Last week the Second Circuit issued an opinion holding that, under the residual clause of the pre-2016 Career Offender Guideline (COG), U.S.S.G. § 4B1.2(a)(2), offenses under a subsection of New York’s first-degree manslaughter statute are crimes of violence. In so holding, the Circuit defined the generic definition of manslaughter to include “the unlawful killing of another human being recklessly.” United States v. Castillo, No. 16-4129 (2d Cir. 2018) (Cabranes, Raggi, Vilardo (WDNY)) (appeal from Woods, J., SDNY), slip op. at 24. The Court further held, in conclusory fashion, that the government did not waive this argument when it conceded, pre-Beckles, that the residual clause of the pre-2016 COG was unconstitutionally vague. The opinion in Castillo, available here, may be of interest to practitioners dealing with the pre-2016 Guidelines, and is more generally worth noting for its loose language concerning appellate waiver — language that appellate counsel may be able to deploy in in their favor.
The defendant in Castillo was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The government argued at sentencing that Castillo’s prior conviction in New York for first-degree manslaughter was a crime of violence for purposes of the pre-2016 COG, but conceded that the COG’s residual clause was void for vagueness. The district judge declined to find that Mr. Castillo’s manslaughter conviction was a crime of violence under the COG, and the government appealed. After the notice of appeal was filed, the Supreme Court issued its opinion in Beckles, holding that the COG’s residual clause is not unconstitutionally vague.
In New York, a person is guilty of first-degree manslaughter when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person.” N.Y. Penal Law § 125.20(1). This definition, the Court held, falls within the “generic definition” of manslaughter. As the Court explained, “the federal code, most state codes, and the Model Penal Code provide that recklessness—or a comparable or less culpable state of mind—satisfies the mens rea element of ‘manslaughter.'” Slip op. at 24-25. Accordingly, the Court concluded, manslaughter’s generic definition “includes the unlawful killing of another human being recklessly.” Id. at 24. The Court further held that the mens rea element of the generic definition (recklessness) is lower than that of N.Y. Penal Law § 125.20(1) (intent to cause serious injury).
In a somewhat breezy fashion, the Court held that the government did not waive this argument below. As it explained, “a court cannot properly determine a question of law on the basis of a party’s concession.” Slip op. at 18. Although it does not follow from this proposition, the Court went on to state that “the government is therefore permitted to press–and we are free to consider–arguments based on the legal conclusion of the Supreme Court that the ‘residual clause’ of the Guidelines is not void for vagueness.” Id. at 18-19. The good thing one can to say about this waiver analysis is that it applies with equal force to legal concessions made by defendants in the district court.
Happily, the 2016 revisions to the Guidelines not only eliminated the COG’s residual clause, but also expressly defined voluntary (but not reckless) manslaughter as a crime of violence. See U.S.S.G. § 4B1.2(a)(2).
N.B.: The Federal Defender’s represents Mr. Castillo.