United States v. Scott

954 F.3d 74

UNITED STATES of America, Appellant,

v.Gerald SCOTT, Defendant-Appellee.

No. 18-163

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: January 10, 2019

Decided: March 31, 2020

WON S. SHIN, Assistant United States Attorney (Sarah K. Eddy, Catherine E. Ghosh, Assistant United States Attorneys), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, NY, for Appellant.

MATTHEW B. LARSEN, Assistant Federal Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellee.

Before: LEVAL, POOLER, and RAGGI, Circuit Judges.

Judge Leval joins in Judge Pooler’s opinion for the Court and also concurs by a separate opinion, in which Judge Pooler joins.

Judge Raggi dissents in a separate opinion.

POOLER, Circuit Judge:

The United States appeals from an opinion and order of the United States District Court for the Southern District of New York (Laura T. Swain, J .) vacating Gerald Scott’s sentence and resentencing him to time served based on his service of only eleven years of imprisonment. The district court held that because New York first-degree manslaughter can be committed by omission, it cannot serve as a predicate felony for the sentencing enhancements prescribed in the Armed Career Criminal Act ("ACCA") or the Career Offender Sentencing Guideline. We hold that the district court properly concluded that New York first-degree manslaughter is not a predicate crime of violence 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, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). We also hold that New York first-degree manslaughter does not match any of the generic offenses enumerated in the Career Offender Guideline. We therefore affirm the district court’s vacatur of Scott’s sentence under ACCA and its decision to resentence Scott to time served.

BACKGROUND

On October 10, 2007, Gerald Scott pled guilty to Hobbs Act robbery in violation of 18 U.S.C. §§ 1951, 2 ("Count I"); brandishing a weapon during Hobbs Act robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 ("Count III"); and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e) ("Count IV"). Judge Swain sentenced Scott to a term of 151 months’ imprisonment on Count I to be served concurrently with a term of 180 months on Count IV, followed by a consecutive term of 84 months on Count III.

Scott’s ACCA conviction on Count IV, which is the focus of this appeal, was based on the following predicate offenses: a 1983 conviction for New York robbery in the first degree and two 1988 convictions for New York manslaughter in the first degree. In the course of these crimes, Scott shot and killed one victim and stabbed another to death. These prior convictions subjected him to a mandatory sentence of 180 months on Count IV.¹

On April 26, 2010, Scott filed a habeas petition to vacate his conviction, arguing that he received ineffective assistance of counsel. Judge Swain denied that motion. In November 2016, Scott received this Court’s permission to file a successive habeas petition in light of Samuel Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015).

The district court granted Scott’s successive habeas petition, finding Scott’s convictions for New York manslaughter were not violent felonies so that Scott was ineligible for an ACCA sentence. The district court reasoned that based on decisions of the New York Court of Appeals, "first degree manslaughter can be committed in New York State by omission and thus without using force." United States v. Scott , No. 06 CR 988-LTS, 2017 WL 2414796, at *2 (S.D.N.Y. June 2, 2017). The court thus held that Scott was "not subject to the career offender enhancement under ACCA" and vacated his sentence for recalculation. Id. at *3.

At the resentencing hearing, the district court considered whether Scott could be sentenced under the Career Offender Guideline, U.S.S.G. § 4B1.1. Relying on its analysis above, the district court determined that New York first-degree manslaughter was not a "crime of violence" under the force clause of the Career Offender Guideline for the same reasons it was not a crime of violence under ACCA’s identical force clause. The district court also rejected the government’s argument that the Career Offender Guideline applies to Scott under the enumerated-offenses clause because New York first-degree manslaughter criminalizes the same conduct as generic murder, voluntary manslaughter, or aggravated assault in the Guideline’s enumerated-offenses clause. Having decided that the Career Offender Guideline could not apply, the district court calculated Scott’s sentencing range at 121 to 130 months. At the time of the hearing, Scott had served approximately 134 months of his sentence—four months above the Guidelines range’s upper boundary. The district court therefore sentenced Scott to time served and five years of supervised release. Scott is out on supervised release.

DISCUSSION

On appeal, the government argues that Scott qualifies for ACCA’s 180-month mandatory minimum sentence because New York first-degree manslaughter is a crime of violence that "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). In the alternative, the government argues that Scott should be sentenced under the Career Offender Guideline because New York first-degree manslaughter criminalizes the same conduct as the generic offenses of murder, voluntary manslaughter, or aggravated assault, which are enumerated crimes of violence in the Guideline. Scott responds that the minimum criminal conduct required to commit New York first-degree manslaughter does not have as an element the "use" of force because the crime can be committed by omission—otherwise put, by doing nothing. He also argues that a majority of states do not criminalize the conduct that New York first-degree murder penalizes as first-degree manslaughter as generic murder, voluntary manslaughter, or aggravated assault.

I. New York First-Degree Manslaughter Is Not a Crime of Violence Under the Force Clause of 18 U.S.C. § 924(e)

ACCA sets a mandatory minimum sentence of "not less than fifteen years" for criminal defendants who have at least three prior convictions for "a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). As relevant here, the statute defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id . § 924(e)(1)(B)(i).

The question before us is whether New York first-degree manslaughter satisfies that definition. New York Penal Law lists three criminal acts for which a person may be found "guilty of manslaughter in the first degree." N.Y. Penal Law § 125.20. First, the statute holds a person liable for first-degree manslaughter who "with intent to cause serious physical injury to another person, ... causes the death of such person or of a third person." Id. § 125.20(1). Second, the statute criminalizes causing the death of another person "under the influence of extreme emotional disturbance," id. § 125.20(2). Third, the statute makes it illegal to, with intent to cause physical injury, "create[ ] a grave risk of serious physical injury to a person less than eleven years old" that causes their death. Id. § 125.20(4).

Where a statute, like New York’s first-degree manslaughter statute, "criminalize[s] multiple acts in the alternative," we refer to the statute as "divisible" and apply the "modified categorical approach" to determine whether a conviction under the statute can serve as a predicate offense for a federal sentence enhancement. United States v. Jones , 878 F.3d 10, 16 (2d Cir. 2017) ; accord Descamps v. United States , 570 U.S. 254, 261-62, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; see also United States v. Castillo , 896 F.3d 141, 149-50 (2d Cir. 2018) (determining New York Penal Law § 125.20 is "a state statute [that] criminalizes multiple acts in the alternative" and thus requires the modified categorical approach (alterations and internal quotations marks omitted)). Under that approach, we first look to "a limited class of documents" to determine of which act the defendant was convicted. Id. "[L]ook[ing] only to the statutory definitions—i.e., the elements—of [that portion of the statute], and not to the particular underlying facts," Hill , 890 F.3d at 55 (alterations and internal quotation marks omitted), we then ask whether those elements can be satisfied by conduct that might reach beyond the parameters of ACCA. If so, we ask whether there is "a realistic probability, not a theoretical possibility," that the statute would be applied in that manner. Id. at 56. Unless "the state statute ... on its face extends to conduct beyond the definition of the corresponding federal offense," see Hylton v. Sessions , 897 F.3d 57, 63 (2d Cir. 2018), we require that in either the defendant’s case or another case "the courts in fact did apply the statute" in that manner, Hill , 890 F.3d at 56. The proposition that a state statute can apply to conduct beyond the application of ACCA cannot be based on mere "flights of fancy" or "the application of legal imagination." Id. at 56. With those realistic readings of the statute in mind, we then determine whether "the state statute sweeps more broadly" than ACCA, in which case a conviction under the state statute cannot serve as an ACCA predicate. Stuckey v. United States , 878 F.3d 62, 67 (2d Cir. 2017) (internal quotation marks omitted). A statute that penalizes activity that does not require the use of force thus "cannot count as a predicate ‘violent felony’ [under the force clause] for the ACCA’s fifteen-year mandatory minimum." Id.

The government has provided...