United States v. Taylor

JUSTICE GORSUCH delivered the opinion of the Court.¶verify

Does attempted Hobbs Act robbery qualify as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A)? The answer matters because a person convicted of attempted Hobbs Act robbery alone normally faces up to 20 years in prison. But if that offense qualifies as a “crime of violence” under § 924(c)(3)(A), the same individual may face a second felony conviction and years or decades of further imprisonment.¶verify

I¶verify

After a robbery went awry and his accomplice shot a man, the federal government charged Justin Taylor with violating the Hobbs Act and § 924(c). The Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component. 18 U. S. C. § 1951(a). Meanwhile, § 924(c) authorizes further punishments for those who use a firearm in connection with a “crime of violence.”¶verify

For purposes of § 924(c), a federal felony qualifies as a “crime of violence” if it meets either of two definitions. The first definition is found in § 924(c)(3)(A), a provision sometimes called the elements clause. That clause covers offenses that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The second definition, located next door in § 924(c)(3)(B) and often referred to as the residual clause, encompasses offenses that “by [their] nature, involv[e] a substantial risk that physical force . . . may be used.”¶verify

Before the District Court, the government argued that Mr. Taylor’s Hobbs Act offense qualified as a “crime of violence” under these definitions. And at that point, Mr. Taylor did not disagree, choosing instead to plead guilty to one count each of violating the Hobbs Act and § 924(c). For his crimes, the District Court sentenced Mr. Taylor to 30 years in federal prison—a decade more than he could have received for his Hobbs Act conviction alone.¶verify

Later, Mr. Taylor filed a federal habeas petition. In it, he did not challenge his Hobbs Act conviction. Instead, he focused on § 924(c). Mr. Taylor submitted that his § 924(c) conviction was predicated on his admission that he had committed both conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. And, Mr. Taylor argued, neither of those offenses continued to qualify as a “crime of violence” after United States v. Davis , 588 U. S. ___ (2019). In Davis , this Court held § 924(c)(3)(B)’s residual clause unconstitutionally vague, and we refused to enforce a conviction and sentence premised on its terms. Id. , at ___–___ (slip op., at 24–25). In his habeas proceeding, Mr. Taylor asked the court to apply Davis retroactively and vacate his own § 924(c) conviction and sentence.¶verify

The government opposed Mr. Taylor’s petition. In doing so, it did not seek to revisit Davis or oppose its retroactive application to Mr. Taylor’s case. Instead, the government observed that Davis declared only the residual clause unconstitutional; even today the elements clause remains in force. And, the government argued, the crime of attempted Hobbs Act robbery qualifies as a crime of violence under the elements clause even if conspiracy to commit Hobbs Act robbery may not. By this chain of logic, the government reasoned, Mr. Taylor’s § 924(c) conviction and sentence remained sound.¶verify

Ultimately, the Fourth Circuit agreed to hear the dispute and sided with Mr. Taylor. It held that attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c)(3)(A) because no element of the offense requires the government to prove that the defendant used, attempted to use, or threatened to use force. By way of remedy, the Court of Appeals vacated Mr. Taylor’s § 924(c) conviction and remanded the case for resentencing in light of his sole remaining Hobbs Act conviction. In reaching its judgment, the Fourth Circuit acknowledged that other circuits have taken a different view, holding that attempted Hobbs Act robbery does qualify as a crime of violence under the elements clause. 979 F. 3d 203, 208 (2020). We agreed to take up this case to resolve that question. 594 U. S. ___ (2021).¶verify

II¶verify

The parties may not see eye to eye on the outcome of this case, but they at least agree on how we should go about deciding it. To determine whether a federal felony may serve as a predicate for a conviction and sentence under the elements clause, they say, we must apply a “categorical approach.” We must because the clause poses the question whether the federal felony at issue “has as an element the use, attempted use, or threatened use of physical force.” § 924(c)(3)(A) (emphasis added). And answering that question does not require—in fact, it precludes—an inquiry into how any particular defendant may commit the crime. The only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force. This Court has long understood similarly worded statutes to demand similarly categorical inquiries. See, e.g. , Borden v. United States , 593 U. S. ___, ___ (2021) (slip op., at 2); Davis , 588 U. S., at ___ (slip op., at 10); Leocal v. Ashcroft , 543 U. S. 1, 7 (2004).¶verify

What are the elements the government must prove to secure a conviction for attempted Hobbs Act robbery? Here again the parties share common ground. Under the portion of the Hobbs Act relevant here, to win a conviction for a completed robbery the government must show that the defendant engaged in the “unlawful taking or obtaining of personal property from the person . . . of another, against his will, by means of actual or threatened force.” § 1951(b). From this, it follows that to win a case for attempted Hobbs Act robbery the government must prove two things: (1) The defendant intended to unlawfully take or obtain personal property by means of actual or threatened force, and (2) he completed a “substantial step” toward that end. See, e.g. , United States v. Resendiz-Ponce , 549 U. S. 102, 107 (2007). What exactly constitutes a substantial step is beyond the scope of today’s case. For present purposes, it is sufficient to observe that the parties again agree. They accept that a substantial step demands something more than “mere preparation.” Swift & Co. v. United States , 196 U. S. 375, 402 (1905). The step, they say, must be “unequivocal,” Reply Brief 3, and “significant,” though it “need not be violent,” Brief for United States 22.¶verify

To know that much is enough to resolve this case. Whatever one might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy the elements clause. Yes, to secure a conviction the government must show an intention to take property by force or threat, along with a substantial step toward achieving that object. But an intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property. As the Model Penal Code explains with respect to the Hobbs Act’s common-law robbery analogue, “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” ALI, Model Penal Code § 222.1, p. 114 (1980). “If, for example, the defendant is apprehended before he reaches his robbery victim and thus before he has actually engaged in threatening conduct, proof of his purpose to engage in such conduct” can “justify a conviction of attempted robbery” so long as his intention and some other substantial step are present. Id ., at 115.¶verify

A hypothetical helps illustrate the point. Suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He then sets about researching the business’s security measures, layout, and the time of day when its cash registers are at their fullest. He buys a ski mask, plots his escape route, and recruits his brother to drive the getaway car. Finally, he drafts a note—“Your money or your life”—that he plans to pass to the cashier. The note is a bluff, but Adam hopes its implication that he is armed and dangerous will elicit a compliant response. When the day finally comes and Adam crosses the threshold into the store, the police immediately arrest him. It turns out Adam’s friend tipped them off.¶verify

There is little question the government could win a lawful conviction against Adam for attempted Hobbs Act robbery. After all, he intended to take property against the cashier’s will by threat of force, and his actions constituted a substantial step toward that goal. At the same time, this example helps show why attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause. Adam did not “use” physical force. He did not “attempt” to use such force—his note was a bluff and never delivered. And he never even got to the point of threatening the use of force against anyone or anything. He may have intended and attempted to do just that, but he failed. Simply put, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.¶verify

The upshot of all this for our case is clear. Mr. Taylor may be lawfully subject to up to 20 years in federal prison for his Hobbs Act conviction. But as the Fourth Circuit recognized, Congress has not authorized courts to convict and sentence him to a decade of further imprisonment under § 924(c)(3)(A). 1¶verify

III A¶verify

Resisting this conclusion, the government offers three principal replies. We take up first the argument the government presented before the Fourth Circuit and on which it prevailed in other circuits. See, e.g. , United States v. St. Hubert , 909 F. 3d 335, 352–353 (CA11 2018). This theory proceeds in the form of a syllogism. The government submits that the elements clause encompasses not only any offense that qualifies as a “crime of violence” but also any attempt to commit such a crime. And, the government reasons, because completed Hobbs Act robbery qualifies as a crime of violence, it follows that attempted Hobbs Act robbery does too.¶verify

While the government pressed this argument in the courts of appeals, it affords it only a passing nod here. And the reason why quickly becomes clear: The government’s¶verify

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1 JUSTICE THOMAS concedes that the foregoing analysis is correct under our categorical approach precedents. See post , at 3 (THOMAS, J., dissenting). He contends only that we should overrule 30 years’ worth of our categorical approach precedents in order to relieve the “ ‘bind’ ” they place on prosecutors. Post , at 8, 11. But not even the prosecutors for whom JUSTICE THOMAS professes concern seek anything like that. Nor does he articulate any plausible way to understand the terms of the elements clause without reference to the categorical approach. See post , at 14 (merely “welcom[ing] briefing” on the topic).¶verify

syllogism rests on a false premise. The elements clause does not ask whether the defendant committed a crime of violence or attempted to commit one. It asks whether the defendant did commit a crime of violence—and it proceeds to define a crime of violence as a felony that includes as an element the use, attempted use, or threatened use of force. If Congress had wanted the elements clause to do the kind of work the government supposes, it could have easily said so. For example, it might have swept in those federal crimes that require as an element “the use or threatened use of force” and those “that constitute an attempt to commit an offense that has such an element.” But that simply is not the law we have.¶verify

B¶verify

Recognizing the weakness of the argument it pressed below, the government spends much of its time before us elaborating two new theories. In the first, the government asks us to focus on the “substantial step” element of attempted Hobbs Act robbery. That element, the government submits, categorically requires it to prove that a defendant used, attempted to use, or threatened to use physical force.¶verify

This theory fails too, and for reasons we have already seen. Without question, many who commit the crime of attempted Hobbs Act robbery do use, attempt to use, or threaten to use force. Suppose, for example, that the police had arrested Adam after he handed over his threatening note to the cashier but before he received any money. In a case like that, the defendant would have threatened the use of force while committing an attempted Hobbs Act robbery. But some cases are not all cases, and the government’s problem is that no element of attempted Hobbs Act robbery requires the government to prove beyond a reasonable doubt that the defendant used, attempted to use, or even threatened to use force. Individuals like our foiled robber who are arrested before they can threaten anyone may be convicted too. See supra , at 4–6; cf. Model Penal Code, at 114–115.¶verify

Seeking a way around this problem, the government responds that we (and presumably the drafters of the Model Penal Code) misconstrue what qualifies as the “threatened use” of force. On its view, anyone who takes a substantial step toward completing Hobbs Act robbery (say, by buying a weapon, plotting his heist and getaway, writing an extortive note before he leaves home, and entering a store) objectively poses a “threatened use” of force even if he never communicates his threat to anyone.¶verify

This reply bears its own problems. To start, in the criminal law the word “threat” and its cognates usually denote “[a] communicated intent to inflict physical or other harm on any person or on property.” 2 Of course, threats can be communicated verbally or nonverbally—pointing a gun at a cashier conveys a threat no less effectively than passing a note reading “your money or your life.” But one way or another, some form of communication is usually required. Even the government concedes that the words “threatened force” in the Hobbs Act require proof that the defendant communicated a threat to a second person, whether or not that individual is the target of the threat. See Reply Brief 15.¶verify

That leaves the government to suggest that § 924(c)(3)(A) differs from the Hobbs Act and represents an exception to¶verify

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2 Black’s Law Dictionary 1327 (5th ed. 1979) (defining “threat”); Stroud’s Judicial Dictionary 2633 (5th ed. 1986) (defining “threat” and “threaten”); see also, e.g. , Oxford English Dictionary 998 (2d ed. 1989) (threaten: “To try to influence (a person) by menaces; to utter or hold out a threat against; to declare (usually conditionally) one’s intention of inflicting injury upon”); Webster’s Third New International Dictionary 2382 (3d ed. 1986) (threaten: “to utter threats against”; to “promise punishment, reprisal, or other distress to”); American Heritage Dictionary 1265 (2d ed. 1985) (threat: “An expression of an intention to inflict pain, injury, evil, or punishment”); ibid. (threaten: “[t]o express a threat against”).¶verify

the usual rule. Seeking to make that case, the government observes that, in some contexts, the word “threat” can be used to speak of a more objective or abstract risk. So, for example, a critic might say that a prison board’s decision to parole a particular felon “threatens” community safety. Or a conservationist might argue that a government decision allowing commercial activity near a national park “threatens” wildlife habitat. Before us, the government submits that the elements clause uses the term in a similar way, requiring only an objective, if uncommunicated, threat to community peace and order. And, the government argues, anyone who takes a substantial step toward completing a Hobbs Act robbery always or categorically poses such a threat.¶verify

The trouble is, when Congress uses the word “threat” in this abstract and predictive (rather than communicative) sense, it usually makes its point plain. It may ask, for example, whether an individual or circumstance “poses” or “represents” a threat. See, e.g. , 6 U. S. C. § 1170(a)(1) (discussing “individuals who may pose a threat to transportation security”); 8 U. S. C. § 1735(a) (immigration officials must determine that an “alien does not pose a threat to the safety or national security of the United States”). Here we have nothing like that. In fact, what textual clues we do have point in the opposite direction.¶verify

Take this one. The statute speaks of the “use” or “attempted use” of “physical force against the person or property of another.” Plainly, this language requires the government to prove that the defendant took specific actions against specific persons or their property. Reading the statute’s remaining reference to the “threatened use of physical force against the person or property of another” as requiring a communicated threat fits with this design. By contrast, the government’s competing interpretation would vastly expand the statute’s reach by sweeping in conduct that poses an abstract risk to community peace and order, whether known or unknown to anyone at the time. It’s a reading that would defy our usual rule of statutory interpretation that a law’s terms are best understood by “the company [they] kee[p].” Gustafson v. Alloyd Co. , 513 U. S. 561, 575 (1995).¶verify

Beyond that clue lies another. Next door to the elements clause Congress included the residual clause. Under its terms, “crimes of violence” were defined to embrace offenses that, “by [their] nature, involv[e] a substantial risk that physical force . . . may be used” against a person or property. § 924(c)(3)(B). Pretty plainly, that language called for an abstract inquiry into whether a particular crime, by its nature, poses or presents a substantial risk (or “threat”) of force being used. See Davis , 588 U. S., at ___–___ (slip op., at 5–7). Of course, this Court eventually held the residual clause to be unconstitutionally vague. Id. , at ___ (slip op., at 24). But if the government’s view of the elements clause caught on, it would only wind up effectively replicating the work formerly performed by the residual clause, collapsing the distinction between them, and perhaps inviting similar constitutional questions along the way. It’s an outcome that would (again) defy our usual rules of statutory interpretation—this time because we do not lightly assume Congress adopts two separate clauses in the same law to perform the same work. See, e.g. , Mackey v. Lanier Collection Agency & Service, Inc. , 486 U. S. 825, 839, n. 14 (1988).¶verify

C¶verify

Heaping alternative upon alternative, the government’s final theory accepts that a conviction under the elements clause requires a communicated threat of force. But, the argument goes, most attempted Hobbs Act robbery prosecutions involve exactly that. Indeed, the government faults Mr. Taylor for failing to identify a single case in which it has prosecuted someone for attempted Hobbs Act robbery without proving a communicated threat.¶verify

But what does that prove? Put aside the fact that Mr. Taylor has identified cases in which the government has apparently convicted individuals for attempted Hobbs Act robbery without proving a communicated threat. See, e.g. , United States v. Williams , 531 Fed. Appx. 270, 271–272 (CA3 2013). Put aside the oddity of placing a burden on the defendant to present empirical evidence about the government’s own prosecutorial habits. Put aside, too, the practical challenges such a burden would present in a world where most cases end in plea agreements, and not all of those cases make their way into easily accessible commercial databases. See J. Turner, Transparency in Plea Bargaining, 96 Notre Dame L. Rev. 973, 974, 978–981 (2021).¶verify

An even more fundamental and by now familiar problem lurks here. The government’s theory cannot be squared with the statute’s terms. To determine whether a federal felony qualifies as a crime of violence, § 924(c)(3)(A) doesn’t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with the actual or attempted use of force). It asks whether the government must prove, as an element of its case, the use, attempted use, or threatened use of force.¶verify

Maybe that is the test the statute presupposes, the government answers, but this Court’s case law requires its proposed empirical study all the same. Notice, though, the move implicit here. After previously admitting that we must employ a categorical approach when interpreting the reach of § 924(c)(3)(A), the government effectively backtracks. Instead of looking to the elements of attempted Hobbs Act robbery, the government now says that a defendant must present evidence about how his crime of conviction is normally committed or usually prosecuted. If this admittedly atextual theory seems doubtful on its face, a close look at the case the government invokes does not improve the picture.¶verify

The government points to Gonzales v. Duenas-Alvarez ,¶verify

549 U. S. 183 (2007). There, this Court sought to apply provisions of the Immigration and Nationality Act. Id. , at 185. Under the INA, an individual with a prior state-court conviction that meets certain “generic” offense definitions under federal law may face deportation. Id. , at 186, 189; see also 8 U. S. C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii). In Duenas-Alvarez , there was no doubt that the relevant state offense overlapped significantly with the federal definition of generic “theft.” 549 U. S., at 190. But, Mr. DuenasAlvarez argued, state courts had interpreted the offense broadly to reach aiding and abetting conduct that fell “beyond generic theft.” Id. , at 190–191. To test this assertion, the Court looked to state decisional law and asked whether a “realistic probability” existed that the State “would apply its statute to conduct that falls outside” the federal generic definition. Id. , at 193.¶verify

None of this begins to help the government for at least two reasons. First, the immigration statute at issue in Duenas-Alvarez required a federal court to make a judgment about the meaning of a state statute. Appreciating the respect due state courts as the final arbiters of state law in our federal system, this Court reasoned that it made sense to consult how a state court would interpret its own State’s laws. Cf. Estate of Thornton v. Caldor, Inc. , 472 U. S. 703, 709, n. 8 (1985). Meanwhile, no such federalism concern is in play here. The statute before us asks only whether the elements of one federal law align with those prescribed in another. Second, in DuenasAlvarez the elements of the relevant state and federal offenses clearly overlapped and the only question the Court faced was whether state courts also “appl[ied] the statute in [a] special (nongeneric) manner.” 549 U. S., at 193. Here, we do not reach that question because there is no overlap to begin with. Attempted Hobbs Act robbery does not require proof of any of the elements § 924(c)(3)(A) demands. That ends the inquiry, and nothing in Duenas-¶verify

Alvarez suggests otherwise. 3¶verify

*¶verify

The government quickly abandons the legal theory it advanced in the courts of appeals—and neither of the two new options it auditions before us begins to fill the void. In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety. Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits.¶verify

Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force. Following¶verify

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3 JUSTICE ALITO offers still another argument on the government’s behalf. According to our colleague, the crime of completed Hobbs Act robbery requires the government to prove beyond a reasonable doubt, and a unanimous jury must agree on, the particular “means” by which the defendant committed his offense—by “actual” force, “threatened force,” “violence,” or “fear of injury.” § 1951(b)(1); post , at 3–6 (dissenting opinion). And because attempts to commit robbery by some of these means could qualify as crimes of violence under § 924(c)(3)(A), JUSTICE ALITO would classify the entire offense of attempted Hobbs Act robbery a “crime of violence.” Post , at 6. But the parties have not whispered a word about any of this. Perhaps for good reason too. For one thing, it is unclear whether the Act’s “means” clause sets forth elements or merely lists alternative ways a defendant may take or obtain property against the victim’s will. If the latter is true, as some courts have held, a jury need unanimously conclude only that the defendant used one of the listed means; it need not agree on which one. See, e.g. , United States v. St. Hubert , 909 F. 3d 335, 348–349 (CA11 2018); United States v. Hancock , 168 F. Supp. 3d 817, 821 (D MD 2016). For another, even assuming the Act is divisible in the sense he suggests, JUSTICE ALITO acknowledges that his some-is-good-enough approach defies this Court’s precedents. Post , at 6; Descamps v. United States , 570 U. S. 254, 260–264 (2013).¶verify

that direction in this case, the Fourth Circuit correctly recognized that, to convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any of those things. Accordingly, Mr. Taylor may face up to 20 years in prison for violating the Hobbs Act. But he may not be lawfully convicted and sentenced under § 924(c) to still another decade in federal prison. The judgment of the Court of Appeals is¶verify

Affirmed.¶verify