Risk. Justice alito well, an offense that prohibits the possession of the sawedoff shotgun has an element. So youd have to decide whether that element creates the 13 risk. I do not see a vessel said. Menendez under my solution, were possession of a shark barrel shotgun would not count under minnesota law because it does not wear the position in connection with behavior that creates a risk. Justice scalia but the jury would have found the fact of the risk menendez precisely, your honor. Justice scalia in the in the cases that you are describing . Menendez in my imagined solution, your honor. But frankly it is up to congress. Justice kagan so so what youre saying essentially is that all the statutes in the back of the government would count . Menendez yes, your honor. Justice kagan but nothing else would. In other words you have to have a listen specifically and this conduct created a serious risk of injury. Menendez if congress chose that as a solution, yes your honor. I think this demonstrates why the seats be left to congress. Justice breyer extortion dozens have that. Menendez extortion is an enumerated offense and that would pose the additional solution, your honor Justice Breyer is there any crime like that . What is the crime like that . Menendez theres 200 crimes like that. Justice breyer in the first one, use attempted use threatened use of physical force and are simply adding to those three categories, youd say, or risk or serious risk . Menendez has as an element the of a serious risk or a serious potential risk. Justice breyer of . Menendez of injury to another. It is up to congress how they choose to define it but if they wanted it to how closely the register all clause if they want to go closely to the status quo, were cars to choose that, than requiring the risks to be a elements the government has collected for us to hundred examples of statutes that have risk is an element they would presumably count. And if there were some left out of the solution the congress wanted to make like for instance if extortion were not one of the enumerated offenses and they wanted to include, all they have to do is listed. It is a perfect congressional function your honors and they can hear data. Justice breyer i see. Menendez they can assess risk. They can hear testimony. They can decide what should and shouldnt count, but we shouldnt be imagining it every time. Justice kagan are you saying that this is something in response to Justice Alitos question that this is a way that congress could fix the statute . Or are you saying that its a where we could fix the statute . In other words, that its an available savings construction that we should feel free to adopt. Menendez your honor, i i dont presume to tell the court what it can and cannot do, but has strived for ames now five times to create an interpretive framework that would solve the problem. I think my suggestion is a good one, but are be it for me to say with congress to do. Justice scalia let me ask you something. Can you get can you get to your sedition from the text of the statute . Menendez i do not believe so, your honor. Justice scalia i dont think so either. Menendez if it were in the text, we would probably not be here to begin with, your honor. Justice kennedy it is important to me to evaluate your statement that most of the problems are at the margins, not at the core. It is my assumption that there was the opposite. I thought the margin for a few in the week core covered a vast amount of grammatical duct. Where do i look to determine who was right on that . This indebtedness . Your honor i think that we grappled with that especially in our reply brief. You are exactly right. In its additional statute the core is large, the margins are great, and the gray margins should lead to a conclusion of vagueness. It in this case, the facts are that over and over again there is disagreement about things that should seem obvious, that shows is that the core is smaller and smaller, if not extremely small compared to the margins. Look at the easy cases that the government pointed at on pages 89 of their brief. On closer examination those give rise to disagreement. There are not uniformly settled in favor of inclusion or exclusion. Anything that seems easy at first left really isnt. There are several splits heading right now your honor. And i dont mean to just dismiss them as disagreements about outcome. As agreements on how to apply this quartz test that are going to be answered by this quartz decision in johnson and wont be answered personally by the next case on the road. Question of whether consensual sacrifices a stone age to qualify, the question of how offenses with recklessness should be assessed for conspiracy to commit crimes of violence. One of the easy cases of the government highlights is solicitation to commit murder, but its really not that easy if insperity to commit a crime of violence has two petitions venting before this court right now. So the veneer of seasons the city that the government attempt great in their writing is allied by the reality on the ground. Justice kennedy different question and its more for the government than for you. As you understand that governments position or is there Common Ground between the parties because this is a mandatory increase the standard for vagueness is precisely the same as the standard that we applied and determined whether or not a crime, and is definitions the in itself a vague. In other words, is there different vagueness standard for sentencing them for the statement of what a crime is at the outset . Miss menendez i dont think in this case it deserves a lesser screw new because its a sensing provision precisely because its both mandatory and onerous in the extreme. Justice kennedy its as if theyre worried a new crime. Menendez in is of it is as if it were a new crime. A not talking about other aspects of his courts jurisprudence, but for that question. And i think folks like versus Hoffman Estates itself suggest that google statue suture greater scrutiny in the the licensing and we are fine statute that gave rise the statement of vague every application, they deserve greater scrutiny and this is certainly one of the most onerous sentencing on chelseas that we as federal defenders face in our practice Justice Ginsburg you say the congressional cure, as i understand your argument, can only be added to the list of crimes, judge larson, extortion, and to have an element of crime is in the serious risk. That is the only things that congress could do. Nothing else. Menendez oh no, your honor. I dont mean to suggest that at all. Congress can fix this however they see that and that is why is that are congressional function than asking one defense attorney Justice Ginsburg but i asked what were the rest that congress could take. One is to list every crime that they think should get the enhanced penalty. Another is to say the statute has to have an element that the conduct creates a serious risk of injury to others. Sort of those two. What the congress to . Menendez well your honor, i dont think listing them is that difficult. Other congressional enactment list a large number of things that Justice Ginsburg im just saying, is there anything else lets accept listing is ok. He saying the crime has to nelnet of the risk of danger to another. Menendez your honor i am not trying to avoid the question. I think it depends on what they want to accomplish. If they want this to apply very broadly to almost any sort of felony they can say so. If they wanted to apply more narrowly to things that are actually violent, they can say so. The problem is that in say much of anything when they wrote the statute. Those of the two ideas i have, but im sure there are more. Justice alito i do want to take up your rebuttal time for just as quick question. If congress and signed a committee or a person to go through the criminal code of a versatile jurisdiction and if i those the defenses that did not fall with any other provision of the a cca, but met in the judgment of that individual or those individuals the residual clause standard, how many do you think they would come up with the . Dozens, hundreds, thousands . Menendez again, it depends on whether congress was this to be narrowly applied enhancement to the worst of the worst or a broadly applied three strikes rule. And i think if they give the commission that can instructed by this courts previous cases that show the hard areas of questions, the commission could decide. I do not think that is necessary to look at every states code. If they justice fund definitions like they did for burglary and robbery in the original 1984 enactment, that with a and enormous amount of western and it would preclude them from having to look at each states code. And with the courts permission, ill say my last moments. Thank you. Justice roberts, thank you counsel. Mr. Chief justice, and may please the court. The armed career will ask state as the score noted in sykes, a normative rentable that can be applied to very is crimes of the methodology that does not produce unconstitutional vagueness. Justice roberts well we do and say anything like that. I think the courts did volunteer opinion about the vagueness of the statute. It did comment on that in james and it had that it was not across to snow. Sykes can later after and the court continued to hear to the idea that the statute can be applied it has been apply for ties for the court and in numerous as to buy lower courts without substantial difficulty. Justice roberts i did me to suggest that we specifically addressed vagueness, but my point was that it provides a particular trust, but as your friend has pointed out, it seems to me point in a differently entirely different direction. What he did was conclude that the celebratory of the similarity of the offense than the residual clause to the numerator defenses had to be more than just similarity of risk, and also had to have a certain similarity in kind. The court noted that the phrase of the court developed purposeful, violent and aggressive wasnt precisely linked to the text of the statute and its made it clear that for fences with a means of knowingly or intentionally risk levels ordinarily provide manageable text that courts can apply. Justice breyer this true, but you see it sort of points to the problem in my mind. There is no doubt that from driving this car the risk of physical injury. But could it be the Congress Really wanted to impose a 15 year mandatory minimum penalties were person who has two drunk driving offenses prior get coated with seems outside the ballpark of what theyre actually interested in, and nuts why i had a session by hard time. I think without such a hard time with this part because of sentence you know. A 15 year mandatory minimum. In part because the advance of the in mind, but it is very hard to figure out. I think that in the event a little too ambitious for the court to try to develop a similarity in kind test. Yes. Is the courts did. That was the position of the government, for justices agreed with that, five do not. We not asking the court to revisit that day. But once the court did develop it then it considered in sykes whether it provided a unit or reversibly applicable text. Justice breyer and dozens. And it concluded that it was better to restricted to crimes that involve negligence, strict liability, recklessness, potentially was not to allow to basically a sub soon whats in the statute rid of the cummington that the court having given guns to the lower court there has been some confusion in the court in its opinion in this case that we could clear about the relationship between bank a and the red risk task. Justice scalia is that all it takes . Ive enjoyed just touch the statute in ways that have nothing to do with this tasks text . I thought we do not have any commonlaw power to create crimes. In it that the case it seems to me has to be congress that does that. And if congress hasnt done it and it seems to me our job is over. I agree with you, Justice Scalia, that the courts length the part of great commonlaw crimes, and i dont think that it has done that. It has engaged in statutory construction about which members of court may disagree. But if the court believes that is similar in kind mutation is appropriate for a textual vehicle for getting there. Is the same vehicle that your honor used in the other johnson case, the one about whether batteries in both strong or star simply offensive touching, and your honor looked at violent felony, the word being defined, include looted the word violent and that if it nation informed woodcut of force would count. And i think that is the essential impulse of the court in the case to distinguish between injuries that are caused by regulatory break violations late pollution and injuries that are caused in a way that the statute specifies. Justice roberts but that break amazing to me, just as clearly be viewed as any confusion. The various hundreds whatever statutes you cite, i dont think its certainly not many of them im not sure any of them involve that aspect of it. In other words it is not just a question of whether it is serious potential risk, but otherwise, what is this relationship to the unit where he did offense. I do think that is not such a big problem of the Court Applies the way that they did it in sykes, the way before courts predominantly do. It is not a precise tactical empirical analysis. The congress could not have envisioned this court in the court would have available to them statistics that for the more crimes do not exist in order to gauge risk levels instead a judgment exercise based on it. My just like the court did in sykes. I was reminded court that a members of the court agreed sykes that flight in a vehicle from the Police Officer in its ordinary case was sufficiently risky to trigger the residual clause there was disagreement because of the particular structure of the indiana statute which had an enhanced the fat offense that involves the killer flights that posed a risk of something. Justice scalia i dont know what you mean by judgment exercise based on experience. What experienced i have regarding these innumerable state crimes echo im not heard any case involving any of the state crimes. What experience are you asking me to apply . . On think the same kind of logical judgment that the lower courts have used. Justice scalia well lets not experience. Im logic is not an experience. You are asked kingly to apply logic or experience. Which aged is it . Both. Justice scalia whats the experience part . It may be a little easier if i start with the logic point commanded from some good to the experience point. The object logic pointed. If the elements of the offensive asking what does the conduct in this offense consists of . Managing an example which my friend on the outside has not challenged with solicitation of a child under the age of 14 to engage and saturday. Now a court can look at the conduct and say what requires an adult attempted as a child to private place to engage in a sex act. Is that a kind of act that is likely as a master of logic and ordinary human experience, adult americans and children, sodomy requires physical contact, isnt likely to produce a serious potential risk of physical injury to another . Courts do not have much difficulty entering the question. Similarly in cases of kidnapping u. S. What does that mean . Justice scalia i suggest they have no difficulty visits horrific crime, not because they have any basis for saying that the degree of risk of serious potential risk of injury is. I do not think that they have two same precision with the degree of risk is. Congress gave for example crimes to try to illustrate what it had in mind. Two of them, burglary and extortion involved conduct district against a property or potential in front of a person. And the danger that can arise as a confrontation, if the burglary counter somebody at the home. The extortion or attempts to realize that threat. Justice breyer all right, i see that. Because im getting back to the experience. The thing that six in my mind was the indiana case. Youre the one im talking about . In fact, we look at the words you see their nested in another set of crimes. Yes. Justice breyer and really to know it empirical fact, how is this with every larger nest actually used in indiana . It might be that its a really used against people who are involved in violent kind of situation over might not be, because there are a whole lot of other ones around. And i experience and say, use experience. Ive no idea whatsoever. And i think after that up go do some empirical research, why does in the government doing . The Sentencing Commission has tried to do it. It cant start. It is a know where to begin there are 70 statutes. So i think Justice Breyer, the very difficulty and unimaginable g of the price just that is, congress had in mind. Justice breyer all right. What congress had a mind was a divine classes and offenses that judges are confident involve serious potential risk of physical injury to another, possibly the similarity in kind mary when the mens rea is unsatisfied. And what Congress Expected course was analyzed with the conduct is that is involved in it, compared to the limited offenses and see if the rest are similar. Does the department of justice do any of that . I mean, and a cca sentence, as i understand it is one that the prosecutor asks for. And is 30 guidance coming from the department of justice, that is to the u. S. Attorneys were going to be asking for the senses, that they showed and when they should not . Likes yes at the guidance keys Office Courts decisions. We use primarily an analysis that focuses on looking on the context of the elements of the crimes of race and logically analyzing what does it entail a risk of confrontation . Justice ginsburg is the written guidance . Yes. Yes there is in the form of guns members that we regard as a work product, but they involve an little efforts to separate different offenses into different categories based on conduct. And to the extent the statistics come into play, your opinions have cited statistics, any type of the needs for to statistics. First with the court talks and sex bubble what happens with someone please from the Police Officer. Justice breyer but what about extortion. I mean the other thread can see, burglary, arson, explosives sure. But what about extortion, its like the hobbs act and i would amazed if any of these involve violence. Justice scalia violence by extorting. Justice breyer hes of the other did boast of communication or something. I mean they say, if you dont give me some money i will reveal such and such. What are the effects on that . I think what congress had in mind was the kind of extortion were somebody in france to inflict injury on a person property in order to achieve a demand. And congress was concerned that the person