Whyte v. Lynch , 815 F.3d 92 ( 2016 )

United States Court of Appeals
For the First Circuit
_____________________
No. 14-2357
ANTHONY MCKAY WHYTE,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
__________________
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
__________________
ORDER OF COURT
Entered: March 21, 2016
The petition for rehearing is denied. In Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.
2003), the Second Circuit held that Conn. Gen. Stat. § 53a–61(a)(1) is not categorically a crime of
violence as defined in 18 U.S.C. § 16(a). It reasoned that a person may cause physical injury under
the Connecticut statute by "guile, deception or deliberate omission," Chrzanoski, 327 F.3d at 195,
without himself using "physical force" to cause the injury, 18 U.S.C. § 16(a). Petitioner then relied
on Chrzanoski and this argument in his opening brief, Brief for Petitioner at 8, 13–16, while the
government countered by arguing that the Second Circuit "incorrectly assumed that an individual
could be convicted under section 53a–61(a)(1) for injury caused by 'guile, deception, or even
deliberate omission,'" Brief for Respondent at 26 (quoting Chrzanoski, 327 F.3d at 195). The
Court ultimately adopted Petitioner's reasoning in its opinion.
Now, for the first time, the government argues in its petition for rehearing that causing
injury not only involves "physical force" in some abstract sense, but also involves the "use of
physical force" by the defendant himself even if the defendant's misconduct was limited to guile,
deception, or deliberate omission. Rather than distinguishing the Supreme Court's majority
opinion in United States v. Castleman, 134 S. Ct. 1405 (2014), as it did in its brief on appeal, see
Brief for Respondent at 22–23, the government now points to Castleman as supporting this
argument.
Because this argument was not properly developed by the government in its brief on appeal,
the Court never considered it. For purposes of this case only, it was waived. Trull v. Volkswagen
of Am., Inc., 187 F.3d 88, 104 (1st Cir. 1999) (new arguments raised for the first time in a petition
for rehearing are waived).
By the Court:
/s/ Margaret Carter, Clerk
cc:
Virginia Benzan
Sejal Zota
Bryan Stuart Beier
LaTia N. Bing
Anthony Wray Norwood
Lisa Morinelli
Ragini Shah
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