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 Submitted January 24, 2022

Pasadena, California

Filed May 5, 2022

Before: Mary H. Murguia, Chief Judge, and M. Margaret

McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson,

Richard R. Clifton, Milan D. Smith, Jr., Sandra S. Ikuta,

Morgan Christen, Mark J. Bennett, Eric D. Miller and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Christen;

Concurrence by Chief Judge Murguia;

Dissent by Judge Wardlaw;

Dissent by Judge Ikuta

2 UNITED STATES V. BEGAY

SUMMARY*

Criminal Law

The en banc court affirmed Randly Irvin Begay’s

convictions for second-degree murder (18 U.S.C. §§ 1111(a)

and 1153) and for discharging a firearm during a crime of

violence (18 U.S.C. § 924(c)), vacated the district court’s

order of mandatory restitution, and remanded, in a case in

which a divided three-judge panel agreed with Begay’s

argument that second-degree murder can be committed

recklessly and therefore does not qualify as a crime of

violence for purposes of § 924(c).

Challenging his second-degree murder conviction, Begay

argued for the first time on appeal that the district court erred

by failing to instruct the jury that the government bore the

burden of proving beyond a reasonable doubt that Begay did

not act upon a sudden quarrel or in the heat of passion. A

defendant who acts in the heat of passion is guilty of

voluntary manslaughter rather than murder. The en banc

court could not conclude on this record that the district court

plainly erred, where Begay’s counsel did not attempt to

demonstrate to the court that the evidence would allow the

jurors to conclude that Begay acted in the heat of passion, and

the evidence did not suggest sudden provocation; the second-

degree murder instruction was jointly proffered by the

defense and prosecution, and no voluntary manslaughter

instruction was requested; and the instruction Begay now

*

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

insists should have been given could have undermined his

primary defense theory—that someone else shot the victim.

Challenging his § 924(c) conviction for discharging a

firearm during a crime of violence, Begay argued that second-

degree murder can be committed recklessly under § 1111(a)

and that, under the categorical approach, “crime of violence”

does not encompass offenses that can be committed with a

reckless mens rea. The parties disagreed on the applicable

standard of review. Because the difference between plain

error and de novo review does not change the outcome, the en

banc court assumed without deciding that de novo review

applies in order to provide the clearest answer. The en banc

court held that a conviction for second-degree murder

pursuant to § 1111(a) constitutes a crime of violence under

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

murder is the unlawful killing of a human being with malice

aforethought, and to kill with malice aforethought means to

kill either deliberately or recklessly with extreme disregard

for human life. The en banc court explained that such a

conviction qualifies because a defendant who acts with the

requisite mens rea to commit second-degree murder

necessarily employs force “against the person or property of

another,” and rather than acting with ordinary recklessness,

the defendant acts with recklessness that rises to a level of

extreme disregard for human life. Emphasizing this

distinction between degrees of recklessness, the en banc court

was persuaded that the reasoning of Borden v. United States,

141 S. Ct. 1817 (2021), sufficiently undermines this court’s

prior authority suggesting that anything less than intentional

conduct does not qualify as a crime of violence.

Because the second-degree murder conviction does

qualify as a crime of violence, the en banc court rejected

4 UNITED STATES V. BEGAY

Begay’s challenge to the district court’s restitution award

based on the absence of a crime-of-violence conviction. The

en banc court vacated the restitution award because the

district court did not explain how or whether the $19,000 it

awarded to compensate the murder victim’s mother for the

damage to the van in which the victim was shot satisfied

18 U.S.C. § 3663A. The en banc court remanded for

recalculation and for an explanation of reasoning.

Chief Judge Murguia, joined by Judge Clifton, concurred.

She wrote that she is persuaded that someone who commits

second-degree murder necessarily satisfies the standard set

forth by a plurality of the Supreme Court in Borden: that the

perpetrator has directed his actions against, or targeted, other

individuals, even if he neither aims at nor consciously desires

to harm them.

Judge Wardlaw dissented from portions of the majority

opinion concerning the § 924(c) conviction and the restitution

award. She concurred in portions of Judge Ikuta’s partial

dissent, except as to a supposed need to remedy any

“problem” with the legal conclusion that § 1111(a) second-

degree murder is not a categorical “crime of violence” under

§ 924(c). She wrote that Borden’s rationale compels the

conclusion that “depraved heart” second-degree murder is not

a categorical match with § 924(c)’s elements clause, a

conclusion that derives directly from the Supreme Court’s

development of the categorical approach and its

corresponding invalidation of vague residual clauses. She

would affirm the second-degree murder conviction, but would

vacate the sentence on both counts of conviction, remand for

resentencing, and vacate the restitution award.

UNITED STATES V. BEGAY 5

Judge Ikuta, joined by Judge VanDyke, dissented from

the majority’s holding that second-degree murder is a crime

of violence under the elements clause. She wrote that

Congress meant for second-degree murder to qualify as a

crime of violence under the residual clause, 18 U.S.C.

§ 924(c)(3)(B), but the Supreme Court determined that the

residual clause was unconstitutionally vague, and defined the

elements clause, 18 U.S.C. § 924(c)(3)(A), as including only

conduct that targets or is directed at another individual. She

wrote that because second-degree murder can be committed

with extreme recklessness, and so does not necessarily

involve a directed or targeted use of force against the victim,

second-degree murder is not a categorical match and does not

qualify as a crime of violence under the elements clause.

6 UNITED STATES V. BEGAY

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.

Krissa M. Lanham (argued) and Karla Hotis Delord, Assistant

United States Attorneys; United States Attorney’s Office,

Phoenix, Arizona; for Plaintiff-Appellee.

Mitchell Keiter, Keiter Appellate Law, Beverly Hills,

California, for Amicus Curiae Amicus Populi.

UNITED STATES V. BEGAY 7

OPINION

CHRISTEN, Circuit Judge:

Randly Irvin Begay appeals his federal convictions for

second-degree murder in violation of 18 U.S.C. §§ 1111(a)

and 1153, and for discharging a firearm during a “crime of

violence” in violation of 18 U.S.C. § 924(c). Begay also

appeals the district court’s restitution award. Begay raises

three primary arguments. First, he argues the district court

erred because it failed to instruct the jury that to convict

Begay of second-degree murder, the government bore the

burden of proving beyond a reasonable doubt that he did not

act in the heat of passion or “upon a sudden quarrel.”

Second, Begay urges us to reverse his § 924(c) conviction

because second-degree murder, he argues, can be committed

recklessly and therefore does not constitute a crime of

violence. Last, Begay argues the district court’s restitution

award was plainly erroneous.

A divided three-judge panel of our court agreed with

Begay’s second argument and held that second-degree

murder does not qualify as a crime of violence for purposes

of 18 U.S.C. § 924(c). See United States v. Begay, 934 F.3d

1033, 1038 (9th Cir. 2019). The government petitioned for

panel rehearing, but we held that petition in abeyance because

ongoing en banc proceedings in United States v. Orona,

923 F.3d 1197 (9th Cir. 2019), asked whether an offense

committed with ordinary recklessness qualifies as a violent

felony under the Armed Career Criminal Act (ACCA), id.

at 1199; see also United States v. Orona, 942 F.3d 1159 (9th

Cir. 2019). The Orona appeal was ultimately dismissed

because the petitioner passed away, see United States v.

Orona, 987 F.3d 892, 893 (9th Cir. 2021), but while Orona

8 UNITED STATES V. BEGAY

was still pending, the Supreme Court granted certiorari in

Borden v. United States, 141 S. Ct. 1817 (2021), to address

“whether a criminal offense can count as a ‘violent felony’

[under the ACCA] if it requires only a mens rea of

recklessness,” id. at 1821. The issue in Borden is closely

related to the one presented in Begay’s case, so we continued

to hold the government’s petition in abeyance.

Ultimately, the Supreme Court’s decision in Borden

stopped short of deciding whether offenses that may be

committed with mental states between ordinary recklessness

and knowledge (such as “depraved heart” and “extreme

recklessness”) qualify as crimes of violence, id. at 1825 n.4,

but a majority of the nonrecused active judges of our court

voted to rehear Begay’s case en banc after Borden was

decided. Now, having considered the parties’ supplemental

briefs and argument, we hold that second-degree murder

qualifies as a crime of violence pursuant to § 924(c)(3)(A).

We affirm Begay’s convictions, but vacate and remand the

district court’s restitution order.

I

On the morning of March 4, 2013, Begay, Meghan

Williams (Begay’s girlfriend), Roderick Ben, and Lionel

Begay (Begay’s nephew) sat in a van parked outside Begay’s

parents’ home on the Navajo Nation Indian Reservation in

Tuba City, Arizona. Ben was in the driver’s seat, Lionel was

in the front passenger seat, and Williams and Begay were

sitting behind the driver’s and passenger’s seats, respectively.

All four of the van’s occupants had been drinking alcohol and

smoking methamphetamine for several hours. Williams and

Begay got into an argument about her alleged infidelities, and

Begay accused her of cheating on him with Ben. Lionel later

UNITED STATES V. BEGAY 9

testified that this type of argument was “pretty normal” for

Williams and Begay. According to Williams’s testimony,

Begay said he “was tired of everybody calling him and

thinking that he was a bitch for being with [her].”

Williams testified that at some point during the argument,

Begay pulled a gun out of his pocket and placed it on his right

leg. Williams told the jury that Begay said he was “not going

to be a bitch no more,” and she saw Begay pick up the gun.

Williams testified that she put her head down, “curled up,”

and then she heard a gunshot. When Williams looked up, she

saw that Ben had been shot in the head. Law enforcement

officers later found a shell casing on the floor between the

two front seats of the van, but they never found the gun used

in the shooting.1

A federal grand jury indicted Begay on one count of

second-degree murder (Count 1) and one count of discharging

a firearm during a crime of violence (Count 2). At trial, the

parties jointly submitted jury instructions for second-degree

murder. Begay’s attorney did not object to the instructions as

presented nor request a voluntary manslaughter instruction.

The district court instructed the jurors that to find Begay

guilty on Count 2, the government bore the burden to prove

beyond a reasonable doubt that Begay “committed the crime

of murder in the second degree as charged in Count 1 of the

indictment, which I instruct you is a crime of violence.”

Begay’s theory at trial was that someone else in the van

shot Ben, but during his closing argument, defense counsel

also briefly argued that the government had not proved the

1

Lionel’s accounts to investigators and at trial conflicted as to

whether he was still in the van when Ben was shot.

10 UNITED STATES V. BEGAY

element of malice aforethought because there was no

evidence that Begay had deliberated or acted with extreme

disregard for human life. The government’s theory was that

Begay shot Ben, and the government argued that the evidence

“fully corroborated” Williams’s version of the events and

disproved Begay’s “stories.” In addition to Williams’s

testimony describing what happened in the van, the

government presented testimony from the medical examiner

who performed an autopsy on Ben’s body. He testified that

the trajectory of the gunshot suggested a bullet entered Ben’s

skull on the right side above his ear and exited on the left.

During its rebuttal, the government referred to Williams’s and

Lionel’s testimony that Begay and Williams were arguing

before Ben was shot.

The jury convicted Begay on both counts, and the district

court sentenced him to 204 months on Count 1 and

120 months on Count 2 to be served consecutively.2 The

district court also imposed $23,622 in mandatory restitution

pursuant to 18 U.S.C. § 3663A. Begay appeals both

convictions and the restitution award.

II

Generally, “[w]e review de novo whether a criminal

conviction is a ‘crime of violence’ and whether a jury

instruction misstated the elements of an offense.” United

2

Begay’s conviction on Count 2 subjected him to a mandatory ten-

year consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A)(iii). See

also § 924(c)(1)(D)(ii). The government objected that the district court

improperly varied downward based upon the 120-month mandatory

minimum sentence for the § 924(c) conviction, but the government did not

appeal Begay’s sentence.

UNITED STATES V. BEGAY 11

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

where a defendant makes an argument for the first time on

appeal that was not the basis of an objection in the trial court,

we review for plain error. United States v. Cuevas-Lopez,

934 F.3d 1056, 1060 (9th Cir. 2019); see also Fed. R. Crim.

P. 52(b). “Plain error requires an (1) error, (2) that is plain,

and (3) that affects substantial rights.” United States v. Smith,

282 F.3d 758, 765 (9th Cir. 2002) (citing Johnson v. United

States, 520 U.S. 461, 467 (1997)). We have discretion to

notice a plain error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

III

Because this shooting took place on the Navajo Nation

Indian Reservation, it occurred within “Indian country” for

the purposes of the Major Crimes Act. See 18 U.S.C.

§§ 1151, 1153; see also Benally, 843 F.3d at 352. “An

‘Indian’ who commits murder . . . in ‘Indian country’ is

subject to applicable federal criminal laws.” Id. (citing

§ 1153(a)). Though the Act does not define the term

“Indian,” “[t]he generally accepted test for Indian status

considers (1) the degree of Indian blood; and (2) tribal or

government recognition as an Indian.” United States v.

Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005) (internal

quotation marks omitted) (quoting United States v. Keys,

103 F.3d 758, 761 (9th Cir. 1996)). Here, the parties

stipulated that Begay “has descendant status as an Indian,

such as being a blood relative to a parent, grandparent, or

great-grandparent who is clearly identified as an Indian from

a federally recognized tribe.” We have jurisdiction pursuant

to 28 U.S.C. § 1291.

IV

12 UNITED STATES V. BEGAY

Begay challenges his second-degree murder conviction

based on the district court’s jury instructions for the first time

on appeal. He argues that because he made a showing at trial

of “sudden quarrel or heat of passion,” the district court erred

by failing to instruct the jury that the government bore the

burden of proving beyond a reasonable doubt that Begay did

not act upon a sudden quarrel or in the heat of passion.

Begay argues that the government bears the burden of

proving each element of the charged offense, and a rational

jury could have found reasonable doubt about whether he

acted out of passion rather than malice. Begay observes that

even the government argued he acted “out of rage and passion

during a heated argument about infidelity.” We review for

plain error because Begay did not raise this argument in the

district court. See Cuevas-Lopez, 934 F.3d at 1060.

“A defendant is entitled to an instruction upon his theory

of the case if the record contains evidentiary support for the

theory and the theory is supported by law.” United States v.

Lesina, 833 F.2d 156, 160 (9th Cir. 1987). In a murder trial,

evidence of a sudden quarrel or heat of passion can serve as

a defense to the murder charge, United States v. Quintero,

21 F.3d 885, 890 (9th Cir. 1994), because a heat of passion

and adequate provocation finding “negates the malice that

would otherwise attach,” United States v. Paul, 37 F.3d 496,

499 (9th Cir. 1994). A defendant who acts in the heat of

passion is guilty of voluntary manslaughter rather than

murder. Id.

For this reason, the prosecution bears the burden of

proving beyond a reasonable doubt the absence of the heat of

passion when the issue is properly presented, Mullaney v.

Wilbur, 421 U.S. 684, 703 (1975), and the trial court must

instruct the jury that the government bears this burden, see

UNITED STATES V. BEGAY 13

Lesina, 833 F.2d at 160. But such an instruction is only

required if the defense is fairly raised. See United States v.

Roston, 986 F.2d 1287, 1290 (9th Cir. 1993) (“The

prosecution is required to negate a killing in the heat of

passion only if that issue is ‘properly presented . . . .’”

(quoting Mullaney, 421 U.S. at 704)). To obtain a jury

instruction regarding voluntary manslaughter, a defendant

must demonstrate to the trial court that the evidence would

allow reasonable jurors to conclude the defendant acted out

of passion rather than malice. See Quintero, 21 F.3d at 891.

Here, the evidence presented at trial certainly suggested

that Begay and Williams quarreled prior to the shooting, but

defense counsel did not request an instruction for voluntary

manslaughter, nor an instruction that the prosecution bore the

burden of establishing the absence of heat of passion, nor did

the defense object to the lack of those instructions. Instead,

Begay’s theory at trial was that he did not shoot Ben.

Begay’s counsel did argue that the government had not met

its burden of proving that Begay acted with malice because

there was no evidence Begay deliberated before acting.

Specifically, he argued to the jury that “to deliberate and to

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

trigger,” and “[t]here’s no deliberation here.” But the

primary defense theory was that Begay was not the shooter,

and the government’s case focused on why the evidence

showed that Begay, not Williams or Lionel, shot Ben.

On this record, we cannot conclude the district court

plainly erred by failing to instruct the jury that the

government bore the burden of proving the absence of heat of

passion. Begay’s counsel did not attempt to demonstrate to

the court that the evidence would allow the jurors to conclude

that Begay acted in the heat of passion, and the evidence did

14 UNITED STATES V. BEGAY

not suggest sudden provocation; rather, it suggested that

Begay and Williams had argued about her alleged infidelities

before. The second-degree murder instruction was jointly

proffered by the defense and prosecution, no voluntary

manslaughter instruction was requested, and the instruction

Begay now insists should have been given could have

undermined his primary defense theory—that someone else

shot Ben—by inviting the jury to consider that even if Begay

was the shooter, he only acted upon sudden provocation.

Because the district court did not plainly err by giving the

jointly requested jury instructions, we affirm Begay’s

conviction for second-degree murder.

V

Begay’s second argument asks us to reverse his § 924(c)

conviction for discharging a firearm during a crime of

violence. He argues that second-degree murder can be

committed recklessly under § 1111(a), and urges us to

conclude that the statutory definition of “crime of violence”

does not encompass offenses that can be committed with a

reckless mens rea.

The parties disagree on the standard of review that we

should apply to this issue. Begay’s brief applied de novo

review because whether second-degree murder is a crime of

violence “is purely a question of law” and the government

will suffer no prejudice if we conduct a de novo analysis.

The government’s brief applied plain error review because

Begay never raised his “crime of violence” argument before

the district court. The government argued that if the district

court erred, its error was not plain because our court had

upheld other § 924(c) convictions based on second-degree

murder. See United States v. Begay, 567 F.3d 540, 552 (9th

UNITED STATES V. BEGAY 15

Cir. 2009), overruled on other grounds, 673 F.3d 1038 (9th

Cir. 2011) (en banc); United States v. Houser, 130 F.3d 867,

868 (9th Cir. 1997); United States v. Percy, 250 F.3d 720,

729 (9th Cir. 2001).

When asked at oral argument what standard of review

should apply, the government responded that the outcome of

our analysis would be the same whether we apply plain error

or de novo review. We agree with the government that the

difference between these two standards does not change the

outcome of Begay’s appeal, but the government’s original

brief relied on step two of the plain error standard (i.e., it

argued that if there was error, it was not plain) and devoted

just one paragraph to discussing the categorical approach.

The government’s supplemental brief focused on the

categorical analysis and did not argue the standard of review

at all. Because the outcome does not change, we assume

without deciding that de novo review applies in order to

provide the clearest answer to the categorical inquiry at the

heart of this long-pending appeal.3

3

The government did not ask us to revisit our precedent allowing the

application of de novo review to pure questions of law where we are

satisfied the government will not be prejudiced. See, e.g., United States

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

we may review de novo “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’” (quoting

United States v. Echavarria-Escobar, 270 F.3d 1265, 1268 (9th Cir.

2001)); United States v. Lillard, 935 F.3d 827, 833 (9th Cir. 2019). And

because the outcome is the same regardless of what standard we apply, we

need not consider whether that precedent can be reconciled with the

Supreme Court’s cases interpreting Federal Rule of Criminal

Procedure 52(b). See United States v. Yijun Zhou, 838 F.3d 1007, 1015

(9th Cir. 2016) (Graber, J., concurring) (arguing that “[t]he Supreme Court

has left very little room—if any at all—for the judicial creation of

16 UNITED STATES V. BEGAY

A

Begay was convicted of discharging a firearm during a

crime of violence pursuant to 18 U.S.C. § 924(c). This

conviction subjected him to a mandatory minimum sentence

of ten years that must be served consecutively. Section

924(c)(3) defines the term “crime of violence”:

[A]n offense that is a felony and–

(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.

We commonly refer to subpart A of § 924(c)(3) as the

“elements clause” and subpart B as the “residual clause.” See

United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The

Supreme Court recently invalidated the residual clause as

unconstitutionally vague.4 See id. at 2336. Therefore, the

exceptions to Rule 52(b)”).

4

After Begay filed his opening brief in this court, the Supreme Court

invalidated the residual clause in § 924(e)(2)(B), holding it is

unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597

(2015). Less than three years later, the Court extended Johnson’s

reasoning to the residual clause in 18 U.S.C. § 16. See Sessions v.

Dimaya, 138 S. Ct. 1204, 1213–16 (2018). Before the three-judge panel

issued its decision in this appeal, the Court invalidated the residual clause

in § 924(c)(3)(B). See Davis, 139 S. Ct. at 2336.

UNITED STATES V. BEGAY 17

inquiry in Begay’s case is limited to deciding whether his

murder conviction qualifies as a crime of violence under the

elements clause.

We apply the categorical approach described in Taylor v.

United States, 495 U.S. 575, 598–600 (1990), to decide

whether the offense of second-degree murder qualifies as a

crime of violence for purposes of § 924(c). See Borden v.

United States, 141 S. Ct. 1817, 1822 (2021). “Under that by-

now-familiar method, applicable in several statutory contexts,

the facts of a given case are irrelevant,” and our focus is

“whether the elements of the statute of conviction meet the

federal standard.” Id.; see also Moncrieffe v. Holder,

569 U.S. 184, 190 (2013) (“Accordingly, a state offense is a

categorical match with a generic federal offense only if a

conviction of the state offense necessarily involved . . . facts

equating to the generic federal offense” (alterations and

internal quotation marks omitted)).

As applied to the charges in Begay’s case, the categorical

approach requires that we ask whether the elements of the

second-degree murder statute necessarily involve a

defendant’s “use, attempted use, or threatened use of physical

force against the person or property of another.” 18 U.S.C.

§ 924(c)(3)(A). Unless the least culpable act criminalized in

the second-degree murder statute entails that force, the statute

is not a categorical match with the elements clause, and it

does not qualify as a crime of violence. See Borden, 141 S.

Ct. at 1822; see also United States v. Buck, 23 F.4th 919, 924

(9th Cir. 2022).

Federal law defines “murder” as “the unlawful killing of

a human being with malice aforethought.” 18 U.S.C.

18 UNITED STATES V. BEGAY

§ 1111(a)5; see also Ninth Cir. Model Crim. Jury Instruction

8.108. “To kill with malice aforethought means to kill either

deliberately and intentionally or recklessly with extreme

disregard for human life.” Id. (emphasis added); United

States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997). We have

described malice aforethought as “a callous and wanton

disregard of human life,” and “extreme indifference to the

value of human life.” United States v. Pineda-Doval,

614 F.3d 1019, 1037 (9th Cir. 2010) (emphasis added)

(internal quotation marks omitted); see also United States v.

Paul, 37 F.3d 496, 499 (9th Cir. 1994) (“To establish malice

or malice aforethought in a homicide prosecution, the

government must prove that the defendant killed intentionally

or recklessly with extreme disregard for human life.”).

The mens rea of “malice 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.” Pineda-

Doval, 614 F.3d at 1038. Here, we focus on the mental state

of depraved heart (i.e., reckless indifference) because it

encompasses the least culpable conduct criminalized by

§ 1111(a).

B

When identifying crimes of violence, the law

distinguishes between the “four states of mind, as described

in modern statutes and cases, that may give rise to criminal

liability.” Borden, 141 S. Ct. at 1823. “[I]n descending order

5

Section 1111(a) identifies several specific types of murder that

qualify as murder in the first degree, and defines “[a]ny other murder [as]

murder in the second degree.”

UNITED STATES V. BEGAY 19

of culpability,” those mental states are: purpose, knowledge,

recklessness, and negligence. Id. Over twenty years ago in

United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.

2001), our court concluded that a crime of violence could be

committed recklessly but not negligently, see id. at 1145.

The Supreme Court partially affirmed our interpretation in

Leocal v. Ashcroft, 543 U.S. 1 (2004), where it held that

offenses that may be committed with a mens rea of

negligence fall short of qualifying as crimes of violence under

the elements clause of 18 U.S.C. § 16(a), see 543 U.S.

at 9–10, but Leocal did not address crimes that may be

committed with a reckless mens rea.6 Leocal interpreted the

word “use” in the phrase “use, attempted use, or threatened

use of physical force” to require “a higher degree of intent

than negligent or merely accidental conduct,” and it deemed

“critical” § 16(a)’s requirement that a person use “force

against the person or property of another.” Id. at 9. After

Leocal, we held that “crimes involving the reckless use of

force” do not constitute crimes of violence because

“[r]eckless conduct, as generally defined, is not purposeful.”

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129–30 (9th

Cir. 2006) (en banc) (holding “neither recklessness nor gross

negligence is a sufficient mens rea to establish that a

conviction is for a crime of violence”).

6

The elements clause in 18 U.S.C. § 16 is “virtually identical” to the

one in § 924(c)(3), so “we interpret their plain language in the same

manner.” United States v. Benally, 843 F.3d 350, 353–54 (9th Cir. 2016).

The elements clause in the ACCA’s definition of “violent felony” is also

nearly identical to § 924(c)(3)(A) and § 16(a), but it only applies to

offenses that have “as an element the use, attempted use, or threatened use

of physical force against the person of another,” § 924(e)(2)(B)(i), as

opposed to “against the person or property of another,” § 924(c)(3)(A).

Cf. Borden, 141 S. Ct. at 1824.

20 UNITED STATES V. BEGAY

In Voisine v. United States, 136 S. Ct. 2272 (2016), the

Supreme Court considered whether a Maine conviction for

domestic assault that included a mens rea of “intentionally,

knowingly, or recklessly” qualified as a “misdemeanor crime

of domestic violence” pursuant to 18 U.S.C. § 922(g)(9), see

136 S. Ct. at 2277–78. The phrase “misdemeanor crime of

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

to be a misdemeanor that “has, as an element, the use or

attempted use of physical force,” and is “committed by a

current or former spouse, parent, or guardian of the victim”

or other similar individuals as defined by the statute. As in

Leocal, the Court focused on the term “use” in the phrase

“use or attempted use of physical force” to conclude that “the

force involved in a qualifying assault must be volitional,”

because “an involuntary motion, even a powerful one, is not

naturally described as an active employment of force.”

Voisine, 136 S. Ct. at 2278–79. The Court concluded that

reckless conduct sufficed, but the elements clause at issue in

Voisine did not require that a defendant use force “against

another,” which Leocal described as “critical.” Voisine

“made clear that other statutory definitions—whether the one

in Leocal or the near-identical one in the ACCA’s elements

clause—might exclude reckless offenses.” Borden, 141 S. Ct.

at 1825.7

Borden picked up where Voisine left off. There, Charles

Borden pleaded guilty to a felon-in-possession charge, id.

at 1822, and the government sought an enhanced sentence

pursuant to the ACCA. Borden argued that his prior

7

In the wake of Voisine, Leocal, and Fernandez-Ruiz, we held that

involuntary manslaughter—which requires a mens rea of “gross

negligence”—is not a crime of violence under § 924(c)(3). United States

v. Benally, 843 F.3d 350, 354 (9th Cir. 2016).

UNITED STATES V. BEGAY 21

conviction for reckless aggravated assault under Tennessee

law did not qualify as a “violent felony” because the

Tennessee statute only required reckless conduct. Id. Thus,

the question presented to the Supreme Court in Borden was

“whether [the ACCA’s] elements clause’s definition of

‘violent felony’—an offense requiring the ‘use of physical

force against the person of another’—includes offenses

criminalizing reckless conduct.” Id. at 1825. Borden decided

that reckless conduct does not meet the standard for a “violent

felony” because “[t]he phrase ‘against another,’ when

modifying the ‘use of force,’ demands that the perpetrator

direct his action at, or target, another individual” and

reckless conduct is not aimed in that prescribed manner. Id.

(emphasis added).

Begay and the dissent both argue that Borden supports the

conclusion that a § 1111(a) murder conviction does not

qualify as a crime of violence because, they argue, § 1111(a)

may be conducted with a mens rea of recklessness. But the

Borden Court only considered whether ordinary reckless

conduct necessarily satisfies the elements clause, see 141 S.

Ct. at 1825; it expressly declined to reach whether offenses

that may be committed with mental states between ordinary

recklessness and knowledge can qualify as crimes of

violence. Id. at 1825 n.4. Borden’s footnote 4 is

unambiguous on this point. It reads: “Some States recognize

mental states (often called ‘depraved heart’ or ‘extreme

recklessness’) between recklessness and knowledge. We

have no occasion to address whether offenses with those

mental states fall within the elements clause.” Borden, 141 S.

Ct. at 1825 n.4. Borden went out of its way to signpost that

it did not reach mental states like the one at issue here: those

between recklessness and knowledge. See id. Though

Borden did not squarely decide the issue presented in Begay’s

22 UNITED STATES V. BEGAY

appeal, its analysis of the statutory phrase “against the person

of another” is instructive.

C

The elements clause in § 924(c) provides that a felony

offense qualifies as a crime of violence if it “has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another.” 18 U.S.C.

§ 924(c)(3)(A). Borden explained that the ACCA’s elements

clause necessarily requires conduct that is “oppositional” in

nature; i.e., conduct in which one “actively employs physical

force.” 141 S. Ct. at 1826. From there, the Court reasoned

that the term “against” within the phrase “use of physical

force against the person of another” “introduc[es] [a]

conscious object” that is the recipient of the force. Id.

Drawing on Borden, we conclude that a conviction for

second-degree murder pursuant to § 1111(a) constitutes a

crime of violence because murder is the unlawful killing of a

human being with malice aforethought, see 18 U.S.C.

§ 1111(a), and to kill with malice aforethought means to kill

either deliberately or recklessly with extreme disregard for

human life, see Ninth Cir. Model Crim. Jury Instruction

8.108. As we explained in Pineda-Doval, malice

aforethought requires a quantum of risk that is very high and

also requires that the nature of the risk concern injury to

others. See 614 F.3d at 1038 (explaining that malice

aforethought requires conduct creating “a very high degree of

risk of injury to other persons” and that the defendant “be

aware of that risk” (internal quotation marks omitted)).

A § 1111(a) conviction qualifies as a crime of violence

because a defendant who acts with the requisite mens rea to

UNITED STATES V. BEGAY 23

commit second-degree murder necessarily employs force

“against the person or property of another,” and rather than

acting with ordinary recklessness, the defendant acts with

recklessness that rises to the level of extreme disregard for

human life. The First Circuit reached a similar conclusion in

United States v. Báez-Martínez, 950 F.3d 119, 127–28 (1st

Cir. 2020). Although the First Circuit ruled before Borden,

its reasoning is substantially similar to the reasoning we adopt

here.

Our case law recognizes that there are varying degrees of

recklessness. For example, we have frequently described the

concept of “depraved heart” as the functional equivalent of

“reckless and wanton, and a gross deviation from the

reasonable standard of care,” Pineda-Doval, 614 F.3d

at 1038, and we distinguish reckless conduct that amounts to

a depraved heart from conduct involving “simple

recklessness,” id. at 1040. In Pineda-Doval, we explained

that a “district court’s finding of recklessness is not

equivalent to a finding of malice aforethought” and “second-

degree murder require[s] a finding of extreme recklessness

evincing disregard for human life, not simple recklessness.”8

8

We also explained in Pineda-Doval that “the expansion of malice

aforethought since early American common law” supports why we

distinguish the extreme reckless conduct involved in depraved heart

murders from ordinary recklessness. Id. at 1038. At early common law,

“[m]alice aforethought was meant literally”; “murder required malice, an

intent to kill and perhaps also an element of hatred, and aforethought,

advance planning or deliberation.” Id. (internal quotation marks omitted).

Over time, courts expanded the crime of murder to “killings that, while not

specifically intended or planned, were grievous enough to be considered

murder.” Id. See also Báez-Martínez, 950 F.3d at 125 (“The mens rea

required for murder at common law was and remains ‘malice

aforethought.’”).

24 UNITED STATES V. BEGAY

Id. (emphasis added); see also United States v. Esparza-

Herrera, 557 F.3d 1019, 1024 (9th Cir. 2009) (per curiam)

(concluding that Arizona’s aggravated assault statute “is

broader than the Model Penal Code’s definition of aggravated

assault because the Arizona statute alone encompasses acts

done with ordinary recklessness” (emphasis added)). “The

difference between th[e] recklessness [that] displays

depravity and such extreme and wanton disregard for human

life as to constitute ‘malice’ and th[e] recklessness that

amounts only to manslaughter lies in the quality of awareness

of the risk.” United States v. Lesina, 833 F.2d 156, 159 (9th

Cir. 1987) (quoting United States v. Dixon, 419 F.2d 288,

292–93 (D.C. Cir. 1969) (Leventhal, J., concurring)).

The categories of criminal homicide reflect the

distinctions between degrees of recklessness. “A person acts

recklessly . . . when he consciously disregards a substantial

and unjustifiable risk . . . of such a nature and degree that . . .

its disregard involves a gross deviation from the standard of

conduct that a law-abiding person would observe in the

actor’s situation.” Model Penal Code § 2.02(2)(c) (2021).

Accordingly, criminal homicide “constitutes manslaughter

when . . . it is committed recklessly.” § 210.3(1)(a)

(emphasis added). But “criminal homicide constitutes

murder when . . . it is committed recklessly under

circumstances manifesting extreme indifference to the value

of human life.” § 210.2(1)(b) (emphasis added).

We recognize that some of our earlier case law suggested

that a crime of violence requires intentional conduct. See

United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir.

2008) (citing Leocal and Fernandez-Ruiz and stating “in

order to be a predicate offense under . . . 18 U.S.C. § 16 . . .

the underlying offense must require proof of an intentional

UNITED STATES V. BEGAY 25

use of force or a substantial risk that force will be

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

v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)

(“The bedrock principle of Leocal is that to constitute a

federal crime of violence an offense must involve the

intentional use of force against the person or property of

another.”). But our holding in Gomez-Leon was that

“homicide committed with a mens rea of only ordinary

negligence” is not a crime of violence. 545 F.3d at 795.

Similarly, Fernandez-Ruiz held only that offenses committed

with a mens rea of recklessness or gross negligence do not

qualify as crimes of violence. See 466 F.3d at 1130. We are

persuaded that the reasoning of Borden sufficiently

undermines our prior authority suggesting that anything less

than intentional conduct does not qualify as a crime of

violence. The distinction between degrees of recklessness is

critical to our conclusion. See Borden, 141 S. Ct. at 1825 n.4.

The dissent argues that the degree of recklessness

required for second-degree murder cannot be characterized as

“oppositional,” but it does not grapple with the fact that the

killing of another human being with malice aforethought

requires finding that the defendant acted with extreme

indifference, and that the indifference was toward human life.

The elements of second-degree murder stand in stark contrast

to the elements of offenses that do not require a showing of

malice aforethought. Second-degree murder does not require

conduct intended to harm, nor that a defendant target his

conduct at any particular individual, but as illustrated by the

examples described in the dissent, the conduct is fairly

characterized as extreme and necessarily oppositional because

a defendant “certainly must be aware that there are potential

victims before he can act with indifference toward them.”

United States v. Báez-Martínez, 950 F.3d 119, 127 (1st Cir.

26 UNITED STATES V. BEGAY

2020) (comparing ordinary “reckless conduct” to conduct

committed with malice aforethought). Accordingly, as the

First Circuit observed, a defendant who acts with extreme

indifference to the value of human life can “fairly be said to

have actively employed force (i.e., ‘use[d]’ force) ‘against the

person of another.’” Id. (alterations in original).

D

The Supreme Court has expressly considered a statute’s

“context and purpose” when applying the categorical

approach, even though the facts of a case are irrelevant in a

categorical analysis. See, e.g., Borden, 141 S. Ct. at 1830;

see also Báez-Martínez, 950 F.3d at 127 (“[I]n interpreting

any statute, we must not lose sight of the common sense that

likely informed Congress’s understanding of the ACCA’s

terms.”). Leocal endorsed the idea that context must be

considered when it stated, “we cannot forget that we

ultimately are determining the meaning of the term ‘crime of

violence.’” Borden, 141 S. Ct. at 1830 (quoting Leocal,

543 U.S. at 11).

The Supreme Court looked to context and purpose in

Voisine and considered that, rather than imposing a

mandatory multi-year consecutive prison term, the law at

issue in that case bars people convicted of misdemeanor acts

of domestic violence from possessing firearms. See 136 S.

Ct. at 2280. The Court also considered that Congress did not

require the force in that domestic violence statute to be

directed against another. See id. Voisine concluded that

reckless conduct qualified because the word “use,” standing

alone, “is indifferent as to whether the actor has the mental

state of intention, knowledge, or recklessness.” Id. at 2279.

Similarly, Borden considered that the ACCA imposes an

UNITED STATES V. BEGAY 27

exceptionally severe sanction for those convicted of violent

felonies, and that the inclusion of offenses that may be

committed recklessly would sweep offenders, including

reckless drivers, into a statutory scheme intended to enhance

the prison terms of “armed career” offenders. 141 S. Ct.

at 1830–31.

Here, too, context is important. Begay was convicted of

second-degree murder and, on the whole, offenses charged as

murder are among the most culpable of crimes. See Tison v.

Arizona, 481 U.S. 137, 157 (1987) (holding “that the reckless

disregard for human life implicit in knowingly engaging in

criminal activities known to carry a grave risk of death

represents a highly culpable mental state”). These crimes

necessarily require a mental state of malice aforethought,

which, as we have explained, involves “an intentional act that

ha[s] a high probability of resulting in death.” Pollard v.

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

Begay calls our attention to reckless or drunk driving

resulting in death and argues that it involves “prime examples

of reckless conduct” that cannot satisfy the elements clause.

Begay is correct to focus our analysis on the least culpable

conduct that qualifies as second-degree murder, but we are

mindful that § 924(c) necessarily arises only in situations

where a firearm is involved. It will be the exceptionally rare

drunk driving case that involves second-degree murder and

the discharge of a firearm.9

9

See In re Irby, 858 F.3d 231, 234 (4th Cir. 2017) (observing “the

categorical approach is a particularly bad fit in § 924(c) cases because

§ 924(c) . . . penalizes, in broad terms, the use of a firearm during violent

crimes”).

28 UNITED STATES V. BEGAY

As the First Circuit observed, the decision to charge a

defendant with murder only arises in the unusual drunk

driving case, because “in terms of moral depravity, murder is

often said to stand alone among all other crimes.” Báez-

Martínez, 950 F.3d at 128 (internal quotation marks omitted).

The charging decisions in these cases are consistent with our

distinction between degrees of recklessness because “[c]ases

where the defendant drove recklessly, but not wildly,

generally fall into the lesser categories of manslaughter or

criminal negligence.” United States v. Pineda-Doval,

614 F.3d 1019, 1030 (9th Cir. 2010). As the First and Fourth

Circuits have observed, “‘the vast majority of vehicular

homicides,’ including ‘the average drunk driving homicide,’

are treated only as manslaughter.” Báez-Martínez, 950 F.3d

at 126 (quoting United States v. Fleming, 739 F.2d 945, 948

(4th Cir. 1984)) (explaining that a drunk driving homicide is

more likely to be treated as murder in the extreme instances,

such as “when a defendant with a blood alcohol content of

.315% drives nearly 100 miles per hour in the oncoming lane

of a busy thoroughfare and kills another driver in a

collision”); cf. United States v. Gomez-Leon, 545 F.3d 777,

793 (9th Cir. 2008) (explaining that most vehicular homicide

statutes “require proof of intoxication while driving a vehicle

and are punished less severely than manslaughter”). Nothing

in our opinion should be read to suggest that a drunk driving

case that results in a death necessarily represents conduct

evidencing the use of force directed at another with extreme

disregard for human life. But consideration of context

reinforces the conclusion that second-degree murder qualifies

as a crime of violence pursuant to the elements clause of

§ 924(c)(3).

VI

UNITED STATES V. BEGAY 29

Finally, Begay challenges the district court’s award of

restitution. We generally review de novo the legality of an

order of restitution, see United States v. Luis, 765 F.3d 1061,

1065 (9th Cir. 2014), but we review for plain error when the

defendant objects to restitution for the first time on appeal,

United States v. Van Alstyne, 584 F.3d 803, 819 (9th Cir.

2009).

The Mandatory Victims Restitution Act (MVRA) requires

a court to order a defendant to pay restitution “to the victim

of the offense or, if the victim is deceased, to the victim’s

estate,” “when sentencing a defendant convicted of an

offense” that is a “crime of violence” as defined in 18 U.S.C.

§ 16. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(i). The MVRA

defines “victim” as “a person directly and proximately

harmed as a result of the commission of [the] offense.”

§ 3663A(a)(2). “The goal of restitution under the MVRA is

to make the victim whole. Consequently, any award is

limited to the victim’s actual losses.” United States v.

Anderson, 741 F.3d 938, 951 (9th Cir. 2013) (citations and

internal quotation marks omitted). “Nonetheless, exact

precision is not required and district courts do have a degree

of flexibility in accounting for a victim’s complete losses.”

Id. at 954.

The district court in Begay’s case adopted the restitution

award recommended by the probation officer in the

presentence report. The probation officer recommended an

award of $23,622, which included $1,200 to the Navajo

Division of Social Services and $22,422 to Ben’s mother for

30 UNITED STATES V. BEGAY

various expenses.10 Begay did not challenge the presentence

report’s recommendation for restitution. At sentencing, he

and his counsel confirmed their lack of objections.

On appeal, Begay challenges the district court’s

restitution award on two grounds. First, he contends the

district court’s restitution award was plain error because he

was not convicted of a crime of violence. This argument fails

because, as we have explained, his second-degree murder

conviction does qualify as a “crime of violence.” The MVRA

mandated the district court to order restitution. See

§ 3663A(a)(1), (c)(1)(A)(i).

Second, Begay contends the district court “made no

findings at all about the basis for its restitution award, and it

appears very likely the award exceeded the victim’s losses.”

18 U.S.C. § 3664 prescribes the procedure for calculating

restitution orders. It directs the district court to “order the

probation officer to obtain . . . information sufficient for the

court to exercise its discretion in fashioning a restitution

order” and include such information in the presentence report.

§ 3664(a). Federal Rule of Criminal Procedure 32 permits a

court to “accept any undisputed portion of the presentence

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).

However, the district court is limited to ordering a restitution

award that reflects the victim’s “actual losses.” Anderson,

741 F.3d at 951.

10

According to the presentence report, the $22,422 represented the

following expenses: $1,700 for traditional ceremonies after Ben’s death;

$80 for gasoline; $60 for food; $1,200 for funeral costs; $50 for Ben’s

burial clothing; $100 for flowers; $200 for the reception hall; $19,000 for

a replacement truck; $707 for insurance for the new truck; and $525 for

insurance Ben’s mother continued to pay on the van in which the crime

was committed.

UNITED STATES V. BEGAY 31

Here, the district court properly relied on the presentence

report to determine the amount of restitution that Begay

owed, but the court’s order provides no explanation “to

support its probable accuracy,” id. at 951–52. Significantly,

Ben’s mother was awarded $19,000 for the cost of a new

truck to replace the van in which Ben was shot. But

§ 3663A(b)(1)(B) limits a restitution award for “damage to or

loss or destruction of property” to “the greater of . . . the

value of the property on the date of the damage, loss, or

destruction; or . . . the value of the property on the date of

sentencing, less . . . the value (as of the date the property is

returned) of any part of the property that is returned.” The

district court did not explain how or whether the $19,000 it

awarded to compensate Ben’s mother for the damaged van

satisfied § 3663A.

“Remand is appropriate where the restitution award lacks

an adequate evidentiary basis and the district court failed to

explain its reasoning.” Anderson, 741 F.3d at 952 (internal

quotation marks and alterations omitted). Because the district

court did not comply with § 3663A, we vacate its restitution

award and remand for recalculation and for the district court

to explain its reasoning.

VII

We affirm Begay’s convictions for second-degree murder

and for discharging a firearm during a crime of violence. We

vacate the district court’s order of mandatory restitution and

remand for recalculation.

AFFIRMED in part; VACATED and REMANDED in

part.

32 UNITED STATES V. BEGAY

MURGUIA, Chief Judge, with whom Judge CLIFTON joins,

concurring:

I agree with the majority opinion and therefore join it in

full. I write separately only to amplify my own views of this

case.

In Borden v. United States, 141 S. Ct. 1817 (2021), a

plurality of the Supreme Court concluded that the phrase

“against the person of another” demands that “the perpetrator

direct his action at, or target, another individual.” Id. at 1825

(plurality opinion).1 In applying this standard to second-

degree murder under 18 U.S.C. § 1111, two considerations

strike me as particularly important. First, someone who

commits second-degree murder “certainly must be aware” of

the presence of “potential victims.” United States v. Báez-

Martínez, 950 F.3d 119, 127 (1st Cir. 2020). Second,

someone who commits second-degree murder must be aware

that his conduct creates “a very high degree of risk of injury”

to these potential victims. United States v. Pineda-Doval,

614 F.3d 1019, 1038 (9th Cir. 2010) (internal quotation marks

omitted). In light of these considerations, I am persuaded that

someone who commits second-degree murder necessarily

directs his action at, or targets, another individual: if the

perpetrator is aware of both the presence of potential victims

and the very high risk of hitting them, then it is fair to say that

the perpetrator has directed his actions against, or targeted,

other individuals, even if he neither aims at nor consciously

desires to harm them.

1

Because the parties treat the Borden plurality opinion as binding

Supreme Court precedent, I assume for purposes of my analysis that it is.

UNITED STATES V. BEGAY 33

As our dissenting colleagues ably point out, this is not the

only plausible reading of the Borden plurality’s textual

analysis. But I am persuaded that it is the more sensible

reading, particularly once we factor context, purpose, and

common sense into our analysis. See Borden, 141 S. Ct.

at 1830–32 (context and purpose); Leocal v. Ashcroft,

543 U.S. 1, 11 (2004) (same); Báez-Martínez, 950 F.3d at 127

(common sense); In re Irby, 858 F.3d 231, 237 (4th Cir.

2017) (same).

WARDLAW, Circuit Judge, dissenting in part:

I respectfully dissent from Parts V and VI of the majority

opinion. I am pleased to concur in Parts I, II, and III of Judge

Ikuta’s excellent partial dissent, except as to a supposed need

to remedy any “problem” with the legal conclusion that

18 U.S.C. § 1111(a) second-degree murder is not a

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

Although it is true that Borden v. United States, 141 S. Ct.

1817 (2021), did not address whether “depraved heart”

second-degree murder is a categorical match with § 924(c)’s

elements clause, its rationale compels the conclusion that it is

not, as Judge Ikuta explains. But this is not a “crazy pills”

conclusion, see United States v. Begay, 934 F.3d 1033, 1042

(9th Cir. 2019) (Smith, J., dissenting) (quoting Ben Stiller

(Director), Zoolander [Film], United States: Paramount

Pictures (2001)); it derives directly from the Court’s

development of the categorical approach and its

corresponding invalidation of vague residual clauses

purporting to define violent crimes.

34 UNITED STATES V. BEGAY

However, I disagree with Judge Ikuta’s suggestion that

the Court overrule its residual clause jurisprudence. Congress

enacted a vague residual clause in the Armed Career Criminal

Act definition of “violent felony,” which the Court struck

down in Johnson v. United States, 576 U.S. 591 (2015).

Congress did the same in 18 U.S.C. § 16, defining “crimes of

violence,” which the Court struck down in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), affirming our court’s

opinion in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).

Most recently, the Court struck down § 924(c)’s residual

clause on the same void for vagueness grounds in United

States v. Davis, 139 S. Ct. 2319 (2019).

In Davis, Justice Gorsuch explained why these residual

clauses are so troubling: “the imposition of criminal

punishment can’t be made to depend on a judge’s estimation

of the degree of risk posed by a crime’s imagined ‘ordinary

case.’” Id. at 2326. There, the government had to concede

that courts had long interpreted § 924(c)’s residual clause to

require courts to inquire whether in the ordinary case the

conduct encompassed by the elements of the offense

presented a substantial risk of force. Id. at 2326–27. The

Court rejected the government’s suggestion that it could save

the residual clause by “abandon[ing] the traditional

categorical approach” and applying a case-specific approach.

Id. at 2327. The Court concluded that the statute could not

bear that interpretation, and down it went. And surely

Congress could readily draft language that amended § 924(c)

to include a firearm enhancement for second-degree murder,

including extremely reckless conduct that results in the death

of a human being.

UNITED STATES V. BEGAY 35

For now, we are left with the elements clause. And a

faithful application of the categorical approach1 and Supreme

Court precedent leads to the counter-intuitive conclusion that

second-degree murder is not a crime of violence under

§ 924(c). And although the result here is counterintuitive,

judges are not supposed to be guided by their intuition, but by

the law.

As a practical matter, what does this mean? As the Court

has noted, “[W]hen a defendant’s § 924(c) conviction is

invalidated, courts of appeals ‘routinely’ vacate the

defendant’s entire sentence on all counts ‘so that the district

court may increase the sentences for any remaining counts’

if such an increase is warranted.” Id. at 2336 (quoting Dean

v. United States, 137 S. Ct. 1170, 1176 (2017)). Though I

would affirm Begay’s second-degree murder conviction, I

would vacate the sentence on both counts of conviction and

1

Some commentators have noted that despite the recent criticism of

the categorical approach, it’s been around for at least a century, and it’s

“here to stay,” based on the Court’s Davis opinion. See Amit Jain &

Phillip Dane Warren, An Ode to the Categorical Approach, 67 UCLA L.

Rev. Discourse 132, 151–52 (2019).

36 UNITED STATES V. BEGAY

remand for resentencing,2 as well as vacate the award of

restitution.3

IKUTA, Circuit Judge, with whom Judge VANDYKE joins,

dissenting in part:

Common sense dictates that second-degree murder under

18 U.S.C. § 1111(a) constitutes a crime of violence. Indeed,

one judge recently argued that a contrary conclusion would

make him feel that he was “taking crazy pills.” United States

v. Begay, 934 F.3d 1033, 1042 (9th Cir. 2019) (N.R. Smith,

J., dissenting) (citation omitted), reh’g en banc granted,

opinion vacated, 15 F.4th 1254 (9th Cir. 2021).

Unfortunately, we are not dealing with common sense here,

but with the law, and with a conclusion that is “better

explained by history than by logic.” United States v. Bruce,

394 F.3d 1215, 1218 (9th Cir.2005) (discussing the exercise

of criminal jurisdiction in Indian country). Therefore, I must

2

Begay was sentenced to a total term of 324 months on both counts.

The probation office had calculated a guideline sentencing range of

324–405 months for count one, the second-degree murder charge, and, of

course, the consecutive mandatory 120 months for count two, the § 924(c)

charge. The experienced district court judge considered the 18 U.S.C.

§ 3553 factors—especially the nature and circumstances of the crime,

Begay’s age and likelihood of rehabilitation, and the statutory purposes of

sentencing—and concluded 27 years was the appropriate sentence. He

therefore sentenced Begay to 204 months on count one, a variance of

120 months. Upon resentencing, this calculation might change.

3

I agree that the award of restitution must be vacated because second-

degree murder isn’t a categorical “crime of violence” under 18 U.S.C.

§ 16’s elements clause. 18 U.S.C. § 3663A(c)(1)(A)(i). SSI Dissent 38.

UNITED STATES V. BEGAY 37

dissent from the majority’s effort to reach a common sense

result that is contrary to the Supreme Court’s clear direction.

When it enacted 18 U.S.C. § 924(c), Congress made clear

that second-degree murder qualified as a crime of violence.1

The statute defined a “crime of violence” in two different

ways. One definition—the “elements” clause—defined a

crime of violence as an offense that “has as an element the

use, attempted use, or threatened use of physical force against

the person or property of another.” 18 U.S.C. § 924(c)(3)(A).

The Supreme Court later defined the use of force “against

another” in a similarly worded statute as demanding that “the

perpetrator direct his action at, or target, another individual.”

Borden v. United States, 141 S. Ct. 1817, 1825 (2021)

(plurality opinion).2

1

For purposes of this appeal, the wording of the elements clause and

residual clause in the definition of “violent felony” in the Armed Career

Criminal Act (ACCA), see 18 U.S.C. § 924(e)(2)(B), is materially the

same as the wording of the elements and residual clauses in 18 U.S.C.

§ 924(c)(3), cf. United States v. Davis, 139 S. Ct. 2319, 2325 (2019);

compare 18 U.S.C. § 924(c)(3)(A) (defining “crime of violence” to

include an offense that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another”) with 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” to

include an offense that “has as an element the use, attempted use, or

threatened use of physical force against the person of another”).

Therefore, Borden and other cases analyzing these clauses are equally

applicable here.

2

Because the Borden plurality opinion is a logical subset of Justice

Thomas’s concurrence, the plurality opinion is controlling. See United

States v. Davis, 825 F.3d 1014, 1028 (9th Cir. 2016) (en banc) (citing

Marks v. United States, 430 U.S. 188 (1977)). Justice Thomas concurred

in the Borden plurality opinion on the ground that the phrase “use of

physical force” has “a well-understood meaning applying only to

intentional acts designed to cause harm.” Borden, 141 S. Ct. at 1835

38 UNITED STATES V. BEGAY

The second definition of a “crime of violence” under

§ 924(c)—the “residual” clause—defined a crime of violence

as an offense “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)(B). Second-degree murder under

§ 1111(a) meets this definition because it concerns “killings

that, while not specifically intended or planned, [are] grievous

enough to be considered murder.” United States v. Pineda-

Doval, 614 F.3d 1019, 1038 (9th Cir. 2010). Obviously,

Congress meant for second-degree murder to qualify as a

crime of violence under the residual clause.

But the Supreme Court subsequently struck down the

residual clause as being unconstitutionally vague. See United

States v. Davis, 139 S. Ct. 2319, 2336 (2019). And, as

explained below, second-degree murder under 18 U.S.C.

§ 1111(a) does not necessarily involve directed or targeted

conduct, and so is not a categorical match to the elements

clause, the only definition of “crime of violence” remaining

in § 924(c). As a result, although Congress meant for second-

degree murder to qualify as a crime of violence for purposes

of § 924(c), judicial interpretations of that statute have

blocked its original meaning. See Borden, 141 S. Ct. at 1835

(Thomas, J., concurring) (urging the Court to overrule its

opinion invalidating the residual clause in the Armed Career

Criminal Act (ACCA), because a crime that would “satisfy

(Thomas, J., concurring) (quoting Voisine v. United States, 136 S. Ct.

2272, 2279, 2290 (2016) (Thomas, J., dissenting)). The Borden plurality

opinion is narrower than this concurrence, because the plurality reasons

that the phrase “use of force” must be modified by the phrase “against

another” in order to require that the perpetrator consciously “direct his

action at, or target, another individual.” Borden, 141 S. Ct. at 1825.

UNITED STATES V. BEGAY 39

the residual clause” by “involv[ing] conduct that presents a

serious potential risk of physical injury to another” would not

necessarily qualify as a crime of violence under the elements

clause of the ACCA (citation omitted)).

Because we are bound by Supreme Court precedent, I

must reluctantly dissent.

I

Randly Begay was convicted of second-degree murder

under 18 U.S.C. § 1111(a), which provides that “[m]urder is

the unlawful killing of a human being with malice

aforethought.”3 The statute lists the types of murders that

qualify as murder in the first degree, and then states that

“[a]ny other murder is murder in the second degree.”

18 U.S.C. § 1111(a). Begay was also convicted of

discharging a firearm during a “crime of violence” under

18 U.S.C. § 924(c)(1)(A)(iii). The § 924(c) conviction relied

on the conclusion that the § 1111(a) second-degree murder

offense qualified as a crime of violence. But after Davis

struck down the residual clause in § 924(c)(3)(B), the term

“crime of violence” refers only to an offense that “has as an

element the use, attempted use, or threatened use of physical

force against the person or property of another.” 18 U.S.C.

§ 924(c)(3)(A).

In order to determine whether second-degree murder

under § 1111(a) is a crime of violence under the elements

3

The term “malice 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.” Pineda-Doval, 614 F.3d at 1038.

40 UNITED STATES V. BEGAY

clause, § 924(c)(3)(A), we apply the categorical approach set

forth in Taylor v. United States, 495 U.S. 575 (1990). Taylor

established a procedure for determining whether an offense

of conviction (such as second-degree murder) qualifies as a

generic federal offense (here, a “crime of violence” under the

elements clause). See id. at 601–02. To make this

determination, we must identify the elements of the generic

federal offense and compare them with the elements of the

statute defining the offense of conviction. If the elements of

the statute defining the offense of conviction match the

elements of the generic federal offense, then the offense of

conviction is a categorical match to the generic federal

offense. See Mathis v. United States, 136 S. Ct. 2243, 2248

(2016). If the statute defining the offense of conviction has

elements that do not match the elements of the generic federal

offense, then it is not a categorical match. See id. In

undertaking this analysis, we “ignore the facts of the case and

simply line up the crime’s elements alongside those of the

generic offense and see if they match . . . in doing so, we

must presume that the conviction rested upon nothing more

than the least of the acts criminalized” by the statute defining

the offense of conviction. United States v. Studhorse,

883 F.3d 1198, 1203 (9th Cir. 2018) (cleaned up).

The principles set out in Borden establish that § 1111(a)

second-degree murder is not a categorical match to a generic

“crime of violence” as defined by the elements clause of

§ 924(c). Recall that after Davis, the term “crime of

violence” is defined in § 924(c) solely as an offense that “has

as an element the use, attempted use, or threatened use of

physical force against the person or property of another.”

18 U.S.C. § 924(c)(3)(A). Borden held that “[t]he phrase

‘against another,’ when modifying the ‘use of force,’

demands that the perpetrator direct his action at, or target,

UNITED STATES V. BEGAY 41

another individual.” 141 S. Ct. at 1825. Said otherwise, to

commit a crime of violence under the elements clause, a

person must consciously use force against a particular target,

just like a general “deploy[s] his forces against a rival

regiment, or the chess master play[s] the Queen’s Gambit

against her opponent.” Id. Based on this definition, Borden

held that a person whose conduct “is not opposed to or

directed at another . . . does not come within the elements

clause.” Id. at 1827.

For this reason, a person who is convicted of a crime

involving reckless behavior does not engage in a crime of

violence under the elements clause, because reckless behavior

does not require the use of physical force against another.

See id. That is, a person engages in reckless behavior when

the person “consciously disregards a substantial and

unjustifiable risk attached to his conduct, in gross deviation

from accepted standards.” Id. at 1824 (internal quotation

marks and citation omitted); see also Voisine v. United States,

136 S. Ct 2272, 2279 (2016) (defining reckless behavior as

undertaking acts with awareness of their substantial risk of

causing injury, even where the harm caused by reckless

behavior “is the result of a deliberate decision to endanger

another”). Such reckless conduct does not necessarily

involve targeting: “[t]o the contrary, [the person’s] fault is to

pay insufficient attention to the potential application of

force.” Borden, 141 S. Ct. at 1827.

In light of Borden’s reasoning, second-degree murder

under § 1111(a) likewise does not qualify as a crime of

violence, because it does not necessarily include the element

of targeting. A jury can convict a defendant of second-degree

murder under § 1111(a) without finding the defendant used

force against a particular target. Section 1111(a) requires an

42 UNITED STATES V. BEGAY

unlawful killing with “malice aforethought.” In modern

criminal law, “malice aforethought” includes the mental state

of “depraved heart,” which is variously defined as “reckless

indifference” or “extreme recklessness.” Pineda-Doval, 614

F.3d at 1038, 1040. To convict a defendant of depraved heart

murder, the government needs to show only that the

defendant engaged in conduct (that resulted in the death of a

human being) with the mental state of depraved heart or

reckless indifference. The government would not need to

prove that the defendant targeted the murder victim; it is

enough if the defendant’s conduct created a “very high degree

of risk” of injury to other persons and the defendant had “an

awareness of [that] extreme risk,” exhibiting “an extreme

indifference to the value of human life.” Id. at 1038 (citation

omitted). Said otherwise, a depraved heart murder “may be

established by evidence of conduct which is reckless and

wanton, and a gross deviation from a reasonable standard of

care, of such a nature that a jury is warranted in inferring that

the defendant was aware of a serious risk of death or serious

bodily harm.” See id. (cleaned up). Under the natural

meaning of these words, this conduct is not directed “against

another” for purposes of the elements clause. See Borden,

141 S. Ct. at 1825. Because depraved heart murder does not

require the conscious targeting of a victim that is necessary to

establish the element of “against another,” id. at 1824, it does

not matter that depraved heart murder requires a more

extreme indifference to the value of human life, see Pineda-

Doval, 614 F.3d at 1039, than does recklessness, see Borden,

141 S. Ct. at 1825.4

4

Contrary to the majority’s claim, the dissent does not argue that

second-degree murder under § 1111(a) “may be conducted with a mens

rea of recklessness.” Majority at 21. The majority provides no citation to

the dissent to support this claim—nor could it, because the dissent

UNITED STATES V. BEGAY 43

Borden did not directly address the question of whether

depraved heart murder falls within the elements clause,

because that issue was not before the Court. See id. at 1825

n.4 (“Some States recognize mental states (often called

‘depraved heart’ or ‘extreme recklessness’) between

recklessness and knowledge. We have no occasion to address

whether offenses with those mental states fall within the

elements clause.”). But Borden’s reasoning makes clear that

an offense which does not require proof that the perpetrator

“direct[ed] his action at, or target[ed], another individual”

does not fall within the elements clause, because such an

offense does not involve the use of force “against another.”

Id. at 1825. Because the offense of depraved heart murder

under § 1111(a) does not require proof of conduct directed

“against another,” we must hold that it criminalizes conduct

outside the scope of the elements clause.

II

Despite this apparent mismatch between depraved heart

murder and the elements clause, depraved heart murder under

§ 1111(a) could nevertheless qualify as a crime of violence if,

as a practical matter, defendants are charged under that

section only for extremely reckless conduct that is directed at,

or targets, another individual. After all, a criminal statute

“creates a crime outside the generic definition of a listed

crime in a federal statute” only if there is “a realistic

probability, not a theoretical possibility,” that the government

would apply the criminal statute “to conduct that falls outside

the generic definition of a crime.” Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007). Thus, to prove that the

crime of conviction has been applied to conduct beyond the

contains no such argument.

44 UNITED STATES V. BEGAY

conduct criminalized in the generic federal offense, a

defendant must point to cases where courts “in fact did apply

the statute in the special (nongeneric) manner for which he

argues.” Id.

Begay has made that showing here. A review of federal

and state cases upholding convictions for second-degree

depraved heart murder, whether under § 1111(a) or under

state laws, shows that the crime encompasses conduct that

does not involve the conscious use of force targeting another.

For instance, our sister circuits have upheld the application of

§ 1111(a) to cases involving drunk driving, even though the

defendants’ conduct in those cases did not involve the use of

force in opposition to or targeted against another. Thus, the

Fourth Circuit sustained the § 1111(a) second-degree

depraved heart murder conviction of a drunk driver who was

speeding and driving the wrong way on a freeway when he

struck and killed another driver. See United States v.

Fleming, 739 F.2d 945 (4th Cir. 1984). The court reasoned

that to show malice aforethought, “the government need only

have proved that defendant intended to operate his car in the

manner in which he did with a heart that was without regard

for the life and safety of others.” Id. at 948; see also United

States v. Merritt, 961 F.3d 1105, 1118 (5th Cir. 2020)

(upholding a conviction for depraved heart murder under

§ 1111(a) resulting from drunk driving in the wrong lane

when defendant “was aware his drunk driving posed a serious

risk of death or serious bodily harm to others”); United States

v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995) (upholding a

second-degree depraved heart murder conviction under

§ 1111 for striking and killing another driver while driving

under the influence of alcohol and prescription drugs, despite

the defendant’s testimony “that he did not intend to hurt

anybody”). We have likewise recognized that second-degree

UNITED STATES V. BEGAY 45

depraved heart murder includes conduct that is not targeted,

such as “shooting a gun into a room that the defendant knows

to be occupied” or “driving a car at very high speeds along a

crowded main street.” Pineda-Doval, 614 F.3d at 1039.

State courts have likewise upheld depraved heart murder

convictions for crimes not involving the targeted use of force

against another (though states may use different terminology,

such as “reckless second-degree murder”). We may consider

these cases because “[m]alice aforethought is a concept that

originated with the common law and is used in 18 U.S.C.

§ 1111(a) in its common law sense,” and therefore we “do not

confine our consideration of the precedents to decisions of

federal courts interpreting the federal statute, but rather

consider other sources which may shed light on the issues of

this case.” Fleming, 739 F.2d at 947 n.2; see also Pineda-

Doval, 614 F.3d at 1039 (relying on collections of state cases

to define second-degree murder). These state cases

demonstrate that the common law has long recognized that a

person can commit a depraved heart murder when the

person’s extremely reckless behavior results in a victim’s

death, regardless whether the person used force against any

individual. For instance, a defendant whose dogs escaped

and mauled a child to death could be convicted of depraved

heart murder where the defendant’s recklessness, in ignoring

her dogs’ aggressiveness and failing to properly train or

secure her dogs, showed “an extreme indifference to the value

of human life.” State v. Davidson, 987 P.2d 335, 344 (Kan.

1999). In that case, the state was “not required to prove that

defendant knew her dogs would attack and kill someone.” Id.

In another case, defendants were convicted of second-degree

murder when a defendant sped down the wrong lane of a

public highway during a race in which his co-defendants

participated, resulting in the death of an individual traveling

46 UNITED STATES V. BEGAY

in the correct lane. See Stallard v. State, 348 S.W.2d 489,

490 (Tenn. 1961). The court noted that the defendants’

conduct implied “such a high degree of conscious and willful

recklessness as to amount to that malignity of heart

constituting malice,” and held that this recklessness justified

convicting the defendants who were not behind the wheel of

the crashing car as aiders and abettors, as well. See id.

(citation omitted). Finally, a defendant who set a couch on

fire in an abandoned building was properly charged with

depraved heart murder when the ensuing fire contributed to

the death of a fireman responding to the scene. See People v.

Arzon, 401 N.Y.S.2d 156, 157, 159 (N.Y. Sup. Ct. 1978).

Defendant’s actions demonstrated “a wanton and depraved

indifference to human life,” given that fire is “non-selective

and uncontrollable in its destructiveness.” Id. at 158.

The majority attempts to brush off such cases, at least in

the drunk driving context, on the ground that a crime of

violence under § 924(c) “necessarily arises only in situations

where a firearm is involved,” Majority at 28, and therefore it

“will be the exceptionally rare drunk driving case that

involves second-degree murder and the discharge of a

firearm,” Majority at 28. In other words, the majority reasons

that because § 924(c) applies to firearm offenses, a defendant

charged with a violation of § 924(c) would probably be

engaged in violent conduct with a firearm, rather than in

drunk driving.

But even if we recognize the “absurdity” of applying the

categorical approach to a § 924(c) conviction involving

violent offenses with firearms, we must likewise recognize

that “[o]ur precedent requires application of that approach.”

In re Irby, 858 F.3d 231, 234 (4th Cir. 2017); cf. Majority

at 28 n.9. This means that we must ignore the factual context

UNITED STATES V. BEGAY 47

of any particular case. See Descamps v. United States,

570 U.S. 254, 265 (2013). Even assuming that as a factual

matter, a defendant like Begay who is charged with both

second-degree murder under § 1111(a) and discharging a

firearm during a crime of violence under § 924(c) will

virtually always have used a firearm to commit the § 1111(a)

offense, the categorical approach prohibits consideration of

this factual context. See id. That is, for the purposes of the

categorical approach, all that matters is whether the “crime of

conviction . . . [does or] does not correspond to the relevant

generic offense.” Id. “If any—even the least culpable—of

the acts criminalized” by § 1111(a) as second-degree murder

do not entail the targeted or oppositional conduct required to

qualify as a crime of violence under the elements clause, then

“the statute of conviction does not categorically match the

federal standard.” Borden, 141 S. Ct. at 1822. Thus, the

majority’s mindfulness that “§ 924(c) necessarily arises only

in situations where a firearm is involved,” Majority at 28, is

irrelevant to the analysis of this issue.

III

In holding otherwise, the majority merely assumes the

conclusion that “a conviction for second-degree murder

pursuant to § 1111(a) constitutes a crime of violence”

because “a defendant who acts with the requisite mens rea to

commit second-degree murder necessarily employs force

‘against the person or property of another.’” Majority

at 22–23 (emphasis added). The majority acknowledges that

depraved heart murder does not require “that a defendant

target his conduct at any particular individual,” but relies on

Báez-Martinez for the proposition that depraved heart murder

is “necessarily oppositional because a defendant ‘certainly

must be aware that there are potential victims before he can

48 UNITED STATES V. BEGAY

act with indifference toward them.’” Majority at 26 (quoting

United States v. Báez-Martinez, 950 F.3d 119, 127 (1st Cir.

2020)). The concurrence likewise relies on a tautology,

arguing that depraved heart murder, which requires only that

“the perpetrator is aware of both the presence of potential

victims and the very high risk” of harming them, C.J.

Murguia Concurrence at 33, inherently involves directed or

targeted actions against such potential victims, even if the

perpetrator “neither aims at nor consciously desires to harm

them,” C.J. Murguia Concurrence at 33.

But this circular reasoning is not persuasive. First, the

majority’s reliance on Báez-Martinez is misplaced, because

it was decided before Borden limited “crimes of violence” to

offenses involving oppositional or targeted conduct (and

before Borden made clear that reckless offenses did not so

qualify). If anything, Báez-Martinez is contrary to Borden,

which established that a person’s awareness and conscious

disregard of a substantial and unjustifiable risk to another

does not mean the person is engaged in the “use of physical

force against the person of another,” because that element

“demands that the perpetrator direct his action at, or target,

another individual.” Borden, 141 S. Ct. at 1825. Contrary to

the majority and concurrence, a person may take actions with

extreme disregard for human life without any such targeting.

As discussed, a drunk driver who speeds the wrong way down

a highway can be convicted of second-degree murder under

§ 1111(a) because the driver’s conduct involves extreme

disregard for human life. But under the natural meaning of

words, such drunk driving does not constitute action directed

against, or targeting, another individual, or the conscious use

of force against a particular target. See id. at 1825. Likewise,

raising aggressive dogs and failing to control them may

evince an extreme disregard for human life, see Davidson,

UNITED STATES V. BEGAY 49

987 P.2d at 344, but such conduct is not the same as targeting

or directing force against another person.

The majority and concurrence attempt to support their

conclusion that depraved heart murder under § 1111(a) is a

crime of violence by relying on the “context and purpose” of

§ 924(c). See Majority at 26 (citation omitted); see also C.J.

Murguia Concurrence at 33. The gist of this argument seems

to be that offenses charged as second-degree murder “are

among the most culpable of crimes,” Majority at 27, and

therefore a “consideration of context reinforces the

conclusion that second-degree murder qualifies as a crime of

violence pursuant to the elements clause of § 924(c)(3),”

Majority at 29. Again, these statements merely assume the

conclusion and do not adequately explain why second-degree

depraved heart murder under § 1111(a) is necessarily targeted

against another. If anything, the context of § 924(c) cuts in

the opposite direction. Congress divided the definition of

“crime of violence” into two prongs, and the second

prong—the residual clause—was clearly meant to capture

offenses such as depraved heart murder, which can pose an

unreasonable risk of harm without being targeted against

another person. This raises the strong inference that the first

prong of § 924(c), the elements clause—which after Davis is

the only prong remaining—was not meant to include that sort

of offense.

***

There is no need to take crazy pills to disagree with the

majority. Congress meant for second-degree murder to

qualify as a crime of violence under the residual clause. The

Supreme Court determined that the residual clause was void

for vagueness, see Davis, 139 S. Ct. at 2336, and defined the

50 UNITED STATES V. BEGAY

elements clause as including only conduct that targets or is

directed at another individual, see Borden, 141 S. Ct. at 1827.

Because second-degree murder can be committed with

extreme recklessness, and so does not necessarily involve a

directed or targeted use of force against the victim, and

because the elements clause requires such a directed or

targeted use of force under Borden, second-degree murder is

not a categorical match and so does not qualify as a crime of

violence under the elements clause.

The “crazy pills” conclusion that second-degree murder

is not a crime of violence could be eliminated if Congress

were to amend § 924(c) to include a residual clause that could

withstand a constitutional vagueness challenge, or if the

Supreme Court took Justice Thomas’s advice to overrule its

determination that the residual clause is void for vagueness.

It is not our job to disregard Supreme Court precedent in

order to fix this problem. I therefore dissent from the

majority’s holding that second-degree murder is a crime of

violence under the elements clause.5

5

Thus, for the reasons explained in Judge Wardlaw’s partial dissent,

see J. Wardlaw Dissent at 35–36, I would vacate Begay’s entire sentence

and remand for resentencing. See Davis, 139 S. Ct. at 2336 (“As this

Court has noted, when a defendant’s § 924(c) conviction is invalidated,

courts of appeals ‘routinely’ vacate the defendant’s entire sentence on all

counts ‘so that the district court may increase the sentences for any

remaining counts’ if such an increase is warranted.” (citation omitted)).

I would also reverse the restitution award because second-degree murder

is not a crime of violence under the elements clause. See Begay, 934 F.3d

at 1041; cf. Majority at 31. However, I do not dissent from the majority’s

holding that the district court did not plainly err in its instructions to the

jury. Majority at 14.