16

‐ 4129

‐ cr

United States v. Castillo



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2017

No. 16

‐ 4129

‐ cr

U NITED S TATES OF A MERICA

, Appellant

,

v.

J UAN C ASTILLO

, Defendant

‐ Appellee

.

On Appeal from the United States District Court

for the Southern District of New York

S UBMITTED : M ARCH 5, 2018

D ECIDED : J UNE 4, 20182 Before: C ABRANES

, R AGGI

, Circuit Judges

, and V ILARDO

, District

Judge

. *

The government appeals from an October 6, 2016 judgment of

the United States District Court for the Southern District of New York

(Gregory H. Woods, Judge ) convicting defendant

‐ appellee Juan

Castillo, following his plea of guilty, of being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and

sentencing him principally to nineteen months’ imprisonment to be

followed by three years of supervised release. On appeal, the

government argues that the District Court erred when it found that

Castillo’s prior New York conviction for manslaughter in the first

degree, in violation of New York Penal Law Section 125.20(1), did not

qualify as a “crime of violence” for enhancement purposes under the

enumerated offenses in Application Note 1 of the commentary to

Section 4B1.2 of the November 1, 2015 edition of the United States

Sentencing Guidelines.

This case presents four questions:

(1) Whether the government waived any arguments based on

the former “residual clause” of Guidelines Section

* Judge Lawrence J. Vilardo, of the United States District Court for the

Western District of New York, sitting by designation.3 4B1.2(a)(2) when, before the District Court, it conceded that

the clause was void for vagueness;

(2) What the so

‐ called “generic definition” of “manslaughter”

is;

(3) Whether the elements of manslaughter in the first degree

under New York law, N.Y. Penal Law § 125.20(1), are the

same as, or narrower than, those of the generic offense of

“manslaughter”; and

(4) Whether the District Court erred in calculating the

applicable advisory range under the United States

Sentencing Guidelines when it found that manslaughter in

the first degree under New York law, N.Y. Penal Law

§ 125.20(1), does not qualify as a “crime of violence” under

Application Note 1 of the commentary to Section 4B1.2 of

the November 1, 2015 edition of the United States

Sentencing Guidelines.

We conclude:

(1) The government did not waive arguments based on the

former “residual clause” of Guidelines Section 4B1.2(a)(2);

(2) The generic definition of “manslaughter” includes the

unlawful killing of another human being recklessly;4 (3) Manslaughter in the first degree under New York law, N.Y.

Penal Law § 125.20(1), is narrower than the generic

definition of “manslaughter”; and

(4) The District Court erred when it found that Castillo’s prior

conviction for manslaughter in the first degree under New

York law, N.Y. Penal Law § 125.20(1), did not qualify as a

“crime of violence” under Application Note 1 of the

commentary to Section 4B1.2 of the November 1, 2015

edition of the United States Sentencing Guidelines.

Accordingly, we set aside the District Court’s sentence of

Castillo and REMAND the cause to the District Court for

resentencing.

Sagar K. Ravi, Assistant United States

Attorney (Margaret Garnett, Sarah K.

Eddy, Assistant United States Attorneys, on

the brief ), for Joon H. Kim, Acting United

States Attorney for the Southern District of

the United States, for Appellant

.

Barry D. Leiwant, Federal Defenders of

New York, Inc., for Defendant

‐ Appellee

.

Nikki Kowalski, Deputy Solicitor General

for Criminal Matters, for Barbara D.5 Underwood, Acting Attorney General for

the State of New York, as Amicus Curiae

.

J OSÉ A. C ABRANES

, Circuit Judge :

The government appeals from an October 6, 2016 judgment of

the United States District Court for the Southern District of New York

(Gregory H. Woods, Judge ) convicting defendant

‐ appellee Juan

Castillo, following his plea of guilty, of being a felon in possession of

a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and

sentencing him principally to 19 months’ imprisonment to be

followed by three years of supervised release. On appeal, the

government argues that the District Court erred when it found that

Castillo’s prior New York conviction for manslaughter in the first

degree, in violation of New York Penal Law Section 125.20(1), did not

qualify as a “crime of violence” for enhancement purposes under the

enumerated offenses in Application Note 1 of the commentary to

Section 4B1.2 of the November 1, 2015 edition of the United States

Sentencing Guidelines (“Sentencing Guidelines,” “U.S.S.G.,” or

simply “Guidelines”).

This case presents four questions:

(1) Whether the government waived any arguments based on

the former “residual clause” of Guidelines Section

4B1.2(a)(2) when, before the District Court, it conceded that

the clause was void for vagueness;6 (2) What the so

‐ called “generic definition” of “manslaughter”

is;

(3) Whether the elements of manslaughter in the first degree

under New York law, N.Y. Penal Law § 125.20(1), are the

same as, or narrower than, those of the generic offense of

“manslaughter”; and

(4) Whether the District Court erred in calculating the

applicable advisory range under the United States

Sentencing Guidelines when it found that manslaughter in

the first degree under New York law, N.Y. Penal Law

§ 125.20(1), does not qualify as a “crime of violence” under

Application Note 1 of the commentary to Section 4B1.2 of

the November 1, 2015 edition of the Guidelines.

We conclude:

(1) The government did not waive arguments based on the

former “residual clause” of Guidelines Section 4B1.2(a)(2);

(2) The generic definition of “manslaughter” includes the

unlawful killing of another human being recklessly;

(3) Manslaughter in the first degree under New York law, N.Y.

Penal Law § 125.20(1), is narrower than the generic

definition of “manslaughter”; and

(4) The District Court erred when it found that Castillo’s prior

conviction for manslaughter in the first degree under New7 York law, N.Y. Penal Law § 125.20(1), did not qualify as a

“crime of violence” under Application Note 1 of the

commentary to Section 4B1.2 of the November 1, 2015

edition of the Sentencing Guidelines.

Accordingly, we set aside the District Court’s sentence of

Castillo and REMAND the cause to the District Court for

resentencing.

I. BACKGROUND

A.

On or about May 11, 2003, defendant

‐ appellee Juan Castillo

shot and killed a man in Bronx County, New York. Castillo was

indicted for the shooting and charged in six counts, including one

count for manslaughter in the first degree, a felony, in violation of

New York Penal Law Section 125.20(1). 1

On February 2, 2006, Castillo was convicted in New York State

Supreme Court, Bronx County, of manslaughter in the first degree

(“2006 Manslaughter Conviction”). Before the District Court, the

parties here agreed that this conviction was “under subsection 1 of

1 New York Penal Law Section 125.20(1) provides: “A person is guilty of

manslaughter in the first degree when

. . . [w]ith intent to cause serious physical

injury to another person, he causes the death of such person or of a third person.”8 New York Penal Law 125.20.” 2 Castillo subsequently served his

sentence.

B.

On November 11, 2015, Castillo was arrested in the Bronx after

he threw a bag containing a loaded .22 caliber revolver out of an

apartment window. On March 30, 2016, the government filed an

indictment in the Southern District of New York charging Castillo

with being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1). 3 The parties did not reach a plea

agreement, and Castillo pleaded guilty to the sole count in the

indictment on June 6, 2016.

C.

At sentencing, the government and Castillo disputed the

applicable advisory range under the Sentencing Guidelines. As

relevant here, the parties disagreed on two issues: (1) whether to

2 App’x at 56.

3 18 U.S.C. § 922(g)(1) provides:

(g) It shall be unlawful for any person ‐‐

(1) who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year

. . .

to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive

any firearm or ammunition which has been shipped or transported

in interstate or foreign commerce.9 apply the August 1, 2016 edition of the Sentencing Guidelines

(“August 2016 Guidelines”), or the November 1, 2015 edition

(“November 2015 Guidelines”); and (2) whether Castillo’s 2006

Manslaughter Conviction was a “crime of violence” resulting in a

“career offender” enhancement under either or both editions of the

Guidelines.

These issues are interrelated because of constitutional

considerations resting on the Ex Post Facto Clause. 4 A sentencing

court typically applies the Guidelines Manual in place at the time of

sentencing

, which here is the August 2016 Guidelines. 5 There is,

however, “an ex post facto violation when a defendant is sentenced

under Guidelines promulgated after he committed his criminal acts

and the new version provides a higher applicable Guidelines

sentencing range than the version in place at the time of the offense ,” 6

which here is the November 2015 Guidelines. Consequently, the

sentencing court was required to calculate the advisory range under

both editions of the Guidelines—and in so doing consider whether

Castillo’s 2006 Manslaughter Conviction was a “crime of violence”

under each edition—in order to determine which edition to apply.

4 “No Bill of Attainder or ex post facto Law shall be passed.” U.S. C ONST

.

art. I, § 9, cl. 3.

5 18 U.S.C. § 3553(a)(4)(A)(ii) (“The court, in determining the particular

sentence to be imposed, shall consider

. . . the guidelines

. . . [that] are in effect on

the date the defendant is sentenced

. . . .”).

6 Peugh

, 569 U.S. at 533 (emphasis added).10 1. Castillo’s position at sentencing

Castillo took the position that the District Court should apply

the November 2015 Guidelines. He argued that those Guidelines

produced a lower advisory range than the August 2016 Guidelines

because, under the November 2015 Guidelines, his 2006

Manslaughter Conviction did not constitute a “crime of violence.”

Castillo acknowledged that his prior conviction for

manslaughter in the first degree under New York law would have

qualified as a “crime of violence” under the “residual clause” of

Section 4B1.2(a)(2) of the Guidelines. 7 But Castillo contended—and

the government conceded—that because the Supreme Court decided

in Johnson v. United States 8 that the “residual clause” of the Armed

7 Section 4B1.2(a) of the November 2015 Guidelines provided:

(a) The term “crime of violence” means any offense under federal or

state law, punishable by imprisonment for a term exceeding one

year, that—

(1) has as an element the use, attempted use, or threatened use

of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.

The “residual clause” is in subsection (a)(2): “or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” The

Sentencing Commission removed the “residual clause” in the August 2016

Guidelines.

8 135 S. Ct. 2551 (2015).11 Career Criminal Act (“ACCA”) was unconstitutional, the identically

worded provision in the Guidelines was likewise unconstitutional. 9

That meant Castillo’s 2006 Manslaughter Conviction could constitute

a “crime of violence” only if it qualified as such under some other

provision in Section 4B1.2. The problem for the government,

according to Castillo, was that no other provision covered his prior

offense.

Castillo observed that, because the government had conceded

that the “residual clause” was void for vagueness, the government

could only rely on two other Guidelines provisions to argue that

manslaughter in the first degree under New York law was a “crime

of violence” under Section 4B1.2: (1) the “force clause” 10 and (2) the

9 In Johnson

, the Supreme Court held that the “residual clause” in ACCA’s

definition of “violent felony” was void for vagueness. 135 S. Ct. at 2563. Because

the “residual clause” in U.S.S.G. § 4B1.2(a)(2) was identical to the “residual clause”

in ACCA, following Johnson the Department of Justice took the position that the

Guidelines’ “residual clause” was likewise void for vagueness. That position

turned out to be mistaken. In March 2017, the Supreme Court decided Beckles v.

United States

, 137 S. Ct. 886 (2017), which held that the “residual clause” as used in

the Guidelines is not void for vagueness.

According to the Supreme Court, “the Guidelines are not subject to a

vagueness challenge under the Due Process Clause” because, unlike ACCA, they

“do not fix the permissible range of sentences.” Id. at 892. Instead, the advisory

Guidelines “merely guide the exercise of a court’s discretion in choosing an

appropriate sentence within the statutory range.” Id.

10 The “force clause” in Guidelines Section 4B1.2(a)(1) defines a “crime of

violence” as an offense that “has as an element the use, attempted use, or

threatened use of physical force against the person of another[.]”12 enumerated offenses in Application Note 1 of the commentary. 11

Neither, Castillo said, applied to his prior offense. He argued that the

government could not rely on the “force clause” because

manslaughter in the first degree under New York law could be

committed by omission, and thus did not necessarily require the use

of force. And the government could not rely on Application Note 1’s

enumeration of “manslaughter,” according to Castillo, because that

provision was merely an interpretation of the section’s “residual

clause,” which the parties agreed was void.

Because there could be no enhancement for a prior “crime of

violence,” Castillo argued, the applicable November 2015 advisory

Guidelines range for his instant offense was 15 to 21 months’

imprisonment. Castillo requested a below

‐ Guidelines sentence of

one

‐ year and one

‐ day imprisonment, to be followed by supervised

release.

2. The government’s position at sentencing

The government responded that Castillo’s 2006 Manslaughter

Conviction was a “crime of violence” under both the November 2015

and August 2016 Guidelines. It then calculated an advisory range of

30 to 37 months’ imprisonment under the August 2016 Guidelines,

11 As relevant here, Application Note 1 provided: “‘Crime of violence’

includes murder, manslaughter, kidnapping, aggravated assault, forcible sex

offenses, robbery, arson, extortion, extortionate extension of credit, and burglary

of a dwelling.”13 and recommended that the District Court impose a sentence within

the Guidelines range.

In arguing that Castillo’s prior conviction was a “crime of

violence” under the November 2015 Guidelines, the government

expressly disclaimed reliance on the “residual clause” of

Section 4B1.2(a)(2). It instead focused on the “force clause” and the

enumerated offenses in Application Note 1. 12

Manslaughter in the first degree under New York law qualified

as a “crime of violence” under the “force clause,” the government

contended, because the offense necessarily involves knowingly or

intentionally causing bodily harm. The government also argued that

the offense was a “crime of violence” under Application Note 1,

because Application Note 1 had independent force and enumerated

“manslaughter” as a “crime of violence.”

3. The District Court’s sentencing

The District Court sentenced Castillo on October 6, 2016. In an

oral ruling, the District Court largely adopted Castillo’s arguments,

and concluded that his 2006 Manslaughter Conviction was not a

“crime of violence” under the November 2015 Guidelines. Applying

those earlier Guidelines, the District Court arrived at an advisory

range of 15 to 21 months’ imprisonment. The District Court sentenced

12 The government also argued that it would be absurd for a statute that

simply criminalized any use of physical force to be a “crime of violence,” but not

first

‐ degree manslaughter. App’x at 19–20. The government, however, does not

renew that argument on appeal.14 Castillo principally to 19 months’ imprisonment to be followed by

three years of supervised release.

The District Court entered judgment on October 6, 2016.

D.

On December 7, 2016, the government, with the authorization

of the Solicitor General of the United States, filed a timely notice of

appeal. 13

After the case was submitted, we ordered additional briefing to

address the following question: What analysis does a court apply

when distilling the “generic definition” of an offense enumerated in

the Sentencing Guidelines where the United States Code, State codes,

State court decisions, and the Model Penal Code contain multiple and

differing definitions of an offense? We also invited the New York

State Attorney General to submit an amicus brief addressing the

question. We are grateful to the New York Solicitor General (now

Acting Attorney General), Barbara D. Underwood, for accepting the

invitation.

During the pendency of this appeal, Castillo completed his

sentence of imprisonment and is currently on supervised release. 14

13 The government requested, and the District Court granted, a 30

‐ day

extension to file the notice of appeal.

14 We have an “independent obligation to ensure that developments in the

case have not rendered the appeal moot.” United States v. Williams

, 475 F.3d 468,15 II. DISCUSSION

The principal question on appeal is whether manslaughter in

the first degree under New York law, N.Y. Penal Law § 125.20(1),

qualifies as a “crime of violence” under the enumerated offenses in

Application Note 1 of the commentary to Section 4B1.2 of the

November 2015 Guidelines. 15 We hold that it does. We therefore set

aside Castillo’s sentence because of the procedural error in

479 (2d Cir. 2007). Although Castillo has been released from prison, a live case

‐

and

‐ controversy continues to exist because a ruling in the government’s favor

could result in Castillo returning to prison. See United States v. Suleiman

, 208 F.3d

32, 37 (2d Cir. 2000) (holding that although the “defendant’s completion of his

prison term and his subsequent deportation mooted his appeal of the sentence,

. . . [it did] not necessarily preclude the Government ʹ s appeal,” since the defendant

could still be rearrested and imprisoned for the crimes if he reentered the country

(emphases in original) (citation omitted)).

15 The government additionally suggests in passing that the District Court

erred when it concluded that manslaughter in the first degree under New York

law did not qualify as a “crime of violence” under the “force clause” of Section

4B1.2(a)(1). Because the government offers no arguments on this issue, we deem it

waived in this case. See United States v. Botti

, 711 F.3d 299, 313 (2d Cir. 2013) (“It is

a settled appellate rule that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”

(internal quotation marks omitted)).16 miscalculating the advisory Guidelines range, and we remand the

cause for resentencing.

A. Standard of Review

“We review a sentence for procedural and substantive

reasonableness under a ‘deferential abuse

‐ of

‐ discretion standard.’” 16

“The procedural inquiry focuses primarily on the sentencing court’s

compliance with its statutory obligation to consider the factors

detailed in 18 U.S.C. § 3553(a), while the substantive inquiry assesses

the length of the sentence imposed in light of the § 3553(a) factors.” 17

A district court also commits procedural error when it “makes a

mistake in the Guidelines calculation.” 18 We review questions of law

de novo

, and questions of fact for clear error. 19

B. Whether the Government Waived Reliance on the

“Residual Clause”

As a preliminary matter, Castillo contends that this Court

cannot consider whether his 2006 Manslaughter Conviction falls

16 United States v. Thavaraja

, 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v.

United States

, 552 U.S. 38, 41 (2007)).

17 United States v. Verkhoglyad

, 516 F.3d 122, 127 (2d Cir. 2008) (internal

quotation marks, citations, and alterations omitted).

18 United States v. Cavera

, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).

19 United States v. Legros

, 529 F.3d 470, 474 (2d Cir. 2008).17 within the defunct “residual clause” 20 of Guidelines Section

4B1.2(a)(2) because the government waived any such argument

when, before the District Court, it conceded that the clause was void

for vagueness. 21 We disagree. 22

Whether Section 4B1.2(a)(2)’s “residual clause” was

unconstitutionally vague is a question of law. And after the

government filed its notice of appeal, that question was definitively

answered by the Supreme Court in Beckles v. United States

, where it

held that the “residual clause” is not unconstitutionally vague

because “the advisory Guidelines are not subject to vagueness

20 See note 7, ante

.

21 Appellee Br. at 8–13; see United States v. Spruill

, 808 F.3d 585, 596 (2d Cir.

2015) (recognizing that a court has discretion to consider “errors that were forfeited

because not timely raised in the district court, but no such discretion applies

whether there has been true waiver (emphases in original)).

22 Castillo does not draw out the implications of his position, but they are

clear. Based in part on the government’s concession, the District Court found that

the enumeration of “manslaughter” in the commentary to Section 4B1.2 was void.

App’x at 79–81. The District Court reasoned that the commentary’s enumeration

of “manslaughter” was an interpretation of the “residual clause,” and

interpretations do “not have independent legislative force.” Id. at 81. Since the

“residual clause” was conceded to be void, the District Court determined that the

enumeration of “manslaughter” in the commentary was likewise void. Id. at 79–

81.

Because we conclude that we are not barred from considering the

application of the “residual clause” to Castillo’s 2006 Manslaughter Conviction,

we do not address whether the commentary’s enumeration of “manslaughter” has

independent legislative force.18 challenges under the Due Process Clause.” 23 Accordingly, we now

know that the government mistakenly conceded that the clause was

invalid.

Castillo argues that the government’s earlier concession

constitutes waiver, thereby precluding us from considering any

arguments based on the “residual clause.” 24 Not so. It is well

‐

established that a court “cannot properly determine a question of law

on the basis of a party’s concession,” 25 even a concession by the

government. 26 Indeed, a court “retains the independent power to

identify and apply the proper construction of governing law.” 27 Post

‐

Beckles

, the government is therefore permitted to press 28 —and we are

free to consider—arguments based on the legal conclusion of the

23 Beckles v. United States

, 137 S. Ct. 886, 890 (2017).

24 Appellee Br. at 9.

25 Snider v. Melindez

, 199 F.3d 108, 114 (2d Cir. 1999); see also Nat’l

Aeronautics & Space Admin. v. Nelson

, 562 U.S. 134, 163 n.* (2011) (Scalia and

Thomas, JJ.

, concurring) (“We are not bound by a litigant’s concession on an issue

of law.”); United States v. Ball

, 870 F.3d 1, 4 (1st Cir. 2017) (“[A]n appellate court is

not necessarily constrained by a concession by either party in a criminal case as to

a legal conclusion.” (internal quotation marks and alteration omitted)).

26 See, e.g.

, United States v. Smith

, 621 F.2d 483, 489 n.3 (2d Cir. 1980) (“[A]

concession by the Government on a question of law is never binding on this Court.

Thus the Government is free to argue the question

. . . even if it ‘conceded’ it during

the proceedings below.” (citation omitted)); United States v. Tortorello

, 533 F.2d 809,

812 (2d Cir. 1976) (“A concession by the Government on a question of law is not

binding on the court.”).

27 Kamen v. Kemper Fin. Servs., Inc.

, 500 U.S. 90, 99 (1991).

28 Smith

, 621 F.2d at 489 n.3.19 Supreme Court that the “residual clause” of the Guidelines is not void

for vagueness.

C. The “Modified Categorical Approach”

The waiver issue resolved, we proceed to the central question

on appeal: Whether manslaughter in the first degree under New York

law, N.Y. Penal Law § 125.20(1), qualifies as a “crime of violence”

under the enumerated offenses in Application Note 1 of the

commentary to Section 4B1.2 of the November 2015 Guidelines. To

resolve this question, we apply what is known as the “modified

categorical approach.”

“Where the basis for categorizing a prior conviction as a crime

of violence is that the offense is specifically enumerated as such in the

Career Offender Guideline or its commentary, we undertake the

categorical approach,” or its modified counterpart, “by comparing the

state statute to the generic definition of the offense.” 29 In applying the

categorical approach, we “look only to the statutory definitions—

i.e.

, the elements—of a defendant’s prior offenses, and not to the

particular facts underlying those convictions.” 30 “[O]nly if the

statute’s elements are the same as, or narrower than, those of the

29 United States v. Jones

, 878 F.3d 10, 18 (2d Cir. 2017).

30 Descamps v. United States

, 570 U.S. 254, 261 (2013) (emphasis in original)

(internal quotation marks omitted); see also United States v. Genao

, 869 F.3d 136, 144

(2d Cir. 2017) (same).20 generic offense” does the prior conviction serve as a predicate offense

for a sentencing enhancement. 31

Where, as here, “ a state statute

. . . criminalize[s] multiple acts

in the alternative,” we employ the “modified categorical approach.” 32

Under the “modified categorical approach,” we are required to “look[

] to a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what

crime, with what elements, a defendant was convicted of.” 33 We then

“compare that crime, as the categorical approach commands, with the

relevant generic offense.” 34

The parties agreed before the District Court that Castillo was

convicted of manslaughter in the first degree under New York Penal

Law Section 125.20(1). 35 Accordingly, our inquiry under the

“modified categorical approach” is whether the elements of New

York Penal Law Section 125.20(1) are the same as, or narrower than,

the generic definition of “manslaughter.”

31 Descamps

, 570 U.S. at 257.

32 Jones

, 878 F.3d at 16.

33 Mathis v. United States

, 136 S. Ct. 2243, 2249 (2016); see also Shepard v.

United States

, 544 U.S. 13, 26 (2005).

34 Mathis

, 136 S. Ct. at 2249.

35 See note 2 and accompanying text, ante

.21 D. Definition of the Generic Offense of “Manslaughter”

Our first task is to define the generic crime of “manslaughter.” 36

The Supreme Court instructs us that the generic definition of an

offense is the “contemporary understanding” of the term. 37 In many

instances, the generic definition will be the “sense in which the term

is now used in the criminal codes of most States.” 38 But courts also

consult other sources, including federal criminal statutes, 39 the Model

Penal Code, 40 scholarly treatises, 41 and legal dictionaries. 42 In

addition, the common law can help to frame the analysis, 43 although

36 Castillo argues that we should interpret “manslaughter” in Application

Note 1 to refer only to “voluntary manslaughter.” Appellee Br. at 15. Although the

Sentencing Commission revised Section 4B1.2(a)(2) in August 2016 to specify

“voluntary manslaughter,” the November 2015 Guidelines refer simply to

“manslaughter.” Following the plain text of the November 2015 Guidelines, we

hold that the term “manslaughter” in the November 2015 Guidelines encompasses

both voluntary and involuntary manslaughter. See also United States v. Aponte

, 235

F.3d 802, 803 (2d Cir. 2000) (suggesting that the Guidelines enumeration of

“manslaughter” includes involuntary manslaughter).

37 Taylor v. United States

, 495 U.S. 575, 593 (1990).

38 Id. at 598; see also Jones

, 878 F.3d at 18–19.

39 United States v. Walker

, 595 F.3d 441, 446 (2d Cir. 2010).

40 Taylor

, 495 U.S. at 598 n.8; see also Walker

, 595 F.3d at 446.

41 Taylor

, 495 U.S. at 598–99.

42 Esquivel

‐ Quintana v. Sessions

, 137 S. Ct. 1562, 1569 (2017).

43 See Gonzales v. Duenas

‐ Alvarez

, 549 U.S. 183, 189–90 (2007).22 we do not apply the presumption that an undefined statutory term

takes its common

‐ law meaning. 44

1. Murder and manslaughter at common law

Historically, murder and manslaughter together covered the

field of criminal homicide: murder was the unlawful killing of a

human being with “malice aforethought,” 45 and manslaughter was

the unlawful killing of a human being “without malice

aforethought.” 46 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. 47 One who

unlawfully killed another human being with one of those mental

states thereby committed common law murder.

In contrast, common law manslaughter—or the unlawful

killing without malice aforethought—served as “a sort of catch

‐ all

category

. . . [for] homicides which are not bad enough to be murder

but which are too bad to be no crime whatever.” 48 Manslaughter was

44 Taylor

, 495 U.S. at 592–96.

45 2 W AYNE R. L A F AVE

, S UBSTANTIVE C RIMINAL L AW § 14.1, at 566 (3d ed.

2017).

46 Id. at § 15.1, at 668.

47 Id. at § 14.1, at 566.

48 Id. at § 15.1, at 668.23 later subdivided into voluntary and involuntary varieties. 49

Voluntary manslaughter was the intentional killing “in a heat of

passion upon adequate provocation,” and involuntary manslaughter

was an unintentional killing caused by “criminal negligence” or

“recklessness,” or during the commission of an unlawful act not

amounting to a felony. 50 One could also be liable for manslaughter if

one recklessly omitted to act when one had a duty to do so. 51

2. Contemporary manslaughter

Although the federal criminal code 52 and many state criminal

codes 53 preserve the historical distinction between voluntary and

involuntary manslaughter, “the modern trend, reflected in a majority

of recent recodifications, is for there to be but one single manslaughter

crime.” 54 Yet even among those states that follow the “modern trend,”

there are significant differences in how they define the offense.

For example, Alabama defines “manslaughter” as causing the

death of another person recklessly or in a sudden heat of passion. 55

49 Id. at § 15.4, at 708.

50 Id. at § 15.4, at 708–09; id. at § 15.4(a), at 709–11.

51 Id. at § 15.4(b), at 716–17.

52 18 U.S.C. § 1112(a).

53 L A F AVE at § 15.1, at 668.

54 Id. at § 15.1, at 668–69.

55 Ala. Code § 13A

‐ 6

‐ 3.24 Other state manslaughter statutes include the states of mind found in

the Alabama code, but enumerate additional states of mind that

satisfy the mens rea element of manslaughter. 56 Still others recognize

“extreme emotional disturbance,” but do not recognize “heat of

passion,” as a mens rea of “manslaughter,” 57 and others still define

“manslaughter” simply as “recklessly caus[ing] the death of another

human being.” 58

The diversity of state definitions of “manslaughter” creates an

obvious obstacle to identifying the generic definition of the offense.

But that obstacle is not insurmountable. By surveying the state and

federal manslaughter statutes, and consulting the Model Penal

Code, 59 we can distill a generic definition by identifying precisely

which elements are present “in a majority of the

. . . criminal codes.” 60

We are thus able to hold that the generic definition of

“manslaughter” includes the unlawful killing of another human

being recklessly. We arrive at this definition because the federal

56 E.g.

, Alaska Stat. § 11.41.120; N.J. Stat. § 2C:11

‐ 4.

57 E.g.

, Del. Code tit. 11, § 632; N.H. Rev. Stat. § 630:2.

58 N.D. Cent. Code § 12.1

‐ 16

‐ 02; see also Tex. Penal Code § 19.04.

59 We respectfully decline to adopt the Fourth Circuit’s position that “the

Model Penal Code provides the best generic, contemporary, and modern

definition” of an offense. See United States v. Peterson

, 629 F.3d 432, 436 (4th Cir.

2011). Although the Model Penal Code can help to distill the generic definition of

an offense, it is not by itself dispositive.

60 Taylor v. United States

, 495 U.S. 575, 589 (1990).25 code, 61 most state codes, 62 and the Model Penal Code 63 provide that

recklessness—or a comparable or less culpable state of mind—

satisfies the mens rea element of “manslaughter.”

The mens rea of recklessness, of course, serves as a proverbial

floor for the generic definition of “manslaughter.” More culpable

states of mind, such as “knowingly” and “recklessly under

circumstances manifesting extreme indifference to the value of

human life,” also satisfy the generic definition. So too do the states of

mind that historically fell under the category of “malice

61 18 U.S.C. § 1112(a) (“without due caution and circumspection”).

62 See, e.g.

, Ala. Code § 13A

‐ 6

‐ 3(a)(1) (“recklessly”); Alaska Stat.

§ 11.41.120(a)(1) (“recklessly”); Ariz. Rev. Stat. § 13

‐ 1103(A)(1) (“Recklessly”); Ark.

Code § 5

‐ 10

‐ 104(a)(3) (“recklessly”); Cal. Penal Code § 192(b) (“without due

caution and circumspection”); Colo. Rev. Stat. § 18

‐ 3

‐ 104(1)(a) (“recklessly”);

Conn. Gen. Stat. § 53a

‐ 56(a)(1) (“recklessly”); Del. Code tit. 11, § 632(1)

(“recklessly”); Haw. Rev. Stat. § 707

‐ 702(1)(a) (“recklessly”); Idaho Code § 18

‐

4006(2) (“without due caution and circumspection”); Kan. Stat. § 21

‐ 5405(a)(1)

(“Recklessly”); Me. Rev. Stat. tit. 17

‐ A, § 203(1)(A) (“Recklessly, or with criminal

negligence”); Miss. Code § 97

‐ 3

‐ 47 (“culpable negligence”); Mo. Stat. § 565.024(1)

(“recklessly”); Nev. Rev. Stat. § 200.040(2) (“without due caution or

circumspection”); N.H. Rev. Stat. § 630:2(I)(b) (“Recklessly”); N.J. Stat. § 2C:11

‐ 4(b)(1) (“recklessly”); N.M. Stat. § 30

‐ 2

‐ 3(B) (“without due caution and

circumspection”); N.Y. Penal Law § 125.15(1) (“recklessly”); N.D. Cent. Code

§ 12.1

‐ 16

‐ 02 (“recklessly”); Okla. Stat. tit. 21, § 716 (“culpable negligence”); Or.

Rev. Stat. § 163.125(1)(a) (“recklessly”); S.C. Code § 16

‐ 3

‐ 60 (“criminal

negligence”); S.D. Codified Laws § 22

‐ 16

‐ 20 (“reckless killing”); Tex. Penal Code

§ 19.04(a) (“recklessly”); Utah Code § 76

‐ 5

‐ 205(2)(a) (“recklessly”); Wash. Rev.

Code § 9A.32.060(1)(a) (“recklessly”); Wyo. Stat. § 6

‐ 2

‐ 105(a)(ii) (“recklessly”).

63 Model Penal Code § 210.3(1)(a) (“recklessly”).26 aforethought” associated with murder: intent to kill in the absence of

extenuating circumstances, intent to do serious bodily injury,

“depraved heart,” and intent to commit a felony. 64

In holding that generic manslaughter includes a mens rea of

recklessness, we join the Fourth, Fifth, Eighth, and Ninth Circuits. 65

At the same time, we disagree with the Tenth Circuit, which has held

“that only those versions of manslaughter that involve intentional or

purposeful behavior qualify as crimes of violence for purposes of

§ 4B1.2(a).” 66

64 See note 47 and accompanying text, ante

. We do not reach the question of

whether the generic definition of “manslaughter” includes intentional killings

committed under extenuating circumstances, such as under the “heat of passion”

or under the influence of an “extreme emotional disturbance.”

We note that most jurisdictions have either a “heat of passion” or an

“extreme emotional disturbance” provision in their manslaughter statutes.

Because there are—at least conceptually—elements common to both these mental

states, and because most jurisdictions incorporate one or the other in their

definitions of “manslaughter,” the generic definition inquiry therefore is: What

conduct is covered by both “heat of passion” and “extreme emotional disturbance”?

65 See, e.g.

, United States v. Rivera

‐ Muniz

, 854 F.3d 1047, 1051 (9th Cir. 2017)

(concluding that “recklessness is an element of manslaughter” (internal quotation

marks omitted)); United States v. Kosmes

, 792 F.3d 973, 977 (8th Cir. 2015) (adopting

Model Penal Code definition, which includes a mens rea of recklessness); United

States v. Peterson

, 629 F.3d 432, 436–37 (4th Cir. 2011) (same); United States v.

Dominguez

‐ Ochoa

, 386 F.3d 639, 646 (5th Cir. 2004) (“[W]e hold that generic,

contemporary manslaughter (including involuntary manslaughter) requires a

recklessness mens rea .”).

66 United States v. Armijo

, 651 F.3d 1226, 1237 (10th Cir. 2011).27 In sum, we hold that the generic definition of “manslaughter”

includes the unlawful killing of another human being recklessly, or

with a more culpable state of mind such as knowingly or with intent

to cause serious bodily injury.

E. Application of “Modified Categorical Approach” to

Manslaughter in the First Degree under New York Law

Under the “modified categorical approach,” we next compare

the elements of Castillo’s 2006 Manslaughter Conviction with the

generic definition.

Castillo was convicted of manslaughter in the first degree

under New York Penal Law Section 125.20(1). 67 This prior conviction

will qualify as a “crime of violence” only if the elements of the offense

“are the same as, or narrower than, those of the generic offense” 68 of

“manslaughter.”

New York Penal Law Section 125.20(1) provides: “A person is

guilty of manslaughter in the first degree when

. . . [w]ith intent to

cause serious physical injury to another person, he causes the death

of such person or of a third person.” The mens rea here is intent to

cause serious physical injury. The generic definition of

“manslaughter,” however, has a different mens rea : recklessness.

Because the mens rea elements of the two offenses are not “the same,”

67 See note 2 and accompanying text, ante

.

68 Descamps v. United States

, 570 U.S. 254, 257 (2013).28 we must determine whether the elements of the New York offense are

“narrower than[ ] those of the generic offense.” 69

We conclude that the elements of manslaughter in the first

degree under New York Penal Law Section 125.20(1) are narrower

than those of the generic offense. 70 New York criminal law divides

culpable mental states “along but a single spectrum of culpability,

[with] the lower mental states being necessarily included in the higher

forms of mental culpability.” 71 On this spectrum, recklessness (a mens

rea of second

‐ degree manslaughter 72 ) is a lower mental state than

intent to cause serious injury, 73 and it would be “impossible” to

commit manslaughter with an intent to cause serious injury without

also possessing a mens rea of recklessness. 74 Intent to cause serious

injury is therefore “narrower” than recklessness.

69 Id.

70 Castillo does not argue, and we do not conclude, that the other elements

of New York Penal Law Section 125.20(1) are broader than the generic definition

of “manslaughter.”

71 People v. Green

, 56 N.Y.2d 427, 432 (1982) (internal quotation marks and

citation omitted).

72 N.Y. Penal Law § 125.15(1).

73 People v. Usher

, 34 N.Y.2d 600, 600–01 (1974); People v. Jones

, 154 A.D.2d

619, 620 (2d Dep’t 1989); People v. Morel

, 213 A.D.2d 497, 497–98 (1st Dep’t 1995).

74 See People v. Repanti

, 24 N.Y.3d 706, 710 (2015) (“To establish that a count

is a lesser included offense

. . . , a defendant must establish that it is theoretically29 Castillo’s arguments to the contrary give us little pause. First,

Castillo argues that generic “manslaughter” requires an intent to

kill. 75 But as discussed above, the mens rea of generic “manslaughter”

is the less culpable mental state of recklessness. 76 Second, Castillo

contends that New York manslaughter in the first degree is broader

than generic “manslaughter” because New York manslaughter can be

committed by omission. 77 Generic “manslaughter,” however, can also

be committed by reckless omission when there is an affirmative duty

to act. 78 Finally, Castillo cites a subsection of the New York first degree

manslaughter statute that is not relevant to this appeal. 79

In sum, we conclude that manslaughter in the first degree

under New York law, N.Y. Penal Law § 125.20(1), is narrower than

the generic definition of “manslaughter.” Castillo’s 2006

Manslaughter Conviction under that provision therefore qualified as

a “crime of violence” under the enumerated offenses in Application

Note 1 of the commentary to Section 4B1.2 of the November 2015

Guidelines. Because the District Court mistakenly determined that

impossible to commit the greater crime without at the same time committing the

lesser.” (internal quotation marks and citation omitted)).

75 Appellee Br. at 15–17.

76 See Section II.D.2, ante

.

77 Appellee Br. at 17.

78 See note 51 and accompanying text, ante

.

79 Appellee Br. at 16–17.30 Castillo’s prior conviction was not a “crime of violence,” it committed

procedural error.

F. Setting Aside of Castillo’s Sentence and Remand

Because the District Court committed procedural error when it

concluded that Castillo’s 2006 Manslaughter Conviction was not a

“crime of violence” triggering a “career offender” enhancement, we

are required to set aside Castillo’s sentence and remand the cause for

resentencing. We leave it to the District Court to determine, in the first

instance, whether it is appropriate to apply the August 2016 or

November 2015 Guidelines.

In remanding the cause, we are mindful that some aspect of the

foregoing kabuki theater might change the District Court’s judgment

of the condign sentence for the instant offense. Or it might not. Either

way, we recall that although the District Court “must still give

‘respectful consideration’ to the now

‐ advisory Guidelines,” it has the

discretion to depart from an advisory range based on case

‐ specific

determinations or even a “disagreement with the [Sentencing]

Commission’s views.” 80 Thus, where the record indicates that “the

district court thought the sentence it chose was appropriate

irrespective of the Guidelines range,” procedural errors in calculating

the advisory range will likely be harmless. 81 And in such

80 Pepper v. United States

, 562 U.S. 476, 501 (2011).

81 Molina

‐ Martinez v. United States

, 136 S. Ct. 1338, 1346 (2016); see also United

States v. Jass

, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we identify procedural error in

a sentence, but the record indicates clearly that ‘the district court would have31 circumstances, appellate review will be principally for substantive

reasonableness.

III. CONCLUSION

To summarize, we hold as follows:

(1) The government did not waive arguments based on the

former “residual clause” of Guidelines Section 4B1.2(a)(2);

(2) The generic definition of “manslaughter” includes the

unlawful killing of another human being recklessly;

(3) Manslaughter in the first degree under New York law, N.Y.

Penal Law § 125.20(1), 82 is narrower than the generic

definition of “manslaughter”; and

(4) The District Court erred when it found that Castillo’s prior

conviction for manslaughter in the first degree under New

York law, N.Y. Penal Law § 125.20(1), did not qualify as a

“crime of violence” under Application Note 1 of the

commentary to Section 4B1.2 of the November 1, 2015

edition of the United States Sentencing Guidelines.

imposed the same sentence’ in any event, the error may be deemed harmless,

avoiding the need to vacate the sentence and to remand the case for resentencing.”

(quoting United States v. Cavera

, 550 F.3d 180, 197 (2d Cir. 2008) (en banc))).

82 Our holding applies only to subsection 1 of New York Penal Law Section

125.20.32 For the foregoing reasons, we set aside the District Court’s

sentence of Castillo and REMAND the cause to the District Court for

resentencing.

On remand, the District Court must consider, in the first

instance, whether to apply the August 2016 or November 2015

Guidelines. The District Court should also consider whether the

initial sentence “it chose was appropriate irrespective of the

Guidelines range.” 83 For where “the record indicates clearly that ‘the

district court would have imposed the same sentence’ in any event,”

procedural errors such as the one committed here, “may be deemed

harmless.” 84

83 Molina

‐ Martinez

, 136 S. Ct. at 1346.

84 Jass

, 569 F.3d at 68 (quoting Cavera

, 550 F.3d at 197).