FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RANDLY IRVIN BEGAY, AKA Randly 

Begay,

Defendant-Appellant.

No. 14-10080

D.C. No.

3:13-cr-08073-

NVW-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submission Deferred October 20, 2015

Submitted May 26, 2016

Submission Vacated and Deferred March 29, 2017

Resubmitted August 19, 2019 

San Francisco, California

Filed August 19, 2019

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

and N. Randy Smith, Circuit Judges.

Opinion by Judge D.W. Nelson;

Dissent by Judge N.R. Smith
2 UNITED STATES V. BEGAY

SUMMARY*

Criminal Law

The panel affirmed a conviction for second-degree 

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

for discharging a firearm during a “crime of violence” 

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

order, and remanded for resentencing. 

Affirming the second-degree murder conviction, the 

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

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

element of second-degree murder.

The panel held that because second-degree murder can 

be committed recklessly, it does not categorically constitute 

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

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

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

cannot constitute a crime of violence under the residual 

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

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

The panel held that because second-degree murder is not 

categorically a crime of violence, the district court erred in 

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

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

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

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

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BEGAY 3

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

extending the concept of recklessness to include malice 

aforethought, which, including “depraved heart” murder, 

requires conduct well beyond mere recklessness.

COUNSEL

M. Edith Cunningham (argued), Assistant Federal Public 

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

the Federal Public Defender, Tucson, Arizona; for 

Defendant-Appellant.

Karla Hotis Delord (argued), Assistant United States 

Attorney; Krissa M. Lanham, Deputy Appellate Chief;

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

Office, Phoenix, Arizona; for Plaintiff-Appellee.

OPINION

D.W. NELSON, Circuit Judge:

Randly Irvin Begay appeals his jury conviction and 

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

and 1153 and discharging a firearm during a “crime of 

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

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

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

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

mandatory restitution order, and remand for resentencing.

Begay’s conviction is AFFIRMED in part, REVERSED 

in part, and REMANDED for resentencing.
4 UNITED STATES V. BEGAY

FACTS AND PROCEEDINGS

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

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

Begay was charged with second-degree murder and 

discharging a firearm during a “crime of violence.”

After a few hours of drinking and smoking 

methamphetamine, Begay, Ben, Begay’s nephew Lionel 

Begay, and Begay’s girlfriend Meghan Williams were 

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

residence in Tuba City, Arizona, located within the Navajo 

Nation Indian Reservation. While sitting inside the van, 

Williams and Begay were arguing about Williams’ alleged 

infidelity, including Begay’s accusations that she had been 

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

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

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

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

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

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

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

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

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

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

attorney briefly argued that Begay lacked the requisite 

malice because he did not act deliberately. During closing 

argument, the government argued that Begay intentionally 

shot Ben because he was angry about Williams’ alleged 

infidelity with Ben. Begay and the government submitted 

joint jury instructions, requesting an instruction on seconddegree murder only. Begay’s attorney did not request a 

voluntary or involuntary manslaughter instruction, nor did 

he object to the instructions as presented.
UNITED STATES V. BEGAY 5

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

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

murder (Count One) and discharging a firearm during a 

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

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

months’ imprisonment on Count One and a consecutive term 

of 120 months’ imprisonment on Count Two. The district

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

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

conviction on both counts as well as the restitution order.

JURISDICTION

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

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

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

Nation Indian Reservation, is “Indian country” for the 

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

under 28 U.S.C. § 1291.

DISCUSSION

I

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

prove beyond a reasonable doubt the absence of the heat of 

passion on sudden provocation when the issue is properly 

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

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

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

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

1102 (9th Cir. 2001).

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

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

establish the element of malice, the government had to prove 
6 UNITED STATES V. BEGAY

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

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

attorney did not request a voluntary manslaughter 

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

introduce evidence of sudden quarrel or heat of passion at 

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

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

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

manslaughter ‘attempts to negate the malice element by 

claiming, in essence, that she was not acting maliciously 

because some extreme provocation . . .severely impaired her 

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

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

Cir. 1994))).

During closing argument, Begay’s attorney briefly 

argued that the government could not prove malice because 

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

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

argument Begay’s attorney made regarding malice centered 

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

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

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

lacked malice because he shot Ben in heat of passion or 

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

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

seriously affect the fairness and integrity of judicial 

proceedings if the defense at trial made no argument relevant 

to the omitted instruction.”).

Although the government introduced evidence at trial 

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

and discussed Begay’s anger during closing argument, the 

evidence, arguments, and jury instructions taken as a whole 

did not “properly present” the issue of heat of passion or 
UNITED STATES V. BEGAY 7

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

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

of heat of passion was not properly presented where there 

was insufficient evidence of provocation and the defendant’s 

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

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

(finding that the district court erred by failing to give 

defendant’s requested instructions regarding accidental 

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

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

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

an element of second-degree murder. We therefore affirm 

Begay’s conviction under Count One for second-degree 

murder.

II

“We review de novo whether a criminal conviction is a 

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

jury instruction misstated the elements of an offense.” 

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

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

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

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

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

opposing party will suffer no prejudice as a result of the 

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

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

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

1265, 1267–68 (9th Cir. 2001)). Here, whether seconddegree murder is a crime of violence is a pure question of 

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

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

id. at 1106 (reviewing de novo whether California attempted 
8 UNITED STATES V. BEGAY

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

to raise the issue before the district court).

Begay was convicted of discharging a firearm during a 

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

Begay argues that second-degree murder does not qualify as 

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

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

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

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

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

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

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

underlying the conviction, but “compare the elements of the 

statute forming the basis of the defendant’s conviction with 

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

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

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

conduct proscribed by the statute of conviction is broader 

than the conduct encompassed by the statutory definition of 

a “crime of violence.” See id.

If the statute of conviction is overbroad, we may ask 

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

“modified categorical approach” to determine which 

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

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

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

government has not argued that the statute of conviction is 

divisible, we need not conduct a modified categorical 

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

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

analysis because the government failed to argue that the 

statute of conviction was divisible).
UNITED STATES V. BEGAY 9

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

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

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

violence” is defined as a felony that

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

or threatened use of physical force against the 

person or property of another, or

(B) that by its nature, involves a substantial 

risk that physical force against the person or 

property of another may be used in the course 

of committing the offense.

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

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

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

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

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

need only determine whether second-degree murder 

constitutes a crime of violence under the “elements clause” 

in subsection (A).

A

Second-degree murder does not constitute a crime of 

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

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

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

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

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

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

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

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

elements clause and a residual clause. The only difference is 
10 UNITED STATES V. BEGAY

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

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

defines the term “crime of violence” as:

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

attempted use, or threatened use of physical 

force against the person or property of 

another, or

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

by its nature, involves a substantial risk that 

physical force against the person or property 

of another may be used in the course of 

committing the offense.

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

felony requirement applies to both subsections of 

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

difference “does not affect the operative language used to 

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

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

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

the same meaning “when Congress uses the same language 

in two statutes having similar purposes.”).

A “crime of violence” requires intentional conduct. In 

Leocal v. Ashcroft, the Supreme Court discussed the mens 

rea necessary to commit a “crime of violence” under 

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

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

someone or something suggests that “crimes of violence” 

require “a higher degree of intent than negligent or merely 

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

We have since interpreted Leocal’s reasoning to hold 

that “crimes of violence,” as defined in both § 16 and 
UNITED STATES V. BEGAY 11

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

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

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

involuntary manslaughter, which requires only gross 

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

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

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

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

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

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

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

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

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

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

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

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

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

The government argues that Voisine v. United States, —

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

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

expressly left open the question that Fernandez-Ruiz 

answered” and is not “so clearly irreconcilable with 

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

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

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

the Supreme Court held that the definition of “misdemeanor 

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

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

the Court explicitly stated, “our decision today concerning 

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

includes reckless behavior. Courts have sometimes given 

these two statutory definitions divergent readings in light of 

differences in their contexts and purposes, and we do not 

foreclose that possibility with respect to the required mental 
12 UNITED STATES V. BEGAY

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

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

the differences in statutory text between the provision at 

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

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

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

holding to the context of misdemeanor domestic violence); 

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

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

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

“because the wording of the two statutes is virtually 

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

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

use of force.

The elements of second-degree murder are that the 

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

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

Model Criminal Jury Instruction 8.108. “[M]alice 

aforethought covers four different kinds of mental states: 

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

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

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

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

murder may be committed recklessly—with a depraved 

heart mental state—and need not be committed willfully or 

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

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

require an element of willfulness if the existence of that 

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

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

our § 16(a) case law.”).
UNITED STATES V. BEGAY 13

malice is inferred from the fact that defendant acted 

recklessly with extreme disregard for human life.”).

It is of no consequence that the recklessness required for 

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

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

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

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

substantial risk that force will be intentionally used during 

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

squarely to place crimes motivated by intent on a pedestal, 

while pushing off other very dangerous and violent conduct 

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

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

conduct, no matter how extreme, is not intentional.

Second-degree murder also does not involve a 

“substantial risk that force will be intentionally used during 

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

Covarrubias, we held that a California offense prohibiting 

the malicious and willful discharge of a firearm at an 

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

could be committed recklessly, not just intentionally. 

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

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

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

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

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

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

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

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

committed only intentionally, “with a crime committed 

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

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

furtherance of his crime.” Covarrubias, 632 F.3d at 1055. 
14 UNITED STATES V. BEGAY

“Classic examples of second-degree murder include 

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

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

very high speeds along a crowded main street . . . .” PinedaDoval, 614 F.3d at 1039. For purposes of our analysis, these 

examples are substantively indistinguishable from the 

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

that we held was not categorically a crime of violence in 

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

of intentional force is no more substantial for a defendant 

who recklessly kills than it is for a defendant who recklessly 

shoots at a house.

The cases the government cites do not squarely address 

whether second-degree murder is a crime of violence. 

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

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

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

Amendment right to counsel and prosecutorial misconduct); 

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

mens rea required for second-degree murder). More 

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

decision to try a juvenile as an adult under the Federal 

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

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

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

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

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

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

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

juvenile as an adult. Id. Because second-degree murder can 
UNITED STATES V. BEGAY 15

be committed recklessly, rather than intentionally, it does not 

categorically constitute a crime of violence.2

B

Second-degree murder is not categorically a crime of 

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

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

murder cannot constitute a crime of violence under the 

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

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

discharging a firearm during and in relation to a crime of 

violence therefore cannot stand under either the elements 

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

Two of his conviction.

III

We review the legality of a restitution order de novo and 

the factual findings supporting the order for clear error. 

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

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

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

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

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

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

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

mandatory restitution where a defendant is convicted of a 

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

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

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

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

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

can be committed without the use of violent force.
16 UNITED STATES V. BEGAY

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

plainly erred in imposing mandatory restitution under 

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

categorically a crime of violence, and vacate the mandatory 

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

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

the necessary findings for the restitution order.

CONCLUSION

We AFFIRM Count One of Begay’s conviction for 

second-degree murder. We REVERSE Count Two of 

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

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

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

§ 3663A, and REMAND for resentencing. 

AFFIRMED IN PART, REVERSED IN PART, 

VACATED IN PART, AND REMANDED.
UNITED STATES V. BEGAY 17

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

of the Majority’s opinion:

1

MURDER2 in the second-degree is NOT a crime of 

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

assault,5 exhibiting a firearm,6 criminal threats7 (even 

attempted criminal threats8), and mailing threatening 

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

2 Murderers are “deserving of the most serious forms of 

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

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

and other serious violent offenses against the individual,” because 

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

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

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

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

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

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

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

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

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

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

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

1204).

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

Code § 417.3).

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

(Cal. Penal Code § 422).

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

(Cal. Penal Code §§ 422, 664).
18 UNITED STATES V. BEGAY

communications9 are crimes of violence. How can this be? 

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

This unbelievable result (arising because of the 

Majority’s opinion) stems from the Majority’s 

misapplication of the categorical approach to conclude that 

second-degree murder cannot serve as a predicate crime of 

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

the Majority’s result is contrary to Supreme Court precedent 

and our precedent11 and further defies reality and logic. See 

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

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

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

and precedent, not flights of fancy”).

“Malice aforethought”12 is a required element of firstand second-degree murder. 18 U.S.C. § 1111(a). Rather 

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

distinction for a crime of violence, the Majority plucks the 

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

2003) (18 U.S.C. § 876(c)).

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

Paramount Pictures (2001).

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

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

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

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

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

under the force provision).

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

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

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

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

2010).
UNITED STATES V. BEGAY 19

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

heart murder” and rejects any notion that there are varying 

degrees of recklessness in order to hold that second-degree 

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

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

do not understand how this can be.

I.

Prior to the Comprehensive Crime Control Act of 1984 

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

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

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

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

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

mayhem, kidnaping, robbery, burglary or housebreaking in 

the nighttime, extortion accompanied by threats of violence, 

assault with a dangerous weapon or assault with intent to 

commit any offense punishable by imprisonment for more 

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

conspiracy to commit any of the foregoing offenses”), 

repealed by Comprehensive Crime Control Act of 1984, 

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

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

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

manslaughter, rape, mayhem, kidnaping, burglary, 

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

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

to commit any offense punishable by imprisonment for more 

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

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

the CCCA, Congress changed the definition of “crime of 

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

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

of physical force against the person or property of another.” 
20 UNITED STATES V. BEGAY

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

indicated that murder is crime of violence on several 

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

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

Armed Career Criminal Act beyond robbery and burglary to 

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

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

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

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

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

firearm during the offense, robbery, bank robbery, 

aggravated sexual abuse.” (footnotes omitted)).

Because Congress no longer provided a specific list of 

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

apply the categorical approach to determine which offenses 

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

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

evolved in the Supreme Court and the Ninth Circuit. 

Notably, as demonstrated below, the Ninth Circuit’s

interpretation of included crimes has narrowed over time.

Initially, we rejected an argument that aggravated assault 

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

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

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

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

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

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

could not be committed if a person acted “negligently—

rather than intentionally or recklessly.” United States v. 

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

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

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

physical force against another” to mean “a higher degree of 
UNITED STATES V. BEGAY 21

intent than negligent or merely accidental conduct.” 

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

effectively affirmed our decision in Trinidad-Aquino. In 

2005, we determined that a crime of violence does not 

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

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

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

our prior case law and followed our sister circuits to 

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

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

at 1129.14

Following Leocal and Fernandez-Ruiz, we next 

overruled our prior precedent, which had made involuntary 

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

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

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

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

reasoning and the results of Leocal and Fernandez-Ruiz and 

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

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

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

543 U.S. at 13.

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

States, 136 S. Ct. 2272, 2279–82 (2016) did not overrule FernandezRuiz. 923 F.3d 1197, 1202–03 (9th Cir. 2019).

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

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

2000). An involuntary manslaughter instruction is proper when the 

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

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

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

United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994).
22 UNITED STATES V. BEGAY

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

conviction for involuntary manslaughter requires, at a 

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

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

(internal quotation marks and citation omitted).

Against this historical backdrop of interpreting the term 

“crime of violence,” the Majority now concludes “[s]econddegree murder does not constitute a crime of violence under 

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

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

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

can be found to possess malice aforethought because of a 

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

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

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

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

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

decision, the Majority ignores the differences between 

“gross negligence” and “malice aforethought,” concluding 

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

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

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

16 Although we have not yet addressed whether voluntary 

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

determined that state voluntary manslaughter crimes are not crimes of 

violence, because they can be committed recklessly. See QuijadaAguilar v. Lynch, 799 F.3d 1303, 1306–07 (9th Cir. 2015) (holding 

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

conviction requires “merely reckless conduct”).

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

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

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

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

There.
UNITED STATES V. BEGAY 23

its decision in effect equates the term “malice aforethought” 

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

cannot be correct. Instead, there are significant differences 

between the mens rea necessary to support a conviction 

using ordinary recklessness and the recklessness necessary 

to establish malice aforethought. That difference must be 

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

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

or “simple” recklessness in the context of applying the 

categorical analysis and have held that the ordinary form of 

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

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

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

offense of shooting at an inhabited dwelling18 or vehicle is 

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

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

“second-degree murder required a finding of extreme 

recklessness evincing disregard for human life, not simple 

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

at 1124 (“We ordered rehearing en banc to resolve an interand intra-circuit conflict as to whether . . . crimes involving 

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

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

“simple” form of recklessness is consistent with “gross 

negligence.”19

18 For purposes of the California Penal Code section 246, an 

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

632 F.3d at 1054.

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

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

‘ordinary negligence;’ but, after all, it means the absence of the care that 
24 UNITED STATES V. BEGAY

However, we have never directly addressed “deliberate” 

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

clearly provides a higher standard than “mere recklessness.” 

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

“merely reckless driving cannot provide the basis for a 

second-degree murder conviction,” because “‘something 

more’ was required to establish the malice aforethought 

necessary to prove second-degree murder” (quoting United 

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

1992)).

This distinction between mere or simple recklessness 

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

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

second-degree murder requires more than “mere 

recklessness”; it requires malice aforethought. See 

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

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

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

difference between that recklessness which displays 

depravity and such extreme and wanton disregard for human 

life as to constitute ‘malice’ and that recklessness that 

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

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

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

embraces the state of mind with which one intentionally

commits a wrongful act without legal justification or excuse. 

It may be inferred from circumstances which show a wanton 

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

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

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

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

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

at 1005.
UNITED STATES V. BEGAY 25

and depraved spirit, a mind bent on evil mischief without 

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

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

quotation marks and citation omitted); see also Lesina, 

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

becomes more callous, wanton or reckless, and more 

probative of malice aforethought, as it approaches a mental 

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

have referred to extreme “reckless indifference” as 

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

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

second-degree murder include shooting a gun into a room 

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

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

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

examples demonstrate a recklessness equivalent to gross 

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

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

categorical analysis, they do shed light on what conduct 

amounts to the recklessness of depraved heart murder. For 

example, we held that certain types of actions amounted to 

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

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

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

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

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

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

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

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

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

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

that he did not intend to use the gun but that [his girlfriend] grabbed it 
26 UNITED STATES V. BEGAY

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

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

conclude beyond a reasonable doubt that Boise displayed ‘a 

wanton and depraved spirit, a mind bent on evil mischief 

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

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

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

Celestine, we held that a jury was permitted to conclude 

“that the homicide was accompanied by a callous and 

wanton disregard of human life,” when the defendant killed 

a woman by beating her with his fists and by repeatedly 

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

These cases do not demonstrate the type of conduct 

indicative of mere or simple recklessness that is equivalent 

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

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

force is ‘accidental’ and crimes of recklessness cannot be 

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

necessary to equate to malice aforethought is not and cannot 

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

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

“recklessly with extreme disregard for human life” most 

naturally suggests a higher degree of depravity or knowing 

disregard. If the underlying use of physical force were 

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

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

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

130 F.3d at 870.

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

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

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

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

equivalent.” 130 F.3d at 871 n.3.
UNITED STATES V. BEGAY 27

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

gross negligence, defined as wanton or reckless disregard for 

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

aforethought (with its higher degree of intent), must 

necessarily be a crime of violence.

As Judge Wardlaw aptly recognized in her dissent in 

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

which lies closer to intentionality than to negligence.” 

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

Supreme Court has also recognized that “the reckless 

disregard for human life . . . represents a highly culpable

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

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

murder can be committed without any intentional conduct is 

simply not correct. Although a defendant may not have to 

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

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

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

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

(noting at a minimum “implied malice aforethought” was 

demonstrated by the defendant’s statement “that he was 

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

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

original)). Again, these examples denote the difference 

between gross negligence (mere recklessness) and malice 

aforethought (depraved heart murder).23

23 The difference between the required mens rea necessary for a 

conviction of manslaughter or for murder also demonstrates this 

important distinction. Under the federal definition, manslaughter is 

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

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

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

mental state required to commit some degree of murder. See United 
28 UNITED STATES V. BEGAY

II.

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

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

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

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

the far-reaching results of its decision. This Majority 

opinion produces precisely those “glaringly absurd” results, 

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

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

interpretations of a statute which would produce absurd 

results are to be avoided if alternative interpretations 

consistent with the legislative purpose are available”).

We have already concluded that as exhibiting a firearm 

in the presence of a passenger in a motor vehicle under 

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

878, assault under Arizona Revised Statute sections 13-

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

criminal threats under California Penal Code section 422, 

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

Although none of these crimes can be committed 

“recklessly,” how can our court logically conclude that 

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

a crime of violence when these lesser crimes are?

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

manslaughter may involve “a defendant who killed unintentionally but 

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

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

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

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

ignores this difference in mens rea.
UNITED STATES V. BEGAY 29

Even more problematic with this decision: under the 

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

violence while the complete offense would not be.24 See 

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

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

kill, an attempt to commit murder requires a specific intent 

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

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

the crime could not be committed recklessly, because “the 

mental state required for criminal attempt (specific intent) is 

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

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

concluded that Washington attempted first degree murder25

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

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

attempted use, or threatened use of physical force against the 

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

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

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

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

It is illogical to conclude that an attempted murder is a 

24 This holding would also seem to conflict with convictions under 

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

person solicits another to commit murder.

25 Under Revised Code of Washington section 9A.32.030(1), firstdegree murder includes “(b) Under circumstances manifesting an 

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

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

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

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

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

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

of violence.’”).
30 UNITED STATES V. BEGAY

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

that for the actual killing of a human being.

The Majority’s opinion also conflicts with other statutes 

and sentencing guidelines, which presume that murder is a 

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

(increasing the mandatory minimum for violent crimes 

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

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

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

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

with malice aforethought (which can be committed “recklessly with 

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

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

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

of willful, deliberate, malicious, and premeditated 

killing; or committed in the perpetration of, or attempt 

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

treason, espionage, sabotage, aggravated sexual abuse 

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

perpetrated as part of a pattern or practice of assault or 

torture against a child or children; or perpetrated from 

a premeditated design unlawfully and maliciously to 

effect the death of any human being other than him 

who is killed[,]

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

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

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

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

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

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

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

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

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

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

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

died as a direct result of the act.”).
UNITED STATES V. BEGAY 31

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

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

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

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

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

murder is a crime of violence?

The Majority goes too far in extending the concept of 

recklessness to include malice aforethought. Malice 

aforethought, including “depraved heart” murder, requires 

conduct well beyond mere recklessness. Murder should be 

a categorical match to a crime of violence because of the 

necessary element of malice aforethought. Holding 

otherwise makes the definition of “crime of violence” 

virtually meaningless and will lead to utterly absurd results 

in future cases.