United States v. Randly Begay

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10080

Plaintiff-Appellee,

D.C. No.

v. 3:13-cr-08073-

NVW-1

RANDLY IRVIN BEGAY, AKA Randly

Begay,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submission Deferred October 20, 2015

Submitted May 26, 2016

Submission Vacated and Deferred March 29, 2017

Resubmitted August 19, 2019

San Francisco, California

Filed August 19, 2019

Before: Dorothy W. Nelson, Richard R. Clifton,

and N. Randy Smith, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge N.R. Smith

2 UNITED STATES V. BEGAY

SUMMARY *

Criminal Law

The panel affirmed a conviction for second-degree

murder (18 U.S.C. §§ 1111 and 1153), reversed a conviction

for discharging a firearm during a “crime of violence”

(18 U.S.C. § 924(c)(1)(A)), reversed a mandatory restitution

order, and remanded for resentencing.

Affirming the second-degree murder conviction, the

panel held that the district court did not plainly err in failing

to instruct the jury on absence of “heat of passion” as an

element of second-degree murder.

The panel held that because second-degree murder can

be committed recklessly, it does not categorically constitute

a “crime of violence” under the elements clause, 18 U.S.C.

§ 924(c)(3)(A). Because in light of United States v. Davis,

139 S. Ct. 2319 (2019), second-degree murder likewise

cannot constitute a crime of violence under the residual

clause, 18 U.S.C. § 924(c)(3)(B), the panel concluded that

the defendant’s § 924(c) conviction cannot stand.

The panel held that because second-degree murder is not

categorically a crime of violence, the district court erred in

imposing mandatory restitution under 18 U.S.C. § 3663A.

Dissenting from Parts II and III, Judge N.R. Smith would

hold that second-degree murder is a crime of violence under

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. BEGAY 3

§ 924(c)(3)(A). He wrote that the majority goes too far in

extending the concept of recklessness to include malice

aforethought, which, including “depraved heart” murder,

requires conduct well beyond mere recklessness.

COUNSEL

M. Edith Cunningham (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Tucson, Arizona; for

Defendant-Appellant.

Karla Hotis Delord (argued), Assistant United States

Attorney; Krissa M. Lanham, Deputy Appellate Chief;

Robert L. Miskell, Appellate Chief; United States Attorney’s

Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

D.W. NELSON, Circuit Judge:

Randly Irvin Begay appeals his jury conviction and

sentence for second-degree murder under 18 U.S.C. §§ 1111

and 1153 and discharging a firearm during a “crime of

violence” in violation of 18 U.S.C. § 924(c)(1)(A). We

affirm Begay’s conviction for second-degree murder. We

hold that second-degree murder is not a “crime of violence,”

reverse the § 924(c) count of conviction, reverse the

mandatory restitution order, and remand for resentencing.

Begay’s conviction is AFFIRMED in part, REVERSED

in part, and REMANDED for resentencing.

4 UNITED STATES V. BEGAY

FACTS AND PROCEEDINGS

On March 4, 2013, Randly Begay, a Native American,

shot Roderick Ben in the head with a handgun, killing Ben.

Begay was charged with second-degree murder and

discharging a firearm during a “crime of violence.”

After a few hours of drinking and smoking

methamphetamine, Begay, Ben, Begay’s nephew Lionel

Begay, and Begay’s girlfriend Meghan Williams were

sitting inside a van parked in front of Begay’s parents’

residence in Tuba City, Arizona, located within the Navajo

Nation Indian Reservation. While sitting inside the van,

Williams and Begay were arguing about Williams’ alleged

infidelity, including Begay’s accusations that she had been

cheating on him with Ben. Begay stated he was tired of

people thinking that he was a “bitch” because of Williams

cheating on him. During the argument, Begay pulled out a

gun and laid it on his leg. Ben saw the gun and told Begay

not to shoot the windows of the van. Begay continued to

argue with Williams, stating that he was not going to be a

“bitch” anymore and that he was not scared to go to prison

for life. Begay then shot Ben in the head once.

At trial, Begay’s theory of defense was that someone else

in the car had shot Ben. In closing argument, Begay’s

attorney briefly argued that Begay lacked the requisite

malice because he did not act deliberately. During closing

argument, the government argued that Begay intentionally

shot Ben because he was angry about Williams’ alleged

infidelity with Ben. Begay and the government submitted

joint jury instructions, requesting an instruction on second-

degree murder only. Begay’s attorney did not request a

voluntary or involuntary manslaughter instruction, nor did

he object to the instructions as presented.

UNITED STATES V. BEGAY 5

The jury, instructed to find second-degree murder to be

a “crime of violence,” convicted Begay of second-degree

murder (Count One) and discharging a firearm during a

“crime of violence” under 18 U.S.C. § 924(c)(1)(A)(iii)

(Count Two). The district court sentenced Begay to 204

months’ imprisonment on Count One and a consecutive term

of 120 months’ imprisonment on Count Two. The district

court imposed mandatory restitution under 18 U.S.C.

§ 3663A in the amount of $23,622. Begay appeals his

conviction on both counts as well as the restitution order.

JURISDICTION

An “Indian” who commits murder in “Indian country” is

subject to applicable federal criminal laws. 18 U.S.C.

§ 1153(a). The location of the shooting here, the Navajo

Nation Indian Reservation, is “Indian country” for the

purposes of § 1153. 18 U.S.C. § 1151. We have jurisdiction

under 28 U.S.C. § 1291.

DISCUSSION

I

“[T]he Due Process Clause requires the prosecution to

prove beyond a reasonable doubt the absence of the heat of

passion on sudden provocation when the issue is properly

presented in a homicide case.” Mullaney v. Wilbur, 421 U.S.

684, 704 (1975). Where, as here, a defendant does not object

to the jury instructions given by the district court, we review

for plain error. United States v. Matsumaru, 244 F.3d 1092,

1102 (9th Cir. 2001).

On appeal, Begay argues for the first time that the district

court erred by failing to instruct the jury that, in order to

establish the element of malice, the government had to prove

6 UNITED STATES V. BEGAY

beyond a reasonable doubt that Begay did not act in the heat

of passion or upon a sudden quarrel. At trial, Begay’s

attorney did not request a voluntary manslaughter

instruction, object to the absence of such an instruction, or

introduce evidence of sudden quarrel or heat of passion at

trial. Begay’s theory of defense was that he did not kill the

victim. Cf. United States v. Anderson, 201 F.3d 1145, 1153

(9th Cir. 2000) (“A defendant arguing voluntary

manslaughter ‘attempts to negate the malice element by

claiming, in essence, that she was not acting maliciously

because some extreme provocation . . . severely impaired her

capacity for self-control in committing the killing.’”

(quoting United States v. Quintero, 21 F.3d 885, 890 (9th

Cir. 1994))).

During closing argument, Begay’s attorney briefly

argued that the government could not prove malice because

Begay did not act deliberately, but did not argue that Begay

acted in heat of passion or upon a sudden quarrel. The

argument Begay’s attorney made regarding malice centered

on Begay’s lack of deliberation, arguing “to deliberate and

to intend to do something is not to simply be high and pull

the trigger.” Begay’s attorney did not argue that Begay

lacked malice because he shot Ben in heat of passion or

because he was provoked. See Anderson, 201 F.3d at 1152

(“A failure to give a jury instruction, even if error, does not

seriously affect the fairness and integrity of judicial

proceedings if the defense at trial made no argument relevant

to the omitted instruction.”).

Although the government introduced evidence at trial

that Begay may have been angry at the time of the shooting

and discussed Begay’s anger during closing argument, the

evidence, arguments, and jury instructions taken as a whole

did not “properly present” the issue of heat of passion or

UNITED STATES V. BEGAY 7

provocation to the jury. See United States v. Roston,

986 F.2d 1287, 1290 (9th Cir. 1993) (holding that the issue

of heat of passion was not properly presented where there

was insufficient evidence of provocation and the defendant’s

theory of the case was that he did not kill the victim); cf.

United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987)

(finding that the district court erred by failing to give

defendant’s requested instructions regarding accidental

killing and heat of passion where “that defense [was]

raised”). As such, the district court did not plainly err in

failing to instruct the jury on absence of “heat of passion” as

an element of second-degree murder. We therefore affirm

Begay’s conviction under Count One for second-degree

murder.

II

“We review de novo whether a criminal conviction is a

‘crime of violence’ [under section 924(c)(3)] and whether a

jury instruction misstated the elements of an offense.”

United States v. Benally, 843 F.3d 350, 353 (9th Cir. 2016).

Where, as here, a party raises an argument for the first time

on appeal, we generally review for plain error; however, we

are not limited to plain error review “when we are presented

with a question that ‘is purely one of law’ and where ‘the

opposing party will suffer no prejudice as a result of the

failure to raise the issue in the trial court.’” United States v.

Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)

(quoting United States v. Echavarria-Escobar, 270 F.3d

1265, 1267–68 (9th Cir. 2001)). Here, whether second-

degree murder is a crime of violence is a pure question of

law, and the government, which has fully briefed the issue,

suffers no prejudice. We therefore apply de novo review. See

id. at 1106 (reviewing de novo whether California attempted

8 UNITED STATES V. BEGAY

robbery is a crime of violence despite the petitioner’s failure

to raise the issue before the district court).

Begay was convicted of discharging a firearm during a

“crime of violence” under 18 U.S.C. § 924(c). On appeal,

Begay argues that second-degree murder does not qualify as

a “crime of violence.” To determine whether second-degree

murder is a “crime of violence” we apply the “categorical

approach” laid out in Taylor v. United States, 495 U.S. 575

(1990). Benally, 843 F.3d at 352. Based on the facts of this

case, it may be hard to understand how the shooting of Ben

by Begay might not be a “crime of violence.” Under the

categorical approach, however, we do not look to the facts

underlying the conviction, but “compare the elements of the

statute forming the basis of the defendant’s conviction with

the elements of” a “crime of violence.” See Descamps v.

United States, 570 U.S. 254, 257 (2013). The defendant’s

crime cannot be a categorical “crime of violence” if the

conduct proscribed by the statute of conviction is broader

than the conduct encompassed by the statutory definition of

a “crime of violence.” See id.

If the statute of conviction is overbroad, we may ask

whether the statute is divisible, and, if it is, apply the

“modified categorical approach” to determine which

“statutory phrase” formed the basis of the defendant’s

conviction. Descamps, 570 U.S. at 263 (quoting Nijhawan v.

Holder, 557 U.S. 29, 41 (2009)). Where, as here, the

government has not argued that the statute of conviction is

divisible, we need not conduct a modified categorical

analysis. See United States v. Walton, 881 F.3d 768, 774–75

(9th Cir. 2018) (declining to conduct a modified categorical

analysis because the government failed to argue that the

statute of conviction was divisible).

UNITED STATES V. BEGAY 9

Accordingly, we compare the elements of 18 U.S.C.

§ 1111, the second-degree murder statute, to the definition

of a “crime of violence” found in § 924(c)(3). A “crime of

violence” is defined as a felony that

(A) has as an element the use, attempted use,

or threatened use of physical force against the

person or property of another, or

(B) that by its nature, involves a substantial

risk that physical force against the person or

property of another may be used in the course

of committing the offense.

18 U.S.C. § 924(c)(3). Subsection (A) is commonly known

as the “elements clause” and subsection (B) is commonly

known as the “residual clause.” Because the Supreme Court

declared 18 U.S.C. § 924 (c)(3)(B) unconstitutionally vague

in United States v. Davis, 139 S.Ct. 2319, 2336 (2019), we

need only determine whether second-degree murder

constitutes a crime of violence under the “elements clause”

in subsection (A).

A

Second-degree murder does not constitute a crime of

violence under the elements clause—18 U.S.C.

§ 924(c)(3)(A)—because it can be committed recklessly.

“[B]ecause the wording of [18 U.S.C. § 924(c)(3) and

18 U.S.C. § 16] is virtually identical, we interpret their plain

language in the same manner.” Benally, 843 F.3d at 354

(analyzing the required mental state for § 924(c)(3) by

looking to case law interpreting § 16); see also Davis,

139 S.Ct. at 2326 (“Like § 924(c)(3), § 16 contains an

elements clause and a residual clause. The only difference is

10 UNITED STATES V. BEGAY

that § 16’s elements clause, unlike § 924(c)(3)’s elements

clause, isn’t limited to felonies . . . .”). 18 U.S.C. § 16

defines the term “crime of violence” as:

(a) an offense that has an element the use,

attempted use, or threatened use of physical

force against the person or property of

another, or

(b) any other offense that is a felony and that,

by its nature, involves a substantial risk that

physical force against the person or property

of another may be used in the course of

committing the offense.

(emphasis added). The only substantive difference is that the

felony requirement applies to both subsections of

§ 924(c)(3) and only to subsection (b) of § 16, but this

difference “does not affect the operative language used to

interpret the statute’s requisite mental state.” Benally,

843 F.3d at 354 n.1; see also Smith v. City of Jackson, 544

U.S. 228, 233 (2005) (plurality) (holding that a term is given

the same meaning “when Congress uses the same language

in two statutes having similar purposes.”).

A “crime of violence” requires intentional conduct. In

Leocal v. Ashcroft, the Supreme Court discussed the mens

rea necessary to commit a “crime of violence” under

18 U.S.C. § 16. 543 U.S. 1 (2004). The Supreme Court

reasoned that § 16’s requirement that force be used “against”

someone or something suggests that “crimes of violence”

require “a higher degree of intent than negligent or merely

accidental conduct.” Leocal, 543 U.S. at 9–11.

We have since interpreted Leocal’s reasoning to hold

that “crimes of violence,” as defined in both § 16 and

UNITED STATES V. BEGAY 11

§ 924(c), require purposeful conduct. Benally, 843 F.3d at

353–54 (applying Leocal and Fernandez-Ruiz v. Gonzales,

466 F.3d 1121 (9th Cir. 2006) (en banc) to find that

involuntary manslaughter, which requires only gross

negligence, is not a crime of violence under § 924(c));

Covarrubias Teposte v. Holder, 632 F.3d 1049, 1053 (9th

Cir. 2011) (concluding from Leocal, Fernandez-Ruiz, and

United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008)

that an intentional use of force was required for a crime of

violence as defined in either subsection of 18 U.S.C. § 16);

Gomez-Leon, 545 F.3d at 787 (holding that a crime of

violence under 18 U.S.C. § 16 “must require proof of an

intentional use of force or a substantial risk that force will be

intentionally used during its commission”); Fernandez-Ruiz,

466 F.3d at 1130 (holding that crimes that can be committed

recklessly are not “crimes of violence” for the purposes of

§ 16 because reckless conduct “is not purposeful”).

The government argues that Voisine v. United States, —

U.S. — , 136 S.Ct. 2272 (2016) “implicitly overruled

Fernandez-Ruiz.” As we recently explained, “Voisine

expressly left open the question that Fernandez-Ruiz

answered” and is not “so clearly irreconcilable with

Fernandez-Ruiz’s reasoning that this three-judge panel is no

longer bound by the precedent of our court.” United States

v. Orona, 923 F.3d 1197, 1203 (9th Cir. 2019). In Voisine,

the Supreme Court held that the definition of “misdemeanor

crime of domestic violence” in 18 U.S.C. § 921(a)(33)(A)

includes reckless assaults. Id. at 2278. In doing so, however,

the Court explicitly stated, “our decision today concerning

§ 921(a)(33)(A)’s scope does not resolve whether § 16

includes reckless behavior. Courts have sometimes given

these two statutory definitions divergent readings in light of

differences in their contexts and purposes, and we do not

foreclose that possibility with respect to the required mental

12 UNITED STATES V. BEGAY

states.” Id. at 2280 n.4. Given that explicit qualification, the

unique “context[] and purpose[]” of domestic violence, and

the differences in statutory text between the provision at

issue and the one interpreted in Voisine, we continue to apply

our case law interpreting 18 U.S.C. § 16 to 18 U.S.C.

§ 924(c)(3). 1 See Voisine, 136 S.Ct. at 2290 (limiting the

holding to the context of misdemeanor domestic violence);

United States v. Castleman, 572 U.S. 157, 162–63 (2014)

(same); Benally, 843 at 354 (continuing to apply our

precedent interpreting § 16 in interpreting § 924(c)(3)

“because the wording of the two statutes is virtually

identical”). It follows from our precedent that a crime of

violence under 18 U.S.C. § 924(c)(3) requires the intentional

use of force.

The elements of second-degree murder are that the

defendant (1) “unlawfully kill[ed] a human being” (2) “with

malice aforethought.” 18 U.S.C. § 1111(a); Ninth Circuit

Model Criminal Jury Instruction 8.108. “[M]alice

aforethought covers four different kinds of mental states:

(1) intent to kill; (2) intent to do serious bodily injury;

(3) depraved heart (i.e., reckless indifference); and (4) intent

to commit a felony.” United States v. Pineda-Doval,

614 F.3d 1019, 1038 (9th Cir. 2010). As such, second-degree

murder may be committed recklessly—with a depraved

heart mental state—and need not be committed willfully or

intentionally. See United States v. Houser, 130 F.3d 867,

871–72 (9th Cir. 1997) (“Malice aforethought does not

require an element of willfulness if the existence of that

1

See also Gonzales-Ramirez v. Sessions, 727 F. App’x 404, 405 n.7

(9th Cir. 2018) (unpublished) (concluding that Voisine “does not affect

our § 16(a) case law.”).

UNITED STATES V. BEGAY 13

malice is inferred from the fact that defendant acted

recklessly with extreme disregard for human life.”).

It is of no consequence that the recklessness required for

second-degree murder must be “extreme” and goes beyond

ordinary recklessness. In Gomez-Leon, we made clear that,

in order to constitute a crime of violence, “the underlying

offense must require proof of an intentional use of force or a

substantial risk that force will be intentionally used during

its commission.” 545 F.3d at 787. “[O]ur precedent seems

squarely to place crimes motivated by intent on a pedestal,

while pushing off other very dangerous and violent conduct

that, because not intentional, does not qualify as a ‘crime of

violence.’” Covarrubias, 632 F.3d at 1053. Reckless

conduct, no matter how extreme, is not intentional.

Second-degree murder also does not involve a

“substantial risk that force will be intentionally used during

its commission.” Gomez-Leon, 545 F.3d at 787. In

Covarrubias, we held that a California offense prohibiting

the malicious and willful discharge of a firearm at an

inhabited dwelling was not a “crime of violence” because it

could be committed recklessly, not just intentionally.

Covarrubias, 632 F.3d at 1053–55. Although we conducted

our analysis under § 16(b) because the BIA rested its

decision on subsection (b), id. at 1052, the analysis regarding

intent bears upon either subsection of § 16, and by analogy,

18 U.S.C. § 924(c)(3). See, e.g., Gomez-Leon, 545 F.3d

at 787 (requiring intentional use of force for a crime of

violence under either subsection of § 16); Benally, 843 F.3d

at 354. In contrast to crimes like burglary that can be

committed only intentionally, “with a crime committed

recklessly, it is unlikely that the reckless actor will, in

response to external events, form an intent to use force in

furtherance of his crime.” Covarrubias, 632 F.3d at 1055.

14 UNITED STATES V. BEGAY

“Classic examples of second-degree murder include

shooting a gun into a room that the defendant knows to be

occupied, a game of Russian roulette, and driving a car at

very high speeds along a crowded main street . . . .” Pineda-

Doval, 614 F.3d at 1039. For purposes of our analysis, these

examples are substantively indistinguishable from the

offense—“Shooting at an Inhabited Dwelling or Vehicle”—

that we held was not categorically a crime of violence in

Covarrubias. This risk that a crime could escalate to the use

of intentional force is no more substantial for a defendant

who recklessly kills than it is for a defendant who recklessly

shoots at a house.

The cases the government cites do not squarely address

whether second-degree murder is a crime of violence.

Instead, in those cases, we found that other challenges to

§ 924(c) convictions lacked merit. See, e.g., United States v.

Percy, 250 F.3d 720 (9th Cir. 2001) (addressing the Sixth

Amendment right to counsel and prosecutorial misconduct);

Houser, 130 F.3d 867 (discussing the role of the jury and the

mens rea required for second-degree murder). More

recently, in United States v. JJ, we reviewed a district court's

decision to try a juvenile as an adult under the Federal

Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. United

States v. JJ, 704 F.3d 1219 (9th Cir. 2013). In JJ, the

question of whether “second-degree murder, if committed by

an adult, would be a felony crime of violence” was not in

dispute. Id. at 1222. Far from “holding” that second-degree

murder is a “crime of violence” for purposes of § 924(c), JJ

focused on when it might be in the interest of justice to try a

juvenile as an adult. Id. Because second-degree murder can

UNITED STATES V. BEGAY 15

be committed recklessly, rather than intentionally, it does not

categorically constitute a crime of violence. 2

B

Second-degree murder is not categorically a crime of

violence under the elements clause, 18 U.S.C.

§ 924(c)(3)(A). And, pursuant to Davis, second-degree

murder cannot constitute a crime of violence under the

residual clause, section 924(c)(3)(B), as the residual clause

is unconstitutionally vague. Begay’s § 924(c) conviction for

discharging a firearm during and in relation to a crime of

violence therefore cannot stand under either the elements

clause or residual clause of § 924(c)(3). We reverse Count

Two of his conviction.

III

We review the legality of a restitution order de novo and

the factual findings supporting the order for clear error.

United States v. Luis, 765 F.3d 1061, 1065 (9th Cir. 2014)

(quoting United States v. Brock-Davis, 504 F.3d 991, 996

(9th Cir. 2007)). Where, as here, a defendant raises an

objection to a restitution order for the first time on appeal,

we review for plain error. United States v. Van Alystne, 584

F.3d 803, 819 (9th Cir. 2009).

18 U.S.C. § 3663A directs a district court to impose

mandatory restitution where a defendant is convicted of a

crime of violence, as defined in 18 U.S.C. § 16. 18 U.S.C.

2

In holding that second-degree murder does not qualify as a

categorical crime of violence because it can be committed recklessly, we

do not reach Begay's argument that second-degree murder does not

qualify as a categorical crime of violence for the additional reason that it

can be committed without the use of violent force.

16 UNITED STATES V. BEGAY

§ 3663A(c)(1)(A)(i). We conclude that the district court

plainly erred in imposing mandatory restitution under

18 U.S.C. § 3663A because second-degree murder is not

categorically a crime of violence, and vacate the mandatory

restitution order. In light of this disposition, we need not

address Begay’s claim that the district court failed to make

the necessary findings for the restitution order.

CONCLUSION

We AFFIRM Count One of Begay’s conviction for

second-degree murder. We REVERSE Count Two of

Begay’s conviction for discharging a firearm during a “crime

of violence” under 18 U.S.C. § 924(c)(1)(A), VACATE the

mandatory restitution order imposed under 18 U.S.C.

§ 3663A, and REMAND for resentencing.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, AND REMANDED.

UNITED STATES V. BEGAY 17

SMITH, N.R., Circuit Judge, dissenting from Parts II & III

of the Majority’s opinion: 1

MURDER 2 in the second-degree is NOT a crime of

violence??? Yet attempted first-degree murder, 3 battery, 4

assault, 5 exhibiting a firearm, 6 criminal threats 7 (even

attempted criminal threats 8), and mailing threatening

1

I concur in Part I of the Majority’s opinion.

2

Murderers are “deserving of the most serious forms of

punishment.” Graham v. Florida, 560 U.S. 48, 69 (2010), as modified

(July 6, 2010). The Supreme Court recognized “a line between homicide

and other serious violent offenses against the individual,” because

“[s]erious nonhomicide crimes may be devastating in their harm but in

terms of moral depravity and of the injury to the person and to the public,

they cannot be compared to murder in their severity and irrevocability.”

Id. (citation, quotation marks, and alteration omitted).

3

United States v. Studhorse, 883 F.3d 1198, 1206 (9th Cir.), cert.

denied, 139 S. Ct. 127 (2018) (Wash. Rev. Code § 9A.32.030(1)).

4

United States v. Perez, No. 17-10216, 2019 WL 3022334, *5 (9th

Cir. July 11, 2019) (Cal. Penal Code § 243(d)).

5

United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir.

2018) (Cal. Penal Code § 245(a)(1)); United States v. Cabrera-Perez,

751 F.3d 1000, 1007 (9th Cir. 2014) (Ariz. Rev. Stat. §§ 13-1203, 13-

1204).

6

Bolanos v. Holder, 734 F.3d 875, 878 (9th Cir. 2013) (Cal. Penal

Code § 417.3).

7

Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003)

(Cal. Penal Code § 422).

8

Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016)

(Cal. Penal Code §§ 422, 664).

18 UNITED STATES V. BEGAY

communications 9 are crimes of violence. How can this be?

“I feel like I am taking crazy pills.” 10

This unbelievable result (arising because of the

Majority’s opinion) stems from the Majority’s

misapplication of the categorical approach to conclude that

second-degree murder cannot serve as a predicate crime of

violence under 18 U.S.C. § 924(c)(3)(A). Never mind that

the Majority’s result is contrary to Supreme Court precedent

and our precedent 11 and further defies reality and logic. See

United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018), cert.

denied, 139 S. Ct. 844, 202 L. Ed. 2d 612 (2019) (noting that

“the categorical approach must be grounded in reality, logic,

and precedent, not flights of fancy”).

“Malice aforethought” 12 is a required element of first-

and second-degree murder. 18 U.S.C. § 1111(a). Rather

than use “malice aforethought” as a clear (and easy)

distinction for a crime of violence, the Majority plucks the

9

United States v. De La Fuente, 353 F.3d 766, 770–71 (9th Cir.

2003) (18 U.S.C. § 876(c)).

10

Ben Stiller (Director), Zoolander [Film], United States:

Paramount Pictures (2001).

11

Our sister circuit has also recognized that it would be illogical to

find that “the most morally repugnant crime—murder—would not be a

crime of violence while at the same time permitting many less-serious

crimes to be so classified.” In re Irby, 858 F.3d 231, 237 (4th Cir. 2017)

(citation and quotation marks omitted) (analyzing crime of violence

under the force provision).

12

“[M]alice aforethought covers four different kinds of mental

states: (1) intent to kill; (2) intent to do serious bodily injury;

(3) depraved heart (i.e., reckless indifference); and (4) intent to commit

a felony.” United States v. Pineda-Doval, 614 F.3d 1019, 1038 (9th Cir.

2010).

UNITED STATES V. BEGAY 19

term “recklessness” out of the defined term of “depraved

heart murder” and rejects any notion that there are varying

degrees of recklessness in order to hold that second-degree

murder is not a crime of violence. As a result, the term

“crime of violence” now has no real or logical meaning. I

do not understand how this can be.

I.

Prior to the Comprehensive Crime Control Act of 1984

(CCCA), when Congress enacted the term “crime of

violence,” it outlined specific crimes that met the definition.

See Narcotic Addict Rehabilitation Act of 1966, Pub. L. No.

89-793, tit. I, § 2901, 80 Stat. 1438 (1966) (defining “crime

of violence” as “voluntary manslaughter, murder, rape,

mayhem, kidnaping, robbery, burglary or housebreaking in

the nighttime, extortion accompanied by threats of violence,

assault with a dangerous weapon or assault with intent to

commit any offense punishable by imprisonment for more

than one year, arson punishable as a felony, or an attempt or

conspiracy to commit any of the foregoing offenses”),

repealed by Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, tit. II, § 218(a)(6), 98 Stat. 1837 (1984);

Federal Firearms Act of 1938, Pub. L. No. 75-785, § 6, 52

Stat. 1250 (1938) (defining “crime of violence” as “murder,

manslaughter, rape, mayhem, kidnaping, burglary,

housebreaking; assault with intent to kill, commit rape, or

rob; assault with a dangerous weapon, or assault with intent

to commit any offense punishable by imprisonment for more

than one year”), repealed by Gun Control Act of 1968, Pub.

L. No. 90-618, § 203, 82 Stat. 1214 (1968). Upon enacting

the CCCA, Congress changed the definition of “crime of

violence” to include “an offense that is a felony” and that

“has as an element the use, attempted use, or threatened use

of physical force against the person or property of another.”

20 UNITED STATES V. BEGAY

18 U.S.C. §§ 16(a), 924(c)(3)(A). However, Congress has

indicated that murder is crime of violence on several

occasions since the CCCA enactment. See 132 Cong. Rec.

7698 (April 16, 1986) (explaining the need to expand the

Armed Career Criminal Act beyond robbery and burglary to

include murder, rape, and heroin smuggling); H.R. Rep. 105-

86, *76–77 (1997) (noting that “[t]he age at which a juvenile

may be proceeded against as an adult drops to 13 if the crime

of violence alleged is assault, murder [citing 18 U.S.C.

§ 1111(a)], attempted murder, or if the juvenile possessed a

firearm during the offense, robbery, bank robbery,

aggravated sexual abuse.” (footnotes omitted)).

Because Congress no longer provided a specific list of

offenses that were “crimes of violence,” courts were left to

apply the categorical approach to determine which offenses

met the new definition. Thus, since the enactment of the

CCCA, the interpretation of the term “crime of violence” has

evolved in the Supreme Court and the Ninth Circuit.

Notably, as demonstrated below, the Ninth Circuit’s

interpretation of included crimes has narrowed over time.

Initially, we rejected an argument that aggravated assault

with a recklessness mens rea was a not crime of violence.

See United States v. Ceron-Sanchez, 222 F.3d 1169, 1172–

73 (9th Cir. 2000), overruled by Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). One year

later, we declined to extend the holding to cover “negligent

conduct,” instead concluding that a “crime of violence”

could not be committed if a person acted “negligently—

rather than intentionally or recklessly.” United States v.

Trinidad-Aquino, 259 F.3d 1140, 1144–45 (9th Cir. 2001).

Thereafter, in Leocal v. Ashcroft, the Supreme Court defined

a crime of violence when it interpreted the phrase “use of

physical force against another” to mean “a higher degree of

UNITED STATES V. BEGAY 21

intent than negligent or merely accidental conduct.”

543 U.S. 1, 9 (2004) (alterations omitted). 13 Thus, Leocal

effectively affirmed our decision in Trinidad-Aquino. In

2005, we determined that a crime of violence does not

include acts that are “gross[ly] negligen[t] (but without

malice aforethought).” See Lara-Cazares v. Gonzales, 408

F.3d 1217, 1221 (9th Cir. 2005). The next year, we rejected

our prior case law and followed our sister circuits to

conclude that acts “involving the reckless use of force” were

also not crimes of violence. See Fernandez-Ruiz, 466 F.3d

at 1129. 14

Following Leocal and Fernandez-Ruiz, we next

overruled our prior precedent, which had made involuntary

manslaughter, 15 under 18 U.S.C. § 1112, a crime of

violence. United States v. Benally, 843 F.3d 350, 354 (9th

Cir. 2016) (holding that United States v. Springfield, 829

F.2d 860 (9th Cir. 1987) was “clearly irreconcilable with the

reasoning and the results of Leocal and Fernandez-Ruiz and

13

Leocal did not address “whether a state or federal offense that

requires proof of the reckless use of force against a person or property of

another qualifies as a crime of violence under 18 U.S.C. § 16.” Leocal,

543 U.S. at 13.

14

In United States v. Orona, we concluded that Voisine v. United

States, 136 S. Ct. 2272, 2279–82 (2016) did not overrule Fernandez-

Ruiz. 923 F.3d 1197, 1202–03 (9th Cir. 2019).

15

Manslaughter can be a “lesser included offense” of second-degree

murder. See United States v. Anderson, 201 F.3d 1145, 1148 (9th Cir.

2000). An involuntary manslaughter instruction is proper when the

defense theory is that the killing was accidental or self-defense. Id.

at 1151–52. A voluntary manslaughter instruction is proper when

defense “introduces evidence of sudden quarrel or heat of passion.”

United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994).

22 UNITED STATES V. BEGAY

is no longer good law”). In Benally, we recognized that “[a]

conviction for involuntary manslaughter requires, at a

minimum, a mental state of gross negligence, defined as a

wanton or reckless disregard for human life.” 16 Id. at 353

(internal quotation marks and citation omitted).

Against this historical backdrop of interpreting the term

“crime of violence,” the Majority now concludes “[s]econd-

degree murder does not constitute a crime of violence under

the elements clause—18 U.S.C. § 924(c)(3)(A)—because it

can be committed recklessly.” Maj. Op. 9 However, the

“recklessness” (the Majority now cites) arises only when one

can be found to possess malice aforethought because of a

“depraved-heart murder,” wherein “a defendant’s conduct

must create a ‘very high degree of risk’ of injury to other

persons, he must be aware of that risk, and he cannot have a

justifiable reason for taking that risk.” Pineda-Doval,

614 F.3d at 1038 (footnote omitted). In making this

decision, the Majority ignores the differences between

“gross negligence” and “malice aforethought,” concluding

instead that “[i]t is of no consequence that the recklessness

required for second-degree murder must be ‘extreme’ and

goes beyond ordinary recklessness.” 17 Maj. Op. 13. Thus,

16

Although we have not yet addressed whether voluntary

manslaughter under 18 U.S.C. § 1112 is a crime of violence, we have

determined that state voluntary manslaughter crimes are not crimes of

violence, because they can be committed recklessly. See Quijada-

Aguilar v. Lynch, 799 F.3d 1303, 1306–07 (9th Cir. 2015) (holding

California voluntary manslaughter is not a crime of violence, because a

conviction requires “merely reckless conduct”).

17

The Majority’s notion that the term “recklessness” effectively has

one meaning conjures up visions of Alice in Wonderland: “When I use

a word, . . . it means just what I choose it to mean—neither more nor

less.” Lewis Carroll, Through the Looking-Glass and What Alice Found

There.

UNITED STATES V. BEGAY 23

its decision in effect equates the term “malice aforethought”

with “gross negligence” or “accidental conduct.” That

cannot be correct. Instead, there are significant differences

between the mens rea necessary to support a conviction

using ordinary recklessness and the recklessness necessary

to establish malice aforethought. That difference must be

taken into account when defining a “crime of violence.”

Post-Leocal, we have referenced terms such as “mere”

or “simple” recklessness in the context of applying the

categorical analysis and have held that the ordinary form of

recklessness does not fall within the definition of a “crime of

violence.” See, e.g., Covarrubias Teposte v. Holder,

632 F.3d 1049, 1054 (9th Cir. 2011) (holding the California

offense of shooting at an inhabited dwelling 18 or vehicle is

not a crime of violence because it “requires a merely reckless

mens rea”); Pineda-Doval, 614 F.3d at 1040 (noting that

“second-degree murder required a finding of extreme

recklessness evincing disregard for human life, not simple

recklessness” (emphasis added)); Fernandez-Ruiz, 466 F.3d

at 1124 (“We ordered rehearing en banc to resolve an inter-

and intra-circuit conflict as to whether . . . crimes involving

the merely reckless use of force can be crimes of violence.”

(emphasis added)). These cases outline that the ordinary or

“simple” form of recklessness is consistent with “gross

negligence.” 19

18

For purposes of the California Penal Code section 246, an

“inhabited dwelling” need not be occupied. Covarrubias Teposte,

632 F.3d at 1054.

19

“‘Gross negligence’ is a relative term. It is doubtless to be

understood as meaning a greater want of care than is implied by the term

‘ordinary negligence;’ but, after all, it means the absence of the care that

24 UNITED STATES V. BEGAY

However, we have never directly addressed “deliberate”

or “extreme” recklessness in the same context, 20 which

clearly provides a higher standard than “mere recklessness.”

See Pineda-Doval, 614 F.3d at 1039 (recognizing that

“merely reckless driving cannot provide the basis for a

second-degree murder conviction,” because “‘something

more’ was required to establish the malice aforethought

necessary to prove second-degree murder” (quoting United

States v. Hernandez-Rodriguez, 975 F.2d 622, 627 (9th Cir.

1992)).

This distinction between mere or simple recklessness

and “extreme” recklessness is critical. The depraved-heart

(i.e., reckless indifference) necessary for a conviction of

second-degree murder requires more than “mere

recklessness”; it requires malice aforethought. See

18 U.S.C. § 1111(a) (“Murder is the unlawful killing of a

human being with malice aforethought.”); see also United

States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987) (“The

difference between that recklessness which displays

depravity and such extreme and wanton disregard for human

life as to constitute ‘malice’ and that recklessness that

amounts only to [gross negligence] lies in the quality of

awareness of the risk.” (citation omitted)). “Malice

aforethought does not mean simply hatred or ill will, but also

embraces the state of mind with which one intentionally

commits a wrongful act without legal justification or excuse.

It may be inferred from circumstances which show a wanton

was necessary under the circumstances.” Milwaukee & St. P.R. Co. v.

Arms, 91 U.S. 489, 495 (1875).

20

In United States v. Cabrera-Perez, we seemed to recognize a

difference in “the reckless mens rea” when we suggested that a crime of

violence required a “mens rea of at least extreme recklessness.” 751 F.3d

at 1005.

UNITED STATES V. BEGAY 25

and depraved spirit, a mind bent on evil mischief without

regard to its consequences.” United States v. Celestine,

510 F.2d 457, 459 (9th Cir. 1975) (emphasis added) (internal

quotation marks and citation omitted); see also Lesina,

833 F.2d at 159 (noting that “disregard for human life

becomes more callous, wanton or reckless, and more

probative of malice aforethought, as it approaches a mental

state comparable to deliberation and intent”). Notably, we

have referred to extreme “reckless indifference” as

“depraved-heart murder.” Pineda-Doval, 614 F.3d at 1038.

As even the Majority acknowledges, “[c]lassic examples of

second-degree murder include shooting a gun into a room

that the defendant knows to be occupied, playing a game of

Russian roulette, and driving a car at very high speeds along

a crowded main street.” Id. at 1039. Yet, none of these

examples demonstrate a recklessness equivalent to gross

negligence. See Fernandez-Ruiz, 466 F.3d at 1130.

Although the specific facts of a case do not play into a

categorical analysis, they do shed light on what conduct

amounts to the recklessness of depraved heart murder. For

example, we held that certain types of actions amounted to

“extreme disregard for life” in United States v. Houser,

130 F.3d 867 (9th Cir. 1997), United States v. Boise, 916

F.2d 497 (9th Cir. 1990), and Celestine, 510 F.2d 457. In

Houser, the defendant “took a handgun from his truck,

pumped a cartridge into the chamber of the gun, [and] held

the gun behind his back.” 130 F.3d at 869. He then

approached his girlfriend and, “[a]fter four or five seconds[,]

. . . brought his right arm to the left side of [his girlfriend’s]

neck and shot her.” 21 Id. We concluded that the district

21

“Houser’s defense was that the shooting was wholly accidental;

that he did not intend to use the gun but that [his girlfriend] grabbed it

26 UNITED STATES V. BEGAY

court’s “extreme disregard” instruction was proper. 22 Id.

at 871. In Boise, we held that “the jury could rationally

conclude beyond a reasonable doubt that Boise displayed ‘a

wanton and depraved spirit, a mind bent on evil mischief

without regard to its consequences,’” when he killed a small

child through “two blunt force blows to the head.” 916 F.2d

at 500 (quoting Celestine, 510 F.2d at 459). Similarly, in

Celestine, we held that a jury was permitted to conclude

“that the homicide was accompanied by a callous and

wanton disregard of human life,” when the defendant killed

a woman by beating her with his fists and by repeatedly

kicking a stick into her vagina. 510 F.2d at 458–59.

These cases do not demonstrate the type of conduct

indicative of mere or simple recklessness that is equivalent

to gross negligence. See Leocal, 543 U.S. at 9; see also

Fernandez-Ruiz, 466 F.3d at 1130 (“[T]he reckless use of

force is ‘accidental’ and crimes of recklessness cannot be

crimes of violence.”). Thus, the extreme recklessness

necessary to equate to malice aforethought is not and cannot

be “accidental.” See Fernandez-Ruiz, 466 F.3d at 1130; see

also Leocal, 543 U.S. at 9. To the contrary, killing

“recklessly with extreme disregard for human life” most

naturally suggests a higher degree of depravity or knowing

disregard. If the underlying use of physical force were

“accidental,” the charge (or conviction) would be

involuntary manslaughter. See Ninth Cir. Crim. Jury Inst.

and tried to wrest it from him, causing an accidental discharge.” Houser,

130 F.3d at 870.

22

In Houser, we concluded that the district court’s use of “the

expression ‘extreme disregard for human life’ instead of ‘a wanton and

depraved spirit, a mind bent on evil mischief without regard to its

consequences,’” was not error because they were “functionally

equivalent.” 130 F.3d at 871 n.3.

UNITED STATES V. BEGAY 27

8.110 (requiring a jury to find that “the defendant acted with

gross negligence, defined as wanton or reckless disregard for

human life”). Thus, murder, which requires malice

aforethought (with its higher degree of intent), must

necessarily be a crime of violence.

As Judge Wardlaw aptly recognized in her dissent in

Fernandez-Ruiz, “[r]ecklessness is a distinct mens rea,

which lies closer to intentionality than to negligence.”

466 F.3d at 1141–42 (Wardlaw, J., dissenting). The

Supreme Court has also recognized that “the reckless

disregard for human life . . . represents a highly culpable

mental state.” Tison v. Arizona, 481 U.S. 137, 157–58

(1987). The Majority’s suggestion that second-degree

murder can be committed without any intentional conduct is

simply not correct. Although a defendant may not have to

intended to kill (“express malice”), he or she nevertheless

killed a human being with “an intentional act that had a high

probability of resulting in death (implied malice).” See

Pollard v. White, 119 F.3d 1430, 1434 (9th Cir. 1997)

(noting at a minimum “implied malice aforethought” was

demonstrated by the defendant’s statement “that he was

going to ‘blow [the victim] away’” because it showed “an

intent to shoot when he pulled the trigger” (alteration in

original)). Again, these examples denote the difference

between gross negligence (mere recklessness) and malice

aforethought (depraved heart murder). 23

23

The difference between the required mens rea necessary for a

conviction of manslaughter or for murder also demonstrates this

important distinction. Under the federal definition, manslaughter is

defined as an “unlawful killing of a human being without malice.”

18 U.S.C. § 1112)(a) (emphasis added). Killing without malice suggests

that the mental state required to commit manslaughter is lesser than the

mental state required to commit some degree of murder. See United

28 UNITED STATES V. BEGAY

II.

“[T]o construe statutes so as to avoid results glaringly

absurd, has long been a judicial function.” Armstrong Paint

& Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333

(1938). Yet, the Majority does not seem to even contemplate

the far-reaching results of its decision. This Majority

opinion produces precisely those “glaringly absurd” results,

which we are instructed to avoid. See Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 575 (1982) (noting “that

interpretations of a statute which would produce absurd

results are to be avoided if alternative interpretations

consistent with the legislative purpose are available”).

We have already concluded that as exhibiting a firearm

in the presence of a passenger in a motor vehicle under

California Penal Code section 417.3, Bolanos, 734 F.3d at

878, assault under Arizona Revised Statute sections 13-

1203, 13-1204, Cabrera-Perez, 751 F.3d at 1007, and

criminal threats under California Penal Code section 422,

Rosales-Rosales, 347 F.3d at 717, are all crimes of violence.

Although none of these crimes can be committed

“recklessly,” how can our court logically conclude that

second-degree murder (the killing of a human being) is not

a crime of violence when these lesser crimes are?

States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994) (explaining voluntary

manslaughter may involve “a defendant who killed unintentionally but

recklessly with extreme disregard for human life . . . in the heat of

passion with adequate provocation”); see also Quintero, 21 F.3d at 890

(“Intent without malice, not the heat of passion, is the defining

characteristic of voluntary manslaughter.”). Yet, the Majority’s opinion

ignores this difference in mens rea.

UNITED STATES V. BEGAY 29

Even more problematic with this decision: under the

Majority’s approach, attempted murder would be a crime of

violence while the complete offense would not be. 24 See

Braxton v. United States, 500 U.S. 344, 351 n.**(1991)

(“Although a murder may be committed without an intent to

kill, an attempt to commit murder requires a specific intent

to kill.”). We reached this same conclusion in United States

v. Studhorse, 883 F.3d 1198. There, we first concluded that

the crime could not be committed recklessly, because “the

mental state required for criminal attempt (specific intent) is

the highest mental state,” “[r]egardless of the intent required

to commit the underlying crime.” Id. at 1203. Next, we

concluded that Washington attempted first degree murder 25

fell under § 16(a)’s definition of “crime of violence.” See id.

at 1204 (Section 16(a) requires “an element the use,

attempted use, or threatened use of physical force against the

person.” ). As with Studhorse, an attempt to commit murder

under 18 U.S.C. § 1113 similarly would require a substantial

step and an intent to commit the crime. United States v.

Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam).

It is illogical to conclude that an attempted murder is a

24

This holding would also seem to conflict with convictions under

18 U.S.C. § 373, solicitation to commit a crime of violence, wherein a

person solicits another to commit murder.

25

Under Revised Code of Washington section 9A.32.030(1), first-

degree murder includes “(b) Under circumstances manifesting an

extreme indifference to human life, he or she engages in conduct which

creates a grave risk of death to any person, and thereby causes the death

of a person.” Under the Majority’s view, first-degree murder in

Washington would not be a crime of violence, which the Studhorse panel

rejected. 883 F.3d at 1204 (“[W]e easily conclude that Washington

attempted first degree murder falls within § 16(a)’s definition of a ‘crime

of violence.’”).

30 UNITED STATES V. BEGAY

“crime of violence” that could garner a higher sentence than

that for the actual killing of a human being.

The Majority’s opinion also conflicts with other statutes

and sentencing guidelines, which presume that murder is a

crime of violence. 26 See, e.g., 18 U.S.C. § 3559(f)(1)

(increasing the mandatory minimum for violent crimes

against children “if the crime of violence is murder”);

26

The Majority’s analysis could easily exclude first-degree murder

as a crime of violence. First- and second-degree murder both require that

(1) the defendant unlawfully killed another and (2) the defendant killed

with malice aforethought (which can be committed “recklessly with

extreme disregard for human life”). See 8 U.S.C. § 1111(a); Ninth Cir.

Crim. Jury Inst. 8.107, 8.108. Although first degree murder can be:

perpetrated by poison, lying in wait, or any other kind

of willful, deliberate, malicious, and premeditated

killing; or committed in the perpetration of, or attempt

to perpetrate, any arson, escape, murder, kidnapping,

treason, espionage, sabotage, aggravated sexual abuse

or sexual abuse, child abuse, burglary, or robbery; or

perpetrated as part of a pattern or practice of assault or

torture against a child or children; or perpetrated from

a premeditated design unlawfully and maliciously to

effect the death of any human being other than him

who is killed[,]

18 U.S.C. § 1111(a), the“malice aforethought” element is still required.

Id. Thus, if any degree of reckless conduct precludes a crime from being

designated as a crime of violence, by the Majority’s logic first-degree

murder would not be a crime of violence either. It further defies reason

that a defendant could be subject to the death penalty; yet not be found

to have committed a crime of violence. See 18 U.S.C. § 3591(a)(2)(D)

(The Federal Death Penalty Act recognizes that a murder could include

the mens rea of “intentionally and specifically engag[ing] in an act of

violence, knowing that the act created a grave risk of death to a person,

other than one of the participants in the offense, such that participation

in the act constituted a reckless disregard for human life and the victim

died as a direct result of the act.”).

UNITED STATES V. BEGAY 31

U.S.S.G. § 4B1.2(a)(2) (“‘[C]rime of violence’ means . . .

murder.”); U.S.S.G. § 2L1.2 cmt. n.2 (“‘Crime of violence’

means . . . murder . . . .”). Again, the question: why carve

out this exception for second-degree murder under § 16(a)

and § 924(c)(3)(A), when Congress has been clear that

murder is a crime of violence?

The Majority goes too far in extending the concept of

recklessness to include malice aforethought. Malice

aforethought, including “depraved heart” murder, requires

conduct well beyond mere recklessness. Murder should be

a categorical match to a crime of violence because of the

necessary element of malice aforethought. Holding

otherwise makes the definition of “crime of violence”

virtually meaningless and will lead to utterly absurd results

in future cases.