FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

DANIEL JAMES DRAPER, 

Defendant-Appellant.

No. 17-15104 

D.C. Nos.

3:16-cv-00748-

RCJ 

3:12-cr-00004-

RCJ-VPC-1 

 

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Argued and Submitted December 5, 2022

San Francisco, California

Filed October 17, 2023

Before: Jacqueline H. Nguyen and Jennifer Sung, Circuit 

Judges, and Joseph F. Bataillon,* District Judge.

Opinion by Judge Nguyen

* The Honorable Joseph F. Bataillon, United States District Judge for the 

District of Nebraska, sitting by designation.
2 USA V. DRAPER

SUMMARY**

28 U.S.C. § 2255

The panel affirmed the district court’s denial of Daniel 

Draper’s motion under 28 U.S.C. § 2255 in which he argued 

that his conviction under 18 U.S.C. § 924(c) for using a 

firearm during a crime of violence and its mandatory 

consecutive sentence should be vacated because his 

predicate crime, voluntary manslaughter, does not qualify as 

a crime of violence.

Applying United States v. Begay, 33 F.4th 1081 (9th Cir. 

2022) (en banc) (which held that depraved heart murder 

necessarily entails the force required to qualify as a crime of 

violence under § 924(c)’s elements clause, 18 U.S.C. 

§ 924(c)(3)(A)), the panel held that voluntary manslaughter 

is a crime of violence under § 924(c). The panel wrote that 

for purposes of § 924(c), voluntary manslaughter has the 

same mental state as murder—intent to commit a violent act 

against another or recklessness with extreme indifference to 

human life. Like murder, voluntary manslaughter requires 

at least an “extreme and necessarily oppositional” state of 

mind. The panel held that the district court therefore 

properly denied Draper’s § 2255 motion.

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

been prepared by court staff for the convenience of the reader.
USA V. DRAPER 3

COUNSEL

Wendi L. Overmyer (argued) and Amy B. Cleary, Assistant 

Federal Public Defenders; Rene L. Valladares, Federal 

Public Defender; Federal Public Defender’s Office, Las 

Vegas, Nevada; for Defendant-Appellant.

Adam M. Flake (argued), Assistant United States Attorney; 

Elizabeth O. White, Appellate Chief; Jason M. Frierson, 

United States Attorney; United States Attorney’s Office, Las 

Vegas, Nevada; Robert L. Ellman and William R. Reed, 

Assistant United States Attorneys, United States Attorney’s 

Office, Reno, Nevada; for Plaintiff-Appellee.

OPINION

NGUYEN, Circuit Judge:

Daniel Draper shot and killed Linford Dick. A jury 

convicted him of voluntary manslaughter, a violation of 18 

U.S.C. § 1112, and using a firearm during a crime of 

violence, a violation of 18 U.S.C. § 924(c). Draper appeals 

the district court’s denial of his motion under 28 U.S.C. 

§ 2255. He argues that his § 924(c) conviction and its 

mandatory 15-year consecutive sentence should be vacated 

because his predicate crime, voluntary manslaughter, does 

not qualify as a crime of violence.

Whether homicide is inherently a violent crime might 

seem like a straightforward question, but the answer depends 

on both the definition of violent crime and the type of 

homicide at issue. The statute we consider here, 18 U.S.C. 
4 USA V. DRAPER

§ 924(c)(1)(A), enhances the sentence of a person who uses 

or possesses a firearm while committing a crime of violence. 

The statute defines “crime of violence” to include any 

federal felony that “has as an element the use, attempted use, 

or threatened use of physical force against the person or 

property of another.” Id. § 924(c)(3)(A). This definition—

in particular, the phrase “against . . . another”—requires a 

mens rea akin to knowledge or intent. See Borden v. United 

States, 141 S. Ct. 1817, 1828 (2021). It includes murder,

which must be committed with at least extreme recklessness,

but not homicide involving only ordinary recklessness. See

United States v. Begay, 33 F.4th 1081, 1093–95 (9th Cir. 

2022) (en banc), cert. denied, 143 S. Ct. 340 (2022).

We must decide whether § 924(c) applies to the crime of 

voluntary manslaughter, 18 U.S.C. § 1112(a). We hold that 

it does. In Begay, we determined that second degree murder

satisfies § 924(c) because the least culpable act criminalized 

under 18 U.S.C. § 1111, depraved heart murder, entails the 

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

against the person or property of another.” Begay, 33 F.4th 

at 1091 (quoting 18 U.S.C. § 924(c)(3)(A)). Voluntary 

manslaughter, though lacking the element of malice, 

requires the same mental state. Courts deem voluntary 

manslaughter to be without malice only because the 

attendant circumstances—heat of passion with adequate 

provocation—make the offense less blameworthy. 

Depraved heart voluntary manslaughter entails the same 

extremely reckless violence as second degree murder.

Daniel Draper moved the district court for relief from his 

§ 924(c) conviction. In denying relief, the district court 

correctly concluded that Draper’s voluntary manslaughter 

conviction is a crime of violence. Therefore, we affirm.
USA V. DRAPER 5

I.

Draper used a shotgun to kill Linford Dick within Battle 

Mountain Indian Colony, for which a jury convicted him of 

violating § 924(c). The jury found that the underlying crime 

of violence was voluntary manslaughter (rather than murder, 

as the prosecution had argued) and separately convicted him 

of that offense. The district court imposed consecutive

sentences of 15 years for each crime. See 18 U.S.C. 

§ 924(j)(2).

Shortly after we affirmed his conviction and sentence, 

see United States v. Draper, 599 F. App’x 671, 672 (9th Cir. 

2015), Draper sought relief in a motion pursuant to 28 U.S.C. 

§ 2255, raising claims not at issue here. The district court 

denied the motion.

In light of Johnson v. United States, 576 U.S. 591 (2015), 

we authorized Draper to file a second or successive § 2255 

motion. He argued that his § 924(c) conviction should be 

vacated because part of the statute’s definition of “crime of 

violence” is unconstitutionally vague under Johnson and the 

surviving part does not apply to voluntary manslaughter. 

The district court did not address Draper’s constitutional 

argument because it disagreed with his statutory argument

and denied relief on that basis. However, the court found the 

question “difficult” and granted a certificate of appealability.

We have jurisdiction over Draper’s appeal under 28 

U.S.C. § 2253. We review the district court’s decision de 

novo. See United States v. Fultz, 923 F.3d 1192, 1194 (9th 

Cir. 2019).

II.

Before turning to the merits, we first address a 

procedural issue. The government argues that Draper 
6 USA V. DRAPER

procedurally defaulted his claim. Draper maintains that the 

government forfeited its procedural default argument by 

failing to raise it in the district court and that, regardless, his 

claim is not subject to procedural default because it 

challenges the district court’s subject matter jurisdiction.

A § 2255 motion, which collaterally attacks a federal 

inmate’s conviction or sentence, seeks “an extraordinary 

remedy” and cannot substitute for an appeal. United States

v. Pollard, 20 F.4th 1252, 1255 (9th Cir. 2021) (quoting 

Bousley v. United States, 523 U.S. 614, 621 (1998)). If a 

defendant fails to raise a claim on direct review, the claim is 

“procedurally defaulted,” and the defendant may raise it via 

a § 2255 motion only if he can demonstrate either cause and 

actual prejudice or his actual innocence. Bousley, 523 U.S. 

at 622.

Because “procedural default is an affirmative defense,”

United States v. Werle, 35 F.4th 1195, 1201 (9th Cir. 2022),

“the defendant does not bear the burden of pleading cause 

and prejudice in his motion.” Id. We thus reject the 

government’s suggestion that Draper had an obligation to 

anticipate this defense in his opening brief.

At the same time, we reject Draper’s argument that the 

government forfeited the defense by failing to raise it in the 

district court. It is true that “the government can [forfeit] a 

procedural default defense by failing to raise it,” United 

States v. Swisher, 811 F.3d 299, 307 (9th Cir. 2016) (en 

banc), and we “will usually not allow the government to 

raise a petitioner’s default for the first time on appeal, when 

it did not take the opportunity to do so before the district 

court,” United States v. Barron, 172 F.3d 1153, 1156 (9th 

Cir. 1999) (en banc). But forfeiture on appeal presupposes 

that the government had an obligation to raise the defense in 
USA V. DRAPER 7

the district court. Cf. Turner v. Duncan, 158 F.3d 449, 455 

n.8 (9th Cir. 1998) (finding forfeiture appropriate where “the 

state was obligated to raise all of its objections” to the 

magistrate judge).

The government had no such obligation here because the 

district court denied Draper’s motion at the screening stage. 

See Sec. 2255 R. 4(b) (directing district courts to dismiss 

§ 2255 motions before ordering a response from the 

government “[i]f it plainly appears . . . that the [defendant] 

is not entitled to relief”). The government “is not required 

to answer the motion unless a judge so orders.” Id. R. 5(a). 

While nothing prohibits the government from responding 

before being ordered to do so, we see no reason to require 

the government to raise all affirmative defenses at the 

screening stage—at pain of forfeiture—which would 

undermine the screening process. Because the district court 

did not order a response to Draper’s § 2255 motion, the 

government did not forfeit its procedural default defense.

We also reject Draper’s argument that he cannot 

procedurally default his claim because it concerns the district 

court’s subject matter jurisdiction. Under 18 U.S.C. § 3231, 

district courts have subject matter jurisdiction “[i]n every 

federal criminal prosecution.” United States v. Ratigan, 351 

F.3d 957, 962 (9th Cir. 2003); see United States v. Cotton, 

535 U.S. 625, 630–31 (2002) (“[A] district court ‘has 

jurisdiction of all crimes cognizable under the authority of 

the United States . . . .’” (quoting Lamar v. United States, 

240 U.S. 60, 65 (1916))). Draper does not dispute that 

§ 924(c) is a federal criminal statute; he merely argues that 

the conduct for which he was charged and convicted does 

not fall within its constitutional scope. An “objection that 

the indictment does not charge a crime against the United 

States goes only to the merits of the case.” Cotton, 535 U.S. 
8 USA V. DRAPER

at 631 (quoting Lamar, 240 U.S. at 65). To the extent earlier 

cases described indictment defects as “jurisdictional,” 

Cotton overruled them. See United States v. Salazar-Lopez, 

506 F.3d 748, 754 n.5 (9th Cir. 2007); see also Cotton, 535 

U.S. at 630 (explaining that courts once employed an “elastic 

concept of jurisdiction [that] is not what the term 

‘jurisdiction’ means today, i.e., ‘the courts’ statutory or 

constitutional power to adjudicate the case’” (quoting Steel 

Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998))).

Normally, we would not decide a timely assertion of 

procedural default in the first instance. See, e.g., Maronyan 

v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1043 n.4 

(9th Cir. 2011) (remanding for the district court to consider 

affirmative defense). As the government acknowledges, 

however, Draper’s ability to show prejudice turns on the 

merits of his claim, which the district court addressed. 

Because we conclude that Draper’s claim lacks merit, we 

need not remand for the district court to consider the 

procedural default issue when “the result will be the same.” 

Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

III.

Section 924(c) defines “crime of violence” in two 

alternative ways—through the “elements” clause and the 

“residual” clause. Under the elements clause, a crime of 

violence “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). Under the 

residual clause, a crime of violence, “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.” Id. § 924(c)(3)(B).
USA V. DRAPER 9

In United States v. Davis, the Supreme Court held that 

§ 924(c)’s residual clause is unconstitutionally vague. 139 

S. Ct. 2319, 2325–26 (2019). We will assume that Davis

applies retroactively to Draper’s conviction (which the 

government does not dispute), see Muñoz v. United States, 

28 F.4th 973, 975 (9th Cir. 2022), and thus focus on whether 

§ 924(c)’s elements clause encompasses voluntary 

manslaughter.

In making this determination, we apply the categorical 

approach described in Taylor v. United States, 495 U.S. 575, 

598–600 (1990). See Begay, 33 F.4th at 1090. Under the 

categorical approach, “the facts of a given case are 

irrelevant,” and we focus instead on “whether the elements 

of the statute of conviction meet the federal standard.” Id.

(quoting Borden, 141 S. Ct. at 1822). Here, the statute of 

conviction is voluntary manslaughter, 18 U.S.C. § 1112(a). 

Voluntary manslaughter is a crime of violence under 

§ 924(c)’s elements clause only if the least culpable act 

criminalized in § 1112(a) entails “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); see Begay, 

33 F.4th at 1091.

A.

In Borden, the Supreme Court held that a statute defining 

“crime of violence” like § 924(c) does not apply to offenses 

that punish ordinary recklessness. See 141 S. Ct. at 1821–

22, 1825 (interpreting 18 U.S.C. § 16(a)); see also United 

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

(observing that §§ 16 and 924(c)(3) are “virtually identical” 

and “we interpret their plain language in the same manner”). 

Borden explained that the statutory phrase “against . . . 

another,” in context, has an “oppositional” meaning. 
10 USA V. DRAPER

Borden, 141 S. Ct. at 1826. It “demands that the perpetrator 

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

1825. The Court declined to decide whether the definition

reaches offenses requiring a mens rea between recklessness 

and knowledge, such as the extreme recklessness required 

for depraved heart murder. See id. at 1823 n.3.

In Begay, we answered the question Borden left open, 

holding that depraved heart murder necessarily entails the 

force specified by § 924(c)(3)(A). See Begay, 33 F.4th at 

1086. Murder, we explained, is “the unlawful killing of a 

human being with malice aforethought,” id. at 1091 (quoting 

18 U.S.C. § 1111(a)), and the least culpable way to kill with 

malice aforethought is to act with “the mental state of 

depraved heart.” Id.

A depraved heart mens rea requires acting “recklessly 

with extreme disregard for human life.” Id. (quoting United 

States v. Paul, 37 F.3d 496, 499 (9th Cir. 1994)). It is the 

“functional equivalent of ‘reckless and wanton, and a gross 

deviation from the reasonable standard of care.’” Id. at 1093 

(quoting United States v. Pineda-Doval, 614 F.3d 1019, 

1038 (9th Cir. 2010)). Such conduct differs from conduct 

involving ordinary recklessness in that the perpetrator 

consciously disregards not just a substantial and 

unjustifiable risk but the very value of human life. See id. at 

1093–94.

Begay concluded that depraved heart murder “is fairly 

characterized as extreme and necessarily oppositional,” thus 

satisfying § 924(c)(3)’s elements clause, “because a 

defendant ‘certainly must be aware that there are potential 

victims before he can act with indifference toward them.’” 

Id. at 1095 (quoting United States v. Báez-Martínez, 950 

F.3d 119, 127 (1st Cir. 2020)).
USA V. DRAPER 11

B.

Federal law defines voluntary manslaughter as “the 

unlawful killing of a human being without malice” that 

occurs “[u]pon a sudden quarrel or heat of passion.” 18 

U.S.C. § 1112(a). “While most voluntary manslaughter 

cases involve intent to kill,” a defendant also commits 

voluntary manslaughter by “kill[ing] unintentionally but 

recklessly with extreme disregard for human life,” provided 

that he “acted in the heat of passion with adequate 

provocation.” United States v. Crowe, 563 F.3d 969, 974 

(9th Cir. 2009) (quoting Paul, 37 F.3d at 499 n.1).

In other words, voluntary manslaughter requires the 

same mental state as murder. See Paul, 37 F.3d at 499. It is 

only the attendant circumstances—a “finding of heat of 

passion and adequate provocation”—that “negates the 

malice that would otherwise attach” to voluntary 

manslaughter. Id.; see also Comber v. United States, 584 

A.2d 26, 37 (D.C. 1990) (en banc) (“[I]n all voluntary 

manslaughters, the perpetrator acts with a state of mind 

which, but for the presence of legally recognized mitigating 

circumstances, would constitute malice aforethought, as the 

phrase has been defined for purposes of second-degree 

murder.”).1 We describe “evidence of a sudden quarrel or 

1 While many jurisdictions treat heat of passion as a mitigating factor

rather than an element of the defendant’s mental state, not all do. Florida, 

for example, appears to view heat of passion as impacting the 

defendant’s mental state. See Taylor v. State, 316 So. 3d 420, 427 (Fla. 

Ct. App. 2021) (“At the heart of the heat of passion defense is adequate 

provocation and the defendant’s state of mind.”). Our discussion is 

limited to 18 U.S.C. § 1112(a). We express no opinion as to whether 

voluntary manslaughter or its equivalent under other federal statutes or 

in other jurisdictions constitutes a crime of violence under 18 U.S.C. 

§ 924(c).
12 USA V. DRAPER

heat of passion” as “a defense to [a] murder charge,” Begay, 

33 F.4th at 1088, because absent those mitigating 

circumstances, the crime of voluntary manslaughter would 

be murder.

Draper argues that “the lack of malice attendant to 

voluntary manslaughter” distinguishes it from murder, but

that distinction makes no difference in this context. Malice 

aforethought has a legal meaning that “does not even 

approximate its literal meaning.” Pineda-Doval, 614 F.3d at 

1037–38 (quoting 2 Wayne R. LaFave, Substantive Criminal 

Law § 14.1 (2d ed. 2003)). It is a catchall element covering 

“four different kinds of mental states,” including “killings 

that, while not specifically intended or planned, were 

grievous enough to be considered murder.” Id. at 1038. 

While malice distinguishes murder from voluntary 

manslaughter based on the defendant’s culpability in light of 

the circumstances, culpability plays no role in determining 

whether an offense is a crime of violence under § 924(c).

According to Draper, malice makes a difference because 

“killing in the heat of passion or upon provocation renders 

an ordinary person unable to fully comprehend the ‘risk to 

human life.’” That is incorrect. “[T]he criminal law 

generally permits a finding of recklessness only when 

persons disregard a risk of harm of which they are aware,” 

United States v. Albers, 226 F.3d 989, 995 (9th Cir. 2000), 

and manslaughter is no exception. The state of mind for a 

depraved heart killing—a “subjective awareness” that one’s 

conduct creates “a very high degree of risk of serious bodily 

injury or death,” Pineda-Doval, 614 F.3d at 1038 n.13—is 

the same for murder and voluntary manslaughter. See Paul, 

37 F.3d at 499.
USA V. DRAPER 13

Essentially, Draper advocates for the minority view of 

the law: that the defendant’s emotional disturbance “must be 

so great as to destroy the intent to kill”—or, as relevant here, 

the ability to appreciate the extreme recklessness of his 

actions—in order to reduce a homicide from murder to 

voluntary manslaughter.

2 2 Wayne R. LaFave, Substantive 

Criminal Law § 15.2(a) (3d ed. 2022). But in the Ninth 

Circuit and most other jurisdictions, voluntary manslaughter 

merely requires the defendant to show that the emotional 

disturbance “made him lose the normal self-control which 

enables him to resist any temptation to slay another person,” 

id., not that it affected his mental state. See 40 Am. Jur. 2d 

Homicide § 45 (2022) (“A conviction for voluntary 

manslaughter requires that the defendant acted either with an 

2 Jurisdictions that appear to adopt the minority view generally 

categorize homicide differently than federal law. For example, 

Montana’s offense of mitigated deliberate homicide is akin to voluntary 

manslaughter in that it “is a lesser included offense of deliberate 

homicide” in which the defendant acts “under the influence of extreme 

mental or emotional stress for which there is reasonable explanation or 

excuse.” Mont. Code Ann. § 45-5-103(1)–(2). Montana treats extreme 

mental or emotional stress as part of the defendant’s mental state. See

Park v. Mont. Sixth Jud. Dist. Ct., 961 P.2d 1267, 1271 (Mont. 1998) 

(“Mitigated deliberate homicide . . . clearly depends on proof of [the 

defendant’s] mental state at the time of the acts alleged . . . .”). But 

Montana does not recognize a depraved heart theory of homicide. Aside 

from felony murders, unlawful killings are either deliberate (requiring a 

purposeful or knowing mens rea), see Mont. Code Ann. § 45-5-

102(1)(a), or negligent, see id. § 45-5-104(1). Hawaii, which similarly 

divides homicide between intentional and reckless killings and lacks a 

depraved heart theory of murder, see Haw. Rev. Stat. §§ 707-701.5(1) 

(second degree murder), 707-702(1)(a) (manslaughter), treats the 

extreme mental or emotional disturbance that reduces murder to 

manslaughter as “a mitigating factor” rather than “the mental state of a 

defendant.” State v. Adviento, 319 P.3d 1131, 1146 (Haw. 2014)

(quoting State v. Dumlao, 715 P.2d 822, 825 (Haw. Ct. App. 1986)).
14 USA V. DRAPER

intent to kill or with conscious disregard for life, i.e. the 

mental state ordinarily sufficient to constitute malice 

aforethought.”); see also Ortiz v. Garland, 25 F.4th 1223, 

1227 (9th Cir. 2022) (“The [voluntary manslaughter] 

statute’s reference to ‘without malice’ merely explains that 

voluntary manslaughter involves mitigating 

circumstances . . . that negate the malice aforethought 

required for murder. It does not mean that voluntary 

manslaughter lacks any culpable mental state. To the 

contrary, a conscious disregard for life or specific intent to 

kill is still required.”).

3

C.

Draper argues that Begay and other case law establishes

that “manslaughter” requires “a lesser recklessness than 

murder.” That is true only with respect to involuntary

manslaughter. See Begay, 33 F.4th at 1092 n.7 

(“[I]nvoluntary manslaughter—which requires a mens rea of 

‘gross negligence’—is not a crime of violence under 

§ 924(c)(3).” (citing Benally, 843 F.3d at 354)). We 

differentiate “involuntary manslaughter . . . from voluntary 

3 Ortiz involved section 192(a) of the California Penal Code, which is

worded identically and interpreted similarly to the federal statute. See

United States v. Rivera-Muniz, 854 F.3d 1047, 1053 (9th Cir. 2017) 

(“California Penal Code section 192(a) does not stray from the generic 

definition of voluntary manslaughter . . . .”). In Quijada-Aguilar v. 

Lynch, we held that section 192(a) is not a crime of violence under 18 

U.S.C. § 16, see 799 F.3d 1303, 1306–07 (9th Cir. 2015), a holding that 

presumably would apply to § 924(c) as well. But our reasoning, that “the 

underlying offense must require proof of an intentional use of force,” id.

at 1306 (quoting United States v. Gomez-Leon, 545 F.3d 777, 787 (9th 

Cir. 2008)), is no longer tenable. See Begay, 33 F.4th at 1094 (“Borden

sufficiently undermines [Gomez-Leon and other Ninth Circuit] authority 

suggesting that anything less than intentional conduct does not qualify 

as a crime of violence.”).
USA V. DRAPER 15

manslaughter . . . by the absence of [either] intent,” United 

States v. Quintero, 21 F.3d 885, 891 n.3 (9th Cir. 1994), or 

“reckless[ness] with extreme disregard for human life,” 

Paul, 37 F.3d at 499 n.1. Whereas voluntary manslaughter 

has the same mental state as murder but is less culpable due 

to mitigating circumstances, involuntary manslaughter is 

less culpable than voluntary manslaughter because “the 

offender’s mental state [does not] meet the traditional malice 

requirements.” Id. at 499.

Nothing in Begay is to the contrary. Begay observed that 

“there are varying degrees of recklessness” and “[t]he 

categories of criminal homicide reflect the[se] distinctions.” 

33 F.4th at 1093–94. As an example, we contrasted 

depraved heart murder with “manslaughter” without 

specifying the type of manslaughter. We stated: “[t]he 

difference between the recklessness that displays depravity 

and such extreme and wanton disregard for human life as to 

constitute ‘malice’ and the recklessness that amounts only to 

manslaughter lies in the quality of awareness of the risk.” Id.

at 1094 (cleaned up) (quoting United States v. Lesina, 833 

F.2d 156, 159 (9th Cir. 1987)). This statement refers

specifically to involuntary manslaughter. See Lesina, 833 

F.2d at 158 (faulting jury instructions for failing “to 

differentiate second degree murder from involuntary 

manslaughter”).

Similarly, our statement that criminal homicide 

“constitutes manslaughter when . . . it is committed 

recklessly” but “constitutes murder when . . . it is committed 

recklessly under circumstances manifesting extreme 

indifference to the value of human life,” Begay, 33 F.4th at 

1094 (first quoting Model Penal Code § 210.3(1)(a); and 

then quoting Model Penal Code § 210.2(1)(b)), contrasted

murder with involuntary manslaughter. The Model Penal 
16 USA V. DRAPER

Code, unlike § 1112, does not formally label manslaughter 

as either voluntary or involuntary. But the provision we 

cited, section 210.3(a), corresponds to involuntary 

manslaughter. Section 210.3(b), which applies to “a 

homicide which would . . . be murder” but for “the influence 

of extreme mental or emotional disturbance for which there 

is [an objectively] reasonable explanation or excuse,”

corresponds to voluntary manslaughter.

D.

Draper relies on several canons of statutory construction 

that, he argues, reveal Congress did not intend § 924(c)’s 

elements clause to include voluntary manslaughter. We 

disagree.

1.

Draper first highlights what he sees as significant

differences between the “crime of violence” definitions in 

§ 924(c) and the Armed Career Criminal Act (“ACCA”), 18 

U.S.C. § 924(e). See Cheneau v. Garland, 997 F.3d 916, 

920 (9th Cir. 2021) (en banc) (“[W]hen the legislature uses 

certain language in one part of the statute and different 

language in another, the court assumes different meanings 

were intended.” (quoting Sosa v. Alvarez-Machain, 542 U.S. 

692, 711 n.9 (2004))). The ACCA enumerates four offenses 

that constitute crimes of violence, none of which are 

voluntary manslaughter, see 18 U.S.C. § 924(e)(2)(B)(ii), 

while § 924(c)(3) does not enumerate any violent offenses. 

But the ACCA’s enumerated offenses “illustrate the kinds of 

crimes that fall within the [residual clause’s] scope.” Begay 

v. United States, 553 U.S. 137, 142 (2008) (emphasis added). 

They shed little light on the crimes that satisfy the elements

clause. If the two clauses covered precisely the same 

offenses, there would be no need for both.
USA V. DRAPER 17

The elements clauses of the ACCA and § 924(c) are 

identical in all but one respect. The ACCA applies to 

“physical force against [another’s] person,” 18 U.S.C. 

§ 924(e)(2)(B)(i), while § 924(c) applies to “physical force 

against [another’s] person or property,” 18 U.S.C. 

§ 924(c)(3)(A) (emphasis added). This difference suggests 

that Congress intended a broader elements clause in § 924(c) 

than in the ACCA. See Begay, 553 U.S. at 144 (explaining 

that “Congress rejected a broad proposal [for the ACCA] 

that would have covered every offense that involved a 

substantial risk of the use of ‘“physical force against the 

person or property of another”’” (quoting Taylor, 495 U.S. 

at 583)).

2.

Draper also compares § 924(c) with Sentencing 

Guidelines section 4B1.2(a), which once contained a “crime 

of violence” definition matching the ACCA’s. Following 

Johnson, the Sentencing Commission modified section 

4B1.2(a)’s definition by removing the residual clause and 

adding several enumerated offenses, including voluntary 

manslaughter. See Notice of Submission to Congress of 

Amendment to the Sentencing Guidelines, 81 Fed. Reg. 

4741, 4743 (Jan. 27, 2016). Draper argues that it would have 

been superfluous to include voluntary manslaughter in 

section 4B1.2(a)’s enumerated offenses clause if section 

4B1.2(a)’s elements clause—which is similar to 

§ 924(c)’s—already encompassed the offense. However, 

the Sentencing Commission expressly rejected this 

implication. See id. (“Importantly, [an elements clause] 

offense may, but need not, be specifically enumerated in [the 

enumerated offenses clause] to qualify as a crime of 

violence.”).
18 USA V. DRAPER

Moreover, the Sentencing Commission’s decision to 

update Guidelines section 4B1.2(a) does not explain

Congress’s inaction concerning § 924 in the wake of 

Johnson. See Kimbrough v. United States, 552 U.S. 85, 106 

(2007) (“Ordinarily, we resist reading congressional intent 

into congressional inaction.”). Draper points to other parts 

of § 924(c) that Congress amended after Johnson, but these 

amendments had nothing to do with the Supreme Court’s 

ruling and are unilluminating.

3.

Draper relies on the legislative history of the First Step 

Act, which allows inmates convicted of voluntary 

manslaughter to earn an earlier release through certain 

activities but excludes those convicted of murder from 

participating. See 18 U.S.C. § 3632(d)(4)(A), (D)(xxv). 

This provision did not modify § 924(c) and has nothing to 

do with sentencing. More relevantly, § 924(c)’s “legislative 

history indicates that Congress did not intend to limit ‘crimes 

of violence’ to crimes of specific intent.” United States v. 

Springfield, 829 F.2d 860, 863 n.1 (9th Cir. 1987), 

abrogated on other grounds by Benally; see S. Rep. No. 97-

307, at 890–91 (1982) (“Since no culpability level is 

prescribed in this section, the applicable state of mind that 

must be shown is, at a minimum, ‘reckless,’ i.e., that the 

defendant was conscious of but disregarded the substantial 

risk that the circumstances existed.”).

4.

Draper also invokes the rule of lenity, which “requires 

ambiguous criminal laws to be interpreted in favor of the 

defendants subjected to them.” United States v. Kelly, 874 

F.3d 1037, 1049 (9th Cir. 2017) (quoting United States v. 

Santos, 553 U.S. 507, 514 (2008) (plurality opinion)). The 
USA V. DRAPER 19

rule applies, however, only if “a reasonable doubt persists 

about a statute’s intended scope even after resort to the 

language and structure, legislative history, and motivating 

polices of the statute.” United States v. Merrell, 37 F.4th 

571, 577 (9th Cir. 2022) (quoting Moskal v. United States, 

498 U.S. 103, 108 (1990)). Because the legislative history 

suggests that Congress intended § 924(c) to apply to 

voluntary manslaughter, the rule of lenity does not apply.

IV.

For purposes of § 924(c), voluntary manslaughter has the 

same mental state as murder—intent to commit a violent act 

against another or recklessness with extreme indifference to 

human life. Consequently, Begay resolves this case. 

Voluntary manslaughter is a crime of violence under 

§ 924(c) because, like murder, it requires at least an 

“extreme and necessarily oppositional” state of mind. 

Begay, 33 F.4th at 1095. The district court properly denied 

Draper’s § 2255 motion.

AFFIRMED.