33 F.4th 1081
9th Cir.2022Background
- On March 4, 2013, Randly Begay and three others were in a van on the Navajo Nation; after an argument he allegedly pulled a gun and a passenger, Roderick Ben, was shot and killed. Begay claimed someone else fired the shot.
- A federal grand jury indicted Begay 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)); the jury convicted on both counts.
- District court sentenced Begay to 204 months (murder) plus a consecutive 120 months (§ 924(c)), and ordered $23,622 in mandatory restitution under the MVRA.
- On appeal Begay raised: (1) the district court erred by not instructing the jury that the government had to disprove heat of passion/sudden quarrel; (2) second-degree murder (which can include depraved-heart recklessness) is not a categorical "crime of violence" under § 924(c)(3)(A); and (3) the restitution award lacked adequate explanation.
- A three-judge Ninth Circuit panel originally agreed with Begay on the § 924(c) issue; the court reheard the case en banc after the Supreme Court decided Borden v. United States.
- The en banc court affirmed both convictions, held that second-degree murder qualifies as a crime of violence under § 924(c)(3)(A), but vacated and remanded the restitution award for inadequate explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction re: heat of passion (failure to require govt to disprove sudden quarrel/heat of passion) | U.S.: No plain error; defense never requested manslaughter instruction and theory at trial was mistaken identity, not heat-of-passion. | Begay: Government had to prove beyond a reasonable doubt absence of heat of passion once the issue was raised by evidence. | No plain error. Instruction was jointly proffered; defense never asked for voluntary manslaughter instruction and evidence did not fairly raise sudden provocation. Affirmed. |
| Whether § 1111 second-degree murder is a "crime of violence" under § 924(c)(3)(A) (categorical approach) | U.S.: §1111(a) murder (including depraved-heart/extreme recklessness) necessarily involves use of force "against" another and thus qualifies under the elements clause; de novo review assumed. | Begay: Because §1111 can be satisfied by reckless mens rea, and Borden/Leocal limit the elements clause to directed/targeted uses of force, second-degree murder is not a categorical crime of violence. | Held that second-degree murder qualifies under the elements clause: malice aforethought encompasses extreme recklessness (depraved heart) that necessarily entails oppositional/targeted use of force sufficient to satisfy §924(c)(3)(A). Convictions affirmed. |
| Restitution under the MVRA (adequacy and factual basis) | U.S.: Restitution was required because murder is a crime of violence; district court relied on PSR figures. | Begay: Restitution lacked findings and may exceed victim's actual losses (specifically $19,000 awarded for replacement vehicle). | VACATED and REMANDED: MVRA requires the court to explain and support the restitution amount; district court failed to explain how $19,000 for a replacement truck complied with §3663A. |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (plurality: ordinary recklessness does not necessarily satisfy elements-clause requirement that force be directed at another)
- United States v. Davis, 139 S. Ct. 2319 (2019) (holding residual clause in §924(c) unconstitutionally vague)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (recklessness can satisfy a differently worded elements provision that does not require force "against another")
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (elements clause requires a higher degree of intent than negligence; context matters)
- Taylor v. United States, 495 U.S. 575 (1990) (establishing categorical-approach framework)
- United States v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010) (malice aforethought includes depraved-heart/extreme recklessness distinction)
- United States v. Benally, 843 F.3d 350 (9th Cir. 2016) (involuntary manslaughter/gross negligence does not qualify as a crime of violence)
- United States v. Begay, 934 F.3d 1033 (9th Cir. 2019) (three-judge panel decision holding second-degree murder not a crime of violence)
- United States v. Báez-Martínez, 950 F.3d 119 (1st Cir. 2020) (concluding depraved-heart murder can qualify as elements-clause violent felony)
- Mullaney v. Wilbur, 421 U.S. 684 (1975) (prosecution must prove absence of heat-of-passion once the issue is properly presented)