                  Cite as: 564 U. S. ____ (2011)                1

                      SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
             MATTHEW SHERIDAN DERBY
10–8373                 v.
                  UNITED STATES

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT




                     KEITH JOHNSON
10–8607                     v.
                     UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



                      ROY L. SCHMIDT
10–8768                      v.
                      UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT



                SHERMAN ALAN TURNER
10–8885                  v.
                   UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT



Nos. 10–8373, 10–8607, 10–8768 and 10–8885. Decided June 27, 2011

  The petitions for writs of certiorari are denied.
  JUSTICE SOTOMAYOR took no part in the consideration
or decision of No. 10–8607.
2                 DERBY v. UNITED STATES

                     SCALIA, J., dissenting

  JUSTICE SCALIA, dissenting from denial of certiorari.
  Before us are petitions for certiorari by criminal de
fendants asking us to decide whether four more of the “vast
variety of . . . criminal offenses” that we have not yet
addressed, see Sykes v. United States, ante, at 2–4, 7
(SCALIA, J., dissenting), are crimes of violence under the
residual provision of the Armed Career Criminal Act
(ACCA). See 18 U. S. C. §924(e)(2)(B)(ii). They are:
    •	 Derby v. United States, No. 10–8373. Relying on its
       decision in United States v. Mayer, 560 F. 3d 948
       (2009), the Ninth Circuit held that Oregon’s first
       degree burglary statute, Ore. Rev. Stat. §164.225
       (2009), falls within ACCA’s residual provision. In
       Mayer, the Ninth Circuit conceded that Oregon’s
       statute does not qualify as the enumerated offense
       of generic “burglary” under ACCA because it ap
       plies to unlawful entries into “booths, vehicles,
       boats, and aircraft,” 560 F. 3d, at 959, and not
       just buildings and structures. See Taylor v. United
       States, 495 U. S. 575, 598 (1990). Nevertheless, it
       held that Oregon’s statute falls within the residual
       provision, because burglaries under that statute
       lead to a “risk of a physical confrontation.” 560
       F. 3d, at 962; but see id., at 952 (Kozinski, C. J.,
       dissenting from denial of rehearing en banc) (not
       ing that “Oregon prosecutes as burglars people who
       pose no risk of injury to anyone,” such as an indi
       vidual who “enter[ed] public telephone booths to
       steal change from coin boxes”).
    •	 Johnson v. United States, No. 10–8607. The Sec
       ond Circuit, over a dissent, held that the Connecti
       cut offense of “rioting at a correctional institution,”
       Conn. Gen. Stat. §53a–179b(a) (2011), which pun
       ishes a defendant who “incites, instigates, orga
       nizes, connives at, causes, aids, abets, assists or
       takes part in any disorder, disturbance, strike, riot
              Cite as: 564 U. S. ____ (2011)            3

                  SCALIA, J., dissenting

   or other organized disobedience of the rules and
   regulations of [a correctional] institution,” falls
   within ACCA’s residual provision. In response to
   the defendant’s argument that the statute punishes
   activities such as “ ‘inciting or participating in a
   hunger strike’ ” or “ ‘refusal to work at a prison
   job,’ ” the court reasoned that even “hypothetical
   acts of ‘passive disobedience’ . . . involve deliberate
   and purposeful conduct.” 616 F. 3d 85, 90 (2010).
   It also held that such activities were risky because
   “prisons are like powder kegs, where even the slight
   est disturbance can have explosive consequences.”
   Id., at 94.
•	 Schmidt v. United States, No. 10–8768. The Fifth
   Circuit held that the federal offense of theft of a
   firearm from a licensed dealer, 18 U. S. C. §922(u),
   falls within ACCA’s residual provision. It held that
   this offense is “inherently dangerous” because it in
   volves “stealing from a person who probably either
   possesses or has easy access to firearms,” and be
   cause “stolen firearms are more likely to be used
   in connection with illegal and inherently harmful
   activities than are lawfully possessed guns.” 623
   F. 3d 257, 264 (CA5 2010).
•	 Turner v. United States, No. 10–8885. Relying on
   its decision in United States v. Jarmon, 596 F. 3d
   228 (2010), the Fourth Circuit held that ACCA’s
   residual provision covers the Virginia offense of
   larceny from the person, Va. Code Ann. §18.2–95(i)
   (Lexis 2009), defined as theft of over $5 in money or
   goods from another person—in other words, pick
   pocketing. In Jarmon, the court justified its appar
   ent view that Oliver Twist was a violent felon by
   noting that larceny “requires the offender to make
   purposeful, aggressive moves to part the victim
   from his or her property, creating a . . . risk of vio
4                 DERBY v. UNITED STATES

                     SCALIA, J., dissenting

          lent confrontation” similar to the risk of violent
          confrontation during burglaries. 596 F. 3d, at 232.
   How we would resolve these cases if we granted certio
rari would be a fine subject for a law-office betting pool.
No one knows for sure. Certainly our most recent decision
interpreting ACCA’s residual clause, Sykes v. United
States, ante, p. 1, would be of no help. The “rule” we an
nounced there, as far as I can tell, is as follows: A court
must compare the degree of risk of the crime in question
with the degree of risk of ACCA’s enumerated offenses
(burglary, extortion, arson, and crimes involving the use of
explosives) as a “beginning point,” ante, at 6–7; look at
the statistical record, which is not “dispositive” but some
times confirms “commonsense conclusion[s],” ante, at 8; and
check whether the crime is “purposeful, violent, and ag
gressive,” unless of course the crime is among the unspeci
fied “many cases” in which that test is “redundant with
the inquiry into risk,” ante, at 11. And of course given our
track record of adding a new animal to our bestiary of
ACCA residual-clause standards in each of the four suc
cessive cases we have thus far decided, see ante, at 2–4
(SCALIA, J., dissenting), who knows what new beasties our
fifth, sixth, seventh, and eighth tries would produce?
Surely a perfectly fair wager.
   If it is uncertain how this Court will apply Sykes and the
rest of our ACCA cases going forward, it is even more
uncertain how our lower-court colleagues will deal with
them. Conceivably, they will simply throw the opinions
into the air in frustration, and give free rein to their own
feelings as to what offenses should be considered crimes
of violence—which, to tell the truth, seems to be what we
have done. (Before throwing the opinions into the air, how
ever, they should check whether littering—or littering
in a purposeful, violent, and aggressive fashion—is a fel
ony in their jurisdiction. If so, it may be a violent felony
under ACCA; or perhaps not.)
                 Cite as: 564 U. S. ____ (2011)           5

                     SCALIA, J., dissenting

  Since our ACCA cases are incomprehensible to judges,
the statute obviously does not give “person[s] of ordinary
intelligence fair notice” of its reach. United States v.
Batchelder, 442 U. S. 114, 123 (1979) (internal quotation
marks omitted). I would grant certiorari, declare ACCA’s
residual provision to be unconstitutionally vague, and ring
down the curtain on the ACCA farce playing in federal
courts throughout the Nation.
