US Supreme Court: 06-11543

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

LARRY BEGAY, :

Petitioner :

v. : No. 06-11543

UNITED STATES. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Tuesday, January 15, 2008

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:09 a.m.

APPEARANCES:

MARGARET A. KATZE, ESQ., Assistant Federal Public

Defender, Albuquerque, N.M.; on behalf of the

Petitioner.

LEONDRA R. KRUGER, ESQ., Assistant to the Solicitor

General, Department of Justice, Washington, D.C.; on

behalf of the Respondent.

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C O N T E N T S

ORAL ARGUMENT OF PAGE

MARGARET A. KATZE, ESQ.

On behalf of the Petitioner 3LEONDRA R. KRUGER, ESQ.

On behalf of the Respondent 25REBUTTAL ARGUMENT OFMARGARET A. KATZE, ESQ.

On behalf of the Petitioner 47


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P R O C E E D I N G S

(11:09 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

next in Case 06-11543, Begay v. United States.

Ms. Katze.

ORAL ARGUMENT OF MARGARET A. KATZE

ON BEHALF OF THE PETITIONER

MS. KATZE: Mr. Chief Justice, and may it

please the Court:

The issue in this case is whether DWI is a

violent felony for purposes of an Armed Career Criminal

Act sentencing enhancement. Sentencing enhancement

takes the statutory sentencing range from zero to 10

years and raises it to 15 years to life. The intent of

the Armed Career Criminal Act is to punish most severely

that category of recidivist violent offenders who are

disproportionately responsible for the violent crimes

and who, when they possess a weapon, are more dangerous.

The government is trying to expand the reach

of the statute by so broadly reading the residual clause

as to include any crime that presents a serious

potential risk of injury to another.

Such a reading of that residual clause would

swallow the entire statute. Congress had no intention

of including DWI within the ambit of the Armed Career


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Criminal Act. As Justice Breyer, writing for the First

Circuit in Doe, said, "there is no reason to believe

that Congress meant to enhance sentences pursuant to the

Armed Career Criminal Act based on convictions --

JUSTICE BREYER: If you're quoting that,

then this is what's now bothering me. I'm not saying I

have an answer one way or the other.

Let's take two crimes and imagine that the

same number of people injured or killed is identical for

the two. One let's say is burglary and the other is

driving under the influence. Now, let's imagine exactly

the same number are put at risk, exactly the same number

hurt, exactly the same number killed.

When I wrote that opinion, it seemed to me

that there still is an important difference between the

two crimes that is controlling here. But if you look at

what I wrote, I didn't articulate that difference very

well. So I would like you to tell me what I should have

said in order to have said very clearly just what that

intuitive difference was.

MS. KATZE: Your Honor, I think what you

said was sufficient, but you might have added that there

are other attributes to the -- the crimes in the -- the

enumerated crimes, those being burglary, arson,

extortion, use of explosives. There are certain


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attributes that they share in common that DWI does not

share, and those would include those, as you stated, an

active violent crime. But in addition to that, they're

all property crimes, as this Court said in Taylor.

They are also all acts that have the intent

of causing harm. DWI does not have that. They are all

more dangerous when committed with a gun. And they're

all typical of crimes that would be committed by career

criminals.

JUSTICE ALITO: Some of those

characteristics don't seem to apply to all of the

specific crimes that are mentioned. Take somebody who

sends a series of letter bombs for the purpose of

injuring other people. Now, that would fall within a

crime involving use of explosives. But it's not really

a property crime and it's not a crime that's more

dangerous when done with a gun.

So how -- how can you say that those

characteristics apply to every crime in the list?

MS. KATZE: Your Honor, arguably they might

not apply to everyone every time. But I think the vast

majority of them do. And what we're looking at are in

ordinary cases. And the example that you gave of the

letter bomb, I believe that would be a property crime.

When we're talking about a property crime as with arson

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or use of explosives, it's the destruction of property.

JUSTICE SCALIA: I think you can say that

all of the crimes that are listed require mens rea and

DUI doesn't; does it?

MS. KATZE: Absolutely. Absolutely.

JUSTICE SCALIA: That's a big different,

isn't it?

MS. KATZE: I think it's a huge difference.

DUI -- DUI in New Mexico is a strict liability crime.

It has no mens rea whatsoever. An individual doesn't

even have to have the intent to drive. And, in fact, we

have a case in New Mexico where a woman had taken Ambien

and was driving, and she didn't even know she was

driving, but she still was convicted because she merely

was in control of the vehicle. So in New Mexico, a

strict liability crime where you don't even have to know

you're driving, as opposed to the four enumerated

offenses, where there is clearly some intent to cause

some harm --

JUSTICE KENNEDY: Would you have the same

answer if you had a State statute which defined felony

drunk driving, as many do, as felony drunk driving which

causes serious death or serious physical injury to

another?

MS. KATZE: I think it would -- the analysis


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wouldn't be different. There would be an additional

element, an additional piece of harm. But the --

JUSTICE KENNEDY: You would still say that

that statute does not qualify?

MS. KATZE: Not unless there is a definition

of -- if there is an actual intent to cause harm. If

there is just merely harm that's caused --

JUSTICE KENNEDY: No, there isn't in the

usual felony drunk driving statute, there is --

MS. KATZE: And I agree. I think in that

case, then that also would not fall within the statute.

There is not the intent to cause harm.

JUSTICE ALITO: What if the crime is

vehicular homicide, defined as causing the death of

another person while driving intoxicated? Would that be

a crime that creates a serious potential risk of

physical injury to another?

MS. KATZE: That would not fall under

paragraph 2, because it would not meet any of the other

attributes of the enumerated crimes. Possibly could it

fall under paragraph 1, the use of force? It would

depend how the elements described what the definition of

use of force. This Court has previously defined use of

force as an intentionality that I think normally in that

type of vehicular homicide would not be included.


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CHIEF JUSTICE ROBERTS: You are assuming, of

course, that the canon of ejusdem generis applies to the

statute, as opposed to Congress just singling out a

couple of things it wanted to be sure were covered. And

we left that issue open in James, didn't we?

MS. KATZE: Yes, you did. In James you were

dealing with a clearly analogous case, and DWI is not

analogous in any way, shape, or form with those four

enumerated crimes. And I think that it's pretty

clear --

JUSTICE GINSBURG: Well, in one way -- in

one way it is, in that like those other crimes it

presents a serious risk of potential injury to another.

That's what they all have in common. It's a residual --

one argument that was made was when the statute was

first drafted all it had was the residual, "presents a

serious risk of potential injury to another." So

that's, the argument is, that's what drives this

statute, and then these, these specific crimes, were

added just to be sure they would be covered.

MS. KATZE: Your Honor, answering your

question and the Chief Justice's question, I think it's

important to remember that the first version of this

statute came out in 1984, and that just involved

burglary and robbery. And then in 1986, we have the


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version that we have now.

What we are discussing is the debate in

Congress that occurred between then and how the actual

wording was made up. But I submit that if Congress

wanted to use those four enumerated crimes merely as an

example, they would have structured the paragraph

differently. They would have made a third paragraph

under definition of violent felony and they didn't.

There are two paragraphs. The second

paragraph, the one that we're dealing with, clearly

there's a substantive connection between the four

enumerated crimes and it says, "or otherwise crimes that

present a serious potential risk of injury."

It seems clear to me if we look at this

under the rules of statutory interpretation -- and this

is a statutory interpretation case -- that Congress

added those four crimes as a means of limiting the

residual clause.

JUSTICE SOUTER: Then why did it use the

word "otherwise"? Why didn't it use the word

"likewise"?

MS. KATZE: I would agree, "likewise" would

have been a more artful way to have written it.

JUSTICE SOUTER: It would have meant

something different, wouldn't it?


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MS. KATZE: I think, in fact --

JUSTICE SOUTER: "Otherwise" means in some

other way.

MS. KATZE: That's the dictionary

definition, Your Honor.

JUSTICE SOUTER: Well, yes.

(Laughter.)

JUSTICE SOUTER: That's usually the best way

to understand each other is by, you know, assuming that.

MS. KATZE: I would agree that's one thing

that we look at. But under -- this is a statutory

interpretation case, not a dictionary case, and we have

to look at the plain meaning. And that involves looking

at this turn of the phrase in context, in the whole

text. What was -- what was the intent of this statute?

What's the term to be defined, "violent felony."

JUSTICE SCALIA: You've run away from me on

"otherwise." I think the "otherwise" ties the last

paragraph to the -- to the preceding four enumerated

crimes. And if -- if it had just gone on to say "or

presents a serious risk of injury" without the

"otherwise," then I don't think you'd have any argument

that you have to somehow look to the degree of injury,

the -- the manner of injury that the four enumerated

crimes have. The "otherwise" ties it together, "or

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otherwise presents a risk of serious injury."

And I think the implication is that the --

that the -- the injury must be similar to the -- at

least in degree to the enumerated crimes beforehand. I

wouldn't run away from the "otherwise."

MS. KATZE: Your Honor, and I'm not running

away from the "otherwise." While I don't agree that

it's the dictionary meaning, I do agree with you, Your

Honor, that it is the substantive link. It's the

connection. It's a word and we have to give meaning to

every word in the statute --

JUSTICE SOUTER: But in -- in doing that,

you've got, in other words, to understand what

"otherwise" means. You've got to look at the language

that follows "otherwise." And that's -- that then

refers to "risk of serious injury to a person." And in

effect, it is saying the common element is risk of

injury to the person. How that risk is raised may be in

different ways from the way the risk is raised, say, in

a burglary case or what-not. And if that is the proper

analysis, then it seems to me you've got a tough row to

hoe here.

MS. KATZE: I believe the correct

analysis -- and I do believe that ejusdem generis does

apply here, because here we have a list of four specific

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offenses followed by a general term, and we have to read

that general term narrowly so as not to give additional

breadth to acts of Congress. And we have to remember

that we're defining the term "violent felony". And

those four violent felonies that have the certain

attributes in common then are followed by "or

otherwise." And in looking at it all in context, there

has to be some --

CHIEF JUSTICE ROBERTS: No, but then I was

wondering about that as well, that as a violent felony

whether that gives you any traction. But extortion, you

don't normally think of that as a violent felony and yet

it's clearly included in the definition.

MS. KATZE: It's violent in the sense that

extortion is trying to get something from somebody of

value. It's the idea that --

CHIEF JUSTICE ROBERTS: Yes, but you don't

say, give me that or I'll break your legs all the time.

You may say, give me that or I'll release this

embarrassing letter. That's extortion. It's not

violent, though.

MS. KATZE: I think it is violent in the

sense of the terms that this Court used in Leocal and

that Justice Breyer used in Doe, the idea of some kind

of violent act or more closely related action.

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CHIEF JUSTICE ROBERTS: But then, releasing

the letter is not violent and it may cause embarrassment

rather than physical injury. Yet it would qualify as

extortion.

MS. KATZE: It absolutely would, and this

Court in Taylor said that the four crimes all have those

-- basically, in general, have those attributes.

But I think we have to look at the ordinary

case. I believe even in the hypothetical that you have

given, Your Honor, is that -- that that does involve an

act of violence against an individual's reputation, that

reputation in the common law sense --

JUSTICE SOUTER: No, but it says "person,"

not -- it says "person," not "reputation."

MS. KATZE: I'm sorry, Your Honor?

JUSTICE SOUTER: You're saying the violence

can be against the reputation. That's not what the

statute is talking about. I mean that is -- that's

inconsistent with the plain language of the statute.

MS. KATZE: But the statute does talk about

violence. If we look at the --

JUSTICE SOUTER: It doesn't talk about

violence in the abstract. It talks about physical force

against the person of another in number 1; and in number

2, where we are here, "a risk of physical injury to

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another."

MS. KATZE: Yes, Your Honor. And in the

second paragraph it deals with property crimes. And the

whole -- it all comes under the rubric of violent

crimes. That's what Congress was concerned about. Even

the serious drug offenses, the reason those were added

to the statute is the concern about violence with drugs.

So it all has to do with the idea of violence, and so,

initially, it was --

JUSTICE SOUTER: Well, it has to do with the

idea of risk of violence. A burglar when he commits

burglary does not want violence. He wants to get the

silver out of the sideboard and get back down the

ladder. He doesn't want any violence with anybody.

MS. KATZE: I would agree with you, Your

Honor.

JUSTICE SOUTER: And the problem is that, by

being in the situation he's in, he creates a risk that

violence will occur. Somebody may show up.

And the person, likewise, who commits DWI

doesn't want to hurt anybody, but he has placed himself

in a situation in which, if somebody shows up driving

another car in front of him or walking across the street

or maybe even in apprehending him for his DWI, a risk of

violence is raised. The two cases in that respect are

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parallel.

MS. KATZE: I would disagree, Your Honor,

and here's why I don't think they're parallel. In a

burglary, I agree with you, The individual doesn't want

to get caught, but goes with the fear or the knowledge

that they may be apprehended. They may arm

themselves -- again, the concern with those violent

activities and being armed.

JUSTICE SOUTER: When the drunk leaves the

bar, doesn't he have the realization, unless he is just

blind at that point, that he may be apprehended?

MS. KATZE: It is just --

JUSTICE SOUTER: He's not going to throw

himself into the arms of the nearest cop.

MS. KATZE: Absolutely not, but here's the

big -- the big difference. If somebody is drunk and

gets in a car, at most their intention is to get from

Point A to Point B. They have no intention of hurting

an individual. They don't even have the intent of

driving.

JUSTICE SOUTER: Right, but when a guy goes

up the ladder for the silver in the sideboard, at most

what he wants is the silver.

MS. KATZE: But he intentionally goes to

somebody else's property to commit this act that will

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cause harm.

JUSTICE KENNEDY: Well, the driver

intentionally drives the car knowing that there's a

risk.

MS. KATZE: With all due respect, Your

Honor, in DWI there is no intention to drive. It's a

strict liability offense, as the example I gave in --

JUSTICE KENNEDY: But that -- that is

because everybody knows there are -- there are two

conditions: One in which he just is reckless and he

doesn't care, in which case he has the intent; the other

one, he's so drunk he can't form the intent. Both of

them are covered, and the latter is simply because we

don't want an excuse to exonerate the more culpable of

the two.

MS. KATZE: Your Honor, in New Mexico, DWI

is a strict liability. There is no intent. There is

not even negligence. It's merely being in control of a

vehicle.

JUSTICE KENNEDY: That's true in almost

every State, for the reasons that I've indicated,

because many people have the intent, and those that

don't shouldn't be exonerated because they're more

drunk.

MS. KATZE: If I may just add as well, in

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some of the discussions about the actions of DWI and

running into people, it's important to note, if we're

looking at this with a categorical analysis, just to

look at the elements of the offense. DWI in New Mexico

would necessarily -- there would have to be another

element. If somebody --

JUSTICE ALITO: The residual clause is a

difficult problem, but I still have not heard what

characteristic the enumerated offenses have in common,

all of them, that provides a basis for limiting the

residual clause.

They're not all property crimes. A lot of

crimes involving explosives: Illegal possession of

explosives, illegally manufacturing explosives,

obtaining explosives by making false statements. None

of those are property crimes and none of them involve

injury to a person -- I mean involve the threat of the

use of force against a person. So what is the

characteristic that all of the enumerated crimes have in

common that would provide a limitation on the residual

clause?

MS. KATZE: At their very least, they all

are acts that intend to cause harm. They all are

property crimes. This Court reiterated --

JUSTICE ALITO: No, they're not. In 18

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U.S.C. 842, explosives, unlawful -- "It shall be

unlawful to engage in the business of importing,

manufacturing, or dealing in explosive materials without

a license issued under this chapter."

MS. KATZE: Your Honor --

JUSTICE ALITO: There's no intent to cause

harm there.

MS. KATZE: Your Honor, the term in the

Armed Career Criminal Act is the "use of explosives."

This Court has defined "use" as having an

intentionality, and intent -- and I think it's fair to

say that that intent to use those explosives -- and,

from a practical point of view, people who -- and we

could talk about the ordinary case. People who use

explosives, they blow up property. They blow up houses.

They blow up bridges. At the very least, they're

blowing up explosives. That certainly -- that certainly

is an act to cause some type of harm to property.

And, with respect to whether they are

property, I submit all four are property crimes. This

Court said in Taylor all four of them are property

crimes. This Court interpreted the congressional -- the

legislative history. Those were four property crimes

that Congress specifically wanted to add to the concern

about violence --

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JUSTICE SCALIA: I don't -- I don't

understand this line of argue. You would exclude, let's

say, physical assault from -- from this, I mean assault

with intent to kill, because it's not a property crime?

MS. KATZE: Yes.

JUSTICE SCALIA: That wouldn't be included

in the "otherwise involved"?

MS. KATZE: No, Your Honor, that would not

fit under paragraph 2. That would fit under paragraph

1, the use of force against an individual.

Congress carefully crafted this statute.

They dealt with serious drug offenses and they dealt

with offenses against people, and then they dealt with

offenses against property where there was --

CHIEF JUSTICE ROBERTS: It's kind of odd,

when the catch-all is phrased in terms of physical

injury to another, to say that it's concerned only with

property crimes.

MS. KATZE: Property crimes with the

potential for physical injury to another, not just

purely property crimes. The four enumerated crimes all

have the potential for physical injury to another.

JUSTICE KENNEDY: Well, it seems to me that

your argument gives us greater reason to treat the last

clause as independent just so that we can be sure that

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it doesn't include only property crimes, because, as the

Chief Justice just pointed out, "physical injury" is

really the term that does the work in the second clause.

So it seems to me that you're almost giving

us a reason to make that clause more independent, more

forceful, more significant.

MS. KATZE: Absolutely not, Your Honor. You

wouldn't be able to make that interpretation, which is

basically what the government is suggesting, which would

read "otherwise" out of the statute and therefore either

make it tantamount to a third paragraph, which there is

not a third paragraph, or would basically make the

residual clause so broad it would swallow the entire

statute. And we can't believe that Congress would have

so carefully delineated the different areas of violent

felonies and then eviscerate it all with this residual

clause.

JUSTICE STEVENS: May I ask this question

about your interpretation of the word "otherwise." Do

you think it is the equivalent of the statute that

omitted that word, but added in "conduct that presents

an equally serious potential risk of physical injury"?

Do you think -- in other words, do you think that the

four examples define the risk of physical injury that,

the risk of potential physical injury the statute

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contemplates?

MS. KATZE: Your Honor, I don't know that I

would agree "equally serious" would be the exact correct

equivalent. I think that that would be in keeping with

Justice Scalia's, more or less, my impression of Justice

Scalia's dissent in James, because I would submit that

there has to be even more than just an equal balance of

risk. I do think that is an issue that needs to be

compared, as this Court did in James. The Court

compared the risk of attempted burglary to burglary and

found that they were similar.

I think in a non-analogous case there are

other attributes that we'd have to look at, and that's

why we suggest --

CHIEF JUSTICE ROBERTS: Well, doesn't that

suggest that "otherwise" in the statute is in fact used

to mean "likewise"? I mean, if we said "attempted

burglary" in James it's obviously included because

burglary is -- attempted burglary doesn't present a risk

in a different fashion from burglary. It presents it in

the same fashion.

MS. KATZE: And that was this Court's

analysis in James, and I think that that's reasonable to

CHIEF JUSTICE ROBERTS: That was a helpful

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question.

(Laughter.)

MS. KATZE: I think it's important not to

lose sight of the term that we are defining, "violent

felony," and that -- as well as the purpose or intent of

the statute was to punish a very small percentage, as

this -- as this Court said in Taylor, a very small

percentage of very serious offenders. This isn't a

statute that is written to say any individual who has

three felony convictions that may cause serious

potential risk of injury to an individual is going to

get 15 years. That simply wasn't the purpose. The --

the intent of the statute was to punish this small

population of individuals.

CHIEF JUSTICE ROBERTS: Well, particularly

when you look at subsection (i) in the broad reading of

serious potential risk of (ii), why would -- why would

Congress mean to exclude a particular category of

physical injury from the reach of the statute?

MS. KATZE: Because if it -- if it did

include absolutely everything, then it would swallow the

whole statute, because certainly --

CHIEF JUSTICE ROBERTS: No, not everything;

everything that presents a serious potential risk of

physical injury.

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MS. KATZE: I think it -- if it -- for

example, if it could include DWI, it would be hard to

imagine what kind of crime wouldn't be included in

there. Under that type of reading, if we look at the

structure --

JUSTICE KENNEDY: Filling out a false income

tax return. I mean, I thought of one.

MS. KATZE: Other than maybe some

white-collar crime.

JUSTICE KENNEDY: Well, there is a whole

category of those. So --

MS. KATZE: But the -- the problem with that

analysis is that Congress was very clear who these --

who this statute was geared at; and as Judge McConnell

said in his dissent, the name of the statute, the Armed

Career Criminal Act, is not just window dressing.

There's a -- I mean, that just reinforces our

interpretation that there is this very small percentage

of individuals. It's not supposed to be a general catch

phrase. And --

CHIEF JUSTICE ROBERTS: What do you think

presents the most serious potential risk of injury to

all of us, that we are going to be a victim of arson or

that we are likely to get hit by a drunk driver?

MS. KATZE: Here's why it's hard to answer

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that: I wouldn't argue with you that there are more

people driving drunk than there are people burglarizing

houses, but the relevant analysis is what's the risk in

an individual incident? And in that case statistically

there is a greater risk of injury in a burglary, under

this Court's -- in Tennessee v Garner, it said 8.3

percent, as opposed to a quarter of a percent in an

individual episode of drunk driving. So we can't put

the cumulative drunk driving on the back of Mr. Begay.

We look at the individual incident, doing categorical

analysis, looking at the elements in that individual

incident.

Congress was very concerned about issues of

federalism. The reason for the Armed Career Criminal

Act was to support law enforcement efforts on the part

of States, not to federalize crime, not to federalize

criminal investigation and prosecution. We are

suggesting that keeping that in mind and looking at the

-- the plain meaning of the phrase that we were

discussing, and looking at the way the statute is

actually structured and the fact that there are not

three different paragraphs, as well as the fact that

Congress could have picked to just say "or" as opposed

to "or otherwise," and we have to give "otherwise" a

meaning; and we suggest that our meaning of "likewise"

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is one that this Court has adopted previously.

Previously this Court has said "or otherwise

qualified for a position" and found that people were

qualified in a similar way than other people; "otherwise

qualified to vote," found that individuals were as

qualified or similarly qualified as individuals of

another race. One other example, bringing a -- by

certiorari "or otherwise" was found to be found to mean

to be by similar means as certiorari.

And, Your Honor, if I may reserve the

remainder of my time?

CHIEF JUSTICE ROBERTS: Thank you, Counsel.

MS. KATZE: Thank you.

CHIEF JUSTICE ROBERTS: Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER

ON BEHALF OF THE RESPONDENT

MS. KRUGER: Mr. Chief Justice, and may it

please the Court:

Drunk driving is an act that by its nature

endangers people's lives. It is precisely for that

reason that it is a crime under the laws of all 50

States. When a person is repeatedly convicted of that

offense and therefore becomes subject to punishment as a

felon, he has committed a violent felony as Congress

defined that term in the Armed Career Criminal Act, that

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is because he has committed a crime that in the words of

the statute involves conduct that presents a serious

potential risk of --

JUSTICE GINSBURG: How about a habitual

speeder?

MS. KRUGER: Well, speeding isn't a felony

offense under the laws of any State, to my knowledge.

And we have to recall that the ACCA contains two

requirements for treatment for prior conviction as a

violent felony that would support enhanced sentencing

under that act. The felony requirement is not a trivial

requirement. It was in fact a focus of congressional

debate, and it was intended to capture only serious

crimes. As a general matter, crimes of ordinary

negligence, simple carelessness, or totally blameworthy

acts don't merit felony punishment.

As this Court recognized in Staples, to

label a criminal act as a felony is indeed a serious

thing and something that legislatures, by long

tradition, reserved for truly serious acts.

JUSTICE ALITO: And what is the -- if the

legislature made it a crime to send text messages on a

cell phone while driving, and the punishment were severe

enough to qualify here? Would that be treated the same

way?

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MS. KRUGER: Well, it would present a harder

question, Justice Alito, and that's because, for one

thing, we don't have the uniform judgment of

legislatures that helps us know in this case that drunk

driving does in all cases present a serious risk of

injury. And also because the conduct that's defined by

the DUI statute of New Mexico, as well as other States,

by definition defines conduct that is unsafe. You only

violate the statute if you are impaired to such a degree

that your faculties and motor skills are such that you

are unable to drive a car safely. With text messaging

there isn't quite that categorical mapping on of the

risk to the conduct that's proscribed.

JUSTICE BREYER: So there is no State where

speeding -- even if maybe you hurt somebody or something

-- there is no State where speeding is under a statute

that you could be imprisoned for more than a year?

MS. KRUGER: To my knowledge, there is no

State in which speeding itself is a felony offense.

JUSTICE BREYER: Well, a felony as defined

here. I just wanted to be sure you're focusing -- it's

defined here as "subject to by imprisonment for a term

exceeding one year." Now is --

MS. KRUGER: To my knowledge, at least,

Justice Breyer --

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JUSTICE BREYER: Okay, I just want to be

sure we're on the same wavelength. Fine.

MS. KRUGER: Reckless driving, on the other

hand, when it does result in serious physical injury to

another, is often punished as a felony. But there is

obviously a difference between speeding by itself and

reckless driving.

JUSTICE SCALIA: Ms. Kruger, what I don't

understand about this statute as you're interpreting it

is why you need any of it except the last phrase? Once

you give the last phrase, "involves conduct that

presents a serious potential risk of physical injury to

another," all of the rest of it is automatically

included. "Has as an element the use, attempted use or

threatened use of physical force against the person of

another" -- that obviously presents a serious potential

risk of physical injury to another. Or is burglary,

arson, extortion, the use of explosives? Congress could

have saved itself a lot of trouble by simply erasing all

the rest of the statute and simply saying any conduct

that presents a serious potential risk of physical

injury or not. That can't be what they meant.

MS. KRUGER: Well, what this Court said

about the structure of the statute in Taylor is that

Congress's purpose was first to identify crimes that do

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have as an element the use force, but also to capture a

category of crimes that do not have as an element the

use force but nevertheless present a potential harm to

another human being.

JUSTICE SCALIA: Why -- why would Congress

go through that trouble, unless they wanted to suggest

what other kind of crimes they need to include by this

residual category of "any conduct" that presents a

serious potential risk of physical injury?

MS. KRUGER: Well, indeed as the Court said

in Taylor and I think as the Court reiterated in James,

it included the examples of four enumerated offenses in

clause 2 to provide examples of the kinds of crimes that

they believed to present a serious --

JUSTICE SCALIA: The degree of risk -- the

degree of risk, for example?

MS. KRUGER: Yes.

JUSTICE SCALIA: So if it doesn't come up to

the degree of risk that any of those four would, it

would not be included?

MS. KRUGER: Well, I don't know that the --

JUSTICE SCALIA: No.

MS. KRUGER: -- that the enumerated crimes

set an absolute four. Congress could have written a

statute that said that --

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JUSTICE SCALIA: Well, then what did it do?

What's it do?

MS. KRUGER: They do provide examples of the

kinds of crimes that Congress thought did present a

serious risk.

JUSTICE SCALIA: How? How? How does it

limit the latter part? Is it because they are all

crimes that require mens rea, intent? So should we

limit it by saying it has to be a -- a conduct that's

intentional conduct that presents a serious risk?

MS. KRUGER: Well, I think, as the Court

said in James, all of these crimes are quite different

offenses that don't share very many characteristics in

common, including incidentally intent to cause harm.

JUSTICE SCALIA: But you say it does limit

it. So tell me how it limits it?

MS. KRUGER: Well, what it does is it

provides a useful benchmark against which to assess the

risks that are associated with any other crime.

JUSTICE SCALIA: That's nice. Benchmark of

what? Of intent, of degree of risk?

MS. KRUGER: Of degree -- it's degree and

kinds of risk. Yes.

JUSTICE SCALIA: Okay. So the degree of

risk has to be pretty much similar to those four?

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MS. KRUGER: It has to be comparable, which

is what the Court said in James --

JUSTICE SCALIA: Comparable --

MS. KRUGER: And in this case we do think

that the risks associated with DUI are comparable to the

risks --

CHIEF JUSTICE ROBERTS: How do we know that?

I guess this is a question I asked your friend. I mean,

degree of risk. I mean what are the odds that we're

going to -- that if there's a burglary, some physical

injury might result as opposed to an episode of drunk

driving.

MS. KRUGER: Well, Your Honor --

CHIEF JUSTICE ROBERTS: In other words, I

guess -- do we really look at how -- what percentage of

drunk drivers are involved in accidents as opposed to

what percentage of burglars are involved in violent

confrontations?

MS. KRUGER: No, Your Honor. I don't think

that the answer to the question can turn on statistical

comparisons of the likelihood that harm will result in

any given episode of any of these crimes. I think that

that is a proposition that the Court underscored in

James, when it decided whether attempted burglary

qualified without reference to hard statistics. And the

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fact of the matter is that hard statistics in most of

these crimes are simply unavailable. So to make the

answer in any case turn on the availability of

statistics would lead to fundamentally arbitrary

results.

JUSTICE GINSBURG: One of the anomalies

about this, and we start out -- this is an armed career

criminal. And you can say, well, burglary -- burglary

and arson, if you're apprehended, you're the career

criminal; you commit these kinds of crimes. Congress

doesn't want you to have a gun, or if you do, you're

going to get the book thrown at you. But there doesn't

seem to be much of a connection. I mean how -- how is

it going to make the dangerous -- the drunk driver more

or less dangerous if he happens to have a gun in the

glove compartment?

MS. KRUGER: Well, we think that it's clear

from the enumeration of the offenses in clause 2 in the

definition of "violent felony" that Congress wasn't

intending to capture only a set of crimes that are made

more dangerous when they're committed with a firearm.

It is, in fact, the kind of statute that Congress wrote

in 18 U.S.C. 942(c), which concerns the use or carrying

of a firearm during and in relation to a crime of

violence. But here what Congress was concerned about

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was capturing a set of offenders who, by their criminal

history, have demonstrated an inherent disregard for the

value of human life and therefore should not only be

prohibited from possessing firearms but should face

particularly severe sanctions for failure to abide by

that prohibition. Our --

JUSTICE BREYER: Then they could have turned

it just on dangerousness. I'm back to Justice Scalia

and Justice Ginsburg's question, and I'm simply sort of

repeating those in a sense that make it quite specific.

Imagine a universe of crimes. Every member of that

universe we concede has precisely the same degree of

danger as arson, explosives, burglary. So there's no

argument about the risk to human life. It is identical.

And now we write a statute, and the statute's object is

to take people who are felons in possession of a gun and

those persons whom it is particularly bad that they have

a gun are going to go away for 15 years minimum. So

what we're looking are people who are particularly bad

that they have a gun. Now go back to our universe, and

in that universe we have some things on the one hand

like arson, but on the other hand -- I have to name a

few, environmental crimes committed by negligence or

recklessness, where somebody flushed a toxic substance

down the drain or -- here's a good one I found -- if you

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are a steamboat captain or an executive of a steamboat

company and you fail through negligence or simple

inadvertence to stop somebody from not inspecting a

lifeboat, well, felony or worse. And there are quite a

few dozens of these things: Failing to stop at an

inspection station if you are a trucker. You know?

There are quite a few, where what's at issue is

negligence, thoughtlessness, and maybe even

recklessness, but it seems to have nothing -- and it's

dangerous -- but has nothing to do with whether, when

later on you want a gun, you are a greater risk for

having a gun, you're more likely to pull the trigger,

you're more likely to aim it at somebody and shoot him.

Now, that's I think what we are trying to drive at.

MS. KRUGER: Well, Your Honor, I think that

the initial response to that question is that the

statute that Congress wrote unequivocally focuses the

inquiry on the risk of harm to other human beings.

Congress could very well have written a statute that

required intent to harm. It could have written a

statute that required intentional use of force, as it

did in --

JUSTICE SCALIA: Oh, but it didn't mean that

-- you said it didn't mean that because they could have

said that and nothing else. If that's what they meant,

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they could have eliminated everything else that they

said. They obviously meant to tie that to the preceding

portions. And when you tie it to the preceding

portions, you come up with some limitations of the sort

that Justice Breyer was suggesting.

MS. KRUGER: Well, I think you don't, Your

Honor, because I think the most obvious way to tie it to

the preceding sections is, again, to import a kind of

use-of-force requirement such as the 18 U.S.C. 16(b)

requirements that would look at the risk of force

intentionally will be used in the course of committing

the offense, and --

CHIEF JUSTICE ROBERTS: How much of a

limitation is the point Justice Breyer was making? I

mean, let's say you've got a habitual drunk driver.

Everybody in town says he always drives drunk. I mean,

how would they greet the news: Guess what? He's just

got a gun. I mean, that raises the level of risk

significantly, doesn't it?

MS. KRUGER: Well, indeed, I think that it

does, and I think the facts of this case bear out that

Congress's concern about possession of firearms by

people who have committed crimes of a character that

present a serious risk in a serial manner was indeed

well-founded.

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JUSTICE KENNEDY: Can you tell me what test,

what conclusion, you want me to come to in your

argument? Drunk driving is within the last clause

because --

MS. KRUGER: It is because, first of all,

the risks of drunk driving are commonly understood.

They're supported by the uniform legislative judgment of

the 50 States. And also because those risks are

comparable in both kind and degree to the kinds of risks

that are associated with crimes that Congress

specifically enumerated in the statute as meeting the

test.

JUSTICE SCALIA: She says not at all. Your

friend on the other side says that it's something like,

what, two and a half percent for burglary and point

something for the chances of hurting somebody if you're

driving DUI?

MS. KRUGER: Well, I think, again, the

statistical inquiry, while it can be helpful and

relevant in individual cases, is not dispositive. I

think if you look at the statistics, the chances of

injury resulting from a given arson fire are also well

below 1 percent. What Congress wasn't concerned about

was the statistical likelihood of any injury in a

particular episode --

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JUSTICE KENNEDY: Well, I suppose you say

most legislatures think this is dangerous. That's

enough?

MS. KRUGER: Well, I think that Congress was

entitled to look at --

JUSTICE KENNEDY: I'm not trying to be

captious, but I -- it's difficult to find out what the

standard is.

JUSTICE STEVENS: Isn't the significance of

Justice Breyer's point that each of the listed crimes is

more dangerous when a criminal is carrying a gun, but

driving drunk isn't made any more dangerous whether or

not there's a gun in the car?

MS. KRUGER: Well, Justice Stevens, it's

difficult to see how arson, for example, or explosives

use is made more dangerous when the criminal is carrying

a gun. Presumably in those cases the criminal's use --

weapon of choice is fire or explosives rather than a

gun. The only risk that would inhere would be the risk

that any criminal would pose when apprehended by the

authorities, and it's the same risk that a presumably a

drunk driver would pose to others when apprehended by an

officer who pulls them over.

JUSTICE BREYER: Is a person who

deliberately burns down buildings, is a person who if he

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had a gun might pull the trigger? And I will suggest

that's a reasonable inference. I also will give you

this: That a person who's so careless as to go drunk

driving is a person whose gun might go off carelessly or

he might leave it around the house. So I'll give you

that one. But my instinct is that Congress, in this

Act, is not worried about guns going off carelessly

around the house. They are worried about a person being

the kind of person who will point a gun at somebody and

pull the trigger. Now, is there something you can say

that disabuses me of that instinct?

MS. KRUGER: Well, I think one way to start

to answer that question is by looking specifically at

what Congress likely meant when it referred to "arson"

in the statute. Under 18 U.S.C. 844(i), arson is

defined as maliciously damaging property by means of

fire or explosives. But the way courts have interpreted

that language is not to require intent to damage

property in all instances. It also covers situations in

which the fire is set with willful disregard for the

likelihood that damage will occur; in other words, in

situations in which the fire has occurred and recklessly

poses harm. And we think that that is the kind of

injury that is at issue in this case; that is,

fundamentally the same kind of risk that DUI poses.

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JUSTICE SCALIA: You don't think this is

just limited to intentional arson? You think negligent

arson? Wow.

MS. KRUGER: Well, it's certainly true that

JUSTICE SCALIA: Negligent extortion,

negligent use of explosives? I mean, it's in a list of

things that are talking about, you know, intentional

crimes that armed career criminals would be likely to

do.

MS. KRUGER: Well, I think that Congress was

more than likely aware of the fact that 18 U.S.C. 844

did treat arson in this manner, particularly considering

that --

JUSTICE SCALIA: I don't think Congress had

the slightest idea.

(Laughter.)

MS. KRUGER: Well, the definition of -- the

reach of the Federal arson statute came to encompass use

of fire in 1982, only shortly before the ACCA was

enacted. And certainly it's true that most State

legislatures have also defined arson offenses to include

similar kinds of intentional setting of fire with

reckless disregard to the likelihood of damage or injury

that would result.

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JUSTICE STEVENS: Could you comment on one

other point that Judge McConnell made in his opinion?

Is there significance in the title of this statute,

"Armed Career Criminal Act." Does this statute intend

to identify career criminals?

MS. KRUGER: Well, I think it's difficult to

see how it would support a limitation to the kinds of

crimes that are normally committed as a means of

livelihood in that sense of "career." It certainly does

refer to career criminals in the sense that they are

habitual offenders, that they are recidivists. But

certainly not all the enumerated offenses, nor even the

offenses that are encompassed by the definition that's

contained in clause 1 of the statute, are normally

committed as a means of violent --

JUSTICE KENNEDY: Well, I'm not so sure. It

seems to me that the burglary, arson, extortion,

explosives involves at least the stereotype of the armed

career criminal that you see in movies and hear about in

organized crimes testimony and so forth. I don't -- I

don't think it's completely far of the mark.

MS. KRUGER: Well, it is certainly true that

the kind of --

JUSTICE KENNEDY: Obviously -- obviously

incomplete.

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MS. KRUGER: Well, it's certainly true that

the kinds of crimes that are encompassed by clause 1 of

the definition, sort of traditional crimes of violence

like murder, assault, rape, are not ordinarily committed

as a means of livelihood. People rarely make a

profession of those types of careers.

And it's also true that ordinarily arson is

not committed for insurance fraud, but is committed for

a large number of other purposes that have nothing to do

with the profit motive, including covering up evidence

of other crimes, including simple vandalism.

So I think it's implausible to think that

Congress was really focused here on the kinds of crimes

that are normally committed for profit.

JUSTICE GINSBURG: What else -- what else

would be in this catalogue? You rejected my speeder,

but I think you said something about a reckless driver

might, habitually reckless driver. What else would fit

the description "conduct that presents a serious

potential risk of physical injury to another"?

MS. KRUGER: We think the category of crimes

of recklessness that pose an injury, reckless disregard

of the risk of injury to others, would qualify because

in those cases juries have necessarily found that there

was objectively a serious risk and that failures to

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appreciate that risk and to act accordingly constitutes

a gross deviation from the ordinary standard of care

that a reasonable person would exercise.

JUSTICE GINSBURG: I'd like to know

specifically. You said reckless driving; and what else?

MS. KRUGER: Reckless driving that results

in serious bodily injury or death to another, which is a

felony under the laws of many States, would qualify.

JUSTICE GINSBURG: That has the potential of

doing that, not --

MS. KRUGER: Yes, but reckless driving

simple is ordinarily, not punishable as a felony under

the traffic laws. We think, similarly, reckless

homicide would qualify.

JUSTICE GINSBURG: But wouldn't that come in

in the first, the violent crime, the first part?

MS. KRUGER: Well, presumably it wouldn't,

because by definition a reckless homicide does not

involve the intentional use of force, the threatened use

of force, or attempted use of force. And the definition

relates solely to the killing of another, whether or not

by intentional use of force, in situations that

disregard the great dangerousness to human life and

those actions.

The other things that would qualify would be

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cases like DUI, where recklessness need not be proved as

such, but that are underscored by legislative

determinations that the conduct that is proscribed is by

definition reckless, by definition poses a serious risk

that a person should appreciate and should accordingly

conform their conduct to a different standard.

Petitioner's argument suffers from the

fundamental flaw that it describes a statute that

Congress didn't write. Congress did indeed consider

incorporating the definition of "crime of violence" that

is set forth at 18 U.S.C. 16 when it redrafted the

statute in 1986 and it decided against it, instead

making the inquiry turn on the potential for risk to

human life as opposed to the potential that -- the risk

that force would be used or on the intentional use of

force.

We think that that decision is one that

needs to be given effect in interpreting the statute.

As this Court recognized in Leocal, the risk of

intentional use of force is simply not the same thing

that a risk of -- the risk that an accident will occur

that will cause serious injury to another.

JUSTICE GINSBURG: May I ask about something

in your brief on page 37? You said: "Congress settled

on this language because it had two other proposals, one

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that it considered too narrow and one that it considered

as potentially too broad." And the one that it

considered potentially too broad is "any felony that by

its nature involves a substantial risk that physical

force against a person or property of another may be

used in the course of committing an offense is the" --

this is on page 37 of your brief.

MS. KRUGER: Yes, Your Honor. That is the

definition of "crime of violence" that's contained at 18

U.S.C. 16. And it is, indeed, unquestionably broader

than the definition of "violent felony" at

924(e)(2)(D)(ii) in at least two respects. One is that

it would cover misdemeanors involving use of force as

well as felonies. And the second is that it would cover

crimes that involve a risk that force would be used

against property, rather than focusing exclusively on

the risk of harm to a human being, as the definition of

"violent felony" in the ACCA does.

JUSTICE KENNEDY: It would, in the case of

drunk driving - though, it seems this would be a better

case for the Petitioner if we were operating under this

statute.

MS. KRUGER: Well, indeed, I think that that

is the thrust of the court's decision --

JUSTICE KENNEDY: It's narrower in that

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sense as applied to this case.

MS. KRUGER: That's correct.

JUSTICE KENNEDY: May I ask you this

question? If the government were not to prevail in the

first case, Rodriguez, should we remand in this case,

because -- because then he -- the fourth felony would

have been improperly found if we rule against the

government in Rodriguez?

MS. KRUGER: Well, if the Court decided to

reach that issue in this case, even though the issue was

not pressed or passed on in the court of appeals and

wasn't raised in the cert petition, we do think the

Court's analysis of the issue in that case applies

equally to its analysis of the issue of whether or not

the felony prong of the definition of "violent felony"

is applicable in this case.

So were the Court to decide that the

applicable maximum term of imprisonment that applies to

a recidivist is the term of imprisonment that would

apply to a hypothetical first-time offender, then that

decision would control in this case as well. And the

Court should dispose of this case accordingly.

But it bears noting that that would not

dispose of this question entirely, because there are, of

course, other reasons why States treat drunk driving

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offenses as felony offenses, particularly in situations

in which they result in serious bodily harm or death to

another, as Your Honor previously noted.

The issue in this case comes down to the

interpretation of the statute that Congress wrote, not a

hypothetical statute that Congress could have written.

And that statute identifies one criterion for

determining whether or not a felony offense qualifies as

a violent felony under the ACCA, and that is its

potential for harming other human beings.

Drunk driving is commonly understood to

present a serious potential risks of injury. The

potential risks of injury are the only reason why it's a

crime under the laws of 50 States. And the risks

associated with drunk driving are comparable in both

kind and degree to the risks associated with arson and

explosives use, two crimes that Congress specifically

identified in the statute as satisfying its definition.

For that reason, we think that the court of

appeals correctly determined that Mr. Begay was

sentenced properly under the Armed Career Criminal Act

and would urge the Court to affirm its determination.

If there are no further questions, thank

you.

CHIEF JUSTICE ROBERTS: Thank you, Ms.

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Kruger.

Ms. Katze, you have four minutes remaining.

REBUTTAL ARGUMENT OF MARGARET A. KATZE

ON BEHALF OF THE PETITIONER

MS. KATZE: The problem with the

Government's interpretation is that it offers no

limiting principle whatsoever. It's merely open to say

absolutely any offense that would present a serious

potential risk of injury to another would fall within

the statute. And that clearly does not take Congress's

intent to heart.

And there has to be some other limiting

principle, something more than just the words in the

residual clause, especially when we are giving every

word in the statute meaning. We suggest that our test

of analyzing those four enumerated crimes which were

intentionally put there by Congress, to look at the

attributes of those four crimes. That they are active,

violent property crimes more typical of crimes committed

by career offenders, more dangerous when committed with

a gun --

JUSTICE ALITO: Why wouldn't drunk driving

be property crime? Doesn't it cause an enormous amount

of property damage?

MS. KATZE: Under a categorical analysis,

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there is no element that has anything to do with

property whatsoever in DWI, which brings me to my next

point that recidivism is not an element of DWI in New

Mexico.

The elements to commit DWI in the first

offense are exactly the same as the fourth offense.

There is no difference. And there is -- certainly,

Congress, intended that there would be a distinction

between violent, intentional felonies and accidental or,

at worst, negligent crimes.

CHIEF JUSTICE ROBERTS: Extortion doesn't

involve property as an element.

MS. KATZE: I believe it does. It's trying

to get something of value from another person. That

thing of value is property.

CHIEF JUSTICE ROBERTS: Something of value

-- something of value could be, you know, a confession

in a related case or something. It doesn't necessarily

have to be property.

MS. KATZE: In the ordinary case, it's

property even if we think of it as reputation; property

in the sense of the common law, life, liberty, and

property; that that includes more than just physical

property, I think. In addition, this Court has said

that those four offenses are --

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CHIEF JUSTICE ROBERTS: I don't understand

that. Yes. Life, liberty, and property include more

than property, but --

MS. KATZE: "Property" includes more than

tangible, physical property. Reputation is considered

property under that definition. Merely stating that --

JUSTICE GINSBURG: I thought you said that

you -- you look at the generality of cases. In most

extortion cases what they want is money.

MS. KATZE: That is correct, and money is

property. And that is exactly what -- in addition to

the fact that this Court said in Taylor that those four

offenses are property offenses. And, again, in James

this Court again referred to those four offenses as --

JUSTICE ALITO: Well, if you look at the

generality of drunk-driving offenses, those that result

in physical injury almost always involve, or in the

great majority of cases involve, property damage, too;

don't they?

MS. KATZE: But that's not an element of the

crime. We can --

JUSTICE ALITO: It's not an element of some

of these other crimes, either. Is it an element in

burglary? Is there a property element in burglary?

MS. KATZE: Yes, Your Honor. There is a

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breaking and entering into a building, in some type or

respect a property.

JUSTICE ALITO: That's an entering. An

unlawful entering --

MS. KATZE: Right.

JUSTICE ALITO: That's a property element?

MS. KATZE: Yes, sir.

CHIEF JUSTICE ROBERTS: What about --

MS. KATZE: You have to enter a property.

It's this something -- property --

CHIEF JUSTICE ROBERTS: Well, we know that

attempted burglary is covered, and you don't have to

enter the house in an attempted burglary.

MS. KATZE: I think that's exactly the

situation when there are analogous crimes. It's clear

to see that --

CHIEF JUSTICE ROBERTS: Yes. Well, you are

saying this is an analogous crime to the four that are

listed, or it is not an analogous crime to the four that

are listed?

MS. KATZE: That's correct, but this Court

has said that the four offenses that were enumerated by

Congress are, in fact, property crimes. This Court has

said that in Taylor and again referred to those four

crimes as property crimes in James.

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But even if this Court doesn't believe they

are property crimes, the bottom line is DWI is so far

afield of the four enumerated crimes, the attributes

that they had, at the very least the intent to do crime,

that it's clearly outside the scope of what Congress

could ever have intended.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Ms.

Katze. The case is submitted.

(Whereupon, at 12:04 p.m., the case in the

above-entitled matter was submitted.)

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11:17 17:628:14 29:1,248:1,3,1249:20,22,23,2450:6

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13:2enacted 39:21encompass

39:19encompassed

40:13 41:2endangers 25:20enforcement

24:15engage 18:2enhance 4:3


8/14/2019 US Supreme Court: 06-11543



enhanced 26:10enhancement

3:12,12enormous 47:23enter 50:9,13

entering 50:1,350:4

entire 3:2420:13

entirely 45:24entitled 37:5enumerated

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29:12,23 36:1140:12 47:1650:22 51:3

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35:17gun 5:7,17 32:11

32:15 33:16,1833:20 34:11,1235:18 37:11,13


8/14/2019 US Supreme Court: 06-11543



37:17,19 38:138:4,9 47:21

guns 38:7guy 15:21

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3:8 4:1,5 5:106:2,6,20 7:3,87:13 8:1,119:19,24 10:2,610:8,17 11:12


8/14/2019 US Supreme Court: 06-11543



12:9,17,2413:1,13,16,2214:10,17 15:915:13,21 16:216:8,20 17:7

17:25 18:619:1,6,15,2320:2,18 21:5,521:15,25 22:1522:23 23:6,1023:21 25:12,1425:17 26:4,2127:2,14,20,2528:1,8 29:5,1529:18,22 30:130:6,15,20,24

31:3,7,14 32:633:7,8,9 34:2335:5,13,1436:1,13 37:1,637:9,10,14,2439:1,6,15 40:140:16,24 41:1542:4,9,1543:23 44:19,2545:3 46:2547:22 48:11,1649:1,7,15,2250:3,6,8,11,1751:8

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meet 7:19meeting 36:11member 33:11mens 6:3,10

30:8mentioned 5:12merely 6:14 7:7


8/14/2019 US Supreme Court: 06-11543



9:5 16:18 47:749:6

merit 26:16messages 26:22messaging 27:11

Mexico 6:9,126:15 16:1617:4 27:7 48:4

mind 24:18minimum 33:18minutes 47:2misdemeanors

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47:8presents 3:21

8:13,16 10:2111:1 20:2121:20 22:2423:22 26:228:12,16,2129:8 30:10


8/14/2019 US Supreme Court: 06-11543



41:19pressed 45:11presumably

37:17,21 42:17pretty 8:9 30:25

prevail 45:4previously 7:23

25:1,2 46:3principle 47:7

47:13prior 26:9problem 14:17

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8/14/2019 US Supreme Court: 06-11543



Rodriguez 45:545:8

row 11:21rubric 14:4rule 45:7

rules 9:15run 10:17 11:5running 11:6

17:2

S S 2:1 3:1safely 27:11sanctions 33:5satisfying 46:18saved 28:19

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US Supreme Court: 06-11543

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