In United States v. Scott, the en banc Second Circuit held that New York first-degree manslaughter, in violation of N.Y. Penal Law § 125.20(1) (applicable to one who “with intent to cause serious physical injury to another person, … causes the death of such person or of a third person”), is a categorical crime of violence under the force clauses of ACCA, 18 U.S.C. § 924(e)(2)(B)(i), and the career-offender Guideline, U.S.S.G. § 4B1.2(a)(1).
Scott was sentenced pursuant to ACCA and the career-offender Guideline based, in part, on two prior New York first-degree manslaughter convictions. Following Johnson v. United States, 576 U.S. 591 (2015), the district court (Swain, SDNY) granted Scott’s 28 U.S.C. § 2255 motion and resentenced him. The district court concluded that New York first-degree manslaughter does not categorically involve the “use” of violent physical force, as required by §§ 924(e)(2)(B)(i) and 4B1.2(a)(1), because under New York law, the offense can be committed not just by action, but by omission in breach of a duty to act, as when a parent fails to provide medical care for a child. A Second Circuit panel (Pooler, joined by Leval; Raggi, dissenting) affirmed, but the Circuit ordered rehearing en banc and reversed.
The en banc majority (Raggi, joined by Livingston, Cabranes, Chin, Sullivan, Bianco, Park, and Nardini, and joined in part by Menashi) concluded that an offense requiring (i) intent to cause serious physical injury, and (ii) causation of death, necessarily involves the “use” of violent physical force under United States v. Castleman, 572 U.S. 157 (2014). The possibility of committing the offense by omission does not alter that conclusion. General principles of criminal law (codified in New York statutory law) equate an omission in breach of a legal duty to act with “affirmative action” sufficient to establish criminal culpability. Moreover, the ordinary meaning of “use … of physical force” does not demand an affirmative physical act, only that the defendant have “availed himself of” injury-causing force, “derived service from” such force, or made such force his “instrument.” Finally, the relevant physical force is not the force that the defendant personally wields, but the force that causes injury to the victim. Thus, the majority held: “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.”
Judge Park (joined by Livingston, Cabranes, Sullivan, and Nardini) concurred. He wrote separately to state: “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.”
Judge Menashi concurred and part and concurred in the judgment. He disagreed with the majority’s conclusion that the ordinary meaning of “use … of physical force” encompasses omissions. However, he concluded that “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.”
Judge Leval (joined by Katzmann, Lohier, and Carney, and joined in part by Pooler) dissented. He concluded that the rule of lenity applied to the ACCA question, and that ACCA’s requirement of “‘use of physical force against the person of another’ does not clearly apply to a crime that can be committed by doing nothing.” However, he would not have applied lenity to the Guidelines question, on the ground that the Guidelines, unlike ACCA, are not mandatory: “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.”
Judge Pooler (joined in part by Leval and Carney) dissented. She concluded, as to both the ACCA and Guidelines questions, that “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.”