In Split Decision, Court Again Applies Castleman To Interpret the “Force Clause” of the Armed Career Criminal Act
In Villanueva v. United States, the Second Circuit held by a 2-1 vote (Newman and Leval, with Pooler dissenting) that a conviction for first degree assault under Connecticut law qualifies as a violent felony under the Armed Career Criminal Act of 1984 (“ACCA”). The question before the Court was whether the Connecticut statute, analyzed under the “modified categorical approach,” is a violent felony that requires the use of physical force. The Court reversed the district court’s decision to grant the petition under Section 2255 and remanded the case for resentencing.
Villanueva was convicted of possessing a firearm after a felony conviction, pursuant to 18 U.S.C. § 922(g), and received an enhanced sentence under ACCA. At his original sentencing in 1999, the district court held that he qualified for an enhanced sentence based on having several prior Connecticut convictions, including two for “serious drug offenses” and two assault convictions, including one for first-degree assault and one for assault on an officer. The district court did not specify which of the two qualified as a violent felony, or whether they qualified under the “elements clause” or the “residual clause” of the ACCA. The district court imposed a sentence of 262 months’ imprisonment. Villanueva’s direct appeal and initial 2255 motion were denied.
Several years later, in 2015, the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), that the residual clause of the ACCA was unconstitutionally vague. This led the Second Circuit to grant Villanueva’s application to file a second 2255 motion, finding that he made a prima facie showing that his assault convictions were not violent felonies under the ACCA. In 2016, the district court granted the 2255 motion, holding that Villanueva was more likely than not sentenced under the residual clause, and that this error was not harmless. The district court granted the 2255 petition. Without the enhanced sentence under the ACCA, Villanueva was resented to time served and placed on supervised release.
On appeal, the government contended that both of Villanueva’s assault convictions were violent felonies within the meaning of the “elements clause” of the ACCA, which would allow the original sentence to remain in place. The Court identified the issue on appeal as whether either of the statutes defining Villanueva’s two assault offenses includes the use of physical force as an element. The Court stated that it would employ the categorical and modified categorical approaches, pursuant to which “courts identify the minimum criminal conduct necessary for conviction under a particular statute . . . look[ing] only to the statutory definitions.” The elements of the offense, not the underlying facts, are what guide the analysis.
The specific statutory language in the relevant Connecticut statute provides that “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” The district court agreed with Villanueva that the statute does not require the use of physical force and is therefore not a violent felony for purposes of the ACCA because a dangerous instrument could be a poisonous substance, the use of which would not constitute the use of physical force. Accordingly, the district court granted the petition, and resentenced Villanueva to what amounted to time served, ordering Villanueva’s release from prison.
The Second Circuit disagreed. Its analysis closely followed that of the Supreme Court in United States v. Castleman, 134 S. Ct. 405 (2014). Castleman involved the interpretation of a statute that prohibited possession of a firearm by a person previously convicted of a “misdemeanor crime of domestic violence,” which was defined to require “physical force.” The defendant in Castleman was convicted of causing bodily injury to the mother of his child. The district court rejected the idea that this crime necessarily involved physical force, because “one can cause bodily injury without the use of physical force—for example, by deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind.” This argument, similar to one presented by Villanueva here, was rejected by the Supreme Court. The Supreme Court reasoned that the use of force “is the act of employing poison knowingly as a device to cause physical harm” and it does not matter whether the harm occurs directly or indirectly.
Castleman was not directly on point, as it interpreted a different statute than the one at issue here. However, the Circuit found that the Supreme Court’s analysis was “precisely relevant to our case.” The Circuit explained that “initiating, however gently, a consequence that inflicts injury constitutes the use of physical force[.]” In addition, several other Circuits have followed Castleman in this context.
The panel distinguished the prior Second Circuit decision in Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), which held that a Connecticut conviction for third degree assault was not a “crime of violence” under 18 U.S.C. § 16(a), an immigration statute. Even though a “crime of violence” under this provision is the same as a “violent felony” under the ACCA, the Court held that Chrzanoski has a discussion of the use of force that has been abrogated by Castleman. The Second Circuit addressed this precise issue in a decision earlier this year in United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018), which held that a Hobbs Act robbery is a crime of violence even though it can be committed without physical force. In Hill, the Second Circuit rejected the defendant’s reliance on Chrzanoski, holding that the Chrzanoski court “did not have the benefit of the Supreme Court’s reasoning in Castleman to the effect that a use of physical force can encompass acts undertaken to cause physical harm, even when the harm occurs indirectly (as with poisoning).” Hill, 890 F.3d at 60.
The Circuit briefly took an opportunity to explain that the district court might have understandably read too much into its order stating that Villanueva made a prima facie showing of entitlement to relief under Section 2255. Here, the phrase “has the weakest possible meaning, indicating no more than that the applicant’s claim should be considered by a district court.”
Finally, the Court held that on remand the district court should resentence Villanueva, but added that it was not required to impose the same sentence as imposed at the initial sentencing. The Court specifically observed that “[a]t resentencing, Villanueva will have been out of prison for more than two years (after having served more than the ACCA mandatory fifteen year sentence)” and the Court might consider this relevant when determining whether additional incarceration is appropriate.
Judge Pooler dissented from the Court’s opinion. In particular, she rejected the idea that the reasoning of Castleman should be extended to the context of the ACCA. Castleman itself was “carefully cabined” to exclude ACCA elements clause determinations. She would have followed the “binding Circuit authority” of Chrzanoski, even though both this Circuit in Hill and several other Circuits have followed Castleman in this context. The Court “[h]appily” reported that the Supreme Court has recently granted certiorari in a case, Stokeling v. United States, 138 S. Ct. 1438 (2018), that may provide “definitive guidance in how best to perform violent force inquiries.” She also noted the “bizarre” nature of the categorical approach, “requiring intricate legal inquiry to determine whether one of Villanueva’s convictions, for shooting another person in the shoulder, should indeed be considered a crime of violence.”
This decision is but one chapter in the longer story of how the Second Circuit has been dealing with the aftermath of the recent Supreme Court decisions construing the Armed Career Criminal Act. The “residual clause” litigation is made more straightforward by the Supreme Court’s decision that the provision is unconstitutionally vague and that this new rule applies retroactively to cases on collateral review.” See Welch v. United States, 136 S. Ct. 1257, 1268 (2016). However, “force clause” litigation will apparently continue until there is a definitive ruling about whether every state criminal offense qualifies under the categorical or modified categorical approach, or until Congress decides that the mechanical application of the Armed Career Criminal Act should not carry the harsh sentencing consequences that it currently does. Judge Pooler’s dissent makes some compelling points, although she also seems to recognize that the majority’s approach is a reasonable interpretation of governing law, at least until the Supreme Court tells us that it isn’t. The majority and the dissent seemed unified in thinking that this particular defendant has served sufficient time to carry out the purposes of sentencing.