18

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United States v. Scott

1 

## In **the**



# United **States Court**  **of Appeals** 

**for the**  **Second Circuit** 

A UGUST T ERM 2020

No. 18

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- cr

U NITED S TATES OF A MERICA

, Appell ant

,

v.

G ERALD S COTT

, Defendant

- Appellee

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED E N B ANC : N OVEMBER 6, 2020

D ECIDED : M ARCH 2, 2021

Before: L IVINGSTON

, Chief Judge

, L EVAL

, C ABRANES

, P OOLER

,

K ATZMANN

, R AGGI

, C HIN

, L OHIER

, C ARNEY

, S ULLIVAN

, B IANCO

,

P ARK

, N ARDINI

, and M ENASHI

, Circuit Judges

. *

___________

* Judge Hall did not participate in the consideration of this en banc appeal. Judge

Leval

, Judge Katzmann, and Judge Raggi, who are senior judges, participated in

this en banc decision pursuant to 28 U.S.C. § 46(c) and 28 U.S.C. § 294(c).18

- 163

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United States v. Scott

2 R A GGI

, J.

, filed the majority opinion in which L IVINGSTON

, C.J.

,

C ABRANES

, C HIN

, S ULLIVAN

, B IANCO

, P ARK

, and N ARDINI

, JJ.

, joined in

full, and in which M ENASHI

, J.

, joined in part.

P ARK

, J.

, filed a concurring opinion in which L IVINGSTON

, C.J.

,

C ABRANES

, S ULLIVAN

, and N ARDINI

, JJ.

, joined.

M ENASHI

, J.

, filed an opinion concurring in part and concurring in

the judgment.

L EVAL

, J.

, filed a dissenting opinion in which K ATZMANN

, L OHIER

and C ARNEY

, J J.

, joined in full, and in which P OOLER

, J.

, joined in part.

P OOLER

, J.

, filed a dissenting opinion in which L EVAL and C ARNEY

, J

J

. , joined as to Parts I

– IV.

The United States appeals from a n amended judgment entered

pursuant to 28 U.S.C. § 2255 in the United States District Court for the

Southern District of New York ( Swain

, J. )

, which vacated defendant’s

22

- year sentence for Hobbs Act robbery and related firearms crimes

and resentenc ed him to time served (approximate ly 11 years, 3

months). T he district court concluded that it had mistakenly applied

the Armed Career Criminal Act (“ACCA”)

, see 18 U.S.C. § 924(e)(1)

,

a nd the Career Offender Guideline

, see U.S.S.G. § 4B1. 1

, in

determining Scott’s initial sentence because two prior convictions

relied on as predicates for those enhancements were for New York

first

- degree manslaughter, see N.Y. Penal Law § 125.20(1), which the

district court ruled i s not a categorical “violent felon y ” (ACCA) or

“crime of violence” (G uideline)

. The district court reasoned that first

degree manslaughter does not satisfy these terms’ “force clause s ”

because it is possible to commit that homicide crime by “omissio n

, ”

i.e.

, by failing to act when one has a duty to do so

, see id. § 15.00(3)

.18

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United States v. Scott

3 The United States argues that first

- degree manslaughter is a

categorical violent felony/crime of violence because a person can b e

guilty of that crime

— whether by commission or omission

— only if he

(a) causes death, while (b) intending to cause at least serious bodily

injury, see id. § 125.20(1), and the Supreme Court has stated that “the

knowing o r intentional causation of bodily injury necessarily involves

the use of physical force ,” United States v. Castleman

, 572 U.S. 157, 169

(2014)

. T his court agrees.

R EVERSED in part, V ACATED in part, and R EMANDED

.

W ON S. S HIN ( Catherine E. Ghosh

, on the

brief ), Assistant United States Attorneys

, for

Audrey Strauss

, United States Attorney for

the Southern District of New York, New

York, NY

, for Appell ant

.

M ATTHEW B. L ARSEN

, Federal Defenders of

New York, New York, NY, for Defendant

Appellee

.

Alan E. Schoenfeld, Wilmer Cutler

Pickering Hale and Dorr LLP, New York,

NY; Samuel C. Leifer, Wilmer Cutler

Pickering Hale and Dorr LLP, Boston, MA;

Peter Goldberger, Ardmore, PA, for amicus

curiae FAMM

.

Alan E. Schoenfeld, Wilmer Cutler

Pickering Hale a nd Dorr LLP, New York,

NY; Samuel C. Leifer, Wilmer Cutler

Pickering Hale and Dorr LLP, Boston, MA;18

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United States v. Scott

4 Richard D. Willstatter, Green & Willstatter,

White Plains, NY, for amicus curiae Counsel

for New York State Association of Criminal

Defense Lawyers

.

Thomas C. Goldstein, Goldstein & Russell,

P.C., Bethesda, MD, for amici curiae National

Association for Public Defense, Arizona

Attorneys for Criminal Justice, the Human

Rights Defense Center, the Illinois Association

of Criminal Defense Lawyers, the Natio nal

Association of Criminal Defense Lawyers, the

National Legal Aid & Defender Association, and

the Office of the Defender General in Vermont

.

R EENA R AGGI

, Circuit Judge

, joined by Debra Ann Livingston, Chief

Judge

, Jos é A. Cabranes, Denny Chin, Richard J. Sullivan, Joseph F.

Bianco, Michael H. Park, William J. Nardini, Circuit Judges

, and joined

in part by Steven J. Menashi, Circuit Judge

.

INTRODUCTION

Defendant

- appellee Gerald Scott is a violent criminal, who has

repeat edly threatened, and on two occasions taken, human life. The

killings were undoubtedly brutal: Scott shot one of his victims in the

head at point

- blank range; he stabbed the other to death. For these

killings

, Scott stands twice convicted in New York St ate of first

- degree

manslaughter under N.Y. Penal Law § 125.20(1 ), a homicide crime

second only to murder in its severity. 1 At issue on this appeal is

1 Compare N.Y. Penal Law § 125.20(1) (“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[.]”), with id.

§ 125.25(1) (“A person i s guilty of murder in the second degree when

. . . [w]ith18

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United States v. Scott

5 whether Scott’s manslaughter convictions are for violent crimes. A n

affirmative answer might appear ob vious to a man on the street aware

of Scott’s conduct. But the la w s relevant here

— the Armed Career

Criminal Act (“ACCA”), see 18 U.S.C. § 924(e)(2)(B)

, and the Career

Offender Sentencing Guideline, see U.S.S.G. § 4B1.2 (a)

— do not

identify violent crimes by looking to what a defendant actually did.

Rather, they look to the minimum he m ight have done and still been

convicted. This inquiry focuses on a crime’s elements

, asking whether

they categorically require a defendant’s us e of physical force,

specifically violent physical force

. See Curtis Johnson v. United States

,

559 U.S. 133, 140

, 144 (2010) (defining physical force required by

ACCA ). 2 Applying that standard here, we conclude that firs t

- degree

intent to cause the death of another person, he causes the death of such person or

of a third person[.]”).

New York’s first

- degree manslaughter statute, id. § 125.20, is divisible into

its enumera ted parts. See United States v. Castillo

, 896 F.3d 141, 150 (2d Cir. 2018).

Because the record shows, and all parties agree, that Scott’s two manslaughter

convictions were pursuant to § 125.25(1), that is the only part we address in this

opinion and, her eafter, when we use the term “first

- degree manslaughter,” we

refer only to that part, unless otherwise indicated.

2 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, att empted 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) (emphasis added).

The Career Offender Guideline defines a “crime of violence” as a federal or

state felony that,18

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United States v. Scott

6 manslaughter is a categorically vio lent crime because its elements

—

(1) the causation of death (2) by a person intent on causing at least

serious physical injury

— necessar il y involve the use of violent force

.

The occasion for our ruling is the United States’ appeal from a n

amended judgment of conviction entered on January 12, 2018, in the

United States District Court for the Southern District of New York

(Laura Taylor Swain, Judge ), which resentenced Scott to time served

(then totaling approximately 11 years, 3 months) for attempted Hobbs

Ac t robbery and related firearms crimes. Resentencing followed the

district court’s grant of Scott’s 28 U.S.C. § 2255 motion to vacate his

original 22

- year sentence

. See United States v. Scott

, No. 06 CR 988

-

LTS, 2017 WL 2414796

, at *3 (S.D.N.Y. June 2, 20 17)

. The district court

concluded that it had mistakenly relied on ACCA and the Career

Offender Guideline in imposing Scott’s initial sentence. It reasoned

that Scott’s two prior convictions for first

- degree manslaughter did

not qualify as predicate viol ent crimes because “ first degree

manslaughter can be committed in New York State by omission and

(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) (emphasis added).

In this opinion, we focus on the highlighted, identically worded “force

clauses,” and we use the term “violent crime” to refer to both an ACCA “violent

felony” and a Guideline “crime of violence” as defined in these clauses

. Similarly,

references to “use” of physical force in this opinion are intended to include

attempted and threatened, as well as actual, use.18

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United States v. Scott

7 thus without using force

. ” Id. at *2 (emphasis added)

. 3 A divided

panel of this court agreed

, with the majority analogizing omission to

“complete inaction,” and concluding therefrom that the crime could

be committed without the use of force. See United States v. Scott

, 954

F.3d 74, 78 (2d Cir. 2020) (holding first

- degree manslaughter “not a

pred icate crime of violence because it can be committed by complete

inaction and therefore without the use of force”).

After rehearing the case en banc

, w e reject this reasoning

, which

,

ca rried to its logical

— or illogical

— conclusion, would preclude courts

from recognizing even intentional murder as a categorically violent

crime because

, presumably, it is just as possible for a defendant to

cause a person’s death by omission when the defendant’s specific

intent is to kill

, see N.Y. Penal Law § 125.25( 1) (second

- degree

murder)

, as when his specific intent is to cause serious physical injury

,

see id. § 125.2 0(1) (first

- degree manslaughter)

. We decline to take the

law do wn a path leading so far from the violent reality of these two

most serious, intentionally injurious homicide crimes.

Indeed, we find that path foreclosed by the Supreme Court’s

decision in United Sta tes v. Castleman

, 572 U.S. 157 ( 2014)

. The

Supreme Court there state d t hat the “kn owing or intentional

causation of bodily injury necessarily involves the use of physical

force

. ” I d. at 1 69 (emphasis added)

. Because New York f irst

- degree

manslaughter can only be committed by a defendant who causes

death

— the ultimate bodily injury

— while intending to cause at least

3 New York defines “omission” as the “failure to perform an act as to which a duty

of performance is imposed by la w.” N.Y. Penal Law § 15.00(3).18

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United States v. Scott

8 serious physical injury

, 4 the crime necessarily involves the use of

physical force.

Nor is a different conclusion warranted by the possibility of

New York first

- degree manslaughter being committed by omissi on.

First, to the extent that the use of physical force implies some action

by a defendant, the criminal law recognizes an omission as

“ affirmative action ” in identifying criminal culpability

. 2 Wayne R.

LaFave

, Substantive Criminal Law § 15.4(b), at 717 (3d ed. 2018)

(hereinafter “LaFave”); s ee infra at 2 4

, 3 3

– 3 5

. Second, in Castleman

, the

Supreme Court explained that a defendant’s use of force does not

depend on his own act ions in initiating or applying injurious force.

What matters is that he knowingly employ ed or availed himself of

physical force as a device to cause intended harm. 572 U.S. at 171

(explaining that, in poisoning scenario, “use of force” is “not the act

of sprinkling the poison; it is the act of employing poison knowingly

as a device to cause physical harm” (brackets and internal quotation

marks omitted) ) ; see also Villanueva v. United States

, 893 F.3d 123, 128

(2d Cir. 2018) (following Castleman

, “use of force” inquiry “focuses on

the causation of a conseq uence, rather than the physical act of

initiating an action that leads to a consequence”). A defendant can do

th at as much by omission as by commission in committing first

degree manslaughter. That is because, when a defendant causes

death by breaching a legal duty to check or redress violent force

because he intends thereby for that force to cause serious physical

injury, what he is doing is making that force his own injurious

4 See N.Y. Penal Law § 10.00(10) (defining “[s]erious physical injury” as “physical

injury which creates a substantial risk of death, or which causes death or serious

and protracted disfigurement, protracted impairment of he alth or protracted loss

or impairment of the function of any bodily organ”).18

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United States v. Scott

9 instrument

. S ix of our sister circuits agree that crimes intentionally

causin g p h ysical injury are categorically violent even if committed by

omission

. 5

In sum, after reviewing the matter en banc

, th is c ourt identif ies

New York first

- degree manslaughter a s a categorically violent crime

under the force clauses of ACCA and the Career Offender Guideline

. Accordingly, we vacate the panel decision, reverse the district court’s

grant of Scott’s § 2255 motion, vacate the reduced sentence reflected

in the amended judgment, and remand the case t o the district court

with directions to reinstate Scott’s original sentence and judgment.

BACKGROUND

I. Scott’s Federal Crimes of Conviction and Violent Criminal

History

Whether first

- degree manslaughter in violation of New York

Penal Law § 125.20(1) is a violent c rime i s a question that here arises

in the context of determining the appropriate sentence for Scott’s

latest conviction for three federal crimes to which he pleaded guilty :

5 See United States v. Rumley

, 952 F.3d 538, 549

– 51 (4th Cir. 2020) (rejecting

argument that defendant need not use violent force to commit physically injurious

crime (Virginia un lawful wounding) by omission); United States v. Báez

- Martínez

,

950 F.3d 119, 130

– 33 (1st Cir. 2020) (same re: Puerto Rico attempted murder);

United States v. Sanchez

, 940 F.3d 526, 533

– 36 (11th Cir. 2019) (same re: New York

second

- degree murder); United St ates v. Peeples

, 879 F.3d 282, 286

– 87 (8th Cir. 2018)

(same re: Iowa attempted murder); United States v. Ontiveros

, 875 F.3d 533, 536

– 38

(10th Cir. 2017) (same re: Colorado second

- degree assault); United States v. Waters

,

823 F.3d 1062, 1066 (7th Cir. 2016 ) (same re: Illinois domestic battery). But see

United States v. Mayo

, 901 F.3d 218, 227, 229

– 30 (3d Cir. 2018) (concluding that

Pennsylvania aggravated assault is not categorically violent crime because “bodily

injury is [not] always and only the result of physical force,” but describing

conclusion as “wholly unsatisfying and counterintuitive”). The continued

viability of Mayo ’s holding is under en banc review in United States v. Harris

, No.

17

- 1861 (3d Cir.) (argued Oct. 16, 2019).18

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United States v. Scott

10 attempted Hobbs Act robbery, see 18 U.S.C. § 1951; brandishing a

firearm during that robbery, see id. § 924(c)(1)(A)(ii); and

, at the same

time, being a previously convicted felon in possession of a firearm, see

id. §§ 922(g)(1), 924(e). Scott committed these crimes on Septe mber

26, 2006, when he entered a Bronx jewelry store, pointed a gun at the

store owner, and ordered him to surrender the contents of his cash

register. The robbery, and any possible ensuing injury, were

thwarted only by the fortuitous intervention of a po lice officer

.

This is Scott’s fourth conviction for felony crimes committed by

threatening

— and on two occasions taking

— human life. In 1983, Scott

was convicted of first

- degree robbery, see N.Y. Penal Law § 160.15,

during which crime he held a 75

- year

- old man at knifepoint. Then, in

1988, Scott was twice convicted of New York first

- degree

manslaughter

. See id. § 125.20(1)

. On one occasion, he fatally shot the

victim in the head at point

- blank range. On the other occasion, he

stabbed the v ictim to death.

A. Scott’s Initial Sentence

Judged simply by his own brutal conduct, Scott is clearly a

persistent ly violent felon. In sentencing Scott for his most recent

federal crimes, the district court was certainly entitled

— and

, indeed,

required

— to consider his violent criminal history

. See 18 U.S.C.

§ 3553(a) (1) (stating that court, in determining sentence “shall

consider,” i nter alia

, “the history and characteristics of the

defendant ” ); id. § 3661 (“No limitation shall be placed on the

information concerning the background, character, and conduct of a

person convicted of an offense which a court of the United States may

recei ve and consider for the purpose of imposing an appropriate

sentence.”). That history was relevant, at a minimum, to assessing the

seriousness of Scott’s most recent crimes

. It was also relevant to the18

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United States v. Scott

11 likelihood of his committing future crimes, and to th e danger

— life

threatening danger

— that might be posed to innocent persons from

such crimes. See id. § 3553(a)(2)(A)

, (C)

.

At the same time

, however, the law s ometimes requires specific

findings to trigger particular sentencing consequences. Thus, to

apply a “Career Offender ” enhancement to Scott’s Sentencing

Guid el ines calculation

, the district court was required to find that he

had two or more felony convictions for a “ crime of violen ce” o r a

“ controlled substance offense

. ” U.S.S.G. § 4B1.1( a )

. 6 Similarly, to

impose ACCA’s fifteen

- year mandatory minimum sentence for Scott

being a felon in possession of a firearm

, the court had to find that he

had t h ree or more prior “ violent felony ” or “ serious drug offense”

convictions

. 18 U.S.C. § 924(e)(1). 7

At Scott’s initial sentencing, the district court concluded

— with

no objection and, therefore

, little discussion

— that Scott warranted

sentencing enhancements under both ACCA and the Career Offender

Guideline based o n his 1983 conviction for robbery and his two 1988

convictions for first

- degree manslaughter. Accordingly, on April 16,

6 The Career Offender Guideline raises a defendant’s criminal history category in

every case to level VI and raises his offense level to specified degrees depending

on the statutory maximum for his crime of conviction. See U.S.S.G. § 4B1.1(b). In

Scott’s case

— without factoring in the ACCA enhancement

— the Guideline raised

his offense level from 17 to 29, his criminal history category from IV to VI, and his

Guidelines prison range from 121

– 130 months to 264

– 327 months.

7 Without the ACCA enhancement, a perso n convicted of being a felon in

possession of a firearm faces a sentence of between 0 and 10 years. See 18 U.S.C.

§ 924(a)(2) (prescribing sentence of “not more than 10 years”). With the

enhancement, he faces a sentence of 15 years to life. See id. § 92 4(e)(1) (prescribing

sentence of “not less than fifteen years”); Welch v. United States

, 136 S. Ct. 1257,

1261 (2016) (construing ACCA to establish “minimum sentence of 15 years and a

maximum sentence of life in prison”).18

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United States v. Scott

12 2008, the district court sentence d Scott to a total prison sentence of 22

years. This sentence, at the bottom of Scott’s Career Offender

enhanced 264

- to

- 327 month Guidelines range, reflected the ACCA

mandated 15

- year term on the felon

- in

- possession count, a concurrent

15

- year term for th e attempted Hobbs Act robbery count

, and a

separately

- mandated consecutive 7

- year term for brandishing a

firearm

. See 18 U.S.C. § 924(c)(1)(A)(ii). Scott ’s direct appeal from this

conviction was dismissed as untimely in 2012. See United States v.

Scott

, No. 10

- 3 689 ( 2d Cir. Dec. 19, 2011 )

, ECF No. 63

.

B. Section 2255 Vacatur and Resentencing

In 2016, with this court’s leave, Scott filed a collateral challenge

to his sentence pursuant to 28 U .S.C. § 2255

, arguing that the ACCA

and Career Offender Guideline enhancements were mistakenly

applied. 8 Scott did not

— and could not

— dispute that his robbery

conviction was a violent

- crime predicate under ACCA and the Career

Offender Guideline. See Stuckey v. United States

, 878 F.3d 62, 7 0

– 72 (2d

Cir. 2017) (holding New York first

- degree robbery categorical violent

felony under ACCA). Instead, he argued that his two first

- degree

manslaughter convictions did not qualify as predicates because that

cri me was not categorically violent under either (1) the ACCA and

Career Offender Guideline force clauses, or (2) ACCA’s now

invalidated residual clause. S ee Samuel Johnson v. United States

, 576

U.S. 591, 606 (2015) (holding ACCA residual clause unconstitut ionally

vague)

.

8 This was Scott’s second § 2255 p etition, the district court having already rejected

as untimely and meritless his first § 2255 challenge to his sentence based on a claim

of ineffective assistance of counsel. See Scott v. United States

, No. 10 CIV 3488

- LTS,

2011 WL 812069, at *1

– 4 (S.D.N .Y. Mar. 3, 2011).18

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United States v. Scott

13 The government disputed only the first point. The district

court, however, agreed with Scott, ruling that first

- degree

manslaughter is not a categorical violent felony because it can be

committed “by an act of omission, which by definition does not

involve an act of any kind, let alone the use of force.” United States v.

Scott

, 2017 WL 2414796

, at *2. Accordingly, finding that it should not

have applied ACCA’s mandatory minimum to Scott’s felon

- in

possession count of conviction, the distr ict court vacated his initial

sentence.

On resentencing, the district court employed the same

reason ing to conclude that first

- degree manslaughter was not a crime

of violence under the Career Offender Guideline’s identical force

clause. Nor was fi rst

- degr ee manslaughter a crime of violence under

the Guideline’s enumerated offense s clause because

, in the district

court’s view, it did not fit within the generic definitions of “murder,”

“voluntary manslaughter,” or “aggravated assault.” U.S.S.G.

§ 4B1.2(a)(2 ) (quoted supra note 2 )

. Recalculating Scott’s Guidelines

range without the Career Offender enhancement as 121 to 130

months, the district court imposed a n amended sentence of time

served, which then amounted to approximately 135 months, or 11

years and 3 months

. 9

On the governm ent’s appeal, a divided panel affirmed.

Identifying an “omission” as the minimum criminal conduct required

9 Given that the brandishing

- a

- firearm count of conviction carried a mandatory

minimum consecutive 7

- year prison term, see 18 U.S.C. § 924(c)(1)(A)(ii), it appears

that the district court sentenced Scott to concurrent 51

- month terms on t he Hobbs

Act robbery and felon

- in

- possession counts. We do not here consider whether

such a sentence reduction is substantively unreasonable, see

, Leval, J.

, Dissenting

Op., post at 3 (raising possibility), because the government does not appeal the

sente nce on that ground.18

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United States v. Scott

14 for first

- degree manslaughter, United States v. Scott

, 954 F.3d at 80

– 83

,

the majority concluded that a crime that could be committed by

“complete i naction,” i.e.

, by “taking no action whatsoever,” did “not

have as an element the use of physical force against the person of

another” as required to qualify as a violent felony or crime of violence

under the ACCA and Career Offender Guideline force clause s, id. at

87 (ellipsis and internal quotation marks omitted)

. The panel majority

further concluded that first

- degree manslaughter was not a crime of

violence under the Guideline’s enumerated offense s clause because a

majority of states did not punish its minimum conduct as murder,

voluntary manslaughter, or aggravated assault. See id. at 88

– 92

(concluding that majority of states had to agree as to one of these

crimes)

.

The panel’s dissenting member questioned the realistic

probability of New York prosecut ing first

- degree manslaughter in

circumstances where a defendant took no physical action whatsoever

.

See id. at 99

– 102 (Raggi, J.

, dissenting). But even assuming that

probability, the dissent maintained that first

- degree manslaughter

was a categorically violent crime because conviction required the

defendant (1) to have caused death while (2) intending to cause at

least serious phys ical injury, and the Supreme Court has recognized

that the “intentional causation of bodily injury necessarily involves the

use of physical force.” Id. at 102 (emphasis in dissent) (quoting United

States v. Castleman

, 572 U.S. at 169). Moreover, the diss ent identified

first

- degree manslaughter as a categorical crime of violence under the

Guideline’s enumerated offense s clause because the minimum

conduct for conviction, as reflected in its two elements, was

recognized by a majority of states as either murd er or the lesser

included crime of voluntary manslaughter, and by a majority of states

as aggravated assault. See id. at 105

– 08 (concluding that murder and18

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United States v. Scott

15 voluntary manslaughter could be considered together in identifying

state majority)

.

Following the panel’s affirmance, and before the issuance of

any mandate, a majority of this court’s active judges voted to rehear

the case en banc. See Fed. R. App. P. 35(a).

DISCUSSION

I. “Violent Felon y ” and “Crime of Violence” U nder the ACCA

and Career Offender Guideline Force Clauses

Whether an offense is a “violent felony” or a “crime of

violence” under ACCA and the Career Offender Guideline is a

question of law that this court decides de novo

. See United States v.

Moore

, 916 F.3d 231, 236 (2d Cir. 20 19); United States v. Bordeaux

, 886

F.3d 189, 192 (2d Cir. 2018). In doing so here

, we look to the

definitions of these terms as stated in the ACCA and Guideline force

clauses. See supra note 2 (quoting clauses )

. Because the clauses are

identical ly worded

, a single analysis suffices to explain our

conclusion that first

- degree manslaughter in violation of N ew Y ork

Penal Law § 125.20(1) is a violent crime under both ACC A and the

Career Offender Guideline. See United States v. Evans

, 924 F.3d 21, 29

n.4 (2d Cir. 2019) (stating that we “look[] to cases analyzing ACCA’s

elements clause to interpret

. . . § 4B1.2 of th e Guidelines”); United

States v. Moore

, 916 F.3d at 241

– 42 ( relying on cases construing

ACCA’s force clause in construction of Guideline counterpart).

The force clauses define a violent crime by asking whether the

crime “ has as an element the use, attempted use

, or threatened use of

physical force against the person of another.” See supra note 2

. We

look to state law in identifying the elemen ts of a crime, but to federal

law in determining “whether the consequences of the conduct that18

- 163

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United States v. Scott

16 those elements require[]

. . . render[] conviction for that conduct a

‘violent [crime]’ under federal law.” Villanueva v. United States

, 893

F.3d at 129. This process triggers a categorical inquiry to determine

the minimum criminal conduct necessary to satisfy the elements of a

crime, without regard to whether the defendant himself engaged in

more egregious conduct. See United States v. Stitt

, 139 S. Ct. 399, 4 05

(2018) (instructing that categorical inquiry requires answer “in terms

of how the law defines the offense and not in terms of how an

individual offender might have committed it on a particular

occasion” (internal quotation marks omitted) ); Mathis v. Uni ted States

,

136 S. Ct. 2243, 2249 (2016) (describing “modified” categorical

approach for divisible statutes) ; United States v. Hill

, 890 F.3d 51, 55

(2d Cir. 2018) (collecting cases discussing categorical approach). A

court must then decide whether a necessary component of that

minimum conduct is the defendant’s use of physical force. See United

States v. Hill

, 890 F.3d at 56. The term “physical force” as used in

ACCA means “ violent force,” i. e

. , “force capable of causing physical

pain or injury to another person.” Curtis Johnson v. United States

, 559

U.S. at 140 ( emphasis in original) ( construing ACCA’s force clause);

see United States v. Reyes

, 691 F.3d 453, 458 & n.1 (2d Cir. 2012)

(applying same standard in de fining “crime of violence” under

U.S.S.G. § 4B1.2(a)). 10

II. Prosecuting First

- Degree Manslaughter by “Omission”

The two elements of first

- degree manslaughter are readily

identified in the text of N.Y. Penal Law § 125.20(1). The first

element

— which identifies the applicable mens rea

— requires that a

10 Our concurring colleague, Judge Park, criticizes the categorical approach. See

Park, J.

, Concurring Op., post at 1

. Nevertheless, as Judge Park acknowledges, we

are obliged to follow it here, and we do so strictly according to its d ictates.18

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United States v. Scott

17 defendant “inten[d] to cause serious physical injury to another

person,” i d.

, that is, “physical injury which creates a substantial risk

of death, or which causes death or serious and protracted

disf igurement, protracted impairment of health or protracted loss or

impairment of the function of any bodily organ, ” id. § 10.00(10)

(defining “serious physical injury”)

. The second element

— which

identifies the actus reus

— requires that a defendant, possessed of such

seriously injurious intent, in fact “cause[] the death” of either the

person he intended to injure or a third person. Id. § 125.20(1).

Thus, the minimum conduct necessary to commit the crime is

the causation of death by a person intent on ca using serious physical

injury

. Scott argues, and the district court agreed, that a person’s

death can be caused by omission, which New York defines as the

“failure to perform an act as to which a duty of performance is

imposed by law.” Id. § 15.00(3 )

. The district court went on to

conclude

— as Scott now urges this court to do

— that a crime that can

be committed by omission

, even a homicide crime committed with

specific injurious intent

, is not categorically violent because “omission

. . . by definition does not involve an act of any kind, let alone the use

of force.” United States v. Scott

, 2017 WL 2414796

, at * 2 ; see Appellee

Br. at 12, 14 (submitting that crime can be committed by omis sion by

“[s]itting still in a chair,” which “is no use of physical force against

the person of another” (internal quotation marks omitted) )

. In so

ruling, the district court acknowledged that, in United States v.

Castleman

, the Supreme Court stated that “ the knowing or intentional

causation of bodily injury necessarily involves the use of physical

force,” 572 U.S. at 169. But the district court deemed Castleman

irrelevant to Scott’s case because neither the ACCA force clause nor

crimes committed by “inact ion” were there at issue. United States v.

Scott

, 2017 WL 24 1 4796

, at * 2

. Thus, the district court relied instead18

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United States v. Scott

18 on this court’s earlier pronouncement in Chrzanoski v. Ashcroft

,

holding that “the intentional causation of injury does not necessarily

invo lve the use of force,” 327 F.3d 188, 195 (2d Cir. 2003) (emphasis

added), to grant Scott relief from his original sentence.

This was error, though perhaps not recognizable to the district

court at the time, insofar as it s ruling predated this court ’s cle ar

pronouncement in Villanueva v. United States that Chrzanoski ’s

understanding of “use of force” was “abrogated” by Castleman

. 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 ” ). Apparently, Villanueva did not make the

point clearly enough, however, because Scott maintains

—

incorrectly

— that Chrzanoski remains good law with respect to crimes

that can be committed by omission. He reasons that omission is

“inaction,” “literally no conduct,” whereas “use” requires some

“physical act” by a defendant to initiate or apply force. Appellee Br.

at 14, 20. On t his basis, Scott submits that first

- degree manslaughter

cannot be identified as a categorically violent crime under the ACCA

and Career Offender Guideline force clauses.

A. Assuming the “Realistic Probability” of Prosecuting

First

- Degree Manslaughter by Omission

In making this argument, Scott bears a double burden. At the

threshold, he must demonstrate not only that it is theoretically possible

to prosecute first

- degree manslaughter in circumstances of complete

inaction, but also that it is realistically probable that New York would

so apply its law. See United States v. Hill

, 890 F.3d at 56 ; Stuckey v.

United States

, 878 F.3d at 67

. This requirement serves to ensure that

defendants, such as Scott, who undeniably used violence to commit

their past crime s of conviction, do not escape being denominated18

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United States v. Scott

19 violent felons simply by hypothesizing some non

- violent scenario

—

such as causing death while simply “[s]itting still in a chair,” see

Appellee Br. at 12

— that might satisfy a crime’s statutory elements,

but t hat is nowhere reflected in caselaw. Thus, to carry the realistic

probability burden, a defendant “ must at least point to his own case

or other cases in which [ New York ] courts in fact did apply the statute

in the manner for which he argues

. ” United States v. Hill

, 890 F.3d at

56 ( quoting Gonzales v. Duenas

- Alvarez

, 549 U.S. 183, 193 (2007)

(emphasis added and ellips e s omitted )); see also Moncrieffe v. Holder

,

569 U.S. 184, 206 (2013) (holding that “realistic probability” requires

showing that “State actually prosecutes the relevant offense ” in non

violent circumstances hypothesized). 11 If Scott can clear that

threshold, he must then show that first

- degree manslaughter, when

committed by omission, does not necessarily involve a defendant’s

use of force.

Scott points to three New York State cases to satisfy his

threshold burden: People v. Steinberg

, 79 N.Y.2d 673, 680, 584 N.Y.S.2d

770, 772 (1992) (upholding conviction of adoptive father prosecuted

on theories of both commission and omission for brutally beating six

year old child and leaving her to die); People v. Wong

, 81 N.Y.2d 600,

607, 601 N.Y.S.2d 440

, 443

– 44 (1993) (reversing couple’s manslaughter

convictions on theories of both commission and omission for

insufficient evidence relating to shaken

- baby

- syndrome death of

infant in their care

, although citing Steinberg in acknowledging

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

Alvarez

, and reiterated in Moncrieffe v. Holder

, was there applied to determine

aliens’ removability under the Immigration Nationality Act. In subsequent cases,

this c ourt applied that standard, and the reasoning of those cases, in the ACCA

and Guidelines contexts. See United States v. Moore

, 916 F.3d at 240 (Career

Offender Guideline); Stuckey v. United States

, 878 F.3d at 67 (ACCA).18

- 163

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United States v. Scott

20 “theoretical[]” possibility of establishing guilt by omission); and

—

cited for the first time to th e en banc court

— People v. Santiago

, 87

A.D. 3 d 707

, 708, 928 N.Y.S.2d 602

, 603

– 04 ( 2d Dep ’ t 2011) (upholding

first

- degree manslaughter conviction of mother who prompted

enraged husband with history of child abuse to question her child

about suspected misdeed, and who then failed to intervene or secure

help when husband fatally beat child 12 ). Whether these cases suffice

to satisfy Scott’s “realistic probability” burden is a question that

sharply divided the panel that first heard this appeal. 13 The panel

decision i n Scott’ s favor on this point is now vacat ed, and the en banc

c ourt

, while adhering to the reasonable probability standard stated in

United States v. Hill

, need not decide if Scott satisfies it here for two

reasons. First, the government has abandoned its realistic

- probability

challenge before th e en banc court. See United States v. Black

, 918 F.3d

243, 256 (2d Cir. 2019) ( stating “argument not raised on appeal is

deemed abandoned, ” and will not be considered “ unless manifest

12 Santiago ’s relevancy here is do ubtful in that the conviction there was obtained

pursuant to a different part of the first

- degree manslaughter statute not here at

issue, N.Y. Penal Law § 125.20(4) (added to statute in 1990 and pertaining to adults

who “with intent to cause physical injur y to a person less than eleven years old,

. . . recklessly engage[] in conduct which creates a grave risk of serious physical

injury to such person and thereby cause[] the death of such person”). Further, to

the extent the mother’s speech might be underst ood to have precipitated the

child’s fatal beating, Scott himself suggested at oral argument that speech can

satisfy his urged physical act requirement for use of force. See Tr. Nov. 6, 2020, at

77.

13 Compare United States v. Scott

, 954 F.3d at 83 (concluding that Court of Appeals’

Steinberg ruling (reiterated in Wong ) that first

- degree manslaughter can be

committed by omission, together with its affirmance of Steinberg defendant’s

conviction on theory of omission as well as commiss ion, satisfied realistic

probability requirement), with id. at 99

– 102 (Raggi, J.

, dissenting) (observing that

in neither Steinberg nor Wong were defendants in fact prosecuted on theories of

omission based on no physical action; rather, defendants’ acts of omission were

linked to their physical acts).18

- 163

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United States v. Scott

21 in justice otherwise would result” (internal quotation marks omitted)).

Second, even if we assume that New York would apply the first part

of its first

- degree manslaughter statute in circumstances where a

defendant engaged in no physical action at all, the elements of the

crime would stil l necessarily involve a defendant’s use of force. We

proceed to explain that conclusion

.

B. First

- Degree Manslaughter Necessarily Involves the

Use of Violent Force

As already observed, a person commits first

- degree

manslaughter under New York law when, (1) “ [ w ] ith intent to cause

serious physical injury to another person,” (2) “ he causes the death of

such person or of a third person.” N.Y. Penal Law § 125.20(1). As

these elements indicate, a defendant need not intentionally cause

death to be guilty of this homicide crime. But he must cause death

while intending to cause seriou s physical injury, i.e.

, injury that

“creates a substantial risk of death,” or that, in fact, “causes death or

serious and protracted disfigurement, protracted impairment of

health or protracted loss or impairment of the function of any bodily

organ.” I d. § 10.00(10). To do that, a defendant must use violent force.

1. The Element s of First

- Degree Manslaughter

Require a Defendant’s Use of Violent Force

To explain, we begin with what Scott himself acknowledged at

oral argument: any death amounting to first

- degree manslaughter

necessarily results from violent force. See Tr. Nov. 6, 2020, at 57. It

follows, then, that the person who caused that death

— the actus reus

el ement of first

- degree manslaughter

— is the person who used the

violent force producing that fatal result. How does one identify that

person? The mens rea element of the crime answers the question. It

requires that a person intend to cause, if not death, then at least18

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United States v. Scott

22 serious physical injury. A defendant possessed of such intent can

only achieve that object by using violent force. Thus, it is when violent

force that a defendant was using to cause intended serious injury

results, instead, in death that th e law recognizes the defendant to have

caused that death and, therefore, to have committed first

- degree

manslaughter. In sum, the causation element of first

- degree

manslaughter

, considered in light of the crime’s mens rea element,

requires that, in every case, a defendant’s knowing and intentional

use of violent force be the cause of death.

The possibility of a defendant committing the crime by

omission warrants no different conclusion. The word “use”

— which

we here construe in th e context of a use of violent force

, s ee Smith v.

United States

, 508 U.S. 223, 229 (1993) (recognizing that word “use”

must be construed in context)

— does not require ( as Scott maintains )

that a defendant take affirmative physical action to initiate or appl y

the violent force resulting in death

. Rather, as the Supreme Court

observed in Smith

, the “ordinary ,” “ natural ,” “everyday meaning” of

the word “use” requires only that a person “make use of” the violent

force

, “convert [ such force ] to one’s service,” “ employ [it],” “avail

oneself of [it],” “utilize [it],” “carry out a purpose or action by means

of [it],” or “derive service from [it].” Id. at 22 8

– 2 9 (internal quotation

marks omitted) ( citing ordinary meaning of “use” before construing

word in context of firearm use proscribed by 18 U.S.C. § 924 (c) ) ; see

Voisine v. United States

, 136 S. Ct. 2272, 2278

– 79 & n.3 (2016) ( citing

approvingly to Smith in relying on dictionary definitions of “u se” in

construing force clause of 18 U.S.C. § 921(a)(33 ) (A) )

. 14

14 Our concurring colleague, Judge Menashi, faults the Supreme Court in Smith for

substituting “possible” for “prototypical” meanings in defining “use.” Menashi,

J.

, Concurring Op., post at 5

. We are not pers uaded. Smith ’s definitions of “use”18

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United States v. Scott

23 As the Supreme Court has recognized, these quoted definitions

are expansive, indicating that when Congress employs the word

“use” in a statute, its intent is to “sweep[] broadly” and not to cabin

legislation only to those uses “that most immediately come[] to mind”

or that manifest a defendant’s “active[],” i.e.

, physical, use. Smith v.

United States

, 508 U.S. at 229

– 30 (citing approvingly to United States v.

Long

, 905 F.2d 1572, 1576

– 77 ( D.C. Cir. 1990)

, in which now

- Justice

Thomas stated that “although not without limits, the word ‘use’ is

‘expansive’ and extends even to situations where the gun is not

actively employed”). Th at conclusion applies as much when “ use ”

pertains to violent fo rce as when it pertains to a firearm. Indeed, if

there is a common principle running through these definitions that

limit s their reach, it is not that “use” must be physical but, rather, that

it must be conscious. See, e.g.

, Leocal v. Ashcroft

, 543 U.S. 1, 9 (2004)

(stating that “use

. . . of physical forc e” against another person

suggests higher degree of intent than negligence or accidental

conduct (internal quotation marks omitted) ) ( discussed further infra

derive from oft

- cited dictionaries, see Webster’s New International Dictionary 2806

(2d ed. 1939); Black’s Law Dictionary 1541 (6th ed. 1990), and long

- standing

precedent, see Astor v. Merritt

, 111 U.S. 202, 213 (1884) (recognizing “use” as

“derive service from”). See Smith v. United States

, 508 U.S. at 228

– 29. Such tools

are routinely used by courts to identify the ordinary meaning of statutory terms.

See, e.g.

, Wisconsin Cent. Ltd. v. United States

, 138 S. Ct. 2067

, 2070 (2018). But even

if sources cited by our colleague

— illustrative entries from the Corpus of

Contemporary American English and a Canadian newspaper headline, s ee

Menashi, J.

, Concurring Op., post at 5 & nn.7, 8

— were sufficient to cast doubt on

Smith ’s identification of the ordinary meaning of “use,” the case nevertheless

controls this court. That conclusion is reinforced by the fact that, even if Justice

Ginsburg may have been willing to overrule Smith (a point highlighted by our

colleague), the Supreme Court has expressly declined to do so, see Watson v. United

States

, 552 U.S. 74, 82

– 83 (2007); id. at 83

– 84 (Ginsburg, J.

, concurring), and

continues to cite approvingly to Smith and to its definitions of “use,” s ee Voisine v.

United States

, 136 S. Ct. at 2278 n.3. Thus, we rely on those definitions here.18

- 163

- cr

United States v. Scott

24 at 42

– 4 4 )

. See also United States v. Castleman

, 572 U.S. at 169 (“[T]he

knowing or intentional causation of bodily injury necessarily involves

the use of physical force.” (emphasis added)) (discussed further in the

next sub

- section of this opinion). 15

To the extent the Court has recognized (again in the context of

firearms) that the ordinary definitions of “use” imply some “action

and implementation” by a defendant that go beyond mere possession,

Bailey v. United States

, 516 U.S. 137, 145 (1995)

, omission

— the breach

of a legal duty to act

— pr ovides any necessary action. As we explain

in some detail infra at 3 3

– 3 5

, “omission” has a specialized meaning at

la w

, which equat es not t o inaction

, but to action supporting criminal

culpability. See 2 LaFave § 15.4(b), at 717 (observing that omission

e quates to “affirmative action” in identifying culpability). Indeed, it

is the action that can establish causation for crimes such as murder

and manslaughter

, which as Scott acknowledges, necessarily result

from violent force. See Tr. Nov. 6, 2020, at 57 ; 1 LaFave § 6.2, at 589

–

90 (identifying murder and manslaughter as crimes defined in terms

of cause and effect that can, in appropriate circumstances, be

committed by omission).

Not insignificantly, the New York Court of Appeals relied on

this specialized meaning in ruling that first

- degree manslaughter can

be committed by omission. See People v. Steinberg

, 79 N.Y.2d at 680

(“ The Penal Law provides that criminal li ability may be based on an

15 Thus, even if one would not ordinarily say that a person is using physical force

whenever she drives a car, see Menashi, J

., Concurring Op., post at 5

, one wou ld

easily say just that when the person drives the car into a crowd because she intends

thereby to cause one or more persons in the crowd serious physical injury. In those

circumstances, the driver is employing the car’s force not simply to transport her

from one place to another, but as her instrument for causing intended injury. On

that much, we understand even Scott to agree.18

- 163

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United States v. Scott

25 omission . . . .”); N.Y. Penal Law § 15.00 ( 5 ) (stating “‘[t]o act’ means

either to perform an act or to omit to perform an act”). By contrast,

the district court appears to have overlooked omission’s specialized

meaning and simp ly to have assumed the word meant inaction. See

United States v. Scott , 2017 WL 2414796, at *2

. Meanwhile, Scott

embraces each position as best serves his interest s . He relies on the

specialized meaning of omission to argue at the threshold of the

categorical inquiry that Steinberg shows that first

- degree

manslaughter can be committed by omission. See Tr. Nov. 6, 2020, at

80 (acknowledging that legal definition of omission is necessary to

satisfy causation element o f first

- degree manslaughter)

. B ut, he then

repeatedly refers to omission as inaction to insist that manslaughter

by omission does not involve any use of force under ACCA. See

Appellee Br. at 14

– 17. Scott provides no rationale for inconsistently

construing the same word at different steps in the categorical analysis.

No matter. In construing ACCA, w e assume that when

Congress identified violent crimes by reference to a n element

requiring a use of force, it legislated against th e common law

background recognizing omission as action

. See generally Samantar v

.

Yousuf

, 560 U.S. 305, 320 n.13 (2010) (recognizing Congress to legislate

against background of common law)

. 16 T hus, we are satisfied that

16 Recognizing “use” by omission is no novel concept at law. Notably, the law has

long recognized that a defendant can use decei t by omission to commit fraud. See

Neder v. United States

, 527 U.S. 1, 22 (1999) (stating that fraud’s “well

- settled

meaning at common law” included material “misrepresentation or omission ”

(emphasis added) (internal quotation marks omitted)). Indeed, th e principle is

famously codified in securities law. See 15 U.S.C. § 78j(b) (criminalizing “use or

employ[ment]” of “any manipulative or deceptive device or contrivance” in

connection with purchase or sale of certain securities); United States v. Gramins

, 939

F.3d 429, 444 (2d Cir. 2019) (recognizing securities fraud under § 78j(b) can be

committed by “material omission if the defendant had a duty to speak” (internal

quotation marks omitted)).18

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United States v. Scott

26 Congress intended for crimes intentionally causing at least serious

physical injury

— crimes necessarily involving a use of force

— to be

recognized as categorically violent whether committed by acts of

omission or by acts of commission. 17

This conclusion does not stretch the word “use” beyond its

ordinary meaning when applied to violent force. Nor does it

r ecognize a use of violent force in circumstances having little to do

with the intended purpose of such force, i.e.

, as an instrument for

causing physical injury. 18 A defendant intent on causing serious

physical injury can employ, utilize, make use of, or avail himself of

violent force whether he initiates that force by his own physical act or

breaches a legal duty to check or redress force already in motion.

Likewise, he can co n vert violent force to his own injurious purpose

,

or derive service from such force

, whether he acts by commission or

omission. In the latter circumstance, a defendant’s performance of his

legal duty would presumably have prevented the violent force from

having injurious effect. See 1 LaFave § 6.2(d), at 606

– 07 (recognizing

that h omicide

- by

- omission requires “‘but for’ causation: but for the

17 To the extent our concurring colleague reaches the same conclusion by assigning

“use of physical force” a specialized, rather than ordinary, meaning, there may not

be much differ ence in our reasoning at least insofar as his construction derives

from the specialized meaning of omission. See Menashi, J.

, Concurring Op., post

at 3

– 9

. The specialized meaning of omission is longstanding and, in New York,

codified, thereby affording n otice to those who might be inclined to violate the law

that breaching a legal duty is a culpable action.

18 Dissenting in Smith v. United States

, Justice Scalia expressed concern that the

majority, in recognizing the exchange of a gun for drugs as a “use[ of] a firearm,”

departed too far from a firearm’s ordinary intended purpose as a weapon. 508

U.S. at 242

– 43 (Scalia, J.

, dissenting). Even that minority view is not a concern here

because, whether first

- degree manslaughter is committed by omission or

com mission, the defendant is using violent force against another person for its

ordinary purpose, i.e.

, to cause physical injury.18

- 163

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United States v. Scott

27 omission the victim would not have died”). Thus, it was by breaching

that duty that the defendant was able to make use of the unchecked

force, to avail himself of it, to derive service from i t in carry ing out his

own injurious purpose. Such a breach of duty may require no physical

action by a defendant, but it is culpable action in the eyes of the law

. Specifically, such an omission is the action that causes death by the

use of violent force. And so, whether committed by omission or

commission, first

- degree manslaughter is a categorically violent

crime because its element s necessar il y require a defendant’s knowing

and intentional use of the violent force that produces death.

2. Castleman Compels the Conclusion that First

Degree Manslaughter Necessarily Involves the Use

of Violent Force

This conclusion is compelled

, moreover

, by United States v.

Castleman

. In that case, t he Supreme Court s tated that the “knowing

or intentional causation of bodily injury necessarily involves the use of

physical force.” 572 U.S. at 169 (emphasis added).

At issue in Castleman was whether a Tennessee domestic

assault statute proscribing the knowing or intent ional causation of

bodily injury “has, as an element, the use or attempted use of physical

force,” so as to make the offense a “misdemeanor crime of domestic

violence” under 18 U.S.C. § 921(a)(33)(A). See id. § 922(g)(9) (federally

prohibiting firearm pos session by person with conviction for such

misdemeanor crime). The district court concluded that the state law

did not have a force element because a person could “cause bodily

injury without violent contact

— for example, by deceiving the victim

into drink ing a poisoned beverage.” United States v. Castleman

, 572

U.S. at 161

– 62 (brackets and internal quotation marks omitted). The

Sixth Circuit agreed, but for a different reason: the state law18

- 163

- cr

United States v. Scott

28 proscribed the causation of even “slight, nonserious physical injury,”

which could be accomplished with something less than “physical

force” as construed in Curtis Johnson v. United States

, 559 U.S. at 140.

United States v. Castleman

, 572 U.S. at 162 (int ernal quotation marks

omitted)

. Reversing, the Supreme Court ruled that the “physical

force” required to identify a misdemeanor crime of domestic violence

under § 921(a)(33)(A) is simply common law force, i.e.

, “offensive

touching,” id. at 162

– 163, not “f orce capable of causing physical pain

or injury to another person,” Curtis Johnson v. United States

, 559 U.S.

at 140, a s is required to identify a “violent felony” under ACCA.

United States v. Castleman

, 572 U.S. at 162

– 6 8

.

But further, and more important to our analysis here, the

Supreme Court made clear in Castleman that where “use” is being

construed in relationship to “physical force,” a defendant’s use of

such force does not depend on his having forceful contact

— or indeed

any physical contact

— with his injured victim. Rather, what matters

is that the defendant must have knowingly and intentionally caused

an injury that can result only from the use of physical force. On that

point, the Court stated, without qualification: “[T]he knowing or

intentional causation of bodily injury necessarily involves the use of

physical force.” Id. at 169 (emphasis added); accord id. at 174 (Scalia,

J.

, concurring in part and concurring in judgment) ( observing

, even

with respect t o violent force

, that “it is impossible to cause bodily

injury without using force capable of producing that result” (internal

quotation marks omitted) ). Indeed, in rejecting an argument that a

poisoner could kill his victim without using physical force by the non

violent act of surreptitiously sprinkling poison in the victim’s drink,

the Court explained that not only is the minimal degree of action

necessary to sprinkle poison irrelevant to identifying a use of force,

but also irrelevant is the very act of sprinkli ng. See id. at 171. The18

- 163

- cr

United States v. Scott

29 Court stated that the “use of force” in the poisoning scenario “is not

the act of sprinkling the poison” at all; rather, “it is the act of employing

poison knowingly as a device to cause physical harm.” Id. (emphasis

added) (brac kets and internal quotation marks omitted)

. 19

Thus, Castleman reject ed the argument here urged by Scott: that

“use of force” requires some physical act by a defendant to initiate or

apply the force. Rather, the Supreme Court there identifie d “use of

physical force” by reference to two factors

, one pertaining to

causation and the other to mens rea

.

First, the relevant physical force is that which causes physical

injury to a victim, not that which is physically performed by a

defendant. Several c ourts of a ppeals, including our own, have been

quick to recognize the significance of causation in identif ying a use of

physical force

. When, in Villanueva v. United States

, we recognized

Connecticut first

- degree assault to be a categorical violent crime

under ACCA, we stated that, following Castleman

, “the inquiry as to

‘force

, ’ for federal law purposes, foc uses on the causation of a

consequence

, rather than the physical act of initiating an action that

leads to a consequence

, ” 893 F.3d at 128; see also United States v

. Báez

Martínez

, 950 F.3d 119, 132 (1st Cir. 20 20 ) (characterizing Castleman as

deeming “injury to be the fingerprint of force”). 20

19 This comports with the ordinary meaning of “use,” which requires only that one

“employ” or “make use” of the specified object

— here, the violent force exerted by

poison

— to “carry out a purpose

. . . by means [there] of”

— that purpose here being

intended physical injury. Smith v. United States

, 508 U.S. at 228

– 29.

20 This leaves no role for any contrary view expressed in Chrzanoski v. Ashcroft

, 327

F.3d at 195. Castleman ’s abrogation of that case, see Villanueva v. United States

, 893

F.3d at 130, is complete.18

- 163

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United States v. Scott

30 Second, it is a defendant’s knowing employment of violent force

as a device to cause intended physical harm that establishes his “use

. ”

In other words, a defendant’s “use ” of violent force depends on h is

knowing or intentional causation of bodily injury, not on his own

physical movements.

Because the only “consequence” for a victim of New York first

degree manslaughter is death ( the ultimate physical injury ),

Villanueva v. United States

, 893 F.3d at 1 28, and because the causation

of that consequence “necessarily involves the use of physical force,”

United States v. Castleman

, 572 U.S. at 169, a defendant convicted of

that homicide crime because he intended to cause at least serious

physical injury must be said to have knowingly used the force causing

death regardless of whether he did so by commission or omission.

Of course, a defendant can

— and frequently will

— manifest a

knowing employment of injurious violent force through his own

physical a cts, for example, when he intentionally fires a gun directly

into someone’s head or repeatedly stabs a victim (as Scott did when

he twice committed first

- degree manslaughter). But a defendant can

also manifest a knowing employment of violent force by acts of

omission, as when he breaches a legal duty to check or redress violent

physical force because he specifically intends thereby to have that force

cause serious physical injury. In that circumstance

— satisf ying the

two elements of first

- degree manslaught er

— omission is how the

defendant knowingly avails himself of the violent force that results in

death. Omission is how he employs such force as the means to pursue

his own injurious purpose

. It is how he knowingly makes that force

his chosen instrument fo r causing harm. That is the essence of “use” as

explained in Castleman : “the word ‘use’ conveys the idea that the

thing used (here, physical force) has been made the user’s18

- 163

- cr

United States v. Scott

31 instrument.” Id. at 170

– 71 (internal quotation marks omitted) ; see

supra at 2 2

– 2 4 (discussing ordinary meaning of “use”)

. Indeed

, this

court has already effectively recognized that crimes committed by

omission can be categorically violent. See United States v. Hill

, 890 F.3d

at 5 8

– 5 9 (rejecting argument that threatening to withhold vital

medicine would not threaten use of physical force). And, a s we noted

at the outset, six of seven courts of appeals to have considered the

question agree. See supra note 5

. 21

Thus, following the reasoning of Castleman

, our own decision s

in Villanueva and Hill

, and those of other courts of appeals, we hold

that New York first

- degree manslaughter is a categorically violent

crime under the force clauses of ACCA and the Career Offender

Guideline because

— whether a defendant acts by commission or

omission

— the offense’s causation and intent elements can be satisfied

only when a defendant knowingly employs the violent force causing

death as the instrument for pursuing his own seriously injurious

purpose.

21 We call particular attention to United States v. Rumley

, wherein the Fourth Circuit

states that under Castleman ’s reasoning

, “there is just as much a ‘use of force’ 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.” 952 F.3d at 551. Sim ilarly, in United States v. Sanchez

, the

Eleventh Circuit, in holding New York second

- degree murder to satisfy ACCA’s

force clause, stated that “the intentional causation of bodily injury or death, even

by indirect means such as withholding medical treatme nt or food, necessarily

involves the use of physical force.” 940 F.3d at 535. In United States v. Peeples

, the

Eighth Circuit also recognized that when a caregiver refuses to feed a dependent,

“it is the act of withholding food with the intent to cause t he dependent to starve

to death that constitutes the use of force.” 879 F.3d at 287. The Supreme Court

denied certiorari in both Sanchez v. United States

, see 140 S. Ct. 559 (2019), and Peeples

v. United States

, see 138 S. Ct. 2640 (2018).18

- 163

- cr

United States v. Scott

32 C. Scott’s Contrary Arguments Do Not Persuade

In urging otherwise, Scott and/or his amic i argue that Castleman

is cabined by its c ontext, which did not specifically consider the

ACCA force clause or crimes that can be committed by omission.

They insist that some physical act by a defendant is necessary to

identify a use of force. The se arguments fail to persuade.

1. Castleman ’s Reasoning Applies to the ACCA and

Career Offender Guideline Force Clauses

As this court has already recognized, the link Castleman forged

between the “intentional causation of bodily injury” and the

“necessar[y]

. . . use of physical force,” 572 U.S. at 16 9, is both

“independent” of the case’s domestic relations context and “precisely

relevant” to ACCA. Villanueva v. United States

, 893 F.3d at 129

(collecting cases also applying Castleman ’s reasoning to interpretation

of other statutes). 22 Indeed, it woul d make no sense to conclude that

the lesser injury required for a misdemeanor crime of violence

necessarily involve s the use of physical force ( even if only common law

force ) while the greater injury required for a violent felony c an be

caused without the use of any force at all. On this point, five of six

courts of appeals to have considered the question agree. 23 Scott

22 To the extent our colleague, Judge Pooler, who dissented in Villanueva

, 893 F.3d

at 132

– 39 (Pooler, J.

, dissenting), continues to challenge or seeks to cabin

Villanueva ’s holding, see Pooler, J.

, Dissenting Op., post at 9

– 11

, we reject those

efforts.

23 See United States v. Rumley

, 952 F.3d at 550

– 51 [4th Cir.] (applying Castleman ’s

reasoning to ACCA); United States v. Báez

- Martínez

, 950 F.3d at 130

– 33 [1st Cir.]

(same); United States v. Sanchez

, 940 F.3d at 535

– 36 [11th Cir.] (same); United S tates

v. Ontiveros

, 875 F.3d at 537

– 38 [10th Cir.] (same); United States v. Jennings

, 860 F.3d

450, 459 (7th Cir. 2017) (same); cf. United States v. Peeples

, 879 F.3d at 287 [8th Cir.]

(applying Castleman ’s reasoning to find Iowa attempted murder crime of violence

under U.S.S.G. § 2K2.1(a)(4)). But see United States v. Mayo

, 901 F.3d at 228, 22918

- 163

- cr

United States v. Scott

33 provides no persuasive reason for us to depart from this view now as

to either the ACCA or Career Offender Guideline force clause.

2. Castleman ’s Reasoning Applies to Crimes

Committed by Omission

The fact that neither Castleman nor Villanueva specifically

addressed crimes that can be committed by omission does not mean

that the reasoning in those cases about causation and use of force i s

inapplicable to such crimes. 24 In so urging

, Scott and his amici

maintain that omission is “inaction,” which, under Supreme Court

precedent, cannot constitute use of force. Appellee Br. at 14

– 17; Br.

for Def. Orgs. as A mici C uriae at 1 1

– 1 6

. As signale d earlier, w e reject

both the premise and the conclusion. See supra at 2 4

– 2 7

.

a. The Law Equates Omission with Action

An “omission” is a failure to act, but it is not a failure to act

simpliciter. Rather, it is the failure to act when the law imposes a duty

to act. Far from identifying such a breach of duty as inaction

, the law

views it as action sufficient to support criminal culpability.

n.15 [3d Cir.] (declining to extend Castleman to ACCA context, although

recognizing this court to have done so in Villanueva based on Castleman ’s focus on

causatio n); supra note 5 (discussing Third Circuit’s en banc review of issues in

Mayo ).

24 We need not here decide if the crimes at issue in Castleman

, see Tenn. Code Ann.

§ 39

- 13

- 111(b) (proscribing assault

— defined in relevant part as

“[i]ntentionally[ or] knowingly

. . . caus[ing] bodily injury to another,” id. § 39

- 13

-

101(a)(1)

— against a “do mestic abuse victim”), and Villanueva

, see Conn. Gen. Stat.

§ 53a

- 59(a)(1) (proscribing intentional causation of “serious physical injury to

another person

. . . by means of a deadly weapon or a dangerous instrument”), can

ever be committed by omission bec ause even a negative answer makes no

difference to our analysis.18

- 163

- cr

United States v. Scott

34 To explain, the law always requires some “act” by a defenda nt

to commit a crime. That is because our system of justice does not

punish a person merely for “[b]ad thoughts.” 1 LaFave §§ 6.1, 6.1(b)

,

at 568, 570

– 71

. But the “act” required by law is not dependent on a

defendant’s physical movements. Rather, the l aw recognizes that a

person can also “act” to commit a crime by failing to perform a legal

duty. See id. §§ 6.1(a )

– ( e )

, 6.2; see also 1 Charles E. Torcia, Wharton’s

Criminal Law § 25, at 139 (1 5th ed. 1993) (stating that, to be criminally

liable, defendant must engage in “conduct,” which “means an act or

omission”). Such an “act of omission,” sometimes referred to as a

“negative act,” Act

, Black’s Law Dictionary (11th ed. 2019)

, cannot,

then, be d ismissed as “inaction” or “literally no conduct,” as Scott

urges

, Appellee Br

. at 14. Much less can an omission be characterized

as “ not involv[ing] an act of any kind

, ” United States v. Scott

, 2017 WL

2414796, at *2

, or “no action at all,” Pooler, J.

, D issenting Op.

, post at

1

. To the contrary, in the eyes of the law, a “failure to act where there

is a duty to act is the equivalent of affirmative action ” for purposes of

identifying criminal culpability. 2 LaFave § 15.4(b)

, at 717 (emphasis

added). See generally Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 73 (2012) (explaining need to consider

“speciali zed meaning” that law may give to certain words, e.g.

,

“presumption that person in legal instruments denotes a corporation

and other entity, not just a human being” (emphasis in original)).

That equivalency, originally rooted in common law, see 1

LaFave § 6.1(b), at 571 (observing “common law crimes all require an

act or omission i n addition to a bad state of mind”), is now reflected

in the Model Penal Code, see id. § 2.01(1) (stating that “person is not

guilty of an offense unless his liability is based on conduct that

includes a voluntary act or

. . . omission”), and the enacted l aws of18

- 163

- cr

United States v. Scott

35 most states. 25 Thus, as relevant here, New York’s Penal Law states

that, “ ‘ [t]o act’ means either to perform an act or to omit to perform

an act.” N.Y. Penal Law § 15.00(5). With respect to the former, New

York defines a “[v]oluntary act” as “a b odily movement performed

consciously as a result of effort or determination.” Id. § 15.00(2). With

respect to the latter, New York defines “omission” as “a failure to

perform an act as to which a duty of performance is imposed by law.”

Id. § 15.00(3). But for purposes of satisfying the act requirement for

criminal culpability, New York equates the two: “The minimal

requirement for criminal liability is the performance by a person of

conduct which includes a voluntary act or the omission to perform an

a ct which he is physically capable of performing.” Id. at § 15.10.

In construing ACCA’s force clause, we are mindful that it s

purpose is to define a “violent felon y ” by reference to the elements of

such a crime

. See Curtis Johnson v. United States

, 559 U.S. at 140

(construing “physical force” in ACCA by reference to “context of a

statutory definition of ‘violent felony’” (emphasis omitted) ); Leocal v.

Ashcroft

, 543 U.S. at 9 (emphasizing importance of context “when

interpreting a statute that featur e s as elastic a word as ‘use’”)

. W e

25 See Ala. Code § 13A

- 2

- 1(3)

– (5); Alaska Stat. Ann. § 11.81.900(b)(7); Ariz. Rev.

Stat. Ann. § 13

- 105(6); Ark. Code Ann. § 5

- 2

- 201(2)

– (4); Colo. Rev. Stat. Ann. § 18

-

1

- 501(2), (7); Del. Code Ann. tit. 11, §§ 233, 242; Haw. Rev. Stat. §§ 701

- 118, 702

-

203; 720 Ill. Comp. Stat. Ann. 5/2

- 2, 5/4

- 1; Ind. Code Ann. § 35

- 41

- 2

- 1(a); Iowa Code

Ann. § 702.2; Kan. Stat. Ann. § 21

- 5111(a); Me. Rev. Stat. Ann. tit. 17

- A, §§ 2(2)

– (3),

103

- B; Mich. Comp. Laws Ann. §§ 750.5, 750.10; Mo. Ann. Stat. §§ 556.061(49)(b),

565.002(3); Mont. Code Ann. §§ 45

- 2

- 101(1), 45

- 2

- 202; Neb. Rev. Stat. Ann. § 28

- 109(5), (14); N.H. Rev. Stat. Ann. §§ 625:11(I), 626:1(I); N.J. Stat. Ann. §§ 2C:1

- 14(c)

– (e), 2C:2

- 1; N.Y. Penal Law § § 15.00, 15.10; N.D. Cent. Code Ann. §§ 12.1

- 01

- 04(2)

– (3), 12.1

- 02

- 01; Ohio Rev. Code Ann. § 2901.21(A)(1); Or. Rev. Stat. Ann.

§ 161.085(3)

– (5), (22); 18 Pa. Stat. and Cons. Stat. Ann. §§ 103, 301(a)

– (b); Tex. Penal

Code Ann. §§ 1.07(a)(10), (34), 6.01(a) ,(c); Utah Code Ann. § 76

- 1

- 601(5), (10);

Wash. Rev. Code Ann. § 9A.04.110(1), (14).18

- 163

- cr

United States v. Scott

36 assume that when Congress amended ACCA to add the force clause

, 26

it was aware of these background principles recognizing that the

elements of a crime

— including the causation elements of crimes such

as murder and manslau ghter

— can be satisfied by acts of omission as

well as acts of commission. See Samantar v. Yousuf

, 560 U.S. at 320 n.13

( stating “Congress is understood to legislate against a background of

common

- law

. . . principles” (internal quotation marks omitted) ) ;

Stokeling v. United States

, 139 S. Ct. 544

, 551 (2019) (citing Samantar and

construing ordinary meaning of “physical force” in ACCA to

encompass force required to commit common law robbery ); see also 1

LaFave § 6.2

, at 58 8

– 9 0 (identifying murder and manslaughter as

crimes defined in terms of cause and effect that can, in appropriate

circumstances, be committed by omission)

. 27 Further, we assume that

the Supreme Court possessed this same awareness when, in

Castleman

, it stated that crime elements requiring the “intentional

causation of bodily injury necessarily involve[] the use of physical

force.” United States v. Castleman

, 572 U.S. at 169 (emphasis added).

Thus, Scott cannot avoid Castleman ’s application to his first

- degree

manslaughter convictions by characterizing omission as mere

“inaction” or “literally no conduct” under the criminal law. Appellee

Br. at 14.

To the extent Scott equates omission with inaction in order to

argue that Chambers v. United States

, 555 U.S. 122 (2009), rather than

26 See generally Career Criminals Amendment Act of 1986, Pub. L. No. 99

- 570,

§ 1402, 100 Stat. 3207.

27 Cf. Neder v. United States

, 527 U.S. at 23 (applying “rule that Congr ess intends to

incorporate the well

- settled meaning of the common

- law terms it uses

. . . unless

the statute otherwise dictates” in identifying materiality of misrepresentation or

omission as element of federal mail, wire, and bank fraud statutes (internal

quotation marks omitted)).18

- 163

- cr

United States v. Scott

37 Castleman

, controls this case, he misreads Chambers

. At issue there

was a defendant’s prior state conviction for failing to report to a penal

institution, which the Supreme Court decided was not a violent

felony under either ACCA’s force clause or its residual clause. See i d.

at 125

, 127

– 28. It was in reaching the latter conclusion that the Court

characterized the failure

- to

- report crime as a “form of inaction”

posing no “serious potential risk of physical injury.” Id. at 128.

Indeed, the Court supported that conclusion by citing a Sentencing

Commission Report indicating that, of 160 examined failure

- to

- report

cases, “none at all involved violence.” Id. at 129.

This case is not analogous. N ot only is ACCA’s now

invalidated residual clause not at issue here

, but also, Scott

acknowledges that death amounting to first

- degree manslaughter

always results from violence. See Tr. Nov. 6, 2020, at 57. Moreover

,

the crime here under consideration, f irst

- degree manslaughter, is not

a “form of inaction.” Chambers v. United States

, 555 U.S. at 128. To the

contrary, the crime’s actus reus

, far from proscribing a defendant’s

failure to do something, such as failing to report to prison, proscribes

his do ing something, specifically, causing the death of another

person. It may be possible for a defendant to cause death either by

physical action or by omission

, but, in either circumstance, the

causation of that ultimate physical injury necessarily involves the use

of violent force

. That is the teaching of Castleman

, and it is that

decision, not Chambers

, that controls here.

b. Precedent Does Not Require a Defendant’s

Performance of Some Physical Act to

Identify His Use of Force

Scott maintains th at Supreme Court precedent requires a

defendant’s performance of at least some physical act to identify his18

- 163

- cr

United States v. Scott

38 use of force. In support, he invokes (1) Curtis Johnson ’s definition of

physical force to mean “active power; vigor,” Curtis Johnson v. United

Stat es

, 559 U.S. at 1 3 9 (internal quotation marks omitted); (2)

Castleman ’s reference to “the act of employing” force, United States v.

Castleman

, 572 U.S. at 171 (emphasis added); (3) Villanueva ’s recitation

of this reference in Castleman as well as its menti on of “ initiating

,

however gently, a consequence, ” Villanueva v. United States

, 893 F.3d

at 129 (emphasis added); and (4) various references to the “active

employment” of physical force in Bailey v. United States

, 516 U.S. at

14 4

, 150 ; Voisine v. United States

, 136 S. Ct. at 2278

– 79; and Leocal v.

Ashcroft

, 543 U.S. at 9. When placed in their proper context, none of

the quoted excerpts supports Scott’s argument.

Scott’s reliance on Curtis Johnson conflates “physical force” with

the “use” of su ch force. Curtis Johnson holds only that the former term

should be construed according to its “ordinary meaning,” observing

that dictionary definitions describe “force” as “active power ; vigor,”

and “physical force” as “force consisting in a physical act. ” 559 U.S.

at 13 8

– 3 9 ( brackets and internal quotation marks omitted). T he case

says nothing about what constitutes a use of physical force. C ertainly

,

it does not hold that use requires a physical act. 28

It was subsequently, in Castleman

, that the Supre me Court

discussed what constitutes a “ use ” of physical force. The Court there

explained that the relevant physical force is that which physically

injures the victim. Whether a defendant can be said to have used that

28 Our dissenting colleague repeats Scott’s conflation error when she charges us

with concluding that “ Johnson says nothing about what constitutes force.” Pooler,

J.

, Dissenting Op., post at 6 n.3

. As we emphasize in text, Curt is Johnson has much

to say about the term “physical force.” It has nothing to say about what constitutes

a “use” of such force.18

- 163

- cr

United States v. Scott

39 particular force depends not on his o wn performance of any

particular physical act but, rather, on “the act of employing [physical

force] knowingly as a device to cause physical harm.” United States v.

Castleman

, 572 U.S. at 171. As we have already explained supra at 2 2

–

2 7

, a defendant can knowingly employ force by omission as well as

by commission. The Court’s use of the phrase “act of employing”

does not signal otherwise, because, as we have also already explained

supra at 3 3

– 3 5

, an omission is as much an “act” under the c riminal law

as a person’s voluntary physical movements. See N.Y. Penal Law

§ 15.00(5). 29

29 Scott submits that Justice Scalia, concurring in Castleman

, identified “acts of

omission” as “nonphysical conduct” that “cann ot possibly be relevant to the

meaning of a statute requiring ‘physical force.’” United States v. Castleman

, 572 U.S.

at 181 (Scalia, J.

, concurring in part and concurring in judgment) (emphasis

omitted). He quotes this language out of context. The language is found in the

part of the concurring opinion rejecting the majority’s construction of “physical

force” as used in 18 U.S.C. § 921(a)(33)(A) to mean common law force rather than

violent force. It was i n that context that Justice Scalia fau lted the majority’s

reliance on an amicus brief, which proposed defining domestic violence to include

“such a wide range of nonviolent and even nonphysical conduct that

. . . cannot

possibly be relevant to the meaning of a statute requiring ‘physical force ,’ or to the

legal meaning of ‘domestic violence.’” Id. (emphasis in original). He explained

that the urged range of conduct included “acts that ‘humiliate, isolate, frighten,

. .

. [and] blame

. . . someone’; ‘acts of omission’; ‘excessive monitoring of a woman’s

behavior, repeated accusations of infidelity, and controlling with whom she has

contact.’” Id. (quoting Br. for National Network to End Domestic Violence et al.,

as Amici Curiae

, 5

– 8, & nn.7, 11 (quoting UNICEF, Domestic Violence Against Women

and Girls

, Innocenti Digest

, June 2000, at 2)). The “acts of omission” identified in

the UNICEF report relied on by the amicus brief were “[g]ender bias that

discriminates in terms of nutrition, education and access to health care.” UNICEF,

Domestic Viol ence Against Women and Girls

, Innocenti Digest

, June 2000, at 2. This

is not what the criminal law generally, or New York law in particular, means by a

culpable omission. See supra at 33

– 35

. Thus, we have no reason to think that

Justice Scalia’s quoted criticism pertained in any way to such omissions, much less

that he was thereby qualifying his earlier pronouncement that “it is impossible to

cause bodily injury without using force capable of producing that result.” United

States v. Castleman

, 572 U.S. at 174 (Scalia, J.

, concurring in part and concurring in18

- 163

- cr

United States v. Scott

40 As for Villanueva ’s reference to “ initiating

, however gently, a

consequence,” 893 F.3d at 129 (emphasis added), the statement is part

of a sentence that, in its ent irety, reads as follows: “The explanation

[in Castleman ] that initiating, however gently, a consequence that

inflicts injury constitutes the use of physical force was independent of

both the [case’s] domestic relations context and the fact that the

offens e at issue was a misdemeanor.” Id. Plainly, t he point of the

sentence was to emphasize that Castleman ’s reasoning was not

cabined by the case’s context; it was not to identify a physical

- act

requirement for the use of force. That conclusion is reinforced by a

preceding sentence. See i d. at 128 (observing that in Castleman

,

Supreme Court made “clear” tha t a use

- of

- force inquiry “focuses on

the causation of a consequence

, rather than the physical act of i nitiating

an action that leads to a consequence ” (emphasis added) ). A subsequent

sentence makes the same point. See id. at 129 (observing that “relevant

force is the impact of the [injurious] substance on the victim, not the

impact of the user on th e substance ” (emphasis added) ). 30

No different conclusion can be drawn from cases construing

“use” as “ active employment.” In Bailey v. United States

, the Supreme

Court used that formulation in discussing the use or carrying of a

firearm proscribed by an earlier version of 18 U.S.C. § 924(c)(1). See

516 U.S. at 1 48

– 5 0

. The Court there observed that the ordinary

meaning of the word “use” implied “action and implementation,”

judgment) (internal quotation marks omitted). Rather, we assume that statement

applies to first

- degree manslaughter, whether a defendant acts by commission or

omission.

30 While our dissenting colle ague faults the en banc court for “shifting the focus of

‘[use of ]force’ from the defendant’s conduct to the victim’s injury,” Pooler, J.

, Dissenting Op., post at 11

, in fact, we simply follow Castleman as already correctly

construed by this court in Villanueva.18

- 163

- cr

United States v. Scott

41 which, in the context of § 924(c), connoted activity beyond mere

possession of a gun

. I d. at 145

. The Court explained that reading

“use” to reach possession

, even to protect drugs or to embolden the

defendant, would leave “no role

. . . for ‘carry’” in the statute. Id. It

stressed

, however, that “use” d id encompass a defendant who “has a

gun on display during a [ drug ] transaction. ” Id

. at 146.

T his case is not akin to Bailey

, and those differences are

important to understanding what constitutes “active employment” in

each context. See id. at 145 (acknowledging that construction of word

“use” depends on “its placement and purpose in [a] statutory

scheme ” ). First, the object of required use in Bailey was a gun, a

specific, tangible object. The object of required use here is violent

physical force, intangible power evident in myriad forms, some

obvious, others insidious. Second, while a gun can b e used to unleash

violent force, an unused gun can be inert. By contrast, the very

essence of violent force is power in physical motion, specifically,

power that, once unleashed or unchecked, is capable of causing

physical pain or injury. Third, and perh aps most important, serious

physical injury can, but need not, involve the use of a gun. But, as

Castleman and Villanueva recognize, serious physical injury necessarily

involves the use of violent force. Thus, a defendant’s use of a gun

may only be evide nt from particular activities

, see id. at 148

(identifying activities amounting to use of firearm)

, whereas a

defendant’s use of violent physical force is always evident from his

knowing causation of serious bodily injury

, see United States v.

Castleman

, 572 U.S. at 169

– 70; Villanueva v. United States

, 893 F.3d at

128

– 29

. I t does not matter whether such causation results from a

defendant’s physical acts in instigating or applying violent force or

from his acts of omission in failing to check or redress violent force

already in motion

. In both circumstances, the defendant’s actions18

- 163

- cr

United States v. Scott

42 allow him to employ violent force as his instrument for causing

intended physical injury. This constitutes an “active employment” of

violent force. 31

Voisine v. U nited States and Leocal v. Ashcroft are not to the

contrary. In both cases, the Supreme Court referenced a defendant’s

“active employment” of physical force to emphasize that the use of

physical force causing bodily injury must be more than accidental or

negligent

, not that it must involve the defendant’s physical

movement

. Thus, in Leocal

, which c o nstrued the force clause defining

violent crimes in 18 U.S.C. § 16(a), 32 the Court stated:

31 After oral argument, Scott submitted that the recent decision in Gray v. United

States

, 980 F.3d 264 (2d Cir. 2020), supports the conclusion that “inaction” is not a

“use of physical force agai nst the person of another.” Scott 28(j) Letter (quoting 18

U.S.C. § 924(e)(2)(B)(i)). He is mistaken. Gray holds that 18 U.S.C. § 111(b)

— which

proscribes forcibly assaulting, resisting, opposing, impeding, intimidating, or

interfering with certain feder al employees while (1) “us[ing] a deadly or

dangerous weapon,” or (2) “inflict[ing] bodily injury”

— is categorically a crime of

violence under § 924(c)’s force clause. Gray v. United States

, 980 F.3d at 266. In so

ruling, the Court observed that the word “inflict” in § 111(b) necessarily implicates

physical force because it requires “physical, not proximate, causation,” which

involves “applying force directly” or being “the direct physical cause of the

injury.” Id. at 267 (brackets and internal quotation marks omitted). That infliction

of bodily injury thus easily satisfies ACCA’s force clause does not transform its

noted features into the minimum requirement for the use of force. First

- degree

manslaughter does not demand that a defendant “inflict” injur y. Rather, it

proscribes the causation of death by a defendant intent on causing at least serious

physical injury. In those circumstances, Gray warrants no departure from

Castleman ’s instruction that the intentional causation of bodily injury necessarily

involves the use of physical force.

32 Section 16(a) differs from ACCA in that its force clause 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 or property o f another.” 18

U.S.C. § 16(a) (emphasis added).18

- 163

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United States v. Scott

43 While one may, in theory, actively employ something in

an accidental manner, it is much less natural to say that

a person actively employs physical force against another

person by accident. Thus, a person would “use

. . . physical force against” another when pushing him;

however, we would not ordinarily say a person “use[s]

. . . physical force against” another by stumbling and

falli ng into him.

. . . The

. . . phrase

. . . “use

. . . of physical

force against the person

. . . of another ”

— most naturally

suggests a higher degree of intent than negligent or

merely accidental conduct.

543 U.S. at 9 (emphasis omitted) (holding Florida driving

- under

- the

influence

- and

- causing

- injury crime did not satisfy force clause

because offense lacked requisite mens rea element and, thus, injury

could result from negligence or accident). Similarly, in Voisine

,

construing the force c lause defining misdemeanor crimes of domestic

violence under 18 U.S.C. § 922(g)(9)

— the force clause at issue in

Castleman

, see supra at 27

— the Court reiterated that “ an involuntary

motion, even a powerful one, is not naturally described as an active

employ ment of force.” Voisine v. United States

, 136 S. Ct. at 2279

(holding Maine domestic assault satisfied force clause of 18 U.S.C.

§ 921(a)(33)(A) because offense’s mens rea element required at least

recklessness, which sufficed to indicate that harm caused resulted

from “deliberate decision”).

The crime here at issue, first

- degree manslaughter, raises no

such concerns. Under New York law, t here is no possibility of

committing first

- degree manslaughter accidentally, negligently, or

even recklessly. 33 Rather, the crime demands more : a defendant must

33 Whether reckless felonies satisfy ACCA’s force clause is a question presently

pending before the Supreme Court. See Borden v. United States , No. 19

- 5410 (appeal

argued Nov. 3, 2020).18

- 163

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United States v. Scott

44 cause death while specifically intending to cause at least serious

physical injury to another person. Under the reasoning in Leocal

,

Voisine

, and Castleman

, such a defendant “active ly employ s ” physical

force in committing the crime

. 34

c. There Is No Need to Resort to the Rule of

Lenity

Scott argues that if the ACCA and Career Offender Guideline

f orce clauses do not clearly require a defendant’s performance of a

physical act to identify a use of force, they are at least ambiguous on

the point, in which case the rule of lenity requires the court to resolve

that ambiguity in his favor. See United States v. Santos

, 553 U.S. 507,

514 (200 8 ) (stating that “ rule of lenity requires ambiguous crimin a l

laws to be interpreted in favor of the defendants subject ed to t hem”).

Scott’s invocation of the rule is not without some irony. There

can be no question that he performed physical acts in shooting and

stabbing his two manslaughter victims. See supra at 10

. Thus, to the

extent the lenity rule is grounded in a conce rn for “fair warning,” see

McBoyle v. United States

, 283 U.S. 25, 27 (1931) (Holmes, J. ) ; United

34 Thus, to the extent Leocal and Voisine might support our dissenting colleague’s

assertion that ACCA “does not seek to include all criminal acts resulting in injury

or fatality,” Pooler, J.

, Dissenting Op., post at 20

, the determinative factor is not a

de fendant’s physical actions, but rather, his mens rea

, see supra at 21

– 2 4

. Nor can

the dissent rely on Lofton v. United States

, 920 F.3d 572 (8th Cir. 2019), to urge

otherwise. See Pooler, J.

, Dissenting Op., post at 20

– 21

. The reason the state sexual

ab use statute there at issue did not qualify as a crime of violence was not that it

lacked a physical act requirement for use of force but, rather, that it did not require

the involvement of any force at all. See Lofton v. United States

, 920 F.3d at 576

(“N otably absent [from the statute] is any requirement of force

. . . .” (internal

quotation marks omitted)). As Scott acknowledges, a death qualifying as first

degree manslaughter always results from violent physical force. See Tr. Nov. 6,

2020, at 57. An d a defendant who causes that death is guilty of first

- degree

manslaughter only if his intent was to cause at least serious physical injury.18

- 163

- cr

United States v. Scott

45 States v. Bass

, 404 U.S. 336, 347

– 48 (1971)

, Scott can hardly claim that

he was not clearly warned that his manslaughter convictions expose d

him to enhanced pe nalties under ACCA and the Career Offender

Guideline for any subsequent possession of a firearm

. See generally

United States v. Fields

, 113 F.3d 313, 325 (2d Cir. 1997) (holding that

even if statutory sentencing enhancement was ambiguous on its face

as to “cocaine base,” defendants could not benefit from rule of lenity

where term clearly applied to their dealing in crack cocaine).

But even assuming arguendo that, in the context of a categorical

inquiry, lenity may be invoked by a defendant who received fair

warning, Scott’s argument is defeated by Castleman ’s clear

pronouncement that a defendant “necessarily” us es physical force in

comm itting a crime involving the intentional causation of physical

injury. See supra at 2 7

– 3 1

. Indeed, in so ruling, the Supreme Court

specifically rejected defendant Castleman’s invocation of the rule of

lenity to urge a narrow construction of § 921(a)(33)( A)’s force clause.

See United States v. Castleman

, 572 U.S. at 172

– 73. The Court reiterated

that the rule is the last canon of construction, applicable only if, “after

considering text, structure, history

, and purpose, there remains a

grievous ambiguity or uncertainty in the statute, such that the Court

must simply guess as to what Congress intended.” Id. at 172

– 73

(internal quotation marks omitted) ; 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” (internal quotation marks omitted))

.

That is not this case.

The ACCA and Career Offender Guideline force clauses state

that a “ violent felony” or a “ crime of violence” must have as an

element the use of physical force. They say nothing about that use18

- 163

- cr

United States v. Scott

46 requiring a defendant’s own performance of a physical act. Indeed,

such a requirement would be curious rath er than expected given the

law’s recognition that a crime’s elements, including the causation

elements of homicide crimes such as murder and first

- degree

manslaughter, can be satisfied by omission. As we have already

discussed, an omission

, i.e.

, the brea ch of a legal duty to act

, is an

“action” sufficient to support criminal culpability, even if it does not

involve any phy sical movement by a defendant. See supra at 33

– 36

.

Nor does the word “use” support a physical act requirement.

A s discussed, the common meaning of the word is “to make use of; to

convert to one’s service; to employ; to avail oneself of; to utilize; to

carry out a purpose or action by means of [ ; ]

. . . or to derive service

from

. ” Smith v. United States

, 5 08 U.S. at 229 ( brackets and internal

quotation marks omitted). Every one of these definitions easily

applies to first

- degree manslaughter committed by omission. See

supra at 2 2

– 2 7

.

L egislative history and purpose also do not support construing

the force clauses of ACCA and the Career Offender Guideline to

exclude crimes that can be committed by omission from the sphere of

categorically violent felonies. When Congress added a force clause to

ACCA, it specifically identified “murder, rape, assault, [and]

robbery” as among the crimes “involving physical force” that it

expected to qualify as categorical violent felonies. H.R. Rep. No. 99

-

849, at 3 (1986) ; see also Curtis Johnson v. United States

, 559 U.S. at 140

–

41 (favorably citing dictionary definition of “ ‘ violent felony’ as ‘[a]

crime characterized by extreme physical force, such as murder,

forcible rape, and assault and battery with a dangerous weapon’”).

As we noted supra at 4, note 1

, 7

, first

- degree manslaughter differs

from murder only in that the former requires a defendant’s intent to18

- 163

- cr

United States v. Scott

47 cause serious physical injury while the latter requires his intent to kill.

But both crimes require a defendant to cause death. And if, because

death can be caused by omission, first

- degree manslaughter is not a

categorically violent crime, it would follow that neither is murder.

That conclusion

, and the reasoning supporting it

, are so far removed

from Congr ess’s purpose in amending ACCA as to preclude finding

it plausible that first

- degree manslaughter committed by omission

cannot be categorically violent. 35

Reinforcing our conclusion that Scott does not offer a plausible

alternative co nstruction of the ACCA and Career Offender force

clauses are the disquieting outcomes of his hypothetical

applications. 36 Acknowledging, as he must, that a defendant can use

35 Our dissenting colleague, Judge Leval, states that while he would not apply the

rule of lenity to the Career Off ender Guideline’s force clause, he would apply the

canon to ACCA’s identically

- phrased force clause because ACCA’s penalty is

mandatory while the Guideline enhancement is not. See Leval, J.

, Dissenting Op.,

post at 10

– 12. Even if some of us might share J udge Leval’s disquiet about

mandatory minimum sentences and his preference for broad judicial sentencing

discretion, our task here is to identify unresolvable statutory ambiguity, not to tilt

the balance in favor of judicial sentencing discretion. In sho rt, we resort to lenity

only to resolve “grievous[]” ambiguities as to Congress’s intent after all other tools

of construction have been exhausted. United States v. Hayes

, 555 U.S. 415, 429 (2009)

(stating that statutory definition may not be “a model of the careful drafter’s art”

and yet still not be so “grievously ambiguous” as to warrant rule of lenity (brackets

and internal quotation marks omitted)). For the reasons just stated, we locate no

such grievous ambiguity here.

36 Just as a court will not co nstrue a statute to yield absurd results contrary to

Congress’s purpose, see Gibbons v. Bristol

- Myers Squibb Co.

, 919 F.3d 699, 705 (2d

Cir. 2019) (“It is

. . . well

- established that [a] statute should be interpreted in a way

that avoids absurd results.” (internal quotation marks omitted)), it will not

recognize genuine ambiguity where a party’s urged alternative co nstruction yields

absurd results, s ee Smith v. United States

, 508 U.S. at 239 (“The mere possibility of

articulating a narrower construction

. . . does not by itself make the rule of lenity

applicable.”); cf. United States v. Valle

, 807 F.3d 508, 523 (2d C ir. 2015) (applying

lenity where “the Government and the defense both posit plausible interpretations18

- 163

- cr

United States v. Scott

48 force indirectly, see United States v. Castleman

, 572 U.S. at 170

– 71;

Villanueva v. United States

, 893 F.3d at 130, but maintaining that even

indirect use must involve some physical act, Scott submits that a

parent who commits first

- degree manslaughter by failing to rescue

his drowning child would have used the violent force of water in the

child’s lungs if the parent had himself filled the swimming pool with

water, but not if he had simply let rainwater do so

. See Tr. Nov. 6,

2020, at 67

– 6 9

. F urther

, Scott submits that a caregiver who comm its

first

- degree manslaughter by starving a patient would have used the

violent force of starvation on a body if he (falsely) told the person not

to eat available food because it was poisoned, but not if he failed to

put delivered food within the patient’s reach

. See id. at 73

– 77. Why

the difference? Scott maintains it is because the first caregiver in each

scenario engaged in physical action

, whether by filling the pool or

moving his lips

, while the second caregiver in each scenario did

nothing

. See id.

The distinctions Scott draws are more than unconvincing; they

are meaningless to identifying a “use of force.” The parent intent on

seriously injuring his child employs the violent force of pool water in

the unrescued child’s lungs as much when rainwater fills the pool as

when the parent does so himself with a hose. A caregiver intent on

injuring a dependent avails himself of starvation’s violent effects on

the body as much when he breaches a legal duty t o make food

accessible as when he tricks his vic tim into not eat ing accessible food.

What matters to identifying the use of force in these hypothetical first

of a criminal statute” (emphasis added)); Securities & Exch. Comm’n v. Rosenthal

,

650 F.3d 156, 162 (2d Cir. 2011) (rejecting contention that plaintiff’s urged

interpretation avoided absurdity, observing “that it is the [plaintiff’s]

interpretation that can lead to absurd results”).18

- 163

- cr

United States v. Scott

49 degree manslaughter situations is not whether the defendant engaged

in a physical act in causing a victim’s death. What matters is that, in

e ach scenario, the defendant caused death while intending to cause at

least serious physical injury. It is that “knowing or intentional

causation of bodily injury [ that ] necessarily involves the use of

physical force.” United States v. Castleman

, 572 U.S. at 169

. 37

Thus, we conclude that New York first

- degree manslaughter is

a categorically violent crime under both the ACCA and Career

Offender Guideline force clauses because, whether a defendant acts

by commission or omission

, in every instance, it is his intentional use

of physical force against the person of another that cause s death

.

III. The Career Offender Guideline’s Enumerated Offense s

Clause

The government submits that, even if first

- degree

manslaughter does not qualify as a categorical violent crime under

the ACCA and Career Offender Guideline force clauses, it is such a

crime under the Guideline’ s enumerated offense s clause. See U.S.S.G.

§ 4B1.2(a) (2) (defining “crime of viole nce” as felony that “is murder,

voluntary manslaughter, kidnapping, aggravated assault, a forcible

sex offense, robbery, arson, extortion, or the use or unlawful

possession” of certain firearms and explosive material). The Supreme

37 While we have indulged these hypothetical homicide

- by

- omission scenarios, we

note that none is to be found in any actual Ne w York prosecution for first

- degree

manslaughter. Nor do our dissenting colleagues point to any New York case in

fact applying the state’s first

- degree manslaughter statute to the “malicious

guardian” and “assisted suicide” omission scenarios that they po sit. See Leval, J.

, Dissenting Op., post at 5

– 6 ; Pooler, J.

, Dissenting Op., post at 12

– 1 5

. We reiterate

that a threshold requirement of any defendant’s claim that a state crime is not

categorically violent is a showing that the state actually prosecutes the crime in the

non

- violent scenario being hypothesized. See United States v. Hill

, 890 F.3d at 56.18

- 163

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United States v. Scott

50 Court has explained that the enumerated offenses are to be given their

“generic” meaning s

, see Taylor v. United States

, 495 U.S. 575, 598 (1990)

,

which we ascertain “[i]n many instances” by reference to “the sense

in which the term is now used in the criminal codes of most States,”

but also by “consult[ing] other sources, including f ederal criminal

statutes, the Model Penal Code, scholarly treatises, and le gal

dictionaries,” United States v. Castillo

, 896 F.3d 141, 150 (2d Cir. 2018)

(internal quotation marks omitted)

.

The government contends that New York first

- degree

manslaughter is generic voluntary manslaughter because 28 states

punish the conduct proscr ibed by N.Y. Penal Law § 125.20(1) as either

murder (20 states 38 ) or the lesser

- included offense of voluntary

manslaughter (8 states 39 )

. In any event, the government submits that

38 The 20 states penalizing such conduct as murder do so under statutes

proscribing either what Professor LaFave refers to as “intent

- to

- do

- serious

- bodily

injury” murder, 2 LaFave § 14.3, at 590; 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. Ann. 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

– 92 (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(A)(1), 701.8(2); Wash. Rev. Code Ann. §§ 9A.32.050(1)(b),

9A.36.011; Wis. Stat. Ann. §§ 940.03, 940.19(5).

39 See Conn. Gen. Stat. Ann. § 53a

- 55; Del. Code Ann. tit. 11, § 632(2); Ky. Rev. Stat.

Ann. § 507.030(1)(a); 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. Ct. App. 2015); N.Y.

Penal Law § 125.20(1); State v. Ortiz

, 824 A.2d 473, 486 (R.I. 2003).18

- 163

- cr

United States v. Scott

51 a majority of states punish the conduct, at minimum, as aggravated

assault. 40

S cott responds that the states defining the conduct as murder

and those defining it as voluntary manslaughter cannot be aggregated

to establish a majority view

. Further, he maintains that few states

punish conduct that can be committed by omission as aggravated

assault

.

The original panel was sharply divided on this enumerated

offenses clause question. 41 Th e panel decision favoring Scott on this

40 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), at 764

– 65; Model Penal Code § 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 the “two terms have often

been used interchangeably”). Forty

- four state laws proscribe assa ults 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. Stat. An n. § 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(g); Kan. Stat. Ann. § 21

- 5413; Ky. Re v. 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. Ann. Stat. § 565.050; Mont. Code Ann. § 45

- 5

- 202(1); Neb. Rev. Stat.

§ 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(c); N.D. Cent. Code Ann. § 12.1

- 17

- 02; Ohio Rev. Code Ann. § 2903.11;

O kla. 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. Rev. Code Ann. § 9A.36.011; Wis. Stat.

Ann. § 940.19; Wyo. Stat. Ann. § 6

- 2

- 502.

41 Compare United States v. Scott

, 954 F.3d at 89

– 92 (holding clause inapplicable),

with id. at 105

– 09 (Raggi, J.

, dissenting) (concluding that clause applied to first

degree manslaughter).18

- 163

- cr

United States v. Scott

52 point is now vacated

, and our dissenting colleague’s efforts to defend

it confer no weight. See Pooler, J.

, Dissenting Op.

, post at 2 9

– 3 4

. W e

need not ourselves decide the question because we hold Scott’s first

degree manslaughter convictions to be for violent crimes under the

ACCA and Career Offender Guideline force clause s. See United States

v. Tabb

, 949 F.3d 81, 83 n.3 (2d Cir. 2020) (“Because [New York]

attempted assault in the second degree

. . . qualifies as a crime of

violence under the [Guidelin e’s] Force Clause, we need not determine

whether it would also meet the enumerated offenses clause definition

of a crime of violence.”).

In sum, b ecause Scott stands convicted of at least three prior

violent crimes under the ACCA and Career Offender Guid eline force

clauses

, the district court erred in vacating his original sentence and

in resentencing him without applying the ACCA mandatory

minimum and Career Offender Guideline enhancement

. We,

therefore, vacate the reduced sentence reflected in the amen ded

judgment, and we remand the case to the district court with directions

that it reinstate the original sentence and judgment consistent with

this opinion.

CONCLUSION

To summarize, we conclude as follows :

(1) F irst

- degree manslaughter in violation of N ew York Penal

Law § 125.20(1) is categorically a “violent felony” under ACCA and a

“crime of violence” under the Career Offender Guideline because the

crime ’ s element s require the “use

. . . of physical force against the

person of another .” 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2 (a) (1)

. Specifically, the elements require that a defendant (1) cause death

while (2) intending to cause at least serious physical injury

, and the18

- 163

- cr

United States v. Scott

53 Supreme Court has stated that the “knowing or intentional c ausation

of bodily injury necessarily involves the use of physical force,” United

States v. Castleman

, 572 U.S. at 169 ; accord Villanueva v. United States

,

893 F.3d at 128

– 29

.

(2) The possibility of committing New York first

- degree

manslaughter by omissio n warrants no different conclusion because

(a) criminal law generally, and New York law specifically,

recognize omission as “action” sufficient to support

criminal culpability

, see N.Y. Penal Law § 15.00(5) ;

(b) t he ordinary meaning of “use” applies as much to a use

of physical force by omission as by commission; and

(c) p recedent holds that

(i) the relevant physical force for purposes of

federal law is that which causes physical

injury to the victim, not that which is

p hysically performed by a defendant ; and

(ii) it is a defendant’s knowing or intentional

causation of injury by means of that force

,

not a defendant’s physical acts, that

determines his use of force. See United States

v. Castleman

, 572 U.S. at 169; Villanueva v.

United States

, 893 F.3d at 128

.

(3) The district court

, therefore

, erred in concluding that Scott’s

two convictions for New York first

- degree manslaughter d o not

qualify as “violent felonies” under ACCA and “crimes of violence”

under the Career Offender Guideline, and in vacating Scott’s original

sentence and resentencing him.18

- 163

- cr

United States v. Scott

54 Accordingly, we VACATE the panel decision, REVERSE the

district court’s grant of Scott’s § 2255 motion, VACATE the sentence

reflected in the amended judgment, and REMAND t he case to the

district court with directions to reinstate Scott’s original sentence and

judgment

.P ARK

, Circuit Judge

, joined by L IVINGSTON

, Chief Judge

, C ABRANES

,

S ULLIVAN , and N ARDINI

, Circuit Judges , concurring:

I join the majority’s excellent opinion in full and write

separately only to note the absurdity of the exercise we have now

completed. The en banc court convened to decide whether Mr. Scott’s

two convictions for first

- degree manslaughter

— one for shooting a

man in the face and the other for stabbing a man to death

— count as

“violent felonies” under ACCA (or as “crimes of violence” under the

Guidelines). The question answers itself to any layperson with

common sense. But judges tasked with applying the so

- c alled

“categorical approach” are required to ignore the actual facts before

them and instead to theorize about whether certain crimes could be

committed without using violent force. And so that is what we have

done in this case.

As a growing number of j udges across the country ha ve

explained, the categorical approach perverts the will of Congress,

leads to inconsistent results, wastes judicial resources, and

undermines confidence in the administration of justice

. See, e.g.

,

Mathis v. United States , 136 S. Ct. 2243, 2258 (2016) (Kennedy, J.

,

concurring) (“[T] oday ’ s decision is a stark illustration of the arbitrary

and inequitable results produced by applying an elements based

approach to this sentencing scheme. ”); id. at 2268

– 69 (Alito, J.

,

dissenting) ( “ The Court ’ s approach calls for sentencing judges to

delve into pointless abstract questions. . . . A real

- world approach

would avoid the mess that today’s decision will produce.” ) ; Lopez

Aguilar v. Barr , 948 F.3d 1143, 1149 (9th Cir. 2020) (Graber, J.

,

concurring) (“ I write separately to add my voice to the substant ial

chorus of federal judges pleading for the Supreme Court or Congress

to rescue us from the morass of the categorical approach . The

categorical approach requires us to perform absurd legal gymnastics,2 and it produces absurd results. ” (citations omitted) ); United States v.

Battle , 927 F.3d 160, 163 n.2 (4th Cir. 2019 ) (Quattlebaum, J. )

(“Through the Alice in Wonderland path known as the ‘categorical

approach,’ we must consider whether Battle’s assault of a person with

the intent to murder is a crime of vi olence. While the answer to that

question might seem to be obviously yes, it is not so simple after

almost 30 years of jurisprudence beginning with Taylor .”); United

States v. Escalante , 933 F.3d 395, 406

– 07 (5th Cir. 2019) (Elrod, J. ) (“In

the nearly thr ee decades since its inception, the categorical approach

has developed a reputation for crushing common sense in any area of

the law in which its tentacles find an inroad.

. . . Perhaps one day the

Supreme Court will consider revisiting the categorical ap proach and

setting the federal judiciary down a doctrinal path that is easier to

navigate and more likely to arrive at the jurisprudential destinations

that a plain reading of our criminal statutes would suggest.”

(footnotes omitted) ); United States v. Bur ris , 912 F.3d 386, 407 (6th Cir.

2019 ) ( en banc) ( Thapar, J. , concurring) (“A casual reader of today’s

decision might struggle to understand why we are even debating if

ramming a vehicle into a police officer is a crime of violence. The

reader’s struggle would be understandable. The time has come to

dispose of the long

- baffling categorical approach.”); United States v.

Douglas , 907 F.3d 1, 14 (1st Cir. 2018) (Lynch, J. ) ( “O n the whole, it is

at least as practical to allow a jury to parse carefully between crimes

based on specific real

- world conduct rather than, under a categorical

approach, to force judges to be willfully blind to particular facts and

thus to go down the rabbit hole to a realm where we must close our

eyes as judges to what we know as men a nd women.” (cleaned up) );

United States v. Williams , 898 F.3d 323, 337 (3d Cir. 2018) (Roth, J.

,

concurring) (“ I write separately because of my concern that the

categorical approach, along with its offspring, the modified3 categorical approach, is pushing u s into a catechism of inquiry that

renders these approaches ludicrous. ”); Cradler v. United States

,

891 F.3d 659, 672 (6th Cir. 2018) (Kethledge, J. , concurring)

(“Whatever the merits of [the categorical] approach, accuracy and

judicial efficiency are not among them

. . . . ”); United States v. Brown

,

879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J. , concurring) (“All good

things must come to an end. But apparently bad legal doctrine can

last forever, despit e countless judges and justices urging an end to the

so

- called Taylor categorical approach.”) ; Ovalles v. United States

,

905 F.3d 1231, 1253 (11th Cir. 2018) (en banc) (Pryor, J. , concurring )

(“ How did we ever reach the point where this Court, sitting en b anc,

must debate whether a carjacking in which an assailant struck a 13

-

year

- old girl in the mouth with a baseball bat and a cohort fired an

AK

- 47 at her family is a crime of violence? It’s nuts. And Congress

needs to act to end this ongoing judicial cha rade .”); United States v.

Chapman , 866 F.3d 129, 139 (3d Cir. 2017) (Jordan, J. , concurring)

(“Forcing judges to close their eyes to what is obvious promotes

inefficiency and guarantees difficult

- to

- explain sentences.”); United

States v. Valdivia

- Flores , 8 76 F.3d 1201, 1210 (9th Cir. 2017)

(O’Scannlain, J. , specially concurring) (“I write separately to highlight

how [this case] illustrates the bizarre and arbitrary effects of the ever

spreading categorical approach for comparing state law offenses to

federa l criminal definitions. ”); United States v. Faulls , 821 F.3d 502, 516

(4th Cir. 2016) (Shedd, J. , concurring) (“[T]he categorical approach is

the antithesis of individualized sentencing; we do not consider what

the individual to be sentenced has actually d one, but the most lenient

conduct punished by his statute of conviction.”) ; United States v.

Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J. , concurring)

(“[T]he categorical approach can serve as a protracted ruse for

paradoxically finding even th e worst and most violent offenses not to4 constitute crimes of violence.”); United States v. Aguila

- Montes de Oca

,

655 F.3d 915, 917 (9th Cir. 2011) (en banc) (Bybee, J. ) (“In the twenty

years since Taylor , we have struggled to understand the contours of

th e Supreme Court’s [categorical approach] framework. Indeed, over

the past decade, perhaps no other area of the law has demanded more

of our resources.”).M ENASHI

, Circuit Judge

, concurr ing in part and concurring in the

judgment :

I agree with the court that first

- degree manslaughter in

violation of section 125.20(1) of the N ew Y ork Penal Law is a violent

felony under the Armed Career Criminal Act (“ACCA”) and a crime

of violence under the Career Offender Guideline because it has as an

element the “use ... of physical force against the person ... of

another,” 18 U.S.C. § 924(e)(2)(B)(i), even though it may be committed

by omission.

I disagree with the court’s opinion only insofar as it insists that

this conclusion follows from the “ ‘ ordinary, ’ ‘ natural, ’ ‘ everyday

meaning ’ ” of the statutory language. Ante at 2 2

. 1 In my view, the

court’s argument depends on a specialized, legal meaning of the

statutory text that follows from how the criminal law and controlling

precedent treat omissions and assign culpability. The court explains

that “omission

— the breach of a legal duty to act”

— has “a spe cialized

meaning at law, which equates not to inaction , but to action supporting

criminal culpability” and therefore “an omission is as much an ‘act’

under the criminal law as a person’s voluntary physical movements.”

Id. at 24 , 3 9

. Applicable precedent holds that “a defendant’s use of

[physical] force does not depend on his having forceful contact

— or

inde ed any physical contact

— with his injured victim” but rather

“what matters is that the defendant must have knowingly and

intentionally caused an injury that can result only from the use of

physical force.” Id. at 2 8 (describing United States v. Castleman , 5 72 U.S.

157 (2014)). For these reasons, when a defendant “ breaches a legal

duty to check or redress force already in motion ,” he may have taken

1 Unless otherwise noted, “ante” refers to the opinion of the court.2 “no physical action” but his conduct is nevertheless “ culpable action in

the eyes of the law” because the law de ems it to be “the action that

causes death by the use of violent force.” Id. at 26

- 27 . The law thereby

considers the defendant to use force when he “knowingly avails

himself of the violent force that results in death.” Id. at 30

.

The court assumes, as cour ts normally do, that when Congress

drafted the statutory language in the ACCA, “it was aware of these

background [legal] principles recognizing that the elements of a crime

... can be satisfied by acts of omission as well as acts of commission.”

Id. at 35

- 36

. Because the purpose of the ACCA’s force clause “ is to

define a ’ violent felony ’ by reference to the elements of such a crime ,”

it makes sense to understand th e ACCA’s reference to those elements

in the way the elements are understood. Id at 35

. I agree w ith the

court’s overall argument and therefore concur in the judgment.

It is hard , however, to conclude that this argument simply

applies the “everyday meaning ” of ordinary speech. Id. at 22

. Rather,

the panel was right that “ the ordinary meaning of the t erms of ACCA

are not satisfied by inaction” or omission. United States v. Scott , 954

F.3d 74, 87 (2d Cir. 2020)

. Yet t hat linguistic point is not dispositive.

“When the American legal system interprets a text, the process often

looks nothing like a straigh tforward search for linguistic meaning.” 2

The ultimate objective is to determine the meaning the law assigns to

the text and therefore its legal effect. 3 In this case, e ven if an ordinary

2 William Baude & Stephen E. Sachs, The Law of Interpretation , 130 H ARV

. L.

R EV

. 1079, 1088 (2017)

.

3 See id. at 1083 (“The crucial question for legal interpreters isn’t ‘what do

these words mean,’ but something broader: What law did this instrument3 speaker of English might assume that a “use of physical force” entails

a physical act, the legal meaning of the phrase includes omissions

because the law treats an omission the same as a physical act

, and we

properly assume that Congress is familiar with that legal background

when it legislates. I would not col lapse the distinction between the

ordinary meaning and the legal meaning because the distinction has

important implications for how the categorical approach is applied.

I

In my view, the ordinary meaning of “use of physical force”

does not include an omis sion or failure to act.

First, the ordinary meaning of 18 U.S.C. § 924(e)(2)(B)(i) cannot

be determined from reading the term “use” in isolation from the

statutory phrase “use

... of physical force

. ” A few “ words together

may assume a more particular meaning than those words in

make? How does it fit into the rest of the corpus juris ? What do ‘the legal

sources and authorities, taken all together, establish ’?”); see also John O.

McGinnis & Michael B. Rappaport, The Constitution and the Language of the

Law , 59 W M

. & M ARY L. R EV . 1321, 1326 (2018) (“A document written in the

language of the law ... contains both ordinar y language and legal

language.”); A NTONIN S CALIA

, Common

- Law Courts in a Civil Law System: The

Role of United States Federal Courts in Interpreting the Constitution and Laws

, in

A M ATTER O F I NTERPRETATION : F EDERAL C OURTS A ND T HE L AW 3, 17 (1997)

(noting that in statutory interpretation we look for “the intent that a

reasonable person would gather from the text of the law, placed alongside

the remainder of the corpus juris ”); H.L.A. H ART

, Definition and Theory in

Jurisprudence

, in E SSAYS IN J URISPRUDENCE AND P HILOSOPHY 21, 26 (1983)

(“[T]he language involved in the enunciation and application of rules

constitutes a special segment of human discourse with special features

which lead to confusion if neglected.”).4 isolation

, ” FCC v. AT&T Inc. , 562 U.S. 397, 406 (2011) , and that is the

case here

. O ne ought to identify the ordinary meaning of the relevant

phrase whenever “two words combine to produce a meaning that is

not the mechanical compositio n of the two words separately.” 4 It is

important not to isolate individual words in a statutory phrase

because “[w]hat a word signifies depends not only on generic

properties of the conceptual domain, but on the situation being

described at the moment,” 5 and therefore meaning is lost by

considering the words in isolation. 6 “An ‘American flag’ could

literally encompass a flag made in America,” but that is not the

ordinary meaning of the phrase

. Bostock v. Clayton C n ty. , 140 S. Ct.

1731, 1826 (2020) (Kavanaugh, J., dissenting).

Second, the ordinary meaning of a phrase is just that: the

meaning associated with the ordinary or prototypical use of the phrase

4 W ILLIAM N. E SKRIDGE J R

., I NTERPRETING L AW : A P RIMER O N H OW T O R EAD

S TATUTES A ND T HE C ONSTITUTION 44

- 45 (2016).

5 H ERBERT H. C LARK

, A RENAS O F L ANGUAGE U SE 372 (1993).

6 See Zarda v. Altitude Express, Inc. , 883 F.3d 100, 144 n.7 (2d Cir. 2018)

(Lynch, J., dissenting) (“Legislation ca nnot sensibly be interpreted by

stringing together dictionary synonyms of each word and proclaiming that,

if the right example of the meaning of each is selected, the ‘plain meaning’

of the statute leads to a particular result. No theory of interpretation,

including textualism itself, is premised on such an approach.”); Helvering v.

Gregory , 69 F.2d 809, 810

- 11 (2d Cir. 1934) ( L. Hand , J.) (“[T]he meaning of

a sentence may be more than that of the separate words, as a melody is more

than the notes, and no degree of particularity can ever obviate recourse to

the setting in which all appear, and which all collectively create.”); N.Y. Tr.

Co. v. Comm’r , 68 F.2d 19, 20 (2d Cir. 1933) ( L. Hand , J.) (“[A] sterile

literalism

... loses sight of the forest for the trees .”).5 rather than any meaning that is linguistically possible

. See

, e.g.

, Chisom

v. Roemer, 501 U.S. 380, 410 (1991) (Scalia, J., dissenting) ( “[O]ur job is

not to scavenge the world of English usage to discover whether there

is any possible meaning ... which suits our preconception [of] the

statute.”). T he phrase “use of physical force ” prototypically refers to

assertive physical contact

— “ punches, kicks, slaps and body

slams ” 7

— but not to omissions. 8

Yet t he court relies on the idea that it is linguistically possible

to say one “use [ s ] ” physical force when one “derive [ s ] service from

s uch force .” Ante at 26

. I t is admittedly possible to say that a person

“use s physical force” whenever she drives a car and it propels her

forward, but that is not an ordinary way to describe driv ing

. N or is it

the prototypical meaning associated with “use of physical force.” 9 I

7 Rachel Mendleson & Wendy Gillis, Police punches, kicks, slaps and body slams

are going untracked in Ontario. That’s because much of the physical force officers

use is not reported

— and there are growing calls for that to change

, T ORONTO S TAR

(Dec. 16, 2020), https://bit.ly/3bQesal (last visited Jan. 18, 2021).

8 The Corpus of Contemporary American English

— the most widely used

corpus of American English

— contains forty

- seven non

- specialist instances

of “use of physical force” and all refer to physical contact; none plausibly

refer to “deriv[ing] service from” a preexisting physical force. Ante at 2 6

. Corpus linguistics illustrates the prototypical uses of word s or phrase s

. See

State v. Rasabout , 356 P.3d 1258, 1275 (Utah 2015) (Lee, A ssoc

. C.J.,

concurring in part and concurring in the judgment); Thomas R. Lee &

Stephen C. Mouritsen, Judging Ordinary Meaning , 127 Y ALE L.J . 788 (2018) ;

see also Kevin P. Tobia, Testing Ordinary Meaning , 134 H ARV

. L. R EV . 726, 753

(2020) (noting that in experiments “ users of legal corpus linguistics tended

to identify prototypical examples ”).

9 The court acknowledges tha t when a person derives service from physical

force for the purpose of transportation, “one would not ordinarily say that6 would adhere to the principle that the “ordinary meaning” of a term

is its prototypical meaning rather than a possible meaning.

I n Smith v. United States , 508 U.S. 223 (1993), on which the

court’s opini on relies, the Supreme Court arguably departed from this

principle and relied on possible meanings

. See id. at 242 (Scalia, J.,

dissenting) (“The Court does not appear to grasp the distinction

between how a word can be used and how it ordinarily is used.”)

. 10

Indeed, Justice Scalia pointed to Smith to illustrate “a degraded form

of textualism that brings the whole philosophy into disrepute.” 11 I

would not extend Smith ’s conception of “ordinary meaning” to the

circumstances of this case. The Supreme Court has limited the reach

of Smith

, see Watson v. United States , 552 U.S. 74, 81 (2007), and at least

one Justice disavowed it. “I am persuaded that the Court took a

wrong turn in Smith v. United States

, ” wrote Justice Ginsburg.

[the] person is using physical force.” Ante at 2 4 n.15. Yet the court insists

that when a person derives service from physical force f or the purpose of

causing injury , “one would easily say just that.” Id. The court’s example

— a

person who “drives the car into a crowd”

— is one in which the person

actively employs force against others rather than merely derives service

from such force. Id. An analogous person who simply derives service from

the car’s force by o mitting to act for the purpose of causing injury would

not ordinarily be described as using physical force.

10 See also Smith , 508 U.S. at 242 (Scalia, J., dissenting) (“When someone asks,

‘Do you use a cane?,’ he is not inquiring whether you have your

gra ndfather’s silver

- handled walking stick on display in the hall; he wants

to know whether you walk with a cane. Similarly, to speak of ‘using a

firearm’ is to speak of using it for its distinctive purpose, i.e. , as a weapon.”).

11 S CALIA

, supra note 3 , at 23 & n.30; see also id . at 24 (“[T]he good textualist

is not a literalist.”).7 “ Accordingly , I would overrule Smith , and thereby render our

precedent both coherent and consistent with normal usage. ” Id. at 84

(Ginsburg, J., concurring in the judgment). 12

II

Even though the ordinary meaning of the phrase “use of

physical force” entails a physical act

, the legal meaning of that phrase

includes culpable omissions.

The court’s opinion articulates the reasons why : the criminal

law equate s omission with action whe n a legal duty exists

, 13 and

12 The agreement between Justices Scalia and Ginsburg reflects a larger

critique by commentators. See, e.g

., Amy Coney Barrett, Assorted Canards of

Contemporary Legal Analysis: Redux , 70 C ASE W. R ES

. L. R EV . 855, 85 7

- 59

(2020) ( describing the “ caricature ” of “ literalism ” the majority applied in

Smith v. United States and distinguishing it from sound textualism); Stefan

Th. Gries & Brian G. Slocum, Ordinary Meaning and C orpus Linguistics , 2017

B.Y.U. L. R EV

. 1417, 1454, 1462 (2017) (considering the “ infamous case ” of

Smith v. United States and concluding that “ the Court ’ s interpretation

... is

incompatible with the ordinary

- meaning approach the Court claims it is

applying ”); L AWRENCE M. S OLAN

, T HE L ANGUAGE OF S TATUTES : L AWS AND

T HEIR I NTERPRETATION 57 (2010) (noting that the analysis in Smith “ was not

really about the ordinary meaning ”); John F. Manning, The Absurdity

Doctrine , 116 H ARV

. L. R EV . 2387, 2460

- 61 (2003 ) ( contrasting the “ literal

interpretation of ‘ using a firearm ’” in Smith , which produced “ results that,

to many, seem absurd or unjust ,” with “ modern textualists ” who “ view the

text [] in context ”); William N. Eskridge, Jr., All About Words: Early

Understandings of the “ Judicial Power ” in Statutory Interpretation, 1776

- 1806

,

101 C OLUM

. L. R EV . 990, 1 093 n.509 (2001) ( “ Scalia ’ s dissenting opinion in

Smith v. United States is exemplary of a reasonable user textualism which is

se nsitive to context and even equity .”) (internal citation omitted)

.

13 Ante at 34 (“[T]he ‘act’ required by law is not dependent on a defendant’s

physical movements. Rather, the law recognizes that a person can also ‘act’8 applicable precedent treats a defendant’s knowing causation of

bodily injury as a use of physical force. 14 Once we acknowledge, as all

parties here must , that when a defendant “sprinkles poison in a

victim’s drink,” the “‘use of force ’

... is not the act of ‘sprinkling’ the

poison ” but is “ the act of employ ing poison knowingly as a device to

cause physical harm ,” Castleman , 572 U.S. at 171 (alteration omitted),

we are already applying a specialized rather than ordinary meaning

of “use of force.”

Terms in legal documents often have a “specialized meaning”

un der the law, 15 and indeed the purpose of the ACCA’s force clause

is “to define a ‘violent felon y ’ by reference to the elements” of state

law crimes, so the ACCA is properly read to reflect this legal

to commit a crime by failing to perform a legal duty.”) (citing 1 W AYNE R.

L A F AVE

, S UBSTANTIVE C RIMINAL L AW §§ 6.1( a)

- (e), 6.2 (3d ed. 2018);

1 C HARLES E. T ORCIA

, W HARTON ’ S C RIMINAL L AW § 25 (15th ed. 1993)); see

N.Y. Penal Law § 15.00(5) (“‘To act’ means either to perform an act or to

omit to perform an act.”); id. § 15.00(3) (defining “omission” as “a failure to

perf orm an act as to which a duty of performance is imposed by law”); id.

§ 15.10 (“The minimal requirement for criminal liability is the performance

by a person of conduct which includes a voluntary act or the omission to

perform an act which he is physically capable of performing.”) ; see also ante

at 3 5 n. 25

.

14 Ante at 29 (“[F]ollowing Castleman , ‘the inquiry as to “force,” for federal

law purposes, focuses on the causation of a consequence, rather than the

physical act of initiating an action that leads to a consequence.’”) (quoting

Villanueva v. United States , 893 F.3d 123, 128 (2d Cir. 2018), which in turn

applies Castleman , 572 U.S. at 1 69 ).

15 Ante at 34 (quoting A NTONIN S CALIA & B RYAN A. G ARNER

, R EADING L AW :

T HE I NTERPRETATION O F L EGAL T EXTS 73 (2012) ).9 understanding

. 16 When interpreting the ACCA, moreover, t he

Supreme Court has emphasized the common law back ground against

which Congress legislates

. 17 As the court notes, the legal treatment of

omissions as culpable acts is rooted in the common law. 18

Given this background, a reasonable legal interpreter familiar

with the corpus juris would recognize that a crime which has as an

element the “use

... of physical force” would comfortably include a

crime , such as manslaughter

, that may be committed by omission. 19

16 Id. at 35.

17 See Stokeling v. United States , 139 S. Ct. 544, 551 (2019) (noting that

“Congress, in the original ACCA,” included “a clear reference to the

common law of robbery” and that the common law continues to inform

“the ‘force’ required”) ; Castleman , 572 U.S. at 162

- 63 (“Congress

incorporated the common

- law meaning of ‘force’

— namely, offensive

touching

— in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of

domestic violence.’”); Curtis Johnson v. United States , 559 U.S. 133, 139 (2010)

(noting the general rule that “a common

- law term of art should be given its

established common

- law meaning” but that “[u]ltimately, context

determines meaning”). Here, unlike Curtis Johnson

, there is no

countervailing context

.

18 Ante at 2 5 (noting “the common law background recognizing omission as

action”); id. at 3 4 (noting that the equivalency between omission and action

is “originally rooted in common law”).

19 See Moskal v. United States , 498 U

. S

. 103, 121 (1990) (Scalia , J., dissenting)

( “[I]n declaring [the layman ’ s understanding ] to be the governing criterion,

rather than the specialized legal meaning [of] the term

... the Court makes

a mistake .”); s ee also J OEL P RENTISS B ISHOP

, C OMMENTARIES ON THE W RITTEN

L AWS AND T HEIR I NTERPRETATION 4

- 5 (1882) ( “ Whatever may be the rules of

interpretation, and however known, obviously no statute can be

understood except by him who understands the prior law. ... Every statute,

as just said, combines and operates with the entire law whereof it becomes10 III

Recognizing t h e distincti on between ordinary and legal

meaning can reduce the “absurdity” or “inconsistent results” that

sometimes afflict applications of the categorical approach. Ante (Park,

J., concurring) at 1. I nterpretative consistency helps to prevent absurd

results.

In th is case, for example, the ordinary meaning of “use ... of

physical force” does not include omissions. See supra Part I. But the

ordinary meaning of the state manslaughter statute

— in which the

relevant phrase is that the defendant “causes the death” of the

vi ctim

— does not include omissions either. N .Y. Penal Law

§ 125.20(1). At oral argument, Scott’s counsel acknowledged that one

would not conclude, based on the ordinary meaning of the state

statute, that it could be violated by omission. 20 As the court explai ns,

Scott’s argument relies on the “specialized meaning” or “legal

definition” of the terms of the state statute to conclude that first

degree manslaughter may be committed by omission, but his

argument then shifts to the ordinary meaning when interpreting the

language of the ACCA to exclude manslaughter by omission from the

a pa rt; so that, without a discernment of the original mass, one can form no

correct idea of the action of the new element.”).

20 Tr. of Oral Arg., Nov. 6, 2020, at 80 (“[W]hen New York law deems the

inaction the cause of death, that’s a kind of legal fiction. It’s by operation of

law. Because we know the actual cause of death is the heart attack or the

asthma attack or what have you. But the reason that we as a society hold

the caregiver responsible for that and therefore deem him the cause is that

he has a du ty to act , and [he] ... didn’t act .”) ; Oral Arg. Audio Recording at

1:53:49

.11 category of violent fel onies. Ante at 2 5 . The court faults Scott for

offering “no rationale” for applying inconsistent interpretive

approaches “at different steps in the categorical analysis.” Id.

The district court also relied on the se inconsistent interpretive

approach es to th e state statute and the ACCA . To conclude that first

degree manslaughter under section 125.20(1) of the N ew Y ork Penal

Law may be committed by omission, one must read “ causes the

death” in accordance with a legal meaning established by reference to

legal p rinciples and precedents external to the statutory text. 21 But to

conclude that the phrase “use ... of physical force” excludes crimes

committed by omission from the definition of “violent felony,” the

district court appl ied only the ordinary meaning of the phrase while

ignoring the legal principles and precedents that show it encompasses

21 See United States v. Scott , No. 06

- CR

- 988, 2017 WL 2414796, at *2 (S.D.N.Y.

June 2, 2017) (“ In Steinberg , the Court of Appeals held that a parent’s failure

to fulfill his non

- delegable duty to provide his child with medical care,

which is an omission, can form the basis of a homicide charge and can

support a charge of first degree manslaughter, as long as th ere is sufficient

proof that the defendant intended to cause serious physical injury. The

Steinberg Court noted that, under the Penal Law, ‘ the failure to perform a

legally imposed duty ’

— i.e. , inaction

— is a culpable omission. Based on

these principles, the Steinberg Court held that the denial of medical care to

the child was sufficient to support the defendant’s first degree

manslaughter conviction. ”) (internal citations omitted); see also People v.

Steinberg , 79 N.Y.2d 673, 680 (1992) (“The Penal Law provi des that criminal

liability may be based on an omission, which is defined as the failure to

perform a legally imposed duty. Parents have a nondelegable affirmative

duty to provide their children with adequate medical care. Thus, a parent’s

failure to fulfi ll that duty can form the basis of a homicide charge.”)

(internal citations omitted).12 crimes of omission. 22 That interpretive mismatch

— reading the state

statute in accordance with its legal meaning but the ACCA in

accordance with its ordinary meaning

— determined in advance that

the state statute would not be a categorical match under the ACCA’s

force clause.

That is not a sensible way to apply the categorical approach. It

expands the state statute and narrows the ACCA, preventing the state

statute from being a categorical fit and making the approach more

likely to generate absurd results. One may lament “that’s the

categorical approach for you.” United States v. Mayo , 901 F.3d 218, 230

(3d Cir. 2018)

. But the categorical approach is “a means of effectuating

congressional intent,” United States v. Simms , 914 F.3d 229, 240 (4th

Cir. 2019) (en banc), and there is no reason to think Congress wanted

to produce such results.

A sounder approach would be for a court to apply the same

interpretive method to the state statute that it applies to the relevant

clause of the ACCA

— understanding each statute in accordance with

its legal meaning rather than oscillating between legal and ordinary

meaning “at different ste ps in the categorical analysis.” Ante at 2 5

.

That would re f lect a more reasonable application of the categorical

approach and the court’s obligation to determine the meaning the law

assigns to a text. 23

22 See Scott , 2017 WL 2414796, at *2 ( asserting that “an act of omission

... by

definition does not involve an act of any kind, let alone the use of force ”).

But see supra n ote 13 and accompanying text (noting that the criminal law

treats an omission as an act).

23 See supra note 3

.13 * * *

W hile the ordinary meaning of “use

... of physica l force” does

not include omissions

, the legal meaning does . Because a court’s

ultimate task is to give legal effect to a statute, the legal meaning takes

precedence over the ordinary meaning

. To avoid interpretive

mismatch, a court following the categoric al approach should evaluate

the legal meaning of both the state statute and the ACCA . I

understand the court’s decision to follow from the legal meaning of

the state statute and the ACCA, and therefore I concur in the court’s

opinion

— excepting only those p arts purporting to rely on ordinary

meaning

— and in the judgment.1 LEVAL, Circuit Judge , dissenting, joined by KATZMANN

, LOHIER, and 1

CARNEY, Circuit Judges , and joined in part by POOLER, Circuit Judge. 1 2

I respectfully dissent. I cannot join in requiring imposition of a harsh 3

mandatory minimum term of imprisonment

– a term that must be imposed 4

regardless of whether it is merited

– for actions that are not clearly within the 5

statute’s definition of the crime. I join in Judge Pooler’s fine opinion to the extent 6

it dissents from the imposition of ACCA’s ma ndatory minimum term of 15 years 7

imprisonment where ACCA’s definition of the offense as requiring “ the use

, 8

attempted use, or threatened use of physical force against the person of another ” 9

does not clearly apply to a crime that can be committed by doing n othing at all. 10

The legal basis for my opinion is the rule of lenity . That rule requires 11

criminal statutes to give clear notice and warning of the conduct that will be 12

punished

, s ee United States v. Bass , 404 U.S. 336, 34 7

- 48 (1971) , failing which, the 13

ambiguity will be interpreted in favor of the defendant

, s ee United States v. Santos

, 14

553 U.S. 507, 514 (2008)

. Reliance on the rule of lenity has a special importance 15

when the legislature has passed harsh mandatory sentences which are then 16

imposed for cri mes to which they do not clearly apply. Especially in a system in 17

1 Judge Pooler does not join in Judge Leval’s position on the Guidelines.2 which sentences are reviewable on appeal, statutes making harsh sentences 1

mandatory hardly ever serve a useful purpose, and inevitably guarantee 2

instances of serious, needless injustice. 3

The rule of lenity protects the public from being punished for conduct that 4

is not clearly prohibited. See id

. As explained by Justice Oliver Wendell Holmes 5

Jr.

, it is premised on fairness

– the notion that “ a fair warning should be given to 6

the world in language that the common world will understand, of what the law 7

intends to do if a certain line is passed. To make the warning fair, so far as 8

possible the line s hould be clear.” McBoyle v. United States , 283 U.S. 25, 27 (1931) ; 9

see also Bass , 404 U.S. at 348

. The rule was adopted in England in the late 10

seventeenth century as a means , in unclear cases, of circumventing the 11

mandatory death sentences Parliament had w idely imposed even for such low

12

level crimes as pickpocketing. See Sarah Newland, The Mercy of Scalia: Statutory 13

Construction and the Rule of Lenity , 29 H ARV

. C.R.

- C.L. L. R EV . 197, 200 (1994)

. The 14

rule enabled courts in cases of statutory ambiguity to avoid having to order 15

unjust executions. 16

The majority opinion devotes considerable ink to telling us what an 17

atrocious beast Scott is, what little justification he has to complain of lack of 183 notice, and how deserving he is of substantial punishment. If our concern were 1

limited to the effect of the majority ruling on Scott himself , I would not disagree 2

in the least that his conduct warrants severe punishment . (If the majority had 3

found the sentence ultimately imposed on h im by the District Court to be 4

unreasonably lenient and had remanded for imposition of a more severe 5

discretionary sentence, I would have no objection and might even concur.) But 6

the appropriateness of imprisoning Scott for 15 years does not make 15 years an 7

appropriate or fair sentence for everyone who will come within ACCA’s scope 8

on the basis of a New York first

- degree manslaughter conviction. When a court 9

interprets a statute, especially a statute that imposes a mandatory sentence, the 10

court cannot limi t its consideration to the effect of the statute on the particular 11

litigant before the court. Because the issue here is a mandatory sentence, the most 12

significant effect of the majority opinion is not that it requires a small increase in 13

Scott ’ s already su bstantial punishment, nor that it will mandate a long term of 14

imprisonment for deserving future defendants ( who regardless would receive 15

severe, substantially similar terms )

, but rather that it will require a 15

- year 16

imprisonment of defendants for whom a sentence of such harshness will be 17

unjust and for whom the statute does not give fair notice. 184 The ambiguity that justifies invocation of the rule of lenity in this case is 1

that ACCA’s definition of a “violent felony” ( an essentia l element of one of the 2

pathways to satisfaction of the statutory requirements ) does not clearly cover all 3

of the ways in which the New York crime of first

- degree manslaughter can be 4

committed. As thoroughly explained by Judge Pooler, the highest court of New 5

York has made unmistakably clear that manslaughter can be committed by doing 6

nothing when the defendant had a legal duty to prote ct the victim and the 7

defendant’s inaction wa s motivated by the intention to cause serious physical 8

injury. See People v. S teinberg , 79 N.Y.2d 673 , 680 (1992)

. ACCA , as noted above, 9

specifies that the term “ violent felony ” means a felony that “ has as an element 10

the use, attempted use, or threatened use of physical force against the person of 11

another

. ” 18 U.S.C. § 924(e)(2)(B) (i). While many forms of conduct punishable in 12

New York as first

- degree manslaughter undoubtedly fit within this definition, as 13

to other types of covered conduct , the question is ambiguous at least. The 14

majority opinion performs contortions in an effort to demonstrate that any 15

inaction that is intended to cause serious physical injury and cause s death 16

necessarily utilizes physical force . However, to make the case, it cho o ses 17

hypotheticals that favor its conclusion

– such as intent ionally declining to 185 intervene to prevent the victim from taking a drink known by the defendant

1

care taker to contain poison

, thus “using” the destructive force of the poison

. 2

Other hypothetical s, such as failing to provide food for one who is not capable o f 3

providing it for himself

, might yield a different answer , as the death would result 4

from lack of nutrition needed to fuel the operation of the body, rather than from 5

the introduction of an alien destructive force. 6

Suppose a 70

- year

- old woman ’s ACCA

- qualifying manslaughter 7

conviction occurred as follows. Her father, age 95, afflicted with a n incurable 8

degenerative disease that left h im paralyzed, suffering, without hope for better

, 9

and facing a certain , imminent, and excruciatingly painful death

, beg ged his 10

loving caregiver

- daughter to cease putting nutrition in his I V

, to allow him to 11

escape the torture by starving

. After long watching her father suffer as she 12

wrestled with her moral dilemma , she eventually complied as an act of love and 13

mercy

. She immediately confessed, and pleaded guilty to manslaughter. 2 14

May a legislature lawfully command a fifteen

- year sentence for such a 15

crime ? Undoubtedly, yes. Does ACCA’s specification of a “use of physical force 16

2 The additional requirements of her ACCA conviction are supplied by the fact

that, when she was 18 years old , she twice carried drugs for her drug

- dealing

boyfriend, and, when her father became infirm, he deeded to her his house and

its contents, which included his treasured hunting rifle.6 against the person of another ” unambiguously give “ fair warning ,” as the 1

Holmes formulation requires, that it covers not supplying nourishment ? I think 2

not. Many, furthermore, would think it a barbaric abuse to sentence the daughter 3

to imprisonment for 15 years. 4

I of course recognize that, while my hypothetical placed the withholding 5

of food in circumstances sympathetic to the defendant, the commission of 6

manslaughter in that fashion is probably more often, as in Ste in berg , a crime of 7

heartless and inexcusable cruelty. Every criminal case presents a unique 8

circumstance, and what is appropriate for most can nonetheless be 9

extraordinarily unjust for others. This is precisely why harsh mandatory sentences 10

inevitably become eng ines of needless injustice. 11

While harsh sentences are undoubtedly appropriate and desirable in many 12

cases

, t he lack of necessity or justification for making them mandatory, and the 13

serious injustices that such sentences inevitably produce are what motiva tes this 14

dissent. Any criminal punishment must balance the interests of society in 15

discharging the goals of the criminal law with the need of fairness to the 16

defendant. That balancing depend s on the specific facts of each case. Th e 17

sentencing of a six teen

- year

- old for killing his s tepfather to protect his mother 187 from brutal beatings pose s very different considerations from the sentencing of 1

one who committed a contract killing for pay

, or shot a stranger to death in order 2

to steal his Porsche

. A statute that mandates the same sentence for all of these 3

will fail to do justice. 4

The basic federal sentencing statute, 18 U.S.C. § 3553 , recogniz es the fact

5

dependent nature of sentencing . It r e quires courts to consider “the nature and 6

circumstances of the offense and the history and characteristics of the 7

defendant

, ” i d. § 3553(a)(1 ), as well as “the need for the sentence imposed (A) to 8

reflect the seriousness of the offense

, to promote respect for the law , and to 9

provide just punishment for the offense; (B) t o afford adequate deterrence to 10

criminal conduct; [and ] (C) to protect the public from further crimes of the 11

defendant

. ” I d. § 3553(a)(2). In what is called the “parsimony clause,” it further 12

requires courts to “impose a sentence sufficient, but not greater than necessary, 13

to comply with the purposes” of sentencing. Id. § 3553(a)

. 14

Harsh mandatory sentences require courts to disregard or violate the w ise 15

commands of § 3553

. Cf. United States v. Ministro

- Tapia , 470 F.3d 137, 14 2 (2d Cir. 16

2006) (“Plainly, if a district court were explicitly to conclude that two sentences 17

equally served the statutory purpose of § 3553, it could not, consistent with the 188 parsimony clause, impose the higher.”)

. Notwithstanding the careful

, fact

1

dependent analysis appropriately required by § 3553 before a sentence is 2

imposed, mandatory sentences strip away all consideration of the crucially 3

important circumstances that are unique to each defendant and each case. The 4

proposition that the legislature, necessarily ignoran t of the facts of a crime that 5

has not yet occurred, can di ctate in advance a more appropriate sentence than 6

the court that studies the facts of the case is, to say the least, not highly 7

persuasive. I do not question that the harsh sentences mandatorily imposed by 8

legislatures for serious crimes may well be approp riate in the large majority of 9

cases

. Nonetheless , there will inevitably be cases for which a one

- size

- fits

- all 10

mandatory sentence will inflict serious injustice. The question therefore arises 11

whether the need for a severe sentence in the large majority of cases justifies the 12

requirement to impose that sentence in the smaller number of cases where it will 13

cause i njustice. 14

It does not. In fact

, m andatory imposition of harsh sentences for serious 15

crimes serves little or no useful purpose. If the legal procedures in the federal 16

courts delegated the sentencing function to chimpanzees, there might well be a 17

utility for statutes precisely dictating minimum and maximum senten ces. But 189 s entencing is done by well qualified judges who , as required by law, study the 1

facts of the case and , when permitted to do so, decide on an appropriate sentence 2

p ursuant to the detailed standards of § 3553. Because most instances of serious 3

crimes appropriately call for substantial sentences, in the vast majority of cases 4

the sentencing judge will impose a sentence of substantial severity, one that is 5

not significantly different from the one mandated by the legislature , without 6

need for a mandatory sentencing statute . This is because the judges have the 7

same interest as the legislature in carrying out the purposes of the criminal laws. 8

And in the rare case in which a sentencing judge imposes a sentence that is 9

unreasonably lenient in light of the pe rtinent circumstances, the government may 10

appeal to have a substantively unreasonabl e sentence set aside. 3 See United States 11

v. Ramos , 979 F.3d 994, 998 (2d Cir. 2020) (“[W]e check the sentence to ensure

. . . 12

that the sentence is not unreasonably harsh or unreasonably lenient .”) ; s ee also

, 13

e.g.

, United States v. Mumuni , 946 F.3d 97, 113

- 14 (2d Cir. 2019) ( overturning an 14

3 Another, likely unintended, consequence of mandatory sentencing is that it

transfers discr etion from the sentencing judge

– who is constrained by 18 U.S.C.

§ 3553 and subject to judicial review

– to prosecutors, who have almost absolute

discretion to choose which charges to bring, and therefore which mandatory

sentences will apply. See Bordenki rcher v. Hayes , 434 U.S. 357, 364 (1978) (“[T]he

decision whether or not to prosecute, and what charge to file . . . generally rests

entirely in [the prosecutor’s] discretion.”).10 unreasonably lenient sentence that represented an 80% downward departure 1

from the recommend ed Guidelines range). 2

The net result is that the instances in which harsh mandatory sentencing 3

statutes substantially influence the sentence are not those involving offenders 4

who deserve the harsh sentences. Those defendants would receive similarly 5

harsh sentences regardless of whether the sentence was mandatory. At least 6

where the mandatory sentence chosen by the legislature reasonably comports 7

with just punishment (unlike the seventeenth c entury English Parliament’s death 8

se ntence for even minor crimes), the main practical effect of such statutes is to 9

cause serious injustice in a minority of cases by requiring far harsher sentences 10

than the facts of the case can justify

. 11

Courts are of course compelled to enforce statutory c ommands in the 12

circumstances to which they apply. I recognize also the Supreme Court’s caution 13

that the rule of lenity is to be sparingly employed

. See Shular v. United States , 140 14

S. Ct. 779, 787 (2020) ( “The rule [of lenity] ‘applies only when, after consulting 15

traditional canons of statutory construction, we are left with an ambiguous 16

statute. ’ ” (quoting United States v. Shabani , 513 U.S. 10, 17 (1994) ) )

. S tatutes 17

imposing harsh mandatory sentenc es prese nt a particularly compelling need for 1811 invocation of the rule of lenity. The 15

- year mandatory sentence required by 1

ACCA should be applied only to crimes to which it clearly applie s; its 2

requirement of “use of physical force against the person of another ” do e s not 3

clearly apply to a crime that can be committed by doing nothing

. 4

Turning now to the question whether New York first

- degree manslaughter 5

is a “crime of violence” for purposes of the “career offender” provision of 6

U.S.S.G. § 4B1.1(a), I do not join in Judge Pooler’s conclu sion that it is not, 7

although I recognize that the Guidelines definition of “crime of violence” is 8

identical to ACCA’s definition of “violent felony”

– as involving “the use, 9

attempted use, or threatened use of physical force against the person of another. ” 10

18 U.S.C. § 924(e)(2)(B) (i) ; U.S.S.G. § 4B1.2 (a) (1)

. Are my positions inconsistent ? I 11

do not think so. The significant difference is that the United States Sentencing 12

Guidelines, unlike ACCA’s requirement of a mandatory minimum sentence, do 13

not compel adherence to their terms. S ee United States v. Booker , 543 U.S. 220 14

(2005) ; Kimbrough v. United States , 552 U.S. 85 (2007) ; Gall v. United States , 552 U.S. 15

38 (2007)

. Courts are free to impose sentences outside the prescribe d Guidelines 16

ranges, either by depart ing in the manner expressly authorized by the Guidelines 1712 or by electing to sentence outside the Guidelines framework. Id. T h e Guideline s 1

do not compel unjust sentences. 2

A degree of ambiguity is therefore far more tolerable in a sentencing rule 3

that is merely advisory, and the need for resort to the rule of lenity is 4

considerably diminished . As there are reasonable arguments for classifying 5

manslaughter as a crime of viole nce, notwithstanding that manslaughter by 6

inaction, at least in some manifestations, does not necessarily involve use of 7

physical force, I would not invoke the rule of lenity with regard to the 8

Guidelines ’ career offender provision

. 4 9

For the reasons expl ained, I dissent from the majority’s application of a 10

harsh mandatory sentencing statute to a circumstance to which it does not clearly 11

apply, where th e majority’s debatable interpretation will cause serious injustice s 12

without any significant benefit to th e realization of the objectives of the criminal 13

law

. 14

4 I do not suggest that the rule of lenity has no application to the interpre tation of

the Guidelines. We ruled in United States v. Parkins , 935 F.3d 63, 66 (2d Cir. 2019)

, that it does, and I have no disagreement with that. My view is rather that the

reasons for enforcing the rule of lenity are more urgent and compelling when the

unavoidable consequence of the ambiguous provision would otherwise require

harsh fixed sentences on all defendants, deserving and undeserving alike, than

when the provision leaves the sentencing judge free to impose a sentence that is

fair and appropriate to the particular defendant.13 * * * 1POOLER, Circuit Judge , dissenting , joined by LEVAL and CARNEY

, Circuit 1

Judge s , in Parts I

- IV : 2

I respectfully dissent. The majority concludes that New York Penal Law 3

Section 125.20(1) , which criminalizes causing an individual’s death “[w]ith intent 4

to cause serious physical injury,” N.Y. Pen al Law § 125.20(1)

, is a violent felony 5

within the so

- called force clause of the Armed Career Criminal Act (“ACCA”), 18 6

U.S.C. § 924(e)(2)(B)(i) , n otwithstanding that Section 125.20(1) punishes the 7

failure to act in the face of a duty to do so

. I disagree. I also conclude that Scott 8

fails to qualify as a “career offender” under the United States Sentencing 9

Guidelines (“Guidelines”), as defined by eit her the force clause or the so

- called 10

enumerated offenses clause. See U.S.S.G. § 4B1.2(a)(1)

- (2)

. 11

For the many reasons already discussed in the original panel’s opinion, 12

United States v. Scott

, the law and logic dictate only one possible outcome: a crime 13

committed by omission

— definitionally

, no action at all

— cannot possibly be a 14

crime involving physical, violent force. See 954 F.3d 74, 77

- 92 (2d Cir. 2020)

. On 15

en banc review, t he majority finds this conclusion di stasteful because of the 16

nature of the crimes Scott committed. W hile I do not minimize the consequences 17

of Scott’s serious crimes , that is simply not a relevant consideration when 182 applying the modified categorical approach, which requires us to look at the 1

basic legal elements of a particular crime

. To avoid this conclusion , the majority 2

skews the import of applicable precedent, uses inapplicable precedent to fill gaps 3

in its reasoning, and unnecessarily broadens the application of mandatory 4

minimums, often an overly harsh and unproductive sentencing tool that has 5

been repeatedly criticized by experts on criminal justice and rehabilitati on

. 6

I. New York Penal Law Section 125.20(1) Is Not a Violent Felony Under the 7

ACCA. 8

At the outset, I address whether New York Penal Law Section 125.20(1) 9

may be committed by omission. As the categorical approach instructs, we must 10

determine the legally minimal conduct required for a defendant to be culpable 11

for a particular crime, disregarding what the defendant factually did. 1 We 12

consider only “realistic” readings of the criminal statute and require a defendant 13

to “at least point to his own case or other cases in which the courts in fact did 14

app ly the statute in the manner for which he argues.” United States v. Hill , 890 15

1 In the case of a divisible statute like this one, we apply a “modified” categorical

approach that permits us to focus exclusively on the elements of the subdivision

of the statute under which Scott was convicted. See United States v. Jones , 878 F.3d

10, 16 (2d Cir. 2017)

.3 F.3d 51, 56 (2d Cir. 2018) ( alterations and internal quotation marks omitted). Scott 1

did just that

. 2

The New York Court of Appeals has twice indicated that Section 125.20(1) 3

may be committed by omission. In People v. Steinberg

, it stated, “the failure to 4

obtain medical care can also support a first degree manslaughter charge, so long 5

as there is sufficient proof of the requisite mens rea

— intent to cause serious 6

physical injury.” 79 N.Y.2d 673 , 680 (1992 ) (italics in original). In Steinberg

, the 7

child’s need for medical care was precipitated by head trauma from an assault, 8

see id. at 678

- 79

, but the Court of Appeals nevertheless affirmatively addressed 9

the prosecutor’s sep arate liability theory based on omission, id. at 680 (“The 10

people’s theory . . . was that defendant performed both acts of commission 11

(striking Lisa) and acts of omission (failure to obtain medical care) . . . . ” 12

(emphasis added) ), and concluded that such an omission “can form the basis of a 13

homicide charge,” id

. (citation omitted). People v. Wong subsequently eliminated 14

any remaining confusion

, finding that , under Section 125.20(1), a “ passive 15

defendant . . . may be held criminally liable for failing to seek emergency medical 16

aid for a seriously injured child. ” 81 N.Y.2d 600 , 608 (1993) (internal quotation 17

marks omitted) ; see also id. at 606 (explaining that defendants were indicted and 184 tried on charges under, inter alia, Section 125.20(1))

. Th e categorical approach 1

requires a defendant to provide a “realistic” reading of the state’s law , avoiding a 2

“flight [] of fancy.” Hill , 890 F.3d at 56 . The New York Court of Appeals’ explicit 3

acknowledgement of criminal liability via omission is far from “l egal 4

imagination.” Id. at 56

. T herefore, Scott has met his burden of showing that 5

Section 125.20(1) may be committed by omission

. See Scott , 954 F.3d at 80

- 84

. 6

In any event , the government has abandoned its argument to the original 7

panel that Section 125.20(1) may not be committed by omission, a not

- so

- subtle 8

attempt to reconcile its overbroad interpretation of the scope of omission liability 9

used in its Guidelines argument with its position on the ACCA. 10

Accepting that Section 125.20(1) may be committed by omission, the 11

subsequent analysi s is relatively straightforward

. Because the minimal conduct 12

required to find culpability is omission in the face of a legal duty to act, w e must 13

consider whether this conduct qualifies as a predicate crime under the ACCA. As 14

the majority explains, the key question is whether this conduct is a “violent 155 felony,” that is, a crime that involves “ the use, attempted use, or threatened use 1

of physi cal force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i)

. 2 2

A plain reading of the statutory text reveals that it set s mandatory 3

minimum sentences for criminals who engage in “violent,” “physical force 4

against the person of another. ” Id. The Supreme Court has explained that this 5

phrase refers to the degree of force used in the execution of a crime

. See Johnson v. 6

United States , 559 U.S. 133 , 140 (2010)

. “[I] n the context of a statutory definition of 7

‘ violent felony,’ the phrase ‘physical force’ means violent force

— that is, force 8

capable of causing physical pain or injury to another person.” Id. at 140 9

(emphases in original) . In doing so, the Court disavowed the common law’s 10

definition of force in this context , concluding that crimes that may be “satisfied 11

by even the slightest offensive touching” are not violent felonies under the 12

ACCA; instead, the word “violent . . . connotes a substantial degree of force.” Id. at 13

2 This clause is at issue now because the Supreme Court invalidated the ACCA’s

so

- called residual clause in Samuel Johnson v. United States while Scott was

serving his sentence. 576 U.S. 591 , 606 (2015) . The definition of violent fe lony

previously included any crime involving “conduct that presents a serious

potential risk of physical injury to another.” Id. at 596 (internal quotation marks

omitted). The Supreme Court struck down this clause as unconstitutionally

vague, leaving the f orce clause as the sole possible basis for Scott’s mandatory

minimum sentence of 15 years under the ACCA. See id. at 606 ; see also 18 U.S.C.

§ 924(e)(2)(B)

.6 1 39

- 40 (emphasis added) (internal quotation marks omitted) . The opinion 1

describes qualifying acts as “ extreme and sudden

. . . ; furious; severe; vehement” 2

and “characterized by the exertion of great physical force or strength.” Id. at 140 3

(alteration and internal quotation marks omitted). Johnson e xplains that “the term 4

‘physical force’ . . . connotes force strong enough to constitute ‘power’,” 5

especially when used within the definition of “violent felony.” Id. at 142

. 3 6

Because Section 125.20(1) manslaughter may be committed by omission

— 7

e.g. , intentionally refusing to obtain medical attention for a child who is 8

experiencing an unprovoked serious medical condition

— it fails to reach the 9

threshold of great force , power, and violence set forth in Johnson . Indeed, Johnson 10

held that even a Florida felony offense of battery, which criminalized “actually 11

and intentionally touching” someone against their will, id. at 13 8 (internal 12

quotation marks omitted), was not the type of violent, powerful predicate crime 13

contempla ted by the ACCA. Where even minimal touching does not qualify as 14

relevant conduct, certainly, omission

— definitionally, inaction

— does not, either. 15

3 Despite these clear descriptions and Johnson ’s explicit statement that the clause

requires “a de gree of power that would not be satisfied by [even] the merest

touching,” Johnson , 559 U.S. at 139 , the majority concludes that Johnson says

nothing about what constitutes force and does not require the use of any physical

act. This interpretation, which d irectly contradicts the clear language of the

opinion, perplexes me.7 Therefore, Scott’s prior convictions do not subject him to the ACCA’s mandatory 1

minimum. 4 2

II. The Majority’s Conclusion Employs Faulty Reasoning

. 3

The majority rejects this straightforward reading of the ACCA and Johnson

, 4

concluding that crimes committed by omission also qualify as violent felonies. 5

This conclusion is misguided. Both the government and the majority rely heavily 6

on one line in United States v. Castleman to support their interpretation of violent 7

felony under the ACCA : “the knowing or intentional causation of bodily injury 8

necessarily involves the use of physical force.” 572 U.S. 157 , 169 (2014)

. The 9

problem with their position is that Castleman interpreted a different statute with a 10

different historical context and nowhere indicated that it sought to impact 11

Johnson ’s interpretation of “violent felony

. ” This application of Ca stleman fails to 12

account for what the Supreme Court repeatedly emphasized

— that Castleman ’s 13

holding was specific to its statutory and legal context and was in no way meant 14

to reverse or abrogate Johnson ’s interpretation of physical force

. 15

In Castleman , the Supreme Court contemplated whether a Tennessee crime 16

of intentionally or knowingly cau sing bodily injury qualified as “a misdemeanor 17

4 Two of Scott’s three prior convictions were for New York first

- degree

manslaughter. See Scott , 954 F.3d at 78

.8 crime of domestic violence” under 18 U.S.C § 922(g)(9). I d. at 159 (internal 1

quotation marks omitted)

. The Court explained that “perpetrators of domestic 2

violence are routinely prosecuted under generally appli cable assault or battery 3

laws,” suggesting that Congress intended to include “the type of conduct that 4

supports a common

- law battery conviction” under the category of 5

“misdemeanor crime of domestic violence.” Id. at 164 (internal quotation marks 6

omitted). The Court therefore embarked on defining a “ misdemeanor

- specific 7

meaning of ‘force’.” Id. (emphasis added). The phrase “domestic violence,” 8

unlike “violent felony,” does not connote “a substantial degree of force.” Id. at 9

164

- 65 (internal quotation marks o mitted). Instead, the very nature of domestic 10

violence often involves an escalating pattern of “seemingly minor” acts of 11

violence, “the accumulation” of which “over time can subject one intimate 12

partner to the other’s control.” Id. at 166

. The Supreme Court emphasized that it 13

is within this context of the peculiar nature of domestic violence that less forceful 14

acts, such as common

- law battery, qualify as a predicate crime under Section 15

922(g). The Castleman opinion carefully separated itself from the statutory context 16

of Johnson

. See id. at 163

- 67

. Justice Scalia, who wrote the majority opinion in 17

Johnson , concurred in part in Castleman , expressing concern that this splintered 189 understanding of “physical force” would muddy the waters and argui ng that 1

applying the Johnson understanding of force would have sufficed. See id. at 174

- 2

83 . In doing so, Justice Scalia reaffirmed that, within the context of Section 3

924(e)(2)(B)(i)

— the statute at issue here

— “ physical force [still ] means violent 4

force.” I d. at 176 (italics and internal quotation marks omitted). Nothing within 5

the Castleman opinion suggest s that the one line on which the government and 6

the majority rest their conclusion s was meant to abrogate, or even affect, 7

Johnson ’s interpretation of “violent felony.” Indeed, the Castleman Court explicitly 8

stated that it “d[id] not reach” the general issue of “[w]hether or not the 9

causation of bodily injury necessarily entails violent force.” Id. at 167

. 10

In Villanueva v. Unite d States

, a divided panel of this Circuit extracted the 11

above

- mentioned line from Castleman and interpreted it to mean that “‘force,’ for 12

federal law purposes, focuses on the causation of a consequence, rather than the 13

physical act of initiating an action that leads to a consequence.” 893 F.3d 123 , 128 14

(2d Cir. 2018) . I dissented from that decision, see id. at 132

- 39

, and continue to 15

hold that Villanueva wrongly discarded the accurate understanding of physical 16

force in Chrzanoski v. Ashcroft : “ [T] he intenti onal causation of injury does not 17

necessarily involve the use of force.” 327 F.3d 188 , 195 (2d Cir. 2003) . In 1810 Chrzanoski , we explained that a doctor deliberately withholding medicine from a 1

sick patient is an example of “intentionally causing physical injury without the 2

use of force.” Id. at 196 . This is analogous to the hypothetical first

- degree 3

manslaughter by omission we consider here. 4

Nevertheless, accepting that Villanueva is currently the law of our Circuit, 5

there is no need to significantly expand its holding to a materially distinct and 6

even further removed circumstance

— one where a criminal defendant commits 7

no act at all. In Villanueva , we contemplated a Connecticut first

- degree assault 8

statute, which required a defendant to cause injury “by means of a deadly 9

weapon or a dangerous instrument” “[w]ith intent to cause serious physical 10

injury to another person.” Villan ueva

, 893 F.3d at 127 (citing Conn. Gen. Stat. 11

§ 53a

- 59(a)(1) )

. There was no indication that this crime may be committed by 12

omission. Using a deadly weapon necessarily entails an act. Even the physically 13

minimal acts of “sprinkling . . . poison” or “pullin g the trigger on a gun,” 14

examples cited by the Castleman Court and referenced in Villanueva

, require some 15

action on the part of the defendant. Id. at 128 (brackets and internal quotation 16

marks omitted). Here, we instead consider a situation where the defendant does 17

nothing at all in the face of a legal duty to act, allowing an unprovoked set of 1811 circumstances to reach its fatal or injurious conclusion. The majority makes short 1

shrift of applying the same s et of principles to two distinct circumstances, 2

expanding Villanueva ’s answer to encompass Scott’s question. 3

The majority concludes the answer is the same , but they do so by shifting 4

the focus of “force ” from the defendant’s conduct to the victim’s injur y. They 5

posit that when a defendant intends harm to a victim, and the victim 6

subsequently experiences harm, the defendant has inherently used physical force 7

because the victim’s harm necessarily occurred as the result of some force. 5 In 8

doing so , the majo rity conflates actus reus , the physical act involved in 9

committing a crime, and mens rea

, the defendant’s mental intention behind the 10

act

. The law recognizes that one may cause a fatal car accident without intending 11

to (a crime, despite the lack of an inte ntional mens rea) and one may 12

intentionally kill an individual without lifting a finger (a crime, despite the lack 13

of an active actus reus)

. Although these concepts sometimes intersect and inform 14

5 Of course, in many cases, the defendant does initiate the force that ha rms the

victim, whether it is as overt as forcibly holding someone underwater or as

indirect as filling a pool in hopes that a targeted victim, who the defendant

knows cannot swim, may fall in and drown themselves. However, the very

nature of the question before us asks us to exclude the possibility that the

defendant did anything to bring about the victim’s harm. Therefore, the force

harming the victim is definitionally external to the defendant.12 each other, they are distinct elements. “It is commonly stated that a crime 1

consists of both a physical part and a mental part; that is, both an act or omission 2

(and sometimes also a prescribed result of action or omission, or prescribed 3

attendant circumst ances, or both) and a state of mind. ” 1 W AYNE R. L A F AVE

, 4

Substantive Criminal Law § 5.1 (3d ed. 2020) [hereinafter “ L A F AVE ”]. The ACCA 5

and Johnson specify that Section 924(e)(2)(B)(i) reaches a particular subset of 6

crimes, those that involve a violent and forceful physical component, or actus 7

reus. But the majority believes that an intent to kill or seriously injure

— the mens 8

rea

— necessarily involves a violent physical act

— the actus reus. This is simply 9

not true. 10

A common example of a crime by omission is a guardian who lets a child 11

die of a severe food allergy after the child consumes the dangerous food with no 12

provocation from the guardian. 6 Suppose the guardian had been long 13

6 The majority makes the unremarkable point that no New York Court of

Appeals case has encountered this exact factual scenario. See Maj. Op. at 49 n.37. I

do not suggest otherwise. What the Court of Appeals has made clear is that

omission liability is applicable to New York first

- degree manslaughter, see Wong

, 81 N.Y.2d at 606, 608 ; Steinberg , 79 N.Y.2d at 680

, so much so that the government

did not even argue otherwise on rehearing en banc. T his hypothetical simply

provides readers with an example of omission liability for discussion purposes, a

common ly used method when applying the categorical approach

. See e.g.

, Voisine

v. United States , 136 S. Ct. 227 2, 2279 (2016); Castleman , 572 U.S. at 171

.13 contemplating how to eliminate the child . The child inadvertently consumes a 1

dan gerous food, through no act of the guardian , and the guardian watches the 2

child die or collapse instead of calling for medical assistance, taking advantage of 3

a n unprovoked but dangerous situation . Although the guardian did so with the 4

intent to cause harm

, t he guardian also physically did not do anything to 5

facilitate the tragic end. This is not to say that the guardian’s actions are not 6

abhorrent or legally culpable. Indeed, by the New York Court of Appeals ’ 7

rulings , the guardian would likely be guilty of first

- degree manslaughter and be 8

punished accordingly. However, the guardian did not engage in a physically 9

violent act or use “ a substantial degree of force

. ” Johnson , 559 U.S

. at 140 (internal 10

quotation marks omitted) . This does not mean th e guardian would never be 11

convicted for the death of the ward o r that the guardian may not spend several 12

years in prison for it. It means that, later, should the guardian be guilty of federal 13

charges, the federal sentencing court would not be able to count this particular 14

conviction as one of the three predicate crimes needed to impose the fifteen

- year 15

mandatory minimum articulated in 18 U.S.C. § 924(e)

. 16

Next, t he majority conflates “action” with l egal liability and culpability. 17

The law does not view inact ion as action ; that would be physically and factually 1814 impossible . However, the law creates culpability in both situations. While the law, 1

and society, hold both active and passive criminals culpable, it is through 2

different mechanisms and distinct theories

. LaFave explains: “ Most crimes are 3

committed by affirmative action rather than by non

- action. But there are a 4

number of statutory crimes which are specifically defined in terms of failure to 5

act; and other crimes which, though not specifically so defined, may be 6

committed either by affirmative action or by failure to act under circumstances 7

giving rise to a legal duty to act. ” L A F AVE § 6.2. Moreover, New York, like many 8

other states, separately defines the terms “omission” and “act

. ” See N.Y. Pen al 9

Law § 15.00 (defining “[a]ct” as “a bodily movement” and “[o]mission]” as “ a 10

failure to perform an act as to which a duty of performance is impose d by law”). 11

It is therefore entirely reasonable that a mandatory minimum sentencing statute 12

may seek to distinguish between the two types of crimes. 13

The majority also focuses on the word “use” in the phrase “use of physical 14

force,” 18 U.S.C. § 924(e)(2)(B )(i)

, concluding that it is best interpreted as to 15

“employ it,” “avail oneself of it,” or “derive service from it.” Maj. Op. at 22 16

(brackets and internal quotation marks omitted). P er the majority’s 17

interpretation, in the example of the malicious guardian above, although the 1815 guardian did not set the events in motion, he or she nevertheless “use[d]” the 1

fatal force of the allergy to harm or kill the victim. 18 U.S.C. § 924(e)(2)(B)(i)

. 2

Although this may be one possible interpretation of the word, it is not a 3

straightforward one. And the majority’s supporting sources on this very specific 4

interpretation apply to materially different contexts not applicable here. For 5

example, i n Smith v. United States , the Supreme Court held that a criminal 6

defendant who uses a firearm as a currency of exchange in a drug deal, instead 7

of as a weapon

, is nevertheless subject to penalties under Section 924(c)(1), see 8

508 U.S. 223, 240

- 41 (1993), which specifies that a defendant who “uses or carries 9

a firearm, or who in furth erance of [a crime of violence or drug trafficking crime], 10

possesses a firearm,” shall be sentenced to at least five years

, 18 U.S.C § 924(c)(1). 11

Of course, the word “use,” just like any word, can mean a plethora of things 12

when divorced from contextualizin g words around it

. But the Supreme Court 13

was careful to clarify that “[l]anguage . . . cannot be interpreted apart from 14

context.” Smith , 508 U.S. at 229. Smith ’s interpretation of “use” was inextricably 15

tied to its context ; the defendant “used or employed” and “derived service from” 16

the gun as an “item of barter to obtain cocaine.” Id. at 229 (internal quotation 17

marks omitted). Even there , the defendant affirmatively initiated and committed 1816 an act. The Supreme Court was parsing between different kinds of us e, see id. at 1

232

- 33 (explaining that a defendant who “uses a firearm to scratch his head . . . or 2

for some other innocuous purpose” does not necessarily qualify for the 3

enhancement (internal quotation marks omitted) ), not eliminating the distinction 4

betwe en active and passive crimes entirely. 7 Here, “use” is followed by the 5

phrase “of physical force,” 18 U.S.C. § 924(e)(2)(B)(i)

, which, as discussed, has 6

already been interpreted by Johnson , 559 U.S. at 140, in a way that directly 7

contradicts the majority’s position. 8

The government seeks to bolster its position by arguing that many of our 9

sister circuits have reached similar conclusions regarding the ACCA’s force 10

requirement. Of course, we are entitled

— and obligated

— to reach our own 11

conclusions based on an accurate interpretation of the law. In any event , a closer 12

look at the cited cases raises questions about their direct applicability. For 13

example, in United States v. Rumley

, the concurre nce “[wrote] separately to 14

7 Voisine is also inapplicable. Like Castleman

, Voisine interprets the distinct

statutory context of Section 922(g)(9), the misdemeanor crime of domestic

violence. See 136 S. Ct. at 2276. Moreover, Voisine focuse s on the mens rea portion

of qualifying crimes, holding that “ acts undertaken with awareness of their

substantial risk of causing injury” may qualify. Id. at 2279 (emphasis added). This

says nothing about crimes of inaction or omission. Even the central hy pothetical

of Voisine

— hurling a plate near, but not at, one’s spouse

— uses a degree of force

definitionally not contemplated here. See id. at 2279.17 express

. . . skepticism that omissions constitute violent force

— an issue [the 1

court] need not reach given that Rumley has not shown a realistic probability 2

that omissions would be prosecuted under the statute.” 952 F.3d 538 , 551

- 52 (4th 3

Cir. 2020) (Motz, J., concurring)

. The Rumley court considered whether indirect 4

force, as opposed to omission, constitutes physical force under the ACCA. See id. 5

at 549 . The crime at issue was Virginia’s unlawful wounding statute, which 6

criminaliz ed the causation of “ bodily injury by any means and with the intent to 7

mai m , disfigure, disable or kill.” Id. at 550 (internal quotation marks omitted). In 8

doing so, t he majority explicitly discredited Rumley’s argument that there was a 9

realistic probabili ty that omission could create culpability under Virginia law

. See 10

id. at 551

. Although the majority nevertheless hypothesized that the use of 11

physical force is “ the employing of that mechanism knowingly as a device to 12

cause physical harm

, ” i d. (alteration and internal quotation marks omitted)

, 13

given the realistic probability determination, the Fourth Circuit’s speculation 14

about omission liability under the ACCA was dicta, a conclusion further 15

buttressed by Judge Motz’s concurrence and skepticis m regarding that portion of 16

the majority opinion. Similarly, in United States v. Waters

, the Seventh Circuit 17

minimally engaged with the question of omission, offering only one line: 1818 “Likewise, withholding medicine causes physical harm, albeit indirectly, a nd 1

thus qualifies as the use of force under Castleman .” 8 23 F.3d 1062 , 1066 (7th Cir. 2

2016)

. Additionally, the Illinois statute at issue in Waters was enhanced domestic 3

battery, which definitionally required “some sort of physical pain or damage to 4

the bod y, like lacerations, bruises or abrasions,” id. at 1065 (citation and internal 5

quotation marks omitted), suggesting a level of force contemplated by Johnson

. 6

As with Rumley , the Seventh Circuit’s one line contemplating the hypothetical of 7

withholding medic ine is better interpreted as dicta. 8

Despite the majority’s best attempts here to characterize the previous 9

decisions in the history of this case as illogical aberrations

, t he district court and 10

the original Scott panel were far from alone in concluding that crimes of omission 11

definitionally cannot be a violent crime. In United States v. Resendiz

- Moreno

, the 12

Fifth Circuit reversed a district court for a sentencing enhancement based on the 13

“use of physical force” co mponent of the Guidelines’ definition of a “crime of 14

violence.” 705 F.3d 203 , 206 (5th Cir. 2013)

, overruled in part by United States v. 15

Reyes

- Contreras , 910 F.3d 169, 187 (5th Cir. 2018)

. The court acknowledged that an 16

“act of omission

. . . does not invo lve the use of physical force.” Resendiz

- Moreno

, 17

705 F.3d at 205 (footnote omitted). Reyes

- Contreras partially overruled Resendiz

- 1819 Moreno by holding that indirect force may still qualify as physical force

. See 1

Reyes

- Contreras , 910 F.3d at 187

. Nevertheless, Reyes

- Contreras noted that 2

“ Castleman does not address whether an omission, standing alone, can constitute 3

the use of force

. ” I d. at 181 n.25. Additionally, i n a summary order, the Ninth 4

Circuit concluded that North Carolina’s crime of involuntary manslaughter, 5

which may be committed by omission, could not constitute a crime of violence 6

under the Guidelines because “[l]ogically, one cannot use, attempt to use or 7

threaten to use force against another in failing to do something.” United S tates v. 8

Trevino

- Trevino , 178 F. App’x 701, 703 (9th Cir. 2006) . Finally, the Third Circuit 9

has also held that “the use of physical force required by the ACCA cannot be 10

satisfied by a failure to act.” United States v. Mayo , 901 F.3d 218, 230 (3d Cir. 11

2018) . In Mayo , the statute at issue was Pennsylvania’s aggravated assault, which 12

encompasses “serious bodily injury” due to a defendant’s “deliberate failure to 13

provide food or medical care.” Id. at 227 (citation omitted). Although the Third 14

Circuit acknowledg ed other circuits’ conclusions to the contrary, it ultimately 15

found their holdings unpersuasive because “they conflate an act of omission 1620 with the use of force, something that Castleman , even if it were pertinent, does 1

not support.” Id. at 230

. 8 The same is true here. 2

It is also true that many crimes with potentially violent impact have been 3

analogously disqualified as ACCA predicates, precisely because the act does not 4

seek to include all criminal acts resulting in injury or fatality but rather 5

particularly violent conduct that requires the use of substantial force

. I t therefore 6

foll o ws

— and is commensurate with the purpose of the ACCA (notably, the 7

“ Armed Career Criminal Act”)

— that the law would seek to impose a mandatory 8

minimum sentence of 15 y ears on some, but not all, defendants whose actions 9

culminated in serious injury or death to an individual. In Lofton v. United States

, 10

the Eighth Circuit held that Illinois aggravated criminal sexual abuse did not 11

constitute a predicate conviction under t he ACCA because “a defendant can 12

violate this statute by having a child touch him for sexual gratification, an act 13

that does not necessarily require ‘the use, attempted use, or threatened use of 14

physical force against the person of another.’” 920 F.3d 572, 576 (8th Cir. 2019) 15

(citing 18 U.S.C. § 924(e)(2)(B)(i) ). B y summary order, the Sixth Circuit held that 16

Tennessee aggravated assault, which may be completed by failing to protect a 17

8 The Mayo holding is under en banc review in United States v. Harris , No. 17

- 1861

(3d Cir.) (argued Oct. 16, 201 9 ).21 child or adult from aggravated assault, failed to constitute a predicate c onviction 1

pursuant to the ACCA. See Dunlap v. United States , 784 F. App’x 379, 389 (6th Cir. 2

2019)

. 9 3

I would hold that the statutory context of the ACCA and applicable 4

precedent indicates that Section 125.20(1) is not a violent felony. That answer is 5

not a judgment on Scott’s actions, but rather a consequence of the ACCA’s 6

limited scope

. 7

III. The Majority’s Holding Unnecessarily Expands the Applicability of 8

Harsh Mandatory Minimum Sentences

. 9

The majority warns that upholding the district court and original panels’ 10

conclusions w ould hamstring sentencing courts from being able to appropriately 11

punis h repeatedly violent criminals

. That is not true

. The previously discussed 12

guardian

- ward example illuminates the relatively minimal impact of the 13

cons equences of the original holding. Contrary to the majority’s alarmist 14

9 These cases are obviously not directly comparable to the present circumstances,

and I do not rely on them in interpreting the statutory text at issue . They instead

illustrate that many crimes we view to be abhorrent and “violent” in the

common understanding of the word nevertheless do not qualify as predicate

crimes under the ACCA because the purpose of the statute is to further

discourage certain kinds of criminal acts, not necessarily to protect all kinds of

victims.22 concerns, the New York crime of murder is not at issue here , and the predicate 1

question whether murder may be committed by omission in New York has not 2

been briefed or formally discussed

. 3

More importantly, the majority itself references the very statute that 4

ensures that sentencing courts have great latitude to penalize repeat violent 5

offenders as needed. Federal sentencing law instructs district courts to consider 6

“the history and characteristics of the defendant,” 18 U.S.C. § 3553(a) , and 7

explicitly places “ [ n ] o limitation . . . on the [consideration of] information 8

concerning the background, character, and conduct of a person convicted of an 9

offense,” id. § 3661

. Appellate courts review sentencing decisions based on these 10

factors for abuse of discretion, providing sentencing courts with a significant 11

amount of deference even when they impose a sentence o utside of the 12

Guidelines range. See Gall v. United States , 552 U.S. 38, 47 (2007) (rejecting “an 13

appellate rule that requires extraordinary circumstances to justify a sentence 14

outside the Guidelines range” (internal quotation marks omitted)). In doing so, 15

appellate courts recognize “the institutional advantages of district courts” and 16

“the expertise of district judges,” who face the defendant in person and are 1723 familiar with the contours of the case. United States v. Stewart , 590 F.3d 93, 135 (2d 1

Cir. 2009) (internal quotation marks omitted). 2

In other words, we trust district courts to appropriately sentence 3

repeatedly violent offenders, whether their prior convictions qualify as an ACCA 4

predicate crime or not

. The import of the majority’s holding is not to give district 5

courts the tools need ed to sentence individuals who pose a danger to society; 6

those tools exist plentifully. Instead, it expands the blanket coverage of 7

mandatory minimum sentences . As amici curiae remind us, mandatory 8

minimum sentences suffe r from numerous flaws . They encourage prosecutors to 9

pursue the highest possible charge, further exacerbating the power imbalance 10

between the government and criminal defendants during plea negotiations

, 11

create “sentencing cliffs,” sharp sentencing variatio ns based on the technicalities 12

of an individual’s criminal record and not on the actual underlying conduct , and 13

lead to excessive costs in building, sustaining, and expanding an already massive 14

prison system. See Brief for Families Against Mandatory Minimum & New York 15

State Association of Criminal Defense Lawyers as Amici Curiae Supporting 16

Defendant

- Appellee at 11

- 1 9

. 1724 Federal district court judges have also bemoaned the consequences of 1

mandatory minimum statutes. See Mandatory Minimums in Drug Sentencing: A 2

Valuable Weapon in the War on Drugs or a Handcuff on Judicial Discretion? , 36 A M

. 3

C RIM

. L

. R EV

. 1279, 1284 (199 9) (statement of Sporkin, J., D.D.C.) (“[I]t’s a terrible 4

thing that we’re doing with mandatory minimums. . . . [W]e’re putting more 5

people in prisons, we’re building more prisons, it’s costing us tremendous 6

amounts of money. So that is inconsistent with t his concept that it is curtailing 7

crime.” (footnote omitted)) ; see also Carrie Johnson & Marisa Pe ñ aloza, Judge 8

Regrets Harsh Human Toll of Mandatory Minimum Sentences

, NPR (Dec. 16, 2014 9

4:03 AM)

, https://www.npr.org/2014/12/16/370991710/judge

- regrets

- har sh

10

human

- toll

- of

- mandatory

- minimum

- sentences (comments of Gleeson, J., 11

E.D.N.Y) (“ [It ] . . . turns out that policy [of creating mandatory minimum 12

sentences] is wrong. It was wrong at the time. . . . Mandatory minimums, to some 13

degree, sometimes entirely, take judging out of the mix[.] . . . That’s a bad thing 14

for our system.” (internal quotation marks omitted)). So too has the United States 15

Sentencing Commission itself. See Press Release

, U.S. Sent’g Comm’n, Senate 16

Judiciary Committee Votes in Favor of the Sentencing Reform and Corrections 17

Act of 2015 ( Oct. 22, 2015) (“ The Commission has extensively researched the 1825 issue of mandatory minimum penalties and, in its 2011 report to Congress, found 1

they were often too severe, swept too broadly, and were applied inconsistently. ”) 2

(available at https://www.ussc.gov/about/news/press

- releases/october

- 22

- 2015 ). 3

I accordingly find the majority’s concerns about under

- penalizin g 4

murderers unconvincing. Ample tools exist for sentencing courts to 5

appropriately punish repeatedly violent offenders. Although the ACCA is one 6

such tool, it targets “a very small percentage of repeat offenders” that account for 7

“a large percentage of cri mes of theft and violence.” Taylor v. United States , 49 5 8

U.S. 575, 581 (1990) (internal quotation marks omitted). 10 Therefore, it is entirely 9

logical that crimes of omission would not fall within the scope of the conduct the 10

ACCA seeks to penalize. 11

10 One response may be that Scott is precisely such a defendant. However, the

categorical approach prohibits the consideration of his individual acts. The

Supreme Court chose this method for good reason. See Descamps v. United States

, 570 U.S. 254, 270 (2013) (explaining tha t, without the categorical approach, courts

would have to scour “documents for evidence that a defendant admitted in a

plea colloquy, or a prosecutor showed at trial,” resulting in “uncertain” or

“downright wrong” understandings of the facts at issue); see also id. at 270

- 71

(explaining that defendants may let certain statements go unchallenged “because

it was irrelevant to the proceedings,” not realizing that “his silence could come

back to haunt him in an ACCA sentencing 30 years in the future”).26 IV. Lenity Further Supports Affirmance. 1

The rule of lenity is a “time

- honored interpretive guideline that 2

uncertainty concerning the ambit of criminal statutes should be resolved in favor 3

of lenity.” United States v. Kozminski , 487 U.S. 931, 952 (1988) (coll ecting cases). 4

The purpose of the rule is “to promote fair notice to those subject to the criminal 5

laws, to minimize the risk of selective or arbitrary enforcement, and to maintain 6

the proper balance between Congress, prosecutors, and courts.” Id. The rule of 7

lenity is “perhaps not much less old than the task of statutory construction 8

itself.” United States v. Davis , 139 S. Ct. 2319, 2333 , 204 L.Ed.2d 757 (2019) 9

(internal quotation marks omitted) (quoting United States v. Wiltberger , 18 U.S. (5 10

Wheat.) 76, 95 , 5 L.Ed. 37 (1820) (Marshall, C.J.)). 11

True, “the rule of lenity only applies if, after considering text, structure, 12

history, and purpose, there remains a grievous ambiguity or uncertainty in the 13

statute, such that the Court must simply guess as to wha t Congress intended. ” 14

Castleman , 572 U.S. at 172

- 73 (internal quotation marks omitted). The majority 15

concludes that nothing about the statu tory text, history, or purpose leaves any 16

ambiguity

. Yet, a district court judge, a majority of the original appellat e panel, 17

and other circuit courts have al l concluded that it is, at minimum, unclear 1827 whether Congress intended to include crimes committed by omission with in the 1

force clause of the ACCA. Although Congress noted that “murder, rape, assault, 2

[and] robbery” were crimes “involving physical force,” H.R. Rep. No. 99

- 849, at 3 3

(1986), it did not include manslaughter. And, as previously discussed, it also 4

articulated that the ACCA was meant to target a “ very small percentage of repeat 5

offenders.” Taylor

, 49 5 U.S. at 581 (internal quotation marks omitted)

. 6

Even if the majority remains unconvinced of the original panel’s 7

interpretation of the force clause, there is significant doubt that Congress 8

contemplated manslaughter by omission as one of the hallmark crimes 9

c ommitted by these repeat offenders

. It is entire ly probable that Congress did not 10

consider the archetype of the malicious guardian, given that its focus at the time 11

was what it considered “the most damaging crimes to society,” such as repeated 12

incidents of armed burglary, which “involves invasion of victims’ homes or 13

workplaces, violation of their privacy, and loss of their most personal and valued 14

possessions.” Id. (internal quotation marks omitted). Accordingly, Congressional 15

intent is “grievous[ly]” ambi guous as to the concept of omission liability in this 16

context

. Castleman , 572 U.S. at 17 3

. 1728 The statute further fails to instruct courts whether “physical force” 1

pertains to the criminal conduct itself or the ultimate impact on the victim , a 2

silence the ma jority itself recognizes

. 18 U.S.C. § 924(e)(2)(B) (i)

. While many 3

experienced jurists read the text and Congressional history to mean the former

, 4

others read the latter. This is a textbook example of where the rule of lenity 5

should apply. There is clearly “reasonable doubt . . . about [the ACCA’s] 6

intended scope even after resort to the language and structure, legislative 7

history, and motivating policies of the statute.” U nited States v. V alle , 807 F.3d 8

508, 523 (2d Cir. 2015) (citation, italics, and internal quotation marks omitted). At 9

minimum

, the rule of lenity instructs us to resolve these doubts in favor of Scott. 10

V. The Sentencing Guidelines 11

The government continu es to argue that Scott would be subject to a “career 12

offender” classification under Guidelines Section 4B1. 2(a) . The majority does not 13

reach this issue, nor does it need to, since its interpretation of the force clause 14

seals Scott’s fate. However, for Scot t to succeed

— as he did twice before

— he 15

must win on this argument as well. The original panel’s reasoning on the 16

Guidelines is largely still applicable to the issues raised on en banc review

. See 1729 Scott , 954 F.3d at 87

- 92

. However

, I briefly address some of the government’s 1

arguments here

. 2

The Guidelines consider a “career offender” a defendant who at eighteen 3

years old or older has committed a felony that is “either a crime of violence or a 4

controlled substance offense” and “ha s at least two prior felony convictions of 5

either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)

. 6

The Guidelines define a “crime of violence” as either a crime involving “the use, 7

attempted use, or threatened use of physical force against the person of an other, 8

or . . . murder, voluntary manslaughter, kidnapping, aggravated assault, a 9

forcible sex offense, robbery, arson, extortion, or the use o r unlawful possession 10

of a firearm.” Id. § 4B1.2(a). Although I disagree with the outcome, I agree with 11

the major ity that the force clause in the Guidelines is subject to the same analysis 12

as the force clause of the ACCA. Therefore, what remains at issue is whether 13

New York Penal Law Section 125.20(1) qualifies as any of the enumerated 14

offenses. To answer the questio n , we must use the categorical approach to 15

determine whether the statute criminal i zes the same or a narrower crime than 16

the “generic” version of any listed offense. Scott , 954 F.3d at 88 . The “generic” 1730 version of the offense is the “sense in which the term is now used in the criminal 1

codes of most States.” Taylor , 495 U.S. at 598

. 2

The government renews its argument that the conduct described in Section 3

125.20(1) qualifies as either “murder” or “voluntary manslaughter ” and an 4

aggregation of the two counts would yield a majority of states criminalizing 5

conduct encompassed by Section 125.20(1). 11 However, to read the enumerated 6

offenses clause in this way would be to ignore its distinct structure. Whereas the 7

force clause categorizes crime by type of conduct, the enumerated offenses clause 8

lists them by individual crime, which in our legal system, correlates to a certain 9

set of elements. The approach for which the government advocates is better 10

suit ed for a residual clause analysis, not a distinct list of offenses. 12 Nor does the 11

enumerated offenses clause list “homicide” as a qualifying offense; if that were 12

11 Eigh t states define “manslaughter” as causing death with intent to do serious

bodily injury : Connecticut, Delaware, New York, Minnesota, North Carolina,

Rhode Island, Kentucky, and Michigan. Twenty states include conduct that

demonstrates an intent to do serio us bodily injury under “murder” or “felony

murder. ” Each individual count yields a minority of states, so the government

argues for an aggregation of the two categories

.

12 A previous version of the Guidelines did include a residual clause including

“condu ct that presents a serious potential risk of physical injury to another,”

which the Sentencing Commission removed in the August 2016 publication of

the Guidelines. United States v. Castillo , 896 F.3d 141, 145 n.7 (2d Cir. 2018)

(internal quotation marks om itted).31 the case, grouping various types of homicide crimes might be an acceptable 1

approach. In the absence of these structures, the enumerated offenses should not 2

be counted together. See United States v. Jicarilla Apache Nation , 564 U.S. 162, 185 3

(2011) (explaining that courts should be “hesitant to adopt an interpretation of a 4

congressional enactment which renders superfluous another portion of that same 5

law” (internal quotation marks omitted)). 6

It is true that Taylor instructs us to disregard “technical definitions and 7

labels under state law” when employing the categorical approach in this context

. 8

Taylor

, 495 U.S. at 5 90

. Perhaps this line from Taylor would be significant if the 9

g overnment could show that most states label the equivalent of conduct 10

criminalized by Section 125.20(1) as “murder.” Then, the issue could arguably be 11

one of mere labels or semantics. But by the Government’s own count, one 12

minority group of 20 states defines this conduct as “murder” or “felony murder,” 13

and another, even smaller minority group of eight states considers it 14

“manslaughter.” No majority consensu s exists as to whether the conduct 15

underlying Section 125.20(1) qualifies as either crime. This goes beyond 16

“technical definitions and labels,” id

. , and instead reaches the heart of the 17

question

— whether Section 125.20 (1) fits “the generic sense in which [t he 1832 enumerated] term[s are] now used in the criminal code of most States,” id. at 598

. 1

It does not; therefore, Section 125.20(1) is neither generic murder nor generic 2

voluntary manslaughter. 3

The government also renews its argument that Section 125.20(1) is generic 4

aggravated assault

. But the government continues to face the same problem as 5

before; they have not shown that most states criminalize aggravated assault by 6

omission

. See Scott

, 954 F.3d at 91

- 92

. In its brief s , the government purports to cite 7

at least 28 states that apply omission liability to their aggravated assault crimes. 8

A closer review of their citations yields no such answer. The government’s 9

statutory citations are definitional statutes that merely define the word 10

“omission.” New York Pena l Law Section 125.20(1) is not punishable by omission 11

because the New York Penal Code defines what omission liability is; it is so 12

because the New York Court of Appeals has repeatedly applied that form of 13

liability to the statute. See Wong , 81 N.Y.2d at 60 6, 608 ; Steinberg , 79 N.Y.2d at 680

. 14

By contrast, at most five of the government’s cited cases apply omission liability 15

to their aggravated assault statute. 13 16

13 Compare Steinberg , 79 N.Y.2d at 673 ( applying omission liability specifically to

the crime of New York first

- degree manslaughter ) with, e.g.

, Snow v. State

, 568

S.W.3d 290

, 295 ( Ark. Ct. App. 2018) (applying omission liability to first

- degree33 The government also purports to cite case law for “11 additional states 1

[that] recognize omissio n as a basis for criminal culpability in their case law.” 2

Gov’t’s Br. at 50

- 51 (footnote omitted). Again, this b road assertion does not show 3

that omission is commonly a basis for aggravated assault

. I n any event, 11 states 4

are not a majority. After having parsed through those citations, too, only three 5

appear somewhat relevant to aggravated assault or battery crimes. The 6

remaining eight deal with murder, manslaughter, or state child abuse crimes , not 7

aggravated assault

. 14 8

endangering the welfare of a child); People v. Stewart , 55 P.3d 107, 116 (Colo. 2002)

(applying omission liability to “second degree reckless assault”) ; Ex Parte Lucas

, 792 So. 2d 1169, 1170

- 71 (Ala. 2000) (appl ying omission liability to murder); State

v. Williams

, 484 P.2d 1167, 1170, 1172 ( Wash. Ct. App. 1971) (applying omission

liability to negligent manslaughter).

14 See Zemek v. Superior Court

, 257 Cal.Rptr.3d 729, 735, 744

- 45 ( Cal. Ct. App. 2020)

(explaining that murder or manslaughter may be committed by omission and

affirming deficient caretaker’s convictions for murder, elder abuse, and grand

theft); Commonwealth v. Riley , 7 N.E.3d 1060, 1079 (Mass. 2014) (explaining that

failure to act on parental duties to care for children “can constitute murder or

involuntary manslaughter ” (citation and internal quotation marks omitted));

State v. Robat , 49 A.3d 58, 60, 80 (R.I. 2012) (affirming conviction for second

degree murder based on failure to obtain medical care for a newborn); Simpkins

v. State , 596 A.2d 655, 655, 659

- 62 (Md. Ct. Sp. App. 1991) (outlining history of

murder and manslaughter convictions based on failure to care for children)

, superseded by rule on other grounds as recognized in State v. Brown , 211 A.3d 335, 350

(Md. 2019) ; State v. Peters , 780 P.2d 602, 603, 605

- 06 ( Idaho Ct. App. 1989)

(explaining that parents may be guilty of “criminal homicide” for failing to

provide adequate care for their children); State v. Valley

, 571 A.2d 579, 584

- 85 ( Vt.34 In sum, a careful review of the government’s citations reveal s, at most, 1

eight states that may apply omission liability to aggravated assault

. Therefore, 2

the government has failed to show that Section 125.20(1) falls within any 3

enumerated offense articulated in Guidelines Section 4B 1.2(a) , and Scott does not 4

qualify as a “career offender. ” 15 5

VI. Conclusion 6

T he majority takes issue with the sometimes unsatisfyin g results yielded 7

by the modified categorial approach when viewed through the lens of one 8

defendant’s individual record

. T hey are far from the first federal judges to 9

1 989) (applying omission liability to involuntary manslaughter); State v. Eagle

Hawk , 411 N.W.2d 120, 121, 123

- 2 4 (S.D. 1987) (affirming convictions for state

felonies of abuse of or cruelty to a minor based on failure to obtain or provide

adequate care); B iddle v. Commonwealth

, 141 S.E.2d 710, 714 ( Va. 1965) (explaining

that willful omission of a parental duty constitutes murder and neglectful

omission constitutes manslaughter).

15 The Sixth Circuit reached a similar conclusion regarding the generic definition

of aggravated assault. In United States v. Cooper , the Sixth Circuit explained that a

Tennessee offense labeled “aggravated assault” is broader than generic

aggravated assault

— and therefore not a crime of violence under the

Guidelines

— in part because “it punishes a parent’s failure to prevent an

aggravated assault against his or her child.” 739 F.3d 873, 880 (6th Cir. 2014).

Additionally, LaFave describes aggravated assault in a few different ways,

including “assault with intent to murder” or “assault with a dangerous or deadly

weapon,” but nowhere suggests that it may be committed by omission. L A F AVE

§ 16.3(d) (footnotes, alteration, and internal quotation marks omitted).35 express frustration with this form of analysis

, as indicated by one of the 1

concurring opinions ’ numerous citations on this point

. But the Supreme Court 2

continues to stand by the approach, and has articulated goo d reasons for doing 3

so , including conservation of resources and fairness to defendants

. See Descamps

, 4

570 U.S. at 270

- 71

. Regardless of one’s views on the efficacy of the categorial 5

approach, we may not unilaterally overthrow it. Nor is it within our authority to 6

reactively convolute it

, placating our sensibilities when they are offended by the 7

acts of a particular defendant

. We are instead bound to uphold the law 8

prescribed by Congress and interpreted by the Supreme Court. 9

Under that law, t he correct answer is that Scott does not qualify for a 10

mandatory minimum under 18 U.S.C § 924(e)(2)(B) or a career offender 11

designation u nder the Guidelines. I do not reach this conclusion lightheartedly, 12

nor did I when I originally heard the case. Scott is a legally and morally culpable 13

individual, and his very serious crimes have had very serious consequences. M y 14

conclusion about his sent ence is the outcome of a n elemental analysis repeatedly 15

affirmed by the Supreme Court since its decision in Taylor

, 4 9 5 U.S. at 600

- 02

, 16

published over thirty years ago

. Had Congress wanted to reverse course and 17

achieve different outcomes, it could have. Had the Supreme Court wanted to 1836 revisit its interpretation of the ACCA, it could have. But they have not, and it is 1

not on us to bend statutory text out o f context

, impos ing a superficial sense of 2

justice. 3

I therefore must respectfully dissent from today’s interpretation of these 4

statutes and the likely consequence of sending Scott back to prison , forcing him 5

to serve additional time after he has already been freed and keeping him in the 6

shadow of past crimes for which he has already served the sentence imposed. 7