18

- 163 United States v. Scott

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

____________________ 3
4 August Term, 201 8 5
6 (Argued: January 1 0 , 201 9 Decided: M a r c h 3 1 , 2 0 2 0 ) 7
8 Docket No. 1 8

- 16 3 9
10

____________________ 11
12 U NITED STATES OF AMERICA, 13
14 Appell ant , 15
16

v. 17
18 GERALD SCOTT , 19
20 Defendant

- Appell ee

. 21
22

____________________ 23
24 Before: LEVAL , P OOLE R, and RAGGI , Circuit Judges

. 25
26 The United States appeals from an opinion and order of the United States 27
District Court for the Southern District of New York ( Laura T. Swain , J .) vacating 28
Gerald Scott’s sentence and resentencing him to time served . The district court 29

held that because New York first

- degree manslaughter can be committed by 302 omission, it cannot serve as a predicate felony for the sentencing enhancements 1
prescribed in the Armed Career Criminal Act (“ACCA”) or the Career Offender 2
Sentencing Guideline. We hold that th e district court properly concluded that 3

New York first

- degree manslaughter is not a predicate crime of violence because 4
it can be committed by omission and therefore without the use of force , as 5

defined in Curtis Johnson v. United States , 559 U.S. 133 (20 10)

. We also hold that 6

New York first

- degree manslaughter does not match any of the generic offense s 7

enumerated in the Career Offender Guideline. We therefore affirm the district 8

court’s vacatur of Scott’s sentence under ACCA and its decision to resentence 9

Scott to time served. 10

Affirmed. Judge Leval joins in Judge Pooler’s opinion for the C ourt and 11
also concurs by a separate opinion, in which Judge Pooler joins. 12
Judge Raggi dissents in a separate opinion. 13

____________________ 14

WON S . SHIN, Assistant United States Attorney (Sarah 15 K. Eddy, Catherin e E. Ghosh, Assistant United States 16 Attorneys), for Geoffrey S. Be r man, United States 17 Attorney for the Southern District of New York, NY, for 18 Appellant

. 193 MATTHEW B. LARSEN, Assistant Federal Defender, 1 Federal Defenders of New York, Inc., New York, NY, for 2 Defendant

- Appellee

. 3
4 POOLER, Circuit Judge : 5
The United States appeals from an opinion and order of the United States 6

District Court for the Southern Dist rict of New York (Laura T. Swain, J .) vacating 7
Gerald Scott’s sentence and resentencing him to time served based on his service 8
of only eleven years of imprisonment . The district court held that because New 9

York first

- degree manslaughter can be committed b y omission, it cannot serve as 10
a predicate felony for the sentencing enhancements prescribed in the Armed 11
Career Criminal Act (“ACCA”) or the Career Offender Sentencing Guideline. We 12

hold that the district court properly concluded that New York first

- degre e 13
manslaughter is not a predicate crime of violence because it can be committed by 14
complete inaction and therefore without the use of force , as defined in Curtis 15
Johnson v. United States , 559 U.S. 133 (2010)

. We also hold that New York first

16
degree manslaughter does not match any of the generic offenses enumerated in 17

the Career Offender Guideline. We therefore affirm the district court’s vacatur of 18

Scott’s sentence under ACCA and its decision to resentence Scot t to time served. 194 BACKGROUND 1
On October 10, 20 0 7, Gerald Scott pled guilty to Hobbs Act robbery in 2
violation of 18 U.S.C. §§ 1951 , 2 (“Count I”) ; brandishing a weapon during Hobbs 3
Act robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) , 2 (“Count III”) ; and being 4
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)( 1 ) and § 924(e) 5
(“Count IV”) . Judge Swain sentenced Scott to a term of 151 months’ 6
imprisonment on Count I to be served concurrently with a term of 180 months on 7

Count I V, followed by a consecutive term of 84 months on Count III. 8

Scott’s ACCA conviction on Count IV , which is the focus of this appeal, 9

w as based on the following predicate offenses: a 1983 conviction for New York 10
robbery in the first degree and two 198 8 con viction s for New York manslaughter 11
in the first degree. In the course of these crimes, Scott shot and killed one victim 12

and stabbed another to death. These prior convictions subjected him to a 13
mandatory sentence of 180 months on Count IV

. 1 14

1 Judge Raggi devotes much of her opinion to detailing the violent savagery of Scott’s conduct in both his present and his predicate offenses. We do not disagree that Scott is deserving of serious punishment. Nonetheless, we must point out5 On April 26, 2010, Scott filed a habeas petition to vacate his conviction, 1
arguing that he received ineffective assistance of counsel. Judge Swain denied 2

that motion. In November 2016, Scott received this Co urt’s permission to file a 3
successive habeas petition in light of Samuel Johnson v. United States , 135 S. Ct. 4
2551 (2015). 5
The district court granted Scott’s successive habeas petition, finding Scott’s 6
convictions for New York manslaughter were not violen t felonies so that Scott 7
was ineligible for an ACCA sentence. The district court reasoned that based on 8

decisions of the New York Court of Appeals, “first degree manslaughter can be 9
committed in New York State by omission and thus without using force.” United 10

States v. Scott , No. 06 CR 988

- LTS, 2017 WL 2414796, at *2 (S.D.N.Y. June 2, 2017). 11

that these observ ations in Judge Raggi’s opinion are wholly irrelevant to the question before us. The Supreme Court has ruled that it is irrelevant to the applicability of ACCA whether the particular defendant acted with violence in the commission of the crimes. See Villan ueva v. United States , 893 F.3d 123, 127

- 28 (2d Cir. 2018) (citing Descamps v. United States , 570 U.S. 254 (2013)). The applicability of ACCA instead turns, as relevant here, on whether under the governing law the crimes necessarily require violent action. If a crime is capable of being committed without the use of physical force, the fact that a defendant acted with the most horrifying violence in the commission of that crime has no bearing on whether the defendant is punishable under ACCA.6 The court thus held that Scott was “not subject to the career offender 1

enhancement under ACCA” and vacated his sentence for recalculation. Id. at * 3. 2

At the resentencing hearing, the district court considered whether Scott 3

c ould be sentenced under the Career Offender Guideline, U.S.S.G. § 4B1.1. 4
Relying on its analysis above, the district court determined that New York first

5
degree manslaughter was not a “cri me of violence” under the force clause of the 6

Career Offender Guideline for the same reasons it was not a crime of violence 7

under ACCA’s identical force clause . The district court also rejected the 8
government’s argument that the Career Offender Guideline a pplies to Scott 9

under the enumerated

- offenses clause because New York first

- degree 10
manslaughter criminalize s the same conduct as generic murder, voluntary 11
manslaughter, or aggravated assault in the Guideline’s enumerated

- offenses 12

clause. Having decided that the Career Offender Guideline could not apply, the 13
district court calculated Scott’s sentencing range at 121 to 130 months. At the 14
time of the hearing, Scott had served approximately 134 months of his sentence

— 15

four months above the Guidelines range’s upper boundary. The district court 167 therefore sentenced Scott to time served and five years of supervised release. 1

Scott is out on supervised release. 2

DISCUSSION 3
On appeal, the government argues that Scott qualifies for ACCA’s 180

- 4
month mandatory m inimum sentence because New York first

- degree 5
manslaughter is a crime of violence that “has as an element the use, attempted 6
use, or threatened use of physical force against the person of another.” 18 U.S.C. 7
§ 924(e)(2)(B)(i). In the alternative, t he government argues that Scott should be 8

sentenced under the Career Offender Guideline because New York first

- degree 9
manslaughter criminalizes the same conduct as the generic offenses of murder, 10
voluntary manslaughter, or aggravated assault, which are enumer ated crimes of 11

violence in the Guideline. Scott responds that the minimum criminal conduct 12
required to commit New York first

- degree manslaughter does not have as an 13

element the “use” of force because the crime can be committed by omission

— 14
otherwise put, by doing nothing

. He also argues that a majority of states do not 15

criminalize the conduct that New York first

- degree murder penalizes as first

- 168 degree manslaughter as generic murder, voluntary manslaughter, or aggravated 1

assault. 2

I. New York First

- Degree Manslaughter Is Not a Crime of Violence 3 Under the Force Clause of 18 U.S.C. § 924(e) 4 ACCA sets a mandatory minimum sentence of “not less than fifteen years” 5
for criminal defendants who have at least three prior convictions for “a vio lent 6
felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). As relevant here, the 7
statute defines a “violent felony” as “any crime punishable by imprisonment for 8
a term exceeding one year” that “has as an element the use, attempted use, or 9

threatened us e of physical force against the person of another.” Id

. 10
§ 924(e)(1)(B)(i). 11
The question before us is whether New York first

- degree manslaughter 12

satisfies that definition. New York Penal Law lists three criminal acts for which a 13
person may be found “guilty of manslaughter in the first degree .” N.Y. Penal 14
Law § 125.20. First, the statute holds a person liable for first

- degree manslaughter 15

who “ with intent to cause serious physical injury to another person,

. . . causes 16
the death of such person or of a third person

. ” Id. § 125.20(1). Second, t he statute 179 criminalizes causing the death of another person “under the influence of extreme 1
emotional disturbance,” id. § 125.20(2)

. T hird , the statute makes it illegal to, with 2
intent to cause physical injury, “ creat e [] a grave risk of serious physical injury to 3
a person less than eleven years old ” that causes their death

. I d

. § 125.20(4). 4
Where a statute, like New York’s first

- degree manslaughter statute, 5
“criminalize[s] multiple acts in the alternative,” we refer to the statute as 6
“divisible” and apply the “modified categorical approach” to determine whether 7
a conviction under the statute can serve as a predicate offense for a federal 8

sentence enhancement. United States v. Jones , 878 F.3d 10, 16 (2d Cir. 2017); accord 9
Descamps v. United States , 570 U.S. 254, 261

- 62 (2013); see also United States v. 10

Castillo , 896 F.3d 141, 149

- 50 (2d Cir. 2018) (determining New York Penal Law 11
§ 1 25.20 is “a state statute [that] criminalizes multiple acts in the alternative” and 12
thus requires the modified categorical approach ( alterations and internal 13
quotations marks omitted)). Under that approach, we first look to “a limited class 14

of documents” t o determine of which act the defendant was convicted. Id. 15
“[L]ook[ing] only to the statutory definitions

— i.e., the elements

— of [that portion 16
of the statute], and not to the particular underlying facts,” Hill , 890 F.3d at 55 1710 ( alterations and internal quotat ion marks omitted), we then ask whether those 1
elements can be satisfied by conduct that might reach beyond the parameters of 2
ACCA. If so, we ask whether there is “a realistic probability, not a theoretical 3
possibility,” that the statute would be applied in that manner. Id. at 56. Unless 4
“the state statute . . . on its face extends to conduct beyond the definition of the 5
corresponding federal offense,” see Hylton v. Sessions , 897 F.3d 57, 63 (2d Cir. 6
2018), we require that in either the defendant’s case or a nother case “the courts in 7
fact did apply the statute” in that manner, Hill , 890 F.3d at 56. The proposition 8
that a state statute can apply to conduct beyond the application of ACCA cannot 9
be based on mere “flights of fancy” or “the application of legal im agination.” Id. 10

at 56. With those realistic readings of the statute in mind, we then determine 11
whether “the state statute sweeps more broadly” than ACCA, in which case a 12
conviction under the state statute cannot serve as an ACCA predicate. Stuckey v. 13

Unite d States , 878 F.3d 62, 67 (2d Cir. 2017) (internal quotation marks omitted). A 14
statute that penalizes activity that does not require the use of force thus “cannot 15
count as a predicate ‘violent felony’ [under the force clause] for the ACCA’s 16

fifteen

- year ma ndatory minimum.” Id

. 1711 The government has provided two certificates of disposition establishing 1
that both of Scott’s manslaughter convictions were under New York Penal Law 2
§ 125.20(1), which penalizes a person who “[w]ith intent to cause serious physical 3
injury to another person, . . . causes the death of such person or of a third 4
person.” We theref ore consider only Section 1 of New York Penal Law § 125.20, 5

and ask whether the minimum criminal conduct required for conviction under 6
this provision falls within ACCA. 7

A. The Minimum Criminal Conduct that New York First

8 Degree Manslaughter Requires Is an Omi ssion Despite a 9 Duty to Act 10 The district court determined that the minimum criminal conduct required 11

for a defendant to be held liable under New York P e n a l Law § 125.20(1) is a 12

failure to act in the face of a duty to do so , with the intent to cause serious 13
physical injury, which failure causes death

. The government argues that the 14

district court’s conclusion was erroneous because criminal liability for New York 15

first

- degree manslaughter attaches only when a person is complicit in the 16

commission of an act that sets harm into motion and then fails to act to stop that 17
harm from killing another. We reject the government’s strained argument 1812 because the New York Court of Appeals has explicitly held that New York first

1
degree manslaughter can be committed by omission. 2
The New York Court of Appeals has clearly and emphatically asserted on 3

two occasions that New York first

- degree manslaughter may be committed by a 4
defendant’s failure to act. First, in People v. Steinberg , 29 N.Y.2d 673 (1992), the 5
Court of App eals considered whether the first

- degree manslaughter conviction 6
of a father who had both physically abused his six

- year

- old daughter and then 7

failed to secure medical care for her resultant serious injuries , which ultimately 8

caused her death , was sustainable on either basis. New York’s highest court 9
“found no defect in the prosecution’s legal theory” that the “defendant 10
performed both acts of commission (striking [the daughter]) and acts of omission 11
(failure to obtain medical care), each with i ntent to cause serious physical injury , 12
and that such acts caused [the daughter’s] death.” Id. at 680

- 81

. In so finding, the 13
Court of Appeals held that Steinberg’s “acts of omission” (the failure to secure 14
medical care) would have been sufficient to sustai n the manslaughter conviction, 15

even if he had not inflicted the injuries that required medical attention. Id

. 16
Steinberg had argued in his defense that “failure to obtain medical care for a 1713 child cannot, as a matter of law, support the mens rea element of f irst degree 1
manslaughter . . . unless defendant has medical expertise, and would thereby 2
know that serious injury will result from a lack of medical attention.” Id. at 680. 3
The court rejected that argument. It explained: “The Penal Law provides that 4

crimin al liability may be based on an omission, which is defined as the failure to 5
perform a legally imposed duty. Parents have a nondelegable affirmative duty to 6
provide their children with adequate medical care. Thus, a parent’s failure to fulfill 7
that duty ca n form the basis of a homicide charge .” Id. (emphasis added) (citations 8
omitted). While acknowledging that it relied upon cases involving prosecutions 9
for reckless manslaughter and criminally negligent homicide in reaching this 10

conclusion , the court repeated, “the failure to obtain medical care can also 11
support a first degree manslaughter charge, so long as there is sufficient proof of 12
the requisite mens rea

— intent to cause serious physical injury.” Id

. 13

The Cou rt of Appeals reaffirmed this conclusion in People v. Wong , 81 14
N.Y.2d 600 (1993). The prosecution in Wong charged an infant’s two caretakers, 15
Eugene and Mary Wong, with first

- degree and second

- degree manslaughter

. Id. 16

at 606. There, the infant died from sh aken baby syndrome after one of the Wongs 1714 shook the infant and both of the Wongs subsequently fail ed to seek medical care 1

for the infant. Id . The prosecution contended that even though only one of the 2

defendants had shaken the child , both defendants were liable for first

- degree 3
manslaughter. Id. The prosecution could not prove which of the two defendants 4

had shaken the infant and , for want of this proof , argued that a defendant who 5

had no role in the harmful act could be held liable for first

- degree manslaughter 6

based on a failure to act

. The defendants were convicted on all counts, and the 7
Appellate Division reversed the convictions for first

- degree manslaughter as 8
against the weight of the evidence on the issue of intent to cause serious bodily 9
injury. As to the second

- degree manslaughter convictions, t he Court of Appeals 10

made clear “ that the People’s theory against the ‘passive’ defendant is legally 11

sound” because in Steinberg , it had “ held that parents have an affirmative duty to 12
provide their children with adequate medical care and that, under certain 13
circumstances, the failure to perform that duty can form the basis of a homicide 14
charge.” Id. at 607. That is, “ a person in the position of the ‘passive’ defendant 15
here may be held criminally liable for failing to seek emergency medical aid for a 16
seriously injured child

. ” Id. at 608. The court ultimately reversed the defendants’ 1715 convictions because of “the absence of proof from which the jury could infer that 1
the ‘passive’ defendant was even aware that the infant had been violently 2
shaken,” and therefore needed medical care. Id . at 609. 3
The Government argues that, notwithstanding the explicit statement of the 4
Court of Appeals in Steinberg that “the failure to obtain medical care can . . . 5
support a first degree manslaughter charge,” 79 N.Y.2d at 680, that case “does 6
not stand for the proposition that a pure omission without any active use of force 7

would suffice to ground a conviction under Section 125.20(1).” Appellant’s Br. at 8
26. It imports great significance to the court’s phrase : “so long as there is 9
sufficient proof of the requisite mens rea .” The Government contends that an 10

affirmative act of violence

— such as defendant Steinberg’s striking the victim 11
prior to his withholding of medical care

— is necessary to establish the mens rea of 12
intent to cause serious physical harm. It thus argues that, notwithstanding the 13

court’s statement that failure to obtain medical care is sufficient for a conviction 14

of first

- degree manslaughter, the need to establish mens rea effectively requires a 15
preceding act of violence on the part of the defendant. Judge Raggi argues for 16

similar reasons that the Steinberg defendant’s acts of violence and acts of 1716 omission were “inextricably linked,” so that the case cannot establish a realistic 1
probability that New York courts would apply the manslaughter statute to acts 2

of omis sion alone. 3
We disagree. A defendant’s intent to cause serious physical harm to the 4
victim can be established in many ways other than that defendant’s preceding act 5
of violence, including most obviously the defendant’s having observed (or 6
having been told of) the infliction of violence on the child by another, or the 7

defendant’s statement of intention to inflict harm. Although the facts in Steinberg 8
happened to include a preceding act of violence by the defendant, the court’s 9
independent analysis of inactio n makes clear that a failure to act would be alone 10

sufficient to sustain a conviction where the required mens rea was shown

. 11
Nothing in that discussion suggests the defendant’s inaction must be linked to 12
that defendant’s affirmative act of violence; indeed everything in that discussion 13
supports the contrary. 14
The Government and Judge Raggi also argue that, because the defendants’ 15

convictions in Wong were reversed due to insufficiency of evidence of either 16

defendant’s awareness of the fact that the child ha d been shaken, the court’s 1717 discussion of the sufficiency of inaction was dictum, and therefore the case 1
cannot show a realistic probability that a New York conviction for first

- degree 2
manslaughter based on omission alone would be sustained. 3
The argument th at Wong ’s dictum is inadequate to show “realistic 4
probability” is both irrelevant (as the proposition was a holding in Steinberg ) and 5
exaggerate s the meaning of our precedents requiring a “realistic probability” of 6
application of a statute beyond the scop e of ACCA. We have stated that a 7
“realistic probability” requires that “the courts did in fact apply” the statute in 8
the manner considered, as opposed to a mere “flight of fancy” or explanation of 9
“the legal imagination.” Hill , 890 F.3d at 56. For the proposition that New York 10
courts would apply the first

- degree manslaughter statute to inaction in the face 11
of a duty to act, we do not rely on a flight of fancy or of legal imagination. We 12
rely on the carefully considered and subsequently repeated assertio n of that 13
proposition by the highest court of New York. In Steinberg , the Court so held, 14
explicitly sustaining the defendant’s conviction on the basis of inaction 15
(notwithstanding the court’s recognition that the conviction would also be 16

sustained on anoth er basis). In Wong , furthermore, the Court of Appeals 1718 described its prior statement in Steinberg as a holding. In view of the Steinberg 1
holding by the state’s highest court, coupled with the Court’s emphatic 2
reaffirmance of the same proposition in Wong , it appears to us that a New York 3
trial court would be compelled to conclude that first

- degree manslaughter can be 4
satisfied by inaction, and we are compelled in this case to construe New York 5
law following what New York’s highest court has explicitly held. 6

W ong a dditionally contradicts Judge Raggi’s assertion that no defendant 7
has been “actually prosecuted” under an omission theory. As we noted earlier, 8
the government in Wong “ argued

. . . that the People's case rested on the theory 9

that each defendant was in dependently liable for [the child’s] death because one 10
of them had shaken the baby while the other had stood by and failed to 11

intervene. ” 81 N.Y.S.2d at 606. Wong thus establishes not only that a defendant 12
may be convicted for first

- degree manslaughter bas ed on omission, but also that 13
New York has actually prosecuted defendants under this theory

. 14
In short, these two decisions from New York’s highest court are more than 15
sufficient to establish a realistic probability that New York first

- degree 16
manslaughter could be applied to a defendant who intentionally causes death by 1719 an act of omission in the face of a duty to protect the victim from a perceived 1
harm. New York’s highest court “did in fact apply” the first

- degree 2
manslaughter statute t o the facts of a particular case. See Hill , 890 F.3d at 56. 3
Judge Raggi acknowledges that the standard is whether there is a “realistic 4
probability” that the courts would accept omission as the basis of a first

- degree 5
manslaughter conviction. Hill , 890 F. 3d at 56. That standard requires that the 6
courts “in fact did [so] apply the statute.” Id . Nonetheless, in her reasoning, she 7

converts that standard into whether the courts of New York have in fact affirmed 8
a manslaughter conviction based on omission. Notw ithstanding that in both 9
Steinberg and Wong , cases in which the manslaughter charge was (as an 10
alternative) predicated on omission, New York’s highest court expressly stated 11
that omission alone would support liability, Judge Raggi asserts that there is no 12
such realistic probability because in neither case did the Court of Appeals affirm 13
a conviction predicated on inaction without complicity in any action. By doing 14
so, Judge Raggi has effectively converted the requirement of “realistic 1520 probability” to a requ irement of actual affirmance of a manslaughter conviction 1

based on omission alone , a reading that has no basis in our case law. 2 2
Accordingly, we consider whether a crime committed by omission is a 3
violent felony under ACCA’s force clause. 3 4

2 Judge Raggi a lso notes, correctly, that by the time the case reached the Court of Appeals, Wong involved only convictions for second

- degree manslaughter, which requires proof only of recklessness, rather than the first

- degree manslaughter statute at issue here, which r equires proof of intent to cause serious physical injury. But this fact does not disturb our conclusion that New York’s highest court has applied the first

- degree manslaughter statute to omission. Steinberg expressly upheld a first

- degree manslaughter conv iction on the theory that the defendant’s knowing inaction in circumstances in which he had a duty to act to protect the victim constituted the crime. Wong relied on that ruling, characterizing it as a holding.

3 We are puzzled fur thermore by Judge Raggi’s argument that there is no realistic probability that New York courts would apply first

- degree manslaughter to a parent who, with intent to cause serious injury to his or her child , causes death by refusing to provide needed medical care ( without a preceding act of violence), but would apply it to a parent who causes death by striking his child. Judge Raggi herself asserts that it “ make s no sense ” to impose criminal liability on one who acts, sprinkling poison on the victim’s food with inte ntion to cause death but not on one who, knowing that the victim’s food is poisoned and with the same intention, passively allows the victim to ingest the poison. We do not disagree with Judge Raggi that the two cases should be treated alike so long as the words of the governing statute allow that. The New York Court of Appeals appears to agree as well, and that is why the Court held that first

- degree manslaughter liability applies to one who kills by inaction as well as to one who21 B. New York First

- Degree Manslaughter Sweeps More Broadly 1 than 18 U.S.C. § 924(e) 2
We must decide whether a crime that can be committed by omission “has 3

as an element the use, attempted use, or threatened use of physical force against 4
the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The government, relying on 5

United States v. Castleman , 572 U.S. 157 (2014), argues that where a defendant’s 6
omission causes a serious injury, force is implicit in the inaction and thus the 7

omission constitutes a use of force. Scott counter s that ACCA’s text requires an 8

active deployment of force that an omission , by nature , cannot effectuate and that 9

Castleman cannot be read to hold that a defendant who commits nothing more 10

than a culpable omission (without any affirmative act) uses force. 11
The Supreme Court articulated the standard for what constitutes the use of 12
“physical force” sufficient to satisfy S ection 924(e) in Curtis Johnson v. United 13

States , 559 U.S. 133. Contrary to the position stated by Justice Alito in dissent that 14
“ACCA uses ‘violent felony’ as a term of art with a wider meaning than the 15

kills by act of violence (assuming mens rea in both cases). We therefore cannot see why Judge Raggi finds it improbable that New York courts would impose manslaughter liability on one who kills by inaction.22 phrase may convey in ordinary usage,” see id. at 148 (Alito, J., dissenting), the 1
majority of the Supreme Court concluded that the term “physical forc e” is to be 2
given its “ordinary meaning,” id. at 138 (majority opinion). The Court explained 3
that “force” means “strength or energy; active power; vigor ; often an unusual 4
degree of strength or energy[;] power to affect strongly in physical relations; . . . 5
power, violence, compulsion, or constraint exerted upon a person” and that 6
“physical force” means “power, violence, or pressure directed against a person 7
or thing[;] . . . force consisting in a physical act , esp. a violent act directed against a 8
robbery v ictim.” Id . at 139 (emphasis added) (alterations and internal quotation 9
marks omitted). The Court distilled the term’s ordinary meaning into a now

10
indelible phrase: “ violent force

— that is, force capable of causing physical pain or 11
injury to another person. ” Id . at 140. The Court’s reliance on the ordinary 12
meaning to shape its conception of “physical force” communicates that only an 13

active crime constitutes a “violent felony” under ACCA. See also Stokeling v. 14

United States , 139 S. Ct. 544, 553 (2019) ( noting that a conviction must be “within 15
the ‘category of violen t , active crimes’ that Congress included in ACCA”)

. 1623 The Government and Judge Raggi argue that the Supreme Court’s 1
subsequent decision in Castleman , 572 U.S. 157, as well as our later decision in 2

Villanueva , 893 F.3d 123 (2d Cir. 2018) , compel the conclusion that a crime of 3
manslaughter that may be committed by a failure to act necessarily involves the 4
“use of force” as defined under the ACCA force clause. They rely principally on 5

Castleman ’s s tatement that “the knowing or intentional causation of bodily injury 6
necessarily involves the use of physical force,” 572 U.S. at 169, from which they 7
conclude that a defendant who causes death by inaction necessarily uses force. 8

What was said in Castleman and Villanueva must be considered in the light 9

of the facts of those cases. In Castleman , the Supreme Court considered whether a 10
Tennessee statute, which made it a crime to “intentionally, knowingly or 11
recklessly cause bodily inj ury to another” qualified as a misdemeanor crime of 12

domestic violence under a different statute, 18 U.S.C. § 921(a)(33)(A)(ii) , because 13
it involved “the use or attempted use of physical force.” The defendant argued, 14
as relevant here, that the offense did n ot categorically involve “the use or 15
attempted use of physical force” because it could be accomplished through the 16
indirect application of force, such as by sprinkling poison into a beverage. The 1724 Supreme Court rejected that argument. First, it concluded th at, in contrast to the 1

ACCA definition of force established in Curtis Johnson , the “use of physical force” 2
under § 921(a)(33)(A) is satisfied by “the degree of force that supports a 3

common

- law battery conviction.” 572 U.S. at 168. 4 Second, the Court conclu ded 4
that this definition of force “encompasses even its indirect application.” Id

. at 170. 5
The Court explained that the “use of force” in the poisoning example “is not the 6
act of sprinkling the poison; it is the act of employing poison knowingly as a 7

devic e to cause physical harm. That the harm occurs indirectly, rather than 8
directly (as with a kick or punch), does not matter.” Id. at 171. Similarly, shooting 9
a victim with a gun is no less a use of force “because it is the bullet, not the 10
trigger, that actu ally strikes the victim.” Id. 11

4 The Supreme Court explicitly cabined its consideration of common

- law fo rce to Section 92 1(a)(33)(A), noting the principle that “a common

- law term of art should be given its established common

- law meaning, except where that meaning does not fit

. ” Id . at 163 (internal quotation marks omitted) (citing Johnson , 559 U.S. at 139). The Court acknowledged that it did not rely on the

common

- law meaning of “force” when interpreting the definition of “violent felony,” explaining that there the meaning did not fit; with Section 921(a)(33)(A), on the other hand, the meaning did fit, so reliance was proper. Id

.25 Later, in Villanueva , 893 F.3d 123, this Circuit considered whether an 1

offense of first

- degree assault that could be accomplished by poisoning qualified 2
as a violent felony under the ACCA force clause. Extending the Supreme C ourt’s 3
reasoning in Castleman to the context of ACCA, we concluded the statute did 4
qualify as a violent felony. We found persuasive Castleman ’s “explanation of why 5
sprinkling poison constitutes use of physical force even if the offender does not 6

hit or eve n touch the victim,” noting the example of pulling the trigger of a gun. 7

Id. at 129; cf. Hill , 832 F.3d at 144 (concluding in light of Castleman that Hobbs Act 8
robbery is a crime of violence under § 924(c)(3)(A), notwithstanding that it may 9
be committed by indirect application of force). 10
Accordingly , both Castleman and Villanueva were addressed to the question 11
whether a low level of force that produces a violent result can qualify as use of 12
force under ACCA. Neither addressed, much less resolved, the question before 13
us, namely, whether the failure to act

— by one who has a duty to ac t to protect 1426 the victim

— constitutes a “use of physical force” under ACCA. 5 See 18 U.S.C. 1
§ 924(e)(2)(B)(i); cf. United States v. Mayo , 901 F.3d 218, 228

- 29 (3d Cir. 2018) 2
(recognizing that neither Castleman , nor subsequent Third Circuit case law 3
applying C astleman to the ACCA context, addressed the issue of crime by 4
omission). Unlike New York first

- degree manslaughter, the acts discussed in 5

Castleman and Villanueva require some action that initiates a harmful consequence

. 6
By contrast, a defendant who commit s a crime by omission definitionally takes 7
no action and thus initiates nothing. This might occur, for example, when the 8
mandatory caretaker defendant observes that the victim has, entirely through 9
natural causes, entered into a condition that urgently req uires administration of 10

5 That these decisions do not address our case is reinforced by the fact that both parties point to language from our opinion in Villanueva , which is apparently

ca pacious enough to address the issue of crime by omission, but which would resolve the issue in opposite directions. Compare Villanueva , 893 F.3d at 128 (“[T]he inquiry as to ‘force,’ for federal law purposes, focuses on the causation of a consequence, rath er than the physical act of initiating an action that leads to a consequence . . . .”) and id . (“[T]he knowing or intentional causation of bodily injury necessarily involves the use of physical force.” (quoting Castleman , 572 U.S. at 169)) with id . at 129 (describing Castleman as holding “that initiating , however gently, a consequence that inflicts injury constitutes the use of physical force” (emphasis added)).27 medical help and, with intention to harm the victim, the defendant fails to 1
summon such help. As we read Castleman and Johnson , this scenario would not 2
constitute ACCA’s required “use of physical force.” 3
Judge Raggi also argues that we conflate “physical force” itself with the 4
“use” of such force. It is true, as Judge Raggi notes, that the Supreme Court said 5

in Castleman that “use” “conveys the idea that the thing being used (here, 6
‘physical force’) has be en made the user’s instrument.” Castleman , 572 U.S. at 170

- 7
71. She further notes that, in the example of a person who kills his victim by 8
poison, the Supreme Court explained that the “use of force” is not the “act of 9
sprinkling the poison; it is the act of employing poison knowingly as a device to 10
cause physical harm.” Id . at 171 (internal quotation marks and brackets omitted) 11
(emphasis added). Under Castleman ’s reading of the term “use,” Judge Raggi 12
argues, because someone guilty of New York first

- degree manslaughter must 13
have intended to cause at least serious physical injury, he “must be said to have 14
intentionally used the force causing death as his instrume nt without regard to 15
whether he did so by commission or omission.” 1628 To the extent that Judge Raggi argues that Castleman compels her reading, 1
she overstates the holding of that case, which explicitly did not reach the 2
question whether “causation of bodily injury necessarily entails violent force [for 3
ACCA purposes].” Id . at 167. As to the poison example, the Supreme Court’s 4
analysis does not compel Judge Raggi’s conclusion. It is at most ambiguous. 5
There, the Court explained that the use of force was “the a ct of employing 6
poison.” Id . at 171 (emphasis added). It did not contemplate a situation in which 7
a person stands by, taking no action whatsoever, and allows a physical harm to 8
occur with the intent to cause serious physical injury, and thus it cannot be s aid 9
to have answered the question whether such a situation constitutes “use” of the 10
injury

- causing force. 11

W e conclude that a crime that may be committed by complete inaction 12
does not have “as an element the use . . . of physical force against the person o f 13
another,” under the meaning of ACCA. See 18 U.S.C. § 924(e)(B)(i). We consider 14
the example of a person having a legal duty to provide care to another who, with 15
intent to cause serious physical harm, fails to seek medical help when his ward 16
requires it. N otwithstanding the Government’s and Judge Raggi’s respectable 1729 argument that, by availing himself or taking advantage of the preexisting force 1
that affected the ward, that the person did “use . . . physical force,” th at 2

conclusion does not, as Judge Raggi s uggests, follow from Castl e m a n

. 3
Judge Raggi further argues that it “makes no sense” to distinguish 4
between a defendant who, “intent on killing or seriously injuring another person 5
. . . himself sprinkled [poison] in a victim’s drink,” and one who, with th e same 6
intentions and a “legal duty to intervene, . . . stood by and let the person imbibe 7
what defendant knew was a poisoned drink.” If Judge Raggi’s argument 8
depends on the notion that the two cases involve the same degree of moral 9
culpability, we do not disagree that both defendants are equally morally 10
culpable. Perhaps a perfectly constructed criminal law would treat them 11
identically. But what determines whether two defendants who have acted 12
differently but with similar degrees of moral culpability will be treated the same 13
or differently is the language of the statutes that cover their cases. 14
Notwithstanding Judge Raggi’s reasonable argument that a few words in 15

Castleman could be read broadly to mean that “use of violent force” includes 1630 doing nothing, neither the statute nor the Supreme Court’s interpretation of it 1
clearly communicates such a meaning. 2
In addition, to the extent that it may be seen as a close question whether 3
“use of physical force” includes crimes committed by omission, the bur den is on 4
the government to show that a prior conviction counts as a predicate offense for 5
the purpose of an ACCA sentence enhancement. See United States v. Savage , 542 6
F.3d 959, 964 (2d Cir. 2008). Moreover, the rule of lenity, which “requires 7
ambiguous c riminal laws to be interpreted in favor of the defendants subject to 8
them,” United States v. Santos , 553 U.S. 507, 514 (2008), requires construing that 9
ambiguity in the defendant’s favor. S ee also Johnson v. United States , 529 U.S. 695, 10
713 n.13 (2000) (no ting that lenity applies “when the equipoise of competing 11
reasons cannot otherwise be resolved”). 12

We therefore hold that New York first

- degree manslaughter is not a crime 13
of violence under the force clause of ACCA because it can be committed by 14

inaction, while the ordinary meaning of the terms of ACCA are not satisfied by 15

inaction. The district court’s vacatur of Scott’s ACCA sentence under 18 U.S.C. 16
§§ 922(g)(1) and 924(e) is thus affirmed. 1731 II. A Prior Conviction for New York First

- Degree Manslaughter Is 1 Not a Crime of Violence Pursuant to the Career Offender 2 Guideline 3 The government also appeals the district court’s interpretation of the 4
Career Offender Guideline as not applicable to New York first

- degree 5
manslaughter

. The Career Offender Guideline considers as a “career offender” a 6
defendant who at eighteen years of age or more committed an offense of 7
conviction “that is a felony [and is] either a crime of violence or a controlled 8
substance offense,” and “ha[s] at least two prior felony convictions of either a 9
crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). 10

Classification as a career offender typically results in a significantly higher 11
Guidelines sentencing range than would otherwise apply. T he Career Offender 12

Guideline defines a “crime of violence” as: 13
any offense under federal or state law, punishable by imprisonment 14 for a term exceeding one year , that

— 1532 (1) has as an element the use, attempted use, or threatened use of 1 physical force against the person of another, or 2 (2) is murder, voluntary manslaughter, kidnapping, aggravated 3 assault, a forcible sex offense, robbery, arson, extortion, or the use 4 or unlawful possession of a firearm described in 26 U.S.C. 5 § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). 6
Id. § 4B1.2(a). The first clause of the Guideline, the “force clause,” is identical to 7

the force clause in ACCA

. C ompare id. (defining “ crime of violence ” as involving 8
“use, attempted use, or threatened use of physical force against the person of 9
another”) , with 18 U.S.C. § 924(e)(2)(B)(i) (defining “ violent felony ” as involving 10
“use, attempted use, or threatened use of physical force against the person of 11
another”)

. Accordingly, our analysis of whether New York first

- degree 12

m anslaughter comes within the definition of a crime of violence under ACCA’s 13
force clause is pertinent in answering whether the offense is a crime of violence 14

under the force clause of the Career Offender Guideline. T he Supreme Court in 15
Curtis Johnson speci fied that in interpreting ACCA, the phrase “physical force” 16
carries its “ordinary meaning.” See 559 U.S. at 138. We see no reason why the 17
same phrase in the Career Offender Guideline should not also be interpreted in 18
accordance with its ordinary meaning. W e conclude that, pursuant to its 1933 ordinary meaning, the phrase “has as an element the use of physical force” 1
similarly does not apply to an offense that may be committed by taking no action 2

whatsoever. 3
The Government argues that, even if the force clause does not apply, New 4

York first

- degree manslaughter is a crime of violence under the Career Offender 5

Guideline’s “enumerated

- offenses clause.” It argues that New York first

- degree 6
manslaughter matches the generic offenses of murder, voluntary manslaughter , 7

or aggravated assault. 8
“Where the basis for categorizing a prior conviction as a crime of violence 9
is that the offense is specifically enumerated as such in the Career Offender 10
Guideline or its commentary, we undertake the categorical approach by 11

compar ing the state statute to the generic definition of the offense.” Jones , 878 12

F.3d at 18. We determine the “generic” definition of the offense by looking to the 13

“sense in which the term is now used in the criminal codes of most States.” 14
Taylor v. United Stat es , 495 U.S. 575, 598 (1990). To carry out this obligation, we 15
may “consult other sources, including federal criminal statutes, the Model Penal 16
Code, scholarly treatises, and legal dictionaries,” in addition to the state codes 1734 themselves. Castillo , 896 F.3 d at 150 (footnotes omitted). If New York first

- degree 1
manslaughter “has the same elements” or is narrower than the generic Career 2

Offender Guideline analog, “the prior conviction can serve as a [Career 3
Offender] predicate.” Descamps , 570 U.S. at 261. If, however, the state statute 4
“sweeps more broadly than the generic crime, ” the crime of conviction cannot 5

serve as a Career Offender predicate. Id. We apply this exhaustive approach to 6

determine whether New York first

- degree manslaughter is the equivalent of or 7

narrower than the generic crimes of murder, voluntary manslaughter, or 8
aggravated assault. 9

A. New York First

- Degree Manslaughter Is Not Generic 10 Voluntary Manslaughter 11
As t he government concedes , only a minority of states penalize the 12

conduct of New York first

- degree manslaughter as “murder” or “manslaughter.” 13
The government nonetheless raises the novel argument that the offense qualifies 14

as an enumerated crime of violence because the conduct it d escribes “is 15
penalized in a majority of states as either ‘murder’ or ‘voluntary manslaughter,’” 16
and those states can be aggregated to form a majority. Appellant’s Br. at 41 1735 (emphasis added). It clarifies in its reply brief that its claim is that those stat es 1
that penalize this conduct as “murder” should be counted as states in which the 2
New York statute fits the “lesser crime” of manslaughter. The government 3
identifies no authority that has interpreted the enumerated offenses clause in this 4
manner. In suppo rt, it cites to Taylor for the proposition that “courts should 5
disregard . . . ‘labels’ in applying the categorical approach.” Id. at 47 (citing 6
Taylor , 495 U.S. at 590). It further notes that in Taylor , the Court held that the 7
generic definition of burgla ry encompasses both “aggravated burglaries” and 8

“run

- of

- the

- mill burglaries,” and argues that here, murder should be treated as 9
an aggravated form of “voluntary manslaughter.” Appellant’s Reply Br. at 17

- 18. 10

We find this “ aggregation ” argument unpersuasive . It may be true that the 11
conduct in the New York statute “is penalized in a majority of states as either 12
‘murder’ or ‘voluntary manslaughter.’” Appellant’s Br. at 41

. Nonetheless, 13
according to the government’s own account, a majority of States (30) do not 14
penalize that conduct as “murder,” and a majority of States (42) do not penalize 15
that conduct as “voluntary manslaughter.” Under our case law, the statute does 16

not fit any of the generic crimes. See Castillo , 896 F.3d at 152. T o the extent that 1736 the government attempts to find support in Taylor for its novel approach, that 1
reliance is misplaced. Far from holding that “courts should disregard . . . ‘labels’ 2
in applying the categorical approach,” Appellant’s Br. at 47, Taylor held that an 3

enumerated offense in Section 924(e) refers to “the generic sense in which the 4

term is now used in the criminal codes of most States.” 495 U.S. at 598. 5
Moreover, an interpretation of “voluntary manslaughter” that includes 6

States in which the State offense would qualify as murder, on the basis that 7
“voluntary manslaughter” is a lesser

- included crime of murder, would render 8
entirely superfluous Congress’s inclusion of the separate crime of “murder,” 9
because such states would necessarily count as stat es in which the offense in 10
question qualifies as “voluntary manslaughter.” See Duncan v. Walker , 533 U.S. 11
167, 174 (2001) (“It is our duty to give effect, if possible, to every clause and word 12
of a statute.” (internal quotation marks omitted) ) ; see also Ma rx v. Gen. Revenue 13
Corp. , 578 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest when 14
an interpretation would render superfluous another part of the same statutory 15
scheme.”). The government’s analogy of murder to the inclusion of “aggravate d 16
burglary” under “burglary” is thus inapt, among other potential reasons, because 1737 Congress did not include a separate crime of “aggravated burglary” in addition 1
to “burglary,” whereas it did include the crime “murder” in addition to 2
“voluntary manslaughte r.” 3
For these reasons, we reject the government’s proposed “aggregation” 4
approach. In any event, it is certainly not the clear meaning of the Guideline to 5
allow aggregation of states that treat manslaughter as one of the enumerated 6

crimes with those that treat manslaughter as another. The rule of lenity therefore 7
bars adding punitive consequences based on an interpretation that is not clearly 8

communicated. 9
The government makes two additional arguments as to why the New York 10
statute fits the generic crime of voluntary manslaughter, notwithstanding the fact 11
that it identifies only eight states in which its mens rea requirement of “intent to 12
do serious injury” is sufficient. 13
First, the government points to a treatise stating, “The usual view of 14
voluntary ma nslaughter . . . presupposes an intent to kill ( or perhaps an intent to do 15
serious injury or to engage in very reckless conduct).” LaFave, Substantive Crim. 16
L. § 15.2(a)) (emphasis added). We do not find that an equivocal (“perhaps”) 1738 statement in a law tre atise, supported by a citation to only one state court case 1
addressing the law of only that state, to be sufficient to carry the government’s 2
burden in demonstrating that the New York statute fits the generic crime of 3
voluntary manslaughter. Moreover, alth ough there is no requirement that the 4
government expressly identify a majority of states in order to establish the 5
meaning of a generic crime, and although courts may consult sources other than 6
state codes including “scholarly treatises” in doing so, see C astillo , 896 F.3d at 150, 7
we find the government’s reliance on this treatise particularly unavailing in light 8
of the fact that it has undertaken an apparently exhaustive attempt to identify 9
state criminal codes under which the New York statute would qualif y as 10
“voluntary manslaughter,” and yet came up only with a small minority. 11
Second, the government points to our decision in Castillo , in which we held 12
that “the generic definition of ‘manslaughter’ includes the unlawful killing of 13
another human being recklessly.” Id. at 152. We explained: 14
[C]ommon law manslaughter . . . served as “a sort of catch

- all 15 category . . . [for] homicides whic h are not bad enough to be murder 16 but which are too bad to be no crime whatever. Manslaughter was 17 later subdivided into voluntary and involuntary varieties. Voluntary 18 manslaughter was the intentional killing “ in a heat of passion upon 1939 adequate provocation, ” and involuntary manslaughter was an 1 unintentional killing caused by “ criminal negligence ” or 2

“ recklessness, ” or during the commission of an unlawful act not 3 amounting to a felony. 4
5 Id. at 151 (citing LaFave, Substantive Crim. L. §§ 15.1, 15.4). Relying on this 6
passage, the government argues that the New York statute qualifies as voluntary 7
manslaughter because, “Plainly, a violation of Section 125.20(1) . . . is not 8
‘unintentional killing caused by criminal negligence or recklessness.’ ” In making 9

this st atement, t he government seems to assume that because the New York 10
statute is not involuntary manslaughter, it must be voluntary manslaughter. We 11
are not persuaded. It could equally be said that, plainly, Section 125.20(1)

— 12
which criminalizes causing death w ith the intent to cause serious physical 13
injury

— includes conduct beyond “intentional killing ‘in a heat of passion upon 14
adequate provocation.’” See Castillo , 896 F.3d at 151. It is clear that the New York 15
statute covers circumstances beyond provocation. Re liance on this passage in 16

Castill o is thus unavailing. We conclude that the government has failed to carry 17
its burden in showing that Scott’s conviction fits the generic crime of voluntary 18
manslaughter. 1940 B. New York First

- Degree Manslaughter Is Not Generic 1 Aggravated Assault 2
3 The government also argues that New York first

- degree manslaughter 4
penalizes conduct that would be generic aggravated assault in “[v]irtually every 5

state.” Appellant’s Br. at 49. We reject this argument because the government has 6
not demonstrated that most states would penal ize an omission as assault. 7
“The government bears the burden of showing that a prior conviction 8
counts as a predicate offense for the purpose of a sentencing enhancement.” 9
United States v. Savage , 542 F.3d 959, 964 (2d Cir. 2008). Here, however, the 10
government has not identified a single state that has actually punished a 11

defendant’s failure to act as aggravated assault. Instead, the government relies on 12

three sources to establish that a failure to act could be so punished: the treatise 13

American Jurisprudence , the Model Penal Code, and LaFave’s treatise. T hese three 14

sources do not carry the government’s burden

. 15
The government’s citations to American Jurisprudence and the Model Penal 16
Code are inapposite because they do not address the question of whether an 17
omission may be punished as assault. The portion of American Jurisprudence upon 1841 which the government relies concerns only the sufficiency of an indirect 1
application of force to qualify as battery and has no bearing on whether battery 2

can be comm itted by omission . 6 Am. Jur. 2d Assault & Battery § 6 ( “ T he force 3
used in a common law battery need not be applied directly to the body of the 4

victim. ”). The government then points this Court to the Model Penal Code for the 5
general proposition that a pers on can be held liable for a culpable omission , but it 6
fails to explain how these provisions constitute a statement that battery can be 7
committed by omission. See Model Penal Code § 1.13 (defining “conduct , ” in 8
relevant part, as “an action or omission and i ts accompanying state of mind”); id. 9
§ 2.01 ( requiring liability to be “ based on conduct that includes a voluntary act or 10
the omission to perform an act of which [a person] is physically capable”). 6 These 11

6 By contrast, American Jurisprudence states that assault and battery require an overt act. In a section titled “Necessity and scope of overt act for criminal assault or battery,” the treatise states, “[C]ommission of the offense of assault requires an overt act intended to place the victim in fear or apprehension of bodily harm.” Id. § 21 (footnote omitted) (emphasis added) (citing state cases to establish that an overt act is necessary for the commission of assault and battery). “[T]here must be some physical action that, under all the circumstance s of the incident, are [sic] sufficient to induce a reasonable apprehension by the victim that physical injury is imminent.” Id. § 23 (emphasis added). We find this discussion of omission in42 provisions provide little guidance on whether a majority of states would 1
criminalize a failure to act as aggravated assault. 2
Lastly, the government relies on LaFave to support its argument that a 3
majority of states would criminalize New York first

- degree manslaughter as 4
aggravated assault

. Judge Raggi, in support of this argument, points to a few 5
cases cited by LaFave that involve assaults by omission. Our directive under 6
Taylor v. United States is to look to “the generic sense in which the term is now 7

us ed in the criminal codes of most States .” 495 U.S. at 598 (emphasis added)

. The 8
few cases cited by Judge Raggi fall far short of showing that assault may be 9
committed by omission in most states. The treatise therefore has limited 10
persuasive value both beca use it cites only a few examples and because it is the 11

sole source of support for the government’s contention

. 7 G iven the government’s 12

the specific context of assault and battery to be more persuasive than a general statement of criminal law principles that does not refer to that context. Cf. Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 385 (1992) (noting the “commonplace” interpretive canon “that the specific governs the general”).

7 Indeed, W harton’s Criminal Law , also lacking citation, reaches the opposite conclusion regarding omission that LaFave does: “[I]n addition, of course, [the defendant] must perform an act evincing such intent [to cause contact to the43 failure to cite any state code that criminalizes an omission as aggravated assault, 1
we decline to rest our decision today on a treatise that cites only a few cases of 2
assault by omission

. 3

We hold that New York first

- degree manslaughter does not fit the generic 4

definition s of murder, voluntary manslaughter, or aggravated assault, and we 5

therefore affirm the district court’s conclusion that Scott cannot be sentenced 6
under the Career Offender Sentencing Guideline. 7

CONCLUSION 8
The State of New York has prosecuted New York first

- degree 9
manslaughter based on a defendant’s failure to act. We hold that because a 10

defendant can commit New York first

- degree manslaughter without taking any 11
action, a defendant so convicted cannot be said to have used force sufficient to 12
trigger ACCA’s sentencing enhancements or the force clause of the Career 13

Offender Guideline. We also hold that New York first

- degree manslaughter is 14
not a match to the generic offenses of murder, voluntary ma nslaughter, or 15

person of another], but falling short of consummation.” 2 Wharton’s Criminal Law § 179.44 aggravated assault and therefore does not satisfy the enumerated

- offenses clause 1

of the Career Offender Guideline . The order and judgment of the district court is 2

therefore AFFIRMED. 31 LEVAL , C i r c u i t J u d g e , Concurring : 1
2 I join in Judge Poo ler’s persuasive opinion for the Court holding that New 3

York first

- degree manslaughter does not fall within ACCA because it extends 4
more broadly than ACCA ’s definition of violent felony . In this opinion, in which 5
Judge Pooler joins, I offer an additional r eason , relying on application of the rule 6
of lenity by reason of lack of clarity whether ACCA’s requirement of use of 7
physical force can be satisfied

— and ACCA’s mandatory 15

- year sentence 8
imposed

— where the defendant has taken no action whatsoever

. 9

The rule of lenity “requires ambiguous criminal laws to be interpreted in 10
favor of the defendants subjected to them.” United States v. Santos , 553 U.S. 507, 11
514 (2008) ; see also United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 221

- 22 12
(1952) (“[W] hen choice has to be made between two readings of what conduct 13
Congress has made a crime, it is appropriate, before we choose the harsher 14
alternative, to require that Congress should have spoken in language that is clear 15
and definite.”). That rule, which i s “ ’ perhaps not much less old than ’ the task of 16
statutory ‘ construction itself, ’” United States v. Davis , 139 S. Ct. 2319, 2333 (2019) 17
(quoting United States v. Wiltberger , 18 U.S

. (5 Wheat.) 76, 95 (1820) (Marshall, 18
C.J.) ) , is founded , at least in part, on the notion that “ a fair warning should be 192 given to the world in language that the common world will understand, of what 1
the law intends to do if a certain line is passed. To make the warning fair, so far 2
as possible the line should be clear.” United States v. Bass , 404 U.S. 336, 348 (1971) 3
(quoting McBoyle v. United States , 283 U.S. 25, 27 (1931) (Holmes, J.) )

. 4
Mandatory sentencing statutes such as ACCA, when their applicability is 5
not clearly commanded by the words of the statute , present a particularly 6
compelling ground for the application of the rule of lenity. This is because 7
mandatory sentencing statutes (for reasons explained below) rarely serve a 8
useful purpose, and freque ntly serve as arbitrary instruments of injustice

. 9
Given the overriding objectives of sentencing to provide appropriate 10
protection to the public with fairness to the defendant and the victim, sentences 11
must be imposed on the basis of the relevant facts of t he case . The “ purposes ” of 12
sentencing are specified in the basic federal sentencing statute, 18 U.S.C. § 13
3553(a)

. It requires the court to consider “the nature and circumstances of the 14
offense and the history and characteristics of the defendant , ” i d. § 3553(a)(1 ), as 15

well as “the need for the sentence imposed

. . . to reflect the seriousness of the 16

offense [;] to promote respect for the law [;] to pro vide just punishment for the 17
offense;

. . . [t] o afford adequate deterrence to criminal conduct;

. . . [and ] to 183 protect the public from further crimes of the defendant ,” id. § 3553(a)(2). The 1
statute goes on, in what is called the “parsimony clause,” to co mmand the courts 2
to impose a sentence that is “sufficient, but not greater than necessary, to comply 3
with the purposes” of sentencing. All of this requires that the sentencing court , 4

and the reviewing court , give careful attention to the facts that characterize both 5

the commission of the offense and the particular defendant. The task of assuring 6
that the sentencing court imposes a sufficient sentence is assigned to the 7
reviewing court. If the sentencing judge imposes a sentence that i s not “sufficient 8
. . . to comply with” the purposes of sentencing, that sentence would violate the 9

statute and should be set aside on appeal. 10

W hen a legislature imposes a mandatory sentence, all consideration of the 11

relevant facts disappears . Necessaril y knowing nothing of the facts

— n either of 12

the crime n or the victim nor the defendant ( as the crime ha s not yet occurred )

— 13
the legislature , by requiring mandatory sentences, arbitrarily commands that all 14
crimes falling within the broadly described category be sentenced as specified , 15
regardless of whethe r the particular facts c an reasonably justify such a sentence. 16

No doubt , mandatory sentences are most often legislated for circumstances 17

in which the majority of occurrences will appropriately call f or a sentence of such 184 severity

. Because the need for a severe sentence in most of the covered cases will 1

be as evident to courts as it is to the legislature, in most such cases the mandatory 2
requirement serves no purpose

. The courts would impose a sentence of 3
comparable severity as the just resolution of the case , regardless of whether the 4
legislature had imposed a mandatory sentence , precisely because such a sentence 5

would be well justified by the fact s

. And in the relatively rare case where the 6

se ntencing judge fail ed to impose an appropriately severe sentence that complie d 7
with the purposes of sentencing , the prosecutor could appeal, and it would be 8
the duty of the appeals court to vacate an unreasonably lenient sentence , 9
requiring a sentence that is sufficiently severe

. 10
On the other hand, notwithstanding that the sentence required by 11
mandatory sentencing laws is appropriate in most circumstances , it does not 12

follow that the mandatory sentence will be just or even reasonable in all 13

circumstances . Almost invariably, the standards that govern the imposition of 14
mandatory sentences are crude and generalize d , and lack the fine distinct ions 15
that are crucial to fair sentencing

. Inevitably mandatory sentences will govern 16

cases where sentence s of such severity cannot be reasonably justified. Thus, 17

w hen the sentence mandated is reasonably called for in the majority of cases it 185 covers, the main consequence of the legislature’s making that sentence 1
mandatory is to require substantial injustice in the minority of cases for which a 2
sentence of such severity cannot be justified. 1 3

A 15

- year sentence, as mandated by ACCA, for one who possesses a 4

firearm after three convictions for either a violent felony or a felony drug offense 5

does not on its face sound unreasonable

. T he court would reliably impose such a 6
sentence on most persons who fall into that category. That is not to say, however, 7
that such a sentence would be reasonable for everyone who is ACCA

- eligible . A 8

foolish 16

- year

- old , who yield ed to the temptation of serving as a runner or a 9

lookout for drug sellers in an urban drug marketplace , would have committed 10
numerous felony drug offenses in the course of a single day, and could easily 11

1 Particularly puzzling are mandatory consecutive sentences, which almost inevitably mandate injustice. In passing the primary sentence, the sentencing court, heeding the requirements of § 3553(a), will have increased its severity by reason of the very aggravating factors that led Congress to impose a ma ndatory consecutive supplement. Because of an aggravating factor such as the defendant’s recidivism, or the defendant’s having increased danger to the public by carrying a loaded gun while committing the crime, the court will have increased the severity of the basic sentence as appropriate

. ( A sentence for the basic offense that failed to do so would fail to comply with the purposes of sentencing

. ) Congress , however , then requires the court to impose an additional consecutive sentence to account for an aggr avating factor that the court has presumably already taken into account. Even i n its most benign form, mandatory consecutive sentencing thus mandates double counting of the aggravating factor, and at times the mandatory injustice is even more sever e.6 have accumulate d three separate felony drug convictions in a period of a few 1
days. Should it matter if those convictions were 40 years in the past, and if the 2
foolish teenager had thereafter rehabilitated himself and lived a n exemplary, 3
productive , and useful life for 40 years before being in possession of a gun? 4
Should it matter whether the subsequent illegal gun possession occurred in 5
relatively innocuous circumstances ? Suppose for example that , 40 years after his 6
drug convictio ns, he acquired a rifle because he lived on a farm and his family or 7

livestock we re menaced by coyotes. Should it matter if , on his father’s death 8
many years after his early disposition toward crime , he simply inherited his 9

father’s propert y , which he knew included a hunting rifle ? Probably a violation

. 10
But warranting 15 years of imprisonment? Mandatory minimum sentencing 11

statutes do not make allowance for t he inevitable circumstances of an individual 12

case that would make the commanded sentences outrageously unjust. 13
Notwithstanding that they rarely se rve a u seful purpose and almost 14
inevitably cause appalling injustices in some cases , mandatory sentences are 15

tolerated almost without comment because there is no voice or constituency in 16
our society for convicted felons who are the victims of unjust sentencing laws. 17
No member of Congress ever lost votes for s upporting unfairly harsh sentences. 187 Nonetheless, such sentences represent a serious injustice

— one that we ought to 1

consider intolerable

. 2
For these reasons, mandato ry sentences are inevitably at times in tension 3
with the parsimony clause of 18 U.S.C. § 3553(a), which requires that a district 4
judge impose a sentence that is “ not greater than necessary ” to satisfy the goals 5
of sentencing

. See United States v. Dorvee , 616 F.3d 174, 182

- 83 (2d Cir. 2010); cf. 6

United States v. Ministro

- Tapia , 470 F.3d 137, 141 (2d Cir. 2006) (“Plainly, if a 7
district court were explicitly to conclude that two sentences equally served the 8
statutory purpose of § 3553, it could not, consisten t with the parsimony clause, 9
impose the higher.”). 10
I do not suggest that Congress lacks the power to impose mandatory 11

sentences that will inevitably inflict injustice. Nonetheless, under the rule of 12
lenity , statutes imposing criminal sanctions are not e nforced unless they give 13

clear notice of their applicability. When the rule in question is a harsh mandatory 14

sentence , which , notwithstanding reasonable application to many circumstances, 15
will cause serious injustices in others, courts have a particularly important duty 16
to see to it that the rule is not enforced beyond the circumstances to which it 17
unambiguously applies. 188 Even if one is persuaded by the government’s and Judge Raggi’s 1
imaginative arguments that Congress probably intended that ACCA’s 2
requirem ent of a “violent felony” involving “use of physical force” be satisfied in 3
cases where the defendant has done nothing at all, these arguments fall far short 4
of showing that the reach of the statute unambiguously commands this. I 5
conclude for the reasons p ersuasively stated by Judge Pooler and those 6
expressed in this opinion that ACCA’s mandatory 15

- year sentence does not 7
apply to cases where the defendant has taken no action whatever. 8
Although the case is less clear as to the inapplicability of the Caree r 9
Offender Guideline, which, since United States v. Booker , 543 U.S. 220 (2005), Gall 10

v. United States , 552 U.S. 38 (2007) , and Kimbrough v. United States , 552 U.S. 85 11
(2007), has become entirely discretionary, our court has applied the rule of 12
lenity’s requirement of clarity to the Sentencing Guidelines. United States v. 13

Parkins , 935 F.3d 63, 66 (2d Cir. 2019). I join in Judge Pooler’s opinion on this 14

issue as well. Even if Congre ss intended that the Guideline cover such statutes as 15
New York manslaughter, the applicability of the phrase “crime of violence” to a 16
crime that can be committed by complete inaction is at best ambiguous. 17

1818

- 163

- cr United States v. Scott

1 R EENA R AGGI , Circuit Judge , dissenting:

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 homicide crimes , Scott stands twice convicted in New York State of first

- degree manslaughter under N .Y. Penal Law § 125. 20 (1)

. At issue on this appeal is whether Scott’s manslaughter c onvictions are for crimes of violence . An affirmative answer might appear obvious to a man o n the street aware of Scott’s conduct. But precedent, as the panel majority notes, requires judges to view that conduct as “irrelevant.” Majority Op., ante at 4 , n.1 . Instead, the violent

- crime question must be determined categorically by asking whether an element of New York first

- degree manslaughter r equir es the defendant to have used “force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States , 559 U.S. 133, 140 (2010)

. Following that principle here, t he m ajority concludes that New York first

- degree manslaughter is not a categorical crime of violence because

— Scott’s own homicidal conduct no twithstanding

— it is possible to violate § 125.20(1) w ithout a defendant himself actively deploying physical f orce . For example, the crime can be committed by “omission,” a s when a parent, intent on seriously injuring his child, fails to seek ne cessary medical care for the child, thereby causing the child’s death. 1 See Majority Op., ante at 3

. Carried to its lo gica l

— or illogical

— conclusion, the majority’s reasoning would

1 New York law defines an “omission” as the “failure to perform an act as to which a duty of performance is imposed by law.” N.Y. Penal Law § 15.00(3). It equates an “omission to perform an act which [a person] is phy sically capable of performing” with a “voluntary act” for purposes of determining criminal culpability. Id. § 15.10.18

- 163

- cr United States v. Scott

2 preclude even intentional murder from being recognized as a categorical violent felony or crime of violence because, presumably, a person can cause death through omission whethe r h is specific intent is to kill , see N.Y. Penal Law § 125.25 (second

- degree murder), or t o cause serious physical injury , see id. § 125.20(1) (first

- degree manslaughter )

. Rather than start down a path leading so far from the violent reality of homicide c rimes, I respectfully dissent from th e majority’s conclusion that New York first

- degree manslaughter is not

a categorical crime of violence . Two reasons inform my decision.
First, Scott has not carried his threshold burden to identify a case in which a defendant has been “actually prosecute[d]” for New York first

- degree manslaughter solely on a theory of omission. Moncrieff v. Holder , 569 U. S . 184 , 206 (2013)

. I n People v. Steinberg , 79 N.Y.2d 673, 680, 584 N.Y.S.2d 770, 772 (1992), the New York C ourt of Appeals recognized the legal possibility of a first

- degree manslaughter conviction being ba s ed solely on a theory of omissio n. B ut Steinberg itself was not such a case

. It upheld the first

- degree manslaughter conviction of a parent who struck his six

- year old child senseless and then failed to secure lifesaving medical assistance. S ee id. at 678

– 80 , 584 N.Y.S.2d at 771

– 72

. Because Scott has not pointed to a single ca se in the nearly t hree decades following Steinberg in which a defendant has “in fact” been p rosecuted for New York first

degree manslaughter based solely on omission , I cannot conclude that he has adequately demonstrated a “realistic probability” of New York law being so applied. United States v. Hill , 890 F.3d 51, 56 (2d Cir. 2018) (internal quotation marks omitted), cert. denied 13 9 S. Ct. 844 (2019).

Second

— and more important

— even assuming a probability of § 12 5.20 (1) c rimes being prosecuted based only on omissions , I would hold N ew York first

- degree manslaughter a categorical crime of18

- 163

- cr United States v. Scott

3 violence. New York law states that to be guilty of first

- degree manslaughter a person “[w]ith intent to cause serious physical injury to another person, [must] cause[] the death of such person or of a third person

. ” N.Y. Penal Law § 12 5 .20(1). As the Supreme Court has

reco gnized, “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman , 572 U.S. 157, 169 (2014) (emphasis added )

. Thus, to satisfy the causation element of § 12 5 .20(1), a defendant who causes death while intent on causing serious physical injury must use physical force. See Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018) (construing Castleman to focus “ force ” inquiry for federal purposes “on the causation of a consequence”). It makes no difference whether a def endant d oes so through commission , by himself initiating th at force , or through omission , by making force already in motion the “instrument” of his own injurious intent by failing to act on a duty to remediate the force

. United States v. Castleman, 572 U.S. at 170

– 71 (holding that “word ‘use’ conveys the idea that the thing used (here , ‘physical force’) has been made the user’s instrument” (internal quotation marks omitted) ) ; see Villanueva v. United States , 893 F.3d at 129 (explaining that “relevant force is the impact of [the injurious agent] on the victim, not the impact of the user on [that agent]”). In either circumstance, the defend ant has necessarily used physical force in causing death. T hus, because New York first

- degree manslaughter can be committed only by a defendant’s use of force, I would identify it as a c ategorical crim e of violence.

I. Background

Whether New York first

- degree manslaughter is a crime of violence is a question that here arises in the context of determining the appropriate sentence for Scott’s latest conviction, his fourth for a18

- 163

- cr United States v. Scott

4 crime using life

- threatening violence. 2 Specifically, o n September 26, 2006, S cott entered a Bronx jewelry store, pointed a gun at the store

owne r, and ordered him to surrender the contents of his cash reg ister. T he robbery , and any possible ensuing injury , were thwarted by the fortuitous intervention of a police officer

. F or his actions, Scott no w stands federally convicted, based on his g uilty plea, for attempted Hobbs Act robbery, see 18 U.S.C

. §§ 1951 , 19 52; brandishing a firearm during that robbery, see id. § 924(c)(1)(A)(ii); and being a previously convicted felon in possession of a firearm, see id. § § 922(g)(1) , 924(e)

. In sentencing Scott for these crimes, the district court had to consider his criminal history, particularly his history for violent crimes. Such consideration is relevant to assessing, at a minimum, the seriousness of Scott’s most recent crime s , the likelihood of his committing future c rimes, and the risk of danger

— life

- threatening danger

— to innocent persons from such crimes. See id. § 3553(a)( 2 )( A )

– (C).

While t he law generally proscribes any limits on the facts and circumstances that a district court may consider in determining a defendant’s sentence, see id. § 3661, it sometimes requires specific finding s to trigger particular sentencing consequences. Thus, to apply a “ C areer O ffender” enhancement to a defendant’s Sentencing Guidelines calculation , a court must find that a defendant has two or

more prior felony convictions for “a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1 (a ). 3 And if the court finds that a

2 Prior to Scott’s two 1988 convictions for first

- degree manslaughter, he was convicted, in 1983, of first

- degree robbery, see N.Y. Penal Law § 160.15, a crime he committed by holding a 75

- year

- old man at knifepoint.

3 The Career Offender Guideline defines “ crime of violence” as a federal or state felony crime that,18

- 163

- cr United States v. Scott

5 defendant found guilty of being a felon in possession of a firearm has
t hree or more prior violent felony or serious drug convictions, the Armed Career Criminal Act (“ACCA”) mandate s a minimum prison term of fifteen years for the unlawful possession

. See 18 U.S.C. § 924(e)(1). 4 To decide whether a crime of conviction is a violent felony or a crime of violence under the “force” clauses of ACCA and the Career Offender Guideline, a court must make a categorical assessment, ask ing w hether an element of the crime require s the use of physical “f orce capable of causing physical pain or injury to another person.” Curtis Johnson v. United States , 559 U.S. at 140 (construing ACCA’s “physical force” requirement) ; accord United States v. Hill , 890 F.3d at 58

. To answer that question, a court looks to the minimum criminal conduct necessary for conviction under the statute, without regard to

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). U.S.S.G. § 4B1.2(a).

4 ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that, (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary , arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B).18

- 163

- cr United States v. Scott

6 whether the defendant himself engaged in more egregious conduct. See United States v. Hill , 890 F.3d at 55. 5

At Scot t’s initial sentencing, the district court concluded

— with no objection and, therefore, little discussion

— that Scott warranted enhancements under the force clause s of both ACCA and the Career Offender Guideline . This was based on his two 1988 New York manslaughter convictions, as well as his 1983 conviction for first

degree robbery. See N.Y. Penal Law § 160.15(3) ; Stuckey v. United States , 878 F.3d 62, 71

– 72 (2d Cir. 2017) (holding New York first

degree robbery categorical violent felony under ACCA)

. Accordingly, the district court sentenced Scott to a total 22 years’ imprisonment . This sentence, toward the low end of Scott’s 262

- to

327

- month Guidelines range , reflected th e ACCA mandated 15

- year sentence for being a felon in possession, a concurrent 15

- year term for attempted Hobbs Act robbery , and a mandated consecutive 7

- year sentence for brandishing a firearm

. S ee 18 U.S.C. § 924(c)(1)(A)(ii).

In 20 17 , on habeas review of Scott’s sentence , s ee 28 U.S.C. § 2255 , the district court reversed course, holding that neither the original ACCA n or Career Offender Guideline enhancement s were warranted because New York first

- degree manslaughter is not a categorical violent felony or crime of violence as it can be committed

5 While it may seem curious to ignore a defendant’s own conduct in determining whether he has committed a violent felony, the categorical focus is required only in deciding the applicability of enhancements specifically tied to the elements of crimes of conviction. Otherwise, as earlier noted, there are no limits on the facts and ci rcumstances that a sentencing court may consider in deciding what is an appropriate sentence within the statutory range prescribed by Congress. See 18 U.S.C. § 3661; United States v. Cavera , 550 F.3d 180, 190

– 91 (2d Cir. 2008) ( en banc ). In this respect, a sentencing court may certainly consider that a defendant committed an offense that is not categorically a crime of violence in a particularly violent way.18

- 163

- cr United States v. Scott

7 passively, by omission, without a defendant himself using, attempting to use , or threatening to use physical force

. The district court further concluded that New York first

- degree manslaughter committed by omission did not fit within the gen eric definition s of “voluntary manslaughter,” “murder,” or “aggravated assault,” crimes specifically enumerated in the second clause of the Guidelines’ definition of a “crime of violence.” S ee s upra note 3. Accordingly, it vacated Scott’s original sentence; recalculated his Guidelines range without the car eer offender enhancement as 121 to 130 months; and sentenced Scott to time served, which by that time was approximately 135 months. The panel majority now affirms that judgment, r easoning that New York first

- degree manslaughter is not a categorical violent felony or crime of violence because the minimum conduct required to commit the crime does not include a defendant’s active use of force. Rather, the crime may be committed through omissi on, as occurs when a defendant , intent on causing serious physical injury, causes death by failing to prevent deadly harm despite the duty and ability to do so

. I think precedent forecloses this reasoning.

II. The Probability of a First

- Degree Manslaughter Conviction by Omission Alone As the majority acknowledges , see Majority Op., ante at 9

– 10 , to hold that the minimum conduct for a predicate crime of conviction does not require the use of violence “there must be a realistic probability, not a theoretical possibility, that the statute at issue could be applied to conduct that does not constitute a [ violent felony ] ,” Unit ed States v. Hill , 890 F.3d at 56 ( quoting Gonzale s v. Duenas

- Alvarez , 549 U.S. 183, 193 (2007) ). To demonstrate that probability, a18

- 163

- cr United States v. Scott

8 defendant “must at least point to his own case or other cases in which the . . . courts in fact did apply the statute in the . . . manner for which he argues.” Id. (emph asis added) (omissions in original) (internal quotation marks omitted) ; see Moncrieffe v. Holder , 569 U.S. at 206 (holding that “realistic probability” requires defendant to show that “State actually prosecutes the relevant offense” in the non

- violent circumstances hypothesized). 6 Th is requirement ensures that patently violent cr imes do not escape being denominated as such on theories that, even if legally possible, are not reflected in actual prosecutions.

Scott can not rely on his own case to carry his realistic

probability burden. As noted at the outset, Scott actively deployed violence to kill his manslaughter victims, shooting one point

- blank in the head and stabbing the other

. Thus, he must point to other cases in which New York actually prosecuted first

- degree manslaughter based only on a theory of omission. H e cannot do so. In concluding otherwise, the majority relies on two cases: People v. Steinberg, 7 9 N.Y.2d 673 , 584 N.Y.S.2d 770 , and People v. Wong , 81 N.Y.2d 600, 601 N.Y.S.2d 440 (1993). In n either , however, was a defendant actually prosecuted, much less successfully convicted , of first

- degree manslaughter based only on omission. In Steinberg the defendant was convicted for inextricably linked acts of commission and omission . In Wong, the defendants ’ manslaughter convictions, whethe r by commission or omission, were reversed.

6 The “realistic probability” standard first articulated in Gonzales v. Duenas

- Alvarez, and reit erated in Moncrieffe v. Holder , was there applied to determine aliens’ removability under the Immigration Nationality Act. This court has applied that standard, and the reasoning of those cases, in the ACCA context. See United States v. Hill , 890 F.3d at 56.18

- 163

- cr United States v. Scott

9 At issue in Steinberg was the notorious killing of a six

- year

- old child, Lisa Steinberg , a t the hands of her “adopt ive ” father, attorney Joel Steinberg. Steinberg was convicted of first

- degree manslaughter on a theory that he engaged in both “acts of commission (striking Lisa) and acts of omission (fail ing to obtain medical care ) , each with intent to cause serious physical injury.” People v. Steinberg , 79 N.Y.2d at 680, 584 N.Y.S.2d at 772. 7 The New York Court of Appeals held that the law a llowed Steinberg to be prosecuted on either theory. See id. at 680

– 81 , 584 N.Y.S.2d at 772

– 73

. While this may admit the possibility that, in some future case, even a parent who did not himse lf fatally injure his child

— as Steinberg undoubtedly did

— could be convicted under § 125.20(1) for failing to secure necessary life

- saving care for the child, Steinberg itself sheds little light on the realistic probability of such prosecutions resulting in successful convictions.

When the Court of Appeals , in Steinb erg , stated that “the failure to obtain medical care can . . . support a first degree manslaughter charge, ” it observed that conviction nevertheless require s “sufficient proof of the requisite mens rea

— intent to cause serious physical injury.” Id. at 680, 584 N.Y.S.2d at 772. I n Steinberg, the fact that defendant acted with such injurious intent when he failed to secure medical care for his child was powerfully demonstrated by evidence that he himself had committed the brutal assault triggering the child’s

7 Trial evidence showed that Lisa Steinberg’s “death was caused by brain trauma as a result of abuse.” People v. Steinberg , 79 N.Y.2d at 682, 584 N.Y.S.2d at 773. That abuse included a blow to Lisa’s head, delivered by Steinberg with such “tremend ous force” as to render the child unconscious for several hours. Id. at 682, 584 N.Y.S.2d at 774. During that time, neither Steinberg nor Lisa’s “adopt ive ” mother, Hedda Nussbaum, sought medical care for the child. Thus, medical evidence “confirmed beyo nd a reasonable doubt” that the child’s “death was a consequence of an assault and a failure to obtain prompt medical attention.” Id. at 682, 584 N.Y.S.2d at 773.18

- 163

- cr United States v. Scott

10 need for care. In short, in the Steinberg prose cution , the defendant’s act of omission was inextricably linked to his acts of commission, an d the Court of Appeals discussed them in conjunction in rejecting Steinberg’s sufficiency challenge to his first

- degree manslaughter conviction. See id. at 683 , 584 N.Y.S.2d at 774 (holding that “jury could have inferred from the evidence that defendant’s objective in assaulting Lisa and failing to summon medical assistance was to cause serious physical injur y”). For this reason, Steinberg is not itself a case in which a defendant was “actually prosecute[d]” for New York first

- degree manslaughter for omission alone. Moncr ie ffe v. Holder , 569 U.S. at 206; accord People v. Hill , 890 F.3d at 56. 8

No r is People v. Wong , 81 N.Y.2d 600, 601 N.Y.S.2d 440 , such a case. There, a couple entrusted with the care of a three

- month

- old baby was prosecuted for manslaughter in both the first and second degree s , see N.Y. Penal Law §§ 125.15(1), 125.20(1), 9 when, after only four days in their care, the child died from “internal brain injuries . . . that could only be attributed to ‘shaken baby syndrome , ’” People v. Wong, 81 N.Y.2d at 605, 601 N.Y.S.2d at 443

. Unable to prove which defendant had actually shaken the baby, the prosecution maintained that both were guilty “ either by commission for having actually

8 The majority hypothesizes ways in which the mens rea element for first

- degree manslaughter might be proved by circumstances not linked to a defendant’s acts of commission. See Majority Op., ante at 16

. But Moncrie ffe and Hill require more than hypothetical possibilities to demonstrate reasonable probability. They require cases in which defendants were actually prosecuted for first

- degree manslaughter in such circumstances. Neither Scott nor the majority identifies any such ca ses.

9 While manslaughter in the first degree under N.Y. Penal Law § 125.20(1) requires a defendant, with intent to cause serious physical injury to a person, to cause death, manslaughter in the second degree under N.Y. Penal Law § 125.15(1) requires a d efendant recklessly to cause the death of another person.18

- 163

- cr United States v. Scott

11 shaken the child, or by omission for failing to protect the child .” People v. Wong, 182 A.D.2d 98, 108, 588 N.Y.S.2d 119, 124 (1st Dep’t 1992). Thus, commission and omission were also closely linked in Wong , even if not as inextricably intertwined as in Steinberg

. In any event, t he New York courts ruled that neither Wong could stand

co nvicted of manslaughter on either theory.

Th e Appellate Division , First Department, reversed the Wongs’ first

- degree manslaughter convictions , reasoning that record evidence indicating that the shak er’s “probable intention” was “to quiet [ the child ]

. . . and not necessarily to harm him , ” raised a “reasonable doubt” as to either defendant’s possession of the required specific intent to cause serious physical injury. Id. at 107, 588 N.Y.S.2d
at 123

. The Court of Appeals then reversed the Wongs ’ second

- degree manslaughter convictions. It was as to that charge, which required proof only of recklessness, and not of a specific intent to cause physical injury, see People v. Rivera , 23 N.Y.3d 112, 122, 989 N.Y.S .2d 446, 453 (2014), that the C ourt observed that the prosecution’s theory

— that one defendant “shook the baby violently while the other, aware of the harm being done, failed to seek medical assistance”

— “ could theoretically support [second

- degree manslaughter ] convictions in a proper cas e , ” People v. Wong , 81 N. Y.2d at 607, 601 N.Y.S.2d at 443 (emphasis added). But it held that Wong was not that case , a conclusion that means Wong does not demonstrate a realistic probability of appl ying New York’s first

degree manslaughter statute only on a theory of omission

. See United States v. Hill , 890 F.3d at 56 (requiring more than “theoretical possibility” of statute being applied to non

- violent conduct).18

- 163

- cr United States v. Scott

12 H ighlight ing “the absence of proof from which the jury could infer that the ‘passive’ defendant was even aware that the infant had been violently shaken,” the Court concluded that the record would not admit a finding that such d efendant recklessly failed to procure

nee ded medical care. People v. Wong , 81 N.Y.2d at 609 , 601 N.Y.S.2d at 445

. Indeed, the Court suggested that, given the difficulty of recognizing shaken baby syndrome, the proof would have to admit an inf erence that the “ passive ” defendant “actually witnessed the shaking” to support guilt on a theory of omission

. Id. at 610, 601 N.Y. S. 2d at 445

. Such evidence might imply more than failure to seek medical care ; it might imply complicity in the violence necessitating such care

. But even if it would not, the reversals of all manslaughter convictions in Wong preclude us from identifying that case as one in which a defendant has in fact successfully be en prosecuted for New York first

- degree manslaughter based only on an omission. 10
In sum, while Steinberg admits the legal “possibility” of a first

degree manslaughter conviction being obtained solely on a theory of omission, because that was not “in fact” the case in Steinberg

— and even less so in Wong

— these cases are insufficient to demonstrate the “realistic probability” of application that is a necessary prerequisite for the majority’s conclusion that New York first

- degree manslaughter is not a categorical violent fe lony or crime of violence.

10 The majority charges that this reasoning converts the “reasonable probability” standard in to one demanding affirmance. See Majority Op. , ante at 1 9

. I respectfully disagree. While I hardly think it irrelevant to a realistic probability inquiry whether a state’s highest court upholds or reverses conviction s based on an urged non

- violent theory of prosecution, the fact is that in neither Steinberg nor W ong was a defendant actually prosecuted for first

- degree manslaughter only on a theory of omission.18

- 163

- cr United States v. Scott

13 United States v. Hill , 890 F.3d at 56 (internal quotation marks omitted). 11

III. A Defendant Who Commits New York First

- Degree Manslaughter Necessarily “Uses” Physical Force in Causing Death
In United States v. Castleman, 572 U.S. 157 , the Supreme Court stated that the “knowing or intentional causation of bodily injury necessarily involves the use of physical force

. ” I d. at 169 (emphasis added)

. Indeed, t he Court went on to state that “ it is impossible to

11 The majority, see Majority Op., ante at 20 n.3 , professes puzzlement at my inability to identify the requisite probability given my observation, in the n ext point of this opinion, that it would make no sense for the law to distinguish between a defendant who sprinkles poison into his victim’s drink, and one who, with murderous intent, allows a victim to whom he owes a duty of care to imbibe what the defend ant knows is a poisoned drink, see infra at 14

– 1 6

. The puzzle, I respectfully submit, derives from conflating the realistic

- probability and use

- of

force inquiries. The equivalency I draw pertains to the latter inquiry, which asks whether a defendant has “made” violent force

— such as the violent force of po ison on a human body

— the “instrument” for achieving his injurious intent. United States v. Castleman , 572 U.S. at 170

– 71. It is because both hypothetical defendants

— one by commission, the other by omission (despite a duty to act)

— knowingly made poison th eir instrument for intended injury that I do not think the law can gainsay that both used physical force to commit their homicidal crimes. Such a use inquiry is quite different from asking whether there is a realistic probability of New York prosecutors filing, juries finding proved, and courts upholding first

- degree manslaughter charges based solely on a theory of omission. Even acknowledging the legal possibility of such an application, see People v. Steinberg , 79 N.Y.2d at 680, 584 N.Y.S.2d at 772, in the absence of a single case “in fact” prosecuting New York first

- degree manslaughter based only on a theory of omission, I cannot identify the “probability” necessary to consider whether the crime is not violent when so committed. The point need not be pursued further, however, because, as I explain in the next point of text, I think New York first

- degree manslaughter is a categorically violent crime however committed. On that ground alone I would dissent from the majority opinion.18

- 163

- cr United States v. Scott

14 cause bodily injury without applying force

. ” I d. at 170 (emphasis added) ; accord id. at 174 (Scalia, J., concurring) (“ [ I ] t is impossible to cause bodily injury without using force capable of producing that result.” (internal quotation marks omitted)). 12 Thus, Castleman compels the conclusion that to be guilty of causing death while intending to cause at least serious physical injury

— the required elements of N.Y. Penal Law § 125 .20(1)

— a defendant must have used physical force. The conclusion obtains , moreover, regardless of whether the use was direct or indirect, by commission or omission. Castleman makes that clear in rejecting an argument that a poisoner

can kill his victim without using ph ysical forc e by the non

- violent act of surreptitiously sprinkling poison in his drink. The Court explained that the “ use of force ” in that circumstance is “not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physica l harm

. ” United States v. Castleman , 572 U.S. at 171 (internal quotation marks and brackets omitted)

. In holding otherwise, the panel majority attempts to narrow Castleman , insisting that the Court there addressed only “whether a low level of force that produces a violent result ”

— sprinkling poison

— “ can qualify as use of force under ACCA.” Majority Op. , ante at 2 5

. It maintains that a defendant can only be said to have used injurious
p hysical force if he took “ some action that initiates a harmful

12 To the extent thi s court had earlier expressed a different understanding of the use of force, see Chrzanoski v. Ashcroft , 327 F.3d 188, 195 (2d Cir. 2003) (stating that “intentional causation of injury does not necessarily involve the use of force”), we have acknowledged t hat this understanding has been “abrogated” by Castleman , Villanueva v. United States , 893 F.3d at 130; see also United States v. Hill , 890 F.3d at 60 (observing that “ Chrzanoski panel did not have the benefit of the Supreme Court’s reasoning in Castleman to the effect that a use of physical force can encompass acts undertaken to cause physical harm, even when the harm occurs indirectly (as with poisoning)” (internal quotation marks omitted)).18

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- cr United States v. Scott

15 consequence .” Id. at 2 6 (emphasis in original). This reading of Castleman , however, is belied by the just

- quoted text, which makes clear that not only is the degree of force used in sprinkling poison irrelevant to the Court’s use

- of

- force conclusion, so too is the sprinkling itself . That is because the “use of force” in th a t circumstance is “not the act of sprinklin g the poison” at all ; rather, “it is the act of emp loying poison knowingly as a device to cause physical harm.” United States v. Castleman , 572 U.S. at 171 (internal quotation marks and brackets omitted)

. Applying Castleman ’s reasoning in United States v. Hill, this c ourt effectively recognized that a defendant can employ force without affirmatively initiating it when it rejected the argument that th reatening to wit h h old vital medicine from a victim (as well as threatening to poison him) w ould not threaten the

use of physical force. See 890 F.3d at 59. By the majority’s reasoning, however, a defendant intent on killing or seriously injuring another person c ould be said to have used the deadly force of a poison if he himself sprinkle d that substance in

a victim’s drink, but not to have used such force if, possessed of the same injurious intent, and with the legal duty to intervene , he stood by and let the person imbibe what defendant knew was a poisoned drink. Th e distinction makes no sense , and not simpl y because the two circumstances involve comparable moral culpability. See Majority Op. , ante at 28

– 29

. Rather, t he rea son no distinction is warranted is because of how the Supreme Court has construed statutory text penalizing crimes committed by the use of force. I n both hypothesized c ircumstances, the defendant is “employing poison knowingly as a device to cause [intended] physical harm ”

— the use

- of

- force standard articulated in Castleman , 572 U.S. at 17 1

. In the second circumstance, the person employs poison as the instrument for his injurious intent by deliberately fail ing to act on a18

- 163

- cr United States v. Scott

16 duty to remediate the poison

. Indeed, the law equates such inaction in the face of a duty to act to voluntary action. See N.Y. Penal Law § 15.10 ( equating “omission to perform an act which [person] is physically capable of performing” with “voluntary act” in identifying minimal cond uct required for criminal culpability). For that reason, the majority cannot fairly characterize a culpable omission as taking “no action whatsoever,” Majority Op., ante at 28 , or as doing “nothing at all,” Concurring Op., ante at 8

. The culpable “action” taken is deliberate inaction , while under a duty to act, with the specific intent thereby to cause serious physical harm. The majority nevertheless insists that the distinction it draws is compelled by Curtis Johnson v. United States, which , in holding that the term “physical force” should be construed according to its “ordinary meaning,” observed that di ctionary definitions describ e “force” as “active power; vigo r,” and “physical force” as “f orc e consis ting in a physical act.” 559 U.S. at 139 (internal quotation marks and brackets omitted) ; see Majority Op. , ante at 21

– 22

. From this, the majority concludes that “only an active crime constitutes a ‘violent felony’ under ACCA.” Majority Op., ante at 22

. I respectfully suggest that , in reaching this conclusion, my colleagues conflate “physical force” itself with the “use” of such force. Cur t is Johnson holds that the former connotes active physical power and vigor. But it says nothing about the latter; certainly not that the “use” of physical force must be affi rmative rather than passive. It was only subsequently, in United States v. Castl e man , that the Supreme Court discussed what constitutes a “use” of “ physical force.” The re, the Court explained that the word “use” “conv eys the idea that the thing being used (here, ‘physical force’) has been made the user’s instrument.” 572 U.S. at 170

– 71 (internal quotation marks omitted). I respectfully submit that w hen a person, (1) who has the legal duty18

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- cr United States v. Scott

17 and the ability to protect another from physical injury, (2) fails to act on that duty , (3) because he specifically intends to cause serious physical injury, the person must be said, by his omission, to have adopted the physical force causing harm as the “instrument” of his

own injurious intent and, thus, to have used that physical force as much as if he had actively deployed it in the first instance. The majority suggest s that this “overstates the holding” in Castleman because the Supreme Court did not there consider the physica l force question “for ACCA purposes.” Majority Op. , ante at 28

. Such criticism is unwarranted. Th is court has already recognized th at the determina tive significance Castleman affords causation in identifying crimes committed by the use of force applies in the ACCA
context. In Villanueva v. United States, an ACCA case, we observed that, f ollowing Castleman, a federal court’s “use of force” inqui ry properly “focuses on the causation of a consequence, rather than the physical act of initiating an a ction that leads to a consequence.” 893 F.3d at 128. Put another way, in deciding whether a crime categorically requires the use of force , a court properly considers the necessary impact of an instrument of force on the crime’s victim, not the impact of a defendant’s actions

— or inactions

— on th at instrument. See id. at 129 (“[R]elevant force is the impact of the substance on the victim, not the impact of the user on the substance.”). Because the only consequence for a victim o f New York first

- degree manslaughter is death

— the ultimate physical injury

— and because that consequence can only be caused by the application of physical force to the victim , see United States v. Castleman , 572 U.S. at 169

– 70, a defendant convicted of that homicide crime because he intended to cause at least serious physical injury, must be said to have18

- 163

- cr United States v. Scott

18 intentionally used the force causing death as his instrument without regard to whether he did so by commission or omission

. 13

F ive of our sister circuits have already sensibly refused to draw a distinction between crimes causing physical injury by commission and those causing such injury by omission in identifying crimes of violence under various provisions of federal law. See United States v. Rumley , --- F.3d

--- , 2020 WL 1222681 (4th Cir. Mar. 13, 2020) (holding Virginia unlawful wounding crime of violence under ACCA’s force clause because, following Castleman , “there is just as much ‘use of fo rce’ when a murderous parent uses the body’s need for food to intentionally cause his child’s death as when that parent uses the forceful physical properties of poison to achieve the same result”); United States v. Sanchez , 940 F.3d 526, 536 (11th Cir. 201 9) (holding New York second

- degree murder crime of violence under ACCA’s force clause because, under “the logic of Castleman , we see no reason to draw a distinction between administering a poisonous substance with the intent to cause death and withholding a life

- saving substance with the intent to cause death”); United States v. Peeples , 879 F.3d 282, 287 (8th Cir. 2018) (holding Iowa attempted murder categorical crime of violence under U.S.S.G. § 2K2.1(a)(4)(A), because, even when committed by omission, su ch as by withholding food with intent to cause dependent to starve, it is impossible to cause death without

13 Because I think Castleman leaves no ambiguity about the nec essary use of physical force to commit a homicide crime, there is no reason here for application of the rule of lenity , s ee Majority Op. ante at 30 ; Concurring Op., ante at 1

– 8 , which, in any event, is the last rule of statutory construction, see Shular v. United States , 140 S. Ct. 779, 787 (2020) (stating that rule of lenity applies “only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute” (quoting United States v. Shabani , 513 U.S. 10, 17 (1994))) ; see id. at 788 (Kavanaugh, J., concurring) (observing that lenity rule “applies only in cases of grievous ambiguity” (collecting cases))

.18

- 163

- cr United States v. Scott

19 force); United States v. Ontiveros , 875 F.3d 533, 538 (10th Cir. 2017) (holding Colorado second

- degree assault crime of violence under ACCA’s force clause because, following Castleman ’s logic, “[i]f it is impossible to commit a battery without applying force, and a battery can be committed by an omission to act, then second

- degree assault must also require physical force” (emphasis omitted) ); United S tates v. Waters , 823 F.3d 1062, 1066 (7th Cir. 2016) (adhering to precedent recognizing domestic battery under Illinois law as crime of violence for purposes of Career Offender Guideline because, assuming crime could be committed by withholding medicine, that omission “c auses physical harm, albeit indirectly, and thus qualifies as the use of force under Castleman ”). But see United States v. Mayo , 901 F.3d 218, 227, 230 n.15 (3d Cir. 2018) (declining to extend Castleman to ACCA context, although recognizing this court to have done so in Villanueva b ased

on Castleman ’s focus on causation ). I would join them, and hold New York first

- degree manslaughter a categorical violent felony and crime of violence under the force clause s of both ACCA and the Career Offender Guideline.

IV. The Career Offender Guideline’s Enumerated Offenses Clause
Because I think Scott’s manslaughter convictions are categorical violent felonies and crimes of violence under the force clauses of both ACCA and the Career Offender Guideline, I would not reach th e government’s alternative argument urging a crime

- of

violence conclusion under the Guideline ’ s enumerated offenses clause. See supra note 3

. Nevertheless, because the panel majority rejects this alternative argument, I here briefly explain why I am not persuaded by its reasoning. A court identifying a crime of violence by reference to an18

- 163

- cr United States v. Scott

20 enumerated offense properly determine s the “generic” definition of the enumerated offense by looking to the “sense in which the term is now used in the criminal codes of most States

. ” Taylor v. United States , 495 U.S. 575, 598 (1990)

. In the process, a court may also “consult other sources, including federal criminal statutes, the Model Penal Code, scholarly trea tises,

. . . legal dictionaries , ” and “the common law . . . t o frame the analysis

. ” United States v. Castillo , 896 F.3d 141, 150 (2d Cir. 2018)

. For a crime of conviction to qualify as an enumerated violent offense, its elements must be “the same as , or narrower than, those of the generic offense.” Descamps v. United States , 570 U.S. 254, 257 (2013); accord Quarles v. United States , 139 S. Ct. 1872, 1877 (2019); United States v. Castillo , 896 F.3d at 150.

T he government asserts that New York first

- degree manslaughter is an enumerated crime of violence under the Career Offender Guideline because a majority of the states penalize conduct with the elements of N.Y. Penal Law § 125.20(1)

— causing death while in tending serious bodily in jury

— as either murder (20 states) 14 or

14 The 20 states penalizing such conduct as murder do so under sta tutes proscribing either what Professor LaFave refers to as “intent

- to

- do

- serious

- bodily

injury” murder, 2 Wayne R. LaFave, S UBSTANTIVE C RIMINAL L AW § 14.3, at 590 (3d ed. 2018) ; see Alaska Stat. Ann. § 11.41.110(a)(1); Ariz. Rev. Stat. Ann. § 13

- 1104(A)(2 ); Ark. Code Ann. § 5

- 10

- 103(a)(2); 720 Ill. Comp. Stat. 5/9

- 1(a)(1); La. Stat. Ann. § 14:30.1(1); Thornton v. State , 919 A.2d 678, 693 (Md. 2007); Mo. Ann. Stat. § 565.021(1); N.J. Stat. Ann. § 2C:11

- 3(1), (2); Commonwealth v. Fisher , 80 A.3d 1186, 1191

– 9 2 (Pa. 2013); Tex. Penal Code Ann. § 19.02(b)(1),(2); Utah Code Ann. § 76

- 5

- 203(2)(b); State v. Congress , 114 A.3d 1128, 1135 (Vt. 2014); State v. Davis , 648 S.E.2d 354, 358

– 59 (W. Va. 2007) , or homicides predicated on intended assaults or batteries, see Ga. Code Ann. §§ 16

- 5

- 1(c), 16

- 5

- 24(a); Miss. Code Ann. §§ 97

- 3

- 19(1)(c), 97

- 3

- 7(2)(a); Mont. Code Ann. §§ 45

- 5

- 102(1)(b), 45

- 5

- 202(1); Ohio Rev. Code Ann. §§ 2903.02(B), 2903.11(A)(1); Okla. Stat. Ann. tit. 21, §§ 646(1), 701.8(2); Wash. Rev. Code Ann . §§ 9A.32.050(b), 9A.36.011; Wis. Stat. Ann. §§ 940.03, 940.19(5).18

- 163

- cr United States v. Scott

21 voluntary manslaughter (eight states), 15 w hile almost all states penalize such conduct, a t a minimum, as aggravated assault. 16 The majority rejects th e argument insofar as it requires

a ggregating states holding what the majority perceives as minority views of murder and voluntary manslaughter. Indeed, it maintains that a majority of the states limit murder and voluntary manslaughter to homicides committed with the specific intent to kill. As for aggravated assault, the majority insists that it cannot be committed by omission. I am not convinced.

15 See Conn. Gen. Stat. Ann. § 53a

- 55; Del. Code Ann. tit. 11, § 632; Ky. Rev. Stat. Ann. § 507.030; People v. Townes , 218 N.W.2d 136, 140 (Mich. 1974); Minn. Stat. Ann. § 609.20(2); State v. English , 772 S.E.2d 740, 745 (N.C. 2015); N.Y. Penal Code § 125.20(1); State v. Ortiz , 824 A.2d 473, 486 (R.I. 2003).

16 Aggravated assault generally punishes assaults or batteries where serious physical injury is caused intentionally, knowingly, or, in some cases, recklessly. See 2 LaFave § 16.2(d); M ODEL P ENAL C ODE § 211. 1(2)(a); see also United States v. Delis , 558 F.3d 177, 181 (2d Cir. 2009) (observing that “distinction between assault and battery . . . has been regularly elided” and “two terms have often been used interchangeably”). The following 44 state laws proscri be assaults or batteries in such aggravated circumstances. See Ala. Code § 13A

- 6

- 21; Alaska Stat. Ann. § 11.41.200; Ariz. Rev. Stat. Ann. §§ 13

- 1203, 1204; Ark. Code Ann. § 5

- 13

- 202; Cal. Penal Code § 243(d); Colo. Rev. Stat. Ann. § 18

- 3

- 202; Conn. Gen. S tat. Ann. § 53a

60; Del. Code Ann. tit. 11, § 612; Fla. Stat. Ann. § 784.045; Ga. Code Ann. § 16

- 5

- 24; Haw. Rev. Stat. Ann. § 707

- 710; Idaho Code Ann. § 18

- 907; 720 Ill. Comp. Stat. Ann. 5/12

- 3.05; Ind. Code Ann. § 35

- 42

- 2

- 1; Kan. Stat. Ann. § 21

- 5413; Ky . Rev. Stat. Ann. § 508.020; La. Stat. Ann. § 14:34.1; Me. Rev. Stat. Ann. tit. 17

- A, § 208; Md. Code Ann., Crim. Law § 3

- 202; Minn. Stat. Ann. § 609.221; Miss. Code Ann. § 97

- 3

- 7(2)(a); Mo. Stat. Ann. § 565.050; Mont. Code Ann. § 45

- 5

- 202(1); Neb. Rev. St at. § 28

- 308; Nev. Rev. Stat. Ann. § 200.481(2)(b); N.H. Rev. Stat. Ann. § 631:1; N.J. Stat. Ann. § 2C:12

- 1; N.M. Stat. Ann. § 30

- 3

- 5; N.Y. Penal Law § 120.05; N.C. Gen. Stat. Ann. § 14

- 33; N.D. Cent. Code Ann. § 12.1

- 17

- 02; Ohio Rev. Code Ann. § 2903.11; Okla. Stat. Ann. tit. 21, § 646; Or. Rev. Stat. Ann. § 163.175; 18 Pa. Stat. and Cons. Stat. Ann. § 2702; 11 R.I. Gen. Laws Ann. § 11

- 5

- 2; S.D. Codified Laws § 22

- 18

- 1.1; Tenn. Code Ann. § 39

- 13

- 102; Tex. Penal Code Ann. § 22.02; Utah Code Ann. § 76

- 5

- 103; Vt. Stat. Ann. tit. 13, § 1024; Wash. Crim. Code § 9A.36.011; Wis. Stat. Ann. § 940.19; Wyo. Stat. Ann. § 6

- 2

- 502.18

- 163

- cr United States v. Scott

22 T he government’s urged aggregation approach finds support in the Supreme Court’s instruction that courts identifyin g categorical crimes of violence by reference to enumerated offenses should not be controlled by the “label” state s a ttach to their crime s but, rather, by the elements of t hose crimes

. Quarles v. Unit ed States , 139 S. Ct. at 1880

. Mindful of that instruction, I conclude that New York first

degree manslaughter is an enumerated crime of violence because a clear majority of the states penalize the conduct proscribed by the two el ements of N.Y. Penal Law § 125. 20(1)

— (1) causing death while (2) intending to cause serious physical injury

— as a Guideline s
enumerated crime of violence, whether labeled murder or voluntary manslaughter. While the panel majority characterizes these states as holding minority views of the mens rea element of murder and voluntary manslaughter, see Majority Op., ante at 35

– 36 , the fact remains that a majority of the states treat the conduct proscribed by the elemen ts of N.Y. Penal Law § 125.20(1) as one or the other of these enumerated crimes of violence. Indeed, it would be more than curious to conclude that New York first

- degree manslaughter is not an enumerated crime of violence because only eight states would l abel it voluntary manslaughter when another 20 would label it as the more serious crime of murder. To explain, as Professor Wayne LaFave details, at common law, “one who intended to do serious bodily injury short of death, but who actually succeeded in killing, was guilty of murder in spite of his lack of an intent to kill, in the absence of circumstances which mitigated the offense to voluntary mansl aughter or which justified or excused it.” 2 Wayne R. LaFave, S UBSTANTIVE C RIMINAL L AW § 14.3 , at 590 (3d ed. 2018)

. “T his type of common

- law murder became a part of the law of murder in America

. ” Id. It was only over time that “[m]ost ”

— but far from all

— “ modern [state penal] codes” came to “define18

- 163

- cr United States v. Scott

23 murder as not including the intent

- to

- do

- serious

- bodily injury type.” Id. at 591 & n. 5 (comparing codes that do not treat death caused intending serious bodily injury as murder with those that do, eith er expressly or as a lesser degree of murder). Instead, death caused with the intent to cause serious bodily harm was punished as the lesser homicide of voluntary manslaughter. See id. § 15.2(a) , at 670 (observing that “[a]lthough the killing of another person

— when accompanied by an intent to kill, or by an intent to do serious bodily harm short of death , or when resulting from such unreasonable and highly reckless conduct as to evince a depraved heart

— of t en amounts to murder, yet it may under certain circumstances amount only to voluntary manslaughter” ( emphasis added) ( internal quotati on marks omitted ))

. Nevertheless , as the New York Court of Appeals has observed, a homicide caused with intent to cause serious physical injury rather than deat h, i.e. , first

- degree manslaughter, is a lesser included offense of second

- degree murder. See People v. Hull , 27 N.Y.3d 1056, 1058, 35 N.Y.S.3d 284, 286 (2016). This background explains why homicides caused while intending to cause serious physical injur y, which New York punishes as first

- degree manslaughter , are properly viewed as categorical crime s of violence under the enumerated offense s clause of the Career Offender Guideline. A clear majority of states punish crimes having the se same elements as either murder or voluntary manslaughter. Only a minority of states fail s to punish this conduct as one of these enumerated crimes of violence

. Our recent decision in United States v. Castillo, 896 F.3d 141 , further supports this conclusion. There, we held New York first

degree manslaughter a categorical crime of violence under the pre

2016 Guidelines by analogy to the enumerated crime of “generic manslaughter,” which we construed to include both voluntary and18

- 163

- cr United States v. Scott

24 involuntary manslaughter. See id. at 151 n.36, 153

– 54. 17 We explained that , historically, “murder was the unlawful killing of a human being with malice a forethought, ” while “manslaughter was the unl awful killing of a human being without malice aforethought. ” See id. at 151 (internal quotation marks omitted) . Over time, the term “malice aforethought came to encompass a variety of mental states, including intent to kill in the absence of extenuating circumstances, intent to do serious bodily injury , depraved heart, and intent to commit a felony.” Id. (emphasis added) (internal quotation marks omitted ) . Meanwhile, manslaughter was subdivided into “voluntary and involuntary varieties,” the former being “ intentional killing in a heat of pas sion upon adequate provocation, ” and the latter being “u nintentional killing caused by criminal negligence or reckl essness, or during the commission of an unlawful act not amounting to a felony.” Id. (internal quotation marks omitted). While some state codes, and the federal criminal code, preserve a voluntary/involuntary distinction as to manslaughter, Castillo acknowledge s that “ the modern trend, reflected in a majority of recent codifications, is for there to be but one single manslaughter crime.” Id. (quoting 2 LaFave § 15 .1 , at 668

– 69 ). Thus, Castillo conclud ed that while the “ mens rea of recklessness . . . serves as the proverbial floor for the generic definition of ‘manslaughter,’” “the states of mind that historically fell under the category of ‘malice aforethought’ associated wit h mur der , ” including the intent to kill and to do serious bodily injury, also satisfy that

17 In so holding, this court specifically rejected one argument urged by Scott on this appeal: that New York first

- degree manslaughter is b roader than generic manslaughter because only the former can be committed by omission. See United States v. Castillo , 896 F.3d at 154 (holding that “generic ‘manslaughter,’ . . . can also be committed by reckless omission when there is an affirmative duty to act”). Thus, there is no need to address that argument further.18

- 163

- cr United States v. Scott

25 generic definition. Id. at 152.
From this, I conclude that where manslaughter remains divided into voluntary and involuntary homicides, the mens rea element for g eneric involuntary manslaughter is recklessness. Higher mental state requirements, indicative of the malice a forethought originally associated w ith murder

— such as intent to kill or to do serious bodily injury

— d enominate homicides now generically recognized as voluntary manslaughter. Cf. i d. at 153 (recognizing “recklessness (a mens rea of [New York] second

- degree manslaughter) [as] a lower mental sta te than intent to cause serious injury , ” as required for New York first

- degree manslaughter )

. Thus, contrary to my colleagues in the majority, I identify New York first

- degree manslaughter as the equivalent of generic voluntary manslaughter under the Car eer Offender Guideline’s enumerated offenses clause. Further, I think the conduct satisfying the elements of New York first

- degree manslaughter

— causing death intending to cause serious physical injury

— would be punished in virtually all states, at

a minimum, as aggravated assault , a term that also includes aggravated battery

. See supra note 16

. Certainly, the Model Penal Code § 211.1 (2)(a) defines “aggravated assault” to include c ausing “serious bodily injury . . . purposely [or] knowingly.” The tr eatises are also in accord. See 6 A M

. J UR

. 2 D Assault & Battery § 32 , Westlaw (database updated Nov. 2019) (“Aggravated assault usually consists of intentionally or recklessly causing great or serious bodily harm to another

. ”); 2 LaFave § 16.2(d) , at 764

– 65 (observing that aggravated battery includes “intentionally or knowingly” inflicting “serious bodily injury”). To avoid this conclusion, the panel majority faults the government for failing to show that most states would prosecute18

- 163

- cr United States v. Scott

26 serious bodily injury purposely caused by omiss ion as aggravated assault. See Majority Op., ante at 40

. I disagree. First, such a showing is unnecessary given Scott’s failure to cite a case in which New York actually prosecuted firs t

- degree manslaughter based only on omission. Second, even assuming such a showing were necessary, it is satisfied here. It is well established in law that injury can be proximately caused by either commission or omission, particularly when the latter pertains to a legal duty. See W. Page Keeton et al. , P ROSSER & K EETON ON T ORTS § 41, at 263 (5th ed. 1984) ( stating that “essential element” of negligence clai m is “proximate cause,” i.e. , “reasonable connection between the act or omission of the defendant and the damage w hich the plaintiff has suffered” (emphasis added) ). The same conclusion obtains for criminal liability generally , which the Model Penal Code instructs can “be based on conduct that includes a voluntary act or the omission to perform an act of which [a defendant] is physically capable.” M ODEL P ENAL C ODE § 2.01 (1) (emphasis added) ; see id. § 1.13 (defining “conduct” of crime as “an action or omission and its accompanying state of mind” (emphasis added) ) ; see also 2 W HARTON ’ S C RIMINAL L AW § 25, at 139 (15th ed. 1993) (observing that to be criminally liable, defendant must engage in “conduct,” which “means an act or omission” (internal quotation marks omitted)). Citing the Model Penal Code, Professor LaFave observes that “modern recodifica tions typically state that crimes may be committed either by an act or an omission,” when there is a “legal duty” to act. 1 LaFave § 6.2, at 588 & n.1 . Indeed , LaFave identifies as the first element of criminal battery “the defendant’s conduct (act

or omission) .” 18

18 In § 6.2 of the LaFave treatise, entitled “Omission to Act,” the author cites numerous state statutes and case decisions making plain that criminal liability generally can be based on either commission or omission. There is no reason to18

- 163

- cr United States v. Scott

27 In sum, because a clear majority of the states penalize the conduct proscribed by the elements of N.Y. Penal Law § 125.20(1) as either generic voluntary manslaughter or the more serious homicide crime of murder, and because an even larger majo rity of the states penalize such conduct, at a minimum, as generic aggravated assault, I conclude that the Career Offender Guideline applies to Scott’s case.

V

. Conclusion For the reasons stated in this opinion, I conclude that Scott should not have been granted habeas relief from his original sentence b ecause he has three prior convictions for violent felonies under ACCA and for crimes of violence under the Career Offender Guideline.

To the extent Scott has two p rior convictions for first

- degree manslaughter in violation of N.Y. Penal Law § 125.20(1), I conclude that those convictions are for categorical violent felonies and crime s of violence under the force clause s of both ACCA and the Career Offender Guideline. To commit New York first

- degree manslaughter, a defendant must (1) cause death while (2) specifically intending to cause at least serious physical injury. Death can only be caused by intentionally using ph ysical force, that is, by a person making fatal force his own instrument for c ausing intended injury. See United States v. Castleman , 572 U.S. at 169. Whether a defendant himself

think that assault or battery crimes warrant an exception. Footnotes in this section are replete with cases convicting defendants for what might be deemed the most aggravated forms of assault and batt ery, murder and manslaughter. I n addition, the treatise cites cases of assault

- by

- omission convictions. See 1 LaFave § 6.2(a)(1), at 593 n.19 (citing, among other cases, People v. Rolon , 160 Cal. App. 4th 1206, 73 Cal. Rptr . 3d 358 (2008) (upholding conviction for “assault causing death” committed by omission); State v. Walden, 306 N.C. 466 (1982) (upholding assault conviction of mother who failed to prevent beating of child)).18

- 163

- cr United States v. Scott

28 deploys that force in the first instance or avail s himself of such force already in motion ( by failing to act on a duty to remediate that force because he specifically intends serious injury ) does not alter the conclusion that he has intentionally used physical force to commit the crime. Thus, New York first

- degree mansl aughter is a categorical crime of violence. While I do not think it necessary to decide whether New York first

- degree manslaughter is also a categorical crime of violence under the enumerated offenses clause of the Career Offender Guideline , to the extent the panel majority concludes that it is not, I cannot agree with its reasoning.

I , therefore , respectfully dissent from the court’s decision today affirming the district court judgment in favor of Scott.