United States v. Castillo
| Decision Date | 08 June 2022 |
| Docket Number | 21-527,August Term, 2021 |
| Citation | 36 F.4th 431 |
| Parties | UNITED STATES of America, Appellee, v. Chayanne CASTILLO, AKA Bambi, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Shiva H. Logarajah (Karl Metzner, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Daniel Habib, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
Before: Sack, Lohier, and Nardini, Circuit Judges.
In this appeal, we must answer a now-familiar question: Does a criminal defendant's prior conviction qualify as a "crime of violence" and thus subject him to a higher sentence for a subsequent federal conviction? In Defendant-Appellant Chayanne Castillo's case, however, the answer depends on two peculiarities of New York law. First, New York allows criminal defendants to plead guilty to legally impossible offenses. Castillo did just that. Second, the legally impossible offense to which Castillo pled guilty—namely, attempted second-degree gang assault in violation of New York Penal Law §§ 120.06 and 110.00 —involves the incoherent premise that the defendant intended to cause an unintended result. The United States District Court for the Southern District of New York (Cathy Seibel, Judge ) determined that attempted second-degree gang assault was a crime of violence sufficient to raise Castillo's base offense level under the United States Sentencing Guidelines. We conclude, however, that Castillo's conviction for this particular offense did not include an element constituting the use, attempted use, or threatened use of physical force, and so it should not have been used to enhance his Guidelines range. We therefore VACATE Castillo's sentence and REMAND for resentencing.
On June 26, 2020, Castillo was charged in a one-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Castillo pleaded guilty to this charge without a plea agreement on November 19, 2020.
In its Presentence Report, the United States Probation Office ("Probation") applied U.S.S.G. § 2K2.1(a)(4)(A). That section provides for a base offense level of 20 for the unlawful possession of a firearm if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." The application notes to § 2K2.1 dictate that the phrase " ‘[c]rime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." U.S.S.G. § 2K2.1, comment. (n.1). In turn, § 4B1.2, also known as the Career Offender Guideline, defines "crime of violence" to mean "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another," or (2) is one of a series of enumerated crimes including "aggravated assault." U.S.S.G. § 4B1.2(a)(1)–(2). Subsections (1) and (2) are known as the "force clause" and the "enumerated offenses clause," respectively. Application Note 1 of the Commentary to § 4B1.2 further states that the term "crime of violence ... include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2, comment. (n.1).
Probation determined that Castillo had a felony conviction for a crime of violence: a 2011 conviction for attempted second-degree gang assault in violation of New York Penal Law §§ 120.06 and 110.00. "A person is guilty of gang assault in the second degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person." N.Y. Penal Law § 120.06. New York law defines "[p]hysical injury" as "impairment of physical condition or substantial pain," id. § 10.00(9) (internal quotation marks omitted), and "[s]erious physical injury" as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ," id. § 10.00(10) (internal quotation marks omitted). New York law provides that a person "is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Id. § 110.00.
Without the enhancement for a prior crime of violence, Castillo's base offense level would have been 14. See U.S.S.G. § 2K2.1(a)(6)(A). Instead, after subtracting three levels for acceptance of responsibility, Probation arrived at a total offense level of 17. In combination with his criminal history category of V, this base offense level yielded an advisory Guidelines range of 46 to 57 months of imprisonment.
Castillo objected to the use of his prior conviction to increase his base offense level, arguing that attempted second-degree gang assault is not a crime of violence for three reasons: (1) second-degree gang assault requires only intent to cause physical injury, not serious physical injury, and so the offense does not meet the minimum level of violent force required; (2) second-degree gang assault could be committed by omission and thus does not categorically require the "use" of force; and (3) second-degree gang assault is not generic "aggravated assault" as enumerated in § 4B1.2(a)(2).
Castillo was sentenced on March 3, 2021. The district court overruled Castillo's objection to the use of his prior conviction to enhance his base offense level. It rejected Castillo's first argument, finding that "a knowing and intentional causing of physical injury ... necessarily involves physical force," and that "[t]he requirement that two or more people be[ ] in the immediate vicinity aiding the actor made it obvious that the statute requires use of violent force." App'x at 64, 66. Relying on our en banc decision in United States v. Scott , 990 F.3d 94 (2d Cir. 2021), in which we held that even an offense that can be committed by omission can involve the use of force, id. at 125, the district court also rejected Castillo's second argument. Because the district court found that attempted second-degree gang assault was a crime of violence under U.S.S.G. § 4B1.2(a) ’s force clause, it did not reach his third argument, that his prior conviction was not generic "aggravated assault" under § 4B1.2(a) ’s enumerated offenses clause.
Ultimately, the district court agreed with Probation's calculation of Castillo's base offense level at 20, resulting in a total offense level of 17 after adjustment for Castillo's acceptance of responsibility. After accounting for Castillo's criminal history category of V, the district court arrived at an advisory Guidelines range of 46 to 57 months. After considering the factors outlined in 18 U.S.C. § 3553(a), the district court decided to "go a little bit below the guidelines, but ... not ... a lot below the guidelines." App'x at 81–82. The district court sentenced Castillo to a 40-month term of imprisonment. This appeal followed.
"We review a sentence on appeal for procedural and substantive reasonableness." United States v. Seabrook , 968 F.3d 224, 232 (2d Cir. 2020). "A district court commits procedural error when ... it makes a mistake in its Guidelines calculation." Id . Whether an offense is a "crime of violence" under the Career Offender Guideline is a question of law that we decide de novo . Scott , 990 F.3d at 104.
On appeal, Castillo argues that the district court erred by classifying attempted second-degree gang assault as a crime of violence under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a)(1) and, as a result, using a base offense level of 20 to calculate his advisory Guidelines range. He contends in part that his crime of conviction—attempted second-degree assault—is not a "crime of violence" within the meaning of § 4B1.2(a) ’s force clause because it is legally impossible under New York law, does not entail a coherent mens rea , and therefore cannot be said to categorically constitute a crime of violence.1
Much of Castillo's argument depends upon the implications of his crime of conviction—attempted second-degree gang assault—being legally impossible. New York law allows a defendant to plead guilty to a "nonexistent or legally impossible offense in satisfaction of an indictment that charges a higher offense" to facilitate the plea-bargaining process and further the policy interests that this process serves. People v. Tiger , 32 N.Y.3d 91, 101, 85 N.Y.S.3d 397, 110 N.E.3d 509 (2018). In approving this unusual practice, the New York Court of Appeals has emphasized that a defendant who knowingly accepts a plea to a legally impossible offense "in satisfaction of an indictment charging a crime carrying a heavier penalty" has "declined to risk his chances with a jury" and received the "substantial benefit" of a decreased sentencing range. People v. Foster , 19 N.Y.2d 150, 153, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967). Put differently, a plea to a legally impossible offense "should be sustained on the ground that it was sought by [the] defendant and freely taken as part of a bargain which was struck for the defendant's benefit." Id. at 154, 278 N.Y.S.2d 603, 225 N.E.2d 200.
Under New York law, an attempt "consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent." People v. Campbell , 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86 (1988); see also N.Y. Penal Law § 110.00 (...
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