*1 In the
United States Court of Appeals for the Second Circuit A UGUST T ERM 2020 No. 18-163-cr
U NITED S TATES OF A MERICA , Appellant ,
v. G ERALD S COTT , Defendant-Appellee.
On Appeal from the United States District Court for the Southern District of New York A RGUED E N B ANC : N OVEMBER 6, 2020 D ECIDED : M ARCH 2, 2021 Before: L IVINGSTON , Chief Judge , L EVAL , C ABRANES , P OOLER , K ATZMANN , R AGGI , C HIN , L OHIER , C ARNEY , S ULLIVAN , B IANCO , P ARK , N ARDINI , and M ENASHI , Circuit Judges . [*]
___________
[*] 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 28 U.S.C. § 46(c) and 28 U.S.C. § 294(c).
R AGGI , J. , filed the majority opinion in which L IVINGSTON , C.J. , C ABRANES , C HIN , S ULLIVAN , B IANCO , P ARK , and N ARDINI , JJ. , joined in full, and in which M ENASHI , J. , joined in part.
P ARK , J. , filed a concurring opinion in which L IVINGSTON , C.J. , C ABRANES , S ULLIVAN , and N ARDINI , JJ. , joined.
M ENASHI , J. , filed an opinion concurring in part and concurring in the judgment.
L EVAL , J. , filed a dissenting opinion in which K ATZMANN , L OHIER and C ARNEY , JJ. , joined in full, and in which P OOLER , J. , joined in part.
P OOLER , J. , filed a dissenting opinion in which L EVAL and C ARNEY , JJ. , joined as to Parts I–IV.
The United States appeals from an amended judgment entered
pursuant to 28 U.S.C. § 2255 in the United States District Court for the
Southern District of New York (Swain,
J.
), which vacated defendant’s
22-year sentence for Hobbs Act robbery and related firearms crimes
and resentenced him to time served (approximately 11 years, 3
months). The district court concluded that it had mistakenly applied
the Armed Career Criminal Act (“ACCA”),
see
18 U.S.C. § 924(e)(1),
and the Career Offender Guideline,
see
U.S.S.G. § 4B1.1, in
determining Scott’s initial sentence because two prior convictions
relied on as predicates for those enhancements were for New York
first-degree manslaughter,
see
N.Y. Penal Law § 125.20(1), which the
district court ruled is not a categorical “violent felony” (ACCA) or
“crime of violence” (Guideline). The district court reasoned that first-
degree manslaughter does not satisfy these terms’ “force clauses”
because it is possible to commit that homicide crime by “omission,”
i.e.
, by failing to act when one has a duty to do so,
see id.
§ 15.00(3).
*3
The United States argues that first-degree manslaughter is a
categorical violent felony/crime of violence because a person can be
guilty of that crime—whether by commission or omission—only if he
(a) causes death, while (b) intending to cause at least serious bodily
injury,
see id.
§ 125.20(1), and the Supreme Court has stated that “the
knowing or intentional causation of bodily injury necessarily involves
the use of physical force,”
United States v. Castleman
,
R EVERSED in part, V ACATED in part, and R EMANDED .
W ON S. S HIN (Catherine E. Ghosh, on the brief ), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellant.
M ATTHEW B. L ARSEN , 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; *4 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 . R EENA R AGGI , Circuit Judge , joined by Debra Ann Livingston, Chief Judge , José A. Cabranes, Denny Chin, Richard J. Sullivan, Joseph F. Bianco, Michael H. Park, William J. Nardini, Circuit Judges , and joined in part by Steven J. Menashi, Circuit Judge .
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 N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity. At issue on this appeal is *5 whether Scott’s manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott’s conduct. But the laws relevant here—the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a)—do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted. This inquiry focuses on a crime’s elements, asking whether they categorically require a defendant’s use of physical force, specifically violent physical force. See Curtis Johnson v. United States , 559 U.S. 133, 140, 144 (2010) (defining physical force required by ACCA). Applying that standard here, we conclude that first-degree intent to cause the death of another person, he causes the death of such person or of a third person[.]”).
New York’s first-degree manslaughter statute,
id.
§ 125.20, is divisible into
its enumerated parts.
See United States v. Castillo
,
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) (emphasis added).
The Career Offender Guideline defines a “crime of violence” as a federal or state felony that,
manslaughter is a categorically violent crime because its elements— (1) the causation of death (2) by a person intent on causing at least serious physical injury—necessarily involve the use of violent force.
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 28 U.S.C. § 2255 motion to vacate his
original 22-year sentence.
See United States v. Scott
, No. 06 CR 988-
LTS,
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) (emphasis added).
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.
thus without using force.” Id. at *2 (emphasis added). A divided panel of this court agreed, with the majority analogizing omission to “complete inaction,” and concluding therefrom that the crime could be committed without the use of force. See United States v. Scott , 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter “not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force”).
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 N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter). We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.
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 *8 serious physical injury, the crime necessarily involves the use of physical force.
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
,
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 New York Penal Law § 125.20(1) is a violent crime is a question that here arises in the context of determining the appropriate sentence for Scott’s latest conviction for three federal crimes to which he pleaded guilty: *10 attempted Hobbs Act robbery, see 18 U.S.C. § 1951; brandishing a firearm during that robbery, see id. § 924(c)(1)(A)(ii); and, at the same time, being a previously convicted felon in possession of a firearm, see id. §§ 922(g)(1), 924(e). Scott committed these crimes on September 26, 2006, when he 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 only by the fortuitous intervention of a police officer.
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 N.Y. Penal Law § 160.15, during which crime he held a 75-year-old man at knifepoint. Then, in 1988, Scott was twice convicted of New York first-degree manslaughter. See id. § 125.20(1). On one occasion, he fatally shot the victim in the head at point-blank range. On the other occasion, he stabbed the victim to death.
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 18 U.S.C. § 3553(a)(1) (stating that court, in determining sentence “shall consider,” inter alia , “the history and characteristics of the defendant”); id. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). That history was relevant, at a minimum, to assessing the seriousness of Scott’s most recent crimes. It was also relevant to the *11 likelihood of his committing future crimes, and to the danger—life- threatening danger—that might be posed to innocent persons from such crimes. See id. § 3553(a)(2)(A), (C).
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.” U.S.S.G. § 4B1.1(a). [6] Similarly, to impose ACCA’s fifteen-year mandatory minimum sentence for Scott being a felon in possession of a firearm, the court had to find that he had three or more prior “violent felony” or “serious drug offense” convictions. 18 U.S.C. § 924(e)(1). [7]
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, *12 2008, the district court sentenced Scott to a total prison sentence of 22 years. This sentence, at the bottom of Scott’s Career Offender enhanced 264-to-327 month Guidelines range, reflected the ACCA- mandated 15-year term on the felon-in-possession count, a concurrent 15-year term for the attempted Hobbs Act robbery count, and a separately-mandated consecutive 7-year term for brandishing a firearm. See 18 U.S.C. § 924(c)(1)(A)(ii). Scott’s direct appeal from this conviction was dismissed as untimely in 2012. See United States v. Scott , No. 10-3689 (2d Cir. Dec. 19, 2011), ECF No. 63. Section 2255 Vacatur and Resentencing
B.
In 2016, with this court’s leave, Scott filed a collateral challenge
to his sentence pursuant to 28 U.S.C. § 2255, arguing that the ACCA
and Career Offender Guideline enhancements were mistakenly
applied. Scott did not—and could not—dispute that his robbery
conviction was a violent-crime predicate under ACCA and the Career
Offender Guideline.
See Stuckey v. United States
,
The government disputed only the first point. The district
court, however, agreed with Scott, ruling that first-degree
manslaughter is not a categorical violent felony because it can be
committed “by an act of omission, which by definition does not
involve an act of any kind, let alone the use of force.”
United States v.
Scott
,
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.” U.S.S.G. § 4B1.2(a)(2) (quoted supra note 2). Recalculating Scott’s Guidelines range without the Career Offender enhancement as 121 to 130 months, the district court imposed an amended sentence of time served, which then amounted to approximately 135 months, or 11 years and 3 months.
On the government’s appeal, a divided panel affirmed.
Identifying an “omission” as the minimum criminal conduct required
*14
for first-degree manslaughter,
United States v. Scott
,
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
,
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 Fed. R. App. P. 35(a).
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
,
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
*16
those elements require[] . . . render[] conviction for that conduct a
‘violent [crime]’ under federal law.”
Villanueva v. United States
, 893
F.3d at 129. This process triggers a categorical inquiry to determine
the minimum criminal conduct necessary to satisfy the elements of a
crime, without regard to whether the defendant himself engaged in
more egregious conduct.
See United States v. Stitt
,
II. Prosecuting First-Degree Manslaughter by “Omission”
The two elements of first-degree manslaughter are readily identified in the text of N.Y. Penal Law § 125.20(1). The first element—which identifies the applicable mens rea —requires that a *17 defendant “inten[d] to cause serious physical injury to another person,” id. , that is, “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” id. § 10.00(10) (defining “serious physical injury”). The second element—which identifies the actus reus —requires that a defendant, possessed of such seriously injurious intent, in fact “cause[] the death” of either the person he intended to injure or a third person. Id. § 125.20(1).
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.”
Id.
§ 15.00(3). The district court went on to
conclude—as Scott now urges this court to do—that a crime that can
be committed by omission, even a homicide crime committed with
specific injurious intent, is not categorically violent because “omission
. . . by definition does not involve an act of any kind, let alone the use
of force.”
United States v. Scott
,
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
,
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
,
Scott points to three New York State cases to satisfy his
threshold burden:
People v. Steinberg
,
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.” N.Y. Penal Law § 125.20(1). As these elements indicate, a defendant need not intentionally cause death to be guilty of this homicide crime. But he must cause death while intending to cause serious physical injury, i.e. , injury that “creates a substantial risk of death,” or that, in fact, “causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Id. § 10.00(10). To do that, a defendant must use violent force.
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 *22 serious physical injury. A defendant possessed of such intent can only achieve that object by using violent force. Thus, it is when violent force that a defendant was using to cause intended serious injury results, instead, in death that the law recognizes the defendant to have caused that death and, therefore, to have committed first-degree manslaughter. In sum, the causation element of first-degree manslaughter, considered in light of the crime’s mens rea element, requires that, in every case, a defendant’s knowing and intentional use of violent force be the cause of death.
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
,
As the Supreme Court has recognized, these quoted definitions
are expansive, indicating that when Congress employs the word
“use” in a statute, its intent is to “sweep[] broadly” and not to cabin
legislation only to those uses “that most immediately come[] to mind”
or that manifest a defendant’s “active[],”
i.e.
, physical, use.
Smith v.
United States
,
at 42–44).
See also United States v. Castleman
,
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
,
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
,
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
,
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 *27 omission the victim would not have died”). Thus, it was by breaching that duty that the defendant was able to make use of the unchecked force, to avail himself of it, to derive service from it in carrying out his own injurious purpose. Such a breach of duty may require no physical action by a defendant, but it is culpable action in the eyes of the law. Specifically, such an omission is the action that causes death by the use of violent force. And so, whether committed by omission or commission, first-degree manslaughter is a categorically violent crime because its elements necessarily require a defendant’s knowing and intentional use of the violent force that produces death.
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.”
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 18 U.S.C. § 921(a)(33)(A).
See id.
§ 922(g)(9) (federally
prohibiting firearm possession by person with conviction for such
misdemeanor crime). The district court concluded that the state law
did not have a force element because a person could “cause bodily
injury without violent contact—for example, by deceiving the victim
into drinking a poisoned beverage.”
United States v. Castleman
, 572
U.S. at 161–62 (brackets and internal quotation marks omitted). The
Sixth Circuit agreed, but for a different reason: the state law
*28
proscribed the causation of even “slight, nonserious physical injury,”
which could be accomplished with something less than “physical
force” as construed in
Curtis Johnson v. United States
,
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 *29 Court stated that the “use of force” in the poisoning scenario “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.” Id. (emphasis added) (brackets and internal quotation marks omitted). [19]
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,”
Second, it is a defendant’s knowing employment of violent force as a device to cause intended physical harm that establishes his “use.” In other words, a defendant’s “use” of violent force depends on his knowing or intentional causation of bodily injury, not on his own physical movements.
Because the only “consequence” for a victim of New York first-
degree manslaughter is death (the ultimate physical injury),
Villanueva v. United States
,
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 *31 instrument.” Id. at 170–71 (internal quotation marks omitted); see supra at 22–24 (discussing ordinary meaning of “use”). Indeed, this court has already effectively recognized that crimes committed by omission can be categorically violent. See United States v. Hill, 890 F.3d at 58–59 (rejecting argument that threatening to withhold vital medicine would not threaten use of physical force). And, as we noted at the outset, six of seven courts of appeals to have considered the question agree. See supra note 5.
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.
C. Scott’s Contrary Arguments Do Not Persuade 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. Castleman ’s Reasoning Applies to the ACCA and
1. 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 *33 provides no persuasive reason for us to depart from this view now as to either the ACCA or Career Offender Guideline force clause.
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. 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.
n.15 [3d Cir.] (declining to extend Castleman to ACCA context, although recognizing this court to have done so in Villanueva based on Castleman ’s focus on causation); supra note 5 (discussing Third Circuit’s en banc review of issues in Mayo ). We need not here decide if the crimes at issue in Castleman , see Tenn. Code Ann.
§ 39-13-111(b) (proscribing assault—defined in relevant part as “[i]ntentionally[ or] knowingly . . . caus[ing] bodily injury to another,” id. § 39-13- 101(a)(1)—against a “domestic abuse victim”), and Villanueva , see Conn. Gen. Stat. § 53a-59(a)(1) (proscribing intentional causation of “serious physical injury to another person . . . by means of a deadly weapon or a dangerous instrument”), can ever be committed by omission because even a negative answer makes no difference to our analysis.
To explain, the law always requires some “act” by a defendant to commit a crime. That is because our system of justice does not punish a person merely for “[b]ad thoughts.” 1 LaFave §§ 6.1, 6.1(b), at 568, 570–71. But the “act” required by law is not dependent on a defendant’s physical movements. Rather, the law recognizes that a person can also “act” to commit a crime by failing to perform a legal duty. See id. §§ 6.1(a)–(e), 6.2; see also 1 Charles E. Torcia, Wharton’s Criminal Law § 25, at 139 (15th ed. 1993) (stating that, to be criminally liable, defendant must engage in “conduct,” which “means an act or omission”). Such an “act of omission,” sometimes referred to as a “negative act,” Act , Black’s Law Dictionary (11th ed. 2019), cannot, then, be dismissed as “inaction” or “literally no conduct,” as Scott urges, Appellee Br. at 14. Much less can an omission be characterized as “not involv[ing] an act of any kind,” United States v. Scott , 2017 WL 2414796, at *2, or “no action at all,” Pooler, J. , Dissenting Op., post at 1. To the contrary, in the eyes of the law, a “failure to act where there is a duty to act is the equivalent of affirmative action ” for purposes of identifying criminal culpability. 2 LaFave § 15.4(b), at 717 (emphasis added). See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012) (explaining need to consider “specialized meaning” that law may give to certain words, e.g. , “presumption that person in legal instruments denotes a corporation and other entity, not just a human being” (emphasis in original)).
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 id. § 2.01(1) (stating that “person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or . . . omission”), and the enacted laws of *35 most states. Thus, as relevant here, New York’s Penal Law states that, “‘[t]o act’ means either to perform an act or to omit to perform an act.” N.Y. Penal Law § 15.00(5). With respect to the former, New York defines a “[v]oluntary act” as “a bodily movement performed consciously as a result of effort or determination.” Id. § 15.00(2). With respect to the latter, New York defines “omission” as “a failure to perform an act as to which a duty of performance is imposed by law.” Id. § 15.00(3). But for purposes of satisfying the act requirement for criminal culpability, New York equates the two: “The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” Id. at § 15.10.
In construing ACCA’s force clause, we are mindful that its
purpose 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
*36
assume that when Congress amended ACCA to add the force clause,
[26]
it was aware of these background principles recognizing that the
elements of a crime—including the causation elements of crimes such
as murder and manslaughter—can be satisfied by acts of omission as
well as acts of commission.
See Samantar v. Yousuf
,
To the extent Scott equates omission with inaction in order to
argue that
Chambers v. United States
,
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
,
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
*38
use of force. In support, he invokes (1)
Curtis Johnson
’s definition of
physical force to mean “active power; vigor,”
Curtis Johnson v. United
States
, 559 U.S. at 139 (internal quotation marks omitted); (2)
Castleman
’s reference to “the
act
of employing” force,
United States v.
Castleman
,
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 “physical 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.
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
*39
particular force depends not on his own performance of any
particular physical act but, rather, on “the act of employing [physical
force] knowingly as a device to cause physical harm.”
United States v.
Castleman
,
As for
Villanueva
’s reference to “
initiating
, however gently, a
consequence,”
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 18 U.S.C. § 924(c)(1). See 516 U.S. at 148–50. The Court there observed that the ordinary meaning of the word “use” implied “action and implementation,” judgment) (internal quotation marks omitted). Rather, we assume that statement applies to first-degree manslaughter, whether a defendant acts by commission or omission. While our dissenting colleague faults the en banc court for “shifting the focus of
‘[use of ]force’ from the defendant’s conduct to the victim’s injury,” Pooler, J. , Dissenting Op., post at 11, in fact, we simply follow Castleman as already correctly construed by this court in Villanueva.
which, in the context of § 924(c), connoted activity beyond mere possession of a gun. Id. at 145. The Court explained that reading “use” to reach possession, even to protect drugs or to embolden the defendant, would leave “no role . . . for ‘carry’” in the statute. Id. It stressed, however, that “use” did encompass a defendant who “has a gun on display during a [drug] transaction.” Id. at 146.
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 of 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
,
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 18 U.S.C. § 16(a), [32] the Court stated:
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.
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. Rather, the crime demands more: a defendant must *44 cause death while specifically intending to cause at least serious physical injury to another person. Under the reasoning in Leocal , Voisine , and Castleman , such a defendant “actively employs” physical force in committing the crime.
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
,
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
*45
States v. Bass
,
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 § 921(a)(33)(A)’s force clause.
See United States v. Castleman
,
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 *46 requiring a defendant’s own performance of a physical act. Indeed, such a requirement would be curious rather than expected given the law’s recognition that a crime’s elements, including the causation elements of homicide crimes such as murder and first-degree manslaughter, can be satisfied by omission. As we have already discussed, an omission, i.e. , the breach of a legal duty to act, is an “action” sufficient to support criminal culpability, even if it does not involve any physical movement by a defendant. See supra at 33–36.
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
,
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
,
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
*48
force indirectly,
see United States v. Castleman
, 572 U.S. at 170–71;
Villanueva v. United States
,
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- of a criminal statute” (emphasis added)); Securities & Exch. Comm’n v. Rosenthal , 650 F.3d 156, 162 (2d Cir. 2011) (rejecting contention that plaintiff’s urged interpretation avoided absurdity, observing “that it is the [plaintiff’s] interpretation that can lead to absurd results”).
degree manslaughter situations is not whether the defendant engaged
in a physical act in causing a victim’s death. What matters is that, in
each scenario, the defendant caused death while intending to cause at
least serious physical injury. It is that “knowing or intentional
causation of bodily injury [that] necessarily involves the use of
physical force.”
United States v. Castleman
,
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
U.S.S.G.
§ 4B1.2(a)(2) (defining “crime of violence” as felony that “is murder,
voluntary manslaughter, kidnapping, aggravated assault, a forcible
sex offense, robbery, arson, extortion, or the use or unlawful
possession” of certain firearms and explosive material). The Supreme
*50
Court has explained that the enumerated offenses are to be given their
“generic” meanings,
see Taylor v. United States
,
The government contends that New York first-degree manslaughter is generic voluntary manslaughter because 28 states punish the conduct proscribed by N.Y. Penal Law § 125.20(1) as either murder (20 states [38] ) or the lesser-included offense of voluntary manslaughter (8 states [39] ). In any event, the government submits that *51 a majority of states punish the conduct, at minimum, as aggravated assault. [40]
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 *52 point is now vacated, and our dissenting colleague’s efforts to defend it confer no weight. See Pooler, J. , Dissenting Op., post at 29–34. We need not ourselves decide the question because we hold Scott’s first- degree manslaughter convictions to be for violent crimes under the ACCA and Career Offender Guideline force clauses. See United States v. Tabb , 949 F.3d 81, 83 n.3 (2d Cir. 2020) (“Because [New York] attempted assault in the second degree . . . qualifies as a crime of violence under the [Guideline’s] Force Clause, we need not determine whether it would also meet the enumerated offenses clause definition of a crime of violence.”).
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 New York Penal
Law § 125.20(1) is categorically a “violent felony” under ACCA and a
“crime of violence” under the Career Offender Guideline because the
crime’s elements require the “use . . . of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1).
Specifically, the elements require that a defendant (1) cause death
while (2) intending to cause at least serious physical injury, and the
*53
Supreme Court has stated that the “knowing or intentional causation
of bodily injury necessarily involves the use of physical force,”
United
States v. Castleman
,
(2) The possibility of committing New York first-degree manslaughter by omission warrants no different conclusion because
(a) 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); (b) the ordinary meaning of “use” applies as much to a use of physical force by omission as by commission; and (c) precedent holds that
(i) 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 (ii) 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.
Accordingly, we VACATE the panel decision, REVERSE the district court’s grant of Scott’s § 2255 motion, VACATE the sentence reflected in the amended judgment, and REMAND the case to the district court with directions to reinstate Scott’s original sentence and judgment.
P ARK , Circuit Judge , joined by L IVINGSTON , Chief Judge , C ABRANES , S ULLIVAN , and N ARDINI , Circuit Judges , concurring:
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,
*56
and it produces absurd results.” (citations omitted));
United States v.
Battle
, 927 F.3d 160, 163 n.2 (4th Cir. 2019) (Quattlebaum,
J.
)
(“Through the
Alice in Wonderland
path known as the ‘categorical
approach,’ we must consider whether Battle’s assault of a person with
the intent to murder is a crime of violence. While the answer to that
question might seem to be obviously yes, it is not so simple after
almost 30 years of jurisprudence beginning with
Taylor
.”);
United
States v. Escalante
,
M ENASHI , Circuit Judge , concurring in part and concurring in the judgment:
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,” 18 U.S.C. § 924(e)(2)(B)(i), even though it may be committed by omission.
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. 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 *60 “no physical action” but his conduct is nevertheless “ culpable action in the eyes of the law” because the law deems it to be “the action that causes death by the use of violent force.” Id. at 26-27. The law thereby considers the defendant to use force when he “knowingly avails himself of the violent force that results in death.” Id. at 30.
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 *61 speaker of English might assume that a “use of physical force” entails a physical act, the legal meaning of the phrase includes omissions because the law treats an omission the same as a physical act, and we properly assume that Congress is familiar with that legal background when it legislates. I would not collapse the distinction between the ordinary meaning and the legal meaning because the distinction has important implications for how the categorical approach is applied.
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 18 U.S.C. § 924(e)(2)(B)(i) cannot be determined from reading the term “use” in isolation from the statutory phrase “use … of physical force.” A few “words together may assume a more particular meaning than those words in 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 W M . & M ARY L. R EV . 1321, 1326 (2018) (“A document written in the language of the law … contains both ordinary language and legal language.”); A NTONIN S CALIA , Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws , in A M ATTER O F I NTERPRETATION : F EDERAL C OURTS A ND T HE L AW 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. H ART , Definition and Theory in Jurisprudence , in E SSAYS IN J URISPRUDENCE AND P HILOSOPHY 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.”).
isolation,”
FCC v. AT&T Inc.
,
Second, the ordinary meaning of a phrase is just that: the
meaning associated with the
ordinary
or
prototypical
use of the phrase
*63
rather than any meaning that is
linguistically possible
.
See, e.g.
,
Chisom
v. Roemer,
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 *64 would adhere to the principle that the “ordinary meaning” of a term is its prototypical meaning rather than a possible meaning.
In
Smith v. United States
, 508 U.S. 223 (1993), on which the
court’s opinion relies, the Supreme Court arguably departed from this
principle and relied on possible meanings.
See id.
at 242 (Scalia, J.,
dissenting) (“The Court does not appear to grasp the distinction
between how a word
can be
used and how it
ordinarily
is used.”).
[10]
Indeed, Justice Scalia pointed to
Smith
to illustrate “a degraded form
of textualism that brings the whole philosophy into disrepute.”
[11]
I
would not extend
Smith
’s conception of “ordinary meaning” to the
circumstances of this case. The Supreme Court has limited the reach
of
Smith
,
see Watson v. United States
,
‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e. , as a weapon.”). S CALIA , supra note 3, at 23 & n.30; see also id . at 24 (“[T]he good textualist is not a literalist.”).
“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
*66
applicable precedent treats a defendant’s knowing causation of
bodily injury as a use of physical force.
[14]
Once we acknowledge, as all
parties here must, that when a defendant “sprinkles poison in a
victim’s drink,” the “‘use of force’ … is not the act of ‘sprinkling’ the
poison” but is “the act of employing poison knowingly as a device to
cause physical harm,”
Castleman
,
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 to commit a crime by failing to perform a legal duty.”) (citing 1 W AYNE R. L A F AVE , S UBSTANTIVE C RIMINAL L AW §§ 6.1(a)-(e), 6.2 (3d ed. 2018); 1 C HARLES E. T ORCIA , W HARTON ’ S C RIMINAL L AW § 25 (15th ed. 1993)); see N.Y. Penal Law § 15.00(5) (“‘To act’ means either to perform an act or to omit to perform an act.”); id. § 15.00(3) (defining “omission” as “a failure to perform an act as to which a duty of performance is imposed by law”); id. § 15.10 (“The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.”); see also ante at 35 n.25. Ante at 29 (“[F]ollowing 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.’”) (quoting
Villanueva v. United States
,
T HE I NTERPRETATION OF L EGAL T EXTS 73 (2012)).
understanding. [16] When interpreting the ACCA, moreover, the Supreme Court has emphasized the common law background against which Congress legislates. [17] As the court notes, the legal treatment of omissions as culpable acts is rooted in the common law. [18]
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 Recognizing the distinction between ordinary and legal meaning can reduce the “absurdity” or “inconsistent results” that sometimes afflict applications of the categorical approach. Ante (Park, J., concurring) at 1. Interpretative consistency helps to prevent absurd results.
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. N.Y. Penal Law § 125.20(1). At oral argument, Scott’s counsel acknowledged that one would not conclude, based on the ordinary meaning of the state statute, that it could be violated by omission. As the court explains, Scott’s argument relies on the “specialized meaning” or “legal definition” of the terms of the state statute to conclude that first- degree manslaughter may be committed by omission, but his argument then shifts to the ordinary meaning when interpreting the language of the ACCA to exclude manslaughter by omission from the a part; so that, without a discernment of the original mass, one can form no correct idea of the action of the new element.”). Tr. of Oral Arg., Nov. 6, 2020, at 80 (“[W]hen New York law deems the
inaction the cause of death, that’s a kind of legal fiction. It’s by operation of law. Because we know the actual cause of death is the heart attack or the asthma attack or what have you. But the reason that we as a society hold the caregiver responsible for that and therefore deem him the cause is that he has a duty to act, and [he] … didn’t act.”); Oral Arg. Audio Recording at 1:53:49.
category of violent felonies. Ante at 25. The court faults Scott for offering “no rationale” for applying inconsistent interpretive approaches “at different steps in the categorical analysis.” Id.
The district court also relied on these inconsistent interpretive approaches to the state statute and the ACCA. To conclude that first- degree manslaughter under section 125.20(1) of the New York Penal Law may be committed by omission, one must read “causes the death” in accordance with a legal meaning established by reference to legal principles and precedents external to the statutory text. But to conclude that the phrase “use … of physical force” excludes crimes committed by omission from the definition of “violent felony,” the district court applied only the ordinary meaning of the phrase while ignoring the legal principles and precedents that show it encompasses *70 crimes of omission. [22] That interpretive mismatch—reading the state statute in accordance with its legal meaning but the ACCA in accordance with its ordinary meaning—determined in advance that the state statute would not be a categorical match under the ACCA’s force clause.
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
,
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.
LEVAL, Circuit Judge , dissenting, joined by KATZMANN, LOHIER, and CARNEY, Circuit Judges , and joined in part by POOLER, Circuit Judge.
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
,
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
,
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 *74 notice, and how deserving he is of substantial punishment. If our concern were limited to the effect of the majority ruling on Scott himself, I would not disagree in the least that his conduct warrants severe punishment. (If the majority had found the sentence ultimately imposed on him by the District Court to be unreasonably lenient and had remanded for imposition of a more severe discretionary sentence, I would have no objection and might even concur.) But the appropriateness of imprisoning Scott for 15 years does not make 15 years an appropriate or fair sentence for everyone who will come within ACCA’s scope on the basis of a New York first-degree manslaughter conviction. When a court interprets a statute, especially a statute that imposes a mandatory sentence, the court cannot limit its consideration to the effect of the statute on the particular litigant before the court. Because the issue here is a mandatory sentence, the most significant effect of the majority opinion is not that it requires a small increase in Scott’s already substantial punishment, nor that it will mandate a long term of imprisonment for deserving future defendants (who regardless would receive severe, substantially similar terms), but rather that it will require a 15-year imprisonment of defendants for whom a sentence of such harshness will be unjust and for whom the statute does not give fair notice.
The ambiguity that justifies invocation of the rule of lenity in this case is
that ACCA’s definition of a “violent felony” (an essential element of one of the
pathways to satisfaction of the statutory requirements) does not clearly cover all
of the ways in which the New York crime of first-degree manslaughter can be
committed. As thoroughly explained by Judge Pooler, the highest court of New
York has made unmistakably clear that manslaughter can be committed by doing
nothing when the defendant had a legal duty to protect the victim and the
defendant’s inaction was motivated by the intention to cause serious physical
injury.
See People v. Steinberg
,
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.
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 *77 against the person of another” unambiguously give “fair warning,” as the Holmes formulation requires, that it covers not supplying nourishment? I think not. Many, furthermore, would think it a barbaric abuse to sentence the daughter to imprisonment for 15 years.
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 the 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 *78 from brutal beatings poses very different considerations from the sentencing of one who committed a contract killing for pay, or shot a stranger to death in order to steal his Porsche. A statute that mandates the same sentence for all of these will fail to do justice.
The basic federal sentencing statute, 18 U.S.C. § 3553, recognizes the fact- dependent nature of sentencing. It requires courts 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 (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant.” Id. § 3553(a)(2). In what is called the “parsimony clause,” it further requires courts to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing. Id. § 3553(a).
Harsh mandatory sentences require courts to disregard or violate the wise
commands of § 3553.
Cf. United States v. Ministro-Tapia
,
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
*80
sentencing is done by well qualified judges who, as required by law, study the
facts of the case and, when permitted to do so, decide on an appropriate sentence
pursuant to the detailed standards of § 3553. Because most instances of serious
crimes appropriately call for substantial sentences, in the vast majority of cases
the sentencing judge will impose a sentence of substantial severity, one that is
not significantly different from the one mandated by the legislature, without
need for a mandatory sentencing statute. This is because the judges have the
same interest as the legislature in carrying out the purposes of the criminal laws.
And in the rare case in which a sentencing judge imposes a sentence that is
unreasonably lenient in light of the pertinent circumstances, the government may
appeal to have a substantively unreasonable sentence set aside.
[3]
See United States
v. Ramos
,
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
,
Turning now to the question whether New York first-degree manslaughter
is a “crime of violence” for purposes of the “career offender” provision of
U.S.S.G. § 4B1.1(a), I do not join in Judge Pooler’s conclusion that it is not,
although I recognize that the Guidelines definition of “crime of violence” is
identical to ACCA’s definition of “violent felony” – as involving “the use,
attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1). Are my positions inconsistent? I
do not think so. The significant difference is that the United States Sentencing
Guidelines, unlike ACCA’s requirement of a mandatory minimum sentence, do
not compel adherence to their terms.
See United States v. Booker
,
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.
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 serious injustices without any significant benefit to the realization of the objectives of the criminal law.
*84 * * * 1
POOLER, Circuit Judge , dissenting, joined by LEVAL and CARNEY, Circuit Judges , in Parts I-IV:
I respectfully dissent. The majority concludes that New York Penal Law Section 125.20(1), which criminalizes causing an individual’s death “[w]ith intent to cause serious physical injury,” N.Y. Penal Law § 125.20(1), is a violent felony within the so-called force clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i), notwithstanding that Section 125.20(1) punishes the failure to act in the face of a duty to do so. I disagree. I also conclude that Scott fails to qualify as a “career offender” under the United States Sentencing Guidelines (“Guidelines”), as defined by either the force clause or the so-called enumerated offenses clause. See U.S.S.G. § 4B1.2(a)(1)-(2).
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
ACCA. At the outset, I address whether New York Penal Law Section 125.20(1) may be committed by omission. As the categorical approach instructs, we must determine the legally minimal conduct required for a defendant to be culpable for a particular crime, disregarding what the defendant factually did. We consider only “realistic” readings of the criminal statute and require a defendant to “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.” United States v. Hill , 890 *87 F.3d 51, 56 (2d Cir. 2018) (alterations and internal quotation marks omitted). Scott did just that.
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.”
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 *89 felony,” that is, a crime that involves “the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
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.”
Id.
The Supreme Court has explained that this
phrase refers to the degree of force used in the execution of a crime.
See Johnson v.
United States
,
Because Section 125.20(1) manslaughter may be committed by omission— e.g., intentionally refusing to obtain medical attention for a child who is experiencing an unprovoked serious medical condition—it fails to reach the threshold of great force, power, and violence set forth in Johnson . Indeed, Johnson held that even a Florida felony offense of battery, which criminalized “actually and intentionally touching” someone against their will, id. at 138 (internal quotation marks omitted), was not the type of violent, powerful predicate crime contemplated by the ACCA. Where even minimal touching does not qualify as relevant conduct, certainly, omission—definitionally, inaction—does not, either. *91 Therefore, Scott’s prior convictions do not subject him to the ACCA’s mandatory minimum.
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.”
In Castleman , the Supreme Court contemplated whether a Tennessee crime of intentionally or knowingly causing bodily injury qualified as “a misdemeanor *92 crime of domestic violence” under 18 U.S.C § 922(g)(9). Id. at 159 (internal quotation marks omitted). The Court explained that “perpetrators of domestic violence are routinely prosecuted under generally applicable assault or battery laws,” suggesting that Congress intended to include “the type of conduct that supports a common-law battery conviction” under the category of “misdemeanor crime of domestic violence.” Id. at 164 (internal quotation marks omitted). The Court therefore embarked on defining a “ misdemeanor-specific meaning of ‘force’.” Id. (emphasis added). The phrase “domestic violence,” unlike “violent felony,” does not connote “a substantial degree of force.” Id. at 164-65 (internal quotation marks omitted). Instead, the very nature of domestic violence often involves an escalating pattern of “seemingly minor” acts of violence, “the accumulation” of which “over time can subject one intimate partner to the other’s control.” Id. at 166. The Supreme Court emphasized that it is within this context of the peculiar nature of domestic violence that less forceful acts, such as common-law battery, qualify as a predicate crime under Section 922(g). The Castleman opinion carefully separated itself from the statutory context of Johnson . See id. at 163-67. Justice Scalia, who wrote the majority opinion in Johnson , concurred in part in Castleman , expressing concern that this splintered *93 understanding of “physical force” would muddy the waters and arguing that applying the Johnson understanding of force would have sufficed. See id. at 174- 83. In doing so, Justice Scalia reaffirmed that, within the context of Section 924(e)(2)(B)(i)—the statute at issue here—“physical force [still] means violent force.” Id. at 176 (italics and internal quotation marks omitted). Nothing within the Castleman opinion suggests that the one line on which the government and the majority rest their conclusions was meant to abrogate, or even affect, Johnson ’s interpretation of “violent felony.” Indeed, the Castleman Court explicitly stated that it “d[id] not reach” the general issue of “[w]hether or not the causation of bodily injury necessarily entails violent force.” Id. at 167.
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.”
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
,
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. 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 *96 each other, they are distinct elements. “It is commonly stated that a crime consists of both a physical part and a mental part; that is, both an act or omission (and sometimes also a prescribed result of action or omission, or prescribed attendant circumstances, or both) and a state of mind.” 1 W AYNE R. L A F AVE , Substantive Criminal Law § 5.1 (3d ed. 2020) [hereinafter “L A F AVE ”]. The ACCA and Johnson specify that Section 924(e)(2)(B)(i) reaches a particular subset of crimes, those that involve a violent and forceful physical component, or actus reus. But the majority believes that an intent to kill or seriously injure—the mens rea—necessarily involves a violent physical act—the actus reus. This is simply not true.
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. Suppose the guardian had been long *97 contemplating how to eliminate the child. The child inadvertently consumes a dangerous food, through no act of the guardian, and the guardian watches the child die or collapse instead of calling for medical assistance, taking advantage of an unprovoked but dangerous situation. Although the guardian did so with the intent to cause harm, the guardian also physically did not do anything to facilitate the tragic end. This is not to say that the guardian’s actions are not abhorrent or legally culpable. Indeed, by the New York Court of Appeals’ rulings, the guardian would likely be guilty of first-degree manslaughter and be punished accordingly. However, the guardian did not engage in a physically violent act or use “a substantial degree of force.” Johnson , 559 U.S . at 140 (internal quotation marks omitted). This does not mean the guardian would never be convicted for the death of the ward or that the guardian may not spend several years in prison for it. It means that, later, should the guardian be guilty of federal charges, the federal sentencing court would not be able to count this particular conviction as one of the three predicate crimes needed to impose the fifteen-year mandatory minimum articulated in 18 U.S.C. § 924(e).
Next, the majority conflates “action” with legal liability and culpability. The law does not view inaction as action; that would be physically and factually *98 impossible. However, the law creates culpability in both situations. While the law, and society, hold both active and passive criminals culpable, it is through different mechanisms and distinct theories. LaFave explains: “Most crimes are committed by affirmative action rather than by non-action. But there are a number of statutory crimes which are specifically defined in terms of failure to act; and other crimes which, though not specifically so defined, may be committed either by affirmative action or by failure to act under circumstances giving rise to a legal duty to act.” L A F AVE § 6.2. Moreover, New York, like many other states, separately defines the terms “omission” and “act.” See N.Y. Penal Law § 15.00 (defining “[a]ct” as “a bodily movement” and “[o]mission]” as “a failure to perform an act as to which a duty of performance is imposed by law”). It is therefore entirely reasonable that a mandatory minimum sentencing statute may seek to distinguish between the two types of crimes.
The majority also focuses on the word “use” in the phrase “use of physical
force,” 18 U.S.C. § 924(e)(2)(B)(i), concluding that it is best interpreted as to
“employ it,” “avail oneself of it,” or “derive service from it.” Maj. Op. at 22
(brackets and internal quotation marks omitted). Per the majority’s
interpretation, in the example of the malicious guardian above, although the
*99
guardian did not set the events in motion, he or she nevertheless “use[d]” the
fatal force of the allergy to harm or kill the victim. 18 U.S.C. § 924(e)(2)(B)(i).
Although this may be one possible interpretation of the word, it is not a
straightforward one. And the majority’s supporting sources on this very specific
interpretation apply to materially different contexts not applicable here. For
example, in
Smith v. United States
, the Supreme Court held that a criminal
defendant who uses a firearm as a currency of exchange in a drug deal, instead
of as a weapon, is nevertheless subject to penalties under Section 924(c)(1),
see
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
*101
express . . . skepticism that omissions constitute violent force—an issue [the
court] need not reach given that Rumley has not shown a realistic probability
that omissions would be prosecuted under the statute.”
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.”
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.’”
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 *106 concerns, the New York crime of murder is not at issue here, and the predicate question whether murder may be committed by omission in New York has not been briefed or formally discussed.
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,” 18 U.S.C. § 3553(a), and
explicitly places “[n]o limitation . . . on the [consideration of] information
concerning the background, character, and conduct of a person convicted of an
offense,”
id.
§ 3661. Appellate courts review sentencing decisions based on these
factors for abuse of discretion, providing sentencing courts with a significant
amount of deference even when they impose a sentence outside of the
Guidelines range.
See Gall v. United States
,
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 exacerbating 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.
Federal district court judges have also bemoaned the consequences of mandatory minimum statutes. See Mandatory Minimums in Drug Sentencing: A Valuable Weapon in the War on Drugs or a Handcuff on Judicial Discretion? , 36 A M . C RIM . L. R EV . 1279, 1284 (1999) (statement of Sporkin, J., D.D.C.) (“[I]t’s a terrible thing that we’re doing with mandatory minimums. . . . [W]e’re putting more people in prisons, we’re building more prisons, it’s costing us tremendous amounts of money. So that is inconsistent with this concept that it is curtailing crime.” (footnote omitted)); see also Carrie Johnson & Marisa Peñaloza, Judge Regrets Harsh Human Toll of Mandatory Minimum Sentences , NPR (Dec. 16, 2014 4:03 AM), https://www.npr.org/2014/12/16/370991710/judge-regrets-harsh- human-toll-of-mandatory-minimum-sentences (comments of Gleeson, J., E.D.N.Y) (“[It] . . . turns out that policy [of creating mandatory minimum sentences] is wrong. It was wrong at the time. . . . Mandatory minimums, to some degree, sometimes entirely, take judging out of the mix[.] . . . That’s a bad thing for our system.” (internal quotation marks omitted)). So too has the United States Sentencing Commission itself. See Press Release, U.S. Sent’g Comm’n, Senate Judiciary Committee Votes in Favor of the Sentencing Reform and Corrections Act of 2015 (Oct. 22, 2015) (“The Commission has extensively researched the *109 issue of mandatory minimum penalties and, in its 2011 report to Congress, found they were often too severe, swept too broadly, and were applied inconsistently.”) (available at https://www.ussc.gov/about/news/press-releases/october-22-2015).
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). Therefore, it is entirely logical that crimes of omission would not fall within the scope of the conduct the ACCA seeks to penalize.
*110 IV. Lenity Further Supports Affirmance.
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
,
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
,
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
,
The statute further fails to instruct courts whether “physical force” pertains to the criminal conduct itself or the ultimate impact on the victim, a silence the majority itself recognizes. 18 U.S.C. § 924(e)(2)(B)(i). While many experienced jurists read the text and Congressional history to mean the former, others read the latter. This is a textbook example of where the rule of lenity should apply. There is clearly “reasonable doubt . . . about [the ACCA’s] intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” United States v. Valle , 807 F.3d 508, 523 (2d Cir. 2015) (citation, italics, and internal quotation marks omitted). At minimum, the rule of lenity instructs us to resolve these doubts in favor of Scott. 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
*113
Scott
,
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.”
Id.
§ 4B1.2(a). Although I disagree with the outcome, I agree with
the majority that the force clause in the Guidelines is subject to the same analysis
as the force clause of the ACCA. Therefore, what remains at issue is whether
New York Penal Law Section 125.20(1) qualifies as any of the enumerated
offenses. To answer the question, we must use the categorical approach to
determine whether the statute criminalizes the same or a narrower crime than
the “generic” version of any listed offense.
Scott
,
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
*115
the case, grouping various types of homicide crimes might be an acceptable
approach. In the absence of these structures, the enumerated offenses should not
be counted together.
See United States v. Jicarilla Apache Nation
,
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
,
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
,
*117 1 The government also purports to cite case law for “11 additional states 2 [that] recognize omission as a basis for criminal culpability in their case law.” 3 Gov’t’s Br. at 50-51 (footnote omitted). Again, this broad assertion does not show 4 that omission is commonly a basis for aggravated assault. In any event, 11 states 5 are not a majority. After having parsed through those citations, too, only three 6 appear somewhat relevant to aggravated assault or battery crimes. The 7 remaining eight deal with murder, manslaughter, or state child abuse crimes, not 8 aggravated assault.
endangering the welfare of a child);
People v. Stewart
,
(explaining that murder or manslaughter may be committed by omission and
affirming deficient caretaker’s convictions for murder, elder abuse, and grand
theft);
Commonwealth v. Riley
,
6 VI. Conclusion
7
The majority takes issue with the sometimes unsatisfying results yielded
8
by the modified categorial approach when viewed through the lens of one
9
defendant’s individual record. They are far from the first federal judges to
1989) (applying omission liability to involuntary manslaughter);
State v. Eagle
Hawk
,
of aggravated assault. In
United States v. Cooper
, the Sixth Circuit explained that a
Tennessee offense labeled “aggravated assault” is broader than generic
aggravated assault—and therefore not a crime of violence under the
Guidelines—in part because “it punishes a parent’s failure to prevent an
aggravated assault against his or her child.”
express frustration with this form of analysis, as indicated by one of the
concurring opinions’ numerous citations on this point. But the Supreme Court
continues to stand by the approach, and has articulated good reasons for doing
so, including conservation of resources and fairness to defendants.
See Descamps
,
Under that law, the correct answer is that Scott does not qualify for a
mandatory minimum under 18 U.S.C § 924(e)(2)(B) or a career offender
designation under the Guidelines. I do not reach this conclusion lightheartedly,
nor did I when I originally heard the case. Scott is a legally and morally culpable
individual, and his very serious crimes have had very serious consequences. My
conclusion about his sentence is the outcome of an elemental analysis repeatedly
affirmed by the Supreme Court since its decision in
Taylor
,
4 I therefore must respectfully dissent from today’s interpretation of these 5 statutes and the likely consequence of sending Scott back to prison, forcing him 6 to serve additional time after he has already been freed and keeping him in the 7 shadow of past crimes for which he has already served the sentence imposed.
Notes
[1] Compare N.Y. Penal Law § 125.20(1) (“A person is guilty of manslaughter in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person[.]”), with id. § 125.25(1) (“A person is guilty of murder in the second degree when . . . [w]ith
[3] New York defines “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).
[4] See N.Y. Penal Law § 10.00(10) (defining “[s]erious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”).
[5]
See United States v. Rumley
, 952 F.3d 538, 549–51 (4th Cir. 2020) (rejecting
argument that defendant need not use violent force to commit physically injurious
crime (Virginia unlawful wounding) by omission);
United States v. Báez-Martínez
,
950 F.3d 119, 130–33 (1st Cir. 2020) (same re: Puerto Rico attempted murder);
United States v. Sanchez
,
[6] The Career Offender Guideline raises a defendant’s criminal history category in every case to level VI and raises his offense level to specified degrees depending on the statutory maximum for his crime of conviction. See U.S.S.G. § 4B1.1(b). In Scott’s case—without factoring in the ACCA enhancement—the Guideline raised his offense level from 17 to 29, his criminal history category from IV to VI, and his Guidelines prison range from 121–130 months to 264–327 months.
[7] Without the ACCA enhancement, a person convicted of being a felon in possession of a firearm faces a sentence of between 0 and 10 years. See 18 U.S.C. § 924(a)(2) (prescribing sentence of “not more than 10 years”). With the enhancement, he faces a sentence of 15 years to life. See id. § 924(e)(1) (prescribing sentence of “not less than fifteen years”); Welch v. United States , 136 S. Ct. 1257, 1261 (2016) (construing ACCA to establish “minimum sentence of 15 years and a maximum sentence of life in prison”).
[8] This was Scott’s second § 2255 petition, the district court having already rejected
as untimely and meritless his first § 2255 challenge to his sentence based on a claim
of ineffective assistance of counsel.
See Scott v. United States
, No. 10 CIV 3488-LTS,
[9] Given that the brandishing-a-firearm count of conviction carried a mandatory minimum consecutive 7-year prison term, see 18 U.S.C. § 924(c)(1)(A)(ii), it appears that the district court sentenced Scott to concurrent 51-month terms on the Hobbs Act robbery and felon-in-possession counts. We do not here consider whether such a sentence reduction is substantively unreasonable, see , Leval, J. , Dissenting Op., post at 3 (raising possibility), because the government does not appeal the sentence on that ground.
[10] Our concurring colleague, Judge Park, criticizes the categorical approach. See Park, J. , Concurring Op., post at 1. Nevertheless, as Judge Park acknowledges, we are obliged to follow it here, and we do so strictly according to its dictates.
[11] 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. In subsequent cases,
this court applied that standard, and the reasoning of those cases, in the ACCA
and Guidelines contexts.
See United States v. Moore
, 916 F.3d at 240 (Career
Offender Guideline);
Stuckey v. United States
,
[12] Santiago ’s relevancy here is doubtful in that the conviction there was obtained pursuant to a different part of the first-degree manslaughter statute not here at issue, N.Y. Penal Law § 125.20(4) (added to statute in 1990 and pertaining to adults who “with intent to cause physical injury to a person less than eleven years old, . . . recklessly engage[] in conduct which creates a grave risk of serious physical injury to such person and thereby cause[] the death of such person”). Further, to the extent the mother’s speech might be understood to have precipitated the child’s fatal beating, Scott himself suggested at oral argument that speech can satisfy his urged physical act requirement for use of force. See Tr. Nov. 6, 2020, at 77.
[13]
Compare United States v. Scott
,
[14] Our concurring colleague, Judge Menashi, faults the Supreme Court in Smith for substituting “possible” for “prototypical” meanings in defining “use.” Menashi, J. , Concurring Op., post at 5. We are not persuaded. Smith ’s definitions of “use”
[15] Thus, even if one would not ordinarily say that a person is using physical force whenever she drives a car, see Menashi, J ., Concurring Op., post at 5, one would easily say just that when the person drives the car into a crowd because she intends thereby to cause one or more persons in the crowd serious physical injury. In those circumstances, the driver is employing the car’s force not simply to transport her from one place to another, but as her instrument for causing intended injury. On that much, we understand even Scott to agree.
[16] Recognizing “use” by omission is no novel concept at law. Notably, the law has long recognized that a defendant can use deceit by omission to commit fraud. See Neder v. United States , 527 U.S. 1, 22 (1999) (stating that fraud’s “well-settled meaning at common law” included material “misrepresentation or omission ” (emphasis added) (internal quotation marks omitted)). Indeed, the principle is famously codified in securities law. See 15 U.S.C. § 78j(b) (criminalizing “use or employ[ment]” of “any manipulative or deceptive device or contrivance” in connection with purchase or sale of certain securities); United States v. Gramins , 939 F.3d 429, 444 (2d Cir. 2019) (recognizing securities fraud under § 78j(b) can be committed by “material omission if the defendant had a duty to speak” (internal quotation marks omitted)).
[17] To the extent our concurring colleague reaches the same conclusion by assigning “use of physical force” a specialized, rather than ordinary, meaning, there may not be much difference in our reasoning at least insofar as his construction derives from the specialized meaning of omission. See Menashi, J. , Concurring Op., post at 3–9. The specialized meaning of omission is longstanding and, in New York, codified, thereby affording notice to those who might be inclined to violate the law that breaching a legal duty is a culpable action.
[18] Dissenting in Smith v. United States , Justice Scalia expressed concern that the majority, in recognizing the exchange of a gun for drugs as a “use[ of] a firearm,” departed too far from a firearm’s ordinary intended purpose as a weapon. 508 U.S. at 242–43 (Scalia, J. , dissenting). Even that minority view is not a concern here because, whether first-degree manslaughter is committed by omission or commission, the defendant is using violent force against another person for its ordinary purpose, i.e. , to cause physical injury.
[19] This comports with the ordinary meaning of “use,” which requires only that one
“employ” or “make use” of the specified object—here, the violent force exerted by
poison—to “carry out a purpose . . . by means [there] of”—that purpose here being
intended physical injury.
Smith v. United States
,
[20] This leaves no role for any contrary view expressed in Chrzanoski v. Ashcroft , 327 F.3d at 195. Castleman ’s abrogation of that case, see Villanueva v. United States , 893 F.3d at 130, is complete.
[21] We call particular attention to
United States v. Rumley
, wherein the Fourth Circuit
states that under
Castleman
’s reasoning, “there is just as much a ‘use of force’ when
a murderous parent uses the body’s need for food to intentionally cause his child’s
death as when that parent uses the forceful physical properties of poison to
achieve the same result.”
[22] To the extent our colleague, Judge Pooler, who dissented in Villanueva , 893 F.3d at 132–39 (Pooler, J. , dissenting), continues to challenge or seeks to cabin Villanueva ’s holding, see Pooler, J. , Dissenting Op., post at 9–11, we reject those efforts.
[23]
See United States v. Rumley
,
[25] See Ala. Code § 13A-2-1(3)–(5); Alaska Stat. Ann. § 11.81.900(b)(7); Ariz. Rev. Stat. Ann. § 13-105(6); Ark. Code Ann. § 5-2-201(2)–(4); Colo. Rev. Stat. Ann. § 18- 1-501(2), (7); Del. Code Ann. tit. 11, §§ 233, 242; Haw. Rev. Stat. §§ 701-118, 702- 203; 720 Ill. Comp. Stat. Ann. 5/2-2, 5/4-1; Ind. Code Ann. § 35-41-2-1(a); Iowa Code Ann. § 702.2; Kan. Stat. Ann. § 21-5111(a); Me. Rev. Stat. Ann. tit. 17-A, §§ 2(2)–(3), 103-B; Mich. Comp. Laws Ann. §§ 750.5, 750.10; Mo. Ann. Stat. §§ 556.061(49)(b), 565.002(3); Mont. Code Ann. §§ 45-2-101(1), 45-2-202; Neb. Rev. Stat. Ann. § 28- 109(5), (14); N.H. Rev. Stat. Ann. §§ 625:11(I), 626:1(I); N.J. Stat. Ann. §§ 2C:1-14(c)– (e), 2C:2-1; N.Y. Penal Law §§ 15.00, 15.10; N.D. Cent. Code Ann. §§ 12.1-01-04(2)– (3), 12.1-02-01; Ohio Rev. Code Ann. § 2901.21(A)(1); Or. Rev. Stat. Ann. § 161.085(3)–(5), (22); 18 Pa. Stat. and Cons. Stat. Ann. §§ 103, 301(a)–(b); Tex. Penal Code Ann. §§ 1.07(a)(10), (34), 6.01(a),(c); Utah Code Ann. § 76-1-601(5), (10); Wash. Rev. Code Ann. § 9A.04.110(1), (14).
[26] See generally Career Criminals Amendment Act of 1986, Pub. L. No. 99-570, § 1402, 100 Stat. 3207.
[27]
Cf. Neder v. United States
,
[28] Our dissenting colleague repeats Scott’s conflation error when she charges us with concluding that “ Johnson says nothing about what constitutes force.” Pooler, J. , Dissenting Op., post at 6 n.3. As we emphasize in text, Curtis Johnson has much to say about the term “physical force.” It has nothing to say about what constitutes a “use” of such force.
[29] Scott submits that Justice Scalia, concurring in
Castleman
, identified “acts of
omission” as “nonphysical conduct” that “cannot possibly be relevant to the
meaning of a statute requiring ‘physical force.’”
United States v. Castleman
, 572 U.S.
at 181 (Scalia,
J.
, concurring in part and concurring in judgment) (emphasis
omitted). He quotes this language out of context. The language is found in the
part of the concurring opinion rejecting the majority’s construction of “physical
force” as used in 18 U.S.C. § 921(a)(33)(A) to mean common law force rather than
violent force. It was in that context that Justice Scalia faulted the majority’s
reliance on an
amicus
brief, which proposed defining domestic violence to include
“such a wide range of nonviolent and even
nonphysical
conduct that . . . cannot
possibly be relevant to the meaning of a statute requiring ‘physical force,’ or to the
legal meaning of ‘domestic violence.’”
Id.
(emphasis in original). He explained
that the urged range of conduct included “acts that ‘humiliate, isolate, frighten, . .
. [and] blame . . . someone’; ‘acts of omission’; ‘excessive monitoring of a woman’s
behavior, repeated accusations of infidelity, and controlling with whom she has
contact.’”
Id.
(quoting Br. for National Network to End Domestic Violence et al.,
as
Amici Curiae
, 5–8, & nn.7, 11 (quoting UNICEF,
Domestic Violence Against Women
and Girls
, Innocenti Digest, June 2000, at 2)). The “acts of omission” identified in
the UNICEF report relied on by the
amicus
brief were “[g]ender bias that
discriminates in terms of nutrition, education and access to health care.” UNICEF,
Domestic Violence Against Women and Girls
, Innocenti Digest, June 2000, at 2. This
is not what the criminal law generally, or New York law in particular, means by a
culpable omission.
See supra
at 33–35. Thus, we have no reason to think that
Justice Scalia’s quoted criticism pertained in any way to such omissions, much less
that he was thereby qualifying his earlier pronouncement that “it is impossible to
cause bodily injury without using force capable of producing that result.”
United
States v. Castleman
,
[31] After oral argument, Scott submitted that the recent decision in
Gray v. United
States
,
[32] Section 16(a) differs from ACCA in that its force clause defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (emphasis added).
[33] Whether reckless felonies satisfy ACCA’s force clause is a question presently pending before the Supreme Court. See Borden v. United States , No. 19-5410 (appeal argued Nov. 3, 2020).
[34] Thus, to the extent Leocal and Voisine might support our dissenting colleague’s assertion that ACCA “does not seek to include all criminal acts resulting in injury or fatality,” Pooler, J. , Dissenting Op., post at 20, the determinative factor is not a defendant’s physical actions, but rather, his mens rea , see supra at 21–24. Nor can the dissent rely on Lofton v. United States , 920 F.3d 572 (8th Cir. 2019), to urge otherwise. See Pooler, J. , Dissenting Op., post at 20–21. The reason the state sexual abuse statute there at issue did not qualify as a crime of violence was not that it lacked a physical act requirement for use of force but, rather, that it did not require the involvement of any force at all. See Lofton v. United States , 920 F.3d at 576 (“Notably absent [from the statute] is any requirement of force . . . .” (internal quotation marks omitted)). As Scott acknowledges, a death qualifying as first- degree manslaughter always results from violent physical force. See Tr. Nov. 6, 2020, at 57. And a defendant who causes that death is guilty of first-degree manslaughter only if his intent was to cause at least serious physical injury.
[35] Our dissenting colleague, Judge Leval, states that while he would not apply the
rule of lenity to the Career Offender Guideline’s force clause, he would apply the
canon to ACCA’s identically-phrased force clause because ACCA’s penalty is
mandatory while the Guideline enhancement is not.
See
Leval,
J.
, Dissenting Op.,
post
at 10–12. Even if some of us might share Judge Leval’s disquiet about
mandatory minimum sentences and his preference for broad judicial sentencing
discretion, our task here is to identify unresolvable statutory ambiguity, not to tilt
the balance in favor of judicial sentencing discretion. In short, we resort to lenity
only to resolve “grievous[]” ambiguities as to Congress’s intent after all other tools
of construction have been exhausted.
United States v. Hayes
,
[36] Just as a court will not construe a statute to yield absurd results contrary to
Congress’s purpose,
see Gibbons v. Bristol-Myers Squibb Co.
,
[37] While we have indulged these hypothetical homicide-by-omission scenarios, we
note that none is to be found in any actual New York prosecution for first-degree
manslaughter. Nor do our dissenting colleagues point to any New York case in
fact applying the state’s first-degree manslaughter statute to the “malicious
guardian” and “assisted suicide” omission scenarios that they posit.
See
Leval,
J.
,
Dissenting Op.,
post
at 5–6; Pooler,
J.
, Dissenting Op.,
post
at 12–15. We reiterate
that a threshold requirement of any defendant’s claim that a state crime is not
categorically violent is a showing that the state actually prosecutes the crime in the
non-violent scenario being hypothesized.
See United States v. Hill
,
[38] 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 LaFave § 14.3, at 590;
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. Ann. 5/9-1(a)(1); La. Stat. Ann. § 14:30.1(1);
Thornton v. State
,
[39]
See
Conn. Gen. Stat. Ann. § 53a-55; Del. Code Ann. tit. 11, § 632(2); Ky. Rev. Stat.
Ann. § 507.030(1)(a);
People v. Townes
,
[40] 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), at 764–65; Model Penal Code § 211.1(2)(a);
see also United
States v. Delis
,
[41]
Compare United States v. Scott
,
[1] Unless otherwise noted, “ante” refers to the opinion of the court.
[2] William Baude & Stephen E. Sachs, The Law of Interpretation , 130 H ARV . L. R EV . 1079, 1088 (2017).
[3] See id. at 1083 (“The crucial question for legal interpreters isn’t ‘what do these words mean,’ but something broader: What law did this instrument
[4] W ILLIAM N. E SKRIDGE J R ., I NTERPRETING L AW : A P RIMER O N H OW T O R EAD S TATUTES A ND T HE C ONSTITUTION 44-45 (2016).
[5] H ERBERT H. C LARK , A RENAS O F L ANGUAGE U SE 372 (1993).
[6]
See Zarda v. Altitude Express, Inc.
, 883 F.3d 100, 144 n.7 (2d Cir. 2018)
(Lynch, J., dissenting) (“Legislation cannot sensibly be interpreted by
stringing together dictionary synonyms of each word and proclaiming that,
if the right example of the meaning of each is selected, the ‘plain meaning’
of the statute leads to a particular result. No theory of interpretation,
including textualism itself, is premised on such an approach.”);
Helvering v.
Gregory
,
[7] Rachel Mendleson & Wendy Gillis, Police punches, kicks, slaps and body slams are going untracked in Ontario. That’s because much of the physical force officers use is not reported—and there are growing calls for that to change , T ORONTO S TAR (Dec. 16, 2020), https://bit.ly/3bQesal (last visited Jan. 18, 2021).
[8] The Corpus of Contemporary American English—the most widely used corpus of American English—contains forty-seven non-specialist instances of “use of physical force” and all refer to physical contact; none plausibly refer to “deriv[ing] service from” a preexisting physical force. Ante at 26. Corpus linguistics illustrates the prototypical uses of words or phrases. See State v. Rasabout , 356 P.3d 1258, 1275 (Utah 2015) (Lee, Assoc. C.J., concurring in part and concurring in the judgment); Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning , 127 Y ALE L.J. 788 (2018); see also Kevin P. Tobia, Testing Ordinary Meaning , 134 H ARV . L. R EV . 726, 753 (2020) (noting that in experiments “users of legal corpus linguistics tended to identify prototypical examples”).
[9] The court acknowledges that when a person derives service from physical force for the purpose of transportation, “one would not ordinarily say that
[12] The agreement between Justices Scalia and Ginsburg reflects a larger critique by commentators. See, e.g ., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux , 70 C ASE W. R ES . L. R EV . 855, 857-59 (2020) (describing the “caricature” of “literalism” the majority applied in Smith v. United States and distinguishing it from sound textualism); Stefan Th. Gries & Brian G. Slocum, Ordinary Meaning and Corpus Linguistics , 2017 B.Y.U. L. R EV . 1417, 1454, 1462 (2017) (considering the “infamous case” of Smith v. United States and concluding that “the Court’s interpretation … is incompatible with the ordinary-meaning approach the Court claims it is applying”); L AWRENCE M. S OLAN , T HE L ANGUAGE OF S TATUTES : L AWS AND T HEIR I NTERPRETATION 57 (2010) (noting that the analysis in Smith “was not really about the ordinary meaning”); John F. Manning, The Absurdity Doctrine , 116 H ARV . L. R EV . 2387, 2460-61 (2003) (contrasting the “literal interpretation of ‘using a firearm’” in Smith , which produced “results that, to many, seem absurd or unjust,” with “modern textualists” who “view the text[] in context”); William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776-1806 , 101 C OLUM . L. R EV . 990, 1093 n.509 (2001) (“Scalia’s dissenting opinion in Smith v. United States is exemplary of a reasonable user textualism which is sensitive to context and even equity.”) (internal citation omitted).
[13] Ante at 34 (“[T]he ‘act’ required by law is not dependent on a defendant’s physical movements. Rather, the law recognizes that a person can also ‘act’
[16] Id. at 35.
[17]
See Stokeling v. United States
, 139 S. Ct. 544, 551 (2019) (noting that
“Congress, in the original ACCA,” included “a clear reference to the
common law of robbery” and that the common law continues to inform
“the ‘force’ required”);
Castleman
, 572 U.S. at 162-63 (“Congress
incorporated the common-law meaning of ‘force’—namely, offensive
touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of
domestic violence.’”);
Curtis Johnson v. United States
,
[18] Ante at 25 (noting “the common law background recognizing omission as action”); id. at 34 (noting that the equivalency between omission and action is “originally rooted in common law”).
[19]
See Moskal v. United States
,
[21]
See United States v. Scott
, No. 06-CR-988,
[22]
See Scott
,
[23] See supra note 3.
[1] Judge Pooler does not join in Judge Leval’s position on the Guidelines.
[2] The additional requirements of her ACCA conviction are supplied by the fact that, when she was 18 years old, she twice carried drugs for her drug-dealing boyfriend, and, when her father became infirm, he deeded to her his house and its contents, which included his treasured hunting rifle.
[3] Another, likely unintended, consequence of mandatory sentencing is that it
transfers discretion from the sentencing judge – who is constrained by 18 U.S.C.
§ 3553 and subject to judicial review – to prosecutors, who have almost absolute
discretion to choose which charges to bring, and therefore which mandatory
sentences will apply.
See Bordenkircher v. Hayes
,
[4] I do not suggest that the rule of lenity has no application to the interpretation of
the Guidelines. We ruled in
United States v. Parkins
,
[1] In the case of a divisible statute like this one, we apply a “modified” categorical approach that permits us to focus exclusively on the elements of the subdivision of the statute under which Scott was convicted. See United States v. Jones , 878 F.3d 10, 16 (2d Cir. 2017).
[2] This clause is at issue now because the Supreme Court invalidated the ACCA’s
so-called residual clause in
Samuel Johnson v. United States
while Scott was
serving his sentence.
[3] Despite these clear descriptions and
Johnson
’s explicit statement that the clause
requires “a degree of power that would not be satisfied by [even] the merest
touching,”
Johnson
,
[4] Two of Scott’s three prior convictions were for New York first-degree
manslaughter.
See Scott
,
[5] Of course, in many cases, the defendant does initiate the force that harms the victim, whether it is as overt as forcibly holding someone underwater or as indirect as filling a pool in hopes that a targeted victim, who the defendant knows cannot swim, may fall in and drown themselves. However, the very nature of the question before us asks us to exclude the possibility that the defendant did anything to bring about the victim’s harm. Therefore, the force harming the victim is definitionally external to the defendant.
[6] The majority makes the unremarkable point that no New York Court of
Appeals case has encountered this exact factual scenario.
See
Maj. Op. at 49 n.37. I
do not suggest otherwise. What the Court of Appeals has made clear is that
omission liability is applicable to New York first-degree manslaughter,
see Wong
,
[7]
Voisine
is also inapplicable. Like
Castleman
,
Voisine
interprets the distinct
statutory context of Section 922(g)(9), the misdemeanor crime of domestic
violence.
See
[8] The Mayo holding is under en banc review in United States v. Harris , No. 17-1861 (3d Cir.) (argued Oct. 16, 2019).
[9] These cases are obviously not directly comparable to the present circumstances, and I do not rely on them in interpreting the statutory text at issue. They instead illustrate that many crimes we view to be abhorrent and “violent” in the common understanding of the word nevertheless do not qualify as predicate crimes under the ACCA because the purpose of the statute is to further discourage certain kinds of criminal acts, not necessarily to protect all kinds of victims.
[10] One response may be that Scott is precisely such a defendant. However, the
categorical approach prohibits the consideration of his individual acts. The
Supreme Court chose this method for good reason.
See Descamps v. United States
,
[11] Eight states define “manslaughter” as causing death with intent to do serious bodily injury: Connecticut, Delaware, New York, Minnesota, North Carolina, Rhode Island, Kentucky, and Michigan. Twenty states include conduct that demonstrates an intent to do serious bodily injury under “murder” or “felony murder.” Each individual count yields a minority of states, so the government argues for an aggregation of the two categories.
[12] A previous version of the Guidelines did include a residual clause including
“conduct that presents a serious potential risk of physical injury to another,”
which the Sentencing Commission removed in the August 2016 publication of
the Guidelines.
United States v. Castillo
,
[13]
Compare Steinberg
,