Derby v. United States , 180 L. Ed. 2d 904 ( 2011 )

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.
2 DERBY v. UNITED STATES
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
Cite as: 564 U. S. ____ (2011) 3
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
4 DERBY v. UNITED STATES
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.