Please see the attached opinion in United States v. Begay, in which the Ninth Circuit held that second degree murder under 18 U.S.C. 1111(c) is a crime of violence under the elements clause of 924(c)(3)(A) because it is unlawful killing with malice aforethought, meaning deliberately or recklessly with extreme disregard for human life. Thus, the Circuit endorsed different degrees of recklessness to escape the Court’s decision in Borden v. United States.
For Hawaii practitioners, please note the following which I did not draft, but I am passing along for your consideration:
"Hawaii’s general definition of recklessness (in HRS 702-206) defines what the majority calls "ordinary" recklessness and is safely within the ambit of Borden, not Begay. And Hawaii doesn’t use malice aforethought or depraved heart or extreme recklessness or indifference to human life in defining its homicide offenses or, as near as I can recall, any of its other offenses. The closest thing in the Hawaii Penal Code to what Begay is focused on is HRS 706-657, the statute that allows for an enhanced lwop sentence on second degree murder; section 706-657 babbles on about "exceptional depravity" and such.