The Second Circuit held this week that an offense is not a “crime of violence [if] it can be committed by complete inaction and therefore without the use of force.” United States v. Scott, ___ F.3d ___, 2020 WL 1522825, at *1 (2d Cir. Mar. 31, 2020).
Mr. Scott had originally been subjected to the Armed Career Criminal Act’s 15-year mandatory minimum, along with the Career Offender Guideline, based on two prior convictions for New York manslaughter in the first degree. Someone is guilty of that offense 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). New York’s highest court has said this statute reaches a parent’s “failure to obtain medical care for a child.” People v. Steinberg, 79 N.Y.2d 673, 680 (1992). See also id. (“The Penal Law provides that criminal liability may be based on an omission, which is defined as the failure to perform a legally imposed duty. Parents have a nondelegable affirmative duty to provide their children with adequate medical care. Thus, a parent’s failure to fulfill that duty can form the basis of a homicide charge.”) (citations omitted).
The residual clause definition of “violent felony” in ACCA is void for vagueness, see Johnson v. United States, 135 S. Ct. 2551 (2015), which leaves the enumerated offenses — burglary, arson, extortion, or a crime involving the use of explosives — and ACCA’s force clause. Under that clause, an offense is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The district judge ruled Mr. Scott’s manslaughter offense does not qualify, as it can be committed by inaction and inaction is not a “use of physical force against the person of another.” The judge thus vacated Mr. Scott’s sentence and ordered resentencing.
The Career Offender Guideline no longer has a residual clause definition of “crime of violence.” It has a force clause that is identical to ACCA’s, and it enumerates certain qualifying offenses, which include murder, voluntary manslaughter, and aggravated assault. The government argued Mr. Scott’s manslaughter offense counted as all three. But it conceded his offense did not match the “generic” definition — meaning the one adopted by a majority of jurisdictions — of any of the three enumerated crimes. And unless an offense is specifically defined in the Guideline (some are, some aren’t), it carries the “generic” definition. Neither murder, voluntary manslaughter nor aggravated assault is defined in the Guideline. They thus carry the “generic” definition of those crimes, none of which lines up with Mr. Scott’s manslaughter offense. The judge sentenced Mr. Scott to time served and ordered him released. The government appealed.
The Second Circuit affirmed in all respects.
Citing Steinberg, the circuit said “the New York Court of Appeals has explicitly held that New York first-degree manslaughter can be committed by omission.” Scott, ___ F.3d ___, 2020 WL 1522825, at *4. This is “more than sufficient to establish a realistic probability that New York first-degree manslaughter could be applied to a defendant who intentionally causes death by an act of omission.” Id. at *6.
New York manslaughter can be committed by inaction, and “a crime that may be committed by complete inaction does not have ‘as an element the use . . . of physical force against the person of another.'” Id. at *9.
The circuit rejected the government’s claim that the Supreme Court ruled otherwise in United States v. Castleman, 572 U.S. 157 (2014). The government had seized on a line from that case saying “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” id. at 169, a line that was repeated in Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018). But the circuit explained that the line “must be considered in the light of the facts of those cases.” Scott, ___ F.3d ___, 2020 WL 1522825, at *7. In both cases, there was no indication or argument that the crimes at issue could be committed by inaction. “Neither addressed, much less resolved, the question before us, namely, whether the failure to act . . . constitutes a ‘use of physical force.'” Id. at *8. “Unlike New York first-degree manslaughter, the acts discussed in Castleman and Villanueva require some action that initiates a harmful consequence. By contrast, a defendant who commits a crime by omission definitionally takes no action and thus initiates nothing.” Id. (emphasis in original).
“In addition, to the extent that it may be seen as a close question whether ‘use of physical force’ includes crimes committed by omission, the burden is on the government to show that a prior conviction counts as a predicate offense for the purpose of an ACCA sentence enhancement. Moreover, the rule of lenity, which ‘requires ambiguous criminal laws to be interpreted in favor of the defendants subject to them,’ requires construing that ambiguity in the defendant’s favor.” Id. at *9 (citations omitted).
“We therefore hold that New York first-degree manslaughter is not a crime of violence under the force clause of ACCA because it can be committed by inaction.” Id.
Finally, the circuit held New York manslaughter does not match the “generic” definition of murder, voluntary manslaughter, or aggravated assault, and thus that Mr. Scott was not subject to the Career Offender Guideline. See id. at *10-*13.
Takeaways for the Defense Bar
1. An offense that can be committed by the failure to act is not a “violent felony” under ACCA or a “crime of violence” under the Career Offender Guideline, 18 U.S.C. § 924(c), or 18 U.S.C. § 16. Remember that it does not matter what a defendant actually did: under the “categorical approach” that applies in this area of law, all that matters is how the crime is defined. If the offense can be committed by inaction, then it is not a crime of violence.
2. New York manslaughter is not a “crime of violence” under the Career Offender Guideline.
3. There is a fantastic “concurrence” by Judge Leval, joined by Judge Pooler (so, really, the ruling of the court) on why mandatory minimum punishments like ACCA “rarely serve a useful purpose, and frequently serve as arbitrary instruments of injustice.” Scott, ___ F.3d ___, 2020 WL 1522825, at *14.