18-163 United States v. Scott 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2018 6 7 (Argued: January 10, 2019 Decided: March 31, 2020) 8 9 Docket No. 18-163 10 11 ____________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellant, 16 17 v. 18 19 GERALD SCOTT, 20 21 Defendant-Appellee. 22 23 ____________________ 24 25 Before: LEVAL, POOLER, and RAGGI, Circuit Judges. 26 27 The United States appeals from an opinion and order of the United States 28 District Court for the Southern District of New York (Laura T. Swain, J.) vacating 29 Gerald Scott’s sentence and resentencing him to time served. The district court 30 held that because New York first-degree manslaughter can be committed by 1 omission, it cannot serve as a predicate felony for the sentencing enhancements 2 prescribed in the Armed Career Criminal Act (“ACCA”) or the Career Offender 3 Sentencing Guideline. We hold that the district court properly concluded that 4 New York first-degree manslaughter is not a predicate crime of violence because 5 it can be committed by omission and therefore without the use of force, as 6 defined in Curtis Johnson v. United States, 559 U.S. 133 (2010). We also hold that 7 New York first-degree manslaughter does not match any of the generic offenses 8 enumerated in the Career Offender Guideline. We therefore affirm the district 9 court’s vacatur of Scott’s sentence under ACCA and its decision to resentence 10 Scott to time served. 11 Affirmed. Judge Leval joins in Judge Pooler’s opinion for the Court and 12 also concurs by a separate opinion, in which Judge Pooler joins. 13 Judge Raggi dissents in a separate opinion. 14 ____________________ 15 WON S. SHIN, Assistant United States Attorney (Sarah 16 K. Eddy, Catherine E. Ghosh, Assistant United States 17 Attorneys), for Geoffrey S. Berman, United States 18 Attorney for the Southern District of New York, NY, for 19 Appellant. 2 1 MATTHEW B. LARSEN, Assistant Federal Defender, 2 Federal Defenders of New York, Inc., New York, NY, for 3 Defendant-Appellee. 4 5 POOLER, Circuit Judge: 6 The United States appeals from an opinion and order of the United States 7 District Court for the Southern District of New York (Laura T. Swain, J.) vacating 8 Gerald Scott’s sentence and resentencing him to time served based on his service 9 of only eleven years of imprisonment. The district court held that because New 10 York first-degree manslaughter can be committed by omission, it cannot serve as 11 a predicate felony for the sentencing enhancements prescribed in the Armed 12 Career Criminal Act (“ACCA”) or the Career Offender Sentencing Guideline. We 13 hold that the district court properly concluded that New York first-degree 14 manslaughter is not a predicate crime of violence because it can be committed by 15 complete inaction and therefore without the use of force, as defined in Curtis 16 Johnson v. United States, 559 U.S. 133 (2010). We also hold that ...
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