Published on: Friday, March 12, 2021

Is New York's first-degree manslaughter statute categorically a “violent felony” under the Armed Career Criminal Act—subjecting people to the statute’s mandatory minimum sentences—and a “crime of violence” under the Career Offender provision of the Sentencing Guidelines, despite the fact that manslaughter can be carried out by omission? The en banc Second Circuit devotes 120 pages and much scholarly analysis to the question, with nine judges concluding: yes. Five judges dissent concluding that the rule of lenity applied and that ACCA’s requirement of “‘use of physical force against the person of another’ does not clearly apply to a crime that can be committed by doing nothing.” Another judge concurs but disputes the majority's rationale. And five judges concur in result but wrote separately to note the “absurdity of the exercise we have now completed.”

The case is United States v. Scott, 18-cr-163 (2d Cir. Mar. 2, 2021).