Second Circuit – Crime of violence: United States v. Cott

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United States Court of Appeals for the Second Circuit

Crime of violence

Crime by omission – Specific intent

United States v. Cott

18-163-cr

En Banc

Background: The United States appealed from a judgment which vacated the defendant’s 22-year sentence for Hobbs Act robbery and related firearms crimes and resentenced him to time served. The district concluded that it had mistakenly applied the Armed Career Criminal Act and the Career Offender Guideline in determining the defendant’s initial sentence because two prior convictions relied on as predicates for those enhancements were for New York first-degree manslaughter, which the district court concluded is not a categorical violent felony or a crime of violence.

Ruling: The Second Circuit reversed in part, and vacated in part. The court held that district court erred by reasoning that first-degree manslaughter did not satisfy the terms’ force clauses because it is possible to commit that homicide crime by omission, i.e. for failing to act when one had a duty to do so. The Second Circuit held that it is just as possible for a defendant to cause a person’s death by omission when the defendant’s specific intent is to kill, as when his specific intent is to cause serious physical injury.

Won S. Shin, assistant United States attorney, for the appellant; Matthew B. Larsen, of the Federal Defenders of New York, for the defendant-appellee.