JAMES v. UNITED STATES

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192 OCTOBER TERM, 2006
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JAMES v. UNITED STATES
certiorari to the united states court of appeals for
the eleventh circuit
No. 05–9264. Argued November 7, 2006—Decided April 18, 2007
Pleading guilty to possessing a firearm after a felony conviction in viola
tion of 18 U. S. C. § 922(g)(1), petitioner James admitted to the three
prior felony convictions listed in his federal indictment, including a Flor
ida state-law conviction for attempted burglary. The Government ar
gued at sentencing that those convictions subjected James to the 15
year mandatory minimum prison term provided by the Armed Career
Criminal Act (ACCA), § 924(e), for an armed defendant who has three
prior “violent felony” convictions. James objected that his attempted
burglary conviction was not for a “violent felony.” The District Court
held that it was, and the Eleventh Circuit affirmed.
Held: Attempted burglary, as defined by Florida law, is a “violent felony”
under ACCA. Pp. 196–214.
(a) James’ argument that ACCA’s text and structure categorically ex
clude attempt offenses is rejected. Pp. 196–201.
(i) Section 924(e)(2)(B) defines “violent felony” as “any crime pun
ishable by imprisonment for [more than] one year . . . that . . . (i) has as
an element the use, attempted use, or threatened use of physical force
against . . . another . . . or . . . (ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Florida law defined “bur
glary” when James was convicted as “entering or remaining in a struc
ture . . . with the intent to commit an offense therein,” Fla. Stat.
§ 810.02(1), and declared: “A person who . . . does any act toward the
commission of [an offense] but fails in the perpetration or . . . execution
thereof, commits the offense of criminal attempt,” § 777.04(1). The at
tempted burglary conviction at issue was punishable by imprisonment
exceeding one year. The parties agree that it does not qualify as a
“violent felony” under clause (i) of § 924(e)(2)(B) or as one of the specific
crimes enumerated in clause (ii). For example, it is not “burglary” be
cause it does not meet the definition of “generic burglary” found in Tay
lor v. United States, 495 U. S. 575, 598: “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to
commit a crime.” Thus, the question here is whether attempted bur
glary, as defined by Florida, falls within clause (ii)’s residual provision

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for crimes that “otherwise involv[e] conduct that presents a serious po
tential risk of physical injury to another.” Pp. 196–197.
(ii) ACCA’s text does not exclude attempt offenses from the resid
ual provision’s scope. James’ claim that clause (i)’s express inclusion of
attempts, combined with clause (ii)’s failure to mention them, demon
strates an intent to categorically exclude them from clause (ii) would
unduly narrow the residual provision, which does not suggest any intent
to exclude attempts that otherwise meet the statutory criteria. See,
e. g., Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80. James also
argues to no avail that, under the ejusdem generis canon, the residual
provision must be read to extend only to completed offenses because the
specifically enumerated offenses—burglary, arson, extortion, and explo
sives crimes—all have that common attribute. Rather, the most rele
vant common attribute of the enumerated offenses is that, while not
technically crimes against the person, they nevertheless create signifi
cant risks of bodily injury to others, or of violent confrontation that
could lead to such injury. See, e. g., Taylor, supra, at 597. The inclu
sion of the residual provision indicates Congress’ intent that the preced
ing enumerated offenses not be an exhaustive list. Pp. 198–200.
(iii) Nor does the legislative history exclude attempt offenses from
ACCA’s residual provision. Whatever weight might ordinarily be
given the House’s 1984 rejection of language that would have included
attempted robbery and attempted burglary as ACCA predicate offenses,
it is not probative here because the 1984 action was not Congress’ last
word on the subject. Since clause (ii)’s residual provision was added to
ACCA in 1988, Congress’ 1984 rejection of the language including at
tempt offenses is not dispositive. Pp. 200–201.
(b) Attempted burglary, as defined by Florida law, “involves conduct
that presents a serious potential risk of physical injury to another”
under the residual provision. Under the “categorical approach” it has
used for other ACCA offenses, the Court considers whether the offense’s
elements are of the type that would justify its inclusion within the resid
ual provision, without inquiring into the particular offender’s specific
conduct. See, e. g., Taylor, supra, at 602. Pp. 201–212.
(i) On its face, Florida’s attempt statute requires only that a de
fendant take “any act toward the commission” of burglary. But because
the Florida Supreme Court’s Jones decision considerably narrowed the
application of this broad language in the context of attempted burglary,
requiring an overt act directed toward entering or remaining in a struc
ture, merely preparatory activity posing no real danger of harm to oth
ers, e. g., acquiring burglars’ tools or casing a structure, is not enough.
Pp. 202–203.

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194 JAMES v. UNITED STATES
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(ii) Overt conduct directed toward unlawfully entering or remain
ing in a dwelling, with the intent to commit a felony therein, “presents
a serious potential risk of physical injury to another” under the residual
provision of clause (ii). The clause’s enumerated offenses provide one
baseline from which to measure whether similar conduct satisfies the
quoted language. Here, the risk posed by attempted burglary is com
parable to that posed by its closest analog among the enumerated of
fenses, completed burglary. See Taylor, supra, at 600, n. 9. The main
risk of burglary arises not from the simple physical act of wrongfully
entering another’s property, but from the possibility that an innocent
person might confront the burglar during the crime. Attempted bur
glary poses the same kind of risk. Indeed, that risk may be even
greater than the risk posed by a typical completed burglary. Many
completed burglaries do not involve confrontations, but attempted bur
glaries often do. Every Court of Appeals that has construed an at
tempted burglary law similar to Florida’s has held that attempted bur
glary qualifies as a “violent felony.” Support is also found in the U. S.
Sentencing Commission’s determination that a predicate “crime of vio
lence” for purposes of the Sentencing Guidelines’ career offender en
hancement “include[s] . . . attempting to commit [an] offens[e].” See
Guidelines Manual § 4B1.2, comment., n. 1. Pp. 203–207.
(iii) Neither ACCA nor Taylor supports James’ argument that,
under the categorical approach, attempted burglary cannot be treated
as an ACCA predicate offense unless all cases present a risk of physical
injury to others. ACCA does not require such certainty, and James’
argument misapprehends Taylor, under which the proper inquiry is not
whether every factual offense conceivably covered by a statute nec
essarily presents a serious potential risk of injury, but whether the
conduct encompassed by the offense’s elements, in the ordinary case,
presents such a risk. Pp. 207–209.
(c) James’ argument that the scope of Florida’s underlying burglary
statute itself precludes treating attempted burglary as an ACCA pred
icate offense is not persuasive. Although the state-law definition of
“[d]welling” to include the “curtilage thereof,” Fla. Stat. § 810.011(2),
takes Florida’s underlying burglary offense outside Taylor’s “generic
burglary” definition, 495 U. S., at 598, that is not dispositive because
the Government does not argue that James’ conviction constitutes
“burglary” under ACCA. Rather, it relies on the residual provision,
which—as Taylor recognized—can cover conduct outside the strict
definition of, but nevertheless similar to, generic burglary. Id., at 600,
n. 9. The Florida Supreme Court’s Hamilton decision construed curti
lage narrowly, requiring some form of enclosure for the area surround

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ing a residence. A burglar illegally attempting to enter the curtilage
around a dwelling creates much the same risk of confrontation as one
attempting to enter the structure itself. Pp. 212–213.
(d) Because the Court is here engaging in statutory interpretation,
not judicial factfinding, James’ argument that construing attempted bur
glary as a violent felony raises Sixth Amendment issues under Apprendi
v. New Jersey, 530 U. S. 466, lacks merit. Pp. 213–214.
430 F. 3d 1150, affirmed.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a dis
senting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 214.
Thomas, J., filed a dissenting opinion, post, p. 231.
Craig L. Crawford argued the cause for petitioner. With
him on the briefs were R. Fletcher Peacock and Jeffrey T.
Green.
Jonathan L. Marcus argued the cause for the United
States. With him on the brief were Solicitor General
Clement, Assistant Attorney General Fisher, Deputy Solici
tor General Dreeben, and Daniel S. Goodman.
Justice Alito delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA), 18 U. S. C.
§ 924(e)(1) (2000 ed., Supp. IV), provides that a defendant
convicted of possession of a firearm by a convicted felon, in
violation of § 922(g), is subject to a mandatory sentence of
15 years of imprisonment if the defendant has three prior
convictions “for a violent felony or a serious drug offense.”
The question before us is whether attempted burglary, as
defined by Florida law, is a “violent felony” under ACCA.
We hold that it is, and we therefore affirm the judgment of
the Court of Appeals.
I
Petitioner Alphonso James pleaded guilty in federal court
to one count of possessing a firearm after being convicted of
a felony, in violation of § 922(g)(1). In his guilty plea, James

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196 JAMES v. UNITED STATES
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admitted to the three prior felony convictions listed in his
federal indictment. These included a conviction in Florida
state court for attempted burglary of a dwelling, in violation
of Fla. Stat. §§ 810.02 and 777.04 (1993).1
At sentencing, the Government argued that James was
subject to ACCA’s 15-year mandatory minimum term be
cause of his three prior convictions. James objected, ar
guing that his attempted burglary conviction did not qualify
as a “violent felony” under 18 U. S. C. § 924(e). The District
Court held that attempted burglary is a violent felony, and
the Court of Appeals for the Eleventh Circuit affirmed that
holding, 430 F. 3d 1150, 1157 (2005). We granted certiorari,
547 U. S. 1191 (2006).
II
A
ACCA’s 15-year mandatory minimum applies “[i]n the case
of a person who violates section 922(g) of this title [the felon
in possession of a firearm provision] and has three previous
convictions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one another.”
§ 924(e)(1) (2000 ed., Supp. IV). ACCA defines a “violent fel
ony” as
“any crime punishable by imprisonment for a term ex
ceeding one year . . . that—
“(i) has as an element the use, attempted use, or
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 presents
a serious potential risk of physical injury to another.”
§ 924(e)(2)(B).
1 James’ two other prior convictions—for possession of cocaine and traf
ficking in cocaine—were determined to be “serious drug offense[s]” under
ACCA, see 18 U. S. C. § 924(e)(1) (2000 ed., Supp. IV), and are not at
issue here.

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Florida defined the crime of burglary at the time of James’
conviction as follows: “ ‘Burglary’ means entering or remain
ing in a structure or a conveyance with the intent to com
mit an offense therein, unless the premises are at the time
open to the public or the defendant is licensed or invited to
enter or remain.” Fla. Stat. § 810.02(1). Florida’s criminal
attempt statute provided: “A person who attempts to commit
an offense prohibited by law and in such attempt does any
act toward the commission of such offense, but fails in the
perpetration or is intercepted or prevented in the execu
tion thereof, commits the offense of criminal attempt.”
§ 777.04(1). The attempted burglary conviction at issue here
was punishable by imprisonment for a term exceeding one
year.
The parties agree that attempted burglary does not qual
ify as a “violent felony” under clause (i) of ACCA’s definition
because it does not have “as an element the use, attempted
use, or threatened use of physical force against the person of
another.” 18 U. S. C. § 924(e)(2)(B)(i). Nor does it qualify
as one of the specific crimes enumerated in clause (ii). At
tempted burglary is not arson or extortion. It does not in
volve the use of explosives. And it is not “burglary” be
cause it does not meet the definition of burglary under
ACCA that this Court set forth in Taylor v. United States,
495 U. S. 575, 598 (1990): “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with in
tent to commit a crime.” See Fla. Stat. § 777.04(1) (crime of
attempt under Florida law requires as an element that the
defendant “fai[l] in the perpetration or [be] intercepted or
prevented in the execution” of the underlying offense).
The question before the Court, then, is whether attempted
burglary, as defined by Florida law, falls within ACCA’s re
sidual provision for crimes that “otherwise involv[e] conduct
that presents a serious potential risk of physical injury to
another.” 18 U. S. C. § 924(e)(2)(B)(ii).

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B
Before determining whether the elements of attempted
burglary under Florida law qualify under ACCA’s residual
provision, we first consider James’ argument that the stat
ute’s text and structure categorically exclude attempt of
fenses from the scope of the residual provision. We con
clude that nothing in the plain language of clause (ii), when
read together with the rest of the statute, prohibits attempt
offenses from qualifying as ACCA predicates when they in
volve conduct that presents a serious potential risk of physi
cal injury to another.
James first argues that the residual provision of clause (ii)
must be read in conjunction with clause (i), which ex
pressly includes in its definition of “violent felony” offenses
that have “as an element the . . . attempted use . . . of physical
force against the person of another.” § 924(e)(2)(B)(i) (em
phasis added). James thus concludes that Congress’ express
inclusion of attempt offenses in clause (i), combined with its
failure to mention attempts in clause (ii), demonstrates an
intent to categorically exclude attempt offenses from the lat
ter provision.
We are not persuaded. James’ reading would unduly nar
row clause (ii)’s residual provision, the language of which
does not suggest any intent to exclude attempt offenses that
otherwise meet the statutory criteria. Clause (i), in con
trast, lacks a broad residual provision, thus making it neces
sary to specify exactly what types of offenses—including at
tempt offenses—are covered by its language. In short, “the
expansive phrasing of ” clause (ii) “points directly away from
the sort of exclusive specification” that James would read
into it. Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80
(2002); see also United States v. Davis, 16 F. 3d 212, 217
(CA7) (rejecting argument that “had Congress wished to in
clude attempted burglary as a § 924(e) predicate offense, it
would have done so expressly” as “untenable in light of the
very existence of the ‘otherwise’ clause, which Congress

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plainly included to serve as a catch-all provision”), cert. de
nied, 513 U. S. 945 (1994).
James next invokes the canon of ejusdem generis—that
when a general phrase follows a list of specifics, it should be
read to include only things of the same type as those specifi
cally enumerated. He argues that the “common attribute”
of the offenses specifically enumerated in clause (ii)—bur
glary, arson, extortion, and crimes involving the use of explo
sives—is that they are all completed offenses. The residual
provision, he contends, should similarly be read to extend
only to completed offenses.
This argument is unavailing. As an initial matter, the
premise on which it depends—that clause (ii)’s specifically
enumerated crimes are limited to completed offenses—is
false. An unsuccessful attempt to blow up a government
building, for example, would qualify as a specifically enumer
ated predicate offense because it would “involv[e] [the] use
of explosives.” See, e. g., § 844(f)(1) (2000 ed., Supp. IV)
(making it a crime to “maliciously damag[e] or destro[y], or
attemp[t] to damage or destroy, by means of fire or an explo
sive,” certain property used in or affecting interstate com
merce (emphasis added)).
In any event, the most relevant common attribute of the
enumerated offenses of burglary, arson, extortion, and explo
sives use is not “completion.” Rather, it is that all of these
offenses, while not technically crimes against the person,
nevertheless create significant risks of bodily injury or con
frontation that might result in bodily injury. As we noted
in Taylor:
“Congress thought that certain general categories of
property crimes—namely burglary, arson, extortion, and
the use of explosives—so often presented a risk of injury
to persons, or were so often committed by career crimi
nals, that they should be included in the enhancement
statute even though, considered solely in terms of their
statutory elements, they do not necessarily involve the

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use or threat of force against a person.” 495 U. S.,
at 597.
See also id., at 588 (noting that Congress singled out bur
glary because it “often creates the possibility of a violent
confrontation”); United States v. Adams, 51 Fed. Appx. 507,
508 (CA6 2002) (arson presents “a serious potential risk of
physical injury to another” because “[n]ot only might the tar
geted building be occupied,” but also “the fire could harm
firefighters and onlookers and could spread to occupied struc
tures”); H. R. Rep. No. 99–849, p. 3 (1986) (purpose of clause
(ii) was to “add State and Federal crimes against property
such as burglary, arson, extortion, use of explosives and simi
lar crimes as predicate offenses where the conduct involved
presents a serious risk of injury to a person”).
Congress’ inclusion of a broad residual provision in clause
(ii) indicates that it did not intend the preceding enumerated
offenses to be an exhaustive list of the types of crimes that
might present a serious risk of injury to others and therefore
merit status as a § 924(e) predicate offense. Nothing in the
statutory language supports the view that Congress in
tended to limit this category solely to completed offenses.
C
James also relies on ACCA’s legislative history to buttress
his argument that clause (ii) categorically excludes attempt
offenses. In the deliberations leading up to ACCA’s adop
tion in 1984, the House rejected a version of the statute that
would have provided enhanced penalties for use of a firearm
by persons with two prior convictions for “any robbery or
burglary offense, or a conspiracy or attempt to commit such
an offense.” S. 52, 98th Cong., 2d Sess., § 2 (1984) (emphasis
added). The bill that ultimately became law omitted any
reference to attempts, and simply defined “violent felony”
to include “robbery or burglary, or both.” Armed Career
Criminal Act of 1984, § 1802, 98 Stat. 2185, repealed in 1986
by Pub. L. 99–308, § 104(b), 100 Stat. 459. James argues

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that Congress’ rejection of this explicit “attempt” language
in 1984 evidenced an intent to exclude attempted burglary
as a predicate offense.
Whatever weight this legislative history might ordinarily
have, we do not find it probative here, because the 1984 en
actment on which James relies was not Congress’ last word
on the subject. In 1986, Congress amended ACCA for the
purpose of “ ‘expanding’ the range of predicate offenses.”
Taylor, supra, at 584. The 1986 amendments added the
more expansive language that is at issue in this case—includ
ing clause (ii)’s language defining as violent felonies offenses
that are “burglary, arson, or extortion, involv[e] use of explo
sives, or otherwise involv[e] conduct that presents a serious
potential risk of physical injury to another.” Career Crim
inals Amendment Act of 1986, § 1402(b), 100 Stat. 3207–
40, codified at 18 U. S. C. § 924(e)(2)(B)(ii). This language
is substantially broader than the 1984 provision that it
amended. Because both the Government and the Court of
Appeals relied on the broader language of the 1986 amend
ments—specifically, the residual provision—as the textual
basis for including attempted burglary within the law’s
scope, Congress’ rejection of express language including at
tempt offenses in the 1984 provision is not dispositive. Con
gress did not consider, much less reject, any such language
when it enacted the 1986 amendments. What it did con
sider, and ultimately adopted, was a broadly worded residual
clause that does not by its terms exclude attempt offenses,
and whose reach is broad enough to encompass at least some
such offenses.
III
Having concluded that neither the statutory text nor the
legislative history discloses any congressional intent to cate
gorically exclude attempt offenses from the scope of
§ 924(e)(2)(B)(ii)’s residual provision, we next ask whether at
tempted burglary, as defined by Florida law, is an offense
that “involves conduct that presents a serious potential risk

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of physical injury to another.” In answering this question,
we employ the “ ‘categorical approach’ ” that this Court has
taken with respect to other offenses under ACCA. Under
this approach, we “ ‘look only to the fact of conviction and
the statutory definition of the prior offense,’ ” and do not
generally consider the “particular facts disclosed by the rec
ord of conviction.” Shepard v. United States, 544 U. S. 13,
17 (2005) (quoting Taylor, 495 U. S., at 602). That is, we
consider whether the elements of the offense are of the type
that would justify its inclusion within the residual provision,
without inquiring into the specific conduct of this particular
offender.
A
We begin by examining what constitutes attempted bur
glary under Florida law. On its face, Florida’s attempt stat
ute requires only that a defendant take “any act toward the
commission” of burglary. Fla. Stat. § 777.04(1). James con
tends that this broad statutory language sweeps in merely
preparatory activity that poses no real danger of harm to
others—for example, acquiring burglars’ tools or casing a
structure while planning a burglary.
But while the statutory language is broad, the Florida
Supreme Court has considerably narrowed its application
in the context of attempted burglary, requiring an “overt
act directed toward entering or remaining in a structure or
conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992).
Mere preparation is not enough. See ibid.2 Florida’s lower
2 The Jones court distinguished its earlier holding in Thomas v. State,
531 So. 2d 708 (1988). There, the State Supreme Court upheld a convic
tion under a state statute criminalizing the possession of burglary tools,
Fla. Stat. § 810.06, where the defendant had been arrested after jumping
a fence and trying to run away from police while carrying a screwdriver.
Jones held that “the overt act necessary to convict of the burglary tool
crime is not the same as the overt act required to prove attempted bur
glary,” and noted that the conduct charged in Thomas would not be suffi
cient to prove attempted burglary because the defendant in that case com

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courts appear to have consistently applied this heightened
standard. See, e. g., Richardson v. State, 922 So. 2d 331, 334
(App. 2006); Davis v. State, 741 So. 2d 1213, 1214 (App. 1999).
The pivotal question, then, is whether overt conduct di
rected toward unlawfully entering or remaining in a dwell
ing, with the intent to commit a felony therein, is “conduct
that presents a serious potential risk of physical injury to
another.” 18 U. S. C. § 924(e)(2)(B)(ii).
B
In answering this question, we look to the statutory lan
guage for guidance. The specific offenses enumerated in
clause (ii) provide one baseline from which to measure
whether other similar conduct “otherwise . . . presents a seri
ous potential risk of physical injury.” In this case, we can
ask whether the risk posed by attempted burglary is com
parable to that posed by its closest analog among the enu
merated offenses—here, completed burglary. See Taylor,
supra, at 600, n. 9 (“The Government remains free to argue
that any offense—including offenses similar to generic bur
glary—should count towards enhancement as one that ‘oth
erwise involves conduct that presents a serious potential risk
of physical injury to another’ under § 924(e)(2)(B)(ii)”).
The main risk of burglary arises not from the simple physi
cal act of wrongfully entering onto another’s property, but
rather from the possibility of a face-to-face confrontation be
tween the burglar and a third party—whether an occupant,
a police officer, or a bystander—who comes to investigate.
That is, the risk arises not from the completion of the bur
glary, but from the possibility that an innocent person might
appear while the crime is in progress.
Attempted burglary poses the same kind of risk. In
terrupting an intruder at the doorstep while the would-be
burglar is attempting a break-in creates a risk of violent
mitted no overt act directed toward entering or remaining in a building.
608 So. 2d, at 799.

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confrontation comparable to that posed by finding him inside
the structure itself. As one court has explained:
“In all of these cases the risk of injury arises, not from
the completion of the break-in, but rather from the pos
sibility that some innocent party may appear on the
scene while the break-in is occurring. This is just as
likely to happen before the defendant succeeds in break
ing in as after. Indeed, the possibility may be at its
peak while the defendant is still outside trying to break
in, as that is when he is likely to be making noise and
exposed to the public view. . . . [T]here is a serious risk
of confrontation while a perpetrator is attempting to
enter the building.” United States v. Payne, 966 F. 2d
4, 8 (CA1 1992).
Indeed, the risk posed by an attempted burglary that can
serve as the basis for an ACCA enhancement may be even
greater than that posed by a typical completed burglary.
All burglaries begin as attempted burglaries. But ACCA
only concerns that subset of attempted burglaries where the
offender has been apprehended, prosecuted, and convicted.
This will typically occur when the attempt is thwarted by
some outside intervenor—be it a property owner or law en
forcement officer. Many completed burglaries do not in
volve such confrontations. But attempted burglaries often
do; indeed, it is often just such outside intervention that pre
vents the attempt from ripening into completion.
Concluding that attempted burglary presents a risk that
is comparable to the risk posed by the completed offense,
every Court of Appeals that has construed an attempted bur
glary law similar in scope to Florida’s has held that the
offense qualifies as a “violent felony” under clause (ii)’s re
sidual provision.3 The only cases holding to the contrary
3 See United States v. Lane, 909 F. 2d 895, 903 (CA6 1990) (construing
Ohio attempted burglary law: “ ‘The fact that an offender enters a building
to commit a crime often creates the possibility of a violent confrontation
between the offender and an occupant, caretaker, or some other person

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involved attempt laws that could be satisfied by preparatory
conduct that does not pose the same risk of violent confron
tation and physical harm posed by an attempt to enter a
structure illegally.4 Given that Florida law, as interpreted
who comes to investigate.’ . . . The fact that [the defendant] did not com
plete the burglary offense does not diminish the serious potential risk of
injury to another arising from an attempted burglary”); United States v.
Fish, 928 F. 2d 185, 188 (CA6 1991) (Michigan attempted burglary law);
United States v. Payne, 966 F. 2d 4, 8 (CA1 1992) (Massachusetts
attempted-breaking-and-entering law); United States v. O’Brien, 972 F. 2d
47, 52 (CA3 1992) (Massachusetts attempted-breaking-and-entering law:
“[T]he possibility of a violent confrontation with an innocent party is al
ways present when a perpetrator attempts to enter a building illegally,
even when the crime is not actually completed”); United States v. Solo
mon, 998 F. 2d 587, 590 (CA8 1993) (Minnesota attempted burglary law);
United States v. Custis, 988 F. 2d 1355, 1364 (CA4 1993) (Maryland
attempted-breaking-and-entering law: “In most cases, attempted breaking
and entering will be charged when a defendant has been interrupted in
the course of illegally entering a home. Interrupting an intruder while
breaking into a home involves a risk of confrontation nearly as great as
finding him inside the house”); United States v. Thomas, 2 F. 3d 79, 80
(CA4 1993) (New Jersey attempted burglary law); United States v. An
drello, 9 F. 3d 247, 249–250 (CA2 1993) (per curiam) (New York attempted
burglary law); United States v. Davis, 16 F. 3d 212, 218 (CA7 1994) (Illinois
attempted burglary law); United States v. Bureau, 52 F. 3d 584, 593 (CA6
1995) (Tennessee attempted burglary law: “[T]he propensity for a violent
confrontation and the serious potential risk of injury inherent in burglary
is not diminished where the burglar is not successful in completing the
crime. The potential risk of injury is especially great where the burglar
succeeds in entry or near-entry despite not fully completing the crime”);
United States v. Demint, 74 F. 3d 876, 878 (CA8 1996) (per curiam) (Flor
ida attempted burglary law); United States v. Collins, 150 F. 3d 668, 671
(CA7 1998) (Wisconsin attempted burglary law: “We have already recog
nized the inherently dangerous situation and possibility of confrontation
that is created when a burglar attempts to illegally enter a building or
residence. . . . Wisconsin’s requirement that a defendant must attempt to
enter a building before he can be found guilty of attempted burglary is
sufficient to mandate that attempted burglary in Wisconsin constitutes a
violent felony”).
4 In United States v. Strahl, 958 F. 2d 980, 986 (1992), the Tenth Circuit
held that attempted burglary under Utah law did not qualify as an ACCA
predicate offense because a conviction could be “based upon conduct such

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206 JAMES v. UNITED STATES
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by that State’s highest court, requires an overt act directed
toward the entry of a structure, we need not consider
whether the more attenuated conduct encompassed by such
laws presents a potential risk of serious injury under ACCA.
The United States Sentencing Commission has come to a
similar conclusion with regard to the Sentencing Guidelines’
career offender enhancement, whose definition of a predicate
“crime of violence” closely tracks ACCA’s definition of “vio
lent felony.” See United States Sentencing Commission,
Guidelines Manual § 4B1.2(a)(2) (Nov. 2006) (USSG). The
Commission has determined that “crime[s] of violence” for
the purpose of the Guidelines enhancement “include the of
fenses of aiding and abetting, conspiring, and attempting to
commit such offenses.” § 4B1.2, comment., n. 1. This judg
ment was based on the Commission’s review of empirical sen
tencing data and presumably reflects an assessment that at
tempt crimes often pose a similar risk of injury as completed
offenses. As then-Chief Judge Breyer explained, “[t]he
Commission, which collects detailed sentencing data on vir
tually every federal criminal case, is better able than any
individual court to make an informed judgment about the
relation between” a particular offense and “the likelihood of
accompanying violence.” United States v. Doe, 960 F. 2d
221, 225 (CA1 1992); see also USSG § 1A3 (Nov. 1987), re
as making a duplicate key, ‘casing’ the targeted building, obtaining floor
plans of a structure, or possessing burglary tools.” United States v. Per
menter, 969 F. 2d 911, 913 (CA10 1992), similarly excluded a conviction
under an Oklahoma statute that could be satisfied by the defendant’s
“merely ‘casing’ the targeted structure.” In United States v. Martinez,
954 F. 2d 1050, 1054 (1992), the Fifth Circuit came to the same conclusion
as to a Texas attempted burglary statute that did not require that the
defendant be “in the vicinity of any building.” And in United States v.
Weekley, 24 F. 3d 1125, 1127 (CA9 1994), the Court of Appeals concluded
that ACCA was not satisfied by a conviction under a Washington law that
covered “relatively unrisky” conduct such as casing the neighborhood, se
lecting a house to burgle, and possessing neckties to be used in the
burglary.

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printed in § 1A1.1 comment. (Nov. 2006) (describing empirical
basis of Commission’s formulation of Guidelines); United
States v. Chambers, 473 F. 3d 724 (CA7 2007) (noting the
usefulness of empirical analysis from the Commission in de
termining whether an unenumerated crime poses a risk of
violence). While we are not bound by the Sentencing Com
mission’s conclusion, we view it as further evidence that a
crime like attempted burglary poses a risk of violence similar
to that presented by the completed offense.
C
James responds that it is not enough that attempted bur
glary “ ‘generally’ ” or in “ ‘most cases’ ” will create a risk of
physical injury to others. Brief for Petitioner 32. Citing
the categorical approach we employed in Taylor, he argues
that we cannot treat attempted burglary as an ACCA predi
cate offense unless all cases present such a risk. James’ ap
proach is supported by neither the statute’s text nor this
Court’s holding in Taylor.
One could, of course, imagine a situation in which at
tempted burglary might not pose a realistic risk of confronta
tion or injury to anyone—for example, a break-in of an unoc
cupied structure located far off the beaten path and away
from any potential intervenors. But ACCA does not require
metaphysical certainty. Rather, § 924(e)(2)(B)(ii)’s residual
provision speaks in terms of a “potential risk.” These are
inherently probabilistic concepts.5 Indeed, the combination
of the two terms suggests that Congress intended to encom
pass possibilities even more contingent or remote than a sim
5 See, e. g., Black’s Law Dictionary 1188 (7th ed. 1999) (potential: “[c]apa
ble of coming into being; possible”); id., at 1328 (risk: “[t]he chance of
injury, damage, or loss; danger or hazard”); Webster’s Third New Inter
national Dictionary 1775 (1971) (potential: “existing in possibility: having
the capacity or a strong possibility for development into a state of actual
ity”); id., at 1961 (risk: “the possibility of loss, injury, disadvantage, or
destruction”).

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208 JAMES v. UNITED STATES
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ple “risk,” much less a certainty. While there may be some
attempted burglaries that do not present a serious potential
risk of physical injury to another, the same is true of com
pleted burglaries—which are explicitly covered by the statu
tory language and provide a baseline against which to meas
ure the degree of risk that a nonenumerated offense must
“otherwise” present in order to qualify.
James’ argument also misapprehends Taylor’s categorical
approach. We do not view that approach as requiring that
every conceivable factual offense covered by a statute must
necessarily present a serious potential risk of injury before
the offense can be deemed a violent felony. Cf. Gonzales v.
Duenas-Alvarez, 549 U. S. 183, 193 (2007) (“[T]o find that a
state statute creates a crime outside the generic definition
of a listed crime in a federal statute requires more than the
application of legal imagination to a state statute’s language.
It requires a realistic probability, not a theoretical possibil
ity, that the State would apply its statute to conduct that
falls outside the generic definition of a crime”).
Rather, the proper inquiry is whether the conduct encom
passed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another. One
can always hypothesize unusual cases in which even a proto
typically violent crime might not present a genuine risk of
injury—for example, an attempted murder where the gun,
unbeknownst to the shooter, had no bullets, see United
States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to
take an example from the offenses specifically enumerated in
§ 924(e)(2)(B)(ii), one could imagine an extortion scheme
where an anonymous blackmailer threatens to release em
barrassing personal information about the victim unless he is
mailed regular payments. In both cases, the risk of physical
injury to another approaches zero. But that does not mean
that the offenses of attempted murder or extortion are cate
gorically nonviolent.

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As long as an offense is of a type that, by its nature, pre
sents a serious potential risk of injury to another, it satisfies
the requirements of § 924(e)(2)(B)(ii)’s residual provision.
Attempted burglary under Florida law—as construed in
Jones to require an overt act directed toward entry of a
structure—satisfies this test.
D
Justice Scalia’s dissent criticizes our approach on the
ground that it does not provide sufficient guidance for lower
courts required to decide whether unenumerated offenses
other than attempted burglary qualify as violent felonies
under ACCA. But the dissent’s alternative approach has
more serious disadvantages. Among other things, that ap
proach unnecessarily decides an important question that the
parties have not briefed (the meaning of the term “extor
tion” in § 924(e)(2)(B)(ii)), decides that question in a way that
is hardly free from doubt, and fails to provide an interpreta
tion of the residual provision that furnishes clear guidance
for future cases.
The dissent interprets the residual provision to require at
least as much risk as the least dangerous enumerated of
fense. But the ordinary meaning of the language of the re
sidual clause does not impose such a requirement. What the
clause demands is “a serious potential risk of physical injury
to another.” While it may be reasonable to infer that the
risks presented by the enumerated offenses involve a risk of
this magnitude, it does not follow that an offense that pre
sents a lesser risk necessarily fails to qualify. Nothing in
the language of § 924(e)(2)(B)(ii) rules out the possibility that
an offense may present “a serious risk of physical injury to
another” without presenting as great a risk as any of the
enumerated offenses.
Moreover, even if an unenumerated offense could not qual
ify without presenting at least as much risk as the least risky

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210 JAMES v. UNITED STATES
Opinion of the Court
of the enumerated offenses, it would not be necessary to
identify the least risky of those offenses in order to decide
this case. Rather, it would be sufficient to establish simply
that the unenumerated offense presented at least as much
risk as one of the enumerated offenses. Thus, Justice
Scalia’s interpretation of the meaning of the term “extor
tion” is unnecessary—and inadvisable. The parties have not
briefed this issue, and the proposed interpretation is hardly
beyond question. Instead of interpreting the meaning of
the term “extortion” in accordance with its meaning at com
mon law or in modern federal and state statutes, see Taylor,
495 U. S., at 598, it is suggested that we adopt an interpreta
tion that seems to be entirely novel and that greatly reduces
the reach of ACCA.
The stated reason for tackling this question is to pro
vide guidance for the lower courts in future cases—surely
a worthy objective. But in practical terms, the proposed
interpretation of the residual clause would not make it
much easier for the lower courts to decide whether other
unenumerated offenses qualify. Without hard statistics—
and no such statistics have been called to our attention—
how is a lower court to determine whether the risk posed by
generic burglary is greater or less than the risk posed by an
entirely unrelated unenumerated offense—say, escape from
prison? 6
6 While ACCA requires judges to make sometimes difficult evaluations
of the risks posed by different offenses, we are not persuaded by Justice
Scalia’s suggestion—which was not pressed by James or his amici—that
the residual provision is unconstitutionally vague. See post, at 230. The
statutory requirement that an unenumerated crime “otherwise involv[e]
conduct that presents a serious potential risk of physical injury to an
other” is not so indefinite as to prevent an ordinary person from under
standing what conduct it prohibits. See Kolender v. Lawson, 461 U. S.
352, 357 (1983). Similar formulations have been used in other federal and
state criminal statutes. See, e. g., 18 U. S. C. § 2332b(a)(1)(B) (defining
“terrorist act” as conduct that, among other things, “creates a substantial

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211 Cite as: 550 U. S. 192 (2007)
Opinion of the Court
In the end, Justice Scalia’s analysis of this case turns
on the same question as ours—i. e., the comparative risks
presented by burglary and attempted burglary. The risk of
physical injury in both cases occurs when there is a confron
tation between the criminal and another person, whether an
occupant of the structure, a law enforcement officer or secu
rity guard, or someone else. It is argued that when such an
encounter occurs during a consummated burglary (i. e., after
entry), the risk is greater than it is when the encounter oc
curs during an attempted burglary (i. e., before entry is ef
fected), and that may be true. But this argument fails to
come to grips with the fact that such encounters may occur
much more frequently during attempted burglaries because
it is precisely due to such encounters that many planned bur
glaries do not progress beyond the attempt stage. Justice
Scalia dismisses the danger involved when encounters occur
during attempted burglaries, stating that such encounters
are “likely to consist of nothing more than the occupant’s
yelling ‘Who’s there?’ from his window, and the burglar’s
running away.” Post, at 226. But there are many other
possible scenarios. An armed would-be burglar may be
spotted by a police officer, a private security guard, or a par
ticipant in a neighborhood watch program. Or a homeowner
angered by the sort of conduct recited in James’ presentence
report—throwing a hammer through a window—may give
chase, and a violent encounter may ensue. For these rea
risk of serious bodily injury to any other person”); Ariz. Rev. Stat. Ann.
§ 13–2508(A)(2) (West 2001) (offense of resisting arrest requires preventing
an officer from effectuating an arrest by “any . . . means creating a sub
stantial risk of causing physical injury to the peace officer or another”);
Cal. Health & Safety Code Ann. § 42400.3(b) (West 2006) (criminalizing air
pollution that “results in any unreasonable risk of great bodily injury to,
or death of, any person”); N. Y. Penal Law Ann. § 490.47 (West Supp. 2007)
(“[c]riminal use of a chemical weapon or biological weapon” requires
“a grave risk of death or serious physical injury to another person not a
participant in the crime”).

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212 JAMES v. UNITED STATES
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sons and the reasons discussed above, we are convinced that
the offense of attempted burglary, as defined by Florida law,
qualifies under ACCA’s residual clause.
IV
Although the question on which this Court granted certio
rari focused on the attempt prong of Florida’s attempted bur
glary law, James also argues that the scope of the State’s
underlying burglary statute itself precludes treating at
tempted burglary as a violent felony for ACCA purposes.
Specifically, he argues that Florida’s burglary statute differs
from “generic” burglary as defined in Taylor, supra, at 598,
because it defines a “ ‘[d]welling’ ” to include not only the
structure itself, but also the “curtilage thereof,” 7 Fla. Stat.
§ 810.011(2).
We agree that the inclusion of curtilage takes Florida’s
underlying offense of burglary outside the definition of
“generic burglary” set forth in Taylor, which requires an un
lawful entry into, or remaining in, “a building or other struc
ture.” 495 U. S., at 598 (emphasis added). But that conclu
sion is not dispositive, because the Government does not
argue that James’ conviction for attempted burglary consti
tutes “burglary” under § 924(e)(2)(B)(ii). Rather, it relies on
the residual provision of that clause, which—as the Court
has recognized—can cover conduct that is outside the strict
definition of, but nevertheless similar to, generic burglary.
Id., at 600, n. 9.
Is the risk posed by an attempted entry of the curtilage
comparable to that posed by the attempted entry of a struc
ture (which, as we concluded above, is sufficient to qualify
7 Burglary under Florida law differs from “generic” burglary in a second
respect: It extends not just to entries of structures, but also of “convey
ance[s].” Fla. Stat. § 810.02(1). But because James (in accordance with
what appears to be the general practice in Florida) was specifically
charged with and convicted of “attempted burglary of a dwelling,” we
need not examine this point further.

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under the residual provision)? We must again turn to state
law in order to answer this question.
The Florida Supreme Court has construed curtilage nar
rowly, requiring “some form of an enclosure in order for the
area surrounding a residence to be considered part of the
‘curtilage’ as referred to in the burglary statute.” State v.
Hamilton, 660 So. 2d 1038, 1044 (1995) (holding that a yard
surrounded by trees was not “curtilage”); see also United
States v. Matthews, 466 F. 3d 1271, 1274 (CA11 2006) (“Flor
ida case law construes curtilage narrowly, to include only an
enclosed area surrounding a structure”). Given this narrow
definition, we do not believe that the inclusion of curtilage
so mitigates the risk presented by attempted burglary as to
take the offense outside the scope of clause (ii)’s residual
provision.
A typical reason for enclosing the curtilage adjacent to a
structure is to keep out unwanted visitors—especially those
with criminal motives. And a burglar who illegally at
tempts to enter the enclosed area surrounding a dwelling
creates much the same risk of physical confrontation with a
property owner, law enforcement official, or other third
party as does one who attempts to enter the structure itself.
In light of Florida’s narrow definition of curtilage, attempted
burglary of the curtilage requires both physical proximity to
the structure and an overt act directed toward breaching the
enclosure. Such an attempt “presents a serious potential
risk that violence will ensue and someone will be injured.”
Id., at 1275 (holding that burglary of the curtilage is a violent
felony under ACCA’s residual provision).
V
Finally, James argues that construing attempted burglary
as a violent felony raises Sixth Amendment issues under Ap
prendi v. New Jersey, 530 U. S. 466 (2000), and its progeny
because it is based on “judicial fact finding” about the risk
presented by “the acts that underlie ‘most’ convictions for

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214 JAMES v. UNITED STATES
Scalia, J., dissenting
attempted burglary.” Brief for Petitioner 34, 35. This ar
gument is without merit.
In determining whether attempted burglary under Florida
law qualifies as a violent felony under § 924(e)(2)(B)(ii), the
Court is engaging in statutory interpretation, not judicial
factfinding. Indeed, by applying Taylor’s categorical ap
proach, we have avoided any inquiry into the underlying
facts of James’ particular offense, and have looked solely to
the elements of attempted burglary as defined by Florida
law. Such analysis raises no Sixth Amendment issue.8
* * *
For these reasons, the judgment of the Court of Appeals
for the Eleventh Circuit is affirmed.
It is so ordered.
Justice Scalia, with whom Justice Stevens and Jus
tice Ginsburg join, dissenting.
I disagree with the Court’s basic approach in this case, and
must therefore lay out my own.
I
As the Court acknowledges, ante, at 197, the only way
attempted burglary can qualify as a violent felony under
the Armed Career Criminal Act (ACCA) is by falling within
the “residual provision” of clause (ii)—that is, if it is a crime
that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U. S. C.
§ 924(e)(2)(B)(ii). This was the basis for the Eleventh Cir
cuit’s decision (“We . . . hold that an attempt to commit bur
8 To the extent that James contends that the simple fact of his prior
conviction was required to be found by a jury, his position is baseless.
James admitted the fact of his prior conviction in his guilty plea, and in
any case, we have held that prior convictions need not be treated as an
element of the offense for Sixth Amendment purposes. Almendarez-
Torres v. United States, 523 U. S. 224 (1998).

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Scalia, J., dissenting
glary . . . presents the potential risk of physical injury to
another sufficient to satisfy the ACCA’s definition of a ‘vio
lent felony,’ ” 430 F. 3d 1150, 1157 (2005)), and it is the center
of the parties’ dispute before this Court.
The problem with the Court’s approach to determining
which crimes fit within the residual provision is that it is
almost entirely ad hoc. This crime, the Court says, does
“involv[e] conduct that presents a serious potential risk of
physical injury to another.” That gets this case off our
docket, sure enough. But it utterly fails to do what this
Court is supposed to do: provide guidance concrete enough
to ensure that the ACCA residual provision will be applied
with an acceptable degree of consistency by the hundreds of
district judges who impose sentences every day. The one
guideline the Court does suggest is that the sentencer should
compare the unenumerated offense at issue with the “closest
analog” among the four offenses that are set forth (burglary,
arson, extortion, and crimes involving the use of explosives),
and should include the unenumerated offense within ACCA
if the risk it poses is “comparable.” Ante, at 203. The prin
cipal attraction of this test, I suspect, is that it makes it
relatively easy to decide the present case (though, as I shall
subsequently discuss, I think the Court reaches the wrong
conclusion as to whether attempted burglary poses a compa
rable risk). Assuming that “comparable” means “about the
same,” the Court’s test does provide some guidance where
the most closely analogous offense is clear (as here) and the
risk is comparable. But what if, as will very often be the
case, it is not at all obvious which of the four enumerated
offenses is the closest analog—or if (to tell the truth) none
of them is analogous at all? Is, for example, driving under
the influence of alcohol more analogous to burglary, arson,
extortion, or a crime involving use of explosives? And if an
analog is identified, what is to be done if the offense at issue
does not present a comparable risk? The Court declines to
say, but it seems inconceivable that it means the offense to

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216 JAMES v. UNITED STATES
Scalia, J., dissenting
be excluded from ACCA for that reason. For example, it
does not comport with any conceivable congressional intent
to disqualify an unenumerated crime that is most analogous
to arson and presents nowhere near the risk of injury posed
by arson, but presents a far greater risk of injury than bur
glary, which Congress has explicitly included. Thus, for
what is probably the vast majority of cases, today’s opinion
provides no guidance whatever, leaving the lower courts to
their own devices in deciding, crime-by-crime, which convic
tion “involves conduct that presents a serious potential risk
of physical injury to another.” It will take decades, and doz
ens of grants of certiorari, to allocate all the Nation’s crimes
to one or the other side of this entirely reasonable and en
tirely indeterminate line. Compare ante, at 204 (concluding
that attempted burglary poses sufficient risk), with Leocal v.
Ashcroft, 543 U. S. 1 (2004) (concluding that driving under
the influence of alcohol does not pose a “substantial risk that
physical force against the person or property of another may
be used,” 18 U. S. C. § 16(b)).
Imprecision and indeterminacy are particularly inappro
priate in the application of a criminal statute. Years of
prison hinge on the scope of ACCA’s residual provision, yet
its boundaries are ill defined. If we are not going to deny
effect to this statute as being impermissibly vague, see
Part III, infra, we have the responsibility to derive from the
text rules of application that will provide notice of what is
covered and prevent arbitrary or discriminatory sentencing.
See Kolender v. Lawson, 461 U. S. 352, 357 (1983). Offend
ers should be on notice that a particular course of conduct
will result in a mandatory minimum prison term of 15 years.
The Court prefers to keep them guessing.
II
The residual provision of clause (ii) of ACCA’s definition of
violent felony—the clause that sweeps within ACCA’s ambit
any crime that “otherwise involves conduct that presents a

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Scalia, J., dissenting
serious potential risk of physical injury to another”—is, to
put it mildly, not a model of clarity. I do not pretend to have
an all-encompassing solution that provides for crystal-clear
application of the statute in all contexts. But we can do
much better than today’s opinion with what Congress has
given us.
A
The Eleventh Circuit properly sought to resolve this
case by employing the “categorical approach” of looking only
to the statutory elements of attempted burglary. See 430
F. 3d, at 1154, 1156–1157. This “generally prohibits the
later court from delving into particular facts disclosed by the
record of conviction, thus leaving the court normally to ‘look
only to the fact of conviction and the statutory definition of
the prior offense.’ ” Shepard v. United States, 544 U. S. 13,
17 (2005) (quoting Taylor v. United States, 495 U. S. 575, 602
(1990)). As the Court does, ante, at 202, I would also begin
with this approach.
The Government would have us provide some certainty—
at least enough to decide the present case—by holding that
the attempt to commit a crime of violence should be treated
the same as the completed crime. It points out that various
federal laws, and many state laws, punish attempt with the
same sanction as the completed crime. See Brief for United
States 18–20. This would be persuasive if punishment were
meted out solely on the basis of the risk of physical injury
that a crime presents. It seems to me, however, that similar
punishment does not necessarily imply similar risk; it more
likely represents a judgment that the two crimes display a
similar degree of depravity deserving of punishment or need
ful of deterrence. A person guilty of attempted burglary
may not have placed anyone at physical risk, but he was just
as willing to do so as the successful burglar. It seems to me
impossible to say that equivalence of punishment suggests
equivalence of imposed risk. I therefore look elsewhere for
some clarification of the statutory text.

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218 JAMES v. UNITED STATES
Scalia, J., dissenting
First to invite analysis is the word Congress placed at the
forefront of the residual provision: “otherwise.” When used
as an adverb (as it is in § 924(e)(2)(B)(ii), modifying the verb
“involves”), “otherwise” is defined as “[i]n a different man
ner” or “in another way.” Webster’s New International
Dictionary 1729 (2d ed. 1954). Thus, the most natural read
ing of the statute is that committing one of the enumerated
crimes (burglary, arson, extortion, or crimes involving explo
sives) is one way to commit a crime “involv[ing] conduct that
presents a serious potential risk of physical injury to an
other”; and that other ways of committing a crime of that
character similarly constitute “violent felon[ies].” In other
words, the enumerated crimes are examples of what Con
gress had in mind under the residual provision, and the re
sidual provision should be interpreted with those examples
in mind. This commonsense principle of construction is
sometimes referred to as the canon of ejusdem generis:
“[W]hen a general word or phrase follows a list of specific
persons or things, the general word or phrase will be inter
preted to include only persons or things of the same type
as those listed.” Black’s Law Dictionary 535 (7th ed. 1999)
(Black’s); see, e. g., Washington State Dept. of Social and
Health Servs. v. Guardianship Estate of Keffeler, 537 U. S.
371, 384–385 (2003). In this case, the application of that
principle suggests that what the residual provision means by
the general phrase “conduct that presents a serious potential
risk of physical injury to another” is conduct that resembles,
insofar as the degree of such risk is concerned, the previously
enumerated crimes.1
1 The Court imprecisely identifies the common characteristic of the enu
merated offenses, and therefore the defining characteristic of the residual
provision, as crimes that “create significant risks of bodily injury or con
frontation that might result in bodily injury.” Ante, at 199 (emphasis
added). Of course, adding the word “confrontation” is a convenient way
of shoehorning attempted burglary into the ambit of the residual provi
sion, but it is an invention entirely divorced from the statutory text.

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In another context, I might conclude that any degree of
risk that is merely similar, even if slightly less, would qual
ify. Obviously, such an interpretation would leave a good
deal of ambiguity on the downside: How low on the risk scale
can one go before the risk becomes too dissimilar from the
enumerated crimes? Since the text sets forth no criterion,
courts might vary dramatically in their answer. Cf. Leocal,
543 U. S. 1 (reversing the Eleventh Circuit’s determination
that driving under the influence of alcohol qualifies as a
crime of violence under 18 U. S. C. § 16). Where it is reason
ably avoidable, such indeterminateness is unacceptable in the
context of criminal sanctions. The rule of lenity, grounded
in part on the need to give “ ‘fair warning’ ” of what is encom
passed by a criminal statute, United States v. Bass, 404 U. S.
336, 348 (1971) (quoting McBoyle v. United States, 283 U. S.
25, 27 (1931)), demands that we give this text the more nar
row reading of which it is susceptible. The requirement
that the degree of risk be similar to that for the enumerated
crimes means that it be no lesser than the risk posed by the
least dangerous of those enumerated crimes.
B
I would turn, then, to the next logical question: Which of
the four enumerated crimes—burglary, arson, extortion, or
crimes involving use of explosives—poses the least “serious
potential risk of physical injury to another”? The two that
involve use of fire or explosives cannot possibly qualify.
Thus, the question I must address is whether burglary or
extortion poses a lesser risk. To do so, I must first define
those crimes.
In Taylor, we defined “burglary” as used in the very pro
vision of ACCA at issue here. We first determined that
“ ‘burglary’ in § 924(e) must have some uniform definition
independent of the labels employed by the various States’
criminal codes.” 495 U. S., at 592. We considered but re
jected the common-law definition, finding that “the contem

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220 JAMES v. UNITED STATES
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porary understanding of ‘burglary’ has diverged a long way
from its common-law roots.” Id., at 593. Ultimately, we
concluded that “Congress meant by ‘burglary’ the generic
sense in which the term is now used in the criminal codes of
most States.” Id., at 598. To determine that sense, we
looked for guidance to 2 W. LaFave & A. Scott, Substantive
Criminal Law (1986), and the American Law Institute’s
Model Penal Code (1980). We defined “burglary” as “any
crime, regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into, or re
maining in, a building or structure, with intent to commit a
crime.” Taylor, supra, at 599.
In defining “extortion” for purposes of ACCA, I would fol
low the same approach. “At common law, extortion was a
property offense committed by a public official who took ‘any
money or thing of value’ that was not due to him under the
pretense that he was entitled to such property by virtue of
his office.” Scheidler v. National Organization for Women,
Inc., 537 U. S. 393, 402 (2003) (quoting 4 W. Blackstone, Com
mentaries on the Laws of England 141 (1769), and citing 3
R. Anderson, Wharton’s Criminal Law and Procedure § 1393,
pp. 790–791 (1957)); see also 3 W. LaFave, Substantive Crimi
nal Law § 20.4 (2d ed. 2003). As with burglary, however,
modern conceptions of extortion have gone well beyond the
common-law understanding. In the Hobbs Act, for exam
ple, Congress “explicitly ‘expanded the common-law defini
tion of extortion to include acts by private individuals.’ ”
Scheidler, supra, at 402 (quoting Evans v. United States, 504
U. S. 255, 261 (1992)). And whereas the Hobbs Act retained
the common-law requirement that something of value actu
ally be acquired by the extortionist, Scheidler, supra, at
404–405, the majority of state statutes require only “that the
defendant make a threat with intent thereby to acquire the
victim’s property,” 3 LaFave, Substantive Criminal Law

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221 Cite as: 550 U. S. 192 (2007)
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§ 20.4(a)(1), at 199 (emphasis added). Further, under most
state statutes, the category of qualifying threats has ex
panded dramatically, to include threats to: “kill the victim in
the future,” “cause economic harm,” “ ‘bring about or con
tinue a strike, boycott or other collective unofficial action,’ ”
“unlawfully detain,” “accuse the victim of a crime,” “expose
some disgraceful defect or secret of the victim which, when
known, would subject him to public ridicule or disgrace,” and
“impair one’s credit or business repute.” Id., § 20.4(a)(4),
at 200, 201.
The Model Penal Code’s definition of “Theft by Extortion”
reflects this expansive modern notion of the crime:
“A person is guilty of theft [by extortion] if he pur
posely obtains property of another by threatening to:
“(1) inflict bodily injury on anyone or commit any
other criminal offense; or
“(2) accuse anyone of a criminal offense; or
“(3) expose any secret tending to subject any person
to hatred, contempt or ridicule, or to impair his credit
or business repute; or
“(4) take or withhold action as an official, or cause an
official to take or withhold action; or
“(5) bring about or continue a strike, boycott or other
collective unofficial action, if the property is not de
manded or received for the benefit of the group in whose
interest the actor purports to act; or
“(6) testify or provide information or withhold testi
mony or information with respect to another’s legal
claim or defense; or
“(7) inflict any other harm which would not benefit
the actor.” § 223.4, at 201.
Other federal statutes, including the Hobbs Act, 18 U. S. C.
§ 1951, the Travel Act, § 1952 (2000 ed. and Supp. IV), and
the Racketeer Influenced and Corrupt Organizations Act

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222 JAMES v. UNITED STATES
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(RICO), § 1961 et seq., use a similarly broad conception of
extortion. See United States v. Nardello, 393 U. S. 286
(1969) (Travel Act); Scheidler, supra (Hobbs Act and RICO).2
The word “extortion” in ACCA’s definition of “violent fel
ony” cannot, however, incorporate the full panoply of threats
that would qualify under the Model Penal Code, many of
which are inherently nonviolent. I arrive at this conclusion
for two reasons: First, another canon of statutory construc
tion, noscitur a sociis, which counsels that “the meaning of
an unclear word or phrase should be determined by the
words immediately surrounding it.” Black’s 1084; see Kef
feler, 537 U. S., at 384–385. Of course noscitur a sociis is
just an erudite (or some would say antiquated) way of saying
what common sense tells us to be true: “[A] word is known
by the company it keeps,” Jarecki v. G. D. Searle & Co., 367
U. S. 303, 307 (1961)—that is to say, which of various possible
meanings a word should be given must be determined in a
manner that makes it “fit” with the words with which it is
closely associated. The words immediately surrounding
“extortion” in § 924(e)(2)(B)(ii) are “burglary,” “arson,” and
crimes “involv[ing] use of explosives.” The Model Penal
Code’s sweeping definition of extortion would sit uncomfort
ably indeed amidst this list of crimes which, as the “other
wise” residual provision makes plain, are characterized by
their potential for violence and their risk of physical harm to
others. ACCA’s usage of “extortion” differs from the con
2 The Hobbs Act contains its own definition of extortion: “the obtaining
of property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of official
right.” 18 U. S. C. § 1951(b)(2). In Nardello and Scheidler—where we
were required to define generic extortion for purposes of the Travel Act
and RICO, both of which leave the term undefined—we defined it as “ob
taining something of value from another with his consent induced by the
wrongful use of force, fear, or threats.” Scheidler, 537 U. S., at 409 (inter
nal quotation marks omitted); see also Nardello, 393 U. S., at 290, 296
(agreeing with the Government that extortion means “obtaining some
thing of value from another with his consent induced by the wrongful use
of force, fear, or threats”).

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223 Cite as: 550 U. S. 192 (2007)
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text in which the word appears in the Travel Act, where it
is one of a list of crimes “often used by organized crime to
collect . . . revenue,” Nardello, supra, at 291, n. 8, including
bribery. And it differs from the context in which “extor
tion” appears in RICO, where it is part of a laundry list of
nearly every federal crime under the sun. See 18 U. S. C.
§ 1961(1) (2000 ed., Supp. IV).3
What is suggested by the canon is reinforced by the fact
that both the original common-law notion of extortion, and
the full expanse of the modern definition, include crimes so
inherently unlikely to cause physical harm that it would set
the bar of the residual provision at a level that could embrace
virtually any offense—making the limitation to “serious po
tential risk of physical injury to another” utterly incompre
hensible.4 See Part III, infra. I therefore assume that ex
3 Two Courts of Appeals have also demonstrated the conundrum posed
by Congress’s inclusion of extortion in ACCA’s list of enumerated violent
felonies. See United States v. DeLuca, 17 F. 3d 6, 8 (CA1 1994) (“The
linchpin of [appellant’s] theory is the suggestion that all extortions are not
equal. . . . [W]e give appellant high marks for ingenuity”); United States
v. Anderson, 989 F. 2d 310, 312 (CA9 1993) (Kozinski, J.) (“[D]etermin[ing]
whether a crime [is a violent felony] . . . is not, with regard to ‘extortion,’
an easy matter. In Taylor [v. United States, 495 U. S. 575 (1990)], the
Court focused on the interstate consensus on the definition of ‘burglary,’
. . . but there’s no such consensus on extortion. . . . It’s impossible to know
which definition the legislators who voted for [ACCA] had in mind. Quite
likely most of them weren’t thinking of any particular definition at all”).
These Courts ultimately decided to use different definitions of extortion.
See DeLuca, supra, at 9 (deciding on the Model Penal Code approach);
Anderson, supra, at 313 (deciding on the Hobbs Act definition).
4 The Court explains, for example, that modern extortion could include
“an anonymous blackmailer threaten[ing] to release embarrassing personal
information about the victim unless he is mailed regular payments,” a
crime involving a “risk of physical injury to another approach[ing] zero.”
Ante, at 208. Thus, were the complete modern notion of extortion
adopted, it is clear that extortion would be the least risky of the four
enumerated crimes. That would mean that any crime posing at least as
much risk of physical injury as extortion would qualify under the ACCA
residual provision. But virtually any crime could qualify, so that courts
would have the power to subject almost any repeat offender to ACCA’s

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224 JAMES v. UNITED STATES
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tortion under ACCA is: the obtaining of something of value
from another, with his consent, induced by the wrongful use
or threatened use of force against the person or property of
another. Cf. Leocal, 543 U. S., at 13 (discussing the relation
ship between the “use of force against the person or property
of another” and “crime[s] of violence under 18 U. S. C. § 16”).
One final consideration is worthy of mention. I must
make sure that my restricted definition of generic extortion
does not render the inclusion of extortion in § 924(e)(2)(B)(ii)
superfluous in light of § 924(e)(2)(B)(i). “It is our duty to
give effect, if possible, to every clause and word of a statute.”
Duncan v. Walker, 533 U. S. 167, 174 (2001) (internal quota
tion marks omitted). Clause (i) already includes in ACCA’s
definition of “violent felony” any crime that “has as an ele
ment the use, attempted use, or threatened use of physical
force against the person of another.” My narrow definition
of extortion passes the surplusage test only if it includes
crimes that would not be covered by this provision. That is
not a problem, since my definition includes the use or threat
ened use of force against property, whereas clause (i) is lim
ited to force against the person. Thus, the obtaining of
someone else’s money by threatening to wreck his place of
business would fit within clause (ii) but not within clause (i).
Having defined burglary and extortion, I return to the
question that launched this investigation in the first place:
Which of the two poses the least “serious potential risk of
physical injury to another”? Recall the definitions: bur
glary is the “unlawful or unprivileged entry into, or remain
ing in, a building or structure, with intent to commit a
crime”; extortion is “the obtaining of something of value
15-year mandatory minimum. Indeed, this seems to be the reality of
what is taking place in the lower courts. See, e. g., United States v. John
son, 417 F. 3d 990 (CA8 2005) (operating a dump truck without consent of
the owner is a violent felony under ACCA); United States v. Springfield,
196 F. 3d 1180 (CA10 1999) (“walkaway” escape from prison honor camp
is a violent felony under ACCA).

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225 Cite as: 550 U. S. 192 (2007)
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from another, with his consent, induced by the wrongful use
or threatened use of force against the person or property of
another.” Every victim of extortion is the object of a
threat, to his person or his property; if he ignores that
threat, or resists it by seeking to protect his property, he
may be harmed. Burglary, on the other hand, involves only
the possibility that a confrontation will take place while the
crime is underway; the risk of physical harm can become a
reality only if the property owner happens to be present, a
situation which the burglar ordinarily seeks to avoid. The
extortionist, moreover, has already expressed his willing
ness to commit a violent act; the burglar may be prepared
to flee at the first sign of human presence. I think it obvious
that burglary is less inherently risky than extortion, and
thus the least inherently risky of the four crimes enumerated
in § 924(e)(2)(B)(ii).
C
Having concluded in Part II–A that a crime may qualify
under ACCA’s violent felony residual provision only if it
poses at least as much risk of physical injury to another as
the least risky of the enumerated crimes; and in Part II–B
that the least risky of the enumerated crimes is burglary; I
am finally able to turn to the ultimate question posed by
this case: Does attempted burglary categorically qualify as a
violent felony under ACCA’s residual provision? Or as my
analysis has recast that question, does attempted burglary
categorically involve conduct that poses at least as much risk
of physical injury to another as completed burglary? Con
trary to what the Court says, ante, at 203–207, the answer
must be no.
In Taylor, we discussed the risks posed by the conduct
involved in a completed burglary. We found it significant
that a burglary involves “invasion of victims’ homes or work
places,” 495 U. S., at 581 (internal quotation marks and
brackets omitted), and we dwelled on such an invasion’s “in
herent potential for harm to persons,” id., at 588. In com

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226 JAMES v. UNITED STATES
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paring attempted burglary to completed burglary, the Court
focuses almost exclusively on “the possibility of a face-to-face
confrontation between the burglar and a third party.” Ante,
at 203. But it ignores numerous other factors that make a
completed burglary far more dangerous than a failed one:
the closer proximity between burglar and victim where a
confrontation takes place inside the confined space of the vic
tim’s home; the greater likelihood of the victim’s initiating
violence inside his home to protect his family and property;
the greater likelihood that any confrontation inside the home
will be between the burglar and the occupant of the home,
rather than the police. The so-called “confrontation” the
Court envisions between a would-be burglar and a third
party while the burglar is still outside the home is likely to
consist of nothing more than the occupant’s yelling “Who’s
there?” from his window, and the burglar’s running away.
It is simply not the case, as the Court apparently believes,
that would-be home entries are often reduced to attempted
home entries by physical confrontation between home
owner and criminal while the latter is still outside the house.
(One must envision a householder throwing open his front
door, shotgun in hand, just as the would-be burglar is trying
to pick the lock.)
As we have previously stated, it is “[t]he fact that an of
fender enters a building to commit a crime [that] creates the
possibility of a violent confrontation between the offender
and an occupant, caretaker, or some other person who comes
to investigate.” Taylor, supra, at 588 (emphasis added); see
also Leocal, supra, at 10 (“[B]urglary, by its nature, in
volves a substantial risk that the burglar will use force
against a victim in completing the crime” (emphasis added)).
By definition, a perpetrator who has been convicted only of
attempted burglary has failed to make it inside the home or
workplace. (Indeed, a criminal convicted only of attempted
burglary almost certainly injured no one; otherwise, he

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227 Cite as: 550 U. S. 192 (2007)
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would have been convicted of something far more serious,
such as assault or murder.) Thus, the full extent of the risk
that burglary poses—the entry into the home that makes
burglary such a threat to the physical safety of its victim—
is necessarily absent in attempted burglary, however “at
tempt” is defined.
Because attempted burglary categorically poses a less
“serious potential risk of physical injury to another” than
burglary, the least risky of ACCA’s enumerated crimes, I
would hold that it cannot be a predicate “violent felony”
for purposes of ACCA’s mandatory minimum sentencing
enhancement, § 924(e) (2000 ed. and Supp. IV), regardless
of how close a State’s attempt statute requires the perpetra
tor come to completing the underlying offense.5
D
The Court observes, with undoubted accuracy, that my ap
proach is not perfect. It leaves it to courts to decide,
“[w]ithout hard statistics” to guide them, ante, at 210, the
degree of risk of physical injury posed by various crimes.
But this is an imponderable that cannot be avoided when
dealing with a statute that turns upon “a serious potential
risk of physical injury to another.” It inheres in the Court’s
puny solution as well (how does the Court know that at
tempted burglary poses the same risk as burglary?). What
this dissent must establish is not that my solution is perfect,
but that it is substantially better than what the Court pro
poses. And there is little doubt of that. For in addition to
5 There is no need to apply the modified categorical approach in this
case. Under that approach, the most the Government could achieve
would be to narrow the type of Florida burglary underlying James’s con
viction so that it falls within generic ACCA burglary. As I discussed
above, however, even the attempt to commit a generic ACCA burglary
could not qualify as a violent felony under ACCA. Thus, there is no need
to remand; the Eleventh Circuit should simply be reversed.

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228 JAMES v. UNITED STATES
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leaving up in the air for judicial determination how much
risk of physical injury each crime presents, the Court’s unin
formative opinion leaves open, to be guessed at by lower
courts and by those subjected to this law: (1) whether the
degree of risk covered by the residual provision is limited by
the degrees of risk presented by the enumerated crimes; 6
(2) if so, whether extortion is to be given its broadest mean
ing, which would embrace crimes with virtually no risk of
physical injury; and most importantly (3) where in the world
to set the minimum risk of physical injury that will qualify.
This indeed leaves the lower courts and those subject to this
law to sail upon a virtual sea of doubt. The only thing the
Court decides (and that, in my view, erroneously) is that
attempted burglary poses the same risk of physical injury
as burglary, and hence is covered without the need to ad
dress these other bothersome questions (how wonderfully
convenient!).
It is only the Court’s decision-averse solution that enables
it to accuse me of “unnecessarily decid[ing]” the meaning
of extortion, ante, at 209. The Court accurately, but quite
irrelevantly, asserts the following:
“[E]ven if an unenumerated offense could not qualify
without presenting at least as much risk as the least
risky of the enumerated offenses, it would not be neces
sary to identify the least risky of those offenses in order
to decide this case. Rather, it would be sufficient to
establish simply that the unenumerated offense pre
6 The Court plays with this question, but does not resolve it, merely
stating that there is a “possibility that an offense may present ‘a serious
risk of physical injury to another’ without presenting as great a risk as
any of the enumerated offenses.” Ante, at 209. Of course, in light of its
ultimate conclusion regarding attempted burglary, the Court could not
resolve this question without being guilty of what it accuses me of: “unnec
essarily decid[ing] an important question,” ibid.; any pronouncement on
this point would be pure dictum.

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sented at least as much risk as one of the enumerated
offenses.” Ante, at 209–210 (emphasis added).
That is true enough, and I would be properly criticized for
reaching an unnecessary question if, like the Court, I found
attempted burglary to be as risky as burglary. Since I do
not, however, it is unavoidable that I determine the meaning
of extortion, in order to decide whether attempted burglary
is less risky than that. The Court’s criticism amounts to
nothing more than a procedural quibble: Instead of deciding,
as I have, (1) that arson and the use of explosives are the
most risky of the enumerated crimes; (2) that as between
burglary and extortion, burglary is the less risky (a deter
mination requiring me to decide the meaning of extortion);
and finally (3) that attempted burglary is less risky than
burglary, I should have decided (1) that attempted burglary
is less risky than arson, the use of explosives, and burglary;
and only then (2) that attempted burglary is less risky than
extortion (a determination requiring me to decide the mean
ing of extortion). Perhaps so, but it is surely a distinction
without a real-world difference. Under either approach,
determining the meaning of extortion is unquestionably
necessary.
III
Congress passed ACCA to enhance punishment for gun
wielding offenders who have, inter alia, previously com
mitted crimes that pose a “serious potential risk of physical
injury to another.” Congress provided examples of crimes
that meet this eminently reasonable but entirely abstract
condition. Unfortunately, however, the four examples have
little in common, most especially with respect to the level of
risk of physical injury they pose. Such shoddy draftsman
ship puts courts to a difficult choice: They can (1) apply the
ACCA enhancement to virtually all predicate offenses, see
n. 4, supra; (2) apply it case by case in its pristine abstrac

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230 JAMES v. UNITED STATES
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tion, finding it applicable whenever the particular sentencing
judge (or the particular reviewing panel) believes there is a
“serious potential risk of physical injury to another” (what
ever that means); (3) try to figure out a coherent way of
interpreting the statute so that it applies in a relatively pre
dictable and administrable fashion to a smaller subset of
crimes; or (4) recognize the statute for the drafting failure it
is and hold it void for vagueness, see Kolender, 461 U. S., at
357; Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939).
I would choose either the third option (which I have tried
to implement) or the fourth, since I believe the first two to
be impermissible. If Congress wanted the first—subjecting
all repeat offenders to a 15-year mandatory minimum prison
term—it could very easily have crafted a statute which said
that. ACCA, with its tedious definition of “violent felony,”
was obviously not meant to have such an effect. The second
option (the one chosen by the Court today)—essentially leav
ing it to the courts to apply the vague language in a manner
that is ex ante (if not at the end of the day) highly unpredict
able—violates, in my view, the constitutional prohibition
against vague criminal laws.7 Congress has simply abdi
cated its responsibility when it passes a criminal statute
insusceptible of an interpretation that enables principled,
predictable application; and this Court has abdicated its
responsibility when it allows that. Today’s opinion permits
7 The Court contends that the provision at issue here, even when left
entirely unexplained (as today’s opinion skillfully accomplishes) cannot be
unconstitutionally vague, because “[s]imilar formulations have been used
in other federal and state criminal statutes.” Ante, at 210, n. 6. None
of the provisions the Court cites, however, is similar in the crucial relevant
respect: None prefaces its judicially-to-be-determined requirement of risk
of physical injury with the word “otherwise,” preceded by four confusing
examples that have little in common with respect to the supposedly defin
ing characteristic. The phrase “shades of red,” standing alone, does not
generate confusion or unpredictability; but the phrase “fire-engine red,
light pink, maroon, navy blue, or colors that otherwise involve shades of
red” assuredly does so.

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an unintelligible criminal statute to survive uncorrected, un
guided, and unexplained. I respectfully dissent.
Justice Thomas, dissenting.
For the reasons set forth in my opinion concurring in part
and concurring in the judgment in Shepard v. United States,
544 U. S. 13, 27 (2005), I believe that “[t]he constitutional
infirmity of § 924(e)(1) as applied to [James] makes today’s
decision an unnecessary exercise.” Apprendi v. New Jersey,
530 U. S. 466 (2000), and its progeny prohibit judges from
“mak[ing] a finding that raises [a defendant’s] sentence be
yond the sentence that could have lawfully been imposed by
reference to facts found by the jury or admitted by the de
fendant.” United States v. Booker, 543 U. S. 220, 317–318
(2005) (Thomas, J., dissenting in part). Yet that is precisely
what the Armed Career Criminal Act, 18 U. S. C. § 924(e)
(2000 ed. and Supp. IV), permits in this case.
Petitioner Alphonso James pleaded guilty to being a felon
in possession of a firearm, in violation of § 922(g)(1) (2000
ed.), which exposed him to a maximum sentence of 10 years
under § 924(a)(2). Section 924(e)(1) (2000 ed., Supp. IV),
however, mandated a minimum 15-year sentence if James
had three prior convictions for “a violent felony or a serious
drug offense.” James admitted he had been convicted of
three prior felonies, but he argued that one of those felon
ies—his conviction for attempted burglary of a dwelling, in
violation of Fla. Stat. §§ 810.02 and 777.04 (2006)—was not a
“violent felony” for purposes of 18 U. S. C. § 924(e)(1) (2000
ed., Supp. IV). The District Court resolved this disputed
fact in favor of the Government and increased James’ sen
tence accordingly. Relying on the scheme we initially cre
ated in Taylor v. United States, 495 U. S. 575 (1990), the
Court of Appeals affirmed.
Section 924(e)(1), in conjunction with Taylor, Shepard, and
now today’s decision, “explain[s] to lower courts how to con
duct factfinding that is, according to the logic of this Court’s

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232 JAMES v. UNITED STATES
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intervening precedents, unconstitutional in this very case.”
Shepard, supra, at 27 (Thomas, J., concurring in part and
concurring in judgment). For that reason, I respectfully
dissent.