The majority decision in United States v. Begay is written by Judge D.W. Nelson. In a thoughtful analysis, she explains why federal second-degree murder is not a crime of violence, supporting a Section 924(c) charge.

It is a great opinion, and an important victory for AFPD Edie Cunningham, D. Arizona FPD – congratulations due on this big win.

Re: United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019): Taylor Categorical Sentencing: Big win, second-degree murder not a “crime of violence

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18
USC §§ 1111 and 1153. Id. at *1. He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “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.’” Id.

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] 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. . . . 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.” Id. at *3.
“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.” Id. at *4. “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) . . . .” Id. at *6.

Of Note: In a curious cultural mash-up, Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting). In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as a sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id. Judge Smith’s dissent conspicuously baits the en banc hook. Here’s hoping the Ninth doesn’t nibble – the dissent doesn’t grapple with the reality of the controlling Fernandez‐Ruiz decision, and fails to engage with the Majority’s
(correct) reading of Voisine. This outcome may stick in some craws, but Begay’s legal analysis is spot on.

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a
“misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez‐Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. In a thoughtful and principled analysis, Judge D.W. Nelson explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id. Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.