Argument Preview: James v. United States on 11/7

The following argument preview was written by David Jang of the Stanford Supreme Court Litigation Clinic.

Oral arguments will open on Tuesday, November 7 with James v. United States (No. 05-9264). James asks whether the Eleventh Circuit erred in ruling that a prior conviction for attempted burglary under Florida law qualifies as a “violent felony” under the federal Armed Career Criminal Act. If so, it could trigger a heightened sentence for convicted felons who are subsequently caught in possession of guns and ammunition. Like Burton v. Waddington (No. 05-9222), which will be argued the same morning, James gives the Court yet another opportunity to address criminal sentencing in the wake of Apprendi v. New Jersey. Unlike Burton, however, James revolves largely around issues of statutory interpretation.

Craig L. Crawford of the Florida Federal Public Defender’s office will argue on behalf of petitioner James, and Assistant to the Solicitor General Jonathan L. Marcus will argue on behalf of the United States. Briefs are available here.

In January 2004, Alphonso James, Jr. pleaded guilty to one count of Possession of a Firearm and Ammunition by a Convicted Felon as an Armed Career Criminal under 18 U.S.C. §§ 922(g)(1) and 924(e). The former section punishes convicted felons for possession of firearms and carries a sentence of 51-71 months under the federal sentencing guidelines. The latter section, added by the Armed Career Criminal Act (ACCA), boosts the mandatory minimum sentence to 15 years for offenders who have three prior convictions for violent felonies or serious drug offenses. The prosecution supported James’s indictment with three prior state convictions: two for drug trafficking and a third for attempted burglary. James is fighting his increased sentence by asserting that his attempted burglary conviction does not satisfy Section 924(e)’s definition of “violent felony.”

James argues that the text of the ACCA precludes a rule that attempted burglary, as defined by Florida law, qualifies as a violent felony. He points to the bifurcated definition of “violent felony” in Section 924(e)(2)(B) of the Act as a crime that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another” or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Florida defines burglary more broadly than the Model Penal Code, including the enclosed grounds surrounding a dwelling as well as the dwelling itself. In addition, all that is required to establish an attempted crime in Florida is a specific intent to commit a crime, along with any act taken toward committing that crime. Since the elements of attempted burglary in Florida do not include an element of physical force, the crime must fall within the second class of crimes to count as a violent felony. According to James, however, burglary and attempted burglary are mutually exclusive because a defendant can only be convicted of attempted burglary if he fails to actually enter or remain in the target dwelling. Further, attempted burglary cannot fall within the catch-all “otherwise involves” clause because an indictment for attempted burglary does not require proof of conduct that “presents a serious potential risk of physical injury to another.”

James bolsters these arguments by reference to two canons of textual interpretation. The first states that when one section of a statute includes language that is omitted from another, it is presumed that Congress intended the disparity. Thus, since the first prong of the statutory definition of “violent felony” refers to attempts and the second does not, the latter’s catch-all clause does not encompass attempt crimes. James next mobilizes ejusdem generis, a canon that states that when a series of specific words is followed by a general term, the general term should be construed to include only the same kind of things as those specifically listed. James argues that the canon limits the scope of the catch-all clause to crimes resembling the enumerated crimes directly preceding it—i.e., completed crimes.

James rounds out his case with two substantive canons of interpretation. First, the canon of constitutional avoidance commands courts to construe statutes, where possible, so as to avoid potential conflicts with constitutional rules. James urges that since a conviction of attempted burglary does not require a jury to find that a defendant engaged in conduct posing a risk of physical injury, the Eleventh Circuit’s rule that attempted burglary involves such conduct amounts to judicial fact-finding forbidden under the Apprendi line of cases. James argues that pursuant to this canon, the ACCA must be construed so as to not raise this potential conflict with the Fifth and Sixth Amendments. Second, James claims that the rule of lenity requires the Court to resolve any ambiguity in the ACCA in favor of criminal defendants.

The United States counters by describing attempted burglary as falling neatly within the catch-all clause of Section 924(e)(2)(B)(ii). The United States argues that attempted burglary necessarily involves “conduct that presents a serious potential risk of physical injury to another”—with the emphasis on potential. Congress included burglary among the ACCA’s enumerated predicate crimes due to the possibility of a violent confrontation between an intruder and a rightful occupant of a dwelling. An attempt to enter another’s dwelling poses the same potential risk of violence, even if the offender does not succeed in entering the dwelling. (The United States’s brief points out that during his burglary attempt, James threw a hammer through a closed window while a man and his 19-month-old daughter were inside.) In addition, a conviction of attempted burglary under Florida law requires proof of an overt act directed toward entering or remaining in a structure or conveyance. James’s conviction for attempted burglary thus encompassed proof that he engaged in conduct that posed a potential risk of physical injury to another.

The United States denies that any canons of textual interpretation cut the way James claims. The United States characterizes James’s argument about the textual discrepancy between the two prongs of Section 924(e)(2)(B) as an expressio unius argument that is appropriate only in cases of omission from a single group or series of terms. Expressio unius est exclusio alterius (the expression of one thing is the exclusion of the other) does not apply to textual discrepancies between parallel, alternative provisions. The United States similarly argues that the ejusdem generis canon does not help James, since that canon only highlights the common attribute among the enumerated predicate crimes explicitly identified by the statute: that of “conduct that presents a serious potential risk of injury to another.”

The United States’s argument that attempted burglary necessarily involves the same potential risk of physical injury as burglary dispenses with James’s substantive canons. Since attempted burglary encompasses such potential risks, a court need not engage in an unconstitutional inquiry into the facts of a particular case in order for an attempt conviction to qualify as a “violent felony” under the ACCA. The rule of lenity, meanwhile, is reserved for cases of a “grievous ambiguity” in the statutory text that does not appear under the government’s interpretation of the law.