BEGAY v. UNITED STATES

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137 OCTOBER TERM, 2007
Syllabus
BEGAY v. UNITED STATES
certiorari to the united states court of appeals for
the tenth circuit
No. 06–11543. Argued January 15, 2008—Decided April 16, 2008
The Armed Career Criminal Act (Act) imposes a special mandatory 15
year prison term upon a felon who unlawfully possesses a firearm and
who has three or more prior convictions for committing certain drug
crimes or “a violent felony.” 18 U. S. C. § 924(e)(1). The Act defines
“violent felony” as, inter alia, a crime punishable by more than one
year’s imprisonment that “is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious po
tential risk of physical injury to another.” § 924(e)(2)(B)(ii) (hereinafter
clause (ii)). After petitioner Begay pleaded guilty to felony possession
of a firearm, his presentence report revealed he had 12 New Mexico
convictions for driving under the influence of alcohol (DUI), which state
law makes a felony (punishable by a prison term of more than one year)
the fourth (or subsequent) time an individual commits it. Based on
these convictions, the sentencing judge concluded that Begay had three
or more “violent felony” convictions and, therefore, sentenced him to an
enhanced 15-year sentence. The Tenth Circuit rejected Begay’s claim
that DUI is not a “violent felony” under the Act.
Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s
clause (ii) “violent felony” definition. Pp. 141–148.
(a) Whether a crime is a violent felony is determined by how the law
defines it and not how an individual offender might have committed it
on a particular occasion. Pp. 141–142.
(b) Even assuming that DUI involves conduct that “presents a serious
potential risk of physical injury to another” under clause (ii), the crime
falls outside the clause’s scope because it is simply too unlike clause (ii)’s
example crimes to indicate that Congress intended that provision to
cover it. Pp. 142–148.
(i) Clause (ii)’s listed examples—burglary, arson, extortion, and
crimes involving the use of explosives—should be read as limiting the
crimes the clause covers to those that are roughly similar, in kind as
well as in degree of risk posed, to the examples themselves. Their
presence in the statute indicates that Congress meant for the statute to
cover only similar crimes, rather than every crime that “presents a
serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii).

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Syllabus
If Congress meant the statute to be all encompassing, it would not have
needed to include the examples at all. Moreover, if clause (ii) were
meant to include all risky crimes, Congress likely would not have in
cluded clause (i), which includes crimes that have “as an element the use,
attempted use, or threatened use of physical force against the person of
another.” And had Congress included the examples solely for quantita
tive purposes, demonstrating no more than the degree of risk of physical
injury sufficient to bring a crime within the statute’s scope, it would
likely have chosen examples that better illustrated the degree of risk it
had in mind rather than these that are far from clear in respect to the
degree of risk each poses. The Government’s argument that the word
“otherwise” just after the examples is sufficient to demonstrate that
they do not limit the clause’s scope is rejected because “otherwise” can
refer to a crime that is, e. g., similar to the examples in respect to the
degree of risk it produces, but different in respect to the way or manner
in which it produces that risk. Pp. 142–144.
(ii) DUI differs from the example crimes in at least one important
respect: The examples typically involve purposeful, violent, and aggres
sive conduct, whereas DUI statutes typically do not. When viewed in
terms of the Act’s purposes, this distinction matters considerably. The
Act looks to past crimes to determine which offenders create a special
danger by possessing a gun. In this respect, a history of crimes involv
ing purposeful, violent, and aggressive conduct, which shows an in
creased likelihood that the offender is the kind of person who might
deliberately point a gun and pull the trigger, is different from a history
of DUI, which does not involve the deliberate kind of behavior associ
ated with violent criminal use of firearms. Pp. 144–148.
470 F. 3d 964, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, and Ginsburg, JJ., joined. Scalia, J., filed an
opinion concurring in the judgment, post, p. 148. Alito, J., filed a dissent
ing opinion, in which Souter and Thomas, JJ., joined, post, p. 155.
Margaret A. Katze argued the cause for petitioner. With
her on the briefs were Stephen P. McCue and Charles
McCormack.
Leondra R. Kruger argued the cause for the United
States. With her on the brief were Solicitor General Clem

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Opinion of the Court
ent, Assistant Attorney General Fisher, Deputy Solicitor
General Dreeben, and Richard A. Friedman.*
Justice Breyer delivered the opinion of the Court.
The Armed Career Criminal Act imposes a special man
datory 15-year prison term upon felons who unlawfully pos
sess a firearm and who also have three or more previous
convictions for committing certain drug crimes or “violent
felon[ies].” 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). The
question in this case is whether driving under the influence
of alcohol is a “violent felony” as the Act defines it. We
conclude that it is not.
I
A
Federal law prohibits a previously convicted felon from
possessing a firearm. § 922(g)(1) (2000 ed.). A related pro
vision provides for a prison term of up to 10 years for an
ordinary offender. § 924(a)(2). The Armed Career Crimi
nal Act imposes a more stringent 15-year mandatory mini
mum sentence on an offender who has three prior convictions
“for a violent felony or a serious drug offense.” § 924(e)(1)
(2000 ed., Supp. V).
The Act defines a “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
*Briefs of amici curiae urging reversal were filed for Families Against
Mandatory Minimums Foundation by Mary Price and Scott L. Winkel
man; and for the National Association of Federal Defenders by Jeffrey
T. Green, Ileana M. Ciobanu, Matthew J. Warren, Robert N. Hochman,
Carlos A. Williams, Frances H. Pratt, Amy Baron-Evans, and William
Maynard.
Barbara E. Bergman and Peter Goldberger filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae.

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“(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) (2000 ed.).
We here consider whether driving under the influence of al
cohol (DUI), as set forth in New Mexico’s criminal statutes,
falls within the scope of the second clause.
B
The relevant background circumstances include the follow
ing: In September 2004, New Mexico police officers received
a report that Larry Begay, the petitioner here, had threat
ened his sister and aunt with a rifle. The police arrested
him. Begay subsequently conceded he was a felon and
pleaded guilty to a federal charge of unlawful possession of
a firearm in violation of § 922(g)(1). Begay’s presentence re
port said that he had been convicted a dozen times for DUI,
which under New Mexico’s law becomes a felony (punishable
by a prison term of more than one year) the fourth (or subse
quent) time an individual commits it. See N. M. Stat. Ann.
§§ 66–8–102(G) to (J) (Supp. 2007). The sentencing judge
consequently found that Begay had at least three prior con
victions for a crime “punishable by imprisonment for a term
exceeding one year.” 377 F. Supp. 2d 1141, 1143 (NM 2005).
The judge also concluded that Begay’s “three felony DUI
convictions involve conduct that presents a serious potential
risk of physical injury to another.” Id., at 1145. The judge
consequently concluded that Begay had three or more prior
convictions for a “violent felony” and should receive a sen
tence that reflected a mandatory minimum prison term of 15
years. Ibid.
Begay, claiming that DUI is not a “violent felony” within
the terms of the statute, appealed. The Court of Appeals
panel by a vote of 2 to 1 rejected that claim. 470 F. 3d 964
(CA10 2006). Begay sought certiorari, and we agreed to de
cide the question.

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II
A
New Mexico’s DUI statute makes it a crime (and a felony
after three earlier convictions) to “drive a vehicle within
[the] state” if the driver “is under the influence of intoxicat
ing liquor” (or has an alcohol concentration of .08 or more in
his blood or breath within three hours of having driven the
vehicle resulting from “alcohol consumed before or while
driving the vehicle”). §§ 66–8–102(A), (C). In determining
whether this crime is a violent felony, we consider the of
fense generically, that is to say, we examine it in terms of
how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular
occasion. See Taylor v. United States, 495 U. S. 575, 602
(1990) (adopting this “categorical approach”); see also James
v. United States, 550 U. S. 192, 208–209 (2007) (attempted
burglary is a violent felony even if, on some occasions, it can
be committed in a way that poses no serious risk of physi
cal harm).
We also take as a given that DUI does not fall within the
scope of the Act’s clause (i) “violent felony” definition.
DUI, as New Mexico defines it, nowhere “has as an 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).
Finally, we assume that the lower courts were right in
concluding that DUI involves conduct that “presents a
serious potential risk of physical injury to another. ”
§ 924(e)(2)(B)(ii). Drunk driving is an extremely dangerous
crime. In the United States in 2006, alcohol-related motor
vehicle crashes claimed the lives of more than 17,000 individ
uals and harmed untold amounts of property. National
Highway Traffic Safety Admin., Traffic Safety Facts, 2006
Traffic Safety Annual Assessment—Alcohol-Related Fatali
ties 1 (No. 810821, Aug. 2007), http://www-nrd.nhtsa.dot.gov/
Pubs/810821.PDF (as visited Apr. 11, 2008, and available in

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Clerk of Court’s case file). Even so, we find that DUI falls
outside the scope of clause (ii). It is simply too unlike the
provision’s listed examples for us to believe that Congress
intended the provision to cover it.
B
1
In our view, the provision’s listed examples—burglary,
arson, extortion, or crimes involving the use of explosives—
illustrate the kinds of crimes that fall within the statute’s
scope. Their presence indicates that the statute covers only
similar crimes, rather than every crime that “presents
a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). If Congress meant the latter, i. e., if it
meant the statute to be all encompassing, it is hard to see
why it would have needed to include the examples at all.
Without them, clause (ii) would cover all crimes that present
a “serious potential risk of physical injury.” Ibid. Addi
tionally, if Congress meant clause (ii) to include all risky
crimes, why would it have included clause (i)? A crime
which has as an element the “use, attempted use, or threat
ened use of physical force” against the person (as clause
(i) specifies) is likely to create “a serious potential risk of
physical injury” and would seem to fall within the scope of
clause (ii).
Of course, Congress might have included the examples
solely for quantitative purposes. Congress might have in
tended them to demonstrate no more than the degree of risk
sufficient to bring a crime within the statute’s scope. But
were that the case, Congress would have likely chosen exam
ples that better illustrated the “degree of risk” it had in
mind. Our recent case, James v. United States—where we
considered only matters of degree, i. e., whether the amount
of risk posed by attempted burglary was comparable to the
amount of risk posed by the example crime of burglary—
illustrates the difficulty of interpreting the examples in this

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respect. Compare 550 U. S., at 203–207, with id., at 215,
218–219, 229 (Scalia, J., dissenting). Indeed, the examples
are so far from clear in respect to the degree of risk each
poses that it is difficult to accept clarification in respect to
degree of risk as Congress’ only reason for including them.
See id., at 229 (“Congress provided examples [that] . . . have
little in common, most especially with respect to the level of
risk of physical injury that they pose”).
These considerations taken together convince us that, “ ‘to
give effect . . . to every clause and word’ ” of this statute, we
should read the examples as limiting the crimes that clause
(ii) covers to crimes that are roughly similar, in kind as well
as in degree of risk posed, to the examples themselves.
Duncan v. Walker, 533 U. S. 167, 174 (2001) (quoting United
States v. Menasche, 348 U. S. 528, 538–539 (1955); some inter
nal quotation marks omitted); see also Leocal v. Ashcroft,
543 U. S. 1, 12 (2004) (describing the need to interpret a stat
ute in a way that gives meaning to each word).
The concurrence complains that our interpretive approach
is insufficiently specific. See post, at 150–151 (Scalia, J.,
concurring in judgment). But the concurrence’s own ap
proach demands a crime-by-crime analysis, uses a standard
of measurement (comparative degree of risk) that even the
concurrence admits is often “unclear,” post, at 151, requires
the concurrence to turn here to the still less clear “rule of
lenity,” post, at 153, and, as we explain, is less likely to reflect
Congress’ intent. See, e. g., post, at 153–154 (recognizing in
ability to measure quantitative seriousness of risks associ
ated with DUI).
The statute’s history offers further support for our conclu
sion that the examples in clause (ii) limit the scope of the
clause to crimes that are similar to the examples themselves.
Prior to the enactment of the current language, the Act
applied its enhanced sentence to offenders with “three previ
ous convictions for robbery or burglary.” Taylor, supra, at
581 (internal quotation marks omitted). Congress sought to

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expand that definition to include both crimes against the per
son (clause (i)) and certain physically risky crimes against
property (clause (ii)). See H. R. Rep. No. 99–849, p. 3 (1986)
(hereinafter H. R. Rep.). When doing so, Congress rejected
a broad proposal that would have covered every offense that
involved a substantial risk of the use of “ ‘physical force
against the person or property of another.’ ” Taylor, 495
U. S., at 583 (quoting S. 2312, 99th Cong., 2d Sess. (1986);
H. R. 4639, 99th Cong., 2d Sess. (1986)). Instead, it added
the present examples. And in the relevant House Report, it
described clause (ii) as including “State and Federal felonies
against property such as burglary, arson, extortion, use of
explosives and similar crimes as predicate offenses where
the conduct involved presents a serious risk of injury to a
person.” H. R. Rep., at 5 (emphasis added).
Of course, the statute places the word “otherwise,” just
after the examples, so that the provision covers a felony that
is one of the example crimes “or otherwise involves conduct
that presents a serious potential risk of physical injury.”
§ 924(e)(2)(B)(ii) (emphasis added). But we cannot agree
with the Government that the word “otherwise” is sufficient
to demonstrate that the examples do not limit the scope of
the clause. That is because the word “otherwise” can (we
do not say must, cf. post, at 151 (Scalia, J., concurring in
judgment)) refer to a crime that is similar to the listed exam
ples in some respects but different in others—similar, say, in
respect to the degree of risk it produces, but different in
respect to the “way or manner” in which it produces that
risk. Webster’s Third New International Dictionary 1598
(1961) (defining “otherwise” to mean “in a different way or
manner”).
2
In our view, DUI differs from the example crimes—bur
glary, arson, extortion, and crimes involving the use of explo
sives—in at least one pertinent, and important, respect.
The listed crimes all typically involve purposeful, “violent,”

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and “aggressive” conduct. 470 F. 3d, at 980 (McConnell, J.,
dissenting in part); see, e. g., Taylor, supra, at 598 (“bur
glary” is an unlawful or unprivileged entry into a building or
other structure with “intent to commit a crime”); ALI Model
Penal Code § 220.1(1) (1985) (“arson” is causing a fire or ex
plosion with “the purpose of,” e. g., “destroying a building . . .
of another” or “damaging any property . . . to collect insur
ance”); id., § 223.4 (extortion is “purposely” obtaining prop
erty of another through threat of, e. g., inflicting “bodily in
jury”); Leocal, supra, at 9 (the word “ ‘use’ . . . most naturally
suggests a higher degree of intent than negligent or merely
accidental conduct” which fact helps bring it outside the
scope of the statutory term “crime of violence”). That con
duct is such that it makes more likely that an offender, later
possessing a gun, will use that gun deliberately to harm a
victim. Crimes committed in such a purposeful, violent, and
aggressive manner are “potentially more dangerous when
firearms are involved.” 470 F. 3d, at 980 (McConnell, J., dis
senting in part). And such crimes are “characteristic of the
armed career criminal, the eponym of the statute.” Ibid.
By way of contrast, statutes that forbid driving under the
influence, such as the statute before us, typically do not insist
on purposeful, violent, and aggressive conduct; rather, they
are, or are most nearly comparable to, crimes that impose
strict liability, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all. The
Government argues that “the knowing nature of the conduct
that produces intoxication combined with the inherent reck
lessness of the ensuing conduct more than suffices” to create
an element of intent. Brief for United States 35. And we
agree with the Government that a drunk driver may very
well drink on purpose. But this Court has said that, unlike
the example crimes, the conduct for which the drunk driver
is convicted (driving under the influence) need not be pur
poseful or deliberate. See Leocal, supra, at 11 (a DUI
offense involves “accidental or negligent conduct”); see also

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470 F. 3d, at 980 (McConnell, J., dissenting in part) (“[D]runk
driving is a crime of negligence or recklessness, rather than
violence or aggression”).
When viewed in terms of the Act’s basic purposes, this
distinction matters considerably. As suggested by its title,
the Armed Career Criminal Act focuses upon the special
danger created when a particular type of offender—a violent
criminal or drug trafficker—possesses a gun. See Taylor,
supra, at 587–588; 470 F. 3d, at 981, n. 3 (McConnell, J., dis
senting in part) (“[T]he title [of the Act] was not merely deco
rative”). In order to determine which offenders fall into
this category, the Act looks to past crimes. This is because
an offender’s criminal history is relevant to the question
whether he is a career criminal, or, more precisely, to the
kind or degree of danger the offender would pose were he to
possess a gun.
In this respect—namely, a prior crime’s relevance to the
possibility of future danger with a gun—crimes involving in
tentional or purposeful conduct (as in burglary and arson)
are different from DUI, a strict-liability crime. In both in
stances, the offender’s prior crimes reveal a degree of cal
lousness toward risk, but in the former instance they also
show an increased likelihood that the offender is the kind
of person who might deliberately point the gun and pull
the trigger. We have no reason to believe that Congress
intended a 15-year mandatory prison term where that in
creased likelihood does not exist.
Were we to read the statute without this distinction, its
15-year mandatory minimum sentence would apply to a host
of crimes which, though dangerous, are not typically com
mitted by those whom one normally labels “armed career
criminals.” See, e. g., Ark. Code Ann. § 8–4–103(a)(2)(A)(ii)
(2007) (reckless polluters); 33 U. S. C. § 1319(c)(1) (individuals
who negligently introduce pollutants into the sewer system);
18 U. S. C. § 1365(a) (individuals who recklessly tamper with
consumer products); § 1115 (seamen whose inattention to

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duty causes serious accidents). We have no reason to be
lieve that Congress intended to bring within the statute’s
scope these kinds of crimes, far removed as they are from
the deliberate kind of behavior associated with violent crim
inal use of firearms. The statute’s use of examples (and
the other considerations we have mentioned) indicate the
contrary.
The dissent’s approach, on the other hand, would likely
include these crimes within the statutory definition of “vio
lent felony,” along with any other crime that can be said to
present a “ ‘potential risk of physical injury.’ ” Post, at 156
(opinion of Alito, J.). And it would do so because it believes
such a result is compelled by the statute’s text. See post,
at 155. But the dissent’s explanation does not account for a
key feature of that text—namely, the four example crimes
intended to illustrate what kind of “violent felony” the stat
ute covers. The dissent at most believes that these exam
ples are relevant only to define the requisite serious risk as
sociated with a “crime of violence.” Post, at 158–159. But
the dissent does not explain how to identify the requisite
level of risk, nor does it describe how these various examples
might help determine what other offenses involve conduct
presenting the same level of risk. If they were in fact help
ful on that score, we might expect more predictable results
from a purely risk-based approach. Compare post, at 148,
153–154 (Scalia, J., concurring in judgment), with post, at
156–158 (dissenting opinion). Thus, the dissent’s reliance on
these examples for a function they appear incapable of per
forming reads them out of the statute and, in so doing, fails
to effectuate Congress’ purpose to punish only a particular
subset of offender, namely, career criminals.
The distinction we make does not minimize the seriousness
of the risks attached to driving under the influence. Nor
does our argument deny that an individual with a criminal
history of DUI might later pull the trigger of a gun. (In
deed, we may have such an instance before us. 470 F. 3d,

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at 965.) Rather, we hold only that, for purposes of the par
ticular statutory provision before us, a prior record of DUI,
a strict-liability crime, differs from a prior record of violent
and aggressive crimes committed intentionally such as arson,
burglary, extortion, or crimes involving the use of explosives.
The latter are associated with a likelihood of future violent,
aggressive, and purposeful “armed career criminal” behavior
in a way that the former are not.
We consequently conclude that New Mexico’s crime of
“driving under the influence” falls outside the scope of the
Armed Career Criminal Act’s clause (ii) “violent felony”
definition. And we reverse the judgment of the Court of
Appeals in relevant part and remand the case for proceed
ings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in the judgment.
The statute in this case defines “violent felony” in part as
“any crime punishable by imprisonment for a term exceeding
one year . . . that . . . is burglary, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that pre
sents a serious potential risk of physical injury to another.”
18 U. S. C. § 924(e)(2)(B)(ii). Contrary to the Court, I con
clude that the residual clause unambiguously encompasses
all crimes that present a serious risk of injury to another.
But because I cannot say that drunk driving clearly poses
such a risk (within the meaning of the statute), the rule of
lenity brings me to concur in the judgment of the Court.
I
Last Term, in James v. United States, 550 U. S. 192 (2007),
the Court held that attempted burglary qualifies as a vio
lent felony under § 924(e). It concluded that to determine
whether a predicate crime falls under the residual clause, a
court should first identify the enumerated crime to which the
predicate crime is most closely analogous and then decide

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whether the risk posed by the predicate crime is roughly
equivalent to the risk posed by the enumerated crime. Be
cause burglary was the enumerated crime most closely anal
ogous to attempted burglary, and attempted burglary in the
Court’s judgment posed roughly the same risk of physical
injury as burglary, attempted burglary qualified as a “violent
felony” under § 924(e). See id., at 209.
Unfortunately, the Court’s approach in deciding that case
provided no guidance for deciding future cases that involve
predicate crimes other than attempted burglary, particularly
those for which there are no clear analogs among the enu
merated crimes. Pointing out that problem in dissent,
I anticipated this very case: “Is, for example, driving under
the influence of alcohol more analogous to burglary, arson,
extortion, or a crime involving use of explosives?” Id., at
215.
My dissent set out a different approach to the statute. In
my view, the best way to interpret § 924(e) is first to deter
mine which of the enumerated offenses poses the least seri
ous risk of physical injury, and then to set that level of risk
as the “serious potential risk” required by the statute.
Crimes that pose at least that serious a risk of injury are
encompassed by the residual clause; crimes that do not are
excluded. In my judgment, burglary was the least risky
crime among the enumerated offenses, and I therefore con
cluded that attempted burglary, which is less risky than bur
glary, is not covered by the residual clause.
The Court held otherwise in James, and since this is a
statutory case that holding has a strong claim to stare deci
sis. But the concomitant of the sad fact that the theory of
James has very limited application is the happy fact that its
stare decisis effect is very limited as well. It must be fol
lowed, I presume, for unenumerated crimes that are analo
gous to enumerated crimes (e. g., attempted arson). It pro
vides no answer, and suggests no approach to an answer,
where, as here, the predicate crime has no analog among

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150 BEGAY v. UNITED STATES
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the enumerated crimes. For such cases I would therefore
adhere to the principles I set forth in my James dissent.
II
Today the Court devises a different way to give concrete
meaning to the residual clause. Confronted with a predicate
crime that has no obvious analog among the enumerated of
fenses, the Court engrafts a requirement onto the residual
clause that a predicate crime involve “purposeful, ‘violent,’
and ‘aggressive’ conduct.” Ante, at 144–145. By doing so,
it excludes a slew of crimes from the scope of the residual
clause, including (not by happenstance) the crime at issue
here, drunk driving. Like James, this latest made-for-the
case improvisation does not (as my resolution does) provide
a complete framework that will embrace all future cases.
There are still many crimes that are not analogous to the
enumerated crimes (so that their status cannot be resolved
by James) but do involve “purposeful, ‘violent,’ and ‘aggres
sive’ conduct” (so that their status cannot be resolved by
today’s deus ex machina). Presumably some third (and per
haps fourth and fifth) gimmick will be devised to resolve
those cases as they arise, leaving our brethren on the dis
trict courts and courts of appeals much room for enjoyable
speculation.
But quite apart from its regrettable continuation of a
piecemeal, suspenseful, Scrabble-like approach to the inter
pretation of this statute, the problem with the Court’s hold
ing today is that it is not remotely faithful to the statute that
Congress wrote. There is simply no basis (other than the
necessity of resolving the present case) for holding that the
enumerated and unenumerated crimes must be similar in re
spects other than the degree of risk that they pose.
The Court is correct that the clause “otherwise involves
conduct that presents a serious potential risk of physical in
jury to another” signifies a similarity between the enumer
ated and unenumerated crimes. It is not, however, any old

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similarity, such as (to take a random example) “purposeful,
‘violent,’ and ‘aggressive’ conduct.” Rather, it is the partic
ular similarity specified after the “otherwise”—i. e., that
they all pose a serious potential risk of physical injury to
another. They need not be similar in any other way. As
the Court correctly notes, the word “otherwise” in this con
text means “ ‘in a different way or manner.’ ” Ante, at 144;
see also James, 550 U. S., at 218 (Scalia, J., dissenting);
Webster’s New International Dictionary 1729 (2d ed. 1957)
(“in another way, or in other ways”). Therefore, by using
the word “otherwise” the writer draws a substantive connec
tion between two sets only on one specific dimension—i. e.,
whatever follows “otherwise.” What that means here is
that “committing one of the enumerated crimes . . . is one
way to commit a crime ‘involv[ing] a serious potential risk
of physical injury to another’; and that other ways of commit
ting a crime of that character similarly constitute ‘violent
felon[ies].’ ” James, supra, at 218 (Scalia, J., dissenting).
The Court rejects this seemingly straightforward statu
tory analysis, reading the residual clause to mean that the
unenumerated offenses must be similar to the enumerated
offenses not only in the degree of risk they pose, but also
“in kind,” despite the fact that “otherwise” means that the
common element of risk must be presented “ ‘in a different
way or manner.’ ” Ante, at 143, 144 (emphasis added). The
Court’s explanation for this interpretation seems to be that
the enumerated crimes are “so far from clear in respect to
the degree of risk each poses that it is difficult to accept
clarification in respect to degree of risk as Congress’ only
reason for including them.” Ante, at 143. While I cer
tainly agree that the degree of risk associated with the enu
merated crimes is unclear, I find it unthinkable that the solu
tion to that problem is to write a different statute. The
phrase “otherwise involves conduct that presents a serious
potential risk of physical injury to another” limits inclusion
in the statute only by a crime’s degree of risk. See James,

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152 BEGAY v. UNITED STATES
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supra, at 218 (Scalia, J., dissenting). The use of the adjec
tive “serious” seems to me to signify a purely quantitative
measure of risk. If both an intentional and a negligent
crime pose a 50% risk of death, could one be characterized
as involving a “serious risk” and the other not? Surely not.
The Court supports its argument with that ever-ready ref
uge from the hardships of statutory text, the ( judicially) per
ceived statutory purpose. According to the Court, because
the Armed Career Criminal Act is concerned with “the spe
cial danger created when a particular type of offender—a
violent criminal or drug trafficker—possesses a gun,” the
statutory purpose favors applying § 924(e)’s enhanced pen
alty only to those criminals “who might deliberately point
the gun and pull the trigger.” Ante, at 146. I cannot pos
sibly infer that purpose from the statute. For all I know,
the statute was meant to punish those who are indifferent
to human life, or who are undeterred by the criminal
penalties attached to the commission of other crimes (after
all, the statute enhances penalties for drug traffickers,
see § 924(e)(2)(A)). While the Court’s asserted purpose
would surely be a reasonable one, it has no more grounding
in the statutory text than do these other possibilities. And
what is more, the Court’s posited purpose is positively
contradicted by the fact that one of the enumerated crimes—
the unlawful use of explosives—may involve merely negli
gent or reckless conduct. See ALI, Model Penal Code
§ 220.2(2) (1985) (“A person is guilty of a misdemeanor if he
recklessly creates a risk of catastrophe in the employment
of fire, explosives or other dangerous means”); id., § 220.3
(“A person is guilty of criminal mischief if he . . . damages
tangible property of another purposely, recklessly, or by neg
ligence in the employment of fire, explosives, or other dan
gerous means”).
The Court says that an interpretation of the residual
clause that includes all crimes posing a serious risk of injury
would render superfluous § 924(e)(2)(B)(i), which provides

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that a “violent felony” is any crime that “has as an element
the use, attempted use, or threatened use of physical force
against the person” of another. Ante, at 142 (internal quota
tion marks omitted). But the canon against surplusage has
substantially less force when it comes to interpreting a broad
residual clause like the one at issue here. Though the sec
ond clause renders the first superfluous, it would raise no
eyebrows to refer to “crimes that entail the use of force and
crimes that, while not entailing the use of force, nonetheless
present a serious risk of injury to another person.” In any
event, the canon against surplusage merely helps decide be
tween competing permissible interpretations of an ambigu
ous statute; it does not sanction writing in a requirement
that Congress neglected to think of. And finally, come to
think of it, the Court’s solution does nothing whatever to
solve the supposed surplusage problem. Crimes that in
clude as an element “the use . . . of physical force against the
person of another” are all embraced (and the reference to
them thus rendered superfluous) by the requirement of “pur
poseful, ‘violent,’ and ‘aggressive’ conduct” that the Court
invents.
III
Under my interpretation of § 924(e), I must answer one
question: Does drunk driving pose at least as serious a risk
of physical injury to another as burglary? From the evi
dence presented by the Government, I cannot conclude so.
Because of that, the rule of lenity requires that I resolve this
case in favor of the defendant.
The Government cites the fact that in 2006, 17,062 persons
died from alcohol-related car crashes, and that 15,121 of those
deaths involved drivers with blood-alcohol concentrations of
0.08 or higher. See Brief for United States 17. Drunk
driving is surely a national problem of great concern. But
the fact that it kills many people each year tells us very
little about whether a single act of drunk driving “involves
conduct that presents a serious potential risk of physical in

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154 BEGAY v. UNITED STATES
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jury to another.” It may well be that an even greater num
ber of deaths occurs annually to pedestrians crossing the
street; but that hardly means that crossing the street pre
sents a serious potential risk of injury. Where the issue is
“risk,” the annual number of injuries from an activity must
be compared with the annual incidents of the activity.
Otherwise drunk driving could be said to pose a more serious
risk of physical harm than murder. In addition, drunk driv
ing is a combination of two activities: (1) drinking and
(2) driving. If driving alone results in injury in a certain
percentage of cases, it could hardly be said that the entirety
of the risk posed by drunk driving can be attributed to the
combination. And finally, injuries to the drunk drivers
themselves must be excluded from the calculus, because the
statute counts only injuries to other persons.
Needless to say, we do not have these relevant statistics.
And even if we did, we would still need to know similar sta
tistics for burglary, which are probably even harder to come
by. This does not mean that I will never be able to identify
a crime that falls under the residual clause. For some
crimes, the severity of the risk will be obvious. Crimes like
negligent homicide, see ALI, Model Penal Code § 210.4
(1980), conspiracy to commit a violent crime, id., § 5.03 (1985),
inciting to riot, 18 U. S. C. § 2101, and the production of
chemical weapons, § 229, certainly pose a more serious risk
of physical injury to others than burglary. (By contrast, the
Court’s approach eliminates from the residual clause all neg
ligent crimes, even those that entail a 100% risk of physical
injury such as negligent homicide.) But I can do no more
than guess as to whether drunk driving poses a more serious
risk than burglary, and I will not condemn a man to a mini
mum of 15 years in prison on the basis of such speculation.
See Ladner v. United States, 358 U. S. 169, 178 (1958).
Applying the rule of lenity to a statute that demands it,
I would reverse the decision of the Court of Appeals.

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Alito, J., dissenting
Justice Alito, with whom Justice Souter and Justice
Thomas join, dissenting.
The statutory provision at issue in this case—the so-called
“residual clause” of 18 U. S. C. § 924(e)(2)(B)(ii)—calls out for
legislative clarification, and I am sympathetic to the result
produced by the Court’s attempt to craft a narrowing con
struction of this provision. Unfortunately, the Court’s in
terpretation simply cannot be reconciled with the statutory
text, and I therefore respectfully dissent.
In September 2004, after a night of heavy drinking, peti
tioner pointed a rifle at his aunt and threatened to shoot if
she did not give him money. When she replied that she did
not have any money, petitioner repeatedly pulled the trigger,
but the rifle was unloaded and did not fire. Petitioner then
threatened his sister in a similar fashion.
At the time of this incident, petitioner was a convicted
felon. He had 12 prior convictions in New Mexico for driv
ing under the influence of alcohol (DUI). While DUI is gen
erally a misdemeanor under New Mexico law, the offense of
DUI after at least three prior DUI convictions is a felony
requiring a sentence of 18 months’ imprisonment. N. M.
Stat. Ann. § 66–8–102(G) (Supp. 2007).
Petitioner pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U. S. C. § 922(g)(1). A vio
lation of that provision generally carries a maximum term of
imprisonment of 10 years, see § 924(a)(2), but the District
Court and the Court of Appeals held that petitioner was sub
ject to a mandatory minimum sentence of 15 years because
he had at least three prior convictions for the New Mexico
felony of DUI after being convicted of DUI on at least three
prior occasions. 377 F. Supp. 2d 1141, 1143–1145 (NM 2005);
470 F. 3d 964, 966–975, 977 (CA10 2006). The lower courts
concluded that these offenses were crimes “punishable by
imprisonment for a term exceeding one year” and “involve[d]

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156 BEGAY v. UNITED STATES
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conduct that present[ed] a serious potential risk of physical
injury to another.” 18 U. S. C. § 924(e)(2)(B).
The Court does not hold that the maximum term of impris
onment that petitioner faced on his felony DUI convictions
was less than one year.1 Nor does the Court dispute that
petitioner’s offenses involved a “potential risk of physical
injury to another.” Ibid. The only remaining question,
therefore, is whether the risk presented by petitioner’s qual
ifying DUI felony convictions was “serious,” i. e., “signifi
cant” or “important.” See, e. g., Webster’s Third New In
ternational Dictionary 2073 (2002) (hereinafter Webster’s);
15 Oxford English Dictionary 15 (def. 6(a)) (2d ed. 1989)
(hereinafter OED). In my view, it was.
Statistics dramatically show that driving under the influ
ence of alcohol is very dangerous. Each year, approximately
15,000 fatal alcohol-related crashes occur, accounting for
roughly 40% of all fatal crashes.2 Approximately a quar
ter million people are injured annually in alcohol-related
1 United States v. Rodriquez, now pending before the Court, presents
the question “[w]hether a state drug-trafficking offense, for which state
law authorized a ten-year sentence because the defendant was a recidivist,
qualifies as a predicate offense under the Armed Career Criminal Act, 18
U. S. C. § 924(e).” Pet. for Cert., O. T. 2007, No. 06–1646, p. I. [Report
er’s Note: See post, p. 377.]
2 See National Highway Traffic Safety Administration (NHTSA), Traffic
Safety Facts Annual Report, p. 56 (Table 34) (2006) (15,945 alcohol-related
fatal crashes; 41%), (2005) (15,238; 39%), (2004) (14,968; 39%), (2003)
(15,251; 40%), (2002) (15,626; 41%), (2001) (15,585; 41%), (2000) (14,847;
40%), (1999) (14,109; 38%), (1998) (14,278; 39%), (1997) (14,363; 38.5%),
(1996) (15,249; 40.8%), online at http://www-nrd.nhtsa.dot.gov/CATS/
listpublications.aspx?Id=E&ShowBy=DocType (Annual Reports 1994–
2006 hyperlink) (all Internet materials as visited Apr. 11, 2008, and avail
able in Clerk of Court’s case file); see also Michigan Dept. of State Police
v. Sitz, 496 U. S. 444, 451 (1990) (“No one can seriously dispute the magni
tude of the drunken driving problem . . . . ‘Drunk drivers cause an annual
death toll of over 25,000 and in the same time span cause nearly one million
personal injuries . . . ’ ” (footnote omitted)); South Dakota v. Neville, 459
U. S. 553, 558 (1983) (“The carnage caused by drunk drivers is well
documented . . . . This Court . . . has repeatedly lamented the tragedy”).

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crashes.3 The number of people who are killed each year by
drunk drivers is far greater than the number of murders
committed during any of the crimes specifically set out in
the statutory provision at issue here, § 924(e)(2)(B)(ii)—bur
glary, arson, extortion, and offenses involving the use of
explosives.4
Petitioner’s qualifying offenses, moreover, fell within the
statute only because he had been convicted of DUI on at
least three prior occasions. As noted, petitioner had
a dozen prior DUI convictions. Persons who repeatedly
drive drunk present a greatly enhanced danger that they and
others will be injured as a result.5 In addition, it has been
3 See NHTSA, supra, at 111 (Table 76) (2006) (278,000), (2005) (254,000),
(2004) (248,000), (2003) (275,000), (2002) (258,000), (2001) (275,000), (2000)
(310,000), (1999) (308,000), (1998) (305,000), (1997) (327,000), (1996)
(321,000).
4 According to statistics compiled by the Federal Bureau of Investiga
tion, between 1996 and 2006 total annual murders never exceeded 15,000
after 1997. During that same 11-year period, the highest number of mur
ders committed in the course of burglary was 123, the number of murders
committed in the course of arson peaked at 105, and the number of mur
ders involving explosives topped out at 14—all in 1996. See Dept. of Jus
tice, Federal Bureau of Investigation, Uniform Crime Reports/Crime in
the United States (Annual Reports 1996–2006), online at http://www.
fbi.gov/ucr/ucr.htm#cius. While murders committed in the course of ex
tortion were not separately reported, common sense and the fact that the
total number of murders was similar to the number of fatal alcohol-related
crashes at least after 1997 indicates that murders involving extortion
would not rival deaths in alcohol-related auto accidents. Even if one were
to expand beyond murders to all fatalities and even injuries, it is estimated
that arson causes the relatively small number of 475 deaths and over 2,000
injuries annually. Dept. of Homeland Security, U. S. Fire Administration,
Arson in the United States, Vol. 1 Topical Fire Research Series, No. 8
(Jan. 2001, rev. Dec. 2001), online at http://www.usfa.dhs.gov/downloads/
pdf/tfrs/v1i8-508.pdf.
5 See United States v. McCall, 439 F. 3d 967, 972 (CA8 2006) (en banc)
(citing Brewer et al., The Risk of Dying in Alcohol-Related Automobile
Crashes Among Habitual Drunk Drivers, 331 New Eng. J. Med. 513
(1994)); Dept. of Justice, Office of Community Oriented Policing Services,
Drunk Driving, Problem-Oriented Guides for Police, Problem-Specific
Guides Series No. 36, p. 4 (Feb. 2006) (“By most estimates, although repeat

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estimated that the ratio of DUI incidents to DUI arrests
is between 250 to 1 and 2,000 to 1.6 Accordingly, the risk
presented by a 10th, 11th, and 12th DUI conviction may be
viewed as the risk created by literally thousands of drunk
driving events. That risk was surely “serious,” and there
fore petitioner’s offenses fell squarely within the language of
the statute.
Moreover, taking the statutory language to mean what it
says would not sweep in all DUI convictions. Most DUI
convictions are not punishable by a term of imprisonment of
more than one year and thus fall outside the scope of the
statute.7 Petitioner’s convictions qualified only because of
his extraordinary—and, I would say, extraordinarily danger
ous—record of drunk driving.
The Court holds that an offense does not fall within the
residual clause unless it is “roughly similar, in kind as well
as in degree of risked posed,” ante, at 143, to the crimes
specifically listed in 18 U. S. C. § 924(e)(2)(B), i. e., burglary,
extortion, arson, and crimes involving the use of explosives.
These crimes, according to the Court, “all typically involve
purposeful, ‘violent,’ and ‘aggressive’ conduct.” Ante, at
144–145 (quoting 470 F. 3d, at 980 (McConnell, J., dissenting)).
This interpretation cannot be squared with the text of the
statute, which simply does not provide that an offense must
be “purposeful,” “violent,” or “aggressive” in order to fall
within the residual clause. Rather, after listing burglary,
drunk drivers comprise a relatively small proportion of the total popula
tion of drivers, they are disproportionately responsible for alcohol-related
crashes and other problems associated with drunk driving”).
6 Brewer, supra, text accompanying nn. 23–24; L. Taylor & S. Oberman,
Drunk Driving Defense § 1.01 (2007).
7 See National Conference of State Legislatures (NCSL), Criminal Sta
tus of State Drunk Driving Laws, online at http://www.ncsl.org/print/
transportation/drunkdrivecriminal.pdf (2008) (surveying 50 States, the Dis
trict of Columbia, and U. S. Territories, most of which treat the first DUI
offense as a misdemeanor).

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arson, extortion, and explosives offenses, the statute pro
vides (in the residual clause) that an offense qualifies if it
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Therefore, offenses fall
ing within the residual clause must be similar to the named
offenses in one respect only: They must “otherwise”—which
is to say, “in a different manner,” 10 OED 984 (def. B(1));
see also Webster’s 1598—“involv[e] conduct that presents a
serious potential risk of physical injury to another.” Re
quiring that an offense must also be “purposeful,” “violent,”
or “aggressive” amounts to adding new elements to the stat
ute, but we “ordinarily resist reading words or elements into
a statute that do not appear on its face.” Bates v. United
States, 522 U. S. 23, 29 (1997).
Each part of this additional, judicially added requirement
presents other problems as well.
Purposeful. At least one State’s DUI law requires proof
of purposeful conduct. See Tam v. State, 232 Ga. App. 15,
15–16, 501 S. E. 2d 51, 52 (1998) (requiring proof of the intent
to drive). In addition, many States recognize involuntary
intoxication as a defense. See 4 R. Essen & R. Erwin, De
fense of Drunk Driving Cases: Criminal—Civil § 44.04 (2007).
And even in States that do not require purposefulness,
I have no doubt that the overwhelming majority of DUI de
fendants purposefully drank before getting behind the wheel
and were purposefully operating their vehicles at the time
of apprehension. I suspect that many DUI statutes do not
require proof of purposefulness because the element is al
most always present, requiring proof of the element would
introduce an unnecessary complication, and it would make no
sense to preclude conviction of those defendants who were
so drunk that they did not even realize that they were be
hind the wheel.
Violent. It is clear that 18 U. S. C. § 924(e)(2)(B) is not
limited to “violent” crimes, for if it were, it would be redun

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dant. The prior subparagraph, § 924(e)(2)(A), includes of
fenses that have as an element the use or threatened use
of violence.
Aggressive. The concept of “aggressive” crimes is vague,
and in any event, it is hardly apparent why DUI—not to
mention the species of felony DUI recidivism that resulted
in petitioner’s predicament—is not “aggressive.” Driving
can certainly involve “aggressive” conduct. Indeed, some
States have created the offense of “aggressive driving.”
See M. Savage, M. Sundeen, & A. Teigen, Transporta
tion Series, Traffic Safety and Public Health: State Legis
lative Action 2007, p. 17, and App. J (NCSL, No. 32, Dec.
2007), online at http://www.ncsl.org/print/transportation/
07trafficsafety.pdf. Most States have a toll-free telephone
number to call to report “aggressive” driving. See Cam
paign Safe & Sober, Phone Numbers for Reporting Impaired,
Aggressive, or Unsafe Driving, online at http://www.nhtsa.
dot.gov/people/outreach/safesobr/16qp/phone.html.
The Court defends its new statutory element on the
ground that a defendant who merely engages in felony drunk
driving is not likely to be “the kind of person who might
deliberately point the gun and pull the trigger.” Ante, at
146. The Court cites no empirical support for this conclu
sion, and its accuracy is not self-evident. Petitioner’s pat
tern of behavior may or may not be typical of those defend
ants who have enough DUI convictions to qualify under
N. M. Stat. Ann. § 66–8–102(G) and 18 U. S. C. § 924(e)(2)(B),
but the example of his behavior in this case—pointing a gun
at his aunt’s head and repeatedly pulling the trigger—should
surely be enough to counsel against uncritical reliance on ste
reotypes about “the type” of people who commit felony
DUI violations.
Defendants who qualify for an enhanced sentence under
§ 924(e) (2000 ed. and Supp. V) based (in whole or in part) on
felony DUI convictions share at least three characteristics
that are relevant for present purposes. First, they are per

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sons who, in the judgment of Congress, cannot be trusted to
use a firearm responsibly. In order to qualify for an en
hanced sentence under § 924(e), a defendant must of course
be convicted of violating the felon-in-possession statute,
§ 922(g) (2000 ed.). The felon-in-possession statute neces
sarily rests on the judgment that a person with a prior felony
conviction cannot be trusted with a firearm. See Caron v.
United States, 524 U. S. 308, 315 (1998) (“Congress meant to
keep guns away from all offenders who, the Federal Govern
ment feared, might cause harm . . . ”). And there is no dis
pute that a prior felony DUI conviction qualifies as a felony
under the felon-in-possession law. If Congress thought that
a person with a prior felony DUI conviction is not “the kind
of person” who is likely to use a gun unlawfully, why would
Congress have made it a crime for such a person to possess
a gun?
Second, defendants with DUI convictions that are counted
under 18 U. S. C. § 924(e)(2)(B) are likely to have serious alco
hol abuse problems. As previously mentioned, ordinary
DUI convictions are generally not counted under § 924(e) be
cause they are not punishable by imprisonment for more
than a year. Such penalties are generally reserved for per
sons, like petitioner, with a record of repeated DUI viola
tions. See NCSL, supra. Such individuals are very likely
to have serious alcohol abuse problems and a propensity to
engage in irresponsible conduct while under the influence.
Alcohol use often precedes violent crimes, see, e. g., Roizen,
Epidemiological Issues in Alcohol-Related Violence, in 13
Recent Developments in Alcoholism 7, 8–9 (M. Galanter ed.
1997), and thus there is reason to worry about the misuse
of firearms by defendants whose alcohol abuse problems are
serious enough to result in felony DUI convictions.
Third, defendants with DUI convictions that are counted
under § 924(e)(2)(B) have either (1) such serious alcohol abuse
problems that they have at least three prior felony DUI con
victions or (2) both one or two felony DUI convictions and

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one or two offenses that fall under § 924(e)(2)(B)(i) (offenses
that have “as an element the use, attempted use, or threat
ened use of physical force”) or that are specifically set out in
§ 924(e)(2)(B)(ii) (burglary, arson, extortion, or an explosives
offense). Defendants with three felony DUI convictions are
likely to be super–DUI-recidivists like petitioner. Defend
ants with a combination of felony DUI and other qualifying
convictions—for example, convictions for assault or bur
glary—are persons who, even by the Court’s lights, could be
classified as “the kind of person who might deliberately point
[a] gun and pull the trigger.”
Unlike the Court, I cannot say that persons with these
characteristics are less likely to use a gun illegally than are
persons convicted of other qualifying felonies.
Justice Scalia’s concurrence takes a different approach,
but his analysis is likewise flawed. Justice Scalia would
hold (1) that an offense does not fall within the residual
clause unless it presents a risk that is at least as great as that
presented by the least dangerous of the enumerated offenses;
(2) that burglary is the least dangerous of the enumerated
offenses; (3) that the relevant measure of risk is the risk that
the typical burglary, DUI, etc., would result in injury; and
(4) that the risk presented by an incident of DUI is less than
the risk presented by a burglary.
Justice Scalia, like the Court, does not follow the statu
tory language. The statute says that offenses falling within
the residual clause must present “a serious potential risk of
physical injury to another.” The statute does not say that
these offenses must present at least as much risk as the enu
merated offenses.
The statute also does not say, as Justice Scalia would
hold, that the relevant risk is the risk that each incident of
DUI will result in injury. I see no basis for concluding that
Congress was not also concerned with the risk faced by po
tential victims, particularly since the statute explicitly refers
to “potential risk.” Drunk driving is regarded as a severe

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societal problem in large measure because of the very large
number of victims it produces each year.
Finally, Justice Scalia’s conclusion that burglary is the
least risky of the enumerated offenses is based on a pro
crustean reading of § 924(e)(2)(B)(ii). This provision re
fers, without qualification, to “extortion.” In his dissent
in James v. United States, 550 U. S. 192 (2007), Justice Sca
lia concluded that many forms of extortion are “inherently
unlikely to cause physical harm.” Id., at 223 (emphasis in
original). Only by finding that the term “extortion” in
§ 924(e)(2)(B)(ii) really means only certain forms of extortion
was Justice Scalia able to come to the conclusion that bur
glary is the least risky of the enumerated offenses.
For all these reasons, I would affirm the decision of the
Tenth Circuit.