Circuit Will Decide En Banc Whether New York First-Degree Manslaughter Is a “Violent Felony” and “Crime of Violence.”

In United States v. Scott, 954 F.3d 74 (2d Cir. Mar. 31, 2020), a divided panel held that New York first-degree manslaughter is neither a predicate “violent felony” under the Armed Career Criminal Act nor a “crime of violence” under the Career Offender Guideline because it can be committed by complete inaction and therefore without the use of force, as defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). The panel also held that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline.

On July 10, 2020, the Circuit granted the government’s petition for rehearing en banc. No briefing schedule has yet been issued. Stay tuned.