UNITED STATES OF AMERICA, Appellant, v. GERALD SCOTT, Defendant-Appellee.
No. 18-163-cr
United States Court of Appeals for the Second Circuit
March 2, 2021
Argued En Banc: November 6, 2020
AUGUST TERM 2020
Before: LIVINGSTON, Chief Judge, LEVAL, CABRANES, POOLER, KATZMANN, RAGGI, CHIN, LOHIER, CARNEY, SULLIVAN, BIANCO, PARK, NARDINI, and MENASHI, Circuit Judges.*
MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY, for Defendant-Appellee.
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Samuel C. Leifer, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA; Peter Goldberger, Ardmore, PA, for amicus curiae FAMM.
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; Samuel C. Leifer, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA; Richard D. Willstatter, Green & Willstatter, White Plains, NY, for amicus curiae Counsel for New York State Association of Criminal Defense Lawyers.
Thomas C. Goldstein, Goldstein & Russell, P.C., Bethesda, MD, for amici curiae National Association for Public Defense, Arizona Attorneys for Criminal Justice, the Human Rights Defense Center, the Illinois Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the National Legal Aid & Defender Association, and the Office of the Defender General in Vermont.
* Judge Hall did not participate in the consideration of this en banc appeal. Judge Leval, Judge Katzmann, and Judge Raggi, who are senior judges, participated in this en banc decision pursuant to
PARK, J., filed a concurring opinion in which LIVINGSTON, C.J., CABRANES, SULLIVAN, and NARDINI, JJ., joined.
MENASHI, J., filed an opinion concurring in part and concurring in the judgment.
LEVAL, J., filed a dissenting opinion in which KATZMANN, LOHIER and CARNEY, JJ., joined in full, and in which POOLER, J., joined in part.
POOLER, J., filed a dissenting opinion in which LEVAL and CARNEY, JJ., joined as to Parts I–IV.
The United States appeals from an amended judgment entered pursuant to
REVERSED in part, VACATED in part, and REMANDED.
INTRODUCTION
Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life. The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under
The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court‘s grant of Scott‘s
After rehearing the case en banc, we reject this reasoning, which, carried to its logical—or illogical—conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person‘s death by omission when the defendant‘s specific intent is to kill, see
Indeed, we find that path foreclosed by the Supreme Court‘s decision in United States v. Castleman, 572 U.S. 157 (2014). The Supreme Court there stated that the “knowing or intentional causation of bodily injury necessarily involves the use of physical force.” Id. at 169 (emphasis added). Because New York first-degree manslaughter can only be committed by a defendant who causes death—the ultimate bodily injury—while intending to cause at least
Nor is a different conclusion warranted by the possibility of New York first-degree manslaughter being committed by omission. First, to the extent that the use of physical force implies some action by a defendant, the criminal law recognizes an omission as “affirmative action” in identifying criminal culpability. 2 Wayne R. LaFave, Substantive Criminal Law § 15.4(b), at 717 (3d ed. 2018) (hereinafter “LaFave“); see infra at 24, 33–35. Second, in Castleman, the Supreme Court explained that a defendant‘s use of force does not depend on his own actions in initiating or applying injurious force. What matters is that he knowingly employed or availed himself of physical force as a device to cause intended harm. 572 U.S. at 171 (explaining that, in poisoning scenario, “use of force” is “not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physical harm” (brackets and internal quotation marks omitted)); see also Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018) (following Castleman, “use of force” inquiry “focuses on the causation of a consequence, rather than the physical act of initiating an action that leads to a consequence“). A defendant can do that as much by omission as by commission in committing first-degree manslaughter. That is because, when a defendant causes death by breaching a legal duty to check or redress violent force because he intends thereby for that force to cause serious physical injury, what he is doing is making that force his own injurious
In sum, after reviewing the matter en banc, this court identifies New York first-degree manslaughter as a categorically violent crime under the force clauses of ACCA and the Career Offender Guideline. Accordingly, we vacate the panel decision, reverse the district court‘s grant of Scott‘s § 2255 motion, vacate the reduced sentence reflected in the amended judgment, and remand the case to the district court with directions to reinstate Scott‘s original sentence and judgment.
BACKGROUND
I. Scott‘s Federal Crimes of Conviction and Violent Criminal History
Whether first-degree manslaughter in violation of
This is Scott‘s fourth conviction for felony crimes committed by threatening—and on two occasions taking—human life. In 1983, Scott was convicted of first-degree robbery, see
A. Scott‘s Initial Sentence
Judged simply by his own brutal conduct, Scott is clearly a persistently violent felon. In sentencing Scott for his most recent federal crimes, the district court was certainly entitled—and, indeed, required—to consider his violent criminal history. See
At the same time, however, the law sometimes requires specific findings to trigger particular sentencing consequences. Thus, to apply a “Career Offender” enhancement to Scott‘s Sentencing Guidelines calculation, the district court was required to find that he had two or more felony convictions for a “crime of violence” or a “controlled substance offense.”
At Scott‘s initial sentencing, the district court concluded—with no objection and, therefore, little discussion—that Scott warranted sentencing enhancements under both ACCA and the Career Offender Guideline based on his 1983 conviction for robbery and his two 1988 convictions for first-degree manslaughter. Accordingly, on April 16,
B. Section 2255 Vacatur and Resentencing
In 2016, with this court‘s leave, Scott filed a collateral challenge to his sentence pursuant to
On resentencing, the district court employed the same reasoning to conclude that first-degree manslaughter was not a crime of violence under the Career Offender Guideline‘s identical force clause. Nor was first-degree manslaughter a crime of violence under the Guideline‘s enumerated offenses clause because, in the district court‘s view, it did not fit within the generic definitions of “murder,” “voluntary manslaughter,” or “aggravated assault.”
On the government‘s appeal, a divided panel affirmed. Identifying an “omission” as the minimum criminal conduct required
The panel‘s dissenting member questioned the realistic probability of New York prosecuting first-degree manslaughter in circumstances where a defendant took no physical action whatsoever. See id. at 99–102 (Raggi, J., dissenting). But even assuming that probability, the dissent maintained that first-degree manslaughter was a categorically violent crime because conviction required the defendant (1) to have caused death while (2) intending to cause at least serious physical injury, and the Supreme Court has recognized that the “intentional causation of bodily injury necessarily involves the use of physical force.” Id. at 102 (emphasis in dissent) (quoting United States v. Castleman, 572 U.S. at 169). Moreover, the dissent identified first-degree manslaughter as a categorical crime of violence under the Guideline‘s enumerated offenses clause because the minimum conduct for conviction, as reflected in its two elements, was recognized by a majority of states as either murder or the lesser-included crime of voluntary manslaughter, and by a majority of states as aggravated assault. See id. at 105–08 (concluding that murder and
Following the panel‘s affirmance, and before the issuance of any mandate, a majority of this court‘s active judges voted to rehear the case en banc. See
DISCUSSION
I. “Violent Felony” and “Crime of Violence” Under the ACCA and Career Offender Guideline Force Clauses
Whether an offense is a “violent felony” or a “crime of violence” under ACCA and the Career Offender Guideline is a question of law that this court decides de novo. See United States v. Moore, 916 F.3d 231, 236 (2d Cir. 2019); United States v. Bordeaux, 886 F.3d 189, 192 (2d Cir. 2018). In doing so here, we look to the definitions of these terms as stated in the ACCA and Guideline force clauses. See supra note 2 (quoting clauses). Because the clauses are identically worded, a single analysis suffices to explain our conclusion that first-degree manslaughter in violation of
The force clauses define a violent crime by asking whether the crime “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See supra note 2. We look to state law in identifying the elements of a crime, but to federal law in determining “whether the consequences of the conduct that
II. Prosecuting First-Degree Manslaughter by “Omission”
The two elements of first-degree manslaughter are readily identified in the text of
Thus, the minimum conduct necessary to commit the crime is the causation of death by a person intent on causing serious physical injury. Scott argues, and the district court agreed, that a person‘s death can be caused by omission, which New York defines as the “failure to perform an act as to which a duty of performance is imposed by law.”
This was error, though perhaps not recognizable to the district court at the time, insofar as its ruling predated this court‘s clear pronouncement in Villanueva v. United States that Chrzanoski‘s understanding of “use of force” was “abrogated” by Castleman. 893 F.3d at 130; see also United States v. Hill, 890 F.3d at 60 (observing that ”Chrzanoski panel did not have the benefit of the Supreme Court‘s reasoning in Castleman“). Apparently, Villanueva did not make the point clearly enough, however, because Scott maintains—incorrectly—that Chrzanoski remains good law with respect to crimes that can be committed by omission. He reasons that omission is “inaction,” “literally no conduct,” whereas “use” requires some “physical act” by a defendant to initiate or apply force. Appellee Br. at 14, 20. On this basis, Scott submits that first-degree manslaughter cannot be identified as a categorically violent crime under the ACCA and Career Offender Guideline force clauses.
A. Assuming the “Realistic Probability” of Prosecuting First-Degree Manslaughter by Omission
In making this argument, Scott bears a double burden. At the threshold, he must demonstrate not only that it is theoretically possible to prosecute first-degree manslaughter in circumstances of complete inaction, but also that it is realistically probable that New York would so apply its law. See United States v. Hill, 890 F.3d at 56; Stuckey v. United States, 878 F.3d at 67. This requirement serves to ensure that defendants, such as Scott, who undeniably used violence to commit their past crimes of conviction, do not escape being denominated
Scott points to three New York State cases to satisfy his threshold burden: People v. Steinberg, 79 N.Y.2d 673, 680, 584 N.Y.S.2d 770, 772 (1992) (upholding conviction of adoptive father prosecuted on theories of both commission and omission for brutally beating six-year-old child and leaving her to die); People v. Wong, 81 N.Y.2d 600, 607, 601 N.Y.S.2d 440, 443–44 (1993) (reversing couple‘s manslaughter convictions on theories of both commission and omission for insufficient evidence relating to shaken-baby-syndrome death of infant in their care, although citing Steinberg in acknowledging
New York‘s first-degree manslaughter statute,
The Career Offender Guideline defines a “crime of violence” as a federal or state felony that,
- has as an element the use, attempted use, or threatened use of physical force against the person of another; or
- is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in
26 U.S.C. § 5845(a) or explosive material as defined in18 U.S.C. § 841(c) .
In this opinion, we focus on the highlighted, identically worded “force clauses,” and we use the term “violent crime” to refer to both an ACCA “violent felony” and a Guideline “crime of violence” as defined in these clauses. Similarly, references to “use” of physical force in this opinion are intended to include attempted and threatened, as well as actual, use.
B. First-Degree Manslaughter Necessarily Involves the Use of Violent Force
As already observed, a person commits first-degree manslaughter under New York law when, (1) “[w]ith intent to cause serious physical injury to another person,” (2) “he causes the death of such person or of a third person.”
1. The Elements of First-Degree Manslaughter Require a Defendant‘s Use of Violent Force
To explain, we begin with what Scott himself acknowledged at oral argument: any death amounting to first-degree manslaughter necessarily results from violent force. See Tr. Nov. 6, 2020, at 57. It follows, then, that the person who caused that death—the actus reus element of first-degree manslaughter—is the person who used the violent force producing that fatal result. How does one identify that person? The mens rea element of the crime answers the question. It requires that a person intend to cause, if not death, then at least
The possibility of a defendant committing the crime by omission warrants no different conclusion. The word “use“—which we here construe in the context of a use of violent force, see Smith v. United States, 508 U.S. 223, 229 (1993) (recognizing that word “use” must be construed in context)—does not require (as Scott maintains) that a defendant take affirmative physical action to initiate or apply the violent force resulting in death. Rather, as the Supreme Court observed in Smith, the “ordinary,” “natural,” “everyday meaning” of the word “use” requires only that a person “make use of” the violent force, “convert [such force] to one‘s service,” “employ [it],” “avail oneself of [it],” “utilize [it],” “carry out a purpose or action by means of [it],” or “derive service from [it].” Id. at 228-29 (internal quotation marks omitted) (citing ordinary meaning of “use” before construing word in context of firearm use proscribed by
To the extent the Court has recognized (again in the context of firearms) that the ordinary definitions of “use” imply some “action and implementation” by a defendant that go beyond mere possession, Bailey v. United States, 516 U.S. 137, 145 (1995), omission—the breach of a legal duty to act—provides any necessary action. As we explain in some detail infra at 33-35, “omission” has a specialized meaning at law, which equates not to inaction, but to action supporting criminаl culpability. See 2 LaFave § 15.4(b), at 717 (observing that omission equates to “affirmative action” in identifying culpability). Indeed, it is the action that can establish causation for crimes such as murder and manslaughter, which as Scott acknowledges, necessarily result from violent force. See Tr. Nov. 6, 2020, at 57; 1 LaFave § 6.2, at 589-90 (identifying murder and manslaughter as crimes defined in terms of cause and effect that can, in appropriate circumstances, be committed by omission).
Not insignificantly, the New York Court of Appeals relied on this specialized meaning in ruling that first-degree manslaughter can be committed by omission. See People v. Steinberg, 79 N.Y.2d at 680 (“The Penal Law provides that criminal liability may be based on an
No matter. In construing ACCA, we assume that when Congress identified violent crimes by reference to an element requiring a use of force, it legislated against the common law background recognizing omission as action. See generally Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (recognizing Congress to legislate against background of common law).16 Thus, we are satisfied that
This conclusion does not stretch the word “use” beyond its ordinary meaning when applied to violent force. Nor does it recognize a use of violent force in circumstances having little to do with the intended purpose of such force, i.e., as an instrument for causing physical injury.18 A defendant intent on causing serious physical injury can employ, utilize, make use of, or avail himself of violent force whether he initiates that force by his own physical act or breaches a legal duty to check or redress force already in motion. Likewise, he can convert violent force to his own injurious purpose, or derive service from such force, whether he acts by commission or omission. In the latter circumstance, a defendant‘s performance of his legal duty would presumably have prevented the violent force from having injurious effect. See 1 LaFave § 6.2(d), at 606-07 (recognizing that homicide-by-omission requires “‘but for’ causation: but for the
2. Castleman Compels the Conclusion that First-Degree Manslaughter Necessarily Involves the Use of Violent Force
This conclusion is compelled, moreover, by United States v. Castleman. In that case, the Supreme Court stated that the “knowing or intentional causation of bodily injury necessarily involves the use of physical force.” 572 U.S. at 169 (emphasis added).
At issue in Castleman was whether a Tennessee domestic assault statute proscribing the knowing or intentional causation of bodily injury “has, as an element, the use or attempted use of physical force,” so as to make the offense a “misdemeanor crime of domestic violence” under
But further, and more important to our analysis here, the Supreme Court made clear in Castleman that where “use” is being construed in relationship to “physical force,” a defendant‘s use of such force does not depend on his having forceful contact—or indeed any physical contact—with his injured victim. Rather, what matters is that the defendant must have knowingly and intentionally caused an injury that can result only from the use of physical force. On that point, the Court stated, without qualification: “[T]he knowing or intentional causation of bodily injury necessarily involves the use of physical force.” Id. at 169 (emphasis added); accord id. at 174 (Scalia, J., concurring in part and concurring in judgment) (observing, even with respect to violent force, that “it is impossible to cause bodily injury without using force capable of producing that result” (internal quotation marks omitted)). Indeed, in rejecting an argument that a poisoner could kill his victim without using physical force by the non-violent act of surreptitiously sprinkling poison in the victim‘s drink, the Court explained that not only is the minimal degree of action necessary to sprinkle poison irrelevant to identifying a use of force, but also irrelevant is the very act of sprinkling. See id. at 171. The
Thus, Castleman rejected the argument here urged by Scott: that “use of force” requires some physical act by a defendant to initiate or apply the force. Rather, the Supreme Court there identified “use of physical force” by reference to two factors, one pertaining to causation and the other to mens rea.
First, the relevant physical force is that which causes physical injury to a victim, not that which is physically performed by a defendant. Several courts of appeals, including our own, have been quick to recognize the significance of causation in identifying a use of physical force. When, in Villanueva v. United States, we recognized Connecticut first-degree assault to be a categorical violent crime under ACCA, we stated that, following Castleman, “the inquiry as to ‘force,’ for federal law purposes, focuses on the causation of a consequence, rather than the physical act of initiating an action that leads to a consequence,” 893 F.3d at 128; see also United States v. Báez-Martínez, 950 F.3d 119, 132 (1st Cir. 2020) (characterizing Castleman as deeming “injury to be the fingerprint of force“).20
Because the only “consequence” for a victim of New York first-degree manslaughter is death (the ultimate physical injury), Villanueva v. United States, 893 F.3d at 128, and because the causation of that consequence “necessarily involves the use of physical force,” United States v. Castleman, 572 U.S. at 169, a defendant convicted of that homicide crime because he intended to cause at least serious physical injury must be said to have knowingly used the force causing death regardless of whether he did so by commission or omission.
Of course, a defendant can—and frequently will—manifest a knowing employment of injurious violent force through his own physical acts, for example, when he intentionally fires a gun directly into someone‘s head or repeatedly stabs a victim (as Scott did when he twice committed first-degree manslaughter). But a defendant can also manifest a knowing employment of violent force by acts of omission, as when he breaches a legal duty to check or redress violent physical force because he specifically intends thereby to have that force cause serious physical injury. In that circumstance—satisfying the two elements of first-degree manslaughter—omission is how the defendant knowingly avails himself of the violent force that results in death. Omission is how he employs such force as the means to pursue his own injurious purpose. It is how he knowingly makes that force his chosen instrument for causing harm. That is the essence of “use” as explained in Castleman: “the word ‘use’ conveys the idea that the thing used (here, physical force) has been made the user‘s
Thus, following the reasoning of Castleman, our own decisions in Villanueva and Hill, and those of other courts of appeals, we hold that New York first-degree manslaughter is a categorically violent crime under the force clauses of ACCA and the Career Offender Guideline because—whether a defendant acts by commission or omission—the offense‘s causation and intent elements can be satisfied only when a defendant knowingly employs the violent force causing death as the instrument for pursuing his own seriously injurious purpose.
In urging otherwise, Scott and/or his amici argue that Castleman is cabined by its context, which did not specifically consider the ACCA force clause or crimes that can be committed by omission. They insist that some physical act by a defendant is necessary to identify a use of force. These arguments fail to persuade.
1. Castleman‘s Reasoning Applies to the ACCA and Career Offender Guideline Force Clauses
As this court has already recognized, the link Castleman forged between the “intentional causation of bodily injury” and the “necessar[y] . . . use of physical force,” 572 U.S. at 169, is both “independent” of the case‘s domestic relations context and “precisely relevant” to ACCA. Villanueva v. United States, 893 F.3d at 129 (collecting cases also applying Castleman‘s reasoning to interpretation of other statutes).22 Indeed, it would make no sense to conclude that the lesser injury required for a misdemeanor crime of violence necessarily involves the use of physical force (even if only common law force) while the greater injury required for a violent felony can be caused without the use of any force at all. On this point, five of six courts of appeals to have considered the question agree.23 Scott
2. Castleman‘s Reasoning Applies to Crimes Committed by Omission
The fact that neither Castleman nor Villanueva specifically addressed crimes that can be committed by omission does not mean that the reasoning in those cases about causation and use of force is inapplicable to such crimes.24 In so urging, Scott and his amici maintain that omission is “inaction,” which, under Supreme Court precedent, cannot constitute use of force. Appellee Br. at 14-17; Br. for Def. Orgs. as Amici Curiae at 11-16. As signaled earlier, we reject both the premise and the conclusion. See supra at 24-27.
a. The Law Equates Omission with Action
An “omission” is a failure to act, but it is not a failure to act simpliciter. Rather, it is the failure to act when the law imposes a duty to act. Far from identifying such a breach of duty as inaction, the law views it as action sufficient to support criminal culpability.
That equivalency, originally rooted in common law, see 1 LaFave § 6.1(b), at 571 (observing “common law crimes all require an act or omission in addition to a bad state of mind“), is now reflected in the Model Penal Code, see
In construing ACCA‘s force clause, we are mindful that its purрose is to define a “violent felony” by reference to the elements of such a crime. See Curtis Johnson v. United States, 559 U.S. at 140 (construing “physical force” in ACCA by reference to “context of a statutory definition of ‘violent felony‘” (emphasis omitted)); Leocal v. Ashcroft, 543 U.S. at 9 (emphasizing importance of context “when interpreting a statute that features as elastic a word as ‘use‘“). We
To the extent Scott equates omission with inaction in order to argue that Chambers v. United States, 555 U.S. 122 (2009), rather than
This case is not analogous. Not only is ACCA‘s now-invalidated residual clause not at issue here, but also, Scott acknowledges that death amounting to first-degree manslaughter always results from violence. See Tr. Nov. 6, 2020, at 57. Moreover, the crime here under consideration, first-degree manslaughter, is not a “form of inaction.” Chambers v. United States, 555 U.S. at 128. To the contrary, the crime‘s actus reus, far from proscribing a defendant‘s failure to do something, such as failing to report to prison, proscribes his doing something, specifically, causing the death of another person. It may be possible for a defendant to cause death either by physical action or by omission, but, in either circumstance, the causation of that ultimate physical injury necessarily involves the use of violent force. That is the teaching of Castleman, and it is that decision, not Chambers, that controls here.
b. Precedent Does Not Require a Defendant‘s Performance of Some Physical Act to Identify His Use of Force
Scott maintains that Supreme Court precedent requires a defendant‘s performance of at least some physical act to identify his
Scott‘s reliance on Curtis Johnson conflates “physical force” with the “use” of such force. Curtis Johnson holds only that the former term should be construed according to its “ordinary meaning,” observing that dictionary definitions describe “force” as “active power; vigor,” and “physiсal force” as “force consisting in a physical act.” 559 U.S. at 138-39 (brackets and internal quotation marks omitted). The case says nothing about what constitutes a use of physical force. Certainly, it does not hold that use requires a physical act.28
It was subsequently, in Castleman, that the Supreme Court discussed what constitutes a “use” of physical force. The Court there explained that the relevant physical force is that which physically injures the victim. Whether a defendant can be said to have used that
No different conclusion can be drawn from cases construing “use” as “active employment.” In Bailey v. United States, the Supreme Court used that formulation in discussing the use or carrying of a firearm proscribed by an earlier version of
This case is not akin to Bailey, and those differences are important to understanding what constitutes “active employment” in each context. See id. at 145 (acknowledging that construction of word “use” depends on “its placement and purpose in [a] statutory scheme“). First, the object of required use in Bailey was a gun, a specific, tangible object. The object of required use here is violent physical force, intangible power evident in myriad forms, some obvious, others insidious. Second, while a gun can be used to unleash violent force, an unused gun can be inert. By contrast, the very essence of violent force is power in physical motion, specifically, power that, once unleashed or unchecked, is capable of causing physical pain or injury. Third, and perhaps most important, serious physical injury can, but need not, involve the use оf a gun. But, as Castleman and Villanueva recognize, serious physical injury necessarily involves the use of violent force. Thus, a defendant‘s use of a gun may only be evident from particular activities, see id. at 148 (identifying activities amounting to use of firearm), whereas a defendant‘s use of violent physical force is always evident from his knowing causation of serious bodily injury, see United States v. Castleman, 572 U.S. at 169-70; Villanueva v. United States, 893 F.3d at 128-29. It does not matter whether such causation results from a defendant‘s physical acts in instigating or applying violent force or from his acts of omission in failing to check or redress violent force already in motion. In both circumstances, the defendant‘s actions
Voisine v. United States and Leocal v. Ashcroft are not to the contrary. In both cases, the Supreme Court referenced a defendant‘s “active employment” of physical force to emphasize that the use of physical force causing bodily injury must be more than accidental or negligent, not that it must involve the defendant‘s physical movement. Thus, in Leocal, which construed the force clause defining violent crimes in
While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. . . . The . . . phrase . . . “use . . . of physical force against the person . . . of another“—most naturally suggests a higher degree of intent than negligent or merely accidental conduct.
543 U.S. at 9 (emphasis omitted) (holding Florida driving-under-the-influence-and-causing-injury crime did not satisfy force clause because offense lacked requisite mens rea element and, thus, injury could result from negligence or accident). Similarly, in Voisine, construing the force clause defining misdemeanor crimes of domestic violence under
The crime here at issue, first-degree manslaughter, raises no such concerns. Under New York law, there is no possibility of committing first-degree manslaughter accidentally, negligently, or even recklessly.33 Rather, the crime demands more: a defendant must
c. There Is No Need to Resort to the Rule of Lenity
Scott argues that if the ACCA and Career Offender Guideline force clauses do not clearly require a defendant‘s performance of a physical act to identify a use of force, they are at least ambiguous on the point, in which case the rule of lenity requires the court to resolve that ambiguity in his favor. See United States v. Santos, 553 U.S. 507, 514 (2008) (stating that “rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them“).
Scott‘s invocation of the rule is not without some irony. There can be no question that he performed physical acts in shooting and stabbing his two manslaughter victims. See supra at 10. Thus, to the extent the lenity rule is grounded in a concern for “fair warning,” see McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.); United States v. Bass, 404 U.S. 336, 347-48 (1971), Scott can hardly claim that he was not clearly warned that his manslaughter convictions exposed him to enhanced penalties under ACCA and the Career Offender Guideline for any subsequent possession of a firearm. See generally United States v. Fields, 113 F.3d 313, 325 (2d Cir. 1997) (holding that even if statutory sentencing enhancement was ambiguous on its face as to “cocaine base,” defendants could not benefit from rule of lenity where term clearly applied to their dealing in crack cocaine).
But even assuming arguendo that, in the context of a categorical inquiry, lenity may be invoked by a defendant who received fair warning, Scott‘s argument is defeated by Castleman‘s clear pronouncement that a defendant “necessarily” uses physical force in committing a crime involving the intentional causation of physical injury. See supra at 27-31. Indeed, in so ruling, the Supreme Court specifically rejected defendant Castleman‘s invocation of the rule of lenity to urge a narrow construction of
The ACCA and Career Offender Guideline force clauses state that a “violent felony” or a “crime of violence” must have as an element the use of physical force. They say nothing about that use
Nor does the word “use” support a physical act requirement. As discussed, the common meaning of the word is “to make use of; to convert to one‘s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of[;] . . . or to derive service from.” Smith v. United States, 508 U.S. at 229 (brackets and internal quotation marks omitted). Every one of these definitions easily applies to first-degree manslaughter committed by omission. See supra at 22-27.
Legislative history and purpose also do not support construing the force clauses of ACCA and the Career Offender Guideline to exclude crimes that can be committed by omission from the sphere of categorically violent felonies. When Congress added a force clause to ACCA, it specifically identified “murder, rape, assault, [and] robbery” as among the crimes “involving physical force” that it expected to qualify as categorical violent felonies. H.R. Rep. No. 99-849, at 3 (1986); see also Curtis Johnson v. United States, 559 U.S. at 140-41 (favorably citing dictionary definition of “‘violent felony’ as ‘[a] crime characterized by extreme physical force, such as murder, forcible rape, and assault and battery with a dangerous weapon‘“). As we noted supra at 4, note 1, 7, first-degree manslaughter differs from murder only in that the former requires a defendant‘s intent to
Reinforcing our conclusion that Scott does not offer a plausible alternative construction of the ACCA and Career Offender force clauses are the disquieting outcomes of his hypothetical applications.36 Acknowledging, as he must, that a defendant can use
The distinctions Scott draws are more than unconvincing; they are meaningless to identifying a “use of force.” The parent intent on seriously injuring his child employs the violent force of pool water in the unrescued child‘s lungs as much when rainwater fills the pool as when the parent does so himself with a hose. A caregiver intent on injuring a dependent avails himself of starvation‘s violent effects on the body as much when he breaches a legal duty to make food accessible as when he tricks his victim into not eating accessible food. What matters to identifying the use of force in these hypothetical first-
Thus, we conclude that New York first-degree manslaughter is a categorically violent crime under both the ACCA and Career Offender Guideline force clauses because, whether a defendant acts by commission or omission, in every instance, it is his intentional use of physical force against the person of another that causes death.
III. The Career Offender Guideline‘s Enumerated Offenses Clause
The government submits that, even if first-degree manslaughter does not qualify as a categorical violent crime under the ACCA and Career Offender Guideline force clauses, it is such a crime under the Guideline‘s enumerated offenses clause. See
The government contends that New York first-degree manslaughter is generic voluntary manslaughter because 28 states punish the conduct proscribed by
Scott responds that the states defining the conduct as murder and those defining it as voluntary manslaughter cannot be aggregated to establish a majority view. Further, he maintains that few states punish conduct that can be committed by omission as aggravated assault.
The original panel was sharply divided on this enumerated offenses clause question.41 The panel decision favoring Scott on this
In sum, because Scott stands convicted of at least three prior violent crimes under the ACCA and Career Offender Guideline force clauses, the district court erred in vacating his original sentence and in resentencing him without applying the ACCA mandatory minimum and Career Offender Guideline enhancement. We, therefore, vacate the reduced sentence reflected in the amended judgment, and we remand the case to the district court with directions that it reinstate the original sentence and judgment consistent with this opinion.
CONCLUSION
To summarize, we conclude as follows:
(1) First-degree manslaughter in violation of
(2) The possibility of committing New York first-degree manslaughter by omission warrants no different conclusion because
- criminal law generally, and New York law specifically, recognize omission as “action” sufficient to support criminal culpability, see
N.Y. Penal Law § 15.00(5) ; - the ordinary meaning of “use” applies as much to a use of physical force by omission as by commission; and
- precedent holds that
- the relevant physical force for purposes of federal law is that which causes physical injury to the victim, not that which is physically performed by a defendant; and
- it is a defendant‘s knowing or intentional causation of injury by means of that force, not a defendant‘s physical acts, that determines his use of force. See United States v. Castleman, 572 U.S. at 169; Villanueva v. United States, 893 F.3d at 128.
(3) The district court, therefore, erred in concluding that Scott‘s two convictions for New York first-degree manslaughter do not qualify as “violent felonies” under ACCA and “crimes of violence” under the Career Offender Guideline, and in vacating Scott‘s original sentence and resentencing him.
I join the majority‘s excellent opinion in full and write separately only to note the absurdity of the exercise we have now completed. The en banc court convened to decide whether Mr. Scott‘s two convictions for first-degree manslaughter—one for shooting a man in the face and the other for stabbing a man to death—count as “violent felonies” under ACCA (or as “crimes of violence” under the Guidelines). The question answers itself to any layperson with common sense. But judges tasked with applying the so-called “categorical approach” are required to ignore the actual facts before them and instead to theorize about whether certain crimes could be committed without using violent force. And so that is what we have done in this case.
As a growing number of judges across the country have explained, the categorical approach perverts the will of Congress, leads to inconsistent results, wastes judicial resources, and undermines confidence in the administration of justice. See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2258 (2016) (Kennedy, J., concurring) (“[T]oday‘s decision is a stark illustration of the arbitrary and inequitable results produced by applying an elements based approach to this sentencing scheme.“); id. at 2268-69 (Alito, J., dissenting) (“The Court‘s approach calls for sentencing judges to delve into pointless abstract questions. . . . A real-world approach would avoid the mess that today‘s decision will produce.“); Lopez-Aguilar v. Barr, 948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J., concurring) (“I write separately to add my voice to the substantial chorus of federal judges pleading for the Supreme Court or Congress to rescue us from the morass of the categorical approach. The categorical approach requires us to perform absurd legal gymnastics,
I agree with the court that first-degree manslaughter in violation of section 125.20(1) of the New York Penal Law is a violent felony under the Armed Career Criminal Act (“ACCA“) and a crime of violence under the Career Offender Guideline because it has as an element the “use … of physical force against the person … of another,”
I disagree with the court‘s opinion only insofar as it insists that this conclusion follows from the “‘ordinary,’ ‘natural,’ ‘everyday meaning‘” of the statutory language. Ante at 22.1 In my view, the court‘s argument depends on a specialized, legal meaning of the statutory text that follows from how the criminal law and controlling precedent treat omissions and assign culpability. The court explains that “omission—the breach of a legal duty to act“—has “a specialized meaning at law, which equates not to inaction, but to action supporting criminal culpability” and therefore “an omission is as much an ‘act’ under the criminal law as a person‘s voluntary physical movements.” Id. at 24, 39. Applicable precedent holds that “a defendant‘s use of [physical] force does not depend on his having forceful contact—or indeed any physical contact—with his injured victim” but rather “what matters is that the defendant must have knowingly and intentionally caused an injury that can result only from the use of physical force.” Id. at 28 (describing United States v. Castleman, 572 U.S. 157 (2014)). For these reasons, when a defendant “breaches a legal duty to check or redress force already in motion,” he may have taken
The court assumes, as courts normally do, that when Congress drafted the statutory language in the ACCA, “it was aware of these background [legal] principles recognizing that the elements of a crime … can be satisfied by acts of omission as well as acts of commission.” Id. at 35-36. Because the purpose of the ACCA‘s force clause “is to define a ‘violent felony’ by reference to the elements of such a crime,” it makes sense to understand the ACCA‘s reference to those elements in the way the elements are understood. Id. at 35. I agree with the court‘s overall argument and therefore concur in the judgment.
It is hard, however, to conclude that this argument simply applies the “everyday meaning” of ordinary speech. Id. at 22. Rather, the panel was right that “the ordinary meaning of the terms of ACCA are not satisfied by inaction” or omission. United States v. Scott, 954 F.3d 74, 87 (2d Cir. 2020). Yet that linguistic point is not dispositive. “When the American legal system interprets a text, the process often looks nothing like a straightforward search for linguistic meaning.”2 The ultimate objective is to determine the meaning the law assigns to the text and therefore its legal effect.3 In this case, even if an ordinary
I
In my view, the ordinary meaning of “use of physical force” does not include an omission or failure to act.
First, the ordinary meaning of
Second, the ordinary meaning of a phrase is just that: the meaning associated with the ordinary or prototypical use of the phrase make? How does it fit into the rest of the corpus juris? What do ‘the legal sources and authorities, taken all together, establish‘?“); see also John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 WM. & MARY L. REV. 1321, 1326 (2018) (“A document written in the language of the law ... contains both ordinary language and legal language.“); ANTONIN SCALIA, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 17 (1997) (noting that in statutory interpretation we look for “the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris“); H.L.A. HART, Definition and Theory in Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 21, 26 (1983) (“[T]he language involved in the enunciation and application of rules constitutes a special segment of human discourse with special features which lead to confusion if neglected.“).
rather than any meaning that is linguistically possible. See, e.g., Chisom v. Roemer, 501 U.S. 380, 410 (1991) (Scalia, J., dissenting) (“[O]ur job is not to scavenge the world of English usage to discover whether there is any possible meaning ... which suits our preconception [of] the statute.“). The phrase “use of physical force” prototypically refers to assertive physical contact—“punches, kicks, slaps and body slams”7—but not to omissions.8
Yet the court relies on the idea that it is linguistically possible to say one “use[s]” physical force when one “derive[s] service from such force.” Ante at 26. It is admittedly possible to say that a person “uses physical force” whenever she drives a car and it propels her forward, but that is not an ordinary way to describe driving. Nor is it the prototypical meaning associated with “use of physical force.”9 I would adhere to the principle that the “ordinary meaning” of a term is its prototypical meaning rather than a possible meaning.
“Accordingly, I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage.” Id. at 84 (Ginsburg, J., concurring in the judgment).12
II
Even though the ordinary meaning of the phrase “use of physical force” entails a physical act, the legal meaning of that phrase includes culpable omissions.
The court‘s opinion articulates the reasons why: the criminal law equates omission with action when a legal duty exists,13 and
Terms in legal documents often have a “specialized meaning” under the law,15 and indeed the purpose of the ACCA‘s force clause is “to define a ‘violent felony’ by reference to the elements” of state law crimes, so the ACCA is properly read to reflect this legal
Given this background, a reasonable legal interpreter familiar with the corpus juris would recognize that a crime which has as an element the “use ... of physical force” would comfortably include a crime, such as manslaughter, that may be committed by omission.19
III
In this case, for example, the ordinary meaning of “use ... of physical force” does not include omissions. See supra Part I. But the ordinary meaning of the state manslaughter statute—in which the relevant phrase is that the defendant “causes the death” of the victim—does not include omissions either.
The district court also relied on these inconsistent interpretive approaches to the state statute and the ACCA. To conclude that first degree manslaughter under
That is not a sensible way to apply the categorical approach. It expands the state statute and narrows the ACCA, preventing the state statute from being a categorical fit and making the approach more likely to generate absurd results. One may lament “that‘s the categorical approach for you.” United States v. Mayo, 901 F.3d 218, 230 (3d Cir. 2018). But the categorical approach is “a means of effectuating congressional intent,” United States v. Simms, 914 F.3d 229, 240 (4th Cir. 2019) (en banc), and there is no reason to think Congress wanted to produce such results.
A sounder approach would be for a court to apply the same interpretive method to the state statute that it applies to the relevant clause of the ACCA—understanding each statute in accordance with its legal meaning rather than oscillating between legal and ordinary meaning “at different steps in the categorical analysis.” Ante at 25. That would reflect a more reasonable application of the categorical approach and the court‘s obligation to determine the meaning the law assigns to a text.23
While the ordinary meaning of “use ... of physical force” does not include omissions, the legal meaning does. Because a court‘s ultimate task is to give legal effect to a statute, the legal meaning takes precedence over the ordinary meaning. To avoid interpretive mismatch, a court following the categorical approach should evaluate the legal meaning of both the state statute and the ACCA. I understand the court‘s decision to follow from the legal meaning of the state statute and the ACCA, and therefore I concur in the court‘s opinion—excepting only those parts purporting to rely on ordinary meaning—and in the judgment.
I respectfully dissent. I cannot join in requiring imposition of a harsh mandatory minimum term of imprisonment – a term that must be imposed regardless of whether it is merited – for actions that are not clearly within the statute‘s definition of the crime. I join in Judge Pooler‘s fine opinion to the extent it dissents from the imposition of ACCA‘s mandatory minimum term of 15 years imprisonment where ACCA‘s definition of the offense as requiring “the use, attempted use, or threatened use of physical force against the person of another” does not clearly apply to a crime that can be committed by doing nothing at all.
The legal basis for my opinion is the rule of lenity. That rule requires criminal statutes to give clear notice and warning of the conduct that will be punished, see United States v. Bass, 404 U.S. 336, 347-48 (1971), failing which, the ambiguity will be interpreted in favor of the defendant, see United States v. Santos, 553 U.S. 507, 514 (2008). Reliance on the rule of lenity has a special importance when the legislature has passed harsh mandatory sentences which are then imposed for crimes to which they do not clearly apply. Especially in a system in
The rule of lenity protects the public from being punished for conduct that is not clearly prohibited. See id. As explained by Justice Oliver Wendell Holmes Jr., it is premised on fairness – the notion that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” McBoyle v. United States, 283 U.S. 25, 27 (1931); see also Bass, 404 U.S. at 348. The rule was adopted in England in the late seventeenth century as a means, in unclear cases, of circumventing the mandatory death sentences Parliament had widely imposed even for such low level crimes as pickpocketing. See Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 HARV. C.R.-C.L. L. REV. 197, 200 (1994). The rule enabled courts in cases of statutory ambiguity to avoid having to order unjust executions.
The majority opinion devotes considerable ink to telling us what an atrocious beast Scott is, what little justification he has to complain of lack of
Suppose a 70-year-old woman‘s ACCA-qualifying manslaughter conviction occurred as follows. Her father, age 95, afflicted with an incurable degenerative disease that left him paralyzed, suffering, without hope for better, and facing a certain, imminent, and excruciatingly painful death, begged his loving caregiver-daughter to cease putting nutrition in his IV, to allow him to escape the torture by starving. After long watching her father suffer as she wrestled with her moral dilemma, she eventually complied as an act of love and mercy. She immediately confessed, and pleaded guilty to manslaughter.2
May a legislature lawfully command a fifteen-year sentence for such a crime? Undoubtedly, yes. Does ACCA‘s specification of a “use of physical force
I of course recognize that, while my hypothetical placed the withholding of food in circumstances sympathetic to the defendant, the commission of manslaughter in that fashion is probably more often, as in Steinberg, a crime of heartless and inexcusable cruelty. Every criminal case presents a unique circumstance, and what is appropriate for most can nonetheless be extraordinarily unjust for others. This is precisely why harsh mandatory sentences inevitably become engines of needless injustice.
While harsh sentences are undoubtedly appropriate and desirable in many cases, the lack of necessity or justification for making them mandatory, and the serious injustices that such sentences inevitably produce are what motivates this dissent. Any criminal punishment must balance the interests of society in discharging the goals of the criminal law with thе need of fairness to the defendant. That balancing depends on the specific facts of each case. The sentencing of a sixteen-year-old for killing his stepfather to protect his mother
The basic federal sentencing statute,
Harsh mandatory sentences require courts to disregard or violate the wise commands of
It does not. In fact, mandatory imposition of harsh sentences for serious crimes serves little or no useful purpose. If the legal procedures in the federal courts delegated the sentencing function to chimpanzees, there might well be a utility for statutes precisely dictating minimum and maximum sentences. But
The net result is that the instances in which harsh mandatory sentencing statutes substantially influence the sentence are not those involving offenders who deserve the harsh sentences. Those defendants would receive similarly harsh sentences regardless of whether the sentence was mandatory. At least where the mandatory sentence chosen by the legislature reasonably comports with just punishment (unlike the seventeenth century English Parliament‘s death sentence for even minor crimes), the main practical effect of such statutes is to cause serious injustice in a minority of cases by requiring far harsher sentences than the facts of the case can justify.
Courts are of course compelled to enforce statutory commands in the circumstances to which they apply. I recognize also the Supreme Court‘s caution that the rule of lenity is to be sparingly employed. See Shular v. United States, 140 S. Ct. 779, 787 (2020) (“The rule [of lenity] ‘applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.‘” (quoting United States v. Shabani, 513 U.S. 10, 17 (1994))). Statutes imposing harsh mandatory sentences present a particularly compelling need for
Turning now to the question whether New York first-degree manslaughter is a “crime of violence” for purposes of the “career offender” provision of
A degree of ambiguity is therefore far more tolerable in a sentencing rule that is merely advisory, and the need for resort to the rule of lenity is considerably diminished. As there are reasonable arguments for classifying manslaughter as a crime of violence, notwithstanding that manslaughter by inaction, at least in some manifestations, does not necessarily involve use of physical force, I would not invoke the rule of lenity with regard to the Guidelines’ career offender provision.4
For the reasons explained, I dissent from the majority‘s application of a harsh mandatory sentencing statute to a circumstance to which it does not clearly apply, where the majority‘s debatable interpretation will cause sеrious injustices without any significant benefit to the realization of the objectives of the criminal law.
I respectfully dissent. The majority concludes that
For the many reasons already discussed in the original panel‘s opinion, United States v. Scott, the law and logic dictate only one possible outcome: a crime committed by omission—definitionally, no action at all—cannot possibly be a crime involving physical, violent force. See 954 F.3d 74, 77-92 (2d Cir. 2020). On en banc review, the majority finds this conclusion distasteful because of the nature of the crimes Scott committed. While I do not minimize the consequences of Scott‘s serious crimes, that is simply not a relevant consideration when
I. New York Penal Law Section 125.20(1) Is Not a Violent Felony Under the ACCA.
At the outset, I address whether
The New York Court of Appeals has twice indicated that Section 125.20(1) may be committed by omission. In People v. Steinberg, it stated, “the failure to obtain medical care can also support a first degree manslaughter charge, so long as there is sufficient proof of the requisite mens rea—intent to cause serious physical injury.” 79 N.Y.2d 673, 680 (1992) (italics in original). In Steinberg, the child‘s need for medical care was precipitated by head trauma from an assault, see id. at 678-79, but the Court of Appeals nevertheless affirmatively addressed the prosecutor‘s separate liability theory based on omission, id. at 680 (“The people‘s theory . . . was that defendant performed both acts of commission (striking Lisa) and acts of omission (failure to obtain medical care) . . . .” (emphasis added)), and concluded that such an omission “can form the basis of a homicide charge,” id. (citation omitted). People v. Wong subsequently eliminated any remaining confusion, finding that, under Section 125.20(1), a “passive defendant . . . may be held criminally liable for failing to seek emergency medical aid for a seriously injured child.” 81 N.Y.2d 600, 608 (1993) (internal quotation marks omitted); see also id. at 606 (explaining that defendants were indicted and
In any event, the government has abandoned its argument to the original panel that Section 125.20(1) may not be committed by omission, a not-so-subtle attempt to reconcile its overbroad interpretation of the scope of omission liability used in its Guidelines argument with its position on the ACCA.
Accepting that Section 125.20(1) may be committed by omission, the subsequent analysis is relatively straightforward. Because the minimal conduct required to find culpability is omission in the face of a legal duty to act, we must consider whether this conduct qualifies as a predicate crime under the ACCA. As the majority explains, the key question is whether this conduct is a “violent
A plain reading of the statutory text reveals that it sets mandatory minimum sentences for criminals who engage in “violent,” “physical force against the person of another.”
Because
II. The Majority‘s Conclusion Employs Faulty Reasoning.
The majority rejects this straightforward reading of the ACCA and Johnson, concluding that crimes committed by omission also qualify as violent felonies. This conclusion is misguided. Both the government and the majority rely heavily on one line in United States v. Castleman to support their interpretation of violent felony under the ACCA: “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” 572 U.S. 157, 169 (2014). The problem with their position is that Castleman interpreted a different statute with a different historical context and nowhere indicated that it sought to impact Johnson‘s interpretation of “violent felony.” This application of Castleman fails to account for what the Supreme Court repeatedly emphasized—that Castleman‘s holding was specific to its statutory and legal context and was in no way meant to reverse or abrogate Johnson‘s interpretation of physical force.
In Castleman, the Supreme Court contemplated whether a Tennessee crime of intentionally or knowingly causing bodily injury qualified as “a misdemeanor
In Villanueva v. United States, a divided panel of this Circuit extracted the above-mentioned line from Castleman and interpreted it to mean that “‘force,’ for federal law purposes, focuses on the causation of a consequence, rather than the physical act of initiating an action that leads to a consequence.” 893 F.3d 123, 128 (2d Cir. 2018). I dissented from that decision, see id. at 132-39, and continue to hold that Villanueva wrongly discarded the accurate understanding of physical force in Chrzanoski v. Ashcroft: “[T]he intentional causation of injury does not necessarily involve the use of force.” 327 F.3d 188, 195 (2d Cir. 2003). In
Nevertheless, accepting that Villanueva is currently the law of our Circuit, there is no need to significantly expand its holding to a materially distinct and even further removed circumstance—one where a criminal defendant commits no act at all. In Villanueva, we contemplated a Connecticut first-degree assault statute, which required a defendant to cause injury “by means of a deadly weapon or a dangerous instrument” “[w]ith intent to cause serious physical injury to another person.” Villanueva, 893 F.3d at 127 (citing
The majority concludes the answer is the same, but they do so by shifting the focus of “force” from the defendant‘s conduct to the victim‘s injury. They posit that when a defendant intends harm to a victim, and the victim subsequently experiences harm, the defendant has inherently used physical force because the victim‘s harm necessarily occurred as the result of some force.5 In doing so, the majority conflates actus reus, the physical act involved in committing a crime, and mens rea, the defendant‘s mental intention behind the act. The law recognizes that one may cause a fatal car accident without intending to (a crime, despite the lack of an intentional mens rea) and one may intentionally kill an individual without lifting a finger (a crime, despite the lack of an active actus reus). Although these concepts sometimes intersect and inform
A common example of a crime by omission is a guardian who lets a child die of a severe food allergy after the child consumes the dangerous food with no provocation from the guardian.6 Suppose the guardian had been long
Next, the majority conflates “action” with legal liability and culpability. The law does not view inaction as action; that would be physically and factually
The majority also focuses on the word “use” in the phrase “use of physical force,”
The government seeks to bolster its position by arguing that many of our sister circuits have reached similar conclusions regarding the ACCA‘s force requirement. Of course, we are entitled—and obligated—to reach our own conclusions based on an accurate interpretation of the law. In any event, a closer look at the cited cases raises questions about their direct applicability. For example, in United States v. Rumley, the concurrence “[wrote] separately to
Next, the majоrity conflates “action” with legal liability and culpability. The law does not view inaction as action; that would be physically and factually
The majority also focuses on the word “use” in the phrase “use of physical force,”
The government seeks to bolster its position by arguing that many of our sister circuits have reached similar conclusions regarding the ACCA‘s force requirement. Of course, we are entitled—and obligated—to reach our own conclusions based on an accurate interpretation of the law. In any event, a closer look at the cited cases raises questions about their direct applicability. For example, in United States v. Rumley, the concurrence “[wrote] separately to
Despite the majority‘s best attempts here to characterize the previous decisions in the history of this case as illogical aberrations, the district court and the original Scott panel were far from alone in concluding that crimes of omission definitionally cannot be a violent crime. In United States v. Resendiz-Moreno, the Fifth Circuit reversed a district court for a sentencing enhancement based on the “use of physical force” component of the Guidelines’ definition of a “crime of violence.” 705 F.3d 203, 206 (5th Cir. 2013), overruled in part by United States v. Reyes-Contreras, 910 F.3d 169, 187 (5th Cir. 2018). The court acknowledged that an “act of omission . . . does not involve the use of physical force.” Resendiz-Moreno, 705 F.3d at 205 (footnote omitted). Reyes-Contreras partially overruled
It is also true that many crimes with potentially violent impact have been analogously disqualified as ACCA predicates, precisely because the act does not seek to include all criminal acts resulting in injury or fatality but rather particularly violent conduct that requires the use of substantial force. It therefore follows—and is commensurate with the purpose of the ACCA (notably, the “Armed Career Criminal Act“)—that the law would seek to impose a mandatory minimum sentence of 15 years on some, but not all, defendants whose actions culminated in serious injury or death to an individual. In Lofton v. United States, the Eighth Circuit held that Illinois aggravated criminal sexual abuse did not constitute a predicate conviction under the ACCA because “a defendant can violate this statute by having a child touch him for sexual gratification, an act that does not necessarily require ‘the use, attempted use, or threatened use of physical force against the person of another.‘” 920 F.3d 572, 576 (8th Cir. 2019) (citing
I would hold that the statutory context of the ACCA and applicable precedent indicates that Section 125.20(1) is not a violent felony. That answer is not a judgment on Scott‘s actions, but rather a consequence of the ACCA‘s limited scope.
III. The Majority‘s Holding Unnecessarily Expands the Applicability of Harsh Mandatory Minimum Sentences.
The majority warns that upholding the district court and original panels’ conclusions would hamstring sentencing courts from being able to appropriately punish repeatedly violent criminals. That is not true. The previously discussed guardian-ward example illuminates the relatively minimal impact of the consequences of the original holding. Contrary to the majority‘s alarmist
More importantly, the majority itself references the very statute that ensures that sentencing courts have great latitude to penalize repeat violent offenders as needed. Federal sentencing law instructs district courts to consider “the history and characteristics of the defendant,”
In other words, we trust district courts to appropriately sentence repeatedly violent offenders, whether their prior convictions qualify as an ACCA predicate crime or not. The import of the majority‘s holding is not to give district courts the tools needed to sentence individuals who pose a danger to society; those tools exist plentifully. Instead, it expands the blanket coverage of mandatory minimum sentences. As amici curiae remind us, mandatory minimum sentences suffer from numerous flaws. They encourage prosecutors to pursue the highest possible charge, further exacеrbating the power imbalance between the government and criminal defendants during plea negotiations, create “sentencing cliffs,” sharp sentencing variations based on the technicalities of an individual‘s criminal record and not on the actual underlying conduct, and lead to excessive costs in building, sustaining, and expanding an already massive prison system. See Brief for Families Against Mandatory Minimum & New York State Association of Criminal Defense Lawyers as Amici Curiae Supporting Defendant-Appellee at 11-19.
I accordingly find the majority‘s concerns about under-penalizing murderers unconvincing. Ample tools exist for sentencing courts to appropriately punish repeatedly violent offenders. Although the ACCA is one such tool, it targets “a very small percentage of repeat offenders” that account for “a large percentage of crimes of theft and violence.” Taylor v. United States, 495 U.S. 575, 581 (1990) (internal quotation marks omitted).10 Therefore, it is entirely logical that crimes of omission would not fall within the scope of the conduct the ACCA seeks to penalize.
The rule of lenity is a “time-honored interpretive guideline that uncertainty concerning the ambit of criminal statutes should be resolved in favor of lenity.” United States v. Kozminski, 487 U.S. 931, 952 (1988) (collecting cases). The purpose of the rule is “to promote fair notice to those subject to the criminal laws, to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and courts.” Id. The rule of lenity is “perhaps not much less old than the task of statutory construction itself.” United States v. Davis, 139 S. Ct. 2319, 2333, 204 L. Ed. 2d 757 (2019) (internal quotation marks omitted) (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L. Ed. 37 (1820) (Marshall, C.J.)).
True, “the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended.” Castleman, 572 U.S. at 172-73 (internal quotation marks omitted). The majority concludes that nothing about the statutory text, history, or purpose leaves any ambiguity. Yet, a district court judge, a majority of the original appellate panel, and other circuit courts have all concluded that it is, at minimum, unclear
Even if the majority remains unconvinced of the original panel‘s interpretation of the force clause, there is significant doubt that Congress contemplated manslaughter by omission as one of the hallmark crimes committed by these repeat offenders. It is entirely probable that Congress did not consider the archetype of the malicious guardian, given that its focus at the time was what it considered “the most damaging crimes to society,” such as repeated incidents of armed burglary, which “involves invasion of victims’ homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions.” Id. (internal quotation marks omitted). Accordingly, Congressional intent is “grievous[ly]” ambiguous as to the concept of omission liability in this context. Castleman, 572 U.S. at 173.
V. The Sentencing Guidelines
The government continues to argue that Scott would be subject to a “career offender” classification under Guidelines Section 4B1.2(a). The majority does not reach this issue, nor does it need to, since its interpretation of the force clause seals Scott‘s fate. However, for Scott to succeed—as he did twice before—he must win on this argument as well. The original panel‘s reasoning on the Guidelines is largely still applicable to the issues raised on en banc review. See
The Guidelines consider a “career offender” a defendant who at eighteen years old or older has committed a felony that is “either a crime of violence or a controlled substance offense” and “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The Guidelines define a “crime of violence” as either a crime involving “the use, attempted use, or threatened use of physical force against the person of another, or . . . murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm.”
The government renews its argument that the conduct described in Section 125.20(1) qualifies as either “murder” or “voluntary manslaughter” and an aggregation of the two counts would yield a majority of states criminalizing conduct encompassed by Section 125.20(1).11 However, to read the enumerated offenses clause in this way would be to ignore its distinct structure. Whereas the force clause categorizes crime by type of conduct, the enumerated offenses clause lists them by individual crime, which in our legal system, correlates to a certain set of elements. The approach for which the government advocates is better suited for a residual clause analysis, not a distinct list of offenses.12 Nor does the enumerated offenses clause list “homicide” as a qualifying offense; if that were
It is true that Taylor instructs us to disregard “technical definitions and labels under state law” when employing the categorical approach in this context. Taylor, 495 U.S. at 590. Perhaps this line from Taylor would be significant if the government could show that most states label the equivalent of conduct criminalized by Section 125.20(1) as “murder.” Then, the issue could arguably be one of mere labels or semantics. But by the Government‘s own count, one minority group of 20 states defines this conduct as “murder” or “felony murder,” and another, even smaller minority group of eight states considers it “manslaughter.” No majority consensus exists as to whether the conduct underlying Section 125.20(1) qualifies as either crime. This goes beyond “technical definitions and labels,” id., and instead reaches the heart of the question—whether Section 125.20(1) fits “the generic sense in which [the
The government also renews its argument that Section 125.20(1) is generic aggravated assault. But the government continues to face the same problem as before; they have not shown that most states criminalize aggravated assault by omission. See Scott, 954 F.3d at 91-92. In its briefs, the government purports to cite at least 28 states that apply omission liability to their aggravated assault crimes. A closer review of their citations yields no such answer. The government‘s statutory citations are definitional statutes that merely define the word “omission.” New York Penal Law Section 125.20(1) is not punishable by omission because the New York Penal Code defines what omission liability is; it is so because the New York Court of Appeals has repeatedly applied that form of liability to the statute. See Wong, 81 N.Y.2d at 606, 608; Steinberg, 79 N.Y.2d at 680. By contrast, at most five of the government‘s cited cases apply omission liability to their aggravated assault statute.13
The government also purports to cite case law for “11 additional states [that] recognize omission as a basis for criminal culpability in their case law.” Gov‘t‘s Br. at 50-51 (footnote omitted). Again, this broad assertion does not show that omission is commonly a basis for aggravated assault. In any event, 11 states are not a majority. After having parsed through those citations, too, only three appear somewhat relevant to aggravated assault or battery crimes. The remaining eight deal with murder, manslaughter, or state child abuse crimes, not aggravated assault.14
In sum, a careful review of the government‘s citations reveals, at most, eight states that may apply omission liability to aggravated assault. Therefore, the government has failed to show that Section 125.20(1) falls within any enumerated offense articulated in Guidelines Section 4B1.2(a), and Scott does not qualify as a “career offender.”15
VI. Conclusion
The majority takes issue with the sometimes unsatisfying results yielded by the modified categorical approach when viewed through the lens of one defendant‘s individual record. They are far from the first federal judges to
Under that law, the correct answer is that Scott does not qualify for a mandatory minimum under
I therefore must respectfully dissent from today‘s interpretation of these statutes and the likely consequence of sending Scott back to prison, forcing him to serve additional time after he has already been freed and keeping him in the shadow of past crimes for which he has already served the sentence imposed.
Notes
- has as an element the use, attempted use, or threatened use of physical force against the person of another; or
- is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]