United States v. Taylor

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 845–879
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OF
T H E S U P R E M E C O U R T
June 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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TERM, 2021
845
Syllabus
UNITED STATES v. TAYLOR
certiorari
to the united states court of appeals for
the fourth circuit
No. 20–1459. Argued December 7, 2021—Decided June 21, 2022
For his participation in an unsuccessful robbery during which his accom-
plice shot a man, respondent Justin Taylor faced charges of violating the
Hobbs Act, 18 U. S. C. § 1951(a), and of committing a “crime of violence”
under § 924(c). The Hobbs Act makes it a federal crime to commit, at-
tempt to commit, or conspire to commit a robbery with an interstate
component. § 1951(a). Section 924(c) authorizes enhanced punish-
ments for those who use a frearm in connection with a “crime of vio-
lence” as defi ned i n either § 924(c)(3)(A)—known as the elements
clause—or § 924(c)(3)(B)—known as the residual clause. Before the
District Court, the government argued that Taylor's Hobbs Act offense
qualifed as a “crime of violence” under § 924(c). Taylor ultimately
pleaded guilty to one count each of violating the Hobbs Act and § 924(c).
The District Court sentenced Taylor to 30 years in federal prison—a
decade more than the maximum sentence for his Hobbs Act conviction
alone. Taylor later fled a federal habeas petition focused on his § 924(c)
conviction, which was predicated on his admission that he had com-
mitted both conspiracy to commit Hobbs Act robbery and attempted
Hobbs Act robbery. Taylor argued neither Hobbes Act offense qualifed
as a “crime of violence” for purposes of § 924(c) after United States v.
Davis, 588 U. S. –––. In Davis, this Court held that § 924(c)(3)(B)'s re-
sidual clause was unconstitutionally vague. Id., at ––– – –––. In his
habeas proceeding, Taylor asked the court to apply Davis retroactively
and vacate his § 924(c) conviction and sentence. The government main-
tained that Taylor's § 924(c) conviction and sentence remained sound be-
cause his crime of attempted Hobbs Act robbery qualifes as a crime
of violence under the elements clause. The Fourth Circuit held that
attempted Hobbs Act robbery does not qualify as a crime of violence
under § 924(c)(3)(A). The Fourth Circuit vacated Taylor's § 924(c) con-
viction and remanded the case for resentencing. In reaching its judg-
ment, the Fourth Circuit noted that other courts have held that at-
tempted Hobbs Act robbery does qualify as a crime of violence under
the elements clause.
Held: Attempted Hobbs Act robbery does not qualify as a “crime of vio-
lence” under § 924(c)(3)(A) because no element of the offense requires
proof that the defendant used, attempted to use, or threatened to use
force. Pp. 850–860.

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846 UNITED
STATES v. TAYLOR
Syllabus
(a) The Court applies a “categorical approach” to determine whether
a
federal felony may serve as a predicate for a conviction and sentence
under the elements clause, which poses the question whether the federal
felony in question “has as an element the use, attempted use, or threat-
ened use of physical force.” § 924(c)(3)(A) (emphasis added). The rele-
vant inquiry is not how any particular defendant may commit the crime
but whether the federal felony at issue always requires the government
to prove—beyond a reasonable doubt, as an element of its case—the
use, attempted use, or threatened use of force. This Court has long
understood similarly worded statutes to demand similarly categorical
inquiries. See, e. g., Borden v. United States, 593 U. S. –––, –––.
An attempted Hobbs Act robbery does not satisfy the elements clause.
To secure a conviction for attempted Hobbs Act robbery, the govern-
ment must prove that the defendant intended to complete the offense
and that the defendant completed a “substantial step” toward that end.
See, e. g., United States v. Resendiz-Ponce, 549 U. S. 102, 107. An in-
tention is just that, no more. And whatever a substantial step requires,
it does not require the government to prove that the defendant used,
attempted to use, or even threatened to use force against another person
or his property—even if the facts would allow the government to do so
in many cases. As the Model Penal Code explains with respect to the
Hobbs Act's common-law robbery analogue, “there will be cases, appro-
priately reached by a charge of attempted robbery, where the actor does
not actually harm anyone or even threaten harm.” ALI, Model Penal
Code § 222.1, p. 114. But no element of attempted Hobbs Act robbery
requires proof that the defendant used, attempted to use, or threatened
to use force. Pp. 850–852.
(b) The government's countervailing arguments fail. Pp. 853–859.
(1) The government frst argues that the elements clause encom-
passes not only any offense that qualifes as a “crime of violence” but
also any attempt to commit such a crime. But the elements clause only
asks whether the defendant did commit a crime of violence as defned
by the statute. P. 853.
(2) The government next argues that the “substantial step” element
of attempted Hobbs Act robbery categorically requires it to prove that
a defendant used, attempted to use, or threatened to use physical force.
But while many who commit the crime of attempted Hobbs Act robbery
do use, attempt to use, or threaten to use force, the government's prob-
lem is that no element of attempted Hobbs Act robbery requires the
government to prove such facts beyond a reasonable doubt. The gov-
ernment maintains that anyone who takes a substantial step toward
completing Hobbs Act robbery always or categorically poses a “threat-
ened use” of force because the word “threat” can be used to speak of an
abstract risk. The government submits that the elements clause uses

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847
Syllabus
the term to require only an objective, if uncommunicated, threat to com-
munity
peace and order. But when Congress uses the word “threat” in
such an abstract and predictive (rather than communicative) sense, it
usually makes its point plain. The textual clues in the statute point
in the opposite direction of the government's reading. Moreover, the
government's view of the elements clause would have it effectively repli-
cate the work formerly performed by the residual clause. Under usual
rules of statutory interpretation, the Court does not lightly assume Con-
gress adopts two separate clauses in the same law to perform the same
work. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc.,
486 U. S. 825, 839, n. 14. Pp. 854–857.
(3) The government's fnal theory accepts that a conviction under
the elements clause requires a communicated threat of force and con-
tends that most attempted Hobbs Act robbery prosecutions involve ex-
actly that. But whatever this argument proves, the theory cannot be
squared with the statute's terms. Congress in the elements clause did
not mandate an empirical inquiry into how crimes are usually com-
mitted, let alone impose a burden on the defendant to present proof
about the government's own prosecutorial habits. Attempted Hobbs
Act robbery does not categorically require proof of the elements
§ 924(c)(3)(A) demands. That ends the inquiry, and nothing in Gonzales
v. Duenas-Alvarez, 549 U. S. 183, suggests otherwise. Pp. 857–859.
979 F. 3d 203, affrmed.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ.,
joined. Thomas, J., post, p. 860, and Alito, J., post, p. 873, fled dissent-
ing opinions.
Rebecca Taibleson argued the cause for the United States.
With her on the briefs were Solicitor General Prelogar, Act-
ing Solicitor General Fletcher, Assistant Attorney General
Polite, Deputy Solicitor General Feigin, and Joshua K.
Handell.
Michael R. Dreeben argued the cause for respondent.
With him on the brief were Frances H. Pratt and Kendall
Turner.*
*Briefs of amici curiae urging affrmance were fled for the First
Amendment Clinic by James P. Longest, Jr.; for the National Association
of Criminal Defense Lawyers et al. by Jeffrey T. Green, Xiao Wang, and
Mary Price; for the National Association of Federal Defenders by Davina
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848 UNITED
STATES v. TAYLOR
Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
Does
attempted Hobbs Act robbery qualify as a “crime of
violence” under 18 U. S. C. § 924(c)(3)(A)? The answer mat-
ters because a person convicted of attempted Hobbs Act rob-
bery alone normally faces up to 20 years in prison. But if
that offense qualifes as a “crime of violence” under § 924(c)
(3)(A), the same individual may face a second felony convic-
tion and years or decades of further imprisonment.
I
After a robbery went awry and his accomplice shot a man,
the federal government charged Justin Taylor with violating
the Hobbs Act and § 924(c). The Hobbs Act makes it a fed-
eral crime to commit, attempt to commit, or conspire to com-
mit a robbery with an interstate component. 18 U. S. C.
§ 1951(a). Meanwhile, § 924(c) authorizes further punish-
ments for those who use a frearm in connection with a
“crime of violence.”
For purposes of § 924(c), a federal felony qualifes as a
“crime of violence” if it meets either of two defnitions. The
frst defnition is found in § 924(c)(3)(A), a provision some-
times called the elements clause. That clause covers of-
fenses that “ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person or prop-
er ty of another. ” The second defi niti on, located next
door in § 924(c)(3)(B) and often referred to as the resid-
ual clause, encompasses offenses that “by [their] nature, in-
volv[e] a substantial risk that physical force . . . may be
used.”
Before the District Court, the government argued that
Mr. Taylor's Hobbs Act offense qualifed as a “crime of vio-
lence” under these defnitions. And at that point, Mr. Taylor
T. Chen, Shelley M. Fite, Jessica Stengel, Michael C. Holley, and Paresh
Patel; and for John Pangelinan by Joseph E. Horey.
A brief of amicus curiae was fled for Neal Goldfarb by Mr. Goldfarb,
pro se.
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Opinion of the Court
did not disagree, choosing instead to plead guilty to one
count
each of violating the Hobbs Act and § 924(c). For his
crimes, the District Court sentenced Mr. Taylor to 30 years
in federal prison—a decade more than he could have received
for his Hobbs Act conviction alone.
Later, Mr. Taylor fled a federal habeas petition. In it,
he did not challenge his Hobbs Act conviction. Instead, he
focused on § 924(c). Mr. Taylor submitted that his § 924(c)
conviction was predicated on his admission that he had com-
mitted both conspiracy to commit Hobbs Act robbery and
attempted Hobbs Act robbery. And, Mr. Taylor argued, nei-
ther of those offenses continued to qualify as a “crime of
violence” after United States v. Davis, 588 U. S. ––– (2019).
In Davis, this Court held § 924(c)(3)(B)'s residual clause un-
constitutionally vague, and we refused to enforce a convic-
tion and sentence premised on its terms. Id., at ––– – –––.
In his habeas proceeding, Mr. Taylor asked the court to apply
Davis retroactively and vacate his own § 924(c) conviction
and sentence.
The government opposed Mr. Taylor's petition. In doing
so, it did not seek to revisit Davis or oppose its retroactive
application to Mr. Taylor's case. Instead, the government
observed that Davis declared only the residual clause uncon-
stitutional; even today the elements clause remains in force.
And, the government argued, the crime of attempted Hobbs
Act robbery qualifes as a crime of violence under the ele-
ments clause even if conspiracy to commit Hobbs Act rob-
bery may not. By this chain of logic, the government rea-
soned, Mr. Taylor 's § 924(c) conv ic ti on and sentence
remained sound.
Ultimately, the Fourth Circuit agreed to hear the dispute
and sided with Mr. Taylor. It held that attempted Hobbs
Act robbery does not qualify as a crime of violence under
§ 924(c)(3)(A) because no element of the offense requires the
government to prove that the defendant used, attempted to
use, or threatened to use force. By way of remedy, the
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850 UNITED
STATES v. TAYLOR
Opinion of the Court
Court of Appeals vacated Mr. Taylor's § 924(c) conviction and
remanded
the case for resentencing in light of his sole re-
maining Hobbs Act conviction. In reaching its judgment,
the Fourth Circuit acknowledged that other circuits have
taken a different view, holding that attempted Hobbs Act
robbery does qualify as a crime of violence under the ele-
ments clause. 979 F. 3d 203, 208 (2020). We agreed to take
up this case to resolve that question. 594 U. S. ––– (2021).
II
The parties may not see eye to eye on the outcome of this
case, but they at least agree on how we should go about
deciding it. To determine whether a federal felony may
serve as a predicate for a conviction and sentence under the
elements clause, they say, we must apply a “categorical ap-
proach.” We must because the clause poses the question
whether the federal felony at issue “has as an element the
use, attempted use, or threatened use of physical force.”
§ 924(c)(3)(A) (emphasis added). And answering that ques-
tion does not require—in fact, it precludes—an inquiry into
how any particular defendant may commit the crime. The
only relevant question is whether the federal felony at issue
always requires the government to prove—beyond a reason-
able doubt, as an element of its case—the use, attempted use,
or threatened use of force. This Court has long understood
similarly worded statutes to demand similarly categorical
inquiries. See, e. g., Borden v. United States, 593 U. S.
–––, ––– (2021) (plurality opinion); Davis, 588 U. S., at –––;
Leocal v. Ashcroft, 543 U. S. 1, 7 (2004).
What are the elements the government must prove to se-
cure a conviction for attempted Hobbs Act robbery? Here
again the parties share common ground. Under the portion
of the Hobbs Act relevant here, to win a conviction for a
completed robbery the government must show that the de-
fendant engaged in the “unlawful taking or obtaining of per-
sonal property from the person . . . of another, against his
will, by means of actual or threatened force.” § 1951(b).
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851
Opinion of the Court
From this, it follows that to win a case for attempted Hobbs
A
ct robbery the government must prove two things: (1) The
defendant intended to unlawfully take or obtain personal
proper ty by means of ac tua l or threatened force, and
(2) he completed a “substantial step” toward that end. See,
e. g., United States v. Resendiz-Ponce, 549 U. S. 102, 107
(2007). What exactly constitutes a substantial step is be-
yond the scope of today's case. For present purposes, it is
suffcient to observe that the parties again agree. They ac-
cept that a substantial step demands something more than
“mere preparation.” Swift & Co. v. United States, 196 U. S.
375, 402 (1905). The step, they say, must be “unequivocal,”
Reply Brief 3, and “signifcant,” though it “need not be vio-
lent,” Brief for United States 22.
To know that much is enough to resolve this case. What-
ever one might say about completed Hobbs Act robbery, at-
tempted Hobbs Act robbery does not satisfy the elements
clause. Yes, to secure a conviction the government must
show an intention to take property by force or threat, along
with a substantial step toward achieving that object. But
an intention is just that, no more. And whatever a substan-
tial step requires, it does not require the government to
prove that the defendant used, attempted to use, or even
threatened to use force against another person or his prop-
erty. As the Model Penal Code explains with respect to the
Hobbs Act's common-law robbery analogue, “there will be
cases, appropriately reached by a charge of attempted rob-
bery, where the actor does not actually harm anyone or even
threaten harm.” ALI, Model Penal Code § 222.1, p. 114
(1980). “If, for example, the defendant is apprehended be-
fore he reaches his robbery victim and thus before he has
actually engaged in threatening conduct, proof of his purpose
to engage in such conduct” can “justify a conviction of at-
tempted robbery” so long as his intention and some other
substantial step are present. Id., at 115.
A hypothetical helps illustrate the point. Suppose Adam
tells a friend that he is planning to rob a particular store
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852 UNITED
STATES v. TAYLOR
Opinion of the Court
on a particular date. He then sets about researching the
busi
ness's security measures, layout, and the time of day
when its cash registers are at their fullest. He buys a ski
mask, plots his escape route, and recruits his brother to drive
the getaway car. Finally, he drafts a note—“Your money or
your life”—that he plans to pass to the cashier. The note is
a bluff, but Adam hopes its implication that he is armed and
dangerous will elicit a compliant response. When the day
fnally comes and Adam crosses the threshold into the store,
the police immediately arrest him. It turns out Adam's
friend tipped them off.
There is little question the government could win a lawful
conviction against Adam for attempted Hobbs Act robbery.
After all, he intended to take property against the cashier's
will by threat of force, and his actions constituted a substan-
tial step toward that goal. At the same time, this example
helps show why attempted Hobbs Act robbery does not qual-
ify as a crime of violence under the elements clause. Adam
did not “use” physical force. He did not “attempt” to use
such force—his note was a bluff and never delivered. And
he never even got to the point of threatening the use of force
against anyone or anything. He may have intended and at-
tempted to do just that, but he failed. Simply put, no ele-
ment of attempted Hobbs Act robbery requires proof that
the defendant used, attempted to use, or threatened to use
force.
The upshot of all this for our case is clear. Mr. Taylor
may be lawfully subject to up to 20 years in federal prison
for his Hobbs Act conviction. But as the Fourth Circuit rec-
ognized, Congress has not authorized courts to convict and
sentence him to a decade of further imprisonment under
§ 924(c)(3)(A).
1
1
Justice Thomas concedes that the foregoing analysis is correct under
our categorical approach precedents. See post, at 863 (dissenting opin-
ion). He contends only that we should overrule 30 years' worth of
our categorical approach precedents in order to relieve the “ `bind' ” they

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853
Opinion of the Court
III
A
Resisti
ng this conclusion, the government offers three
principal replies. We take up frst the argument the gov-
ernment presented before the Fourth Circuit and on which
it prevailed in other circuits. See, e. g., United States v.
St. Hubert, 909 F. 3d 335, 352–353 (CA11 2018). This theory
proceeds in the form of a syllogism. The government sub-
mits that the elements clause encompasses not only any of-
fense that qualifes as a “crime of violence” but also any
attempt to commit such a crime. And, the government
reasons, because completed Hobbs Act robbery qualifes as a
crime of violence, it follows that attempted Hobbs Act rob-
bery does too.
While the government pressed this argument in the courts
of appeals, it affords it only a passing nod here. And the
reason why quickly becomes clear: The government's syllo-
gism rests on a false premise. The elements clause does not
ask whether the defendant committed a crime of violence or
attempted to commit one. It asks whether the defendant
did commit a crime of violence—and it proceeds to defne a
crime of violence as a felony that includes as an element the
use, attempted use, or threatened use of force. If Congress
had wanted the elements clause to do the kind of work the
government supposes, it could have easily said so. For ex-
ample, it might have swept in those federal crimes that re-
quire as an element “the use or threatened use of force” and
those “that constitute an attempt to commit an offense that
has such an element.” But that simply is not the law we
have.
place on prosecutors. Post, at 867, 870. But not even the prosecutors
for whom Justice Thomas professes concern seek anything like that.
Nor does he articulate any plausible way to understand the terms of the
elements clause without reference to the categorical approach. See post,
at 873 (merely “welcom[ing] briefng ” on the topic).

854 UNITED
STATES v. TAYLOR
Opinion of the Court
B
Recog
nizing the weakness of the argument it pressed
below, the government spends much of its time before us
elaborating two new theories. In the frst, the government
asks us to focus on the “substantial step” element of at-
tempted Hobbs Act robbery. That element, the government
submits, categorically requires it to prove that a defend-
ant used, attempted to use, or threatened to use physical
force.
This theory fails too, and for reasons we have already seen.
Without question, many who commit the crime of attempted
Hobbs Act robbery do use, attempt to use, or threaten to use
force. Suppose, for example, that the police had arrested
Adam after he handed over his threatening note to the cash-
ier but before he received any money. In a case like that,
the defendant would have threatened the use of force while
committing an attempted Hobbs Act robbery. But some
cases are not all cases, and the government's problem is that
no element of attempted Hobbs Act robbery requires the
government to prove beyond a reasonable doubt that the de-
fendant used, attempted to use, or even threatened to use
force. Individuals like our foiled robber who are arrested
before they can threaten anyone may be convicted too. See
supra, at 851–852; cf. Model Penal Code, at 114–115.
Seeking a way around this problem, the government re-
sponds that we (and presumably the drafters of the Model
Penal Code) misconstrue what qualifes as the “threatened
use” of force. On its view, anyone who takes a substantial
step toward completing Hobbs Act robbery (say, by buying
a weapon, plotting his heist and getaway, writing an extor-
tive note before he leaves home, and entering a store) objec-
tively poses a “threatened use” of force even if he never
communicates his threat to anyone.
This reply bears its own problems. To start, in the crimi-
nal law the word “threat” and its cognates usually denote
“[a] communicated intent to infict physical or other harm
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Opinion of the Court
on any person or on property.”
2
Of
course, threats can be
communicated verbally or nonverbally—pointing a gun at a
cashier conveys a threat no less effectively than passing a
note reading “your money or your life.” But one way or
another, some form of communication is usually required.
Even the government concedes that the words “threatened
force” in the Hobbs Act require proof that the defendant
communicated a threat to a second person, whether or
not that individual is the target of the threat. See Reply
Brief 15.
That leaves the government to suggest that § 924(c)(3)(A)
differs from the Hobbs Act and represents an exception to
the usual rule. Seeking to make that case, the government
observes that, in some contexts, the word “threat” can be
used to speak of a more objective or abstract risk. So, for
example, a critic might say that a prison board's decision to
parole a particular felon “threatens” community safety. Or
a conservationist might argue that a government decision
allowing commercial activity near a national park “threat-
ens” wildlife habitat. Before us, the government submits
that the elements clause uses the term in a similar way, re-
quiring only an objective, if uncommunicated, threat to com-
munity peace and order. And, the government argues, any-
one who takes a substantial step toward completing a Hobbs
Act robbery always or categorically poses such a threat.
The trouble is, when Congress uses the word “threat” in
this abstract and predictive (rather than communicative)
2
Black's Law Dictionary 1327 (5th ed. 1979) (defning “threat”); Stroud's
Judicial Dictionary 2633 (5th ed. 1986) (defning “threat” and “threaten”);
see also, e. g., 17 Oxford English Dictionary 998 (2d ed. 1989) (threaten:
“To try to infuence (a person) by menaces; to utter or hold out a threat
against; to declare (usually conditionally) one's intention of inficting injury
upon”); Webster 's Th ird New Inter nati ona l D ic ti onary 2382 (1986)
(threaten: “to utter threats against”; to “promise punishment, reprisal, or
other distress to”); American Heritage Dictionary 1265 (2d ed. 1985)
(threat: “An expression of an intention to infict pain, injury, evil, or pun-
ishment”); ibid. (threaten: “[t]o express a threat against”).
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856 UNITED
STATES v. TAYLOR
Opinion of the Court
sense, it usually makes its point plain. It may ask, for exam-
ple
, whether an individual or circumstance “poses” or “repre-
sents” a threat. See, e. g., 6 U. S. C. § 1170(a)(1) (discussing
“individuals who may pose a threat to transportation secu-
rity”); 8 U. S. C. § 1735(a) (immigration offcials must deter-
mine that an “alien does not pose a threat to the safety or
national security of the United States”). Here we have
nothing like that. In fact, what textual clues we do have
point in the opposite direction.
Take this one. The statute speaks of the “use” or “at-
tempted use” of “physical force against the person or prop-
erty of another.” Plainly, this language requires the gov-
ernment to prove that the defendant took specifc actions
against specifc persons or their property. Reading the stat-
ute's remaining reference to the “threatened use of physical
force against the person or property of another” as requiring
a communicated threat fts with this design. By contrast,
the government's competing interpretation would vastly ex-
pand the statute's reach by sweeping in conduct that poses
an abstract risk to community peace and order, whether
known or unknown to anyone at the time. It's a reading
that would defy our usual rule of statutory interpretation
that a law's terms are best understood by “the company
[they] kee[p].” Gustafson v. Alloyd Co., 513 U. S. 561, 575
(1995).
Beyond that clue lies another. Next door to the elements
clause Congress included the residual clause. Under its
terms, “crimes of violence” were defned to embrace offenses
that, “by [their] nature, involv[e] a substantial risk that phys-
ical force . . . may be used” against a person or property.
§ 924(c)(3)(B). Pretty plainly, that language called for an ab-
stract inquiry into whether a particular crime, by its nature,
poses or presents a substantial risk (or “threat”) of force
being used. See Davis, 588 U. S., at ––– – –––. Of course,
this Court eventually held the residual clause to be unconsti-
tutionally vague. Id., at –––. But if the government's view
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Opinion of the Court
of the elements clause caught on, it would only wind up effec-
tively
replicating the work formerly performed by the resid-
ual clause, collapsing the distinction between them, and per-
haps inviting similar constitutional questions along the way.
It's an outcome that would (again) defy our usual rules of
statutory interpretation—this time because we do not lightly
assume Congress adopts two separate clauses in the same
law to perform the same work. See, e. g., Mackey v. Lanier
Collection Agency & Service, Inc., 486 U. S. 825, 839, n. 14
(1988).
C
Heaping alternative upon alternative, the government's
fnal theory accepts that a conviction under the elements
clause requires a communicated threat of force. But, the ar-
gument goes, most attempted Hobbs Act robbery prosecu-
tions involve exactly that. Indeed, the government faults
Mr. Taylor for failing to identify a single case in which it
has prosecuted someone for attempted Hobbs Act robbery
without proving a communicated threat.
But what does that prove? Put aside the fac t that
Mr. Taylor has identifed cases in which the government has
apparently convicted individuals for attempted Hobbs Act
robbery without proving a communicated threat. See, e. g.,
United States v. Williams, 531 Fed. Appx. 270, 271–272 (CA3
2013). Put aside the oddity of placing a burden on the de-
fendant to present empirical evidence about the govern-
ment's own prosecutorial habits. Put aside, too, the practi-
cal challenges such a burden would present in a world where
most cases end in plea agreements, and not all of those cases
make their way into easily accessible commercial databases.
See J. Turner, Transparency in Plea Bargaining, 96 Notre
Dame L. Rev. 973, 974, 978–981 (2021).
An even more fundamental and by now familiar problem
lurks here. The government's theory cannot be squared
with the statute's terms. To determine whether a federal
felony qualifes as a crime of violence, § 924(c)(3)(A) doesn't
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ask whether the crime is sometimes or even usually associ-
ated
with communicated threats of force (or, for that matter,
with the actual or attempted use of force). It asks whether
the government must prove, as an element of its case, the
use, attempted use, or threatened use of force.
Maybe that is the test the statute presupposes, the gov-
ernment answers, but this Court's case law requires its pro-
posed empirical study all the same. Notice, though, the
move implicit here. After previously admitting that we
must employ a categorical approach when interpreting the
reach of § 924(c)(3)(A), the government effectively back-
tracks. Instead of looking to the elements of attempted
Hobbs Act robbery, the government now says that a defend-
ant must present evidence about how his crime of conviction
is normally committed or usually prosecuted. If this admit-
tedly atextual theory seems doubtful on its face, a close look
at the case the government invokes does not improve the
picture.
The government points to Gonzales v. Duenas-Alvarez,
549 U. S. 183 (2007). There, this Court sought to apply pro-
visions of the Immigration and Nationality Act. Id., at 185.
Under the INA, an individual with a prior state-court convic-
tion that meets certain “generic” offense defnitions under
federal law may face deportation. Id., at 186, 189; see also
8 U. S. C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii). In Duenas-
Alvarez, there was no doubt that the relevant state offense
overlapped signifcantly with the federal defnition of generic
“theft.” 549 U. S., at 190. But, Mr. Duenas-Alvarez ar-
gued, state courts had interpreted the offense broadly to
reach aiding and abetting conduct that fell “beyond generic
theft.” Id., at 190–191. To test this assertion, the Court
looked to state decisional law and asked whether a “realistic
probability” existed that the State “would apply its statute
to conduct that falls outside” the federal generic defnition.
Id., at 193.
None of this begins to help the government for at least two
reasons. First, the immigration statute at issue in Duenas-
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Opinion of the Court
Alvarez required a federal court to make a judgment about
the
meaning of a state statute. Appreciating the respect
due state courts as the fnal arbiters of state law in our fed-
eral system, this Court reasoned that it made sense to con-
sult how a state court would interpret its own State's laws.
Cf. Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709, n. 8
(1985). Meanwhile, no such federalism concern is in play
here. The statute before us asks only whether the elements
of one federal law align with those prescribed in another.
Second, in Duenas-Alvarez the elements of the relevant
state and federal offenses clearly overlapped and the only
question the Court faced was whether state courts also “ap-
pl[ied] the statute in [a] special (nongeneric) manner.” 549
U. S., at 193. Here, we do not reach that question because
there is no overlap to begin with. Attempted Hobbs Act
robbery does not require proof of any of the elements
§ 924(c)(3)(A) demands. That ends the inquiry, and nothing
in Duenas-Alvarez suggests otherwise.
3
3
Justice Alito offers still another argument on the government's be-
half. According to our colleague, the crime of completed Hobbs Act rob-
bery requires the government to prove beyond a reasonable doubt, and a
unanimous jury must agree on, the particular “means” by which the de-
fendant committed his offense—by “actual” force, “threatened force,” “vio-
lence,” or “fear of injury.” § 1951(b)(1); post, at 875–878 (dissenting opin-
ion). And because attempts to commit robbery by some of these means
could qualify as crimes of violence under § 924(c)(3)(A), Justice Alito
would classify the entire offense of attempted Hobbs Act robbery a “crime
of violence.” Post, at 878. But the parties have not whispered a word
about any of this. Perhaps for good reason too. For one thing, it is un-
clear whether the Act's “means” clause sets forth elements or merely lists
alternative ways a defendant may take or obtain property against the
victim's will. If the latter is true, as some courts have held, a jury need
unanimously conclude only that the defendant used one of the listed means;
it need not agree on which one. See, e. g., United States v. St. Hubert,
909 F. 3d 335, 348–349 (CA11 2018); United States v. Hancock, 168 F. Supp.
3d 817, 821 (D MD 2016). For another, even assuming the Act is divisible
in the sense he suggests, Justice Alito acknowledges that his some-is-
good-enough approach defes this Court's precedents. Post, at 878; Des-
camps v. United States, 570 U. S. 254, 260–264 (2013).
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*
The
government quickly abandons the legal theory it ad-
vanced in the courts of appeals—and neither of the two new
options it auditions before us begins to fll the void. In
§ 924(c)(3)(A), Congress did not condition long prison terms
on an abstract judicial inquiry into whether and to what de-
gree this or that crime poses a risk to community peace and
safety. Nor did it mandate an empirical inquiry into how
crimes are usually committed, let alone impose a burden on
the defendant to present proof about the government's own
prosecutorial habits.
Congress tasked the courts with a much more straightfor-
ward job: Look at the elements of the underlying crime and
ask whether they require the government to prove the use,
attempted use, or threatened use of force. Following that
direction in this case, the Fourth Circuit correctly recognized
that, to convict a defendant of attempted Hobbs Act robbery,
the government does not have to prove any of those things.
Accordingly, Mr. Taylor may face up to 20 years in prison for
violating the Hobbs Act. But he may not be lawfully con-
victed and sentenced under § 924(c) to still another decade in
federal prison. The judgment of the Court of Appeals is
Affrmed.
Justice Thomas, dissenting.
Justin Eugene Taylor and an accomplice pulled a gun on a
fellow drug dealer as they tried to rob him. During the
attempted robbery, the victim was shot and killed. Taylor
pleaded guilty to using a frearm during an attempted Hobbs
Act robbery, which he conceded was a “crime of violence”
under 18 U. S. C. § 924(c)(3). Taylor made that concession
because threatening to shoot someone during a robbery is
undoubtedly a violent act. Yet, the Court holds that Taylor
did not actually commit a “crime of violence” because a hypo-
thetical defendant—the Court calls him “Adam”—could have
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Thomas, J., dissenting
been convicted of attempting to commit Hobbs Act robbery
w
ithout using, attempting to use, or threatening to use phys-
ical force. Ante, at 851–852; see § 924(c)(3)(A).
This holding exemplifes just how this Court's “categori-
cal approach” has led the Federal Judiciary on a “journey
Through the Looking Glass,” during which we have found
many “strange things.” L. Carroll, Alice in Wonderland
and Through the Looking Glass 227 (J. Messner ed. 1982).
Rather than continue this 30-year excursion into the absurd,
I would hold Taylor accountable for what he actually did and
uphold his conviction. Accordingly, I respectfully dissent.
I
In 2002 and 2003, Justin Eugene Taylor was a middleman
in the Richmond, Virginia, marijuana trade. He bought the
drug wholesale and sold it to retail distributors. On August
14, 2003, he offered to obtain marijuana for retail distributor
Martin Sylvester. Taylor ultimately failed to procure the
drug but still aimed to purloin Sylvester's cash. To that
end, Taylor contacted a co-conspirator who had a handgun.
The two met Sylvester in an alley, ostensibly for the sale.
They brandished the handgun and demanded the money.
Sylvester resisted and was shot. The robbers fed, leaving
Sylvester to die. 979 F. 3d 203, 205 (CA4 2020).
Prosecutors in the Eastern District of Virginia charged
Taylor with various drug and frearms offenses. Most rele-
vant here, they charged him with violating 18 U. S. C.
§ 924(c), which punishes anyone who “uses or carries a fre-
arm” “during and in relation to any crime of violence,” or
who possesses a frearm “in furtherance of any such crime.”
Congress defned a “crime of violence” in one of two ways:
as an offense that has “as an element the use, attempted
use, or threatened use of physical force against the person
or property of another” (commonly called the “elements
clause”), or as an offense that, “by its nature, involves a sub-
stantial risk that physical force against the person or prop-
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erty of another may be used in the course of committing the
offense”
(commonly called the “residual clause”). §§ 924(c)
(3)(A), (B).
Prosecutors predicated Taylor's § 924(c) charge on his com-
mission of attempted Hobbs Act robbery. Ante, at 848 (de-
scribing Hobbs Act robbery). In 2009, in exchange for the
Government dropping most of the charges, Taylor pleaded
guilty to conspiracy to commit Hobbs Act robbery and the
§ 924(c) charge—that is, using a frearm during and in rela-
tion to a crime of violence. In doing so, he admitted to the
attempted robbery and the shooting. He also admitted that
attempted Hobbs Ac t robbery is a “cr i me of v i olence”
under § 924(c).
The District Court sentenced Taylor to 360 months' im-
prisonment—a 240-month sentence for the conspiracy and a
120-month consecutive sentence for the § 924(c) conviction.
Taylor appealed, but in 2011 the Court of Appeals dismissed
the appeal because Taylor had waived his appellate rights in
his plea agreement. Order in United States v. Taylor, No.
09–4468, ECF Doc. 54 (CA4, Jan. 7, 2011). In 2015, he then
unsuccessfully sought postconviction relief under 28 U. S. C.
§ 2255. United States v. Taylor, 2015 WL 4095845, *1 (ED
Va., July 7, 2015).
Decided around the time of his failed § 2255 motion, one of
this Court's cases appeared to give Taylor another chance to
challenge his conviction. In Johnson v. United States, 576
U. S. 591 (2015), the Court struck down the similarly worded
residual clause of the Armed Career Criminal Act (ACCA),
as unconstitutionally vague. The following year, in Welch v.
United States, 578 U. S. 120 (2016), the Court held that John-
son applies retroactively on collateral review. Citing those
two decisions, Taylor moved for permission to fle a second-
or-successive § 2255 petition. He argued that § 924(c)'s re-
sidual clause paralleled ACCA's residual clause and therefore
was unconstitutionally vague. 979 F. 3d, at 206. He fur-
ther argued that attempted Hobbs Act robbery was not a

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Thomas, J., dissenting
“crime of violence” under § 924(c)'s elements clause because
it
lacked “as an element the use, attempted use, or threat-
ened use of physical force.” § 924(c)(3)(A).
The Court of Appeals granted the motion to fle a succes-
sive habeas petition and, in 2020, vacated Taylor's § 924(c)
conviction. It did so because, as the Court explains, our
precedents require that courts apply a “categorical ap-
proach” when interpreting the elements clause. Ante, at
858. Under that approach, a criminal defendant who com-
mits a violent crime nonetheless does not commit a “crime
of violence” if a hypothetical criminal could commit the same
offense without satisfying § 924(c)'s physical-force require-
ment. See ibid. Because someone else—“Adam”—could
have committed attempted Hobbs Act robbery without phys-
ical force, the Court holds, Taylor's armed robbery that re-
sulted in the victim's death is not a “crime of violence”
under § 924(c).
II
We have reached this point of absurdity only because this
Court applies a narrow categorical approach to § 924(c)'s ele-
ments clause and has nullifed the residual clause that would
have captured crimes like Taylor's. It is hard to fathom
why this makes sense or why any rational Congress would
countenance such an outcome so divorced from reality.
A
Our odyssey began in 1990, as the Court wrestled with a
different clause found in a different part of § 924: ACCA's
sentencing enhancement in § 924(e). Unlike § 924(c), which
defnes a substantive crime, ACCA imposes a sentencing en-
hancement that applies to any defendant with three or more
prior “violent felon[ies]” whom the Federal Government con-
victs of illegally possessing a frearm. §§ 922(g), 924(e)(2).
Like § 924(c), ACCA defnes “violent felony” with an ele-
ments clause and a residual clause. The Act also includes
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an “enumerated-offenses” clause defning “violent felony” to
i
nclude any crime that “is burglary, arson, or extortion, [or]
involves use of explosives.” § 924(e)(2).
In Taylor v. United States, 495 U. S. 575 (1990), the Court
frst adopted a categorical approach when interpreting “bur-
glary” under ACCA's enumerated-offenses clause. Id., at
598. The Court construed “burglary” in the abstract, as a
“generic burglary” with elements derived from a treatise and
the Model Penal Code. Id., at 593–599, and n. 8. The Court
then held that the enumerated-offenses clause prohibits
courts from looking to the “particular facts” of a defendant's
burglary to see if the conduct satisfes the elements of ge-
neric burglary. Id., at 600. It does not matter how violent
the defendant's actual conduct was. Instead, courts must
determine whether the elements of the burglary statute
under which a defendant was convicted “substantially corre-
spon[d]” to generic burglary. Id., at 600, 602. Though Tay-
lor gave “few reasons why” this so-called categorical ap-
proach “was the correct reading of ACCA,” at the “ `heart
of the decision' ” were “worrie[s]” that a conduct-based ap-
proach to a sentencing enhancement might violate the Sixth
Amendment by leading to “full-blown minitrial[s], with fact-
fnding by the judge instead of the jury.” Sessions v. Di-
maya, 584 U. S. 148, 225 (2018) (Thomas, J., dissenting).
While Taylor applied the categorical approach only to
ACCA's enumerated-offenses clause, the approach soon mi-
grated to the elements clauses in ACCA and elsewhere.
See, e. g., Borden v. United States, 593 U. S. –––, ––– (2021)
(plurality opinion). In that context, the categorical ap-
proach demands that a court divine what constitutes the
“least serious conduct [the prior conviction or predicate of-
fense] covers” and decide whether that conduct “falls within
the elements clause.” Id., at –––. To do that, a judge must
“mull through any number of hypothetical ways to commit a
crime that have nothing to do with the facts of the prior
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Thomas, J., dissenting
fense. United States v. Burris, 912 F. 3d 386, 409 (CA6
2019)
(Thapar, J., concurring). If a court identifes a way
to commit the crime without using, attempting to use, or
threatening to use force, then the crime is not a “violent
felony” or “crime of violence” under ACCA's or § 924(c)'s ele-
ments clauses. See Borden, 593 U. S., at –––.
This Court eventually extended the categorical approach
to ACCA's residual clause as well. In James v. United
States, 550 U. S. 192 (2007), the Court, at the urging of both
parties, “employ[ed] the `categorical approach' ” to analyze
ACCA's residual clause. Id., at 202 (quoting Shepard v.
United States, 544 U. S. 13, 17 (2005)). That clause defnes
a “violent felony” as one that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B)(ii). James explained that ACCA's
residual-clause categorical approach boiled down to two
steps. First, a court looked to the elements of the crime for
which the defendant was convicted and asked what conduct
the “ordinary case” of that crime entailed. 550 U. S., at 208.
Second, the cour t asked whether that “ordi nary case”
“present[ed] a serious potential risk of injury to another”
comparable to that posed by the specifc crimes listed in the
enumerated-offenses clause. Id., at 204, 208–209. If it did,
then the predicate crime was a “violent felony.”
That test proved difficult to apply. In particular, the
Court struggled with how to defne the “ordinary case” of a
given predicate crime. See Johnson, 576 U. S., at 597 (“How
does one go about deciding what kind of conduct the ordinary
case of a crime involves? A statistical analysis of the state
reporter? A survey? Expert evidence? Google? Gut
instinct?” (internal quotation marks omitted)). The Court
likewise struggled in assessing what level of risk the ordi-
nary case presented. Id., at 598. After trying to apply this
approach several times, see, e. g., Begay v. United States, 553
U. S. 137 (2008), the Court in Johnson ultimately abandoned
the project. But rather than reassess whether it had

866 UNITED
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Thomas, J., dissenting
adopted the right analytical framework in light of ACCA's
text
and statutory context, the Court in Johnson nullifed
ACCA's residual clause altogether. See 576 U. S., at 624
(Thomas, J., concurring in judgment). According to the
Court, the “[t]wo features” of the residual-clause analysis
that the Court set out in James—identifying “ordinary case”
conduct and judging whether that abstracted conduct “pre-
sents a serious potential risk of physical injury”—“con-
spire[d] to make [the residual clause] unconstitutionally
vague.” 576 U. S., at 597–598 (majority opinion).
That conclusion was not inevitable. The Johnson Court
did “not doubt the constitutionality of laws that call for the
application of a qualitative standard such as `substantial risk'
to real-world conduct.” Id., at 603–604. Thus, the Court
“all but concede[d] that the residual clause would be constitu-
tional if,” rather than incorporating James' categorical ap-
proach, it looked to whether the “ `real-world conduct' ” of the
underlying conviction presented a serious risk of physical
injury to another. 576 U. S., at 632 (Alito, J., dissenting).
Despite recognizing that a conduct-based approach was
constitutionally sound, the Court later extended Johnson to
the residual clause in § 924(c). See United States v. Davis,
588 U. S. –––, ––– (2019). The Davis Court decided that the
§ 924(c) residual clause's language was so similar to the
ACCA residual clause that it, too, must be void for vague-
ness. Id., at ––– – –––, ––– – –––. Four of us, however, ad-
vanced a more sensible approach: Rather than extend John-
son to nullify § 924(c)'s residual clause, we should simply not
use the categorical approach when interpreting residual
clauses and adopt a framework focused on the defendant's
actual conduct that Johnson conceded was constitutional.
See 588 U. S., at ––– – ––– (Kavanaugh, J., dissenting).
As the Davis dissent explained, § 924(c)'s residual clause is
best interpreted to call for a conduct-based approach. Id.,
at ––– – –––. To begin with, the plain text of the residual
clause strongly supports a conduct-based approach. See
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ibid. Further, none of the perceived Sixth Amendment con-
cer
ns that attend to ACCA's sentencing enhancement are
present in the § 924(c) context, because a “jury will fnd the
facts or, if the case ends in a guilty plea, the defendant will
accept the facts in the plea agreement.” Id., at –––. Fi-
nally, if any ambiguity remains, a conduct-based approach to
§ 924(c)'s residual clause best accords with the canon counsel-
ing courts to construe statutes not to violate the Constitu-
tion whenever possible. See id., at ––– – ––– (“To be clear,
the case before us is not a case of avoiding possible unconsti-
tutionality. This is a case of avoiding actual unconstitution-
ality”); see also Dimaya, 584 U. S., at 223 (Thomas, J., dis-
senting). Thus, read properly, the residual clause is as
constitutionally sound as any other criminal law applying “ `a
qualitative standard . . . to real-world conduct.' ” Davis, 588
U. S., at ––– (Kavanaugh, J., dissenting) (quoting Johnson,
576 U. S., at 604). Nothing in the three years since Davis
has changed that.
B
To the contrary, the last three years have instead shown
how our § 924(c) precedents have “left prosecutors and courts
in a bind.” Borden, 593 U. S., at ––– (Thomas, J., concur-
ring in judgment). Section 924(c)'s residual clause—which
squarely applies to the mine run of violent crimes—is no
longer available. The categorical approach, meanwhile, fore-
closes § 924(c)'s elements clause unless, in every hypothetical
prosecution, the crime of conviction requires the Govern-
ment to prove that physical force against another was used,
attempted, or threatened. In case after case, our prece-
dents have compelled courts to hold that heinous crimes are
not “crimes of violence” just because someone, somewhere,
might commit that crime without using force.
A few examples from the Courts of Appeals demonstrate
how our precedents have emasculated § 924(c). First, in
United States v. Walker, 934 F. 3d 375 (2019), the Fourth
Circuit considered whether a conviction for federal kidnap-
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ing could predicate a § 924(c) conviction. See id., at 376 (cit-
i
ng § 1201(a)). Walker and an accomplice had kicked in the
door of a family's home, held the victims at gunpoint, beat
some of them, demanded money, and threatened to kill the
family's 4-year-old daughter, all before locking the family in
a closet and ransacking the house. Factual Basis for Guilty
Plea in United States v. Walker, No. 14–cr–00271, ECF Doc.
13 (MDNC, Nov. 3, 2014). No one could dispute that Walk-
er's conduct presented a “substantial risk that physical
force” would be used “in the course of committing the of-
fense.” § 924(c)(3)(B). Yet, because of Davis, the Fourth
Circuit could not invoke the residual clause. See Walker,
934 F. 3d, at 378. That left only § 924(c)(3)'s elements clause,
interpreted according to the infexible categorical approach.
Compelled to imagine whether federal kidnaping could hypo-
thetically be committed without the use of physical force, the
Fourth Circuit ultimately vacated Walker's § 924(c) con-
viction because a criminal could commit the offense by
“inveigl[ing]” a victim and then holding him in captivity
w ith a “ment a l restrai nt. ” Id., at 378 – 379 (emphasis
deleted).
1
Second, in United States v. Tsarnaev, 968 F. 3d 24 (CA1
2020), reversed on other grounds, 595 U. S. 302 (2022), the
First Circuit considered whether a terrorist's conviction for
federal arson—which he committed in the course of carrying
out the Boston Marathon bombings—counted as a crime of
violence under § 924(c). Tsarnaev and his brother intention-
1
See also, e. g., United States v. Brazier, 933 F. 3d 796, 798–801 (CA7
2019) (federal kidnaping not a crime of violence under § 924(c) despite vic-
tim being bound, gagged, tortured, and shot); Bufkin v. United States, 800
Fed. Appx. 436, 437, 439 (CA7 2020) (Government conceding that federal
kidnaping is not a crime of violence even when “the two defendants threat-
ened the victim at gunpoint, robbed, bound, and gagged him, and drove
him around in the trunk of the car for four hours before releasing him”);
United States v. San ford, 779 Fed. Appx. 568, 570 (CA10 2019) (vacating
§ 924(c) convictions even when the underlying conduct involved kidnaping,
threatening, and robbing a family, all at gunpoint).
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ally detonated bombs that killed three people, including an
8-year-old,
and injured hundreds more. See id., at 307–308.
Yet, the categor ica l-approach precedents led the First
Circuit to the admittedly “counterintuitive” conclusion that
federal arson resulting in death arising from a terrorist bom-
bing was not a crime of violence. Tsarnaev, 968 F. 3d, at
102. The residual clause had been nullifed, id., at 99, and
the First Circuit held that federal arson did not satisfy the
elements clause because it theoretically could have been
committed recklessly, id., at 102,
2
which, we have held in
the ACCA context, renders a crime outside the elements
clause, see Bo rden, 593 U. S., at ––– – ––– (plura l ity
opinion).
Finally, in United States v. Ledbetter, 929 F. 3d 338 (CA6
2019), the Sixth Circuit vacated two convictions under 18
U. S. C. § 924( j), which criminalizes “caus[ing] the death of a
person through the use of a frearm” “in the course of a viola-
tion of ” § 924(c). 929 F. 3d, at 360–361. The two defend-
ants were associated with a gang called the “Short North
Posse.” Id., at 359. One belonged to a subunit of the gang,
appropriately named the “ `Homicide Squad,' ” which “spe-
cializ[ed] in murders and robberies.” Id., at 345. In Au-
gust 2007, they joined a team of gang members who broke
into a home and shot a victim to death. Id., at 359. Section
924(c)'s residual clause would have covered the defendants'
conduct, given that there is obviously a “substantial risk that
physical force” would be “used in the course of ” a gangland
home-invasion murder. § 924(c)(3)(B). But Davis had nulli-
fed that clause, and the Government conceded that conspir-
acy to commit Hobbs Act robbery—the predicate crime for
the defendants' § 924( j) convictions—was not a crime of vio-
lence under this Court's elements-clause precedents. 929
2
See United States v. Moore, 802 Fed. Appx. 338, 340–342 (CA10 2020)
(federal arson not a crime of violence even when the defendant ignited a
homemade bomb during an attempt to blow up a shopping mall).
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Thomas, J., dissenting
F. 3d, at 360–361. These are not the only homicide-related
§
924 convictions that Davis has undermined.
3
These examples show how our precedents have led the
Federal Judiciary to “a pretend place.” United States v.
Davis, 875 F. 3d 592, 595 (CA11 2017). With the residual
clause nullifed, courts cannot look to it to capture violent
crimes. And, because of the categorical approach, the ele-
ments clause often does not apply because “other defendants
at other times may have been convicted, or future defendants
could be convicted, of violating the same statute without vio-
lence.” Ibid. Like Alice, we have strayed far “down the
rabbit hole,” and “[c]uriouser and curiouser it has all be-
come.” Ibid.
III
There is a straightforward solution to this problem—over-
r u le Da v is. Cf. Bo rden, 593 U. S., at ––– (opi ni on of
Thomas, J.) (“There is a straightforward solution to this di-
lemma—overrule Johnson”). It is a demonstrably errone-
ous precedent that veered from the best interpretation of
§ 924(c)'s residual clause. See supra, at 866–867 (citing
Davis, 588 U. S., at ––– – ––– (Kavanaugh, J., dissenting));
cf. Johnson, 576 U. S., at 613 (Thomas, J., concurring in judg-
ment) (noting this Court's habit of wielding due process doc-
trines like vagueness “to achieve its own policy goals”). Ac-
cordingly, I would overrule Davis and adopt in its place the
conduct-based approach that the Davis dissent described.
Overruling Davis would revive § 924(c)'s residual clause,
once again allowing the statute to capture the vast majority
3
See, e. g., United States v. Capers, 20 F. 4th 105, 111–112 (CA2 2021)
(applying United States v. Davis, 588 U. S. ––– (2019), and fnding that a
federal Racketeer Infuenced and Corrupt Organizations Act conspiracy
resulting in a gangland killing could not predicate a § 924( j) conviction);
see also, e. g., Brief for United States in Grzegorczyk v. United States,
O. T. 2021, No. 21–5967 (Government conceding that, after Davis, a fed-
era l murder-for-h ire conv ic ti on was not a cr i me of v i olence under
§ 924(c)).
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Thomas, J., dissenting
of § 924(c) convictions that elude an elements clause straight-
jacketed
by the categorical approach.
With a revived residual clause, resolving this case is easy.
Taylor's counsel acknowledged that Congress “enacted the
residual clause to capture cases just like” Taylor's. Tr. of
Oral Arg. 48–49. His confessed conduct—an attempted
ar med robbery dur i ng wh ich the v ic ti m was shot and
killed—“ by its nature, involve[d] a substantial risk that
physical force” would be used. § 924(c)(3)(B). Thus, Taylor
committed a predicate offense that supported his § 924(c)
conviction. Taylor's appeal should therefore fail, and he
should serve the 10 years in prison he received for the
§ 924(c) conviction.
This same logic would have saved the other convictions
described above. Equipped with a revived residual clause
focused on the defendant's actual conduct, those federal
courts would not have had to vacate the § 924(c) convictions
of kidnapers who threatened families, terrorists who bombed
sporting events, or murderers who shot their victims. In
other words, those courts could have applied the statute that
Congress enacted rather than the one this Court effectively
rewrote and then nullifed.
IV
The costs of our decisions imposing the categorical ap-
proach on § 924(c) and other statutes have been immense.
Apart from the unnatural results it produces in § 924(c)
cases, the categorical approach has led to equally baffing
ones in the ACCA context and elsewhere. See, e. g., Burris,
912 F. 3d, at 407 (Thapar, J., concurring) (“A casual reader
. . . might struggle to understand why we are even debating
if ramming a vehicle into a police offcer is a crime of vio-
lence”); Davis, 875 F. 3d, at 604 (holding that a man charged
with frst-degree rape who pleaded to frst-degree sexual
abuse by forcible compulsion had not committed an ACCA
“violent felony” because the force required was insuffciently
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Thomas, J., dissenting
violent). Moreover, courts attempting to apply the categor-
ica
l approach waste time thinking up improbable hypotheti-
cals, making the approach “very diffcult to administer.”
Burris, 912 F. 3d, at 407 (Thapar, J., concurring); see also,
e. g., Cradler v. United States, 891 F. 3d 659, 672 (CA6 2018)
(Kethledge, J., concurring) (“Whatever the merits of this ap-
proach, accuracy and judicial effciency are not among
them”). Finally, Congress, through leg islation, created
crimes like § 924(c) and enhancements like ACCA to reduce
gun crime rates by imposing long sentences on violent crimi-
nals who use frearms. See Davis, 588 U. S., at ––– – –––
(Kavanaugh, J., dissenting). Yet, as a growing chorus of
Court of Appeals judges has explained, the categorical ap-
proach stymies that effort. See, e. g., Ovalles v. United
States, 905 F. 3d 1231, 1253–1257 (CA11 2018) (W. Pryor, J.,
concurring). No rational legislature would have implicitly
imposed this byzantine and resource-depleting legal doctrine
that so encumbers federa l cour ts and threatens publ ic
safety.
Worse still, this Court has imposed these costs on the fed-
eral courts and the public even though the text of these pro-
visions does not demand them. I have already pointed out
the “absurdity of applying the categorical approach to the
enumerated-offenses clause” of ACCA and have suggested
that a conduct-based approach better fts the text. Quarles
v. United States, 587 U. S. –––, ––– – ––– (2019) (Thomas, J.,
concurring). And although the categorical approach might
be a “linguistically possible” interpretation of the residual
clauses, “the underlying-conduct approach is the better one.”
Dimaya, 584 U. S., at 228 (Thomas, J., dissenting). And f-
nally, while I have suggested that the categorical approach
applies most plausibly in the elements-clause context, see id.,
at 229–230, the Government has suggested that even that
clause might better accord with a conduct-based approach.
Tr. of Oral Arg. 5–6; see also Burris, 912 F. 3d, at 409–410
(Thapar, J., concurring).
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873
Alito, J., dissenting
In light of the mischief that the categorical approach has
caused,
we should welcome briefng on whether a conduct-
based approach tacks closer to statutory text and common
sense—especially in the elements-clause context. If it does,
we should adopt it.
4
***
Even Alice, having slaked her curiosity, eventually re-
turned from the land beyond the looking glass. It is high
time that this Court do the same. In this case, I would
begin the trek back by adopting the Davis dissent's conduct-
based approach, reviving § 924(c)'s residual clause, and re-
versing the judgment below. And in future cases, when it
comes to interpreting § 924(c)'s elements clause, I will care-
fully consider alternatives to this Court's atextual and ever-
more-absurd categorical approach. For these reasons, I re-
spectfully dissent.
Justice Alito, dissenting.
As Justice Thomas clearly shows, the offense for which
respondent Justin Taylor was convicted constituted a “vio-
lent felony” in the ordinary sense of the term. Taylor and
an accomplice met with Martin Silvester for the ostensible
purpose of selling him marijuana, but unbeknownst to Silves-
ter, Taylor and his accomplice did not intend to complete the
sale. Instead, they had agreed to threaten Silvester with a
9-millimeter pistol and demand that he hand over his money.
When Silvester refused to comply with their demand, Tay-
lor's accomplice shot Silvester, and he died the next day.
Taylor was convicted of using and carrying a frearm dur-
ing, and in relation to, a crime of violence, 18 U. S. C.
§ 924(c)(3)(A). That conviction was based on a predicate act
4
Meanwhile, Justice Alito's dissent offers an intriguing alternative
interpretation of § 924(c)(3)(A)'s elements clause. See post, at this page
and 874–877. While no party advocates for the interpretation in this
case, we should welcome further briefng on it as well.
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874 UNITED
STATES v. TAYLOR
Alito, J., dissenting
of attempted robbery in violation of the Hobbs Act, 18
U
. S. C. § 1951(a).
The Court holds that this violent (and, indeed, deadly) of-
fense did not constitute a “crime of violence” under the tech-
nical defnition of that term in § 924(c)(3)(A). I agree with
Justice Thomas that our cases involving § 924(c)(3)(A) have
veered off into fantasy land.
1
But if the Court is going to
disregard the real world and base its decisions in this area
on a strict reading of the text, the “offense” for which Taylor
was convicted—attempted Hobbs Act robbery—meets the
defnition in § 924(c)(3)(A). That defnition provides that an
1
The major reason for this excursion was the adoption and spread
of the so-called categorical approach. Although the Court orig inally
adopted the “categorical approach” in Taylor v. United States, 495 U. S.
575 (1990), for other reasons, the major impetus for the expansion of that
approach was concern that allowing the enhancement of a sentence based
on facts found by a judge would violate the Sixth Amendment jury-trial
right as interpreted in Apprendi v. New Jersey, 530 U. S. 466 (2000), and
later related cases. It is questionable whether those cases are consistent
with the original meaning of the Sixth Amendment. See Alleyne v.
United States, 570 U. S. 99, 132–134 (2013) (Alito, J., dissenting); Cun-
ningham v. California, 549 U. S. 270, 298, n. 1 (2007) (Alito, J., dissent-
ing); see also M. McConnell, The Booker Mess, 83 Denver U. L. Rev. 665,
679 (2006) (explaining that “fully discretionary sentencing ” was the norm
“when the Sixth Amendment was adopted”); J. Mitchell, Apprendi's Do-
main, 2006 S. Ct. Rev. 297, 298–299 (“Apprendi's historical claim that sen-
tencing enhancements were treated as `elements' . . . whenever they in-
creased a defendant's maximum punishment is demonstrably mistaken”);
R. Little & T. Chen, The Lost History of Apprendi and the Blakely Peti-
tion for Rehearing, 17 Fed. Sentencing Rep. 69, 69–70 (2004) (arguing that
Apprendi was “undoubtedly founded on an erroneous historical under-
standing ”); S. Bibas, Judicial Fact-Finding and Sentence Enhancements in
a World of Guilty Pleas, 110 Yale L. J. 1097, 1123–1132 (2001) (arguing that
discretionary sentencing was characteristic of 18th-century misdemeanor
sentencing and no fxed rule emerged even in the 19th century). But even
if the approach were necessary when a court is determining a defendant's
sentence, no Sixth Amendment concern is implicated under § 924(c), and
the Court thus erred in holding that the categorical approach applied to
the residual clause of that statute in United States v. Davis, 588 U. S.
–––, ––– – ––– (2019) (Kavanaugh, J., dissenting).

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875
Alito, J., dissenting
“offense” qualifes as a “ `crime of violence' ” if it is a felony
and
“has as an element the use, attempted use, or threatened
use of physical force against the person . . . of another.”
(Emphasis added.)
The key point is the meaning of “an element” of an offense.
This is a fundamental criminal law concept, and we must
therefore presume that § 924(c)(3)(A) employs the term in
its usual and established sense. See A. Scalia & B. Garner,
Reading Law 320–321 (2012). And the usual and estab-
lished meaning of an “element” is clear: It is a “ `constituent
par[t]' of a crime's legal defnition—[a] thin[g] the `prosecu-
tion must prove' ” beyond a reasonable doubt “ `to sustain a
conviction.' ” Mathis v. United States, 579 U. S. 500, 504
(2016) (quoting Black's Law Dictionary 634 (10th ed. 2014)).
See also, e. g., Apprendi v. New Jersey, 530 U. S. 466, 477
(2000); United States v. Gaudin, 515 U. S. 506, 510 (1995).
It is also established that there are two different types of
elements. Some are invariant; that is, they must be proved
in every case. But it is not uncommon for statutes to in-
clude a set of alternative elements and to provide that one,
but not all, of these alternative elements must be proved to
secure a conviction. As the Court said in Descamps v.
United States, 570 U. S. 254 (2013), a statute may “se[t] out
one or more elements of the offense in the alternative—
for example, [by] stating that burglary involves entry into
a bui ldi ng o r an automobi le. ” Id., at 257 (emphasis i n
original).
The Hobbs Act includes both types of elements. It crimi-
nalizes a robbery that “obstructs, delays, or affects” inter-
state commerce, 18 U. S. C. § 1951(a), and it defnes “robbery”
to mean “the unlawful taking or obtaining of personal prop-
erty from the person . . . of another, against his will, by
means of actual or threatened force, or violence, or fear of
injury, immediate or future,” § 1951(b)(1). Accordingly, the
elements of Hobbs Act robbery are (1) the unlawful taking
or obtaining (2) of personal property (3) from the person of

876 UNITED
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Alito, J., dissenting
another (4) against his or her will (5) by means of actual or
(6)
by means of threatened force, or (7) by means of violence,
or (8) by means of fear of injury. The frst four elements
must be proved in every case, while the last four are alterna-
tive elements any one of which is suffcient for conviction.
2
A completed Hobbs Act robbery satisfes § 924(c)(3)(A) be-
cause multiple elements involve “the use, attempted use, or
threatened use of physical force against the person or prop-
erty of another.” Elements (5) thorough (8) obviously qual-
ify, and it is possible that element (4) does as well.
The offense of attempted Hobbs Act robbery also qualifes.
A person commits a criminal attempt if he or she takes a
“ `substantial step' toward completing ” an intended offense.
United States v. Resendiz-Ponce, 549 U. S. 102, 106–107
(2007) (quoting 2 W. LaFave, Substantive Criminal Law
§ 11.4) (2d ed. 2003)). In other words, a defendant must in-
tend to commit some combination of elements that is suff-
cient to constitute Hobbs Act robbery and must take a sub-
stantial step toward the commission of such a combination of
elements. If we label these combinations as A, B, C . . . ,
then the elements of attempted Hobbs Act robbery are (1)
intending to commit at least one qualifying combination, i.e.,
A, B, C . . . , and (2) taking a substantial step toward the
2
There is no plausible argument that actual force, threatened force, vio-
lence, and fear of injury are only “means” of committing Hobbs Act rob-
bery and not elements of the offense under the logic of the Court's decision
in Mathis v. United States, 579 U. S. 500. Distinct “means” of carrying
out an offense are “alternative means of satisfying one (or more) of its
elements.” Id., at 503. In other words, the “means” of carrying out an
offense are ways of carrying out an element of that offense. But there is
no overarching element of Hobbs Act robbery of which actual or threat-
ened force, violence, or fear of injury could be subordinate means of per-
forming. And in any case, a jury must fnd that the prosecution proved
beyond a reasonable doubt that the defendant took or obtained property
from the person of another by way of force, threatened force, violence, or
fear of injury, which entails that these ways of effectuating robbery consti-
tute elements of the offense. See id., at 504–506.
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Alito, J., dissenting
commission of A, B, C . . . . Each such combination consti-
tutes
an “offense” within the meaning of § 924(c)(3), and
several combinations satisfy the defnition of a “crime of
violence.”
Here is a straightforward example: A hypothetical defend-
ant (let's call her “Eve”) intends to take or obtain personal
property from the person of another unlawfully and against
his or her will by means of actual force. Eve is guilty of the
“offense” of attempted Hobbs Act robbery, and her offense
“has as an element the use . . . of physical force against
the person . . . of another.” That is where the Court must
end up if it looks at only the text of § 924(c)(3)(A) and the
Hobbs Act.
It is no answer to this argument that Taylor is not Eve.
He is also not Adam. The whole point of the categorical
approach that the Court dutifully follows is that the real
world must be scrupulously disregarded.
The Court reaches the opposite conclusion only because
it accepts the proposition—which the Government did not
contest—that a felony “has as an element the use, attempted
use, or threatened use of physical force” only if the felony
“always requires the government to prove” the use, at-
tempted use, or threatened use of force “beyond a reasonable
doubt, as an element of its case.” Ante, at 850 (emphasis
added); see Brief for Respondent 13–18. In other words, the
Court assumes that an offense X has an element A if and
only if convicting a defendant of X requires the Government
to prove A in every prosecution for offense X. Based on
this assumption, the Court infers that attempted Hobbs Act
robbery is not a “crime of violence” under § 924(c)(3)(A) be-
cause it is possible to commit that offense without attempt-
ing to use force.
There is no textual basis for this reading, and I would not
adopt an erroneous interpretation that will govern a multi-
tude of cases just because the Government has made an im-
provident concession in this case. If the Court wants to
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hold the Government to the position it has taken here, it can
dismiss
the case and give Taylor the beneft of the judgment in
his favor below. But a party's mistaken argument should not
be permitted to alter the meaning of the law Congress enacted.
Nothing in our precedent suggests that we should deviate
from § 924(c)(3)(A)'s plain text. We have never interpreted
§ 924(c)(3)(A) to require a version of the categorical approach
that would exclude from the elements that an offense “has”
those elements that may be proved as alternatives to one
another. The most we have said is that, in applying the cat-
egorical approach to other statutory provisions, statutes set-
ting forth disjunctive or alternative elements should be ana-
lyzed through what we have called the “modifed categorical
approach.” See Descamps, 570 U. S., at 260–264 (“burglary”
under Armed Career Criminal Act, 18 U. S. C. § 924(e));
Shepard v. United States, 544 U. S. 13, 24–26 (2005) (plurality
opinion) (same). Under this approach, courts must examine
“a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy)” to deter-
mine which alternative element of an offense fgured in the
crime for which the defendant was convicted. Mathis, 579
U. S., at 505.
As I have previously explained, the modifed categorical
approach is diffcult to apply, and I would not apply it here.
See id., at 536–544 (dissenting opinion); Descamps, 570 U. S.,
at 281–296 (Alito, J., dissenting). Instead, I would simply
hold that because one of the elements of the attempted
Hobbs Act robbery is the attempted use of force, that offense
falls within § 924(c)(3)(A)'s defnition of “crime of violence.”
But if we were to apply the modifed categorical approach
in this case, the result would be the same. In his plea agree-
ment and associated statement of facts, Taylor admitted that
he and his accomplice intended to lure Silvester into an alley-
way, hold him at gunpoint, and take his money “by force” in
the event that he resisted. And Taylor and his accomplice
took more than a substantial step toward realizing this plan.
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Alito, J., dissenting
After all, they ultimately shot and killed Silvester. So in
accepti
ng Taylor's plea, it is plain that the sentencing judge
determined that Taylor had intended to commit Hobbs Act
robbery by using force and had taken a substantial step to-
ward the accomplishment of that end. That is more than
suffcient to show that Taylor's actual crime “ha[d] as an ele-
ment the . . . use of physical force against the person . . . of
another.” § 924(c)(3)(A).
For these reasons, I believe that the Court's approach and
ultimate holding in this case are misguided. I would hold
that Taylor committed a “crime of violence” within the mean-
ing of § 924(c)(3)(A) and reverse the judgment of the Fourth
Circuit below. But there is a silver lining in the majority
opinion. Because the Court assumes—and does not hold—
that alternative elements do not qualify as independent ele-
ments of a crime for purposes of applying § 924(c)(3)(A), the
Government remains free to advance the correct interpreta-
tion of that provision in a future case. For my purposes,
however, the text of the statute is clear enough to support
reversal here and now. As a result, I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 850, line 10 from bottom: “(plurality opinion)” is inserted after “(2021)”
p. 866, line 8: “potential” is inserted after “serious”
p. 878, line 17: “(plurality opinion)” is inserted after “(2005)”