Derby v. United States

Cite as: 564 U. S. ____ (2011) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES MATTHEW SHERIDAN DERBY 10–8373 v. UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KEITH JOHNSON 10–8607 v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

ROY L. SCHMIDT 10–8768 v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SHERMAN ALAN TURNER 10–8885 v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Nos. 10–8373, 10–8607, 10–8768 and 10–8885. Decided June 27, 2011

The petitions for writs of certiorari are denied. JUSTICE SOTOMAYOR took no part in the consideration or decision of No. 10–8607.

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SCALIA, J., dissenting

JUSTICE SCALIA, dissenting from denial of certiorari. Before us are petitions for certiorari by criminal de fendants asking us to decide whether four more of the “vast variety of . . . criminal offenses” that we have not yet addressed, see Sykes v. United States, ante, at 2–4, 7 (SCALIA, J., dissenting), are crimes of violence under the residual provision of the Armed Career Criminal Act (ACCA). See 18 U. S. C. §924(e)(2)(B)(ii). They are: • Derby v. United States, No. 10–8373. Relying on its decision in United States v. Mayer, 560 F. 3d 948 (2009), the Ninth Circuit held that Oregon’s first degree burglary statute, Ore. Rev. Stat. §164.225 (2009), falls within ACCA’s residual provision. In Mayer, the Ninth Circuit conceded that Oregon’s statute does not qualify as the enumerated offense of generic “burglary” under ACCA because it ap plies to unlawful entries into “booths, vehicles, boats, and aircraft,” 560 F. 3d, at 959, and not just buildings and structures. See Taylor v. United States, 495 U. S. 575, 598 (1990). Nevertheless, it held that Oregon’s statute falls within the residual provision, because burglaries under that statute lead to a “risk of a physical confrontation.” 560 F. 3d, at 962; but see id., at 952 (Kozinski, C. J., dissenting from denial of rehearing en banc) (not ing that “Oregon prosecutes as burglars people who pose no risk of injury to anyone,” such as an indi vidual who “enter[ed] public telephone booths to steal change from coin boxes”). • Johnson v. United States, No. 10–8607. The Sec ond Circuit, over a dissent, held that the Connecti cut offense of “rioting at a correctional institution,” Conn. Gen. Stat. §53a–179b(a) (2011), which pun ishes a defendant who “incites, instigates, orga nizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot

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SCALIA, J., dissenting

or other organized disobedience of the rules and regulations of [a correctional] institution,” falls within ACCA’s residual provision. In response to the defendant’s argument that the statute punishes activities such as “ ‘inciting or participating in a hunger strike’ ” or “ ‘refusal to work at a prison job,’ ” the court reasoned that even “hypothetical acts of ‘passive disobedience’ . . . involve deliberate and purposeful conduct.” 616 F. 3d 85, 90 (2010). It also held that such activities were risky because “prisons are like powder kegs, where even the slight est disturbance can have explosive consequences.” Id., at 94. • Schmidt v. United States, No. 10–8768. The Fifth Circuit held that the federal offense of theft of a firearm from a licensed dealer, 18 U. S. C. §922(u), falls within ACCA’s residual provision. It held that this offense is “inherently dangerous” because it in volves “stealing from a person who probably either possesses or has easy access to firearms,” and be cause “stolen firearms are more likely to be used in connection with illegal and inherently harmful activities than are lawfully possessed guns.” 623 F. 3d 257, 264 (CA5 2010). • Turner v. United States, No. 10–8885. Relying on its decision in United States v. Jarmon, 596 F. 3d 228 (2010), the Fourth Circuit held that ACCA’s residual provision covers the Virginia offense of larceny from the person, Va. Code Ann. §18.2–95(i) (Lexis 2009), defined as theft of over $5 in money or goods from another person—in other words, pick pocketing. In Jarmon, the court justified its appar ent view that Oliver Twist was a violent felon by noting that larceny “requires the offender to make purposeful, aggressive moves to part the victim from his or her property, creating a . . . risk of vio

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SCALIA, J., dissenting

lent confrontation” similar to the risk of violent confrontation during burglaries. 596 F. 3d, at 232. How we would resolve these cases if we granted certio rari would be a fine subject for a law-office betting pool. No one knows for sure. Certainly our most recent decision interpreting ACCA’s residual clause, Sykes v. United States, ante, p. 1, would be of no help. The “rule” we an nounced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a “beginning point,” ante, at 6–7; look at the statistical record, which is not “dispositive” but some times confirms “commonsense conclusion[s],” ante, at 8; and check whether the crime is “purposeful, violent, and ag gressive,” unless of course the crime is among the unspeci fied “many cases” in which that test is “redundant with the inquiry into risk,” ante, at 11. And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four suc cessive cases we have thus far decided, see ante, at 2–4 (SCALIA, J., dissenting), who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce? Surely a perfectly fair wager. If it is uncertain how this Court will apply Sykes and the rest of our ACCA cases going forward, it is even more uncertain how our lower-court colleagues will deal with them. Conceivably, they will simply throw the opinions into the air in frustration, and give free rein to their own feelings as to what offenses should be considered crimes of violence—which, to tell the truth, seems to be what we have done. (Before throwing the opinions into the air, how ever, they should check whether littering—or littering in a purposeful, violent, and aggressive fashion—is a fel ony in their jurisdiction. If so, it may be a violent felony under ACCA; or perhaps not.)

Cite as: 564 U. S. ____ (2011) 5

SCALIA, J., dissenting

Since our ACCA cases are incomprehensible to judges, the statute obviously does not give “person[s] of ordinary intelligence fair notice” of its reach. United States v. Batchelder, 442 U. S. 114, 123 (1979) (internal quotation marks omitted). I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.