21-527 United States v. Castillo In the United States Court of Appeals For the Second Circuit August Term, 2021 No. 21-527 UNITED STATES OF AMERICA, Appellee, v. CHAYANNE CASTILLO, AKA BAMBI, Defendant-Appellant. On Appeal from a Judgment of the United States District Court for the Southern District of New York. ARGUED: MARCH 9, 2022 DECIDED: JUNE 8, 2022 Before: SACK, LOHIER, and NARDINI, Circuit Judges. Defendant-Appellant Chayanne Castillo was sentenced to a 40- month term of imprisonment for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In calculating Castillo’s advisory sentencing range under the United States Sentencing Guidelines, the United States District Court for the Southern District of New York (Cathy Seibel, Judge) concluded that Castillo’s prior conviction for attempted second-degree gang assault in violation of New York Penal Law §§ 120.06 and 110.00 was a qualifying “crime of violence” for which his base offense level would be raised from 14 to 20. On appeal, Castillo argues that his conviction is not a crime of violence under the categorical approach because New York courts have deemed attempted second-degree gang assault a legal impossibility. We agree, and therefore VACATE Castillo’s sentence and REMAND for resentencing. SHIVA H. LOGARAJAH (Karl Metzner, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee. DANIEL HABIB, Federal Defenders of New York, Inc., New York, NY, for Defendant- Appellant. WILLIAM J. NARDINI, Circuit Judge: In this appeal, we must answer a now-familiar question: Does a criminal defendant’s prior conviction qualify as a “crime of violence” and thus subject him to a higher sentence for a subsequent federal conviction? In Defendant-Appellant Chayanne Castillo’s 2 case, however, the answer depends on two peculiarities of New York law. First, New York allows criminal defendants to plead guilty to legally impossible offenses. Castillo did just that. Second, the legally impossible offense to which Castillo pled guilty—namely, attempted second-degree gang assault in violation of New York Penal Law §§ 120.06 and 110.00—involves the incoherent premise that the defendant intended to cause an unintended result. The United States District Court for the Southern District of New York (Cathy Seibel, Judge) determined that attempted second-degree gang assault was a crime of violence sufficient to raise Castillo’s base offense level under the United States Sentencing Guidelines. We conclude, however, that Castillo’s conviction for this particular offense did not include an element constituting the use, attempted use, or threatened use of physical force, and so it should not have been used to enhance his Guidelines range. We therefore VACATE Castillo’s sentence and REMAND for resentencing. 3 I. Background On June 26, 2020, Castillo was charged in a one-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Castillo pleaded guilty to this charge without a plea agreement on November 19, 2020. In its Presentence Report, the United States Probation Office (“Probation”) applied U.S.S.G. § 2K2.1(a)(4)(A). …
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