Posted: February 18, 2020

Judge Vitaliano Holds that NY Penal Law § 150.05 (Fourth-Degree Arson) Is Not Prior “Crime of Violence” for Purposes of Sentencing Guidelines Calculation

Posted by Solomon N. Klein, Litigation Partner

In a ruling involving a “very close question” of first impression in this District, Judge Vitaliano held that the recklessness standard applicable to fourth-degree arson in New York was not sufficiently “purposeful” to qualify as a prior “crime of violence” under the “career offender” provisions of the sentencing guidelines.  United States v. Saunders, 18 CR 656 (E.D.N.Y. Feb. 6, 2020) (ENV).

At sentencing, defendant and the government disagreed whether defendant’s prior felony conviction under New York Penal Law § 150.05 (fourth-degree arson) should be considered a prior “crime of violence” for purposes of sentencing calculations. The Court ruled from the bench and followed up with the memorandum and order.

The difficulties arise when trying to square the mens rea applicable to various state statutes with the definition of “crime of violence” in the federal sentencing guidelines.  While acknowledging it as a “very close question”, Judge Vitaliano held that Supreme Court and Second Circuit precedent have defined arson (in the context of the guidelines) as requiring an element of intent that is absent under the New York statute for fourth-degree arson. The Court explained:

In Hathaway, the Second Circuit recognized “wil[l)ful and malicious” to be the mens rea of generic arson. Id. It did not, however, define “willful and malicious.” In this vacuum, the Court concluded that “recklessness,” as used by New York to describe the state of mind necessary to commit the crime of arson in the fourth degree, means that an offender need not act with a willful or malicious state of mind, as is applicable in the generic definition of arson, to commit this offense.

Instructively, in Begay v. United States, the Supreme Court observed that “burglary, arson, extortion, and crimes involving the use of explosives . . . all typically involve purposeful . . . conduct.” 553 U.S. 137, 144-45, 128 S. Ct. 1581, 170 L. Ed. 2d 490 (2008) (emphasis added). The Second Circuit has emphasized the importance of this purposeful requirement when interpreting what constitutes a crime of violence under U.S.S.G. § 4.B.l.2(a)(2). Specifically, in United States v. Gray, the Second Circuit cited Begay in rejecting reckless endangerment as a crime of violence:

Begay places a strong emphasis on intentional-purposeful-conduct as a prerequisite for a crime to be considered similar in kind to the listed crimes …. Reckless endangerment on its face does not criminalize purposeful or deliberate conduct. Despite coming close to crossing the threshold into purposeful conduct, the criminal acts defined by the reckless endangerment statute are not intentional, a distinction stressed by the Supreme Court in Begay. Thus, pursuant to Begay, we conclude that the district court procedurally erred in calculating the appropriate Guidelines range because reckless endangerment is not a ‘crime of violence.’”

United States v. Gray, 53 5 F .3d 128, I 31-32 (2d Cir. 2008) (internal citations omitted).

Though, certainly, this issue remains an open question here since the Second Circuit has not applied Begay to the question at hand, the Seventh Circuit and a district court in the Third Circuit have addressed that issue. Both courts determined that under Begay generic arson cannot stem from mere reckless conduct. Brown v. Caraway, 719 F.3d 583, 591 (7th Cir. 2013) (“ [G]eneric arson contemplates purposeful, rather than reckless, conduct.”); United States v. Mitchell, 218 F. Supp. 3d 360, 371 (M.D. Pa. 20 16) (“[T]he court concludes that a key element of generic arson is the intent to cause damage.”).

United States v. Saunders, 18 CR 656 (E.D.N.Y. Feb. 6, 2020) (ENV).

The Court acknowledged and rejected a contrary holding in McNaught v. United States, 646 F. Supp. 2d 372, 379 (S.D.N.Y. 2009) (Koeltl, J.).  In conclusion, the Court held that “[t]he balance of authority weighing in Saunders’s favor, the Court found that fourth-degree arson under New York law is not a “crime of violence,” as it must be, to trigger application of U.S.S.G. § 4B 1.2(a).”

Posted by Solomon N. Klein, Litigation Partner

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