(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

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 potential 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. 3–10.

(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. 3–4.

(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. 4–10. 
 

 

 

 

2 BEGAY v. UNITED STATES 

Syllabus 

(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).

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 included 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 quantitative 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. 4–7. 

(ii) DUI differs from the example crimes in at least one important respect: The examples typically involve purposeful, violent, and 

aggressive 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 involving purposeful, violent, and aggressive conduct, which 

shows an increased 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 associated with violent criminal use of firearms. Pp. 7–10. 

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. ALITO, J., filed a dissenting opinion, in which SOUTER and THOMAS, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 06–11543 

LARRY BEGAY, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE TENTH CIRCUIT
 

[April 16, 2008] 

JUSTICE BREYER delivered the opinion of the Court. 

The Armed Career Criminal Act imposes a special mandatory 15-year prison term upon felons who unlawfully 

possess 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 

provision provides for a prison term of up to 10 years for 

an ordinary offender. §924(a)(2). The Armed Career 

Criminal Act imposes a more stringent 15-year mandatory 

minimum 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 
 

2 BEGAY v. UNITED STATES 

Opinion of the Court 

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) (2000 ed.). 

We here consider whether driving under the influence of 

alcohol (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 

following: In September 2004, New Mexico police officers 

received a report that Larry Begay, the petitioner here,

had threatened 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 report 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 subsequent) 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 convictions 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 

sentence 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 
 

 

 

Cite as: 553 U. S. ____ (2008) 3 

Opinion of the Court 

panel by a vote of 2 to 1 rejected that claim. 470 F. 3d 964 

(CA10 2006). Begay sought certiorari, and we agreed to 

decide the question. 

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

intoxicating 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 offense 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. ___ , 

___ (2007) (slip op., at 14–15) (attempted burglary is a 

violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physical 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 

individuals and harmed untold amounts of property. 
 

 

4 BEGAY v. UNITED STATES 

Opinion of the Court 

National Highway Traffic Safety Admin., Traffic Safety

Facts, 2006 Traffic Safety Annual Assessment—AlcoholRelated Fatalities 1 (No. 810821, Aug. 2007), http://wwwnrd.nhtsa.dot.gov/Pubs/810821.PDF (as visited Apr. 11, 

2008, and available in 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. Additionally, 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 threatened 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

intended 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

examples that better illustrated the “degree of risk” it had 

in mind. Our recent case, James v. United States—where 
 

Cite as: 553 U. S. ____ (2008) 5 

Opinion of the Court 

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 respect. Compare 550 U. S., at ___ (slip 

op., at 9–13), with id., at ___ (slip op., at 2, 5–6, 16–17) 

(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 ___ (slip op., at 16–17) (“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 internal quotation marks omitted); see 

also Leocal v. Ashcroft, 543 U. S. 1, 12 (2004) (describing 

the need to interpret a statute in a way that gives meaning to each word).

The concurrence complains that our interpretive approach is insufficiently specific. See post, at 3–4 (SCALIA, 

J., concurring in judgment). But the concurrence’s own 

approach 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 4, requires the concurrence to turn here to the still less 

clear “rule of lenity,” post, at 6, and, as we explain, is less

likely to reflect Congress’ intent. See, e.g., post, at 6–7 

(recognizing inability to measure quantitative seriousness 

of risks associated with DUI). 
 

 

 

6 BEGAY v. UNITED STATES 

Opinion of the Court 

The statute’s history offers further support for our

conclusion 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 previous convictions for robbery or burglary.” 

Taylor, 495 U. S., at 581 (internal quotation marks omitted). Congress sought to expand that definition to include

both crimes against the person (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, supra, 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 4 (SCALIA, J., 

concurring in judgment)) refer to a crime that is similar to

the listed examples 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 
Cite as: 553 U. S. ____ (2008) 7 

Opinion of the Court 

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—

burglary, arson, extortion, and crimes involving the use of 

explosives—in at least one pertinent, and important, 

respect. The listed crimes all typically involve purposeful, 

“violent,” and “aggressive” conduct. 470 F. 3d, at 980 

(McConnell, J., dissenting in part); see, e.g., Taylor, supra, 

at 598 (“burglary” 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 explosion with “the purpose of,” e.g., 

“destroying a building . . . of another” or “damaging any 

property . . . to collect insurance”); id., §223.4 (extortion is 

“purposely” obtaining property of another through threat 

of, e.g., inflicting “bodily injury”); 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 conduct 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., dissenting 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 crimi-
 

 

 

8 BEGAY v. UNITED STATES 

Opinion of the Court 

nal intent at all. The Government argues that “the knowing nature of the conduct that produces intoxication combined with the inherent recklessness 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 purposeful or 

deliberate. See Leocal, 543 U. S., at 11 (a DUI offense 

involves “accidental or negligent conduct”); see also 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., dissenting in part) (“[T]he title [of the Act] was not

merely decorative”). 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 

intentional or purposeful conduct (as in burglary and 

arson) are different than DUI, a strict liability crime. In 

both instances, the offender’s prior crimes reveal a degree

of callousness 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 Con-
 

 

Cite as: 553 U. S. ____ (2008) 9 

Opinion of the Court 

gress intended a 15-year mandatory prison term where

that increased 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

committed 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 duty causes serious 

accidents). We have no reason to believe 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 criminal 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 

“violent felony,” along with any other crime that can be

said to present “a serious potential risk of physical injury.” 

Post, at 2 (opinion of ALITO, J.). And it would do so because it believes such a result is compelled by the statute’s 

text. See ibid. 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 statute covers. The dissent at most believes 

that these examples are relevant only to define the “requisite” serious risk associated with a “crime of violence.” 

Post, at 6. But the dissent does not explain what it means 

by “requisite,” nor does it describe how these various 

examples might help define that term in the context of 

this statute. If they were in fact helpful on that score, we

might expect more predictable results from a purely riskbased approach. Compare post, at 1, 6–7 (SCALIA, J., 
 

 

 

10 BEGAY v. UNITED STATES 

Opinion of the Court 

concurring in judgment), with post, at 1–4 (dissenting 

opinion). Thus, the dissent’s reliance on these examples 

for a function they appear incapable of performing 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. (Indeed, we may have such an instance before us.

470 F. 3d, at 965.) Rather, we hold only that, for purposes

of the particular 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 proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

SCALIA, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 06–11543 

LARRY BEGAY, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE TENTH CIRCUIT
 

[April 16, 2008] 

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 presents a serious potential risk of 

physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). 

Contrary to the Court, I conclude 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. ___ 

(2007), the Court held that attempted burglary qualifies 

as a violent 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 whether the risk posed by the predicate crime is roughly equivalent to the risk posed by the

enumerated crime. Because burglary was the enumerated 

crime most closely analogous to attempted burglary, and 

attempted burglary in the Court’s judgment posed roughly 
 

 

 

 

2 BEGAY v. UNITED STATES 

SCALIA, J., concurring in judgment 

the same risk of physical injury as burglary, attempted

burglary qualified as a “violent felony” under §924(e). See 

id., at ____ (slip op., at 15). 

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 enumerated 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 ____ (slip op., at 2). 

My dissent set out a different approach to the statute.

In my view, the best way to interpret §924(e) is first to 

determine which of the enumerated offenses poses the

least serious 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 concluded that attempted burglary, which is less

risky than burglary, 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 

decisis. 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 followed, I presume, for unenumerated crimes that are 

analogous to enumerated crimes (e.g., attempted arson).

It provides no answer, and suggests no approach to an

answer, where, as here, the predicate crime has no analog 

among the enumerated crimes. For such cases I would 

therefore adhere to the principles I set forth in my James 

dissent. 
 

Cite as: 553 U. S. ____ (2008) 3 

SCALIA, J., concurring in judgment 

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 offenses, the Court engrafts a requirement onto the 

residual clause that a predicate crime involve “purposeful, 

‘violent,’ and ‘aggressive’ conduct.” Ante, at 7. 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 madefor-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 ‘aggressive’ conduct” (so that their status cannot be 

resolved by today’s deus ex machina). Presumably some

third (and perhaps fourth and fifth) gimmick will be devised to resolve those cases as they arise, leaving our

brethren on the district 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

interpretation of this statute, the problem with the Court’s 

holding 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 respects 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 

injury to another” signifies a similarity between the enumerated and unenumerated crimes. It is not, however, 

any old similarity, such as (to take a random example) 

“purposeful, ‘violent,’ and ‘aggressive’ conduct.” Rather, it 
 

4 BEGAY v. UNITED STATES 

SCALIA, J., concurring in judgment 

is the particular 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 context means “‘in a different way or 

manner.’” Ante, at 6–7; see also James, 550 U. S., at ___ 

(SCALIA, J., dissenting) (slip op., at 4); 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 connection 

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 committing a crime of that character similarly constitute 

‘violent felon[ies].’” James, supra, at ___ (SCALIA, J., 

dissenting) (slip op., at 5).

The Court rejects this seemingly straightforward statutory 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 5–7 (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’s only reason for including them.” Ante, at 5. While 

I certainly agree that the degree of risk associated with

the enumerated crimes is unclear, I find it unthinkable 

that the solution 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 
 

Cite as: 553 U. S. ____ (2008) 5 

SCALIA, J., concurring in judgment 

degree of risk. See James, supra, at ___ (SCALIA, J., dissenting) (slip op., at 5). The use of the adjective “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

refuge from the hardships of statutory text, the (judicially) 

perceived statutory purpose. According to the Court,

because the Armed Career Criminal Act is concerned with 

“the special 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 penalty only to those criminals “who might

deliberately point the gun and pull the trigger.” Ante, at 

8–9. I cannot possibly 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 negligent 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 negligence in the employment of 

fire, explosives, or other dangerous means”). 

The Court says that an interpretation of the residual

clause that includes all crimes posing a serious risk of 
 

 

6 BEGAY v. UNITED STATES 

SCALIA, J., concurring in judgment 

injury would render superfluous §924(e)(2)(B)(i), which

provides 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 4 

(internal quotation 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 second 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 between competing permissible interpretations of an ambiguous 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 include 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 “purposeful,

‘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 

evidence 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 
 

Cite as: 553 U. S. ____ (2008) 7 

SCALIA, J., concurring in judgment 

year tells us very little about whether a single act of drunk 

driving “involves conduct that presents a serious potential 

risk of physical injury to another.” It may well be that an 

even greater number of deaths occurs annually to pedestrians crossing the street; but that hardly means that

crossing the street presents 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 driving 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 

statistics 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 negligent 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 minimum of 15 years in

prison on the basis of such speculation. See Ladner v. 
 

8 BEGAY v. UNITED STATES 

SCALIA, J., concurring in judgment 

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. 
_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 06–11543 

LARRY BEGAY, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE TENTH CIRCUIT
 

[April 16, 2008] 

JUSTICE ALITO, with whom JUSTICE SOUTER and 

JUSTICE THOMAS join, dissenting. 

The statutory provision at issue in this case—the socalled “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 construction of this provision. Unfortunately, 

the Court’s interpretation simply cannot be reconciled 

with the statutory text, and I therefore respectfully

dissent. 

In September 2004, after a night of heavy drinking,

petitioner 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 

driving under the influence of alcohol (DUI). While DUI is 

generally 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 
 

2 BEGAY v. UNITED STATES 

ALITO, J., dissenting 

violation 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 subject 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, 

1143–45 (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] 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 

imprisonment 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 serious potential risk of physical injury to another.” Ibid. The only

remaining question, therefore, is whether the risk presented by petitioner’s qualifying DUI felony convictions

was “serious,” i.e., “significant” or “important.” See, e.g., 

Webster’s Third New International Dictionary 2073 (hereinafter Webster’s); (2002) 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

influence of alcohol is very dangerous. Each year, approximately 15,000 fatal alcohol-related crashes occur, 

accounting for roughly 40% of all fatal crashes.2 Approxi-

—————— 

1 United States v. Gonzaga 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. 2See the National Highway Traffic Safety Administration (NHTSA) 
Cite as: 553 U. S. ____ (2008) 3 

ALITO, J., dissenting 

mately a quarter million people are injured annually in

alcohol-related 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)—burglary, arson, extortion, and offenses 

involving the use of explosives.4 

—————— 

Traffic Safety Facts Ann. Rep., p. 56, Table 34 (2006) (15,945 alcoholrelated 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/CMSWeb/listpublications.aspx?Id=E&ShowBy=DocType (all

Internet materials as visited Apr. 11, 2008, and available 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 magnitude 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”). 3See 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). 4According to statistics compiled by the Federal Bureau of Investigation, between 1996 and 2006 total annual murders never exceeded 

15,000 after 1997. During that same 11-year period, the highest 

number of murders 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 murders involving explosives topped out at 14—all

in 1996. See Dept. of Justice, Federal Bureau of Investigation, Uniform 

Crime Reports/Crime in the United States (Ann. Reps. 1996–2006), 

online at http://www.fbi.gov./ucr/ucr.htm#cius. While murders committed in the course of extortion 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 alcoholrelated auto accidents. Even if one were to expand beyond murders to

all fatalities and even injuries, it is estimated that arson causes the 
 

 

4 BEGAY v. UNITED STATES 

ALITO, J., dissenting 

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 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 therefore 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 be-

—————— 

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/

vli8-508.pdf. 5See 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, ProblemSpecific Guides Series No. 36, p. 4 (Feb. 2006) (“By most estimates,

although repeat drunk drivers comprise a relatively small proportion of

the total population of drivers, they are disproportionately responsible

for alcohol-related crashes and other problems associated with drunk 

driving”). 6Brewer, supra, text accompanying nn. 23–24; L. Taylor & S. Oberman, Drunk Driving Defense §1.01 (2007). 7See National Conference of State Legislatures, Criminal Status of

State Drunk Driving Laws, online at http://www.ncls.org/programs/lis/

dui/felony.htm (current as of July 2003) (surveying 50 States, the

District of Columbia, and U. S. Territories, most of whom treat the first 
 

 

Cite as: 553 U. S. ____ (2008) 5 

ALITO, J., dissenting 

cause of his extraordinary—and, I would say, extraordinarily dangerous—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 5, 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 7 (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, arson, extortion, and explosives offenses, the statute

provides (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 falling 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—“involve[] 

conduct that presents a serious potential risk of physical 

injury to another.” Requiring that an offense must also be

“purposeful,” “violent,” or “aggressive” amounts to adding

new elements to the statute, 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, 

—————— 

DUI offense as a misdemeanor). 
 

6 BEGAY v. UNITED STATES 

ALITO, J., dissenting 

___, 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, Defense 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 defendants 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 almost 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 behind 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 redundant. The prior subparagraph, §924(e)(2)(A), includes 

offenses 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, Traffic Safety

and Public Health: State Legislative Action 2007, Transportation Series (National Conference of State Legislatures, Dec. 2007, No. 32), p. 17, and App. J, 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 Campaign Safe &

Sober, Phone Numbers for Reporting Impaired, Aggressive, or Unsafe Driving, online at http://www.nhtsa.dot. 

gov/people/outreach/safesobr/16qp/phone.html. 
 

Cite as: 553 U. S. ____ (2008) 7 

ALITO, J., dissenting 

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 8–9. The Court cites no empirical support for this 

conclusion, and its accuracy is not self-evident. Petitioner’s pattern of behavior may or may not be typical of 

those defendants 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 stereotypes 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

persons who, in the judgment of Congress, cannot be 

trusted to use a firearm responsibly. In order to qualify 

for an enhanced 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 

necessarily 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 Government feared, might cause harm

. . .”). And there is no dispute that a prior felony DUI

conviction qualifies as a felony under the felon-inpossession 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 
 

 

 

8 BEGAY v. UNITED STATES 

ALITO, J., dissenting 

serious alcohol abuse problems. As previously mentioned,

ordinary DUI convictions are generally not counted under 

§924(e) because they are not punishable by imprisonment 

for more than a year. Such penalties are generally reserved for persons, like petitioner, with a record of repeated DUI violations. See National Conference of State 

Legislatures, 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 (a) such serious

alcohol abuse problems that they have at least three prior 

felony DUI convictions or (b) both one or two felony DUI 

convictions and one or two offenses that fall under 

§924(e)(2)(B)(i) (offenses that have “as an element the use, 

attempted use, or threatened 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–DUIrecidivists like petitioner. Defendants with a combination 

of felony DUI and other qualifying convictions—for example, convictions for assault or burglary—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 ap-
Cite as: 553 U. S. ____ (2008) 9 

ALITO, J., dissenting 

proach, but his analysis is likewise flawed. JUSTICE 

SCALIA would hold (a) 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; (b) that burglary is the least dangerous of the enumerated offenses; (c) that the relevant 

measure of risk is the risk that the typical burglary, DUI,

etc. would result in injury; and (d) 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 

statutory 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 enumerated 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 potential victims, particularly since the statute explicitly refers to “potential risk.” Drunk driving is regarded as 

a severe 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 procrustean reading of §924(e)(2)(B)(ii). This provision refers, 

without qualification, to “extortion.” In his dissent in 

James v. United States, 550 U. S. ___ (2007), JUSTICE 

SCALIA concluded that many forms of extortion are “inherently unlikely to cause physical harm.” Id., at ___ (slip op., 

at 10) (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 burglary is the least risky of

the enumerated offenses. 
 

10 BEGAY v. UNITED STATES 

ALITO, J., dissenting 

For all these reasons, I would affirm the decision of the 

Tenth Circuit.