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