Case Information
*1 Before: LEVAL, POOLER, and RAGGI, Circuit Judges .
The United States appeals from an opinion and order of the United States
District Court for the Southern District of New York (Laura T. Swain,
J
.) vacating
Gerald Scott’s sentence and resentencing him to time served. The district court
held that because New York first-degree manslaughter can be committed by
*2
omission, it cannot serve as a predicate felony for the sentencing enhancements
prescribed in the Armed Career Criminal Act (“ACCA”) or the Career Offender
Sentencing Guideline. We hold that the district court properly concluded that
New York first-degree manslaughter is not a predicate crime of violence because
it can be committed by omission and therefore without the use of force, as
defined in
Curtis Johnson v. United States
,
Affirmed. Judge Leval joins in Judge Pooler’s opinion for the Court and also concurs by a separate opinion, in which Judge Pooler joins.
Judge Raggi dissents in a separate opinion.
____________________ WON S. SHIN, Assistant United States Attorney (Sarah K. Eddy, Catherine E. Ghosh, Assistant United States Attorneys), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, NY, for Appellant .
MATTHEW B. LARSEN, Assistant Federal Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellee .
POOLER, Circuit Judge :
The United States appeals from an opinion and order of the United States
District Court for the Southern District of New York (Laura T. Swain,
J
.) vacating
Gerald Scott’s sentence and resentencing him to time served based on his service
of only eleven years of imprisonment. The district court held that because New
York first-degree manslaughter can be committed by omission, it cannot serve as
a predicate felony for the sentencing enhancements prescribed in the Armed
Career Criminal Act (“ACCA”) or the Career Offender Sentencing Guideline. We
hold that the district court properly concluded that New York first-degree
manslaughter is not a predicate crime of violence because it can be committed by
complete inaction and therefore without the use of force, as defined in
Curtis
Johnson v. United States
,
BACKGROUND On October 10, 2007, Gerald Scott pled guilty to Hobbs Act robbery in violation of 18 U.S.C. §§ 1951, 2 (“Count I”); brandishing a weapon during Hobbs Act robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (“Count III”); and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (“Count IV”). Judge Swain sentenced Scott to a term of 151 months’ imprisonment on Count I to be served concurrently with a term of 180 months on Count IV, followed by a consecutive term of 84 months on Count III.
Scott’s ACCA conviction on Count IV, which is the focus of this appeal, was based on the following predicate offenses: a 1983 conviction for New York robbery in the first degree and two 1988 convictions for New York manslaughter in the first degree. In the course of these crimes, Scott shot and killed one victim and stabbed another to death. These prior convictions subjected him to a mandatory sentence of 180 months on Count IV. [1]
*5 On April 26, 2010, Scott filed a habeas petition to vacate his conviction, arguing that he received ineffective assistance of counsel. Judge Swain denied that motion. In November 2016, Scott received this Court’s permission to file a successive habeas petition in light of Samuel Johnson v. United States , 135 S. Ct. 2551 (2015).
The district court granted Scott’s successive habeas petition, finding Scott’s
convictions for New York manslaughter were not violent felonies so that Scott
was ineligible for an ACCA sentence. The district court reasoned that based on
decisions of the New York Court of Appeals, “first degree manslaughter can be
committed in New York State by omission and thus without using force.”
United
States v. Scott
, No. 06 CR 988-LTS,
The court thus held that Scott was “not subject to the career offender enhancement under ACCA” and vacated his sentence for recalculation. Id. at *3.
At the resentencing hearing, the district court considered whether Scott could be sentenced under the Career Offender Guideline, U.S.S.G. § 4B1.1. Relying on its analysis above, the district court determined that New York first- degree manslaughter was not a “crime of violence” under the force clause of the Career Offender Guideline for the same reasons it was not a crime of violence under ACCA’s identical force clause. The district court also rejected the government’s argument that the Career Offender Guideline applies to Scott under the enumerated-offenses clause because New York first-degree manslaughter criminalizes the same conduct as generic murder, voluntary manslaughter, or aggravated assault in the Guideline’s enumerated-offenses clause. Having decided that the Career Offender Guideline could not apply, the district court calculated Scott’s sentencing range at 121 to 130 months. At the time of the hearing, Scott had served approximately 134 months of his sentence— four months above the Guidelines range’s upper boundary. The district court *7 therefore sentenced Scott to time served and five years of supervised release. Scott is out on supervised release.
DISCUSSION On appeal, the government argues that Scott qualifies for ACCA’s 180- month mandatory minimum sentence because New York first-degree manslaughter is a crime of violence that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In the alternative, the government argues that Scott should be sentenced under the Career Offender Guideline because New York first-degree manslaughter criminalizes the same conduct as the generic offenses of murder, voluntary manslaughter, or aggravated assault, which are enumerated crimes of violence in the Guideline. Scott responds that the minimum criminal conduct required to commit New York first-degree manslaughter does not have as an element the “use” of force because the crime can be committed by omission— otherwise put, by doing nothing. He also argues that a majority of states do not criminalize the conduct that New York first-degree murder penalizes as first- *8 degree manslaughter as generic murder, voluntary manslaughter, or aggravated assault.
I. New York First-Degree Manslaughter Is Not a Crime of Violence
Under the Force Clause of 18 U.S.C. § 924(e) ACCA sets a mandatory minimum sentence of “not less than fifteen years” for criminal defendants who have at least three prior convictions for “a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). As relevant here, the statute defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id .
§ 924(e)(1)(B)(i).
The question before us is whether New York first-degree manslaughter satisfies that definition. New York Penal Law lists three criminal acts for which a person may be found “guilty of manslaughter in the first degree.” N.Y. Penal Law § 125.20. First, the statute holds a person liable for first-degree manslaughter who “with intent to cause serious physical injury to another person, . . . causes the death of such person or of a third person.” Id. § 125.20(1). Second, the statute *9 criminalizes causing the death of another person “under the influence of extreme emotional disturbance,” id. § 125.20(2). Third, the statute makes it illegal to, with intent to cause physical injury, “create[] a grave risk of serious physical injury to a person less than eleven years old” that causes their death. Id. § 125.20(4).
Where a statute, like New York’s first-degree manslaughter statute,
“criminalize[s] multiple acts in the alternative,” we refer to the statute as
“divisible” and apply the “modified categorical approach” to determine whether
a conviction under the statute can serve as a predicate offense for a federal
sentence enhancement.
United States v. Jones
,
The government has provided two certificates of disposition establishing that both of Scott’s manslaughter convictions were under New York Penal Law § 125.20(1), which penalizes a person who “[w]ith intent to cause serious physical injury to another person, . . . causes the death of such person or of a third person.” We therefore consider only Section 1 of New York Penal Law § 125.20, and ask whether the minimum criminal conduct required for conviction under this provision falls within ACCA.
A. The Minimum Criminal Conduct that New York First- Degree Manslaughter Requires Is an Omission Despite a Duty to Act
The district court determined that the minimum criminal conduct required for a defendant to be held liable under New York Penal Law § 125.20(1) is a failure to act in the face of a duty to do so, with the intent to cause serious physical injury, which failure causes death. The government argues that the district court’s conclusion was erroneous because criminal liability for New York first-degree manslaughter attaches only when a person is complicit in the commission of an act that sets harm into motion and then fails to act to stop that harm from killing another. We reject the government’s strained argument *12 because the New York Court of Appeals has explicitly held that New York first- degree manslaughter can be committed by omission.
The New York Court of Appeals has clearly and emphatically asserted on
two occasions that New York first-degree manslaughter may be committed by a
defendant’s failure to act. First, in
People v. Steinberg
,
The Court of Appeals reaffirmed this conclusion in People v. Wong , 81 N.Y.2d 600 (1993). The prosecution in Wong charged an infant’s two caretakers, Eugene and Mary Wong, with first-degree and second-degree manslaughter. Id. at 606. There, the infant died from shaken baby syndrome after one of the Wongs *14 shook the infant and both of the Wongs subsequently failed to seek medical care for the infant. Id . The prosecution contended that even though only one of the defendants had shaken the child, both defendants were liable for first-degree manslaughter. Id. The prosecution could not prove which of the two defendants had shaken the infant and, for want of this proof, argued that a defendant who had no role in the harmful act could be held liable for first-degree manslaughter based on a failure to act. The defendants were convicted on all counts, and the Appellate Division reversed the convictions for first-degree manslaughter as against the weight of the evidence on the issue of intent to cause serious bodily injury. As to the second-degree manslaughter convictions, the Court of Appeals made clear “that the People’s theory against the ‘passive’ defendant is legally sound” because in Steinberg , it had “held that parents have an affirmative duty to provide their children with adequate medical care and that, under certain circumstances, the failure to perform that duty can form the basis of a homicide charge.” Id. at 607. That is, “a person in the position of the ‘passive’ defendant here may be held criminally liable for failing to seek emergency medical aid for a seriously injured child.” Id. at 608. The court ultimately reversed the defendants’ *15 convictions because of “the absence of proof from which the jury could infer that the ‘passive’ defendant was even aware that the infant had been violently shaken,” and therefore needed medical care. Id . at 609.
The Government argues that, notwithstanding the explicit statement of the
Court of Appeals in
Steinberg
that “the failure to obtain medical care can . . .
support a first degree manslaughter charge,”
We disagree. A defendant’s intent to cause serious physical harm to the victim can be established in many ways other than that defendant’s preceding act of violence, including most obviously the defendant’s having observed (or having been told of) the infliction of violence on the child by another, or the defendant’s statement of intention to inflict harm. Although the facts in Steinberg happened to include a preceding act of violence by the defendant, the court’s independent analysis of inaction makes clear that a failure to act would be alone sufficient to sustain a conviction where the required mens rea was shown. Nothing in that discussion suggests the defendant’s inaction must be linked to that defendant’s affirmative act of violence; indeed everything in that discussion supports the contrary.
The Government and Judge Raggi also argue that, because the defendants’ convictions in Wong were reversed due to insufficiency of evidence of either defendant’s awareness of the fact that the child had been shaken, the court’s *17 discussion of the sufficiency of inaction was dictum, and therefore the case cannot show a realistic probability that a New York conviction for first-degree manslaughter based on omission alone would be sustained.
The argument that
Wong
’s dictum is inadequate to show “realistic
probability” is both irrelevant (as the proposition was a holding in
Steinberg
) and
exaggerates the meaning of our precedents requiring a “realistic probability” of
application of a statute beyond the scope of ACCA. We have stated that a
“realistic probability” requires that “the courts did in fact apply” the statute in
the manner considered, as opposed to a mere “flight of fancy” or explanation of
“the legal imagination.”
Hill
,
Wong
additionally contradicts Judge Raggi’s assertion that no defendant
has been “actually prosecuted” under an omission theory. As we noted earlier,
the government in
Wong
“argued . . . that the People's case rested on the theory
that each defendant was independently liable for [the child’s] death because one
of them had shaken the baby while the other had stood by and failed to
intervene.”
In short, these two decisions from New York’s highest court are more than
sufficient to establish a realistic probability that New York first-degree
manslaughter could be applied to a defendant who intentionally causes death by
*19
an act of omission in the face of a duty to protect the victim from a perceived
harm. New York’s highest court “did in fact apply” the first-degree
manslaughter statute to the facts of a particular case.
See Hill
,
Judge Raggi acknowledges that the standard is whether there is a “realistic
probability” that the courts would accept omission as the basis of a first-degree
manslaughter conviction.
Hill
,
We must decide whether a crime that can be committed by omission “has
as an element the use, attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The government, relying on
United States v. Castleman
,
The Supreme Court articulated the standard for what constitutes the use of
“physical force” sufficient to satisfy Section 924(e) in
Curtis Johnson v. United
States
,
phrase may convey in ordinary usage,”
see id.
at 148 (Alito, J., dissenting), the
majority of the Supreme Court concluded that the term “physical force” is to be
given its “ordinary meaning,”
id.
at 138 (majority opinion). The Court explained
that “force” means “strength or energy;
active
power;
vigor
; often an unusual
degree of strength or energy[;] power to affect strongly in physical relations; . . .
power, violence, compulsion, or constraint exerted upon a person” and that
“physical force” means “power, violence, or pressure directed against a person
or thing[;] . . .
force consisting in a physical act
, esp. a violent act directed against a
robbery victim.”
Id
. at 139 (emphasis added) (alterations and internal quotation
marks omitted). The Court distilled the term’s ordinary meaning into a now-
indelible phrase: “
violent
force—that is, force capable of causing physical pain or
injury to another person.”
Id
. at 140. The Court’s reliance on the ordinary
meaning to shape its conception of “physical force” communicates that only an
active crime constitutes a “violent felony” under ACCA.
See also Stokeling v.
United States
,
The Government and Judge Raggi argue that the Supreme Court’s
subsequent decision in
Castleman
,
What was said in
Castleman
and
Villanueva
must be considered in the light
of the facts of those cases. In
Castleman
, the Supreme Court considered whether a
Tennessee statute, which made it a crime to “intentionally, knowingly or
recklessly cause bodily injury to another” qualified as a misdemeanor crime of
domestic violence under a different statute, 18 U.S.C. § 921(a)(33)(A)(ii), because
it involved “the use or attempted use of physical force.” The defendant argued,
as relevant here, that the offense did not categorically involve “the use or
attempted use of physical force” because it could be accomplished through the
indirect application of force, such as by sprinkling poison into a beverage. The
*24
Supreme Court rejected that argument. First, it concluded that, in contrast to the
ACCA definition of force established in
Curtis Johnson
, the “use of physical force”
under § 921(a)(33)(A) is satisfied by “the degree of force that supports a
common-law battery conviction.”
*25
Later, in
Villanueva
,
Accordingly, both
Castleman
and
Villanueva
were addressed to the question
whether a low level of force that produces a violent result can qualify as use of
force under ACCA. Neither addressed, much less resolved, the question before
us, namely, whether the failure to act—by one who has a duty to act to protect
*26
the victim—constitutes a “use of physical force” under ACCA.
[5]
See
18 U.S.C.
§ 924(e)(2)(B)(i);
cf. United States v. Mayo
,
Judge Raggi also argues that we conflate “physical force” itself with the
“use” of such force. It is true, as Judge Raggi notes, that the Supreme Court said
in
Castleman
that “use” “conveys the idea that the thing being used (here,
‘physical force’) has been made the user’s instrument.”
Castleman
,
To the extent that Judge Raggi argues that Castleman compels her reading, she overstates the holding of that case, which explicitly did not reach the question whether “causation of bodily injury necessarily entails violent force [for ACCA purposes].” Id . at 167. As to the poison example, the Supreme Court’s analysis does not compel Judge Raggi’s conclusion. It is at most ambiguous. There, the Court explained that the use of force was “the act of employing poison.” Id . at 171 (emphasis added). It did not contemplate a situation in which a person stands by, taking no action whatsoever, and allows a physical harm to occur with the intent to cause serious physical injury, and thus it cannot be said to have answered the question whether such a situation constitutes “use” of the injury-causing force.
We conclude that a crime that may be committed by complete inaction does not have “as an element the use . . . of physical force against the person of another,” under the meaning of ACCA. See 18 U.S.C. § 924(e)(B)(i). We consider the example of a person having a legal duty to provide care to another who, with intent to cause serious physical harm, fails to seek medical help when his ward requires it. Notwithstanding the Government’s and Judge Raggi’s respectable *29 argument that, by availing himself or taking advantage of the preexisting force that affected the ward, that the person did “use . . . physical force,” that conclusion does not, as Judge Raggi suggests, follow from Castleman .
Judge Raggi further argues that it “makes no sense” to distinguish between a defendant who, “intent on killing or seriously injuring another person . . . himself sprinkled [poison] in a victim’s drink,” and one who, with the same intentions and a “legal duty to intervene, . . . stood by and let the person imbibe what defendant knew was a poisoned drink.” If Judge Raggi’s argument depends on the notion that the two cases involve the same degree of moral culpability, we do not disagree that both defendants are equally morally culpable. Perhaps a perfectly constructed criminal law would treat them identically. But what determines whether two defendants who have acted differently but with similar degrees of moral culpability will be treated the same or differently is the language of the statutes that cover their cases. Notwithstanding Judge Raggi’s reasonable argument that a few words in Castleman could be read broadly to mean that “use of violent force” includes *30 doing nothing, neither the statute nor the Supreme Court’s interpretation of it clearly communicates such a meaning.
In addition, to the extent that it may be seen as a close question whether
“use of physical force” includes crimes committed by omission, the burden is on
the government to show that a prior conviction counts as a predicate offense for
the purpose of an ACCA sentence enhancement.
See United States v. Savage
, 542
F.3d 959, 964 (2d Cir. 2008). Moreover, the rule of lenity, which “requires
ambiguous criminal laws to be interpreted in favor of the defendants subject to
them,”
United States v. Santos
,
We therefore hold that New York first-degree manslaughter is not a crime of violence under the force clause of ACCA because it can be committed by inaction, while the ordinary meaning of the terms of ACCA are not satisfied by inaction. The district court’s vacatur of Scott’s ACCA sentence under 18 U.S.C. §§ 922(g)(1) and 924(e) is thus affirmed.
II. A Prior Conviction for New York First-Degree Manslaughter Is
Not a Crime of Violence Pursuant to the Career Offender Guideline
The government also appeals the district court’s interpretation of the Career Offender Guideline as not applicable to New York first-degree manslaughter. The Career Offender Guideline considers as a “career offender” a defendant who at eighteen years of age or more committed an offense of conviction “that is a felony [and is] either a crime of violence or a controlled substance offense,” and “ha[s] at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Classification as a career offender typically results in a significantly higher Guidelines sentencing range than would otherwise apply. The Career Offender Guideline defines a “crime of violence” as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) 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 in 18 U.S.C. § 841(c).
Id.
§ 4B1.2(a). The first clause of the Guideline, the “force clause,” is identical to
the force clause in ACCA.
Compare id.
(defining “crime of violence” as involving
“use, attempted use, or threatened use of physical force against the person of
another”)
, with
18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as involving
“use, attempted use, or threatened use of physical force against the person of
another”). Accordingly, our analysis of whether New York first-degree
manslaughter comes within the definition of a crime of violence under ACCA’s
force clause is pertinent in answering whether the offense is a crime of violence
under the force clause of the Career Offender Guideline. The Supreme Court in
Curtis Johnson
specified that in interpreting ACCA, the phrase “physical force”
carries its “ordinary meaning.”
See
The Government argues that, even if the force clause does not apply, New York first-degree manslaughter is a crime of violence under the Career Offender Guideline’s “enumerated-offenses clause.” It argues that New York first-degree manslaughter matches the generic offenses of murder, voluntary manslaughter, or aggravated assault.
“Where the basis for categorizing a prior conviction as a crime of violence
is that the offense is specifically enumerated as such in the Career Offender
Guideline or its commentary, we undertake the categorical approach by
comparing the state statute to the generic definition of the offense.”
Jones
, 878
F.3d at 18. We determine the “generic” definition of the offense by looking to the
“sense in which the term is now used in the criminal codes of most States.”
Taylor v. United States
,
A. New York First-Degree Manslaughter Is Not Generic Voluntary Manslaughter
As the government concedes, only a minority of states penalize the
conduct of New York first-degree manslaughter as “murder” or “manslaughter.”
The government nonetheless raises the novel argument that the offense qualifies
as an enumerated crime of violence because the conduct it describes “is
penalized in a majority of states as
either
‘murder’ or ‘voluntary manslaughter,’”
and those states can be aggregated to form a majority. Appellant’s Br. at 41
*35
(emphasis added). It clarifies in its reply brief that its claim is that those states
that penalize this conduct as “murder” should be counted as states in which the
New York statute fits the “lesser crime” of manslaughter. The government
identifies no authority that has interpreted the enumerated offenses clause in this
manner. In support, it cites to
Taylor
for the proposition that “courts should
disregard . . . ‘labels’ in applying the categorical approach.”
Id.
at 47 (citing
Taylor
,
We find this “aggregation” argument unpersuasive. It may be true that the
conduct in the New York statute “is penalized in a majority of states as either
‘murder’ or ‘voluntary manslaughter.’” Appellant’s Br. at 41. Nonetheless,
according to the government’s own account, a majority of States (30)
do not
penalize that conduct as “murder,” and a majority of States (42)
do not
penalize
that conduct as “voluntary manslaughter.” Under our case law, the statute does
not fit any of the generic crimes.
See Castillo
,
Moreover, an interpretation of “voluntary manslaughter” that includes
States in which the State offense would qualify as murder, on the basis that
“voluntary manslaughter” is a lesser-included crime of murder, would render
entirely superfluous Congress’s inclusion of the separate crime of “murder,”
because such states would necessarily count as states in which the offense in
question qualifies as “voluntary manslaughter.”
See Duncan v. Walker
, 533 U.S.
167, 174 (2001) (“It is our duty to give effect, if possible, to every clause and word
of a statute.” (internal quotation marks omitted));
see also Marx v. Gen. Revenue
Corp.
,
For these reasons, we reject the government’s proposed “aggregation” approach. In any event, it is certainly not the clear meaning of the Guideline to allow aggregation of states that treat manslaughter as one of the enumerated crimes with those that treat manslaughter as another. The rule of lenity therefore bars adding punitive consequences based on an interpretation that is not clearly communicated.
The government makes two additional arguments as to why the New York statute fits the generic crime of voluntary manslaughter, notwithstanding the fact that it identifies only eight states in which its mens rea requirement of “intent to do serious injury” is sufficient.
First, the government points to a treatise stating, “The usual view of
voluntary manslaughter . . . presupposes an intent to kill (
or perhaps an intent to do
serious injury
or to engage in very reckless conduct).” LaFave, Substantive Crim.
L. § 15.2(a)) (emphasis added). We do not find that an equivocal (“perhaps”)
*38
statement in a law treatise, supported by a citation to only one state court case
addressing the law of only that state, to be sufficient to carry the government’s
burden in demonstrating that the New York statute fits the generic crime of
voluntary manslaughter. Moreover, although there is no requirement that the
government expressly identify a majority of states in order to establish the
meaning of a generic crime, and although courts may consult sources other than
state codes including “scholarly treatises” in doing so,
see Castillo
,
Second, the government points to our decision in Castillo , in which we held that “the generic definition of ‘manslaughter’ includes the unlawful killing of another human being recklessly.” Id. at 152. We explained:
[C]ommon law manslaughter . . . served as “a sort of catch-all category . . . [for] homicides which are not bad enough to be murder but which are too bad to be no crime whatever. Manslaughter was later subdivided into voluntary and involuntary varieties. Voluntary manslaughter was the intentional killing “in a heat of passion upon *39 adequate provocation,” and involuntary manslaughter was an unintentional killing caused by “criminal negligence” or “recklessness,” or during the commission of an unlawful act not amounting to a felony.
Id.
at 151 (citing LaFave, Substantive Crim. L. §§ 15.1, 15.4). Relying on this
passage, the government argues that the New York statute qualifies as voluntary
manslaughter because, “Plainly, a violation of Section 125.20(1) . . . is not
‘unintentional killing caused by criminal negligence or recklessness.’” In making
this statement, the government seems to assume that because the New York
statute is not involuntary manslaughter, it must be voluntary manslaughter. We
are not persuaded. It could equally be said that, plainly, Section 125.20(1)—
which criminalizes causing death with the intent to cause serious physical
injury—includes conduct beyond “intentional killing ‘in a heat of passion upon
adequate provocation.’”
See Castillo
,
B. New York First-Degree Manslaughter Is Not Generic Aggravated Assault
The government also argues that New York first-degree manslaughter penalizes conduct that would be generic aggravated assault in “[v]irtually every state.” Appellant’s Br. at 49. We reject this argument because the government has not demonstrated that most states would penalize an omission as assault.
“The government bears the burden of showing that a prior conviction
counts as a predicate offense for the purpose of a sentencing enhancement.”
United States v. Savage
,
The government’s citations to American Jurisprudence and the Model Penal Code are inapposite because they do not address the question of whether an omission may be punished as assault. The portion of American Jurisprudence upon *41 which the government relies concerns only the sufficiency of an indirect application of force to qualify as battery and has no bearing on whether battery can be committed by omission. 6 Am. Jur. 2d Assault & Battery § 6 (“The force used in a common law battery need not be applied directly to the body of the victim.”). The government then points this Court to the Model Penal Code for the general proposition that a person can be held liable for a culpable omission, but it fails to explain how these provisions constitute a statement that battery can be committed by omission. See Model Penal Code § 1.13 (defining “conduct,” in relevant part, as “an action or omission and its accompanying state of mind”); id. § 2.01 (requiring liability to be “based on conduct that includes a voluntary act or the omission to perform an act of which [a person] is physically capable”). [6] These *42 provisions provide little guidance on whether a majority of states would criminalize a failure to act as aggravated assault.
Lastly, the government relies on LaFave to support its argument that a
majority of states would criminalize New York first-degree manslaughter as
aggravated assault. Judge Raggi, in support of this argument, points to a few
cases cited by LaFave that involve assaults by omission. Our directive under
Taylor v. United States
is to look to “the generic sense in which the term is now
used in the
criminal codes of most States
.”
We hold that New York first-degree manslaughter does not fit the generic definitions of murder, voluntary manslaughter, or aggravated assault, and we therefore affirm the district court’s conclusion that Scott cannot be sentenced under the Career Offender Sentencing Guideline.
CONCLUSION The State of New York has prosecuted New York first-degree manslaughter based on a defendant’s failure to act. We hold that because a defendant can commit New York first-degree manslaughter without taking any action, a defendant so convicted cannot be said to have used force sufficient to trigger ACCA’s sentencing enhancements or the force clause of the Career Offender Guideline. We also hold that New York first-degree manslaughter is not a match to the generic offenses of murder, voluntary manslaughter, or person of another], but falling short of consummation.” 2 Wharton’s Criminal Law § 179. *44 aggravated assault and therefore does not satisfy the enumerated-offenses clause
1 of the Career Offender Guideline. The order and judgment of the district court is 2 therefore AFFIRMED.
LEVAL, Circuit Judge, Concurring:
I join in Judge Pooler’s persuasive opinion for the Court holding that New York first-degree manslaughter does not fall within ACCA because it extends more broadly than ACCA’s definition of violent felony. In this opinion, in which Judge Pooler joins, I offer an additional reason, relying on application of the rule of lenity by reason of lack of clarity whether ACCA’s requirement of use of physical force can be satisfied — and ACCA’s mandatory 15-year sentence imposed —where the defendant has taken no action whatsoever.
The rule of lenity “requires ambiguous criminal laws to be interpreted in
favor of the defendants subjected to them.”
United States v. Santos
,
Mandatory sentencing statutes such as ACCA, when their applicability is not clearly commanded by the words of the statute, present a particularly compelling ground for the application of the rule of lenity. This is because mandatory sentencing statutes (for reasons explained below) rarely serve a useful purpose, and frequently serve as arbitrary instruments of injustice.
Given the overriding objectives of sentencing to provide appropriate protection to the public with fairness to the defendant and the victim, sentences must be imposed on the basis of the relevant facts of the case. The “purposes” of sentencing are specified in the basic federal sentencing statute, 18 U.S.C. § 3553(a). It requires the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” id. § 3553(a)(1), as well as “the need for the sentence imposed . . . to reflect the seriousness of the offense[;] to promote respect for the law[;] to provide just punishment for the offense; . . . [t]o afford adequate deterrence to criminal conduct; . . . [and] to *47 protect the public from further crimes of the defendant,” id. § 3553(a)(2). The statute goes on, in what is called the “parsimony clause,” to command the courts to impose a sentence that is “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. All of this requires that the sentencing court, and the reviewing court, give careful attention to the facts that characterize both the commission of the offense and the particular defendant. The task of assuring that the sentencing court imposes a sufficient sentence is assigned to the reviewing court. If the sentencing judge imposes a sentence that is not “sufficient . . . to comply with” the purposes of sentencing, that sentence would violate the statute and should be set aside on appeal.
When a legislature imposes a mandatory sentence, all consideration of the relevant facts disappears. Necessarily knowing nothing of the facts — neither of the crime nor the victim nor the defendant (as the crime has not yet occurred) — the legislature, by requiring mandatory sentences, arbitrarily commands that all crimes falling within the broadly described category be sentenced as specified , regardless of whether the particular facts can reasonably justify such a sentence.
No doubt, mandatory sentences are most often legislated for circumstances in which the majority of occurrences will appropriately call for a sentence of such *48 severity. Because the need for a severe sentence in most of the covered cases will be as evident to courts as it is to the legislature, in most such cases the mandatory requirement serves no purpose. The courts would impose a sentence of comparable severity as the just resolution of the case, regardless of whether the legislature had imposed a mandatory sentence, precisely because such a sentence would be well justified by the facts. And in the relatively rare case where the sentencing judge failed to impose an appropriately severe sentence that complied with the purposes of sentencing, the prosecutor could appeal, and it would be the duty of the appeals court to vacate an unreasonably lenient sentence, requiring a sentence that is sufficiently severe.
On the other hand, notwithstanding that the sentence required by mandatory sentencing laws is appropriate in most circumstances, it does not follow that the mandatory sentence will be just or even reasonable in all circumstances. Almost invariably, the standards that govern the imposition of mandatory sentences are crude and generalized, and lack the fine distinctions that are crucial to fair sentencing. Inevitably mandatory sentences will govern cases where sentences of such severity cannot be reasonably justified. Thus, when the sentence mandated is reasonably called for in the majority of cases it *49 covers, the main consequence of the legislature’s making that sentence mandatory is to require substantial injustice in the minority of cases for which a sentence of such severity cannot be justified. [1]
A 15-year sentence, as mandated by ACCA, for one who possesses a firearm after three convictions for either a violent felony or a felony drug offense does not on its face sound unreasonable. The court would reliably impose such a sentence on most persons who fall into that category. That is not to say, however, that such a sentence would be reasonable for everyone who is ACCA-eligible. A foolish 16-year-old, who yielded to the temptation of serving as a runner or a lookout for drug sellers in an urban drug marketplace, would have committed numerous felony drug offenses in the course of a single day, and could easily *50 have accumulated three separate felony drug convictions in a period of a few days. Should it matter if those convictions were 40 years in the past, and if the foolish teenager had thereafter rehabilitated himself and lived an exemplary, productive, and useful life for 40 years before being in possession of a gun? Should it matter whether the subsequent illegal gun possession occurred in relatively innocuous circumstances? Suppose for example that, 40 years after his drug convictions, he acquired a rifle because he lived on a farm and his family or livestock were menaced by coyotes. Should it matter if, on his father’s death many years after his early disposition toward crime, he simply inherited his father’s property, which he knew included a hunting rifle? Probably a violation. But warranting 15 years of imprisonment? Mandatory minimum sentencing statutes do not make allowance for the inevitable circumstances of an individual case that would make the commanded sentences outrageously unjust.
Notwithstanding that they rarely serve a useful purpose and almost inevitably cause appalling injustices in some cases, mandatory sentences are tolerated almost without comment because there is no voice or constituency in our society for convicted felons who are the victims of unjust sentencing laws. No member of Congress ever lost votes for supporting unfairly harsh sentences. *51 Nonetheless, such sentences represent a serious injustice — one that we ought to consider intolerable.
For these reasons, mandatory sentences are inevitably at times in tension
with the parsimony clause of 18 U.S.C. § 3553(a), which requires that a district
judge impose a sentence that is “not greater than necessary” to satisfy the goals
of sentencing.
See United States v. Dorvee
,
I do not suggest that Congress lacks the power to impose mandatory sentences that will inevitably inflict injustice. Nonetheless, under the rule of lenity, statutes imposing criminal sanctions are not enforced unless they give clear notice of their applicability. When the rule in question is a harsh mandatory sentence, which, notwithstanding reasonable application to many circumstances, will cause serious injustices in others, courts have a particularly important duty to see to it that the rule is not enforced beyond the circumstances to which it unambiguously applies.
Even if one is persuaded by the government’s and Judge Raggi’s imaginative arguments that Congress probably intended that ACCA’s requirement of a “violent felony” involving “use of physical force” be satisfied in cases where the defendant has done nothing at all, these arguments fall far short of showing that the reach of the statute unambiguously commands this. I conclude for the reasons persuasively stated by Judge Pooler and those expressed in this opinion that ACCA’s mandatory 15-year sentence does not apply to cases where the defendant has taken no action whatever.
Although the case is less clear as to the inapplicability of the Career
Offender Guideline, which, since
United States v. Booker
,
18-163-cr
United States v. Scott
R EENA R AGGI , Circuit Judge, dissenting:
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 homicide crimes,
Scott stands twice convicted in New York State of first-degree
manslaughter under N.Y. Penal Law § 125.20(1). At issue on this
appeal is whether Scott’s manslaughter convictions are for crimes of
violence. An affirmative answer might appear obvious to a man on
the street aware of Scott’s conduct. But precedent, as the panel
majority notes, requires judges to view that conduct as “irrelevant.”
Majority Op.,
ante
at 4, n.1. Instead, the violent-crime question must
be determined categorically by asking whether an element of New
York first-degree manslaughter requires the defendant to have used
“force capable of causing physical pain or injury to another person.”
Curtis Johnson v. United States
,
Following that principle here, the majority concludes that New York first-degree manslaughter is not a categorical crime of violence because—Scott’s own homicidal conduct notwithstanding—it is possible to violate § 125.20(1) without a defendant himself actively deploying physical force. For example, the crime can be committed by “omission,” as when a parent, intent on seriously injuring his child, fails to seek necessary medical care for the child, thereby causing the child’s death. [1] See Majority Op., ante at 3. Carried to its logical—or illogical—conclusion, the majority’s reasoning would *54 18-163-cr
United States v. Scott
preclude even intentional murder from being recognized as a categorical violent felony or crime of violence because, presumably, a person can cause death through omission whether his specific intent is to kill, see N.Y. Penal Law § 125.25 (second-degree murder), or to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter). Rather than start down a path leading so far from the violent reality of homicide crimes, I respectfully dissent from the majority’s conclusion that New York first-degree manslaughter is not a categorical crime of violence. Two reasons inform my decision.
First, Scott has not carried his threshold burden to identify a
case in which a defendant has been “actually prosecute[d]” for New
York first-degree manslaughter solely on a theory of omission.
Moncrieff v. Holder
,
Second—and more important—even assuming a probability of § 125.20(1) crimes being prosecuted based only on omissions, I would hold New York first-degree manslaughter a categorical crime of *55 18-163-cr
United States v. Scott
violence. New York law states that to be guilty of first-degree
manslaughter a person “[w]ith intent to cause serious physical injury
to another person, [must] cause[] the death of such person or of a third
person.” N.Y. Penal Law § 125.20(1). As the Supreme Court has
recognized, “the knowing or intentional causation of bodily injury
necessarily
involves the use of physical force.”
United States v.
Castleman
,
I. Background
Whether New York first-degree manslaughter is a crime of violence is a question that here arises in the context of determining the appropriate sentence for Scott’s latest conviction, his fourth for a *56 18-163-cr
United States v. Scott
crime using life-threatening violence. [2] Specifically, on September 26, 2006, Scott entered a Bronx jewelry store, pointed a gun at the store owner, and ordered him to surrender the contents of his cash register. The robbery, and any possible ensuing injury, were thwarted by the fortuitous intervention of a police officer. For his actions, Scott now stands federally convicted, based on his guilty plea, for attempted Hobbs Act robbery, see 18 U.S.C. §§ 1951, 1952; brandishing a firearm during that robbery, see id. § 924(c)(1)(A)(ii); and being a previously convicted felon in possession of a firearm, see id. §§ 922(g)(1), 924(e).
In sentencing Scott for these crimes, the district court had to consider his criminal history, particularly his history for violent crimes. Such consideration is relevant to assessing, at a minimum, the seriousness of Scott’s most recent crimes, the likelihood of his committing future crimes, and the risk of danger—life-threatening danger—to innocent persons from such crimes. See id. § 3553(a)(2)(A)–(C).
While the law generally proscribes any limits on the facts and circumstances that a district court may consider in determining a defendant’s sentence, see id. § 3661, it sometimes requires specific findings to trigger particular sentencing consequences. Thus, to apply a “Career Offender” enhancement to a defendant’s Sentencing Guidelines calculation, a court must find that a defendant has two or more prior felony convictions for “a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). [3] And if the court finds that a *57 18-163-cr
United States v. Scott
defendant found guilty of being a felon in possession of a firearm has three or more prior violent felony or serious drug convictions, the Armed Career Criminal Act (“ACCA”) mandates a minimum prison term of fifteen years for the unlawful possession. See 18 U.S.C. § 924(e)(1). [4]
To decide whether a crime of conviction is a violent felony or a crime of violence under the “force” clauses of ACCA and the Career Offender Guideline, a court must make a categorical assessment, asking whether an element of the crime requires the use of physical “force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States , 559 U.S. at 140 (construing ACCA’s “physical force” requirement); accord United States v. Hill , 890 F.3d at 58. To answer that question, a court looks to the minimum criminal conduct necessary for conviction under the statute, without regard to (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) 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 in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a). ACCA defines a “violent felony” as “any crime punishable by imprisonment for
a term exceeding one year” that,
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
18-163-cr
United States v. Scott
whether the defendant himself engaged in more egregious conduct.
See United States v. Hill
,
At Scott’s initial sentencing, the district court concluded—with no objection and, therefore, little discussion—that Scott warranted enhancements under the force clauses of both ACCA and the Career Offender Guideline. This was based on his two 1988 New York manslaughter convictions, as well as his 1983 conviction for first- degree robbery. See N.Y. Penal Law § 160.15(3); Stuckey v. United States , 878 F.3d 62, 71–72 (2d Cir. 2017) (holding New York first- degree robbery categorical violent felony under ACCA). Accordingly, the district court sentenced Scott to a total 22 years’ imprisonment. This sentence, toward the low end of Scott’s 262-to- 327-month Guidelines range, reflected the ACCA mandated 15-year sentence for being a felon in possession, a concurrent 15-year term for attempted Hobbs Act robbery, and a mandated consecutive 7-year sentence for brandishing a firearm. See 18 U.S.C. § 924(c)(1)(A)(ii).
In 2017, on habeas review of Scott’s sentence, see 28 U.S.C. § 2255, the district court reversed course, holding that neither the original ACCA nor Career Offender Guideline enhancements were warranted because New York first-degree manslaughter is not a categorical violent felony or crime of violence as it can be committed *59 18-163-cr
United States v. Scott
passively, by omission, without a defendant himself using, attempting to use, or threatening to use physical force. The district court further concluded that New York first-degree manslaughter committed by omission did not fit within the generic definitions of “voluntary manslaughter,” “murder,” or “aggravated assault,” crimes specifically enumerated in the second clause of the Guidelines’ definition of a “crime of violence.” See supra note 3. Accordingly, it vacated Scott’s original sentence; recalculated his Guidelines range without the career offender enhancement as 121 to 130 months; and sentenced Scott to time served, which by that time was approximately 135 months.
The panel majority now affirms that judgment, reasoning that New York first-degree manslaughter is not a categorical violent felony or crime of violence because the minimum conduct required to commit the crime does not include a defendant’s active use of force. Rather, the crime may be committed through omission, as occurs when a defendant, intent on causing serious physical injury, causes death by failing to prevent deadly harm despite the duty and ability to do so.
I think precedent forecloses this reasoning. II. The Probability of a First-Degree Manslaughter Conviction
by Omission Alone
As the majority acknowledges,
see
Majority Op.,
ante
at 9–10, to
hold that the minimum conduct for a predicate crime of conviction
does not require the use of violence “there must be a realistic
probability, not a theoretical possibility, that the statute at issue could
be applied to conduct that does not constitute a [violent felony],”
United States v. Hill
,
United States v. Scott
defendant “must at least point to his own case or other cases in which the . . . courts in fact did apply the statute in the . . . manner for which he argues.” Id. (emphasis added) (omissions in original) (internal quotation marks omitted); see Moncrieffe v. Holder , 569 U.S. at 206 (holding that “realistic probability” requires defendant to show that “State actually prosecutes the relevant offense” in the non-violent circumstances hypothesized). [6] This requirement ensures that patently violent crimes do not escape being denominated as such on theories that, even if legally possible, are not reflected in actual prosecutions.
Scott cannot rely on his own case to carry his realistic- probability burden. As noted at the outset, Scott actively deployed violence to kill his manslaughter victims, shooting one point-blank in the head and stabbing the other. Thus, he must point to other cases in which New York actually prosecuted first-degree manslaughter based only on a theory of omission. He cannot do so.
In concluding otherwise, the majority relies on two cases:
People v. Steinberg,
*61 18-163-cr
United States v. Scott
At issue in
Steinberg
was the notorious killing of a six-year-old
child, Lisa Steinberg, at the hands of her “adoptive” father, attorney
Joel Steinberg. Steinberg was convicted of first-degree manslaughter
on a theory that he engaged in
both
“acts of commission (striking Lisa)
and acts of omission (failing to obtain medical care), each with intent
to cause serious physical injury.”
People v. Steinberg
,
When the Court of Appeals, in Steinberg, stated that “the failure to obtain medical care can . . . support a first degree manslaughter charge,” it observed that conviction nevertheless requires “sufficient proof of the requisite mens rea —intent to cause serious physical injury.” Id. at 680, 584 N.Y.S.2d at 772. In Steinberg, the fact that defendant acted with such injurious intent when he failed to secure medical care for his child was powerfully demonstrated by evidence that he himself had committed the brutal assault triggering the child’s *62 18-163-cr
United States v. Scott
need for care. In short, in the
Steinberg
prosecution, the defendant’s
act of omission was inextricably linked to his acts of commission, and
the Court of Appeals discussed them in conjunction in rejecting
Steinberg’s sufficiency challenge to his first-degree manslaughter
conviction.
See id.
at 683,
Nor is
People v. Wong
,
United States v. Scott
shaken the child, or by omission for failing to protect the child.”
People v. Wong,
The Appellate Division, First Department, reversed the Wongs’ first-degree manslaughter convictions, reasoning that record evidence indicating that the shaker’s “probable intention” was “to quiet [the child] . . . and not necessarily to harm him,” raised a “reasonable doubt” as to either defendant’s possession of the required specific intent to cause serious physical injury. Id. at 107, 588 N.Y.S.2d at 123.
The Court of Appeals then reversed the Wongs’ second-degree
manslaughter convictions. It was as to that charge, which required
proof only of recklessness, and not of a specific intent to cause
physical injury,
see People v. Rivera
,
18-163-cr
United States v. Scott
Highlighting “the absence of proof from which the jury could
infer that the ‘passive’ defendant was even aware that the infant had
been violently shaken,” the Court concluded that the record would
not admit a finding that such defendant recklessly failed to procure
needed medical care.
People v. Wong
,
In sum, while Steinberg admits the legal “possibility” of a first- degree manslaughter conviction being obtained solely on a theory of omission, because that was not “in fact” the case in Steinberg —and even less so in Wong —these cases are insufficient to demonstrate the “realistic probability” of application that is a necessary prerequisite for the majority’s conclusion that New York first-degree manslaughter is not a categorical violent felony or crime of violence. *65 18-163-cr
United States v. Scott
United States v. Hill , 890 F.3d at 56 (internal quotation marks omitted). [11]
III. A Defendant Who Commits New York First-Degree
Manslaughter Necessarily “Uses” Physical Force in Causing Death
In
United States v. Castleman,
United States v. Scott
cause bodily injury without applying force.” Id. at 170 (emphasis added); accord id. at 174 (Scalia, J., concurring) (“[I]t is impossible to cause bodily injury without using force capable of producing that result.” (internal quotation marks omitted)). [12] Thus, Castleman compels the conclusion that to be guilty of causing death while intending to cause at least serious physical injury—the required elements of N.Y. Penal Law § 125.20(1)—a defendant must have used physical force. The conclusion obtains, moreover, regardless of whether the use was direct or indirect, by commission or omission. Castleman makes that clear in rejecting an argument that a poisoner can kill his victim without using physical force by the non-violent act of surreptitiously sprinkling poison in his drink. The Court explained that the “use of force” in that circumstance is “not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physical harm.” United States v. Castleman , 572 U.S. at 171 (internal quotation marks and brackets omitted).
In holding otherwise, the panel majority attempts to narrow Castleman , insisting that the Court there addressed only “whether a low level of force that produces a violent result”—sprinkling poison —“can qualify as use of force under ACCA.” Majority Op. , ante at 25. It maintains that a defendant can only be said to have used injurious physical force if he took “ some action that initiates a harmful *67 18-163-cr
United States v. Scott
consequence.”
Id.
at 26 (emphasis in original). This reading of
Castleman
, however, is belied by the just-quoted text, which makes
clear that not only is the
degree
of force used in sprinkling poison
irrelevant to the Court’s use-of-force conclusion, so too is the
sprinkling itself. That is because the “use of force” in that
circumstance is “not the act of sprinkling the poison” at all; rather, “it
is the act of employing poison knowingly as a device to cause physical
harm.”
United States v. Castleman
,
By the majority’s reasoning, however, a defendant intent on
killing or seriously injuring another person could be said to have used the deadly force of a poison if he himself sprinkled that substance in
a victim’s drink, but not to have used such force if, possessed of the
same injurious intent, and with the legal duty to intervene, he stood
by and let the person imbibe what defendant knew was a poisoned
drink. The distinction makes no sense, and not simply because the
two circumstances involve comparable moral culpability.
See
Majority Op.,
ante
at 28–29. Rather, the reason no distinction is
warranted is because of how the Supreme Court has construed
statutory text penalizing crimes committed by the use of force. In
both hypothesized circumstances, the defendant is “employing
poison knowingly as a device to cause [intended] physical harm”—
the use-of-force standard articulated in
Castleman
,
United States v. Scott
duty to remediate the poison. Indeed, the law equates such inaction in the face of a duty to act to voluntary action. See N.Y. Penal Law § 15.10 (equating “omission to perform an act which [person] is physically capable of performing” with “voluntary act” in identifying minimal conduct required for criminal culpability). For that reason, the majority cannot fairly characterize a culpable omission as taking “no action whatsoever,” Majority Op., ante at 28, or as doing “nothing at all,” Concurring Op., ante at 8. The culpable “action” taken is deliberate inaction, while under a duty to act, with the specific intent thereby to cause serious physical harm.
The majority nevertheless insists that the distinction it draws is
compelled by
Curtis Johnson v. United States,
which, in holding that the
term “physical force” should be construed according to its “ordinary
meaning,” observed that dictionary definitions describe “force” as
“active power; vigor,” and “physical force” as “force consisting in a
physical act.”
I respectfully suggest that, in reaching this conclusion, my
colleagues conflate “physical force” itself with the “use” of such force.
Curtis Johnson
holds that the former connotes active physical power
and vigor. But it says nothing about the latter; certainly not that the
“use” of physical force must be affirmative rather than passive. It was
only subsequently, in
United States v. Castleman
, that the Supreme
Court discussed what constitutes a “use” of “physical force.” There,
the Court explained that the word “use” “conveys the idea that the
thing being used (here, ‘physical force’) has been made the user’s
instrument.”
United States v. Scott
and the ability to protect another from physical injury, (2) fails to act on that duty, (3) because he specifically intends to cause serious physical injury, the person must be said, by his omission, to have adopted the physical force causing harm as the “instrument” of his own injurious intent and, thus, to have used that physical force as much as if he had actively deployed it in the first instance.
The majority suggests that this “overstates the holding” in
Castleman
because the Supreme Court did not there consider the
physical force question “for ACCA purposes.” Majority Op.,
ante
at
28. Such criticism is unwarranted. This court has already recognized
that the determinative significance
Castleman
affords causation in
identifying crimes committed by the use of force applies in the ACCA
context. In
Villanueva v. United States,
an ACCA case, we observed
that, following
Castleman,
a federal court’s “use of force” inquiry
properly “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. Put another way, in deciding whether a crime
categorically requires the use of force, a court properly considers the
necessary impact of an instrument of force on the crime’s victim, not
the impact of a defendant’s actions—or inactions—on that
instrument.
See id.
at 129 (“[R]elevant force is the impact of the
substance on the victim, not the impact of the user on the substance.”).
Because the only consequence for a victim of New York first-degree
manslaughter is death—the ultimate physical injury—and because
that consequence can only be caused by the application of physical
force to the victim,
see United States v. Castleman
,
United States v. Scott
intentionally used the force causing death as his instrument without regard to whether he did so by commission or omission. [13]
Five of our sister circuits have already sensibly refused to draw
a distinction between crimes causing physical injury by commission
and those causing such injury by omission in identifying crimes of
violence under various provisions of federal law.
See United States v.
Rumley
, --- F.3d ---,
United States v. Scott
force);
United States v. Ontiveros
, 875 F.3d 533, 538 (10th Cir. 2017)
(holding Colorado second-degree assault crime of violence under
ACCA’s force clause because, following
Castleman
’s logic, “[i]f it is
impossible to commit a battery without applying force, and a battery
can be committed by an omission to act, then second-degree assault
must also require physical force” (emphasis omitted));
United States v.
Waters
, 823 F.3d 1062, 1066 (7th Cir. 2016) (adhering to precedent
recognizing domestic battery under Illinois law as crime of violence
for purposes of Career Offender Guideline because, assuming crime
could be committed by withholding medicine, that omission “causes
physical harm, albeit indirectly, and thus qualifies as the use of force
under
Castleman
”).
But see United States v. Mayo
,
IV. The Career Offender Guideline’s Enumerated Offenses
Clause
Because I think Scott’s manslaughter convictions are categorical violent felonies and crimes of violence under the force clauses of both ACCA and the Career Offender Guideline, I would not reach the government’s alternative argument urging a crime-of- violence conclusion under the Guideline’s enumerated offenses clause. See supra note 3. Nevertheless, because the panel majority rejects this alternative argument, I here briefly explain why I am not persuaded by its reasoning.
A court identifying a crime of violence by reference to an *72 18-163-cr
United States v. Scott
enumerated offense properly determines the “generic” definition of
the enumerated offense by looking to the “sense in which the term is
now used in the criminal codes of most States.”
Taylor v. United States
,
495 U.S. 575, 598 (1990). In the process, a court may also “consult
other sources, including federal criminal statutes, the Model Penal
Code, scholarly treatises, . . . legal dictionaries,” and “the common
law . . . to frame the analysis.”
United States v. Castillo
,
The government asserts that New York first-degree manslaughter is an enumerated crime of violence under the Career Offender Guideline because a majority of the states penalize conduct with the elements of N.Y. Penal Law § 125.20(1)—causing death while intending serious bodily injury—as either murder (20 states) [14] or *73 18-163-cr
United States v. Scott
voluntary manslaughter (eight states), [15] while almost all states penalize such conduct, at a minimum, as aggravated assault. [16]
The majority rejects the argument insofar as it requires aggregating states holding what the majority perceives as minority views of murder and voluntary manslaughter. Indeed, it maintains that a majority of the states limit murder and voluntary manslaughter to homicides committed with the specific intent to kill. As for aggravated assault, the majority insists that it cannot be committed by omission. I am not convinced.
*74 18-163-cr
United States v. Scott
The government’s urged aggregation approach finds support in the Supreme Court’s instruction that courts identifying categorical crimes of violence by reference to enumerated offenses should not be controlled by the “label” states attach to their crimes but, rather, by the elements of those crimes. Quarles v. United States , 139 S. Ct. at 1880. Mindful of that instruction, I conclude that New York first- degree manslaughter is an enumerated crime of violence because a clear majority of the states penalize the conduct proscribed by the two elements of N.Y. Penal Law § 125.20(1)—(1) causing death while (2) intending to cause serious physical injury—as a Guidelines- enumerated crime of violence, whether labeled murder or voluntary manslaughter. While the panel majority characterizes these states as holding minority views of the mens rea element of murder and voluntary manslaughter, see Majority Op., ante at 35–36, the fact remains that a majority of the states treat the conduct proscribed by the elements of N.Y. Penal Law § 125.20(1) as one or the other of these enumerated crimes of violence. Indeed, it would be more than curious to conclude that New York first-degree manslaughter is not an enumerated crime of violence because only eight states would label it voluntary manslaughter when another 20 would label it as the more serious crime of murder.
To explain, as Professor Wayne LaFave details, at common law, “one who intended to do serious bodily injury short of death, but who actually succeeded in killing, was guilty of murder in spite of his lack of an intent to kill, in the absence of circumstances which mitigated the offense to voluntary manslaughter or which justified or excused it.” 2 Wayne R. LaFave, S UBSTANTIVE C RIMINAL L AW § 14.3, at 590 (3d ed. 2018). “This type of common-law murder became a part of the law of murder in America.” Id. It was only over time that “[m]ost”— but far from all—“modern [state penal] codes” came to “define *75 18-163-cr
United States v. Scott
murder as not including the intent-to-do-serious-bodily injury type.” Id. at 591 & n.5 (comparing codes that do not treat death caused intending serious bodily injury as murder with those that do, either expressly or as a lesser degree of murder). Instead, death caused with the intent to cause serious bodily harm was punished as the lesser homicide of voluntary manslaughter. See id. § 15.2(a), at 670 (observing that “[a]lthough the killing of another person—when accompanied by an intent to kill, or by an intent to do serious bodily harm short of death , or when resulting from such unreasonable and highly reckless conduct as to evince a depraved heart—often amounts to murder, yet it may under certain circumstances amount only to voluntary manslaughter” (emphasis added) (internal quotation marks omitted)). Nevertheless, as the New York Court of Appeals has observed, a homicide caused with intent to cause serious physical injury rather than death, i.e. , first-degree manslaughter, is a lesser included offense of second-degree murder. See People v. Hull , 27 N.Y.3d 1056, 1058, 35 N.Y.S.3d 284, 286 (2016). This background explains why homicides caused while intending to cause serious physical injury, which New York punishes as first-degree manslaughter, are properly viewed as categorical crimes of violence under the enumerated offenses clause of the Career Offender Guideline. A clear majority of states punish crimes having these same elements as either murder or voluntary manslaughter. Only a minority of states fails to punish this conduct as one of these enumerated crimes of violence.
Our recent decision in United States v. Castillo, 896 F.3d 141, further supports this conclusion. There, we held New York first- degree manslaughter a categorical crime of violence under the pre- 2016 Guidelines by analogy to the enumerated crime of “generic manslaughter,” which we construed to include both voluntary and *76 18-163-cr
United States v. Scott
involuntary manslaughter. See id. at 151 n.36, 153–54. [17] We explained that, historically, “murder was the unlawful killing of a human being with malice aforethought,” while “manslaughter was the unlawful killing of a human being without malice aforethought.” See id. at 151 (internal quotation marks omitted). Over time, the term “malice aforethought came to encompass a variety of mental states, including intent to kill in the absence of extenuating circumstances, intent to do serious bodily injury , depraved heart, and intent to commit a felony.” Id. (emphasis added) (internal quotation marks omitted). Meanwhile, manslaughter was subdivided into “voluntary and involuntary varieties,” the former being “intentional killing in a heat of passion upon adequate provocation,” and the latter being “unintentional killing caused by criminal negligence or recklessness, or during the commission of an unlawful act not amounting to a felony.” Id. (internal quotation marks omitted). While some state codes, and the federal criminal code, preserve a voluntary/involuntary distinction as to manslaughter, Castillo acknowledges that “the modern trend, reflected in a majority of recent codifications, is for there to be but one single manslaughter crime.” Id. (quoting 2 LaFave § 15.1, at 668–69). Thus, Castillo concluded that while the “ mens rea of recklessness . . . serves as the proverbial floor for the generic definition of ‘manslaughter,’” “the states of mind that historically fell under the category of ‘malice aforethought’ associated with murder,” including the intent to kill and to do serious bodily injury, also satisfy that *77 18-163-cr
United States v. Scott
generic definition. Id. at 152.
From this, I conclude that where manslaughter remains divided into voluntary and involuntary homicides, the mens rea element for generic involuntary manslaughter is recklessness. Higher mental state requirements, indicative of the malice aforethought originally associated with murder—such as intent to kill or to do serious bodily injury—denominate homicides now generically recognized as voluntary manslaughter. Cf. id. at 153 (recognizing “recklessness (a mens rea of [New York] second-degree manslaughter) [as] a lower mental state than intent to cause serious injury,” as required for New York first-degree manslaughter). Thus, contrary to my colleagues in the majority, I identify New York first-degree manslaughter as the equivalent of generic voluntary manslaughter under the Career Offender Guideline’s enumerated offenses clause.
Further, I think the conduct satisfying the elements of New York first-degree manslaughter—causing death intending to cause serious physical injury—would be punished in virtually all states, at a minimum, as aggravated assault, a term that also includes aggravated battery. See supra note 16. Certainly, the Model Penal Code § 211.1(2)(a) defines “aggravated assault” to include causing “serious bodily injury . . . purposely [or] knowingly.” The treatises are also in accord. See 6 A M . J UR . D Assault & Battery § 32, Westlaw (database updated Nov. 2019) (“Aggravated assault usually consists of intentionally or recklessly causing great or serious bodily harm to another.”); 2 LaFave § 16.2(d), at 764–65 (observing that aggravated battery includes “intentionally or knowingly” inflicting “serious bodily injury”).
To avoid this conclusion, the panel majority faults the government for failing to show that most states would prosecute *78 18-163-cr
United States v. Scott
serious bodily injury purposely caused by omission as aggravated assault. See Majority Op., ante at 40. I disagree. First, such a showing is unnecessary given Scott’s failure to cite a case in which New York actually prosecuted first-degree manslaughter based only on omission. Second, even assuming such a showing were necessary, it is satisfied here. It is well established in law that injury can be proximately caused by either commission or omission, particularly when the latter pertains to a legal duty. See W. Page Keeton et al. , P ROSSER & K EETON ON T ORTS § 41, at 263 (5th ed. 1984) (stating that “essential element” of negligence claim is “proximate cause,” i.e. , “reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered” (emphasis added)). The same conclusion obtains for criminal liability generally, which the Model Penal Code instructs can “be based on conduct that includes a voluntary act or the omission to perform an act of which [a defendant] is physically capable.” M ODEL P ENAL C ODE § 2.01(1) (emphasis added); see id. § 1.13 (defining “conduct” of crime as “an action or omission and its accompanying state of mind” (emphasis added)); see also 2 W HARTON ’ S C RIMINAL L AW § 25, at 139 (15th ed. 1993) (observing that to be criminally liable, defendant must engage in “conduct,” which “means an act or omission” (internal quotation marks omitted)). Citing the Model Penal Code, Professor LaFave observes that “modern recodifications typically state that crimes may be committed either by an act or an omission,” when there is a “legal duty” to act. 1 LaFave § 6.2, at 588 & n.1. Indeed, LaFave identifies as the first element of criminal battery “the defendant’s conduct (act or omission).” [18]
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In sum, because a clear majority of the states penalize the conduct proscribed by the elements of N.Y. Penal Law § 125.20(1) as either generic voluntary manslaughter or the more serious homicide crime of murder, and because an even larger majority of the states penalize such conduct, at a minimum, as generic aggravated assault, I conclude that the Career Offender Guideline applies to Scott’s case.
V. Conclusion
For the reasons stated in this opinion, I conclude that Scott should not have been granted habeas relief from his original sentence because he has three prior convictions for violent felonies under ACCA and for crimes of violence under the Career Offender Guideline.
To the extent Scott has two prior convictions for first-degree
manslaughter in violation of N.Y. Penal Law § 125.20(1), I conclude
that those convictions are for categorical violent felonies and crimes
of violence under the force clauses of both ACCA and the Career
Offender Guideline. To commit New York first-degree manslaughter,
a defendant must (1) cause death while (2) specifically intending to
cause at least serious physical injury. Death can only be caused by
intentionally using physical force, that is, by a person making fatal
force his own instrument for causing intended injury.
See United
States v. Castleman
, 572 U.S. at 169. Whether a defendant himself
think that assault or battery crimes warrant an exception. Footnotes in this section
are replete with cases convicting defendants for what might be deemed the most
aggravated forms of assault and battery, murder and manslaughter. In addition,
the treatise cites cases of assault-by-omission convictions.
See
1 LaFave § 6.2(a)(1),
at 593 n.19 (citing, among other cases,
People v. Rolon
,
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United States v. Scott
deploys that force in the first instance or avails himself of such force already in motion (by failing to act on a duty to remediate that force because he specifically intends serious injury) does not alter the conclusion that he has intentionally used physical force to commit the crime. Thus, New York first-degree manslaughter is a categorical crime of violence.
While I do not think it necessary to decide whether New York first-degree manslaughter is also a categorical crime of violence under the enumerated offenses clause of the Career Offender Guideline, to the extent the panel majority concludes that it is not, I cannot agree with its reasoning.
I, therefore, respectfully dissent from the court’s decision today affirming the district court judgment in favor of Scott.
Notes
[1] Judge Raggi devotes much of her opinion to detailing the violent savagery of Scott’s conduct in both his present and his predicate offenses. We do not disagree that Scott is deserving of serious punishment. Nonetheless, we must point out
[2] Judge Raggi also notes, correctly, that by the time the case reached the Court of Appeals, Wong involved only convictions for second-degree manslaughter, which requires proof only of recklessness, rather than the first-degree manslaughter statute at issue here, which requires proof of intent to cause serious physical injury. But this fact does not disturb our conclusion that New York’s highest court has applied the first-degree manslaughter statute to omission. Steinberg expressly upheld a first-degree manslaughter conviction on the theory that the defendant’s knowing inaction in circumstances in which he had a duty to act to protect the victim constituted the crime. Wong relied on that ruling, characterizing it as a holding.
[3] We are puzzled furthermore by Judge Raggi’s argument that there is no realistic probability that New York courts would apply first-degree manslaughter to a parent who, with intent to cause serious injury to his or her child, causes death by refusing to provide needed medical care (without a preceding act of violence), but would apply it to a parent who causes death by striking his child. Judge Raggi herself asserts that it “makes no sense” to impose criminal liability on one who acts, sprinkling poison on the victim’s food with intention to cause death but not on one who, knowing that the victim’s food is poisoned and with the same intention, passively allows the victim to ingest the poison. We do not disagree with Judge Raggi that the two cases should be treated alike so long as the words of the governing statute allow that. The New York Court of Appeals appears to agree as well, and that is why the Court held that first-degree manslaughter liability applies to one who kills by inaction as well as to one who
[4] The Supreme Court explicitly cabined its consideration of common-law force to
Section 921(a)(33)(A), noting the principle that “a common-law term of art
should be given its established common-law meaning, except where that
meaning does not fit.”
Id
. at 163 (internal quotation marks omitted) (citing
Johnson
,
[5] That these decisions do not address our case is reinforced by the fact that both
parties point to language from our opinion in
Villanueva
, which is apparently
capacious enough to address the issue of crime by omission, but which would
resolve the issue in opposite directions.
Compare Villanueva
,
[6] By contrast, American Jurisprudence states that assault and battery require an overt act. In a section titled “Necessity and scope of overt act for criminal assault or battery,” the treatise states, “[C]ommission of the offense of assault requires an overt act intended to place the victim in fear or apprehension of bodily harm.” Id. § 21 (footnote omitted) (emphasis added) (citing state cases to establish that an overt act is necessary for the commission of assault and battery). “[T]here must be some physical action that, under all the circumstances of the incident, are [sic] sufficient to induce a reasonable apprehension by the victim that physical injury is imminent.” Id. § 23 (emphasis added). We find this discussion of omission in
[1] Particularly puzzling are mandatory consecutive sentences, which almost inevitably mandate injustice. In passing the primary sentence, the sentencing court, heeding the requirements of § 3553(a), will have increased its severity by reason of the very aggravating factors that led Congress to impose a mandatory consecutive supplement. Because of an aggravating factor such as the defendant’s recidivism, or the defendant’s having increased danger to the public by carrying a loaded gun while committing the crime, the court will have increased the severity of the basic sentence as appropriate. (A sentence for the basic offense that failed to do so would fail to comply with the purposes of sentencing.) Congress, however, then requires the court to impose an additional consecutive sentence to account for an aggravating factor that the court has presumably already taken into account. Even in its most benign form, mandatory consecutive sentencing thus mandates double counting of the aggravating factor, and at times the mandatory injustice is even more severe.
[1] New York law defines an “omission” as the “failure to perform an act as to which a duty of performance is imposed by law.” N.Y. Penal Law § 15.00(3). It equates an “omission to perform an act which [a person] is physically capable of performing” with a “voluntary act” for purposes of determining criminal culpability. Id. § 15.10.
[2] Prior to Scott’s two 1988 convictions for first-degree manslaughter, he was convicted, in 1983, of first-degree robbery, see N.Y. Penal Law § 160.15, a crime he committed by holding a 75-year-old man at knifepoint.
[3] The Career Offender Guideline defines “crime of violence” as a federal or state felony crime that,
[5] While it may seem curious to ignore a defendant’s own conduct in determining
whether he has committed a violent felony, the categorical focus is required only
in deciding the applicability of enhancements specifically tied to the elements of
crimes of conviction. Otherwise, as earlier noted, there are no limits on the facts
and circumstances that a sentencing court may consider in deciding what is an
appropriate sentence within the statutory range prescribed by Congress.
See
18
U.S.C. § 3661;
United States v. Cavera
,
[6] The “realistic probability” standard first articulated in
Gonzales v. Duenas-Alvarez,
and reiterated in
Moncrieffe v. Holder
, was there applied to determine aliens’
removability under the Immigration Nationality Act. This court has applied that
standard, and the reasoning of those cases, in the ACCA context.
See United States
v. Hill
,
[7] Trial evidence showed that Lisa Steinberg’s “death was caused by brain trauma
as a result of abuse.”
People v. Steinberg
,
[8] The majority hypothesizes ways in which the mens rea element for first-degree manslaughter might be proved by circumstances not linked to a defendant’s acts of commission. See Majority Op., ante at 16. But Moncrieffe and Hill require more than hypothetical possibilities to demonstrate reasonable probability. They require cases in which defendants were actually prosecuted for first-degree manslaughter in such circumstances. Neither Scott nor the majority identifies any such cases.
[9] While manslaughter in the first degree under N.Y. Penal Law § 125.20(1) requires a defendant, with intent to cause serious physical injury to a person, to cause death, manslaughter in the second degree under N.Y. Penal Law § 125.15(1) requires a defendant recklessly to cause the death of another person.
[10] The majority charges that this reasoning converts the “reasonable probability” standard into one demanding affirmance. See Majority Op., ante at 19. I respectfully disagree. While I hardly think it irrelevant to a realistic probability inquiry whether a state’s highest court upholds or reverses convictions based on an urged non-violent theory of prosecution, the fact is that in neither Steinberg nor Wong was a defendant actually prosecuted for first-degree manslaughter only on a theory of omission.
[11] The majority,
see
Majority Op.,
ante
at 20 n.3, professes puzzlement at my
inability to identify the requisite probability given my observation, in the next
point of this opinion, that it would make no sense for the law to distinguish
between a defendant who sprinkles poison into his victim’s drink, and one who,
with murderous intent, allows a victim to whom he owes a duty of care to imbibe
what the defendant knows is a poisoned drink,
see infra
at 14–16. The puzzle, I
respectfully submit, derives from conflating the realistic-probability and use-of-
force inquiries. The equivalency I draw pertains to the latter inquiry, which asks
whether a defendant has “made” violent force—such as the violent force of poison
on a human body—the “instrument” for achieving his injurious intent.
United
States v. Castleman
,
[12] To the extent this court had earlier expressed a different understanding of the
use of force,
see Chrzanoski v. Ashcroft
,
[13] Because I think
Castleman
leaves no ambiguity about the necessary use of
physical force to commit a homicide crime, there is no reason here for application
of the rule of lenity,
see
Majority Op.
ante
at 30; Concurring Op.,
ante
at 1–8, which,
in any event, is the last rule of statutory construction,
see Shular v. United States
,
140 S. Ct. 779, 787 (2020) (stating that 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
,
[14] The 20 states penalizing such conduct as murder do so under statutes
proscribing either what Professor LaFave refers to as “intent-to-do-serious-bodily-
injury” murder, 2 Wayne R. LaFave, S UBSTANTIVE C RIMINAL L AW § 14.3, at 590 (3d
ed. 2018);
see
Alaska Stat. Ann. § 11.41.110(a)(1); Ariz. Rev. Stat. Ann. § 13-
1104(A)(2); Ark. Code Ann. § 5-10-103(a)(2); 720 Ill. Comp. Stat. 5/9-1(a)(1); La. Stat.
Ann. § 14:30.1(1);
Thornton v. State
,
[15]
See
Conn. Gen. Stat. Ann. § 53a-55; Del. Code Ann. tit. 11, § 632; Ky. Rev. Stat.
Ann. § 507.030;
People v. Townes
,
[16] Aggravated assault generally punishes assaults or batteries where serious
physical injury is caused intentionally, knowingly, or, in some cases, recklessly.
See
2 LaFave § 16.2(d); M ODEL P ENAL C ODE § 211.1(2)(a);
see also United States v.
Delis
,
[17] In so holding, this court specifically rejected one argument urged by Scott on this
appeal: that New York first-degree manslaughter is broader than generic
manslaughter because only the former can be committed by omission.
See United
States v. Castillo
,
[18] In § 6.2 of the LaFave treatise, entitled “Omission to Act,” the author cites numerous state statutes and case decisions making plain that criminal liability generally can be based on either commission or omission. There is no reason to