United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN, United States District Judge
December 16, 2016, Defendant-Petitioner Gerald Scott filed a
motion pursuant to 28 U.S.C. section 2255 to vacate his
sentence in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
which invalidated the so-called “residual clause”
of the Armed Career Criminal Act, 18 U.S.C. §
924(e)(2)(B) (the “ACCA”). For the following
reasons, Scott's motion is granted.
pleaded guilty to three counts of Indictment 06 CR 988,
including Count Four, which charged Scott under 18 U.S.C.
sections 922(g)(1) and 924(e), the ACCA, with being a felon
in possession of a firearm after three prior convictions for
“violent felonies.” (Docket entry no. 1,
Indictment, at p.3; docket entry no. 22, Change of Plea
Hearing.) Two of the predicate violent felonies identified in
the Indictment involved violations of New York's first
degree manslaughter statute, N.Y. Penal Law § 125.20(1).
Scott's plea of guilty to Count Four subjected him to a
180-month mandatory minimum custodial sentence under the
ACCA, which, combined with an 84-month mandatory consecutive
minimum custodial sentence on Count Three, resulted in a
mandatory minimum custodial sentence of 264 months. In light
of the mandatory minimums, Scott's advisory Sentencing
Guidelines range was from 264 to 327 months of imprisonment.
This Court sentenced Scott principally to the mandatory
minimum custodial sentence: a total of 264 months of
imprisonment on the three counts of conviction.
defendant may challenge a federal criminal sentence
“imposed in violation of the Constitution or laws of
the United States” through a motion pursuant to 28
U.S.C. section 2255(a). Where the Court concludes that the
sentence imposed was “not authorized by law, ”
the Court “shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear
appropriate” pursuant to 28 U.S.C. section 2255(b).
Johnson, the Supreme Court held that the so-called
“residual clause” of the ACCA was impermissibly
vague and its application would therefore violate the Due
Process Clause of the Constitution. 135 S.Ct. at 2563. The
residual clause of the ACCA covered any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B). Following Johnson, the
ACCA applies only to any crime that “has as an element
the use, or attempted use, or threatened use of physical
force against the person of another, ” (the
“Force Clause”) as well as to certain enumerated
offenses that are not at issue here. Id.
argues that, following Johnson, his convictions for
first degree manslaughter are not violent felonies under the
Force Clause, and therefore he is not subject to the
mandatory minimum sentencing provisions that were applied at
the time of sentencing. The Government argues that
Scott's convictions for first degree manslaughter are
violent felonies under the Force Clause.
York's first degree manslaughter statute is a
“divisible” statute, one that sets forth several
independent grounds for conviction. Vargas-Sarmiento v.
U.S. Dep't of Justice, 448 F.3d 159, 167 (2d Cir.
2006). Accordingly, this Court uses a “modified
categorical approach” to determine which provision of
the New York statute was the basis of Scott's conviction.
See United States v. Beardsley, 691 F.3d 252, 264
(2d Cir. 2012). The Government has proffered two Certificates
of Disposition, pursuant to Shepard v. United
States, 544 U.S. 13 (2005), which show that Scott was
convicted under subsection one of the first degree
manslaughter statute. See United States v. Green,
480 F.3d 627, 633 (2d Cir. 2007) (holding that a New York
Certificate of Disposition is appropriately used to identify
the subsection of a criminal statute under which a defendant
was previously convicted). As of 1987, when Scott was
convicted of the two first degree manslaughter offenses,
subsection one provided that “[a] person is guilty of
manslaughter in the first degree when: (1) [w]ith intent to
cause serious physical injury to another person, he causes
the death of such person or of a third person.” N.Y.
Penal Law § 125.20 (1987).
determining whether Scott was convicted of a crime
constituting a “violent felony” within the
meaning of the Force Clause, the Court “must presume
that the conviction rested upon nothing more than the least
of the acts criminalized.” Moncrieffe v.
Holder, 133 S.Ct. 1678, 1684 (2013) (internal
modifications and citation omitted). In this analysis,
“only the minimum criminal conduct necessary for
conviction under [the] particular statute is relevant.”
United States v. Acosta, 470 F.3d 132, 135 (2d Cir.
York Court of Appeals evaluated the reach of subdivision one
of the first degree manslaughter statute in People v.
Steinberg, 79 N.Y.2d 673 (1992). 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 there is sufficient proof that the
defendant intended to cause serious physical injury.
Id. at 680. The Steinberg Court noted that,
under the Penal Law, “the failure to perform a legally
imposed duty” - i.e., inaction - is a culpable
omission. Id. 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. Id. at 681.
Government argues that the import of Steinberg's
holding - that first degree manslaughter can be committed in
New York State by omission and thus without using force -
must be rejected in light of the Supreme Court's decision
in United States v. Castleman, 134 S.Ct. 1405
(2014). According to the Government, Castleman's
holding that an indirect method of causing harm to a person
is a use of force requires that all culpable omissions be
deemed indirect uses of force. Castleman, however,
does not go so far. Indeed, Castleman is inapposite,
as the Court there dealt with a conviction under a statute
that made it a crime to “commi[t] an assault” and
a defendant who had violated the statute by the knowing or
intentional causation of “bodily injury, ” a
crime that the Court held “necessarily involves the use
of physical force.” 134 S.Ct. at 1414. Applying the
common law concept of battery to define force, the Court
found that actions, such as poisoning, used to accomplish
such bodily injury indirectly, constituted culpable uses of
force. See id. at 1415. The Castleman Court
did not address inaction at all, however, and the decision
therefore does not abrogate the holding in
only remaining element of subsection one is the causation of
death of a person. The Second Circuit has long held that
“the intentional causation of injury does not
necessarily involve the use of force.” Chrzanoski
v. Ashcroft, 327 F.3d 188, 195 (2d Cir. 2003). Taken
together, Steinberg and Chrzanoski
establish that a defendant may be convicted of violating
subsection one of New York's first degree manslaughter
statute by an act of omission, which by definition does not
involve an act of any kind, let alone the use of force.
Court accordingly concludes that subsection one of the first
degree manslaughter statute is not an offense covered by the
Force Clause. As a result, Scott lacks the necessary
predicate convictions for violent felonies to trigger the
ACCA's 180-month mandatory minimum sentence following the