as in degree of risk posed, to the examples

themselves. Duncan v. Walker, 533 U. S. 167, 174 (2001)

(quoting United States v. Menasche, 348 U. S. 528, 538–

539 (1955); some internal quotation marks omitted); see

also Leocal v. Ashcroft, 543 U. S. 1, 12 (2004) (describing

the need to interpret a statute in a way that gives mean-

ing to each word).

The concurrence complains that our interpretive ap-

proach is insufficiently specific. See post, at 3–4 (SCALIA,

J., concurring in judgment). But the concurrence’s own

approach demands a crime-by-crime analysis, uses a

standard of measurement (comparative degree of risk)

that even the concurrence admits is often “unclear,” post,

at 4, requires the concurrence to turn here to the still less

clear “rule of lenity,” post, at 6, and, as we explain, is less

likely to reflect Congress’ intent. See, e.g., post, at 6–7

(recognizing inability to measure quantitative seriousness

of risks associated with DUI).

6 BEGAY v. UNITED STATES

Opinion of the Court

The statute’s history offers further support for our

conclusion that the examples in clause (ii) limit the scope

of the clause to crimes that are similar to the examples

themselves. Prior to the enactment of the current lan-

guage, the Act applied its enhanced sentence to offenders

with “three previous convictions for robbery or burglary.”

Taylor, 495 U. S., at 581 (internal quotation marks omit-

ted). Congress sought to expand that definition to include

both crimes against the person (clause (i)) and certain

physically risky crimes against property (clause (ii)). See

H. R. Rep. No. 99–849, p. 3 (1986) (hereinafter H. R. Rep.).

When doing so, Congress rejected a broad proposal that

would have covered every offense that involved a substan-

tial risk of the use of “ ‘physical force against the person or

property of another.’ ” Taylor, supra, at 583 (quoting S.

2312, 99th Cong., 2d Sess. (1986); H. R. 4639, 99th Cong.,

2d Sess. (1986)). Instead, it added the present examples.

And in the relevant House Report, it described clause (ii)

as including “State and Federal felonies against property

such as burglary, arson, extortion, use of explosives and

similar crimes as predicate offenses where the conduct

involved presents a serious risk of injury to a person.”

H. R. Rep., at 5 (emphasis added).

Of course, the statute places the word “otherwise,” just

after the examples, so that the provision covers a felony

that is one of the example crimes “or otherwise involves

conduct that presents a serious potential risk of physical

injury.” §924(e)(2)(B)(ii) (emphasis added). But we cannot

agree with the Government that the word “otherwise” is

sufficient to demonstrate that the examples do not limit

the scope of the clause. That is because the word “other-

wise” can (we do not say must, cf. post, at 4 (SCALIA, J.,

concurring in judgment)) refer to a crime that is similar to

the listed examples in some respects but different in oth-

ers—similar say in respect to the degree of risk it pro-

duces, but different in respect to the “way or manner” in

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

which it produces that risk. Webster’s Third New Interna-

tional Dictionary 1598 (1961) (defining “otherwise” to

mean “in a different way or manner”).

2

In our view, DUI differs from the example crimes—

burglary, arson, extortion, and crimes involving the use of

explosives—in at least one pertinent, and important,

respect. The listed crimes all typically involve purposeful,

“violent,” and “aggressive” conduct. 470 F. 3d, at 980

(McConnell, J., dissenting in part); see, e.g., Taylor, supra,

at 598 (“burglary” is an unlawful or unprivileged entry

into a building or other structure with “intent to commit a

crime”); ALI Model Penal Code §220.1(1) (1985) (“arson” is

causing a fire or explosion with “the purpose of,” e.g.,

“destroying a building . . . of another” or “damaging any

property . . . to collect insurance”); id., §223.4 (extortion is

“purposely” obtaining property of another through threat

of, e.g., inflicting “bodily injury”); Leocal, supra, at 9 (the

word “ ‘use’ . . . most naturally suggests a higher degree of

intent than negligent or merely accidental conduct” which

fact helps bring it outside the scope of the statutory term

“crime of violence”). That conduct is such that it makes

more likely that an offender, later possessing a gun, will

use that gun deliberately to harm a victim. Crimes com-

mitted in such a purposeful, violent, and aggressive man-

ner are “potentially more dangerous when firearms are

involved.” 470 F. 3d, at 980 (McConnell, J., dissenting in

part). And such crimes are “characteristic of the armed

career criminal, the eponym of the statute.” Ibid.

By way of contrast, statutes that forbid driving under

the influence, such as the statute before us, typically do

not insist on purposeful, violent, and aggressive conduct;

rather, they are, or are most nearly comparable to, crimes

that impose strict liability, criminalizing conduct in re-

spect to which the offender need not have had any crimi-

8 BEGAY v. UNITED STATES

Opinion of the Court

nal intent at all. The Government argues that “the know-

ing nature of the conduct that produces intoxication com-

bined with the inherent recklessness of the ensuing con-

duct more than suffices” to create an element of intent.

Brief for United States 35. And we agree with the Gov-

ernment that a drunk driver may very well drink on pur-

pose. But this Court has said that, unlike the example

crimes, the conduct for which the drunk driver is convicted

(driving under the influence) need not be purposeful or

deliberate. See Leocal, 543 U. S., at 11 (a DUI offense

involves “accidental or negligent conduct”); see also 470

F. 3d, at 980 (McConnell, J., dissenting in part) (“[D]runk

driving is a crime of negligence or recklessness, rather

than violence or aggression”).

When viewed in terms of the Act’s basic purposes, this

distinction matters considerably. As 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. See

Taylor, supra, at 587–588; 470 F. 3d, at 981, n. 3 (McCon-

nell, J., dissenting in part) (“[T]he title [of the Act] was not

merely decorative”). In order to determine which offend-

ers fall into this category, the Act looks to past crimes.

This is because an offender’s criminal history is relevant

to the question whether he is a career criminal, or, more

precisely, to the kind or degree of danger the offender

would pose were he to possess a gun.

In this respect—namely, a prior crime’s relevance to the

possibility of future danger with a gun—crimes involving

intentional or purposeful conduct (as in burglary and

arson) are different than DUI, a strict liability crime. In

both instances, the offender’s prior crimes reveal a degree

of callousness toward risk, but in the former instance they

also show an increased likelihood that the offender is the

kind of person who might deliberately point the gun and

pull the trigger. We have no reason to believe that Con-

Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

gress intended a 15-year mandatory prison term where

that increased likelihood does not exist.

Were we to read the statute without this distinction, its

15-year mandatory minimum sentence would apply to a

host of crimes which, though dangerous, are not typically

committed by those whom one normally labels “armed

career criminals.” See, e.g., Ark. Code Ann. §8–4–

103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U. S. C.

§1319(c)(1) (individuals who negligently introduce pollut-

ants into the sewer system); 18 U. S. C. §1365(a) (indi-

viduals who recklessly tamper with consumer products);

§1115 (seamen whose inattention to duty causes serious

accidents). We have no reason to believe that Congress

intended to bring within the statute’s scope these kinds of

crimes, far removed as they are from the deliberate kind of

behavior associated with violent criminal use of firearms.

The statute’s use of examples (and the other considera-

tions we have mentioned) indicate the contrary.

The dissent’s approach, on the other hand, would likely

include these crimes within the statutory definition of

“violent felony,” along with any other crime that can be

said to present “a serious potential risk of physical injury.”

Post, at 2 (opinion of ALITO, J.). And it would do so be-

cause it believes such a result is compelled by the statute’s

text. See ibid. But the dissent’s explanation does not

account for a key feature of that text—namely, the four

example crimes intended to illustrate what kind of “violent

felony” the statute covers. The dissent at most believes

that these examples are relevant only to define the “requi-

site” serious risk associated with a “crime of violence.”

Post, at 6. But the dissent does not explain what it means

by “requisite,” nor does it describe how these various

examples might help define that term in the context of

this statute. If they were in fact helpful on that score, we

might expect more predictable results from a purely risk-

based approach. Compare post, at 1, 6–7 (SCALIA, J.,

10 BEGAY v. UNITED STATES

Opinion of the Court

concurring in judgment), with post, at 1–4 (dissenting

opinion). Thus, the dissent’s reliance on these examples

for a function they appear incapable of performing reads

them out of the statute and, in so doing, fails to effectuate

Congress’ purpose to punish only a particular subset of

offender, namely career criminals.

The distinction we make does not minimize the serious-

ness of the risks attached to driving under the influence.

Nor does our argument deny that an individual with a

criminal history of DUI might later pull the trigger of a

gun. (Indeed, we may have such an instance before us.

470 F. 3d, at 965.) Rather, we hold only that, for purposes

of the particular statutory provision before us, a prior

record of DUI, a strict liability crime, differs from a prior

record of violent and aggressive crimes committed inten-

tionally such as arson, burglary, extortion, or crimes in-

volving the use of explosives. The latter are associated

with a likelihood of future violent, aggressive, and pur-

poseful “armed career criminal” behavior in a way that the

former are not.

We consequently conclude that New Mexico’s crime of

“driving under the influence” falls outside the scope of the

Armed Career Criminal Act’s clause (ii) “violent felony”

definition. And we reverse the judgment of the Court of

Appeals in relevant part and remand the case for proceed-

ings consistent with this opinion.

It is so ordered.

Cite as: 553 U. S. ____ (2008) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–11543

_________________

LARRY BEGAY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 16, 2008]

JUSTICE SCALIA, concurring in the judgment.

The statute in this case defines “violent felony” in part

as “any crime punishable by imprisonment for a term

exceeding one year . . . that . . . 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.” 18 U. S. C. §924(e)(2)(B)(ii).

Contrary to the Court, I conclude that the residual clause

unambiguously encompasses all crimes that present a

serious risk of injury to another. But because I cannot say

that drunk driving clearly poses such a risk (within the

meaning of the statute), the rule of lenity brings me to

concur in the judgment of the Court.

I

Last Term, in James v. United States, 550 U. S. ___

(2007), the Court held that attempted burglary qualifies

as a violent felony under §924(e). It concluded that to

determine whether a predicate crime falls under the re-

sidual clause, a court should first identify the enumerated

crime to which the predicate crime is most closely analo-

gous and then decide whether the risk posed by the predi-

cate crime is roughly equivalent to the risk posed by the

enumerated crime. Because burglary was the enumerated

crime most closely analogous to attempted burglary, and

attempted burglary in the Court’s judgment posed roughly

2 BEGAY v. UNITED STATES

SCALIA, J., concurring in judgment

the same risk of physical injury as burglary, attempted

burglary qualified as a “violent felony” under §924(e). See

id., at ____ (slip op., at 15).

Unfortunately, the Court’s approach in deciding that

case provided no guidance for deciding future cases that

involve predicate crimes other than attempted burglary,

particularly those for which there are no clear analogs

among the enumerated crimes. Pointing out that problem

in dissent, I anticipated this very case: “Is, for example,

driving under the influence of alcohol more analogous to

burglary, arson, extortion, or a crime involving use of

explosives?” Id., at ____ (slip op., at 2).

My dissent set out a different approach to the statute.

In my view, the best way to interpret §924(e) is first to

determine which of the enumerated offenses poses the

least serious risk of physical injury, and then to set that

level of risk as the “serious potential risk” required by the

statute. Crimes that pose at least that serious a risk of

injury are encompassed by the residual clause; crimes that

do not are excluded. In my judgment, burglary was the

least risky crime among the enumerated offenses, and I

therefore concluded that attempted burglary, which is less

risky than burglary, is not covered by the residual clause.

The Court held otherwise in James, and since this is a

statutory case that holding has a strong claim to stare

decisis. But the concomitant of the sad fact that the the-

ory of James has very limited application is the happy fact

that its stare decisis effect is very limited as well. It must

be followed, I presume, for unenumerated crimes that are

analogous to enumerated crimes (e.g., attempted arson).

It provides no answer, and suggests no approach to an

answer, where, as here, the predicate crime has no analog

among the enumerated crimes. For such cases I would

therefore adhere to the principles I set forth in my James

dissent.

Cite as: 553 U. S. ____ (2008) 3

SCALIA, J., concurring in judgment

II

Today the Court devises a different way to give concrete

meaning to the residual clause. Confronted with a predi-

cate crime that has no obvious analog among the enumer-

ated offenses, the Court engrafts a requirement onto the

residual clause that a predicate crime involve “purposeful,

‘violent,’ and ‘aggressive’ conduct.” Ante, at 7. By doing

so, it excludes a slew of crimes from the scope of the resid-

ual clause, including (not by happenstance) the crime at

issue here, drunk driving. Like James, this latest made-

for-the-case improvisation does not (as my resolution does)

provide a complete framework that will embrace all future

cases. There are still many crimes that are not analogous

to the enumerated crimes (so that their status cannot be

resolved by James) but do involve “purposeful, ‘violent,’

and ‘aggressive’ conduct” (so that their status cannot be

resolved by today’s deus ex machina). Presumably some

third (and perhaps fourth and fifth) gimmick will be de-

vised to resolve those cases as they arise, leaving our

brethren on the district courts and courts of appeals much

room for enjoyable speculation.

But quite apart from its regrettable continuation of a

piecemeal, suspenseful, Scrabble-like approach to the

interpretation of this statute, the problem with the Court’s

holding today is that it is not remotely faithful to the

statute that Congress wrote. There is simply no basis

(other than the necessity of resolving the present case) for

holding that the enumerated and unenumerated crimes

must be similar in respects other than the degree of risk

that they pose.

The Court is correct that the clause “otherwise involves

conduct that presents a serious potential risk of physical

injury to another” signifies a similarity between the enu-

merated and unenumerated crimes. It is not, however,

any old similarity, such as (to take a random example)

“purposeful, ‘violent,’ and ‘aggressive’ conduct.” Rather, it

4 BEGAY v. UNITED STATES

SCALIA, J., concurring in judgment

is the particular similarity specified after the “other-

wise”—i.e., that they all pose a serious potential risk of

physical injury to another. They need not be similar in

any other way. As the Court correctly notes, the word

“otherwise” in this context means “ ‘in a different way or

manner.’ ” Ante, at 6–7; see also James, 550 U. S., at ___

(SCALIA, J., dissenting) (slip op., at 4); Webster’s New

International Dictionary 1729 (2d ed. 1957) (“in another

way or in other ways”). Therefore, by using the word

“otherwise” the writer draws a substantive connection

between two sets only on one specific dimension—i.e.,

whatever follows “otherwise.” What that means here is

that “committing one of the enumerated crimes . . . is one

way to commit a crime ‘involv[ing] a serious potential risk

of physical injury to another’; and that other ways of com-

mitting a crime of that character similarly constitute

‘violent felon[ies].’ ” James, supra, at ___ (SCALIA, J.,

dissenting) (slip op., at 5).

The Court rejects this seemingly straightforward statu-

tory analysis, reading the residual clause to mean that the

unenumerated offenses must be similar to the enumerated

offenses not only in the degree of risk they pose, but also

“in kind,” despite the fact that “otherwise” means that the

common element of risk must be presented “ ‘in a different

way or manner.’ ” Ante, at 5–7 (emphasis added). The

Court’s explanation for this interpretation seems to be

that the enumerated crimes are “so far from clear in re-

spect to the degree of risk each poses that it is difficult to

accept clarification in respect to degree of risk as Con-

gress’s only reason for including them.” Ante, at 5. While

I certainly agree that the degree of risk associated with

the enumerated crimes is unclear, I find it unthinkable

that the solution to that problem is to write a different

statute. The phrase “otherwise involves conduct that

presents a serious potential risk of physical injury to

another” limits inclusion in the statute only by a crime’s

Cite as: 553 U. S. ____ (2008) 5

SCALIA, J., concurring in judgment

degree of risk. See James, supra, at ___ (SCALIA, J., dis-

senting) (slip op., at 5). The use of the adjective “serious”

seems to me to signify a purely quantitative measure of

risk. If both an intentional and a negligent crime pose a

50% risk of death, could one be characterized as involving

a “serious risk” and the other not? Surely not.

The Court supports its argument with that ever-ready

refuge from the hardships of statutory text, the (judicially)

perceived statutory purpose. According to the Court,

because the Armed Career Criminal Act is concerned with

“the special danger created when a particular type of

offender—a violent criminal or drug trafficker—possesses

a gun,” the statutory purpose favors applying §924(e)’s

enhanced penalty only to those criminals “who might

deliberately point the gun and pull the trigger.” Ante, at

8–9. I cannot possibly infer that purpose from the statute.

For all I know, the statute was meant to punish those who

are indifferent to human life, or who are undeterred by the

criminal penalties attached to the commission of other

crimes (after all, the statute enhances penalties for drug

traffickers, see §924(e)(2)(A)). While the Court’s asserted

purpose would surely be a reasonable one, it has no more

grounding in the statutory text than do these other possi-

bilities. And what is more, the Court’s posited purpose is

positively contradicted by the fact that one of the enumer-

ated crimes—the unlawful use of explosives—may involve

merely negligent or reckless conduct. See ALI, Model

Penal Code §220.2(2) (1985) (“A person is guilty of a mis-

demeanor if he recklessly creates a risk of catastrophe in

the employment of fire, explosives or other dangerous

means”); id., §220.3 (“A person is guilty of criminal mis-

chief if he . . . damages tangible property of another pur-

posely, recklessly, or by negligence in the employment of

fire, explosives, or other dangerous means”).

The Court says that an interpretation of the residual

clause that includes all crimes posing a serious risk of

6 BEGAY v. UNITED STATES

SCALIA, J., concurring in judgment

injury would render superfluous §924(e)(2)(B)(i), which

provides that a “violent felony” is any crime that “has as

an element the use, attempted use, or threatened use of

physical force against the person” of another. Ante, at 4

(internal quotation marks omitted). But the canon against

surplusage has substantially less force when it comes to

interpreting a broad residual clause like the one at issue

here. Though the second clause renders the first superflu-

ous, it would raise no eyebrows to refer to “crimes that

entail the use of force and crimes that, while not entailing

the use of force, nonetheless present a serious risk of

injury to another person.” In any event, the canon against

surplusage merely helps decide between competing per-

missible interpretations of an ambiguous statute; it does

not sanction writing in a requirement that Congress ne-

glected to think of. And finally, come to think of it, the

Court’s solution does nothing whatever to solve the sup-

posed surplusage problem. Crimes that include as an

element “the use . . . of physical force against the person of

another” are all embraced (and the reference to them thus

rendered superfluous) by the requirement of “purposeful,

‘violent,’ and ‘aggressive’ conduct” that the Court invents.

III

Under my interpretation of §924(e), I must answer one

question: Does drunk driving pose at least as serious a

risk of physical injury to another as burglary? From the

evidence presented by the Government, I cannot conclude

so. Because of that, the rule of lenity requires that I re-

solve this case in favor of the defendant.

The Government cites the fact that in 2006, 17,062

persons died from alcohol-related car crashes, and that

15,121 of those deaths involved drivers with blood-alcohol

concentrations of 0.08 or higher. See Brief for United

States 17. Drunk driving is surely a national problem of

great concern. But the fact that it kills many people each

Cite as: 553 U. S. ____ (2008) 7

SCALIA, J., concurring in judgment

year tells us very little about whether a single act of drunk

driving “involves conduct that presents a serious potential

risk of physical injury to another.” It may well be that an

even greater number of deaths occurs annually to pedes-

trians crossing the street; but that hardly means that

crossing the street presents a serious potential risk of

injury. Where the issue is “risk,” the annual number of

injuries from an activity must be compared with the an-

nual incidents of the activity. Otherwise drunk driving

could be said to pose a more serious risk of physical harm

than murder. In addition, drunk driving is a combination

of two activities: (1) drinking and (2) driving. If driving

alone results in injury in a certain percentage of cases, it

could hardly be said that the entirety of the risk posed by

drunk driving can be attributed to the combination. And

finally, injuries to the drunk drivers themselves must be

excluded from the calculus, because the statute counts

only injuries to other persons.

Needless to say, we do not have these relevant statistics.

And even if we did, we would still need to know similar

statistics for burglary, which are probably even harder to

come by. This does not mean that I will never be able to

identify a crime that falls under the residual clause. For

some crimes, the severity of the risk will be obvious.

Crimes like negligent homicide, see ALI, Model Penal

Code §210.4 (1980), conspiracy to commit a violent crime,

id., §5.03 (1985), inciting to riot, 18 U. S. C. §2101, and the

production of chemical weapons, §229, certainly pose a

more serious risk of physical injury to others than bur-

glary. (By contrast, the Court’s approach eliminates from

the residual clause all negligent crimes, even those that

entail a 100% risk of physical injury such as negligent

homicide.) But I can do no more than guess as to whether

drunk driving poses a more serious risk than burglary,

and I will not condemn a man to a minimum of 15 years in

prison on the basis of such speculation. See Ladner v.

8 BEGAY v. UNITED STATES

SCALIA, J., concurring in judgment

United States, 358 U. S. 169, 178 (1958). Applying the

rule of lenity to a statute that demands it, I would reverse

the decision of the Court of Appeals.

Cite as: 553 U. S. ____ (2008) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–11543

_________________

LARRY BEGAY, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[April 16, 2008]

JUSTICE ALITO, with whom JUSTICE SOUTER and

JUSTICE THOMAS join, dissenting.

The statutory provision at issue in this case—the so-

called “residual clause” of 18 U. S. C. §924(e)(2)(B)(ii)—

calls out for legislative clarification, and I am sympathetic

to the result produced by the Court’s attempt to craft a

narrowing construction of this provision. Unfortunately,

the Court’s interpretation simply cannot be reconciled

with the statutory text, and I therefore respectfully

dissent.

In September 2004, after a night of heavy drinking,

petitioner pointed a rifle at his aunt and threatened to

shoot if she did not give him money. When she replied

that she did not have any money, petitioner repeatedly

pulled the trigger, but the rifle was unloaded and did not

fire. Petitioner then threatened his sister in a similar

fashion.

At the time of this incident, petitioner was a convicted

felon. He had 12 prior convictions in New Mexico for

driving under the influence of alcohol (DUI). While DUI is

generally a misdemeanor under New Mexico law, the

offense of DUI after at least three prior DUI convictions is

a felony requiring a sentence of 18 months’ imprisonment.

N. M. Stat. Ann. §66–8–102(G) (Supp. 2007).

Petitioner pleaded guilty to possession of a firearm by a

convicted felon, in violation of 18 U. S. C. §922(g)(1). A

2 BEGAY v. UNITED STATES

ALITO, J., dissenting

violation of that provision generally carries a maximum

term of imprisonment of 10 years, see §924(a)(2), but the

District Court and the Court of Appeals held that peti-

tioner was subject to a mandatory minimum sentence of

15 years because he had at least three prior convictions for

the New Mexico felony of DUI after being convicted of DUI

on at least three prior occasions. 377 F. Supp. 2d 1141,

1143–45 (NM 2005); 470 F. 3d 964, 966–975, 977 (CA10

2006). The lower courts concluded that these offenses

were crimes “punishable by imprisonment for a term

exceeding one year” and “involve[d] conduct that pre-

sent[ed] a serious potential risk of physical injury to an-

other.” 18 U. S. C. §924(e)(2)(B).

The Court does not hold that the maximum term of

imprisonment that petitioner faced on his felony DUI

convictions was less than one year.1 Nor does the Court

dispute that petitioner’s offenses involved “a serious po-

tential risk of physical injury to another.” Ibid. The only

remaining question, therefore, is whether the risk pre-

sented by petitioner’s qualifying DUI felony convictions

was “serious,” i.e., “significant” or “important.” See, e.g.,

Webster’s Third New International Dictionary 2073 (here-

inafter Webster’s); (2002) 15 Oxford English Dictionary 15

(def. 6(a)) (2d ed. 1989) (hereinafter OED). In my view, it

was.

Statistics dramatically show that driving under the

influence of alcohol is very dangerous. Each year, ap-

proximately 15,000 fatal alcohol-related crashes occur,

accounting for roughly 40% of all fatal crashes.2 Approxi-

——————

1 United States v. Gonzaga Rodriquez, now pending before the Court,

presents the question “[w]hether a state drug-trafficking offense, for

which state law authorized a ten-year sentence because the defendant

was a recidivist, qualifies as a predicate offense under the Armed

Career Criminal Act, 18 U. S. C. §924(e).” Pet. for Cert., O. T. 2007, No.

06–1646, p. I.

2 See the National Highway Traffic Safety Administration (NHTSA)

Cite as: 553 U. S. ____ (2008) 3

ALITO, J., dissenting

mately a quarter million people are injured annually in

alcohol-related crashes.3 The number of people who are

killed each year by drunk drivers is far greater than the

number of murders committed during any of the crimes

specifically set out in the statutory provision at issue here,

§924(e)(2)(B)(ii)—burglary, arson, extortion, and offenses

involving the use of explosives.4

——————

Traffic Safety Facts Ann. Rep., p. 56, Table 34 (2006) (15,945 alcohol-

related fatal crashes; 41%), (2005) (15,238; 39%), (2004) (14,968; 39%),

(2003) (15,251; 40%), (2002) (15,626; 41%), (2001) (15,585; 41%), (2000)

(14,847; 40%), (1999) (14,109; 38%), (1998) (14,278; 39%), (1997)

(14,363; 38.5%), (1996) (15,249; 40.8%) online at http://www-nrd.nhtsa.

dot.gov/CMSWeb/listpublications.aspx?Id=E&ShowBy=DocType (all

Internet materials as visited Apr. 11, 2008, and available in Clerk of

Court’s case file); see also Michigan Dept. of State Police v. Sitz, 496

U. S. 444, 451 (1990) (“No one can seriously dispute the magnitude of

the drunken driving problem . . . . ‘Drunk drivers cause an annual

death toll of over 25,000 and in the same time span cause nearly one

million personal injuries . . .’ ”) (footnote omitted)); South Dakota v.

Neville, 459 U. S. 553, 558 (1983) (“The carnage caused by drunk

drivers is well documented . . . . This Court . . . has repeatedly lamented

the tragedy”).

3 See NHTSA, supra, at 111, Table 76 (2006) (278,000), (2005)

(254,000), (2004) (248,000), (2003) (275,000), (2002) (258,000), (2001)

(275,000), (2000) (310,000), (1999) (308,000), (1998) (305,000), (1997)

(327,000), (1996) (321,000).

4 According to statistics compiled by the Federal Bureau of Investiga-

tion, between 1996 and 2006 total annual murders never exceeded

15,000 after 1997. During that same 11-year period, the highest

number of murders committed in the course of burglary was 123, the

number of murders committed in the course of arson peaked at 105,

and the number of murders involving explosives topped out at 14—all

in 1996. See Dept. of Justice, Federal Bureau of Investigation, Uniform

Crime Reports/Crime in the United States (Ann. Reps. 1996–2006),

online at http://www.fbi.gov./ucr/ucr.htm#cius. While murders commit-

ted in the course of extortion were not separately reported, common

sense and the fact that the total number of murders was similar to the

number of fatal alcohol-related crashes at least after 1997 indicates

that murders involving extortion would not rival deaths in alcohol-

related auto accidents. Even if one were to expand beyond murders to

all fatalities and even injuries, it is estimated that arson causes the

4 BEGAY v. UNITED STATES

ALITO, J., dissenting

Petitioner’s qualifying offenses, moreover, fell within the

statute only because he had been convicted of DUI on at

least three prior occasions. As noted, petitioner had a

dozen prior DUI convictions. Persons who repeatedly

drive drunk present a greatly enhanced danger that they

and others will be injured as a result.5 In addition, it has

been estimated that the ratio of DUI incidents to DUI

arrests is between 250 to 1 and 2,000 to 1.6 Accordingly,

the risk presented by a 10th, 11th, and 12th DUI convic-

tion may be viewed as the risk created by literally thou-

sands of drunk-driving events. That risk was surely “seri-

ous,” and therefore petitioner’s offenses fell squarely

within the language of the statute.

Moreover, taking the statutory language to mean what

it says would not sweep in all DUI convictions. Most DUI

convictions are not punishable by a term of imprisonment

of more than one year and thus fall outside the scope of

the statute.7 Petitioner’s convictions qualified only be-

——————

relatively small number of 475 deaths and over 2,000 injuries annually.

Dept. of Homeland Security, U. S. Fire Administration, Arson in the

United States, Vol. 1 Topical Fire Research Series, No. 8 (Jan. 2001,

rev. Dec. 2001), online at http://www.usfa.dhs.gov/downloads/pdf/tfrs/

vli8-508.pdf.

5 See United States v. McCall, 439 F. 3d 967, 972 (CA8 2006) (en

banc) (citing Brewer et al., The Risk of Dying in Alcohol-Related Auto-

mobile Crashes Among Habitual Drunk Drivers, 331 New Eng. J. Med.

513 (1994)); Dept. of Justice, Office of Community Oriented Policing

Services, Drunk Driving, Problem-Oriented Guides for Police, Problem-

Specific Guides Series No. 36, p. 4 (Feb. 2006) (“By most estimates,

although repeat drunk drivers comprise a relatively small proportion of

the total population of drivers, they are disproportionately responsible

for alcohol-related crashes and other problems associated with drunk

driving”).

6 Brewer, supra, text accompanying nn. 23–24; L. Taylor & S. Ober-

man, Drunk Driving Defense §1.01 (2007).

7 See National Conference of State Legislatures, Criminal Status of

State Drunk Driving Laws, online at http://www.ncls.org/programs/lis/

dui/felony.htm (current as of July 2003) (surveying 50 States, the

District of Columbia, and U. S. Territories, most of whom treat the first

Cite as: 553 U. S. ____ (2008) 5

ALITO, J., dissenting

cause of his extraordinary—and, I would say, extraordi-

narily dangerous—record of drunk driving.

The Court holds that an offense does not fall within the

residual clause unless it is “roughly similar, in kind as

well as in degree of risked posed,” ante, at 5, to the crimes

specifically listed in 18 U. S. C. §924(e)(2)(B), i.e., bur-

glary, extortion, arson, and crimes involving the use of

explosives. These crimes, according to the Court, “all

typically involve purposeful, ‘violent,’ and ‘aggressive’

conduct.” Ante, at 7 (quoting 470 F. 3d, at 980 (McCon-

nell, J., dissenting)).

This interpretation cannot be squared with the text of

the statute, which simply does not provide that an offense

must be “purposeful,” “violent,” or “aggressive” in order to

fall within the residual clause. Rather, after listing bur-

glary, arson, extortion, and explosives offenses, the statute

provides (in the residual clause) that an offense qualifies if

it “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” Therefore,

offenses falling within the residual clause must be similar

to the named offenses in one respect only: They must,

“otherwise”—which is to say, “in a different manner,” 10

OED 984 (def. B(1)); see also Webster’s 1598—“involve[]

conduct that presents a serious potential risk of physical

injury to another.” Requiring that an offense must also be

“purposeful,” “violent,” or “aggressive” amounts to adding

new elements to the statute, but we “ordinarily resist

reading words or elements into a statute that do not ap-

pear on its face.” Bates v. United States, 522 U. S. 23, 29

(1997).

Each part of this additional, judicially added require-

ment presents other problems as well.

Purposeful. At least one State’s DUI law requires proof

of purposeful conduct. See Tam v. State, 232 Ga. App. 15,

——————

DUI offense as a misdemeanor).

6 BEGAY v. UNITED STATES

ALITO, J., dissenting

___, 501 S. E. 2d 51, 52 (1998) (requiring proof of the

intent to drive). In addition, many States recognize invol-

untary intoxication as a defense. See 4 R. Essen & R.

Erwin, Defense of Drunk Driving Cases: Criminal—Civil

§44.04 (2007). And even in States that do not require

purposefulness, I have no doubt that the overwhelming

majority of DUI defendants purposefully drank before

getting behind the wheel and were purposefully operating

their vehicles at the time of apprehension. I suspect that

many DUI statutes do not require proof of purposefulness

because the element is almost always present, requiring

proof of the element would introduce an unnecessary

complication, and it would make no sense to preclude

conviction of those defendants who were so drunk that

they did not even realize that they were behind the wheel.

Violent. It is clear that 18 U. S. C. §924(e)(2)(B) is not

limited to “violent” crimes, for if it were, it would be re-

dundant. The prior subparagraph, §924(e)(2)(A), includes

offenses that have as an element the use or threatened use

of violence.

Aggressive. The concept of “aggressive” crimes is vague,

and in any event, it is hardly apparent why DUI—not to

mention the species of felony DUI recidivism that resulted

in petitioner’s predicament—is not “aggressive.” Driving

can certainly involve “aggressive” conduct. Indeed, some

States have created the offense of “aggressive driving.”

See M. Savage, M. Sundeen, & A. Teigen, Traffic Safety

and Public Health: State Legislative Action 2007, Trans-

portation Series (National Conference of State Leg-

islatures, Dec. 2007, No. 32), p. 17, and App. J, online

at http://www.ncsl.org/print/transportation/07trafficsafety.

pdf. Most States have a toll-free telephone number to call

to report “aggressive” driving. See Campaign Safe &

Sober, Phone Numbers for Reporting Impaired, Aggres-

sive, or Unsafe Driving, online at http://www.nhtsa.dot.

gov/people/outreach/safesobr/16qp/phone.html.

Cite as: 553 U. S. ____ (2008) 7

ALITO, J., dissenting

The Court defends its new statutory element on the

ground that a defendant who merely engages in felony

drunk driving is not likely to be “the kind of person who

might deliberately point the gun and pull the trigger.”

Ante, at 8–9. The Court cites no empirical support for this

conclusion, and its accuracy is not self-evident. Peti-

tioner’s pattern of behavior may or may not be typical of

those defendants who have enough DUI convictions to

qualify under N. M. Stat. Ann. §66–8–102(G) and 18

U. S. C. §924(e)(2)(B), but the example of his behavior in

this case—pointing a gun at his aunt’s head and repeat-

edly pulling the trigger—should surely be enough to coun-

sel against uncritical reliance on stereotypes about “the

type” of people who commit felony DUI violations.

Defendants who qualify for an enhanced sentence under

§924(e) (2000 ed. and Supp. V) based (in whole or in part)

on felony DUI convictions share at least three characteris-

tics that are relevant for present purposes. First, they are

persons who, in the judgment of Congress, cannot be

trusted to use a firearm responsibly. In order to qualify

for an enhanced sentence under §924(e), a defendant must

of course be convicted of violating the felon-in-possession

statute, §922(g) (2000 ed.). The felon-in-possession statute

necessarily rests on the judgment that a person with a

prior felony conviction cannot be trusted with a firearm.

See Caron v. United States, 524 U. S. 308, 315 (1998)

(“Congress meant to keep guns away from all offenders

who, the Federal Government feared, might cause harm

. . .”). And there is no dispute that a prior felony DUI

conviction qualifies as a felony under the felon-in-

possession law. If Congress thought that a person with a

prior felony DUI conviction is not “the kind of person” who

is likely to use a gun unlawfully, why would Congress

have made it a crime for such a person to possess a gun?

Second, defendants with DUI convictions that are

counted under 18 U. S. C. §924(e)(2)(B) are likely to have

8 BEGAY v. UNITED STATES

ALITO, J., dissenting

serious alcohol abuse problems. As previously mentioned,

ordinary DUI convictions are generally not counted under

§924(e) because they are not punishable by imprisonment

for more than a year. Such penalties are generally re-

served for persons, like petitioner, with a record of re-

peated DUI violations. See National Conference of State

Legislatures, supra. Such individuals are very likely to

have serious alcohol abuse problems and a propensity to

engage in irresponsible conduct while under the influence.

Alcohol use often precedes violent crimes, see, e.g., Roizen,

Epidemiological Issues in Alcohol-Related Violence, in 13

Recent Developments in Alcoholism 7, 8–9 (M. Galanter

ed. 1997), and thus there is reason to worry about the

misuse of firearms by defendants whose alcohol abuse

problems are serious enough to result in felony DUI

convictions.

Third, defendants with DUI convictions that are

counted under §924(e)(2)(B) have either (a) such serious

alcohol abuse problems that they have at least three prior

felony DUI convictions or (b) both one or two felony DUI

convictions and one or two offenses that fall under

§924(e)(2)(B)(i) (offenses that have “as an element the use,

attempted use, or threatened use of physical force”) or that

are specifically set out in §924(e)(2)(B)(ii) (burglary, arson,

extortion, or an explosives offense). Defendants with three

felony DUI convictions are likely to be super–DUI-

recidivists like petitioner. Defendants with a combination

of felony DUI and other qualifying convictions—for exam-

ple, convictions for assault or burglary—are persons who,

even by the Court’s lights, could be classified as “the kind

of person who might deliberately point [a] gun and pull

the trigger.”

Unlike the Court, I cannot say that persons with these

characteristics are less likely to use a gun illegally than

are persons convicted of other qualifying felonies.

JUSTICE SCALIA’s concurrence takes a different ap-

Cite as: 553 U. S. ____ (2008) 9

ALITO, J., dissenting

proach, but his analysis is likewise flawed. JUSTICE

SCALIA would hold (a) that an offense does not fall within

the residual clause unless it presents a risk that is at least

as great as that presented by the least dangerous of the

enumerated offenses; (b) that burglary is the least danger-

ous of the enumerated offenses; (c) that the relevant

measure of risk is the risk that the typical burglary, DUI,

etc. would result in injury; and (d) that the risk presented

by an incident of DUI is less than the risk presented by a

burglary.

JUSTICE SCALIA, like the Court, does not follow the

statutory language. The statute says that offenses falling

within the residual clause must present “a serious poten-

tial risk of physical injury to another.” The statute does

not say that these offenses must present at least as much

risk as the enumerated offenses.

The statute also does not say, as JUSTICE SCALIA would

hold, that the relevant risk is the risk that each incident of

DUI will result in injury. I see no basis for concluding

that Congress was not also concerned with the risk faced

by potential victims, particularly since the statute explic-

itly refers to “potential risk.” Drunk driving is regarded as

a severe societal problem in large measure because of the

very large number of victims it produces each year.

Finally, JUSTICE SCALIA’s conclusion that burglary is the

least risky of the enumerated offenses is based on a pro-

crustean reading of §924(e)(2)(B)(ii). This provision refers,

without qualification, to “extortion.” In his dissent in

James v. United States, 550 U. S. ___ (2007), JUSTICE

SCALIA concluded that many forms of extortion are “inher-

ently unlikely to cause physical harm.” Id., at ___ (slip op.,

at 10) (emphasis in original). Only by finding that the

term “extortion” in §924(e)(2)(B)(ii) really means only

certain forms of extortion was JUSTICE SCALIA able to

come to the conclusion that burglary is the least risky of

the enumerated offenses.

10 BEGAY v. UNITED STATES

ALITO, J., dissenting

For all these reasons, I would affirm the decision of the

Tenth Circuit.