UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RANDLY IRVIN BEGAY, AKA Randly Begay, Defendant-Appellant.
No. 14-10080
United States Court of Appeals for the Ninth Circuit
May 5, 2022
D.C. No. 3:13-cr-08073-NVW-1
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.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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
Opinion by Judge Christen;
Concurrence by Chief Judge Murguia;
Dissent by Judge Wardlaw;
Dissent by Judge Ikuta
SUMMARY*
Criminal Law
The en banc court affirmed Randly Irvin Begay‘s convictions for second-degree murder (
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 insists should have been given could have undermined his primary defense theory—that someone else shot the victim.
Challenging his
Because the second-degree murder conviction does qualify as a crime of violence, the en banc court rejected 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
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
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,
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 Robert L. Miskell, Deputy Appellate Chiefs; Karla Hotis Delord, Assistant United States Attorney; Appellate Chief; Glenn B. McCormick, Acting United States Attorney; United States Attorney‘s Office, Phoenix, Arizona; for Plaintiff-Appellee.
Mitchell Keiter, Keiter Appellate Law, Beverly Hills, California, for Amicus Curiae Amicus Populi.
CHRISTEN, Circuit Judge:
Randly Irvin Begay appeals his federal convictions for second-degree murder in violation of
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
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 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
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 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
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 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
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
IV
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 in the 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 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
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 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
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
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
A
Begay was convicted of discharging a firearm during a crime of violence pursuant to
[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
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
As applied to the charges in Begay‘s case, the categorical approach requires that we ask whether the elements of the
Federal law defines “murder” as “the unlawful killing of a human being with malice aforethought.”
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
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 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
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“).
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
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 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
C
The elements clause in
Drawing on Borden, we conclude that a conviction for second-degree murder pursuant to
A
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 Id.
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.”
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 . . .
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
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 Baez-Martinez, 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 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,
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.” Baez-Martinez, 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.” Baez-Martinez, 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
VI
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
The district court in Begay‘s case adopted the restitution award recommended
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
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.”
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
“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
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.
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
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); Baez-Martinez, 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
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
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
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
As a practical matter, what does this mean? As the Court has noted, “[W]hen a defendant‘s
IKUTA, Circuit Judge, with whom Judge VANDYKE joins, dissenting in part:
Common sense dictates that second-degree murder under
When it enacted
The second definition of a “crime of violence” under
Because we are bound by Supreme Court precedent, I must reluctantly dissent.
I
Randly Begay was convicted of second-degree murder under
In order to determine whether second-degree murder under
The principles set out in Borden establish that
‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, 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
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
II
Despite this apparent mismatch between depraved heart murder and the elements clause, depraved heart murder under
Begay has made that showing here. A review of federal and state cases upholding convictions for second-degree depraved heart murder, whether under
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
The majority attempts to brush off such cases, at least in the drunk driving context,
But even if we recognize the “absurdity” of applying the categorical approach to a
III
In holding otherwise, the majority merely assumes the conclusion that “a conviction for second-degree murder pursuant to
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
The majority and concurrence attempt to support their conclusion that depraved heart murder under
***
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 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