36 F.4th 431
2d Cir.2022Background
- Castillo, a federal felon, pleaded guilty to being a felon in possession of a firearm. Probation applied a Guidelines enhancement under U.S.S.G. §2K2.1(a)(4)(A) based on a 2011 New York conviction for attempted second‑degree gang assault (N.Y. Penal Law §§120.06, 110.00), raising his base level from 14 to 20.
- NY §120.06 (second‑degree gang assault) requires: (1) intent to cause physical injury; (2) aided by two or more persons actually present; and (3) causing serious physical injury. NY attempt (§110.00) requires specific intent to commit the object crime and conduct tending to effect it.
- The district court held Castillo’s attempted gang assault conviction qualified as a “crime of violence” under U.S.S.G. §4B1.2(a)(1) (the force clause) and imposed a 40‑month sentence (below a 46–57 mo. Guidelines range that resulted from the enhancement).
- Castillo appealed, arguing attempted second‑degree gang assault is a legally impossible offense under NY law (because it requires intending an unintended severe result) and thus does not categorically include the use, attempted use, or threatened use of physical force required by the force clause.
- The Second Circuit applied the categorical approach, concluded the attempt conviction’s elements are legally incoherent with respect to the unintended serious‑injury element and therefore do not necessarily involve violent physical force; it vacated Castillo’s sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted 2d‑degree gang assault is a "crime of violence" under U.S.S.G. §4B1.2(a)(1) (force clause) | The statute’s intent to cause physical injury and the aided‑by‑two‑people element necessarily involve the use/threat/attempted use of violent physical force | The NY offense is legally impossible as an attempt because it requires intending an unintended serious‑injury result; thus it cannot categorically involve use of physical force | Not a crime of violence under the force clause — conviction’s elements do not definitively include use/attempted use/threatened use of physical force |
| Whether Application Note 1 (which includes attempts) brings Castillo’s attempted conviction within §4B1.2 | If completed gang assault is a crime of violence, Application Note 1 makes the attempt a crime of violence | "Attempt" in the Note is the federal/generic attempt, requiring specific intent to each element; Castillo’s plea reflects an incoherent mens rea and so is not a generic attempt | Not covered by Application Note 1 — Castillo’s conviction does not reflect the requisite generic attempt |
| Whether attempted gang assault is an enumerated "aggravated assault" under §4B1.2(a)(2) | The offense parallels aggravated assault (Model Penal Code analog) and thus should be enumerated | NY law allows unintended serious injury (disparity with MPC definition) and the attempted conviction lacks the MPC elements | Not an enumerated aggravated assault — does not categorically match the generic offense |
| Preservation of the legal‑impossibility argument | Castillo failed to preserve the specific ground on appeal | Castillo sufficiently raised objections to the intent element in district court; argument preserved | Court found argument preserved for appeal |
Key Cases Cited
- United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (categorical‑approach framework; omission can still involve force in some contexts)
- Taylor v. United States, 495 U.S. 575 (1990) (formulation and use of the categorical approach)
- People v. Martinez, 81 N.Y.2d 810 (1993) (attempted manslaughter held a nonexistent/legally impossible crime where an element required intending an unintended result)
- Gill v. I.N.S., 420 F.3d 82 (2d Cir. 2005) (incompatibility between New York attempt doctrine and a reckless mens rea; limits on what mens rea can be discerned from certain attempted‑offense convictions)
- United States v. Pereira‑Gomez, 903 F.3d 155 (2d Cir. 2018) (robbery/force analysis — threat or use of force can be found by reference to statutory language and context)
- Descamps v. United States, 570 U.S. 254 (2013) (method for comparing statute elements to the generic version when evaluating enumerated offenses)