United States v. Scott

Decision Date02 March 2021
Docket NumberNo. 18-163-cr,August Term 2020,18-163-cr
Citation990 F.3d 94
Parties UNITED STATES of America, Appellant, v. Gerald SCOTT, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Defendant-appellee Gerald Scott is a violent criminal, who has repeatedly threatened, and on two occasions taken, human life. The killings were undoubtedly brutal: Scott shot one of his victims in the head at point-blank range; he stabbed the other to death. For these killings, Scott stands twice convicted in New York State of first-degree manslaughter under N.Y. Penal Law § 125.20(1), a homicide crime second only to murder in its severity.1 At issue on this appeal is whether Scott's manslaughter convictions are for violent crimes. An affirmative answer might appear obvious to a man on the street aware of Scott's conduct. But the laws relevant here—the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. § 924(e)(2)(B), and the Career Offender Sentencing Guideline, see U.S.S.G. § 4B1.2(a) —do not identify violent crimes by looking to what a defendant actually did. Rather, they look to the minimum he might have done and still been convicted. This inquiry focuses on a crime's elements, asking whether they categorically require a defendant's use of physical force, specifically violent physical force. See Curtis Johnson v. United States , 559 U.S. 133, 140, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (defining physical force required by ACCA).2 Applying that standard here, we conclude that first-degree manslaughter is a categorically violent crime because its elements—(1) the causation of death (2) by a person intent on causing at least serious physical injury—necessarily involve the use of violent force.

The occasion for our ruling is the United States’ appeal from an amended judgment of conviction entered on January 12, 2018, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge ), which resentenced Scott to time served (then totaling approximately 11 years, 3 months) for attempted Hobbs Act robbery and related firearms crimes. Resentencing followed the district court's grant of Scott's 28 U.S.C. § 2255 motion to vacate his original 22-year sentence. See United States v. Scott , No. 06 CR 988-LTS, 2017 WL 2414796, at *3 (S.D.N.Y. June 2, 2017). The district court concluded that it had mistakenly relied on ACCA and the Career Offender Guideline in imposing Scott's initial sentence. It reasoned that Scott's two prior convictions for first-degree manslaughter did not qualify as predicate violent crimes because "first degree manslaughter can be committed in New York State by omission and thus without using force." Id. at *2 (emphasis added).3 A divided panel of this court agreed, with the majority analogizing omission to "complete inaction," and concluding therefrom that the crime could be committed without the use of force. See United States v. Scott , 954 F.3d 74, 78 (2d Cir. 2020) (holding first-degree manslaughter "not a predicate crime of violence because it can be committed by complete inaction and therefore without the use of force").

After rehearing the case en banc , we reject this reasoning, which, carried to its logical—or illogical—conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person's death by omission when the defendant's specific intent is to kill, see N.Y. Penal Law § 125.25(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see id. § 125.20(1) (first-degree manslaughter). We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.

Indeed, we find that path foreclosed by the Supreme Court's decision in United States v. Castleman , 572 U.S. 157, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014). The Supreme Court there stated that the "knowing or intentional causation of bodily injury necessarily involves the use of physical force." Id. at 169, 134 S.Ct. 1405 (emphasis added). Because New York first-degree manslaughter can only be committed by a defendant who causes death—the ultimate bodily injury—while intending to cause at least serious physical injury,4 the crime necessarily involves the use of physical force.

Nor is a different conclusion warranted by the possibility of New York first-degree manslaughter being committed by omission. First, to the extent that the use of physical force implies some action by a defendant, the criminal law recognizes an omission as "affirmative action" in identifying criminal culpability. 2 Wayne R. LaFave, Substantive Criminal Law § 15.4(b), at 717 (3d ed. 2018) (hereinafter "LaFave"); see infra at 109, 114–15. Second, in Castleman , the Supreme Court explained that a defendant's use of force does not depend on his own actions in initiating or applying injurious force. What matters is that he knowingly employed or availed himself of physical force as a device to cause intended harm. 572 U.S. at 171, 134 S.Ct. 1405 (explaining that, in poisoning scenario, "use of force" is "not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physical harm" (brackets and internal quotation marks omitted)); see also Villanueva v. United States , 893 F.3d 123, 128 (2d Cir. 2018) (following Castleman , "use of force" inquiry "focuses on the causation of a consequence, rather than the physical act of initiating an action that leads to a consequence"). A defendant can do that as much by omission as by commission in committing first-degree manslaughter. That is because, when a defendant causes death by breaching a legal duty to check or redress violent force because he intends thereby for that force to cause serious physical injury, what he is doing is making that force his own injurious instrument. Six of our sister circuits agree that crimes intentionally causing physical injury are categorically violent even if committed by omission.5

In sum, after reviewing the matter en banc , this court identifies New York first-degree manslaughter as a categorically violent crime under the force clauses of ACCA and the Career Offender Guideline. Accordingly, we vacate the panel decision, reverse the district court's grant of Scott's § 2255 motion, vacate the reduced sentence reflected in the amended judgment, and remand the case to the district court with directions to reinstate Scott's original sentence and judgment.


I. Scott's Federal Crimes of Conviction and Violent Criminal History

Whether first-degree manslaughter in violation of New York Penal Law § 125.20(1) is a violent crime is a question that here arises in the context of determining the appropriate sentence for Scott's latest conviction for three federal crimes to which he pleaded guilty: attempted Hobbs Act robbery, see 18 U.S.C. § 1951 ; brandishing a firearm during that robbery, see id. § 924(c)(1)(A)(ii); and, at the same time, being a previously convicted felon in possession of a firearm, see id. §§ 922(g)(1), 924(e). Scott committed these crimes on September 26, 2006, when he entered a Bronx jewelry store, pointed a gun at the store owner, and ordered him to surrender the contents of his cash register. The robbery, and any possible ensuing injury, were thwarted only by the fortuitous intervention of a police officer.

This is Scott's fourth conviction for felony crimes committed by threatening—and on two occasions taking—human life. In 1983, Scott was convicted of first-degree robbery, see N.Y. Penal Law § 160.15, during which crime he held a 75-year-old man at knifepoint. Then, in 1988, Scott was twice convicted of New York first-degree manslaughter. See id. § 125.20(1). On one occasion, he fatally shot the victim in the head at point-blank range. On the other occasion, he stabbed the victim to death.

A. Scott's Initial Sentence

Judged simply by his own brutal conduct, Scott is clearly a persistently violent felon. In sentencing Scott for his most recent federal crimes, the district court was certainly entitled—and, indeed, required—to consider his violent criminal history. See 18 U.S.C. § 3553(a)(1) (stating that court, in determining sentence "shall consider," inter alia , "the history and characteristics of the defendant"); id. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."). That history was relevant, at a minimum, to assessing the seriousness of Scott's most recent crimes. It was also relevant to the likelihood of his committing future crimes, and to the danger—life-threatening danger—that might be posed to innocent persons from such crimes. See id. § 3553(a)(2)(A), (C).

At the same time, however, the law sometimes requires specific findings to trigger particular sentencing consequences. Thus, to apply a "Career Offender" enhancement to Scott's Sentencing Guidelines calculation, the district court was required to find that he had two or more felony convictions for a "crime of violence" or a "controlled substance offense." U.S.S.G. § 4B1.1(a).6 Similarly, to impose ACCA's fifteen-year mandatory minimum sentence for Scott being a felon in possession of a firearm, the court had to find that he had three or more prior "violent felony" or "serious drug offense" convictions. 18 U.S.C. § 924(e)(1).7

At Scott's initial sentencing, the district court concluded—with no objection and, therefore, little discussion—that Scott warranted sentencing enhancements under both ACCA and the Career Offender Guideline based on his 1983 conviction for robbery and his two 1988 convictions for first-degree manslaughter. Accordingly, on April 16, 2008, the district court...

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