United States Court of Appeals

For the Eighth Circuit

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No. 16-3953

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Brian Gene McCoy,

lllllllllllllllllllllPetitioner - Appellant,

v.

United States of America,

lllllllllllllllllllllRespondent - Appellee.

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Appeal from United States District Court 

for the District of North Dakota - Bismarck

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Submitted: October 15, 2019

Filed: May 26, 2020 

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Before COLLOTON, BEAM, and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

A jury found Brian McCoy guilty of voluntary manslaughter, in violation of 18

U.S.C. §§ 1112 and 1152, and using a firearm during and in relation to a “crime of

violence,” in violation of § 924(c)(1)(A). The district court1 sentenced McCoy to

1The Honorable Daniel L. Hovland, United States District Judge for the District

of North Dakota.
consecutive terms of 96 months’ imprisonment for voluntary manslaughter and 120

months’ imprisonment for the firearms offense.

McCoy later moved under 28 U.S.C. § 2255 to vacate his sentence for the

firearms offense. He argued that voluntary manslaughter was not a “crime of

violence” in light of Supreme Court decisions issued after his sentencing. As such,

he urged that his use of a firearm during and in relation to manslaughter did not

violate 18 U.S.C. § 924(c). We conclude that voluntary manslaughter under § 1112

qualifies as a “crime of violence” under the “force” clause of § 924(c)(3)(A), because

it has as an element the use of force against the person of another. We therefore

affirm the judgment of the district court.

McCoy’s motion to vacate his sentence was premised on Johnson v. United

States, 135 S. Ct. 2551 (2015). Johnson held that the residual clause of

§ 924(e)(2)(B)(ii) was unconstitutionally vague. 135 S. Ct. at 2563. That clause

defined “violent felony” to include an offense punishable by imprisonment for a term

exceeding one year that “otherwise involves conduct that presents a serious potential

risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). McCoy asserted that

he was convicted on the theory that voluntary manslaughter was a “crime of violence”

under the residual clause of § 924(c)(3)(B), and because the wording of that clause

was comparable to the clause held unconstitutional in Johnson, his conviction could

not stand.

The district court rejected the argument based on United States v. Prickett, 839

F.3d 697 (8th Cir. 2016) (per curiam), which held that Johnson did not render the

residual clause of § 924(c)(3)(B) unconstitutionally vague. Id. at 700. McCoy

unsuccessfully sought a certificate of appealability, but the Supreme Court eventually

vacated and remanded the case for further consideration in light of Sessions v.

Dimaya, 138 S. Ct. 1204 (2018).

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On remand, we granted a certificate of appealability “on the issue of whether

18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague and, if so, whether the appellant

is entitled to relief.” While the appeal was pending, the Supreme Court held in

United States v. Davis, 139 S. Ct. 2319 (2019), that the residual clause of

§ 924(c)(3)(B) is unconstitutionally vague. Therefore, the remaining question is

whether McCoy’s conviction for voluntary manslaughter qualifies as a “crime of

violence” under a different subsection of § 924(c), namely, the “force” clause of

§ 924(c)(3)(A). We consider that legal issue de novo.

The “force” clause provides that an offense qualifies as a “crime of violence”

if it is a felony and “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). 

To determine whether an underlying offense has as an element the “use . . . of

physical force” against the person of another, we apply a categorical approach that

compares the elements of the offense of conviction with the requirements of the

“force” clause. See United States v. Fogg, 836 F.3d 951, 954 (8th Cir. 2016). Where

the statute in question defines multiple crimes, we apply the modified categorical

approach and consider only the offense of which the defendant was convicted. See

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

The federal manslaughter statute defines “two kinds” of manslaughter: 

voluntary manslaughter and involuntary manslaughter. 18 U.S.C. § 1112(a). McCoy

implicitly concedes that the statute defines two separate crimes, and we agree. The

statute requires the government to prove different elements for each offense, and it

prescribes different punishments for the two crimes. Id. § 1112(b). These factors

demonstrate that the alternative versions of manslaughter are separate crimes. See

Mathis, 136 S. Ct. at 2256. It is undisputed that McCoy was convicted of voluntary

manslaughter.

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McCoy contends, however, that one can commit voluntary manslaughter

without the “use” of force against another, because the minimum mental state

required is recklessness. Voluntary manslaughter occurs when a defendant acts upon

a sudden quarrel or heat of passion, and with a mental state constituting “a general

intent to kill, intent to do serious bodily injury, or with depraved heart recklessness.” 

United States v. Serawop, 410 F.3d 656, 666 (10th Cir. 2005); see United States v.

Steward, 880 F.3d 983, 987-88 (8th Cir. 2018); 2 Wayne R. LaFave, Substantive

Criminal Law § 15.2(a) (3d ed. 2017).

Our precedent all but resolves the issue against McCoy. In Voisine v. United

States, 136 S. Ct. 2272 (2016), the Supreme Court concluded that reckless domestic

assault qualifies as a “misdemeanor crime of violence” under 18 U.S.C.

§ 921(a)(33)(A)(ii) because it requires a “use . . . of physical force” committed by a

person in certain domestic relationships with the victim. Id. at 2280. The Court ruled

that reckless conduct “use[s] force, no less than one who carries out that same action

knowingly or intentionally.” Id. Applying Voisine, we held in United States v. Fogg

that a reckless drive-by shooting involved the “use . . . of physical force against the

person of another” under § 924(e)(2)(B)(i), and thus qualified as a violent felony

under the Armed Career Criminal Act. 836 F.3d at 956. There is no material

difference between the force clause at issue in Fogg and the force clause under

§ 924(c)(3)(A). We therefore conclude that voluntary manslaughter qualifies as a

crime of violence under § 924(c)(3)(A).

McCoy’s remaining arguments are unavailing. McCoy cites precedent holding

that reckless driving resulting in injury does not involve the use of physical force. 

See United States v. Schneider, 905 F.3d 1088, 1092 (8th Cir.), reh’g en banc denied,

911 F.3d 504 (8th Cir. 2018); United States v. Fields, 863 F.3d 1012, 1015 (8th Cir.

2017). Whatever the merit of those decisions, the court specifically limited their

scope to driving offenses on the view that reckless driving “is distinct from other

crimes of recklessness.” Fields, 863 F.3d at 1015 (8th Cir. 2017) (quoting United

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States v. Ossana, 638 F.3d 895, 901 n.6 (8th Cir. 2011)). McCoy also contends that

voluntary manslaughter does not require the use of physical force because the

“unlawful killing of another human being” can be committed by means other than

direct physical force, such as by poison or laying a trap. This argument is foreclosed

by United States v. Rice, 813 F.3d 704 (8th Cir. 2016), which held that causing injury

through indirect means such as poison constitutes a use of force. Id. at 706. Finally,

McCoy cites United States v. Flute, 929 F.3d 584 (8th Cir. 2019), for the proposition

that manslaughter can be committed without the use of force “against the person” of

another, because Flute held that a woman could be convicted of manslaughter based

on actions that harmed an unborn child. Id. at 589-90. Flute, however, involved a

charge of involuntary manslaughter, so it does not speak to whether McCoy’s discrete

offense of voluntary manslaughter is a crime of violence.

The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring in the judgment.

I agree that Fogg “all but resolves the issue” McCoy raises. Ante at 4. Fogg,

relying on Voisine, concluded that “reckless conduct . . . constitutes a ‘use’ of force

under the ACCA.” Fogg, 836 F.3d at 956. However, I write separately because I

question whether the analysis in Fogg is sufficiently fulsome to warrant this

conclusion.

Voisine examined the mens rea of recklessness in the context of 18 U.S.C.

§ 922(g)(9), which prohibits anyone who has a prior conviction for a “misdemeanor

crime of domestic violence” from possessing a firearm. Congress enacted § 922(g)(9)

to “close a dangerous loophole in gun control laws” because “many perpetrators of

domestic violence are charged with misdemeanors rather than felonies,

notwithstanding the harmfulness of their conduct.” Voisine v. United States, 136 S.

Ct. 2272, 2276 (2016) (cleaned up). The Court noted that a majority of the states,

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plus the District of Columbia, had adopted the Model Penal Code’s view that the

mens rea of recklessness established criminal liability for misdemeanor domestic

assault, “[s]o in linking § 922(g)(9) to those laws, Congress must have known it was

sweeping in some persons who had engaged in reckless conduct.” Id. at 2280. 

Relying on this “[s]tatutory text and background alike,” the Supreme Court concluded

“that a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic

violence’”—as defined in § 921(a)(33)(A)—such that the prohibitions of § 922(g)(9)

would apply. Id. at 2278.

The Supreme Court also expressly stated that its decision in Voisine

“concerning § 921(a)(33)(A)’s scope does not resolve whether [18 U.S.C.] § 16

includes reckless behavior.” Voisine, 136 S. Ct. at 2280 n.4. The Court explained

that “[c]ourts have sometimes given those two statutory definitions divergent readings

in light of differences in their contexts and purposes, and we do not foreclose that

possibility with respect to their required mental states.” Id.; see also Leocal v.

Ashcroft, 543 U.S. 1, 9 (2004) (“Particularly when interpreting a statute that features

as elastic a word as ‘use’, we construe language in its context and in light of the terms

surrounding it”); United States v. Middleton, 883 F.3d 485, 493 (4th Cir. 2018)

(Floyd, J., concurring) (“[T]he Supreme Court expressly left open the possibility that

two statutory definitions, even if they are similarly drafted, could have divergent

readings or mens rea requirements ‘in light of differences in their contexts and

purposes. . . .’”) (cleaned up). Section 924(c)(3)(A), the statute at issue in this case,

has a nearly identical definition of a crime of violence as § 16.2

2The relevant portion of 18 U.S.C. § 16 reads:

The term “crime of violence” means--

(a) an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property

of another.

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At least two other circuits have also considered whether, after Voisine, a

reckless mens rea is sufficient for a conviction to qualify as a violent felony under the

ACCA force clause. See 18 U.S.C. § 924(e)(2)(B)(i). They have determined it is not,

both because a reckless offense is insufficient in light of ACCA’s text, history, and

purpose, and because of the specific context of Voisine. The First Circuit determined

that an offense with the “mens rea element of mere recklessness” did not satisfy the

ACCA force clause. Bennett v. United States, 868 F.3d 1, 24 (1st Cir.), vacated as

moot, 870 F.3d 34 (1st Cir. 2017).3 “We do not see how we could conclude, based

on Voisine, that the key statutory phrase in ACCA’s force clause—‘use . . . of

physical force against the person of another,’ 18 U.S.C. § 924(e)(2)(B)(i)—must be

construed to include reckless offenses when a version of that language was for so

long and so uniformly construed to exclude them.” Bennett, 868 F.3d at 8. The

Fourth Circuit agreed, similarly concluding that the ACCA force clause requires a

mens rea higher than recklessness. See Middleton, 883 F.3d at 493. It is this analysis

of ACCA’s history and purpose, along with a discussion of Voisine’s narrow scope,

that Fogg lacks, particularly in light of the deviation Fogg represents from our case

law prior to that point. See Fogg, 836 F.3d at 956 (Bright, J., dissenting, and

identifying this “important and far reaching” issue as one that would benefit from

further briefing). 

For these reasons, I agree that Fogg dictates the outcome of this case. But

whether a reckless mens rea is sufficient for purposes of § 924(c)(3)(A) is a question

deserving of a more thorough analysis than we have thus far provided.

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3After Bennett died, the panel withdrew its opinion as moot, but not before a

different panel of the First Circuit “endorse[d] and adopt[ed]” the reasoning of

Bennett. United States v. Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017).

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