United States v. Castillo, No. 21-527 (2d Cir. 2022)
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Defendant 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. Section 922(g)(1). In calculating Defendant's advisory sentencing range under the United States Sentencing Guidelines, the district court concluded that Defendant’s prior conviction for attempted second-degree gang assault in violation of New York Penal Law Sections 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, Defendant argued 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.
The Second Circuit vacated Defendant’s sentence and remanded for resentencing. The court held (1) Defendant’s conviction for attempted second-degree gang assault is not a crime of violence within the meaning of U.S.S.G. Section 4B1.2(a)’s force clause. Further, the court could discern no coherent element that constitutes the use, attempted use, or threatened use of physical force. (2) Defendant’s intent to have the presence and aid of others actually present does not categorically involve the use, attempted use, or threatened use of physical force. (3) Defendant’s conviction does not fall within the definition of “attempt[]” as that term is used in Application Note 1 to U.S.S.G. Section 4B1.2. (4) Attempted second-degree gang assault is not enumerated as “aggravated assault” as that phrase is used in U.S.S.G. Section 4B1.2(a)’s enumerated offenses clause.
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