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Date: 06-04-2018

Case Style:

United States of America v. Juan Castillo

Southern District of New York - New York, New York

Case Number: 16‐4129‐cr

Judge: JOSÉ A. CABRANES

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Sagar K. Ravi, Assistant United States
Attorney (Margaret Garnett, Sarah K.
Eddy, Assistant United States Attorneys, on
the brief), for Joon H. Kim, Acting United
States Attorney for the Southern District of
the United States, for Appellant.

Defendant's Attorney: Barry D. Leiwant, Federal Defenders of
New York, Inc., for Defendant‐Appellee.

Description: The government appeals from an October 6, 2016 judgment of
the United States District Court for the Southern District of New York
(Gregory H. Woods, Judge) convicting defendant‐appellee Juan
Castillo, following his plea of guilty, of being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and
sentencing him principally to 19 months’ imprisonment to be
followed by three years of supervised release. On appeal, the
government argues that the District Court erred when it found that
Castillo’s prior New York conviction for manslaughter in the first
degree, in violation of New York Penal Law Section 125.20(1), did not
qualify as a “crime of violence” for enhancement purposes under the
enumerated offenses in Application Note 1 of the commentary to
Section 4B1.2 of the November 1, 2015 edition of the United States
Sentencing Guidelines (“Sentencing Guidelines,” “U.S.S.G.,” or
simply “Guidelines”).
This case presents four questions:
(1) Whether the government waived any arguments based on
the former “residual clause” of Guidelines Section
4B1.2(a)(2) when, before the District Court, it conceded that
the clause was void for vagueness;
6
(2) What the so‐called “generic definition” of “manslaughter”
is;
(3) Whether the elements of manslaughter in the first degree
under New York law, N.Y. Penal Law § 125.20(1), are the
same as, or narrower than, those of the generic offense of
“manslaughter”; and
(4) Whether the District Court erred in calculating the
applicable advisory range under the United States
Sentencing Guidelines when it found that manslaughter in
the first degree under New York law, N.Y. Penal Law
§ 125.20(1), does not qualify as a “crime of violence” under
Application Note 1 of the commentary to Section 4B1.2 of
the November 1, 2015 edition of the Guidelines.
We conclude:
(1) The government did not waive arguments based on the
former “residual clause” of Guidelines Section 4B1.2(a)(2);
(2) The generic definition of “manslaughter” includes the
unlawful killing of another human being recklessly;
(3) Manslaughter in the first degree under New York law, N.Y.
Penal Law § 125.20(1), is narrower than the generic
definition of “manslaughter”; and
(4) The District Court erred when it found that Castillo’s prior
conviction for manslaughter in the first degree under New
7
York law, N.Y. Penal Law § 125.20(1), did not qualify as a
“crime of violence” under Application Note 1 of the
commentary to Section 4B1.2 of the November 1, 2015
edition of the Sentencing Guidelines.
Accordingly, we set aside the District Court’s sentence of
Castillo and REMAND the cause to the District Court for
resentencing.
I. BACKGROUND
A.
On or about May 11, 2003, defendant‐appellee Juan Castillo
shot and killed a man in Bronx County, New York. Castillo was
indicted for the shooting and charged in six counts, including one
count for manslaughter in the first degree, a felony, in violation of
New York Penal Law Section 125.20(1).1
On February 2, 2006, Castillo was convicted in New York State
Supreme Court, Bronx County, of manslaughter in the first degree
(“2006 Manslaughter Conviction”). Before the District Court, the
parties here agreed that this conviction was “under subsection 1 of
1 New York Penal Law Section 125.20(1) provides: “A person is guilty of
manslaughter in the first degree when . . . [w]ith intent to cause serious physical
injury to another person, he causes the death of such person or of a third person.”
8
New York Penal Law 125.20.”2 Castillo subsequently served his
sentence.
B.
On November 11, 2015, Castillo was arrested in the Bronx after
he threw a bag containing a loaded .22 caliber revolver out of an
apartment window. On March 30, 2016, the government filed an
indictment in the Southern District of New York charging Castillo
with being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1).3 The parties did not reach a plea
agreement, and Castillo pleaded guilty to the sole count in the
indictment on June 6, 2016.
C.
At sentencing, the government and Castillo disputed the
applicable advisory range under the Sentencing Guidelines. As
relevant here, the parties disagreed on two issues: (1) whether to
2 App’x at 56.
3 18 U.S.C. § 922(g)(1) provides:
(g) It shall be unlawful for any person‐‐
(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year . . .
to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce.
9
apply the August 1, 2016 edition of the Sentencing Guidelines
(“August 2016 Guidelines”), or the November 1, 2015 edition
(“November 2015 Guidelines”); and (2) whether Castillo’s 2006
Manslaughter Conviction was a “crime of violence” resulting in a
“career offender” enhancement under either or both editions of the
Guidelines.
These issues are interrelated because of constitutional
considerations resting on the Ex Post Facto Clause.4 A sentencing
court typically applies the Guidelines Manual in place at the time of
sentencing, which here is the August 2016 Guidelines.5 There is,
however, “an ex post facto violation when a defendant is sentenced
under Guidelines promulgated after he committed his criminal acts
and the new version provides a higher applicable Guidelines
sentencing range than the version in place at the time of the offense,”6
which here is the November 2015 Guidelines. Consequently, the
sentencing court was required to calculate the advisory range under
both editions of the Guidelines—and in so doing consider whether
Castillo’s 2006 Manslaughter Conviction was a “crime of violence”
under each edition—in order to determine which edition to apply.
4 “No Bill of Attainder or ex post facto Law shall be passed.” U.S. CONST.
art. I, § 9, cl. 3.
5 18 U.S.C. § 3553(a)(4)(A)(ii) (“The court, in determining the particular
sentence to be imposed, shall consider . . . the guidelines . . . [that] are in effect on
the date the defendant is sentenced . . . .”).
6 Peugh, 569 U.S. at 533 (emphasis added).
10
1. Castillo’s position at sentencing
Castillo took the position that the District Court should apply
the November 2015 Guidelines. He argued that those Guidelines
produced a lower advisory range than the August 2016 Guidelines
because, under the November 2015 Guidelines, his 2006
Manslaughter Conviction did not constitute a “crime of violence.”
Castillo acknowledged that his prior conviction for
manslaughter in the first degree under New York law would have
qualified as a “crime of violence” under the “residual clause” of
Section 4B1.2(a)(2) of the Guidelines.7 But Castillo contended—and
the government conceded—that because the Supreme Court decided
in Johnson v. United States8 that the “residual clause” of the Armed
7 Section 4B1.2(a) of the November 2015 Guidelines provided:
(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that—
(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
The “residual clause” is in subsection (a)(2): “or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” The
Sentencing Commission removed the “residual clause” in the August 2016
Guidelines.
8 135 S. Ct. 2551 (2015).
11
Career Criminal Act (“ACCA”) was unconstitutional, the identically
worded provision in the Guidelines was likewise unconstitutional.9
That meant Castillo’s 2006 Manslaughter Conviction could constitute
a “crime of violence” only if it qualified as such under some other
provision in Section 4B1.2. The problem for the government,
according to Castillo, was that no other provision covered his prior
offense.
Castillo observed that, because the government had conceded
that the “residual clause” was void for vagueness, the government
could only rely on two other Guidelines provisions to argue that
manslaughter in the first degree under New York law was a “crime
of violence” under Section 4B1.2: (1) the “force clause”10 and (2) the
9 In Johnson, the Supreme Court held that the “residual clause” in ACCA’s
definition of “violent felony” was void for vagueness. 135 S. Ct. at 2563. Because
the “residual clause” in U.S.S.G. § 4B1.2(a)(2) was identical to the “residual clause”
in ACCA, following Johnson the Department of Justice took the position that the
Guidelines’ “residual clause” was likewise void for vagueness. That position
turned out to be mistaken. In March 2017, the Supreme Court decided Beckles v.
United States, 137 S. Ct. 886 (2017), which held that the “residual clause” as used in
the Guidelines is not void for vagueness.
According to the Supreme Court, “the Guidelines are not subject to a
vagueness challenge under the Due Process Clause” because, unlike ACCA, they
“do not fix the permissible range of sentences.” Id. at 892. Instead, the advisory
Guidelines “merely guide the exercise of a court’s discretion in choosing an
appropriate sentence within the statutory range.” Id.
10 The “force clause” in Guidelines Section 4B1.2(a)(1) defines a “crime of
violence” as an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another[.]”
12
enumerated offenses in Application Note 1 of the commentary.11
Neither, Castillo said, applied to his prior offense. He argued that the
government could not rely on the “force clause” because
manslaughter in the first degree under New York law could be
committed by omission, and thus did not necessarily require the use
of force. And the government could not rely on Application Note 1’s
enumeration of “manslaughter,” according to Castillo, because that
provision was merely an interpretation of the section’s “residual
clause,” which the parties agreed was void.
Because there could be no enhancement for a prior “crime of
violence,” Castillo argued, the applicable November 2015 advisory
Guidelines range for his instant offense was 15 to 21 months’
imprisonment. Castillo requested a below‐Guidelines sentence of
one‐year and one‐day imprisonment, to be followed by supervised
release.
2. The government’s position at sentencing
The government responded that Castillo’s 2006 Manslaughter
Conviction was a “crime of violence” under both the November 2015
and August 2016 Guidelines. It then calculated an advisory range of
30 to 37 months’ imprisonment under the August 2016 Guidelines,
11 As relevant here, Application Note 1 provided: “‘Crime of violence’
includes murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses, robbery, arson, extortion, extortionate extension of credit, and burglary
of a dwelling.”
13
and recommended that the District Court impose a sentence within
the Guidelines range.
In arguing that Castillo’s prior conviction was a “crime of
violence” under the November 2015 Guidelines, the government
expressly disclaimed reliance on the “residual clause” of
Section 4B1.2(a)(2). It instead focused on the “force clause” and the
enumerated offenses in Application Note 1.12
Manslaughter in the first degree under New York law qualified
as a “crime of violence” under the “force clause,” the government
contended, because the offense necessarily involves knowingly or
intentionally causing bodily harm. The government also argued that
the offense was a “crime of violence” under Application Note 1,
because Application Note 1 had independent force and enumerated
“manslaughter” as a “crime of violence.”
3. The District Court’s sentencing
The District Court sentenced Castillo on October 6, 2016. In an
oral ruling, the District Court largely adopted Castillo’s arguments,
and concluded that his 2006 Manslaughter Conviction was not a
“crime of violence” under the November 2015 Guidelines. Applying
those earlier Guidelines, the District Court arrived at an advisory
range of 15 to 21 months’ imprisonment. The District Court sentenced
12 The government also argued that it would be absurd for a statute that
simply criminalized any use of physical force to be a “crime of violence,” but not
first‐degree manslaughter. App’x at 19–20. The government, however, does not
renew that argument on appeal.
14
Castillo principally to 19 months’ imprisonment to be followed by
three years of supervised release.
The District Court entered judgment on October 6, 2016.
D.
On December 7, 2016, the government, with the authorization
of the Solicitor General of the United States, filed a timely notice of
appeal.13
After the case was submitted, we ordered additional briefing to
address the following question: What analysis does a court apply
when distilling the “generic definition” of an offense enumerated in
the Sentencing Guidelines where the United States Code, State codes,
State court decisions, and the Model Penal Code contain multiple and
differing definitions of an offense? We also invited the New York
State Attorney General to submit an amicus brief addressing the
question. We are grateful to the New York Solicitor General (now
Acting Attorney General), Barbara D. Underwood, for accepting the
invitation.
During the pendency of this appeal, Castillo completed his
sentence of imprisonment and is currently on supervised release.14
13 The government requested, and the District Court granted, a 30‐day
extension to file the notice of appeal.
14 We have an “independent obligation to ensure that developments in the
case have not rendered the appeal moot.” United States v. Williams, 475 F.3d 468,
15
II. DISCUSSION
The principal question on appeal is whether manslaughter in
the first degree under New York law, N.Y. Penal Law § 125.20(1),
qualifies as a “crime of violence” under the enumerated offenses in
Application Note 1 of the commentary to Section 4B1.2 of the
November 2015 Guidelines.15 We hold that it does. We therefore set
aside Castillo’s sentence because of the procedural error in
479 (2d Cir. 2007). Although Castillo has been released from prison, a live caseand‐
controversy continues to exist because a ruling in the government’s favor
could result in Castillo returning to prison. See United States v. Suleiman, 208 F.3d
32, 37 (2d Cir. 2000) (holding that although the “defendant’s completion of his
prison term and his subsequent deportation mooted his appeal of the sentence, . . .
[it did] not necessarily preclude the Governmentʹs appeal,” since the defendant
could still be rearrested and imprisoned for the crimes if he reentered the country
(emphases in original) (citation omitted)).
15 The government additionally suggests in passing that the District Court
erred when it concluded that manslaughter in the first degree under New York
law did not qualify as a “crime of violence” under the “force clause” of Section
4B1.2(a)(1). Because the government offers no arguments on this issue, we deem it
waived in this case. See United States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013) (“It is
a settled appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”
(internal quotation marks omitted)).
16
miscalculating the advisory Guidelines range, and we remand the
cause for resentencing.
A. Standard of Review
“We review a sentence for procedural and substantive
reasonableness under a ‘deferential abuse‐of‐discretion standard.’”16
“The procedural inquiry focuses primarily on the sentencing court’s
compliance with its statutory obligation to consider the factors
detailed in 18 U.S.C. § 3553(a), while the substantive inquiry assesses
the length of the sentence imposed in light of the § 3553(a) factors.”17
A district court also commits procedural error when it “makes a
mistake in the Guidelines calculation.”18 We review questions of law
de novo, and questions of fact for clear error.19
B. Whether the Government Waived Reliance on the
“Residual Clause”
As a preliminary matter, Castillo contends that this Court
cannot consider whether his 2006 Manslaughter Conviction falls
16 United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)).
17 United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal
quotation marks, citations, and alterations omitted).
18 United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
19 United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008).
17
within the defunct “residual clause”20 of Guidelines Section
4B1.2(a)(2) because the government waived any such argument
when, before the District Court, it conceded that the clause was void
for vagueness.21 We disagree.22
Whether Section 4B1.2(a)(2)’s “residual clause” was
unconstitutionally vague is a question of law. And after the
government filed its notice of appeal, that question was definitively
answered by the Supreme Court in Beckles v. United States, where it
held that the “residual clause” is not unconstitutionally vague
because “the advisory Guidelines are not subject to vagueness
20 See note 7, ante.
21 Appellee Br. at 8–13; see United States v. Spruill, 808 F.3d 585, 596 (2d Cir.
2015) (recognizing that a court has discretion to consider “errors that were forfeited
because not timely raised in the district court, but no such discretion applies
whether there has been true waiver (emphases in original)).
22 Castillo does not draw out the implications of his position, but they are
clear. Based in part on the government’s concession, the District Court found that
the enumeration of “manslaughter” in the commentary to Section 4B1.2 was void.
App’x at 79–81. The District Court reasoned that the commentary’s enumeration
of “manslaughter” was an interpretation of the “residual clause,” and
interpretations do “not have independent legislative force.” Id. at 81. Since the
“residual clause” was conceded to be void, the District Court determined that the
enumeration of “manslaughter” in the commentary was likewise void. Id. at 79–
81.
Because we conclude that we are not barred from considering the
application of the “residual clause” to Castillo’s 2006 Manslaughter Conviction,
we do not address whether the commentary’s enumeration of “manslaughter” has
independent legislative force.
18
challenges under the Due Process Clause.”23 Accordingly, we now
know that the government mistakenly conceded that the clause was
invalid.
Castillo argues that the government’s earlier concession
constitutes waiver, thereby precluding us from considering any
arguments based on the “residual clause.”24 Not so. It is wellestablished
that a court “cannot properly determine a question of law
on the basis of a party’s concession,”25 even a concession by the
government.26 Indeed, a court “retains the independent power to
identify and apply the proper construction of governing law.”27 Post‐
Beckles, the government is therefore permitted to press28—and we are
free to consider—arguments based on the legal conclusion of the
23 Beckles v. United States, 137 S. Ct. 886, 890 (2017).
24 Appellee Br. at 9.
25 Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999); see also Nat’l
Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 163 n.* (2011) (Scalia and
Thomas, JJ., concurring) (“We are not bound by a litigant’s concession on an issue
of law.”); United States v. Ball, 870 F.3d 1, 4 (1st Cir. 2017) (“[A]n appellate court is
not necessarily constrained by a concession by either party in a criminal case as to
a legal conclusion.” (internal quotation marks and alteration omitted)).
26 See, e.g., United States v. Smith, 621 F.2d 483, 489 n.3 (2d Cir. 1980) (“[A]
concession by the Government on a question of law is never binding on this Court.
Thus the Government is free to argue the question . . . even if it ‘conceded’ it during
the proceedings below.” (citation omitted)); United States v. Tortorello, 533 F.2d 809,
812 (2d Cir. 1976) (“A concession by the Government on a question of law is not
binding on the court.”).
27 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
28 Smith, 621 F.2d at 489 n.3.
19
Supreme Court that the “residual clause” of the Guidelines is not void
for vagueness.
C. The “Modified Categorical Approach”
The waiver issue resolved, we proceed to the central question
on appeal: Whether manslaughter in the first degree under New York
law, N.Y. Penal Law § 125.20(1), qualifies as a “crime of violence”
under the enumerated offenses in Application Note 1 of the
commentary to Section 4B1.2 of the November 2015 Guidelines. To
resolve this question, we apply what is known as the “modified
categorical approach.”
“Where the basis for categorizing a prior conviction as a crime
of violence is that the offense is specifically enumerated as such in the
Career Offender Guideline or its commentary, we undertake the
categorical approach,” or its modified counterpart, “by comparing the
state statute to the generic definition of the offense.”29 In applying the
categorical approach, we “look only to the statutory definitions—
i.e., the elements—of a defendant’s prior offenses, and not to the
particular facts underlying those convictions.”30 “[O]nly if the
statute’s elements are the same as, or narrower than, those of the
29 United States v. Jones, 878 F.3d 10, 18 (2d Cir. 2017).
30 Descamps v. United States, 570 U.S. 254, 261 (2013) (emphasis in original)
(internal quotation marks omitted); see also United States v. Genao, 869 F.3d 136, 144
(2d Cir. 2017) (same).
20
generic offense” does the prior conviction serve as a predicate offense
for a sentencing enhancement.31
Where, as here, “a state statute . . . criminalize[s] multiple acts
in the alternative,” we employ the “modified categorical approach.”32
Under the “modified categorical approach,” we are required to “look[
] to a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.”33 We then
“compare that crime, as the categorical approach commands, with the
relevant generic offense.”34
The parties agreed before the District Court that Castillo was
convicted of manslaughter in the first degree under New York Penal
Law Section 125.20(1).35 Accordingly, our inquiry under the
“modified categorical approach” is whether the elements of New
York Penal Law Section 125.20(1) are the same as, or narrower than,
the generic definition of “manslaughter.”
31 Descamps, 570 U.S. at 257.
32 Jones, 878 F.3d at 16.
33 Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see also Shepard v.
United States, 544 U.S. 13, 26 (2005).
34 Mathis, 136 S. Ct. at 2249.
35 See note 2 and accompanying text, ante.
21
D. Definition of the Generic Offense of “Manslaughter”
Our first task is to define the generic crime of “manslaughter.”36
The Supreme Court instructs us that the generic definition of an
offense is the “contemporary understanding” of the term.37 In many
instances, the generic definition will be the “sense in which the term
is now used in the criminal codes of most States.”38 But courts also
consult other sources, including federal criminal statutes,39 the Model
Penal Code,40 scholarly treatises,41 and legal dictionaries.42 In
addition, the common law can help to frame the analysis,43 although
36 Castillo argues that we should interpret “manslaughter” in Application
Note 1 to refer only to “voluntary manslaughter.” Appellee Br. at 15. Although the
Sentencing Commission revised Section 4B1.2(a)(2) in August 2016 to specify
“voluntary manslaughter,” the November 2015 Guidelines refer simply to
“manslaughter.” Following the plain text of the November 2015 Guidelines, we
hold that the term “manslaughter” in the November 2015 Guidelines encompasses
both voluntary and involuntary manslaughter. See also United States v. Aponte, 235
F.3d 802, 803 (2d Cir. 2000) (suggesting that the Guidelines enumeration of
“manslaughter” includes involuntary manslaughter).
37 Taylor v. United States, 495 U.S. 575, 593 (1990).
38 Id. at 598; see also Jones, 878 F.3d at 18–19.
39 United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010).
40 Taylor, 495 U.S. at 598 n.8; see also Walker, 595 F.3d at 446.
41 Taylor, 495 U.S. at 598–99.
42 Esquivel‐Quintana v. Sessions, 137 S. Ct. 1562, 1569 (2017).
43 See Gonzales v. Duenas‐Alvarez, 549 U.S. 183, 189–90 (2007).
22
we do not apply the presumption that an undefined statutory term
takes its common‐law meaning.44
1. Murder and manslaughter at common law
Historically, murder and manslaughter together covered the
field of criminal homicide: murder was the unlawful killing of a
human being with “malice aforethought,”45 and manslaughter was
the unlawful killing of a human being “without malice
aforethought.”46 Over time, the term “malice aforethought” came to
encompass a variety of mental states, including intent to kill in the
absence of extenuating circumstances, intent to do serious bodily
injury, “depraved heart,” and intent to commit a felony.47 One who
unlawfully killed another human being with one of those mental
states thereby committed common law murder.
In contrast, common law manslaughter—or the unlawful
killing without malice aforethought—served as “a sort of catch‐all
category . . . [for] homicides which are not bad enough to be murder
but which are too bad to be no crime whatever.”48 Manslaughter was
44 Taylor, 495 U.S. at 592–96.
45 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.1, at 566 (3d ed.
2017).
46 Id. at § 15.1, at 668.
47 Id. at § 14.1, at 566.
48 Id. at § 15.1, at 668.
23
later subdivided into voluntary and involuntary varieties.49
Voluntary manslaughter was the intentional killing “in a heat of
passion upon adequate provocation,” and involuntary manslaughter
was an unintentional killing caused by “criminal negligence” or
“recklessness,” or during the commission of an unlawful act not
amounting to a felony.50 One could also be liable for manslaughter if
one recklessly omitted to act when one had a duty to do so.51
2. Contemporary manslaughter
Although the federal criminal code52 and many state criminal
codes53 preserve the historical distinction between voluntary and
involuntary manslaughter, “the modern trend, reflected in a majority
of recent recodifications, is for there to be but one single manslaughter
crime.”54 Yet even among those states that follow the “modern trend,”
there are significant differences in how they define the offense.
For example, Alabama defines “manslaughter” as causing the
death of another person recklessly or in a sudden heat of passion.55
49 Id. at § 15.4, at 708.
50 Id. at § 15.4, at 708–09; id. at § 15.4(a), at 709–11.
51 Id. at § 15.4(b), at 716–17.
52 18 U.S.C. § 1112(a).
53 LAFAVE at § 15.1, at 668.
54 Id. at § 15.1, at 668–69.
55 Ala. Code § 13A‐6‐3.
24
Other state manslaughter statutes include the states of mind found in
the Alabama code, but enumerate additional states of mind that
satisfy the mens rea element of manslaughter.56 Still others recognize
“extreme emotional disturbance,” but do not recognize “heat of
passion,” as a mens rea of “manslaughter,”57 and others still define
“manslaughter” simply as “recklessly caus[ing] the death of another
human being.”58
The diversity of state definitions of “manslaughter” creates an
obvious obstacle to identifying the generic definition of the offense.
But that obstacle is not insurmountable. By surveying the state and
federal manslaughter statutes, and consulting the Model Penal
Code,59 we can distill a generic definition by identifying precisely
which elements are present “in a majority of the . . . criminal codes.”60
We are thus able to hold that the generic definition of
“manslaughter” includes the unlawful killing of another human
being recklessly. We arrive at this definition because the federal
56 E.g., Alaska Stat. § 11.41.120; N.J. Stat. § 2C:11‐4.
57 E.g., Del. Code tit. 11, § 632; N.H. Rev. Stat. § 630:2.
58 N.D. Cent. Code § 12.1‐16‐02; see also Tex. Penal Code § 19.04.
59 We respectfully decline to adopt the Fourth Circuit’s position that “the
Model Penal Code provides the best generic, contemporary, and modern
definition” of an offense. See United States v. Peterson, 629 F.3d 432, 436 (4th Cir.
2011). Although the Model Penal Code can help to distill the generic definition of
an offense, it is not by itself dispositive.
60 Taylor v. United States, 495 U.S. 575, 589 (1990).
25
code,61 most state codes,62 and the Model Penal Code63 provide that
recklessness—or a comparable or less culpable state of mind—
satisfies the mens rea element of “manslaughter.”
The mens rea of recklessness, of course, serves as a proverbial
floor for the generic definition of “manslaughter.” More culpable
states of mind, such as “knowingly” and “recklessly under
circumstances manifesting extreme indifference to the value of
human life,” also satisfy the generic definition. So too do the states of
mind that historically fell under the category of “malice
61 18 U.S.C. § 1112(a) (“without due caution and circumspection”).
62 See, e.g., Ala. Code § 13A‐6‐3(a)(1) (“recklessly”); Alaska Stat.
§ 11.41.120(a)(1) (“recklessly”); Ariz. Rev. Stat. § 13‐1103(A)(1) (“Recklessly”); Ark.
Code § 5‐10‐104(a)(3) (“recklessly”); Cal. Penal Code § 192(b) (“without due
caution and circumspection”); Colo. Rev. Stat. § 18‐3‐104(1)(a) (“recklessly”);
Conn. Gen. Stat. § 53a‐56(a)(1) (“recklessly”); Del. Code tit. 11, § 632(1)
(“recklessly”); Haw. Rev. Stat. § 707‐702(1)(a) (“recklessly”); Idaho Code § 18‐
4006(2) (“without due caution and circumspection”); Kan. Stat. § 21‐5405(a)(1)
(“Recklessly”); Me. Rev. Stat. tit. 17‐A, § 203(1)(A) (“Recklessly, or with criminal
negligence”); Miss. Code § 97‐3‐47 (“culpable negligence”); Mo. Stat. § 565.024(1)
(“recklessly”); Nev. Rev. Stat. § 200.040(2) (“without due caution or
circumspection”); N.H. Rev. Stat. § 630:2(I)(b) (“Recklessly”); N.J. Stat. § 2C:11‐
4(b)(1) (“recklessly”); N.M. Stat. § 30‐2‐3(B) (“without due caution and
circumspection”); N.Y. Penal Law § 125.15(1) (“recklessly”); N.D. Cent. Code
§ 12.1‐16‐02 (“recklessly”); Okla. Stat. tit. 21, § 716 (“culpable negligence”); Or.
Rev. Stat. § 163.125(1)(a) (“recklessly”); S.C. Code § 16‐3‐60 (“criminal
negligence”); S.D. Codified Laws § 22‐16‐20 (“reckless killing”); Tex. Penal Code
§ 19.04(a) (“recklessly”); Utah Code § 76‐5‐205(2)(a) (“recklessly”); Wash. Rev.
Code § 9A.32.060(1)(a) (“recklessly”); Wyo. Stat. § 6‐2‐105(a)(ii) (“recklessly”).
63 Model Penal Code § 210.3(1)(a) (“recklessly”).
26
aforethought” associated with murder: intent to kill in the absence of
extenuating circumstances, intent to do serious bodily injury,
“depraved heart,” and intent to commit a felony.64
In holding that generic manslaughter includes a mens rea of
recklessness, we join the Fourth, Fifth, Eighth, and Ninth Circuits.65
At the same time, we disagree with the Tenth Circuit, which has held
“that only those versions of manslaughter that involve intentional or
purposeful behavior qualify as crimes of violence for purposes of
§ 4B1.2(a).”66
64 See note 47 and accompanying text, ante. We do not reach the question of
whether the generic definition of “manslaughter” includes intentional killings
committed under extenuating circumstances, such as under the “heat of passion”
or under the influence of an “extreme emotional disturbance.”
We note that most jurisdictions have either a “heat of passion” or an
“extreme emotional disturbance” provision in their manslaughter statutes.
Because there are—at least conceptually—elements common to both these mental
states, and because most jurisdictions incorporate one or the other in their
definitions of “manslaughter,” the generic definition inquiry therefore is: What
conduct is covered by both “heat of passion” and “extreme emotional disturbance”?
65 See, e.g., United States v. Rivera‐Muniz, 854 F.3d 1047, 1051 (9th Cir. 2017)
(concluding that “recklessness is an element of manslaughter” (internal quotation
marks omitted)); United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (adopting
Model Penal Code definition, which includes a mens rea of recklessness); United
States v. Peterson, 629 F.3d 432, 436–37 (4th Cir. 2011) (same); United States v.
Dominguez‐Ochoa, 386 F.3d 639, 646 (5th Cir. 2004) (“[W]e hold that generic,
contemporary manslaughter (including involuntary manslaughter) requires a
recklessness mens rea.”).
66 United States v. Armijo, 651 F.3d 1226, 1237 (10th Cir. 2011).
27
In sum, we hold that the generic definition of “manslaughter”
includes the unlawful killing of another human being recklessly, or
with a more culpable state of mind such as knowingly or with intent
to cause serious bodily injury.
E. Application of “Modified Categorical Approach” to
Manslaughter in the First Degree under New York Law
Under the “modified categorical approach,” we next compare
the elements of Castillo’s 2006 Manslaughter Conviction with the
generic definition.
Castillo was convicted of manslaughter in the first degree
under New York Penal Law Section 125.20(1).67 This prior conviction
will qualify as a “crime of violence” only if the elements of the offense
“are the same as, or narrower than, those of the generic offense”68 of
“manslaughter.”
New York Penal Law Section 125.20(1) provides: “A person is
guilty of manslaughter in the first degree when . . . [w]ith intent to
cause serious physical injury to another person, he causes the death
of such person or of a third person.” The mens rea here is intent to
cause serious physical injury. The generic definition of
“manslaughter,” however, has a different mens rea: recklessness.
Because the mens rea elements of the two offenses are not “the same,”
67 See note 2 and accompanying text, ante.
68 Descamps v. United States, 570 U.S. 254, 257 (2013).
28
we must determine whether the elements of the New York offense are
“narrower than[ ] those of the generic offense.”69
We conclude that the elements of manslaughter in the first
degree under New York Penal Law Section 125.20(1) are narrower
than those of the generic offense.70 New York criminal law divides
culpable mental states “along but a single spectrum of culpability,
[with] the lower mental states being necessarily included in the higher
forms of mental culpability.”71 On this spectrum, recklessness (a mens
rea of second‐degree manslaughter72) is a lower mental state than
intent to cause serious injury,73 and it would be “impossible” to
commit manslaughter with an intent to cause serious injury without
also possessing a mens rea of recklessness.74 Intent to cause serious
injury is therefore “narrower” than recklessness.
69 Id.
70 Castillo does not argue, and we do not conclude, that the other elements
of New York Penal Law Section 125.20(1) are broader than the generic definition
of “manslaughter.”
71 People v. Green, 56 N.Y.2d 427, 432 (1982) (internal quotation marks and
citation omitted).
72 N.Y. Penal Law § 125.15(1).
73 People v. Usher, 34 N.Y.2d 600, 600–01 (1974); People v. Jones, 154 A.D.2d
619, 620 (2d Dep’t 1989); People v. Morel, 213 A.D.2d 497, 497–98 (1st Dep’t 1995).
74 See People v. Repanti, 24 N.Y.3d 706, 710 (2015) (“To establish that a count
is a lesser included offense . . . , a defendant must establish that it is theoretically
29
Castillo’s arguments to the contrary give us little pause. First,
Castillo argues that generic “manslaughter” requires an intent to
kill.75 But as discussed above, the mens rea of generic “manslaughter”
is the less culpable mental state of recklessness.76 Second, Castillo
contends that New York manslaughter in the first degree is broader
than generic “manslaughter” because New York manslaughter can be
committed by omission.77 Generic “manslaughter,” however, can also
be committed by reckless omission when there is an affirmative duty
to act.78 Finally, Castillo cites a subsection of the New York first degree
manslaughter statute that is not relevant to this appeal.79
In sum, we conclude that manslaughter in the first degree
under New York law, N.Y. Penal Law § 125.20(1), is narrower than
the generic definition of “manslaughter.” Castillo’s 2006
Manslaughter Conviction under that provision therefore qualified as
a “crime of violence” under the enumerated offenses in Application
Note 1 of the commentary to Section 4B1.2 of the November 2015
Guidelines. Because the District Court mistakenly determined that
impossible to commit the greater crime without at the same time committing the
lesser.” (internal quotation marks and citation omitted)).
75 Appellee Br. at 15–17.
76 See Section II.D.2, ante.
77 Appellee Br. at 17.
78 See note 51 and accompanying text, ante.
79 Appellee Br. at 16–17.
30
Castillo’s prior conviction was not a “crime of violence,” it committed
procedural error.
F. Setting Aside of Castillo’s Sentence and Remand
Because the District Court committed procedural error when it
concluded that Castillo’s 2006 Manslaughter Conviction was not a
“crime of violence” triggering a “career offender” enhancement, we
are required to set aside Castillo’s sentence and remand the cause for
resentencing. We leave it to the District Court to determine, in the first
instance, whether it is appropriate to apply the August 2016 or
November 2015 Guidelines.
In remanding the cause, we are mindful that some aspect of the
foregoing kabuki theater might change the District Court’s judgment
of the condign sentence for the instant offense. Or it might not. Either
way, we recall that although the District Court “must still give
‘respectful consideration’ to the now‐advisory Guidelines,” it has the
discretion to depart from an advisory range based on case‐specific
determinations or even a “disagreement with the [Sentencing]
Commission’s views.”80 Thus, where the record indicates that “the
district court thought the sentence it chose was appropriate
irrespective of the Guidelines range,” procedural errors in calculating
the advisory range will likely be harmless.81 And in such
80 Pepper v. United States, 562 U.S. 476, 501 (2011).
81 Molina‐Martinez v. United States, 136 S. Ct. 1338, 1346 (2016); see also United
States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we identify procedural error in
a sentence, but the record indicates clearly that ‘the district court would have
31
circumstances, appellate review will be principally for substantive
reasonableness.

* * *

imposed the same sentence’ in any event, the error may be deemed harmless,
avoiding the need to vacate the sentence and to remand the case for resentencing.”
(quoting United States v. Cavera, 550 F.3d 180, 197 (2d Cir. 2008) (en banc))).
82 Our holding applies only to subsection 1 of New York Penal Law Section
125.20.
32
For the foregoing reasons, we set aside the District Court’s
sentence of Castillo and REMAND the cause to the District Court for
resentencing.
On remand, the District Court must consider, in the first
instance, whether to apply the August 2016 or November 2015
Guidelines. The District Court should also consider whether the
initial sentence “it chose was appropriate irrespective of the
Guidelines range.”83 For where “the record indicates clearly that ‘the
district court would have imposed the same sentence’ in any event,”
procedural errors such as the one committed here, “may be deemed
harmless.”84
83 Molina‐Martinez, 136 S. Ct. at 1346.
84 Jass, 569 F.3d at 68 (quoting Cavera, 550 F.3d at 197).

Outcome: To summarize, we hold as follows:
(1) The government did not waive arguments based on the
former “residual clause” of Guidelines Section 4B1.2(a)(2);
(2) The generic definition of “manslaughter” includes the
unlawful killing of another human being recklessly;
(3) Manslaughter in the first degree under New York law, N.Y.
Penal Law § 125.20(1),82 is narrower than the generic
definition of “manslaughter”; and
(4) The District Court erred when it found that Castillo’s prior
conviction for manslaughter in the first degree under New
York law, N.Y. Penal Law § 125.20(1), did not qualify as a
“crime of violence” under Application Note 1 of the
commentary to Section 4B1.2 of the November 1, 2015
edition of the United States Sentencing Guidelines.

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