Second Circuit Criminal Law Blog

In Rare En Banc Ruling, Second Circuit Holds that Manslaughter is a Categorically Violent Felony, Including Cases of Omission, Potentially Triggering Mandatory Minimums

Our extended analysis of the decision is available here.

On March 2, 2021, in a rare en banc decision, United States v. Scott, the Second Circuit held in a divided 9-5 opinion that New York first-degree manslaughter is categorically a “violent felony” under the Armed Career Criminal Act—potentially subjecting defendants to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, regardless of the fact that manslaughter can be carried out by omission.

Gerald Scott was convicted of three federal crimes in 2006.  At sentencing, the district court applied the mandatory sentencing enhancement in the Armed Career Criminal Act based on Scott’s prior robbery and manslaughter convictions, which the court determined qualified as “violent felonies” under the ACCA.  Under the same reasoning, the court also applied the Career Offender Sentencing Guidelines enhancement, concluding that his prior convictions were “crimes of violence” as that term is defined in the Guidelines.  Scott was sentenced to 22 years in prison.

On § 2255 review, the district court determined that it should not have applied the ACCA’s mandatory minimum because first-degree manslaughter is not a categorical violent felony because it can be committed by omission, as opposed to the commission of an act of force and that, under similar reasoning, it was not a “crime of violence” under the Guidelines.  The district court reduced Scott’s sentence to 11 years and 3 months.  The original panel that heard the appeal affirmed but the Court voted to rehear the case en banc, a fairly unusual step for the Second Circuit, which is historically known for its deference to panel opinions.

Relying on the Supreme Court’s decision in United States v. Castleman, and the text of the manslaughter statute, the majority concluded that New York first-degree manslaughter is categorically a violent felony under the ACCA and a “crime of violence” under the Career Offender Guidelines, reversing the district court’s decision and remanding with instructions to reinstate the original sentence.  The majority held that even convictions based on acts of “omission” fit the bill for a violent felony.  This is so because manslaughter by its terms requires both death and an intent by the defendant to cause at least serious bodily injury, which necessarily involves the use of force, whether by commission or omission. 

The opinion, written by Judge Raggi, sparked no fewer than two concurring opinions and two passionate dissents.  Judge Park concurred with the majority opinion in full, but wrote separately to condemn the so-called “categorical approach” for analyzing whether a particular conviction is for a “crime of violence,” which he argued often to nonsensical and unjust results.  Judge Menashi wrote an opinion concurring in the judgment but calling for greater interpretive consistency to the reading of the predicate statute as compared to the relevant enhancement clauses positing that it would go a long way to curing the deficiencies of the categorical approach that Judge Park identified in his concurrence.

Judge Leval penned a dissent in which he called for the application of the “rule of lenity” to the question of whether manslaughter is a violent felony under the ACCA.  The rule of lenity requires that criminal statutes give defendants clear notice and warning of the conduct that will be punished, and directs the court to resolve ambiguity in favor of the defendant.  Such a rule was particularly appropriate, he argued, where the statute involves a harsh mandatory sentence imposed for a crime to which it does not clearly apply. 

Finally, Judge Pooler wrote a passionate dissent in which she disagreed that first-degree manslaughter is categorically a violent felony under the ACCA, or a “crime of violence” under the Career Offender provision of the Guidelines.  In Judge Pooler’s view, the majority misinterpreted relevant Supreme Court precedent and the ACCA was not intended to bring within its ambit crimes that involve omission or inaction.

We are continuing to review the court’s en banc decision and more detailed summary will follow soon.

By Elena Steiger Reich and Harry Sandick