United States v. Randly Begay

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10080
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-08073-
NVW-1
RANDLY IRVIN BEGAY, AKA Randly
Begay,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Argued and Submitted January 24, 2022
Pasadena, California

Filed May 5, 2022

Before: Mary H. Murguia, Chief Judge, and M. Margaret
McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson,
Richard R. Clifton, Milan D. Smith, Jr., Sandra S. Ikuta,
Morgan Christen, Mark J. Bennett, Eric D. Miller and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge Christen;
Concurrence by Chief Judge Murguia;
Dissent by Judge Wardlaw;
Dissent by Judge Ikuta
2 UNITED STATES V. BEGAY

SUMMARY*

Criminal Law

The en banc court affirmed Randly Irvin Begay’s
convictions for second-degree murder (18 U.S.C. §§ 1111(a)
and 1153) and for discharging a firearm during a crime of
violence (18 U.S.C. § 924(c)), vacated the district court’s
order of mandatory restitution, and remanded, in a case in
which a divided three-judge panel agreed with Begay’s
argument that second-degree murder can be committed
recklessly and therefore does not qualify as a crime of
violence for purposes of § 924(c).

Challenging his second-degree murder conviction, Begay
argued for the first time on appeal that the district court erred
by failing to instruct the jury that the government bore the
burden of proving beyond a reasonable doubt that Begay did
not act upon a sudden quarrel or in the heat of passion. A
defendant who acts in the heat of passion is guilty of
voluntary manslaughter rather than murder. The en banc
court could not conclude on this record that the district court
plainly erred, where Begay’s counsel did not attempt to
demonstrate to the court that the evidence would allow the
jurors to conclude that Begay acted in the heat of passion, and
the evidence did not suggest sudden provocation; the second-
degree murder instruction was jointly proffered by the
defense and prosecution, and no voluntary manslaughter
instruction was requested; and the instruction Begay now

*
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

insists should have been given could have undermined his
primary defense theory—that someone else shot the victim.

Challenging his § 924(c) conviction for discharging a
firearm during a crime of violence, Begay argued that second-
degree murder can be committed recklessly under § 1111(a)
and that, under the categorical approach, “crime of violence”
does not encompass offenses that can be committed with a
reckless mens rea. The parties disagreed on the applicable
standard of review. Because the difference between plain
error and de novo review does not change the outcome, the en
banc court assumed without deciding that de novo review
applies in order to provide the clearest answer. The en banc
court held that a conviction for second-degree murder
pursuant to § 1111(a) constitutes a crime of violence under
the elements clause, 18 U.S.C. § 924(c)(3)(A), because
murder is the unlawful killing of a human being with malice
aforethought, and to kill with malice aforethought means to
kill either deliberately or recklessly with extreme disregard
for human life. The en banc court explained that such a
conviction qualifies because a defendant who acts with the
requisite mens rea to commit second-degree murder
necessarily employs force “against the person or property of
another,” and rather than acting with ordinary recklessness,
the defendant acts with recklessness that rises to a level of
extreme disregard for human life. Emphasizing this
distinction between degrees of recklessness, the en banc court
was persuaded that the reasoning of Borden v. United States,
141 S. Ct. 1817 (2021), sufficiently undermines this court’s
prior authority suggesting that anything less than intentional
conduct does not qualify as a crime of violence.

Because the second-degree murder conviction does
qualify as a crime of violence, the en banc court rejected
4 UNITED STATES V. BEGAY

Begay’s challenge to the district court’s restitution award
based on the absence of a crime-of-violence conviction. The
en banc court vacated the restitution award because the
district court did not explain how or whether the $19,000 it
awarded to compensate the murder victim’s mother for the
damage to the van in which the victim was shot satisfied
18 U.S.C. § 3663A. The en banc court remanded for
recalculation and for an explanation of reasoning.

Chief Judge Murguia, joined by Judge Clifton, concurred.
She wrote that she is persuaded that someone who commits
second-degree murder necessarily satisfies the standard set
forth by a plurality of the Supreme Court in Borden: that the
perpetrator has directed his actions against, or targeted, other
individuals, even if he neither aims at nor consciously desires
to harm them.

Judge Wardlaw dissented from portions of the majority
opinion concerning the § 924(c) conviction and the restitution
award. She concurred in portions of Judge Ikuta’s partial
dissent, except as to a supposed need to remedy any
“problem” with the legal conclusion that § 1111(a) second-
degree murder is not a categorical “crime of violence” under
§ 924(c). She wrote that Borden’s rationale compels the
conclusion that “depraved heart” second-degree murder is not
a categorical match with § 924(c)’s elements clause, a
conclusion that derives directly from the Supreme Court’s
development of the categorical approach and its
corresponding invalidation of vague residual clauses. She
would affirm the second-degree murder conviction, but would
vacate the sentence on both counts of conviction, remand for
resentencing, and vacate the restitution award.
 UNITED STATES V. BEGAY 5

Judge Ikuta, joined by Judge VanDyke, dissented from
the majority’s holding that second-degree murder is a crime
of violence under the elements clause. She wrote that
Congress meant for second-degree murder to qualify as a
crime of violence under the residual clause, 18 U.S.C.
§ 924(c)(3)(B), but the Supreme Court determined that the
residual clause was unconstitutionally vague, and defined the
elements clause, 18 U.S.C. § 924(c)(3)(A), as including only
conduct that targets or is directed at another individual. She
wrote that because second-degree murder can be committed
with extreme recklessness, and so does not necessarily
involve a directed or targeted use of force against the victim,
second-degree murder is not a categorical match and does not
qualify as a crime of violence under the elements clause.
6 UNITED STATES V. BEGAY

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.

Krissa M. Lanham (argued) and Karla Hotis Delord, Assistant
United States Attorneys; United States Attorney’s Office,
Phoenix, Arizona; for Plaintiff-Appellee.

Mitchell Keiter, Keiter Appellate Law, Beverly Hills,
California, for Amicus Curiae Amicus Populi.
 UNITED STATES V. BEGAY 7

OPINION

CHRISTEN, Circuit Judge:

Randly Irvin Begay appeals his federal convictions for
second-degree murder in violation of 18 U.S.C. §§ 1111(a)
and 1153, and for discharging a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c). Begay also
appeals the district court’s restitution award. Begay raises
three primary arguments. First, he argues the district court
erred because it failed to instruct the jury that to convict
Begay of second-degree murder, the government bore the
burden of proving beyond a reasonable doubt that he did not
act in the heat of passion or “upon a sudden quarrel.”
Second, Begay urges us to reverse his § 924(c) conviction
because second-degree murder, he argues, can be committed
recklessly and therefore does not constitute a crime of
violence. Last, Begay argues the district court’s restitution
award was plainly erroneous.

A divided three-judge panel of our court agreed with
Begay’s second argument and held that second-degree
murder does not qualify as a crime of violence for purposes
of 18 U.S.C. § 924(c). See United States v. Begay, 934 F.3d
1033, 1038 (9th Cir. 2019). The government petitioned for
panel rehearing, but we held that petition in abeyance because
ongoing en banc proceedings in United States v. Orona,
923 F.3d 1197 (9th Cir. 2019), asked whether an offense
committed with ordinary recklessness qualifies as a violent
felony under the Armed Career Criminal Act (ACCA), id.
at 1199; see also United States v. Orona, 942 F.3d 1159 (9th
Cir. 2019). The Orona appeal was ultimately dismissed
because the petitioner passed away, see United States v.
Orona, 987 F.3d 892, 893 (9th Cir. 2021), but while Orona
8 UNITED STATES V. BEGAY

was still pending, the Supreme Court granted certiorari in
Borden v. United States, 141 S. Ct. 1817 (2021), to address
“whether a criminal offense can count as a ‘violent felony’
[under the ACCA] if it requires only a mens rea of
recklessness,” id. at 1821. The issue in Borden is closely
related to the one presented in Begay’s case, so we continued
to hold the government’s petition in abeyance.

Ultimately, the Supreme Court’s decision in Borden
stopped short of deciding whether offenses that may be
committed with mental states between ordinary recklessness
and knowledge (such as “depraved heart” and “extreme
recklessness”) qualify as crimes of violence, id. at 1825 n.4,
but a majority of the nonrecused active judges of our court
voted to rehear Begay’s case en banc after Borden was
decided. Now, having considered the parties’ supplemental
briefs and argument, we hold that second-degree murder
qualifies as a crime of violence pursuant to § 924(c)(3)(A).
We affirm Begay’s convictions, but vacate and remand the
district court’s restitution order.

I

On the morning of March 4, 2013, Begay, Meghan
Williams (Begay’s girlfriend), Roderick Ben, and Lionel
Begay (Begay’s nephew) sat in a van parked outside Begay’s
parents’ home on the Navajo Nation Indian Reservation in
Tuba City, Arizona. Ben was in the driver’s seat, Lionel was
in the front passenger seat, and Williams and Begay were
sitting behind the driver’s and passenger’s seats, respectively.
All four of the van’s occupants had been drinking alcohol and
smoking methamphetamine for several hours. Williams and
Begay got into an argument about her alleged infidelities, and
Begay accused her of cheating on him with Ben. Lionel later
 UNITED STATES V. BEGAY 9

testified that this type of argument was “pretty normal” for
Williams and Begay. According to Williams’s testimony,
Begay said he “was tired of everybody calling him and
thinking that he was a bitch for being with [her].”

Williams testified that at some point during the argument,
Begay pulled a gun out of his pocket and placed it on his right
leg. Williams told the jury that Begay said he was “not going
to be a bitch no more,” and she saw Begay pick up the gun.
Williams testified that she put her head down, “curled up,”
and then she heard a gunshot. When Williams looked up, she
saw that Ben had been shot in the head. Law enforcement
officers later found a shell casing on the floor between the
two front seats of the van, but they never found the gun used
in the shooting.1

A federal grand jury indicted Begay on one count of
second-degree murder (Count 1) and one count of discharging
a firearm during a crime of violence (Count 2). At trial, the
parties jointly submitted jury instructions for second-degree
murder. Begay’s attorney did not object to the instructions as
presented nor request a voluntary manslaughter instruction.
The district court instructed the jurors that to find Begay
guilty on Count 2, the government bore the burden to prove
beyond a reasonable doubt that Begay “committed the crime
of murder in the second degree as charged in Count 1 of the
indictment, which I instruct you is a crime of violence.”

Begay’s theory at trial was that someone else in the van
shot Ben, but during his closing argument, defense counsel
also briefly argued that the government had not proved the

1
Lionel’s accounts to investigators and at trial conflicted as to
whether he was still in the van when Ben was shot.
10 UNITED STATES V. BEGAY

element of malice aforethought because there was no
evidence that Begay had deliberated or acted with extreme
disregard for human life. The government’s theory was that
Begay shot Ben, and the government argued that the evidence
“fully corroborated” Williams’s version of the events and
disproved Begay’s “stories.” In addition to Williams’s
testimony describing what happened in the van, the
government presented testimony from the medical examiner
who performed an autopsy on Ben’s body. He testified that
the trajectory of the gunshot suggested a bullet entered Ben’s
skull on the right side above his ear and exited on the left.
During its rebuttal, the government referred to Williams’s and
Lionel’s testimony that Begay and Williams were arguing
before Ben was shot.

The jury convicted Begay on both counts, and the district
court sentenced him to 204 months on Count 1 and
120 months on Count 2 to be served consecutively.2 The
district court also imposed $23,622 in mandatory restitution
pursuant to 18 U.S.C. § 3663A. Begay appeals both
convictions and the restitution award.

II

Generally, “[w]e review de novo whether a criminal
conviction is a ‘crime of violence’ and whether a jury
instruction misstated the elements of an offense.” United

2
Begay’s conviction on Count 2 subjected him to a mandatory ten-
year consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A)(iii). See
also § 924(c)(1)(D)(ii). The government objected that the district court
improperly varied downward based upon the 120-month mandatory
minimum sentence for the § 924(c) conviction, but the government did not
appeal Begay’s sentence.
 UNITED STATES V. BEGAY 11

States v. Benally, 843 F.3d 350, 353 (9th Cir. 2016). But
where a defendant makes an argument for the first time on
appeal that was not the basis of an objection in the trial court,
we review for plain error. United States v. Cuevas-Lopez,
934 F.3d 1056, 1060 (9th Cir. 2019); see also Fed. R. Crim.
P. 52(b). “Plain error requires an (1) error, (2) that is plain,
and (3) that affects substantial rights.” United States v. Smith,
282 F.3d 758, 765 (9th Cir. 2002) (citing Johnson v. United
States, 520 U.S. 461, 467 (1997)). We have discretion to
notice a plain error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.

III

Because this shooting took place on the Navajo Nation
Indian Reservation, it occurred within “Indian country” for
the purposes of the Major Crimes Act. See 18 U.S.C.
§§ 1151, 1153; see also Benally, 843 F.3d at 352. “An
‘Indian’ who commits murder . . . in ‘Indian country’ is
subject to applicable federal criminal laws.” Id. (citing
§ 1153(a)). Though the Act does not define the term
“Indian,” “[t]he generally accepted test for Indian status
considers (1) the degree of Indian blood; and (2) tribal or
government recognition as an Indian.” United States v.
Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005) (internal
quotation marks omitted) (quoting United States v. Keys,
103 F.3d 758, 761 (9th Cir. 1996)). Here, the parties
stipulated that Begay “has descendant status as an Indian,
such as being a blood relative to a parent, grandparent, or
great-grandparent who is clearly identified as an Indian from
a federally recognized tribe.” We have jurisdiction pursuant
to 28 U.S.C. § 1291.

IV
12 UNITED STATES V. BEGAY

Begay challenges his second-degree murder conviction
based on the district court’s jury instructions for the first time
on appeal. He argues that because he made a showing at trial
of “sudden quarrel or heat of passion,” the district court erred
by failing to instruct the jury that the government bore the
burden of proving beyond a reasonable doubt that Begay did
not act upon a sudden quarrel or in the heat of passion.
Begay argues that the government bears the burden of
proving each element of the charged offense, and a rational
jury could have found reasonable doubt about whether he
acted out of passion rather than malice. Begay observes that
even the government argued he acted “out of rage and passion
during a heated argument about infidelity.” We review for
plain error because Begay did not raise this argument in the
district court. See Cuevas-Lopez, 934 F.3d at 1060.

“A defendant is entitled to an instruction upon his theory
of the case if the record contains evidentiary support for the
theory and the theory is supported by law.” United States v.
Lesina, 833 F.2d 156, 160 (9th Cir. 1987). In a murder trial,
evidence of a sudden quarrel or heat of passion can serve as
a defense to the murder charge, United States v. Quintero,
21 F.3d 885, 890 (9th Cir. 1994), because a heat of passion
and adequate provocation finding “negates the malice that
would otherwise attach,” United States v. Paul, 37 F.3d 496,
499 (9th Cir. 1994). A defendant who acts in the heat of
passion is guilty of voluntary manslaughter rather than
murder. Id.

For this reason, the prosecution bears the burden of
proving beyond a reasonable doubt the absence of the heat of
passion when the issue is properly presented, Mullaney v.
Wilbur, 421 U.S. 684, 703 (1975), and the trial court must
instruct the jury that the government bears this burden, see
 UNITED STATES V. BEGAY 13

Lesina, 833 F.2d at 160. But such an instruction is only
required if the defense is fairly raised. See United States v.
Roston, 986 F.2d 1287, 1290 (9th Cir. 1993) (“The
prosecution is required to negate a killing in the heat of
passion only if that issue is ‘properly presented . . . .’”
(quoting Mullaney, 421 U.S. at 704)). To obtain a jury
instruction regarding voluntary manslaughter, a defendant
must demonstrate to the trial court that the evidence would
allow reasonable jurors to conclude the defendant acted out
of passion rather than malice. See Quintero, 21 F.3d at 891.

Here, the evidence presented at trial certainly suggested
that Begay and Williams quarreled prior to the shooting, but
defense counsel did not request an instruction for voluntary
manslaughter, nor an instruction that the prosecution bore the
burden of establishing the absence of heat of passion, nor did
the defense object to the lack of those instructions. Instead,
Begay’s theory at trial was that he did not shoot Ben.
Begay’s counsel did argue that the government had not met
its burden of proving that Begay acted with malice because
there was no evidence Begay deliberated before acting.
Specifically, he argued to the jury that “to deliberate and to
intend to do something is not to simply be high and pull a
trigger,” and “[t]here’s no deliberation here.” But the
primary defense theory was that Begay was not the shooter,
and the government’s case focused on why the evidence
showed that Begay, not Williams or Lionel, shot Ben.

On this record, we cannot conclude the district court
plainly erred by failing to instruct the jury that the
government bore the burden of proving the absence of heat of
passion. Begay’s counsel did not attempt to demonstrate to
the court that the evidence would allow the jurors to conclude
that Begay acted in the heat of passion, and the evidence did
14 UNITED STATES V. BEGAY

not suggest sudden provocation; rather, it suggested that
Begay and Williams had argued about her alleged infidelities
before. The second-degree murder instruction was jointly
proffered by the defense and prosecution, no voluntary
manslaughter instruction was requested, and the instruction
Begay now insists should have been given could have
undermined his primary defense theory—that someone else
shot Ben—by inviting the jury to consider that even if Begay
was the shooter, he only acted upon sudden provocation.
Because the district court did not plainly err by giving the
jointly requested jury instructions, we affirm Begay’s
conviction for second-degree murder.

V

Begay’s second argument asks us to reverse his § 924(c)
conviction for discharging a firearm during a crime of
violence. He argues that second-degree murder can be
committed recklessly under § 1111(a), and urges us to
conclude that the statutory definition of “crime of violence”
does not encompass offenses that can be committed with a
reckless mens rea.

The parties disagree on the standard of review that we
should apply to this issue. Begay’s brief applied de novo
review because whether second-degree murder is a crime of
violence “is purely a question of law” and the government
will suffer no prejudice if we conduct a de novo analysis.
The government’s brief applied plain error review because
Begay never raised his “crime of violence” argument before
the district court. The government argued that if the district
court erred, its error was not plain because our court had
upheld other § 924(c) convictions based on second-degree
murder. See United States v. Begay, 567 F.3d 540, 552 (9th
 UNITED STATES V. BEGAY 15

Cir. 2009), overruled on other grounds, 673 F.3d 1038 (9th
Cir. 2011) (en banc); United States v. Houser, 130 F.3d 867,
868 (9th Cir. 1997); United States v. Percy, 250 F.3d 720,
729 (9th Cir. 2001).

When asked at oral argument what standard of review
should apply, the government responded that the outcome of
our analysis would be the same whether we apply plain error
or de novo review. We agree with the government that the
difference between these two standards does not change the
outcome of Begay’s appeal, but the government’s original
brief relied on step two of the plain error standard (i.e., it
argued that if there was error, it was not plain) and devoted
just one paragraph to discussing the categorical approach.
The government’s supplemental brief focused on the
categorical analysis and did not argue the standard of review
at all. Because the outcome does not change, we assume
without deciding that de novo review applies in order to
provide the clearest answer to the categorical inquiry at the
heart of this long-pending appeal.3

3
The government did not ask us to revisit our precedent allowing the
application of de novo review to pure questions of law where we are
satisfied the government will not be prejudiced. See, e.g., United States
v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (explaining
we may review de novo “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’” (quoting
United States v. Echavarria-Escobar, 270 F.3d 1265, 1268 (9th Cir.
2001)); United States v. Lillard, 935 F.3d 827, 833 (9th Cir. 2019). And
because the outcome is the same regardless of what standard we apply, we
need not consider whether that precedent can be reconciled with the
Supreme Court’s cases interpreting Federal Rule of Criminal
Procedure 52(b). See United States v. Yijun Zhou, 838 F.3d 1007, 1015
(9th Cir. 2016) (Graber, J., concurring) (arguing that “[t]he Supreme Court
has left very little room—if any at all—for the judicial creation of
16 UNITED STATES V. BEGAY

A

Begay was convicted of discharging a firearm during a
crime of violence pursuant to 18 U.S.C. § 924(c). This
conviction subjected him to a mandatory minimum sentence
of ten years that must be served consecutively. Section
924(c)(3) defines the term “crime of violence”:

[A]n offense that is a felony and–

(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.

We commonly refer to subpart A of § 924(c)(3) as the
“elements clause” and subpart B as the “residual clause.” See
United States v. Davis, 139 S. Ct. 2319, 2324 (2019). The
Supreme Court recently invalidated the residual clause as
unconstitutionally vague.4 See id. at 2336. Therefore, the

exceptions to Rule 52(b)”).
4
After Begay filed his opening brief in this court, the Supreme Court
invalidated the residual clause in § 924(e)(2)(B), holding it is
unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597
(2015). Less than three years later, the Court extended Johnson’s
reasoning to the residual clause in 18 U.S.C. § 16. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1213–16 (2018). Before the three-judge panel
issued its decision in this appeal, the Court invalidated the residual clause
in § 924(c)(3)(B). See Davis, 139 S. Ct. at 2336.
 UNITED STATES V. BEGAY 17

inquiry in Begay’s case is limited to deciding whether his
murder conviction qualifies as a crime of violence under the
elements clause.

We apply the categorical approach described in Taylor v.
United States, 495 U.S. 575, 598–600 (1990), to decide
whether the offense of second-degree murder qualifies as a
crime of violence for purposes of § 924(c). See Borden v.
United States, 141 S. Ct. 1817, 1822 (2021). “Under that by-
now-familiar method, applicable in several statutory contexts,
the facts of a given case are irrelevant,” and our focus is
“whether the elements of the statute of conviction meet the
federal standard.” Id.; see also Moncrieffe v. Holder,
569 U.S. 184, 190 (2013) (“Accordingly, a state offense is a
categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved . . . facts
equating to the generic federal offense” (alterations and
internal quotation marks omitted)).

As applied to the charges in Begay’s case, the categorical
approach requires that we ask whether the elements of the
second-degree murder statute necessarily involve a
defendant’s “use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). Unless the least culpable act criminalized in
the second-degree murder statute entails that force, the statute
is not a categorical match with the elements clause, and it
does not qualify as a crime of violence. See Borden, 141 S.
Ct. at 1822; see also United States v. Buck, 23 F.4th 919, 924
(9th Cir. 2022).

Federal law defines “murder” as “the unlawful killing of
a human being with malice aforethought.” 18 U.S.C.
18 UNITED STATES V. BEGAY

§ 1111(a)5; see also Ninth Cir. Model Crim. Jury Instruction
8.108. “To kill with malice aforethought means to kill either
deliberately and intentionally or recklessly with extreme
disregard for human life.” Id. (emphasis added); United
States v. Houser, 130 F.3d 867, 871 (9th Cir. 1997). We have
described malice aforethought as “a callous and wanton
disregard of human life,” and “extreme indifference to the
value of human life.” United States v. Pineda-Doval,
614 F.3d 1019, 1037 (9th Cir. 2010) (emphasis added)
(internal quotation marks omitted); see also United States v.
Paul, 37 F.3d 496, 499 (9th Cir. 1994) (“To establish malice
or malice aforethought in a homicide prosecution, the
government must prove that the defendant killed intentionally
or recklessly with extreme disregard for human life.”).

The mens rea of “malice 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.” Pineda-
Doval, 614 F.3d at 1038. Here, we focus on the mental state
of depraved heart (i.e., reckless indifference) because it
encompasses the least culpable conduct criminalized by
§ 1111(a).

B

When identifying crimes of violence, the law
distinguishes between the “four states of mind, as described
in modern statutes and cases, that may give rise to criminal
liability.” Borden, 141 S. Ct. at 1823. “[I]n descending order

5
Section 1111(a) identifies several specific types of murder that
qualify as murder in the first degree, and defines “[a]ny other murder [as]
murder in the second degree.”
 UNITED STATES V. BEGAY 19

of culpability,” those mental states are: purpose, knowledge,
recklessness, and negligence. Id. Over twenty years ago in
United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir.
2001), our court concluded that a crime of violence could be
committed recklessly but not negligently, see id. at 1145.
The Supreme Court partially affirmed our interpretation in
Leocal v. Ashcroft, 543 U.S. 1 (2004), where it held that
offenses that may be committed with a mens rea of
negligence fall short of qualifying as crimes of violence under
the elements clause of 18 U.S.C. § 16(a), see 543 U.S.
at 9–10, but Leocal did not address crimes that may be
committed with a reckless mens rea.6 Leocal interpreted the
word “use” in the phrase “use, attempted use, or threatened
use of physical force” to require “a higher degree of intent
than negligent or merely accidental conduct,” and it deemed
“critical” § 16(a)’s requirement that a person use “force
against the person or property of another.” Id. at 9. After
Leocal, we held that “crimes involving the reckless use of
force” do not constitute crimes of violence because
“[r]eckless conduct, as generally defined, is not purposeful.”
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129–30 (9th
Cir. 2006) (en banc) (holding “neither recklessness nor gross
negligence is a sufficient mens rea to establish that a
conviction is for a crime of violence”).

6
The elements clause in 18 U.S.C. § 16 is “virtually identical” to the
one in § 924(c)(3), so “we interpret their plain language in the same
manner.” United States v. Benally, 843 F.3d 350, 353–54 (9th Cir. 2016).
The elements clause in the ACCA’s definition of “violent felony” is also
nearly identical to § 924(c)(3)(A) and § 16(a), but it only applies to
offenses that have “as an element the use, attempted use, or threatened use
of physical force against the person of another,” § 924(e)(2)(B)(i), as
opposed to “against the person or property of another,” § 924(c)(3)(A).
Cf. Borden, 141 S. Ct. at 1824.
20 UNITED STATES V. BEGAY

In Voisine v. United States, 136 S. Ct. 2272 (2016), the
Supreme Court considered whether a Maine conviction for
domestic assault that included a mens rea of “intentionally,
knowingly, or recklessly” qualified as a “misdemeanor crime
of domestic violence” pursuant to 18 U.S.C. § 922(g)(9), see
136 S. Ct. at 2277–78. The phrase “misdemeanor crime of
domestic violence” is defined in 18 U.S.C. § 921(a)(33)(A)
to be a misdemeanor that “has, as an element, the use or
attempted use of physical force,” and is “committed by a
current or former spouse, parent, or guardian of the victim”
or other similar individuals as defined by the statute. As in
Leocal, the Court focused on the term “use” in the phrase
“use or attempted use of physical force” to conclude that “the
force involved in a qualifying assault must be volitional,”
because “an involuntary motion, even a powerful one, is not
naturally described as an active employment of force.”
Voisine, 136 S. Ct. at 2278–79. The Court concluded that
reckless conduct sufficed, but the elements clause at issue in
Voisine did not require that a defendant use force “against
another,” which Leocal described as “critical.” Voisine
“made clear that other statutory definitions—whether the one
in Leocal or the near-identical one in the ACCA’s elements
clause—might exclude reckless offenses.” Borden, 141 S. Ct.
at 1825.7

Borden picked up where Voisine left off. There, Charles
Borden pleaded guilty to a felon-in-possession charge, id.
at 1822, and the government sought an enhanced sentence
pursuant to the ACCA. Borden argued that his prior

7
In the wake of Voisine, Leocal, and Fernandez-Ruiz, we held that
involuntary manslaughter—which requires a mens rea of “gross
negligence”—is not a crime of violence under § 924(c)(3). United States
v. Benally, 843 F.3d 350, 354 (9th Cir. 2016).
 UNITED STATES V. BEGAY 21

conviction for reckless aggravated assault under Tennessee
law did not qualify as a “violent felony” because the
Tennessee statute only required reckless conduct. Id. Thus,
the question presented to the Supreme Court in Borden was
“whether [the ACCA’s] elements clause’s definition of
‘violent felony’—an offense requiring the ‘use of physical
force against the person of another’—includes offenses
criminalizing reckless conduct.” Id. at 1825. Borden decided
that reckless conduct does not meet the standard for a “violent
felony” because “[t]he phrase ‘against another,’ when
modifying the ‘use of force,’ demands that the perpetrator
direct his action at, or target, another individual” and
reckless conduct is not aimed in that prescribed manner. Id.
(emphasis added).

Begay and the dissent both argue that Borden supports the
conclusion that a § 1111(a) murder conviction does not
qualify as a crime of violence because, they argue, § 1111(a)
may be conducted with a mens rea of recklessness. But the
Borden Court only considered whether ordinary reckless
conduct necessarily satisfies the elements clause, see 141 S.
Ct. at 1825; it expressly declined to reach whether offenses
that may be committed with mental states between ordinary
recklessness and knowledge can qualify as crimes of
violence. Id. at 1825 n.4. Borden’s footnote 4 is
unambiguous on this point. It reads: “Some States recognize
mental states (often called ‘depraved heart’ or ‘extreme
recklessness’) between recklessness and knowledge. We
have no occasion to address whether offenses with those
mental states fall within the elements clause.” Borden, 141 S.
Ct. at 1825 n.4. Borden went out of its way to signpost that
it did not reach mental states like the one at issue here: those
between recklessness and knowledge. See id. Though
Borden did not squarely decide the issue presented in Begay’s
22 UNITED STATES V. BEGAY

appeal, its analysis of the statutory phrase “against the person
of another” is instructive.

C

The elements clause in § 924(c) provides that a felony
offense qualifies as a crime of violence if it “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). Borden explained that the ACCA’s elements
clause necessarily requires conduct that is “oppositional” in
nature; i.e., conduct in which one “actively employs physical
force.” 141 S. Ct. at 1826. From there, the Court reasoned
that the term “against” within the phrase “use of physical
force against the person of another” “introduc[es] [a]
conscious object” that is the recipient of the force. Id.

Drawing on Borden, we conclude that a conviction for
second-degree murder pursuant to § 1111(a) constitutes a
crime of violence because murder is the unlawful killing of a
human being with malice aforethought, see 18 U.S.C.
§ 1111(a), and to kill with malice aforethought means to kill
either deliberately or recklessly with extreme disregard for
human life, see Ninth Cir. Model Crim. Jury Instruction
8.108. As we explained in Pineda-Doval, malice
aforethought requires a quantum of risk that is very high and
also requires that the nature of the risk concern injury to
others. See 614 F.3d at 1038 (explaining that malice
aforethought requires conduct creating “a very high degree of
risk of injury to other persons” and that the defendant “be
aware of that risk” (internal quotation marks omitted)).

A § 1111(a) conviction qualifies as a crime of violence
because a defendant who acts with the requisite mens rea to
 UNITED STATES V. BEGAY 23

commit second-degree murder necessarily employs force
“against the person or property of another,” and rather than
acting with ordinary recklessness, the defendant acts with
recklessness that rises to the level of extreme disregard for
human life. The First Circuit reached a similar conclusion in
United States v. Báez-Martínez, 950 F.3d 119, 127–28 (1st
Cir. 2020). Although the First Circuit ruled before Borden,
its reasoning is substantially similar to the reasoning we adopt
here.

Our case law recognizes that there are varying degrees of
recklessness. For example, we have frequently described the
concept of “depraved heart” as the functional equivalent of
“reckless and wanton, and a gross deviation from the
reasonable standard of care,” Pineda-Doval, 614 F.3d
at 1038, and we distinguish reckless conduct that amounts to
a depraved heart from conduct involving “simple
recklessness,” id. at 1040. In Pineda-Doval, we explained
that a “district court’s finding of recklessness is not
equivalent to a finding of malice aforethought” and “second-
degree murder require[s] a finding of extreme recklessness
evincing disregard for human life, not simple recklessness.”8

8
We also explained in Pineda-Doval that “the expansion of malice
aforethought since early American common law” supports why we
distinguish the extreme reckless conduct involved in depraved heart
murders from ordinary recklessness. Id. at 1038. At early common law,
“[m]alice aforethought was meant literally”; “murder required malice, an
intent to kill and perhaps also an element of hatred, and aforethought,
advance planning or deliberation.” Id. (internal quotation marks omitted).
Over time, courts expanded the crime of murder to “killings that, while not
specifically intended or planned, were grievous enough to be considered
murder.” Id. See also Báez-Martínez, 950 F.3d at 125 (“The mens rea
required for murder at common law was and remains ‘malice
aforethought.’”).
24 UNITED STATES V. BEGAY

Id. (emphasis added); see also United States v. Esparza-
Herrera, 557 F.3d 1019, 1024 (9th Cir. 2009) (per curiam)
(concluding that Arizona’s aggravated assault statute “is
broader than the Model Penal Code’s definition of aggravated
assault because the Arizona statute alone encompasses acts
done with ordinary recklessness” (emphasis added)). “The
difference between th[e] recklessness [that] displays
depravity and such extreme and wanton disregard for human
life as to constitute ‘malice’ and th[e] recklessness that
amounts only to manslaughter lies in the quality of awareness
of the risk.” United States v. Lesina, 833 F.2d 156, 159 (9th
Cir. 1987) (quoting United States v. Dixon, 419 F.2d 288,
292–93 (D.C. Cir. 1969) (Leventhal, J., concurring)).

The categories of criminal homicide reflect the
distinctions between degrees of recklessness. “A person acts
recklessly . . . when he consciously disregards a substantial
and unjustifiable risk . . . of such a nature and degree that . . .
its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the
actor’s situation.” Model Penal Code § 2.02(2)(c) (2021).
Accordingly, criminal homicide “constitutes manslaughter
when . . . it is committed recklessly.” § 210.3(1)(a)
(emphasis added). But “criminal homicide constitutes
murder when . . . it is committed recklessly under
circumstances manifesting extreme indifference to the value
of human life.” § 210.2(1)(b) (emphasis added).

We recognize that some of our earlier case law suggested
that a crime of violence requires intentional conduct. See
United States v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir.
2008) (citing Leocal and Fernandez-Ruiz and stating “in
order to be a predicate offense under . . . 18 U.S.C. § 16 . . .
the underlying offense must require proof of an intentional
 UNITED STATES V. BEGAY 25

use of force or a substantial risk that force will be
intentionally used during its commission.”); Fernandez-Ruiz
v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)
(“The bedrock principle of Leocal is that to constitute a
federal crime of violence an offense must involve the
intentional use of force against the person or property of
another.”). But our holding in Gomez-Leon was that
“homicide committed with a mens rea of only ordinary
negligence” is not a crime of violence. 545 F.3d at 795.
Similarly, Fernandez-Ruiz held only that offenses committed
with a mens rea of recklessness or gross negligence do not
qualify as crimes of violence. See 466 F.3d at 1130. We are
persuaded that the reasoning of Borden sufficiently
undermines our prior authority suggesting that anything less
than intentional conduct does not qualify as a crime of
violence. The distinction between degrees of recklessness is
critical to our conclusion. See Borden, 141 S. Ct. at 1825 n.4.

The dissent argues that the degree of recklessness
required for second-degree murder cannot be characterized as
“oppositional,” but it does not grapple with the fact that the
killing of another human being with malice aforethought
requires finding that the defendant acted with extreme
indifference, and that the indifference was toward human life.
The elements of second-degree murder stand in stark contrast
to the elements of offenses that do not require a showing of
malice aforethought. Second-degree murder does not require
conduct intended to harm, nor that a defendant target his
conduct at any particular individual, but as illustrated by the
examples described in the dissent, the conduct is fairly
characterized as extreme and necessarily oppositional because
a defendant “certainly must be aware that there are potential
victims before he can act with indifference toward them.”
United States v. Báez-Martínez, 950 F.3d 119, 127 (1st Cir.
26 UNITED STATES V. BEGAY

2020) (comparing ordinary “reckless conduct” to conduct
committed with malice aforethought). Accordingly, as the
First Circuit observed, a defendant who acts with extreme
indifference to the value of human life can “fairly be said to
have actively employed force (i.e., ‘use[d]’ force) ‘against the
person of another.’” Id. (alterations in original).

D

The Supreme Court has expressly considered a statute’s
“context and purpose” when applying the categorical
approach, even though the facts of a case are irrelevant in a
categorical analysis. See, e.g., Borden, 141 S. Ct. at 1830;
see also Báez-Martínez, 950 F.3d at 127 (“[I]n interpreting
any statute, we must not lose sight of the common sense that
likely informed Congress’s understanding of the ACCA’s
terms.”). Leocal endorsed the idea that context must be
considered when it stated, “we cannot forget that we
ultimately are determining the meaning of the term ‘crime of
violence.’” Borden, 141 S. Ct. at 1830 (quoting Leocal,
543 U.S. at 11).

The Supreme Court looked to context and purpose in
Voisine and considered that, rather than imposing a
mandatory multi-year consecutive prison term, the law at
issue in that case bars people convicted of misdemeanor acts
of domestic violence from possessing firearms. See 136 S.
Ct. at 2280. The Court also considered that Congress did not
require the force in that domestic violence statute to be
directed against another. See id. Voisine concluded that
reckless conduct qualified because the word “use,” standing
alone, “is indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness.” Id. at 2279.
Similarly, Borden considered that the ACCA imposes an
 UNITED STATES V. BEGAY 27

exceptionally severe sanction for those convicted of violent
felonies, and that the inclusion of offenses that may be
committed recklessly would sweep offenders, including
reckless drivers, into a statutory scheme intended to enhance
the prison terms of “armed career” offenders. 141 S. Ct.
at 1830–31.

Here, too, context is important. Begay was convicted of
second-degree murder and, on the whole, offenses charged as
murder are among the most culpable of crimes. See Tison v.
Arizona, 481 U.S. 137, 157 (1987) (holding “that the reckless
disregard for human life implicit in knowingly engaging in
criminal activities known to carry a grave risk of death
represents a highly culpable mental state”). These crimes
necessarily require a mental state of malice aforethought,
which, as we have explained, involves “an intentional act that
ha[s] a high probability of resulting in death.” Pollard v.
White, 119 F.3d 1430, 1434 (9th Cir. 1997).

Begay calls our attention to reckless or drunk driving
resulting in death and argues that it involves “prime examples
of reckless conduct” that cannot satisfy the elements clause.
Begay is correct to focus our analysis on the least culpable
conduct that qualifies as second-degree murder, but we are
mindful that § 924(c) necessarily arises only in situations
where a firearm is involved. It will be the exceptionally rare
drunk driving case that involves second-degree murder and
the discharge of a firearm.9

9
See In re Irby, 858 F.3d 231, 234 (4th Cir. 2017) (observing “the
categorical approach is a particularly bad fit in § 924(c) cases because
§ 924(c) . . . penalizes, in broad terms, the use of a firearm during violent
crimes”).
28 UNITED STATES V. BEGAY

As the First Circuit observed, the decision to charge a
defendant with murder only arises in the unusual drunk
driving case, because “in terms of moral depravity, murder is
often said to stand alone among all other crimes.” Báez-
Martínez, 950 F.3d at 128 (internal quotation marks omitted).
The charging decisions in these cases are consistent with our
distinction between degrees of recklessness because “[c]ases
where the defendant drove recklessly, but not wildly,
generally fall into the lesser categories of manslaughter or
criminal negligence.” United States v. Pineda-Doval,
614 F.3d 1019, 1030 (9th Cir. 2010). As the First and Fourth
Circuits have observed, “‘the vast majority of vehicular
homicides,’ including ‘the average drunk driving homicide,’
are treated only as manslaughter.” Báez-Martínez, 950 F.3d
at 126 (quoting United States v. Fleming, 739 F.2d 945, 948
(4th Cir. 1984)) (explaining that a drunk driving homicide is
more likely to be treated as murder in the extreme instances,
such as “when a defendant with a blood alcohol content of
.315% drives nearly 100 miles per hour in the oncoming lane
of a busy thoroughfare and kills another driver in a
collision”); cf. United States v. Gomez-Leon, 545 F.3d 777,
793 (9th Cir. 2008) (explaining that most vehicular homicide
statutes “require proof of intoxication while driving a vehicle
and are punished less severely than manslaughter”). Nothing
in our opinion should be read to suggest that a drunk driving
case that results in a death necessarily represents conduct
evidencing the use of force directed at another with extreme
disregard for human life. But consideration of context
reinforces the conclusion that second-degree murder qualifies
as a crime of violence pursuant to the elements clause of
§ 924(c)(3).

VI
 UNITED STATES V. BEGAY 29

Finally, Begay challenges the district court’s award of
restitution. We generally review de novo the legality of an
order of restitution, see United States v. Luis, 765 F.3d 1061,
1065 (9th Cir. 2014), but we review for plain error when the
defendant objects to restitution for the first time on appeal,
United States v. Van Alstyne, 584 F.3d 803, 819 (9th Cir.
2009).

The Mandatory Victims Restitution Act (MVRA) requires
a court to order a defendant to pay restitution “to the victim
of the offense or, if the victim is deceased, to the victim’s
estate,” “when sentencing a defendant convicted of an
offense” that is a “crime of violence” as defined in 18 U.S.C.
§ 16. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(i). The MVRA
defines “victim” as “a person directly and proximately
harmed as a result of the commission of [the] offense.”
§ 3663A(a)(2). “The goal of restitution under the MVRA is
to make the victim whole. Consequently, any award is
limited to the victim’s actual losses.” United States v.
Anderson, 741 F.3d 938, 951 (9th Cir. 2013) (citations and
internal quotation marks omitted). “Nonetheless, exact
precision is not required and district courts do have a degree
of flexibility in accounting for a victim’s complete losses.”
Id. at 954.

The district court in Begay’s case adopted the restitution
award recommended by the probation officer in the
presentence report. The probation officer recommended an
award of $23,622, which included $1,200 to the Navajo
Division of Social Services and $22,422 to Ben’s mother for
30 UNITED STATES V. BEGAY

various expenses.10 Begay did not challenge the presentence
report’s recommendation for restitution. At sentencing, he
and his counsel confirmed their lack of objections.

On appeal, Begay challenges the district court’s
restitution award on two grounds. First, he contends the
district court’s restitution award was plain error because he
was not convicted of a crime of violence. This argument fails
because, as we have explained, his second-degree murder
conviction does qualify as a “crime of violence.” The MVRA
mandated the district court to order restitution. See
§ 3663A(a)(1), (c)(1)(A)(i).

Second, Begay contends the district court “made no
findings at all about the basis for its restitution award, and it
appears very likely the award exceeded the victim’s losses.”
18 U.S.C. § 3664 prescribes the procedure for calculating
restitution orders. It directs the district court to “order the
probation officer to obtain . . . information sufficient for the
court to exercise its discretion in fashioning a restitution
order” and include such information in the presentence report.
§ 3664(a). Federal Rule of Criminal Procedure 32 permits a
court to “accept any undisputed portion of the presentence
report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A).
However, the district court is limited to ordering a restitution
award that reflects the victim’s “actual losses.” Anderson,
741 F.3d at 951.

10
According to the presentence report, the $22,422 represented the
following expenses: $1,700 for traditional ceremonies after Ben’s death;
$80 for gasoline; $60 for food; $1,200 for funeral costs; $50 for Ben’s
burial clothing; $100 for flowers; $200 for the reception hall; $19,000 for
a replacement truck; $707 for insurance for the new truck; and $525 for
insurance Ben’s mother continued to pay on the van in which the crime
was committed.
 UNITED STATES V. BEGAY 31

Here, the district court properly relied on the presentence
report to determine the amount of restitution that Begay
owed, but the court’s order provides no explanation “to
support its probable accuracy,” id. at 951–52. Significantly,
Ben’s mother was awarded $19,000 for the cost of a new
truck to replace the van in which Ben was shot. But
§ 3663A(b)(1)(B) limits a restitution award for “damage to or
loss or destruction of property” to “the greater of . . . the
value of the property on the date of the damage, loss, or
destruction; or . . . the value of the property on the date of
sentencing, less . . . the value (as of the date the property is
returned) of any part of the property that is returned.” The
district court did not explain how or whether the $19,000 it
awarded to compensate Ben’s mother for the damaged van
satisfied § 3663A.

“Remand is appropriate where the restitution award lacks
an adequate evidentiary basis and the district court failed to
explain its reasoning.” Anderson, 741 F.3d at 952 (internal
quotation marks and alterations omitted). Because the district
court did not comply with § 3663A, we vacate its restitution
award and remand for recalculation and for the district court
to explain its reasoning.

VII

We affirm Begay’s convictions for second-degree murder
and for discharging a firearm during a crime of violence. We
vacate the district court’s order of mandatory restitution and
remand for recalculation.

AFFIRMED in part; VACATED and REMANDED in
part.
32 UNITED STATES V. BEGAY

MURGUIA, Chief Judge, with whom Judge CLIFTON joins,
concurring:

I agree with the majority opinion and therefore join it in
full. I write separately only to amplify my own views of this
case.

In Borden v. United States, 141 S. Ct. 1817 (2021), a
plurality of the Supreme Court concluded that the phrase
“against the person of another” demands that “the perpetrator
direct his action at, or target, another individual.” Id. at 1825
(plurality opinion).1 In applying this standard to second-
degree murder under 18 U.S.C. § 1111, two considerations
strike me as particularly important. First, someone who
commits second-degree murder “certainly must be aware” of
the presence of “potential victims.” United States v. Báez-
Martínez, 950 F.3d 119, 127 (1st Cir. 2020). Second,
someone who commits second-degree murder must be aware
that his conduct creates “a very high degree of risk of injury”
to these potential victims. United States v. Pineda-Doval,
614 F.3d 1019, 1038 (9th Cir. 2010) (internal quotation marks
omitted). In light of these considerations, I am persuaded that
someone who commits second-degree murder necessarily
directs his action at, or targets, another individual: if the
perpetrator is aware of both the presence of potential victims
and the very high risk of hitting them, then it is fair to say that
the perpetrator has directed his actions against, or targeted,
other individuals, even if he neither aims at nor consciously
desires to harm them.

1
Because the parties treat the Borden plurality opinion as binding
Supreme Court precedent, I assume for purposes of my analysis that it is.
 UNITED STATES V. BEGAY 33

As our dissenting colleagues ably point out, this is not the
only plausible reading of the Borden plurality’s textual
analysis. But I am persuaded that it is the more sensible
reading, particularly once we factor context, purpose, and
common sense into our analysis. See Borden, 141 S. Ct.
at 1830–32 (context and purpose); Leocal v. Ashcroft,
543 U.S. 1, 11 (2004) (same); Báez-Martínez, 950 F.3d at 127
(common sense); In re Irby, 858 F.3d 231, 237 (4th Cir.
2017) (same).

WARDLAW, Circuit Judge, dissenting in part:

I respectfully dissent from Parts V and VI of the majority
opinion. I am pleased to concur in Parts I, II, and III of Judge
Ikuta’s excellent partial dissent, except as to a supposed need
to remedy any “problem” with the legal conclusion that
18 U.S.C. § 1111(a) second-degree murder is not a
categorical “crime of violence” under 18 U.S.C. § 924(c).
Although it is true that Borden v. United States, 141 S. Ct.
1817 (2021), did not address whether “depraved heart”
second-degree murder is a categorical match with § 924(c)’s
elements clause, its rationale compels the conclusion that it is
not, as Judge Ikuta explains. But this is not a “crazy pills”
conclusion, see United States v. Begay, 934 F.3d 1033, 1042
(9th Cir. 2019) (Smith, J., dissenting) (quoting Ben Stiller
(Director), Zoolander [Film], United States: Paramount
Pictures (2001)); it derives directly from the Court’s
development of the categorical approach and its
corresponding invalidation of vague residual clauses
purporting to define violent crimes.
34 UNITED STATES V. BEGAY

However, I disagree with Judge Ikuta’s suggestion that
the Court overrule its residual clause jurisprudence. Congress
enacted a vague residual clause in the Armed Career Criminal
Act definition of “violent felony,” which the Court struck
down in Johnson v. United States, 576 U.S. 591 (2015).
Congress did the same in 18 U.S.C. § 16, defining “crimes of
violence,” which the Court struck down in Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), affirming our court’s
opinion in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015).
Most recently, the Court struck down § 924(c)’s residual
clause on the same void for vagueness grounds in United
States v. Davis, 139 S. Ct. 2319 (2019).

In Davis, Justice Gorsuch explained why these residual
clauses are so troubling: “the imposition of criminal
punishment can’t be made to depend on a judge’s estimation
of the degree of risk posed by a crime’s imagined ‘ordinary
case.’” Id. at 2326. There, the government had to concede
that courts had long interpreted § 924(c)’s residual clause to
require courts to inquire whether in the ordinary case the
conduct encompassed by the elements of the offense
presented a substantial risk of force. Id. at 2326–27. The
Court rejected the government’s suggestion that it could save
the residual clause by “abandon[ing] the traditional
categorical approach” and applying a case-specific approach.
Id. at 2327. The Court concluded that the statute could not
bear that interpretation, and down it went. And surely
Congress could readily draft language that amended § 924(c)
to include a firearm enhancement for second-degree murder,
including extremely reckless conduct that results in the death
of a human being.
 UNITED STATES V. BEGAY 35

For now, we are left with the elements clause. And a
faithful application of the categorical approach1 and Supreme
Court precedent leads to the counter-intuitive conclusion that
second-degree murder is not a crime of violence under
§ 924(c). And although the result here is counterintuitive,
judges are not supposed to be guided by their intuition, but by
the law.

As a practical matter, what does this mean? As the Court
has noted, “[W]hen a defendant’s § 924(c) conviction is
invalidated, courts of appeals ‘routinely’ vacate the
defendant’s entire sentence on all counts ‘so that the district
court may increase the sentences for any remaining counts’
if such an increase is warranted.” Id. at 2336 (quoting Dean
v. United States, 137 S. Ct. 1170, 1176 (2017)). Though I
would affirm Begay’s second-degree murder conviction, I
would vacate the sentence on both counts of conviction and

1
Some commentators have noted that despite the recent criticism of
the categorical approach, it’s been around for at least a century, and it’s
“here to stay,” based on the Court’s Davis opinion. See Amit Jain &
Phillip Dane Warren, An Ode to the Categorical Approach, 67 UCLA L.
Rev. Discourse 132, 151–52 (2019).
36 UNITED STATES V. BEGAY

remand for resentencing,2 as well as vacate the award of
restitution.3

IKUTA, Circuit Judge, with whom Judge VANDYKE joins,
dissenting in part:

Common sense dictates that second-degree murder under
18 U.S.C. § 1111(a) constitutes a crime of violence. Indeed,
one judge recently argued that a contrary conclusion would
make him feel that he was “taking crazy pills.” United States
v. Begay, 934 F.3d 1033, 1042 (9th Cir. 2019) (N.R. Smith,
J., dissenting) (citation omitted), reh’g en banc granted,
opinion vacated, 15 F.4th 1254 (9th Cir. 2021).
Unfortunately, we are not dealing with common sense here,
but with the law, and with a conclusion that is “better
explained by history than by logic.” United States v. Bruce,
394 F.3d 1215, 1218 (9th Cir.2005) (discussing the exercise
of criminal jurisdiction in Indian country). Therefore, I must

2
Begay was sentenced to a total term of 324 months on both counts.
The probation office had calculated a guideline sentencing range of
324–405 months for count one, the second-degree murder charge, and, of
course, the consecutive mandatory 120 months for count two, the § 924(c)
charge. The experienced district court judge considered the 18 U.S.C.
§ 3553 factors—especially the nature and circumstances of the crime,
Begay’s age and likelihood of rehabilitation, and the statutory purposes of
sentencing—and concluded 27 years was the appropriate sentence. He
therefore sentenced Begay to 204 months on count one, a variance of
120 months. Upon resentencing, this calculation might change.
3
I agree that the award of restitution must be vacated because second-
degree murder isn’t a categorical “crime of violence” under 18 U.S.C.
§ 16’s elements clause. 18 U.S.C. § 3663A(c)(1)(A)(i). SSI Dissent 38.
 UNITED STATES V. BEGAY 37

dissent from the majority’s effort to reach a common sense
result that is contrary to the Supreme Court’s clear direction.

When it enacted 18 U.S.C. § 924(c), Congress made clear
that second-degree murder qualified as a crime of violence.1
The statute defined a “crime of violence” in two different
ways. One definition—the “elements” clause—defined a
crime of violence as an offense that “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).
The Supreme Court later defined the use of force “against
another” in a similarly worded statute as demanding that “the
perpetrator direct his action at, or target, another individual.”
Borden v. United States, 141 S. Ct. 1817, 1825 (2021)
(plurality opinion).2

1
For purposes of this appeal, the wording of the elements clause and
residual clause in the definition of “violent felony” in the Armed Career
Criminal Act (ACCA), see 18 U.S.C. § 924(e)(2)(B), is materially the
same as the wording of the elements and residual clauses in 18 U.S.C.
§ 924(c)(3), cf. United States v. Davis, 139 S. Ct. 2319, 2325 (2019);
compare 18 U.S.C. § 924(c)(3)(A) (defining “crime of violence” to
include an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another”) with 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” to
include an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another”).
Therefore, Borden and other cases analyzing these clauses are equally
applicable here.
2
Because the Borden plurality opinion is a logical subset of Justice
Thomas’s concurrence, the plurality opinion is controlling. See United
States v. Davis, 825 F.3d 1014, 1028 (9th Cir. 2016) (en banc) (citing
Marks v. United States, 430 U.S. 188 (1977)). Justice Thomas concurred
in the Borden plurality opinion on the ground that the phrase “use of
physical force” has “a well-understood meaning applying only to
intentional acts designed to cause harm.” Borden, 141 S. Ct. at 1835
38 UNITED STATES V. BEGAY

The second definition of a “crime of violence” under
§ 924(c)—the “residual” clause—defined a crime of violence
as an offense “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)(B). Second-degree murder under
§ 1111(a) meets this definition because it concerns “killings
that, while not specifically intended or planned, [are] grievous
enough to be considered murder.” United States v. Pineda-
Doval, 614 F.3d 1019, 1038 (9th Cir. 2010). Obviously,
Congress meant for second-degree murder to qualify as a
crime of violence under the residual clause.

But the Supreme Court subsequently struck down the
residual clause as being unconstitutionally vague. See United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). And, as
explained below, second-degree murder under 18 U.S.C.
§ 1111(a) does not necessarily involve directed or targeted
conduct, and so is not a categorical match to the elements
clause, the only definition of “crime of violence” remaining
in § 924(c). As a result, although Congress meant for second-
degree murder to qualify as a crime of violence for purposes
of § 924(c), judicial interpretations of that statute have
blocked its original meaning. See Borden, 141 S. Ct. at 1835
(Thomas, J., concurring) (urging the Court to overrule its
opinion invalidating the residual clause in the Armed Career
Criminal Act (ACCA), because a crime that would “satisfy

(Thomas, J., concurring) (quoting Voisine v. United States, 136 S. Ct.
2272, 2279, 2290 (2016) (Thomas, J., dissenting)). The Borden plurality
opinion is narrower than this concurrence, because the plurality reasons
that the phrase “use of force” must be modified by the phrase “against
another” in order to require that the perpetrator consciously “direct his
action at, or target, another individual.” Borden, 141 S. Ct. at 1825.
 UNITED STATES V. BEGAY 39

the residual clause” by “involv[ing] conduct that presents a
serious potential risk of physical injury to another” would not
necessarily qualify as a crime of violence under the elements
clause of the ACCA (citation omitted)).

Because we are bound by Supreme Court precedent, I
must reluctantly dissent.

I

Randly Begay was convicted of second-degree murder
under 18 U.S.C. § 1111(a), which provides that “[m]urder is
the unlawful killing of a human being with malice
aforethought.”3 The statute lists the types of murders that
qualify as murder in the first degree, and then states that
“[a]ny other murder is murder in the second degree.”
18 U.S.C. § 1111(a). Begay was also convicted of
discharging a firearm during a “crime of violence” under
18 U.S.C. § 924(c)(1)(A)(iii). The § 924(c) conviction relied
on the conclusion that the § 1111(a) second-degree murder
offense qualified as a crime of violence. But after Davis
struck down the residual clause in § 924(c)(3)(B), the term
“crime of violence” refers only to an offense that “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).

In order to determine whether second-degree murder
under § 1111(a) is a crime of violence under the elements

3
The term “malice 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.” Pineda-Doval, 614 F.3d at 1038.
40 UNITED STATES V. BEGAY

clause, § 924(c)(3)(A), we apply the categorical approach set
forth in Taylor v. United States, 495 U.S. 575 (1990). Taylor
established a procedure for determining whether an offense
of conviction (such as second-degree murder) qualifies as a
generic federal offense (here, a “crime of violence” under the
elements clause). See id. at 601–02. To make this
determination, we must identify the elements of the generic
federal offense and compare them with the elements of the
statute defining the offense of conviction. If the elements of
the statute defining the offense of conviction match the
elements of the generic federal offense, then the offense of
conviction is a categorical match to the generic federal
offense. See Mathis v. United States, 136 S. Ct. 2243, 2248
(2016). If the statute defining the offense of conviction has
elements that do not match the elements of the generic federal
offense, then it is not a categorical match. See id. In
undertaking this analysis, we “ignore the facts of the case and
simply line up the crime’s elements alongside those of the
generic offense and see if they match . . . in doing so, we
must presume that the conviction rested upon nothing more
than the least of the acts criminalized” by the statute defining
the offense of conviction. United States v. Studhorse,
883 F.3d 1198, 1203 (9th Cir. 2018) (cleaned up).

The principles set out in Borden establish that § 1111(a)
second-degree murder is not a categorical match to a generic
“crime of violence” as defined by the elements clause of
§ 924(c). Recall that after Davis, the term “crime of
violence” is defined in § 924(c) solely as an offense that “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). Borden held that “[t]he phrase
‘against another,’ when modifying the ‘use of force,’
demands that the perpetrator direct his action at, or target,
 UNITED STATES V. BEGAY 41

another individual.” 141 S. Ct. at 1825. Said otherwise, to
commit a crime of violence under the elements clause, a
person must consciously use force against a particular target,
just like a general “deploy[s] his forces against a rival
regiment, or the chess master play[s] the Queen’s Gambit
against her opponent.” Id. Based on this definition, Borden
held that a person whose conduct “is not opposed to or
directed at another . . . does not come within the elements
clause.” Id. at 1827.

For this reason, a person who is convicted of a crime
involving reckless behavior does not engage in a crime of
violence under the elements clause, because reckless behavior
does not require the use of physical force against another.
See id. That is, a person engages in reckless behavior when
the person “consciously disregards a substantial and
unjustifiable risk attached to his conduct, in gross deviation
from accepted standards.” Id. at 1824 (internal quotation
marks and citation omitted); see also Voisine v. United States,
136 S. Ct 2272, 2279 (2016) (defining reckless behavior as
undertaking acts with awareness of their substantial risk of
causing injury, even where the harm caused by reckless
behavior “is the result of a deliberate decision to endanger
another”). Such reckless conduct does not necessarily
involve targeting: “[t]o the contrary, [the person’s] fault is to
pay insufficient attention to the potential application of
force.” Borden, 141 S. Ct. at 1827.

In light of Borden’s reasoning, second-degree murder
under § 1111(a) likewise does not qualify as a crime of
violence, because it does not necessarily include the element
of targeting. A jury can convict a defendant of second-degree
murder under § 1111(a) without finding the defendant used
force against a particular target. Section 1111(a) requires an
42 UNITED STATES V. BEGAY

unlawful killing with “malice aforethought.” In modern
criminal law, “malice aforethought” includes the mental state
of “depraved heart,” which is variously defined as “reckless
indifference” or “extreme recklessness.” Pineda-Doval, 614
F.3d at 1038, 1040. To convict a defendant of depraved heart
murder, the government needs to show only that the
defendant engaged in conduct (that resulted in the death of a
human being) with the mental state of depraved heart or
reckless indifference. The government would not need to
prove that the defendant targeted the murder victim; it is
enough if the defendant’s conduct created a “very high degree
of risk” of injury to other persons and the defendant had “an
awareness of [that] extreme risk,” exhibiting “an extreme
indifference to the value of human life.” Id. at 1038 (citation
omitted). Said otherwise, a depraved heart murder “may be
established by evidence of conduct which is reckless and
wanton, and a gross deviation from a reasonable standard of
care, of such a nature that a jury is warranted in inferring that
the defendant was aware of a serious risk of death or serious
bodily harm.” See id. (cleaned up). Under the natural
meaning of these words, this conduct is not directed “against
another” for purposes of the elements clause. See Borden,
141 S. Ct. at 1825. Because depraved heart murder does not
require the conscious targeting of a victim that is necessary to
establish the element of “against another,” id. at 1824, it does
not matter that depraved heart murder requires a more
extreme indifference to the value of human life, see Pineda-
Doval, 614 F.3d at 1039, than does recklessness, see Borden,
141 S. Ct. at 1825.4

4
Contrary to the majority’s claim, the dissent does not argue that
second-degree murder under § 1111(a) “may be conducted with a mens
rea of recklessness.” Majority at 21. The majority provides no citation to
the dissent to support this claim—nor could it, because the dissent
 UNITED STATES V. BEGAY 43

Borden did not directly address the question of whether
depraved heart murder falls within the elements clause,
because that issue was not before the Court. See id. at 1825
n.4 (“Some States recognize mental states (often called
‘depraved heart’ or ‘extreme recklessness’) between
recklessness and knowledge. We have no occasion to address
whether offenses with those mental states fall within the
elements clause.”). But Borden’s reasoning makes clear that
an offense which does not require proof that the perpetrator
“direct[ed] his action at, or target[ed], another individual”
does not fall within the elements clause, because such an
offense does not involve the use of force “against another.”
Id. at 1825. Because the offense of depraved heart murder
under § 1111(a) does not require proof of conduct directed
“against another,” we must hold that it criminalizes conduct
outside the scope of the elements clause.

II

Despite this apparent mismatch between depraved heart
murder and the elements clause, depraved heart murder under
§ 1111(a) could nevertheless qualify as a crime of violence if,
as a practical matter, defendants are charged under that
section only for extremely reckless conduct that is directed at,
or targets, another individual. After all, a criminal statute
“creates a crime outside the generic definition of a listed
crime in a federal statute” only if there is “a realistic
probability, not a theoretical possibility,” that the government
would apply the criminal statute “to conduct that falls outside
the generic definition of a crime.” Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007). Thus, to prove that the
crime of conviction has been applied to conduct beyond the

contains no such argument.
44 UNITED STATES V. BEGAY

conduct criminalized in the generic federal offense, a
defendant must point to cases where courts “in fact did apply
the statute in the special (nongeneric) manner for which he
argues.” Id.

Begay has made that showing here. A review of federal
and state cases upholding convictions for second-degree
depraved heart murder, whether under § 1111(a) or under
state laws, shows that the crime encompasses conduct that
does not involve the conscious use of force targeting another.
For instance, our sister circuits have upheld the application of
§ 1111(a) to cases involving drunk driving, even though the
defendants’ conduct in those cases did not involve the use of
force in opposition to or targeted against another. Thus, the
Fourth Circuit sustained the § 1111(a) second-degree
depraved heart murder conviction of a drunk driver who was
speeding and driving the wrong way on a freeway when he
struck and killed another driver. See United States v.
Fleming, 739 F.2d 945 (4th Cir. 1984). The court reasoned
that to show malice aforethought, “the government need only
have proved that defendant intended to operate his car in the
manner in which he did with a heart that was without regard
for the life and safety of others.” Id. at 948; see also United
States v. Merritt, 961 F.3d 1105, 1118 (5th Cir. 2020)
(upholding a conviction for depraved heart murder under
§ 1111(a) resulting from drunk driving in the wrong lane
when defendant “was aware his drunk driving posed a serious
risk of death or serious bodily harm to others”); United States
v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995) (upholding a
second-degree depraved heart murder conviction under
§ 1111 for striking and killing another driver while driving
under the influence of alcohol and prescription drugs, despite
the defendant’s testimony “that he did not intend to hurt
anybody”). We have likewise recognized that second-degree
 UNITED STATES V. BEGAY 45

depraved heart murder includes conduct that is not targeted,
such as “shooting a gun into a room that the defendant knows
to be occupied” or “driving a car at very high speeds along a
crowded main street.” Pineda-Doval, 614 F.3d at 1039.

State courts have likewise upheld depraved heart murder
convictions for crimes not involving the targeted use of force
against another (though states may use different terminology,
such as “reckless second-degree murder”). We may consider
these cases because “[m]alice aforethought is a concept that
originated with the common law and is used in 18 U.S.C.
§ 1111(a) in its common law sense,” and therefore we “do not
confine our consideration of the precedents to decisions of
federal courts interpreting the federal statute, but rather
consider other sources which may shed light on the issues of
this case.” Fleming, 739 F.2d at 947 n.2; see also Pineda-
Doval, 614 F.3d at 1039 (relying on collections of state cases
to define second-degree murder). These state cases
demonstrate that the common law has long recognized that a
person can commit a depraved heart murder when the
person’s extremely reckless behavior results in a victim’s
death, regardless whether the person used force against any
individual. For instance, a defendant whose dogs escaped
and mauled a child to death could be convicted of depraved
heart murder where the defendant’s recklessness, in ignoring
her dogs’ aggressiveness and failing to properly train or
secure her dogs, showed “an extreme indifference to the value
of human life.” State v. Davidson, 987 P.2d 335, 344 (Kan.
1999). In that case, the state was “not required to prove that
defendant knew her dogs would attack and kill someone.” Id.
In another case, defendants were convicted of second-degree
murder when a defendant sped down the wrong lane of a
public highway during a race in which his co-defendants
participated, resulting in the death of an individual traveling
46 UNITED STATES V. BEGAY

in the correct lane. See Stallard v. State, 348 S.W.2d 489,
490 (Tenn. 1961). The court noted that the defendants’
conduct implied “such a high degree of conscious and willful
recklessness as to amount to that malignity of heart
constituting malice,” and held that this recklessness justified
convicting the defendants who were not behind the wheel of
the crashing car as aiders and abettors, as well. See id.
(citation omitted). Finally, a defendant who set a couch on
fire in an abandoned building was properly charged with
depraved heart murder when the ensuing fire contributed to
the death of a fireman responding to the scene. See People v.
Arzon, 401 N.Y.S.2d 156, 157, 159 (N.Y. Sup. Ct. 1978).
Defendant’s actions demonstrated “a wanton and depraved
indifference to human life,” given that fire is “non-selective
and uncontrollable in its destructiveness.” Id. at 158.

The majority attempts to brush off such cases, at least in
the drunk driving context, on the ground that a crime of
violence under § 924(c) “necessarily arises only in situations
where a firearm is involved,” Majority at 28, and therefore it
“will be the exceptionally rare drunk driving case that
involves second-degree murder and the discharge of a
firearm,” Majority at 28. In other words, the majority reasons
that because § 924(c) applies to firearm offenses, a defendant
charged with a violation of § 924(c) would probably be
engaged in violent conduct with a firearm, rather than in
drunk driving.

But even if we recognize the “absurdity” of applying the
categorical approach to a § 924(c) conviction involving
violent offenses with firearms, we must likewise recognize
that “[o]ur precedent requires application of that approach.”
In re Irby, 858 F.3d 231, 234 (4th Cir. 2017); cf. Majority
at 28 n.9. This means that we must ignore the factual context
 UNITED STATES V. BEGAY 47

of any particular case. See Descamps v. United States,
570 U.S. 254, 265 (2013). Even assuming that as a factual
matter, a defendant like Begay who is charged with both
second-degree murder under § 1111(a) and discharging a
firearm during a crime of violence under § 924(c) will
virtually always have used a firearm to commit the § 1111(a)
offense, the categorical approach prohibits consideration of
this factual context. See id. That is, for the purposes of the
categorical approach, all that matters is whether the “crime of
conviction . . . [does or] does not correspond to the relevant
generic offense.” Id. “If any—even the least culpable—of
the acts criminalized” by § 1111(a) as second-degree murder
do not entail the targeted or oppositional conduct required to
qualify as a crime of violence under the elements clause, then
“the statute of conviction does not categorically match the
federal standard.” Borden, 141 S. Ct. at 1822. Thus, the
majority’s mindfulness that “§ 924(c) necessarily arises only
in situations where a firearm is involved,” Majority at 28, is
irrelevant to the analysis of this issue.

III

In holding otherwise, the majority merely assumes the
conclusion that “a conviction for second-degree murder
pursuant to § 1111(a) constitutes a crime of violence”
because “a defendant who acts with the requisite mens rea to
commit second-degree murder necessarily employs force
‘against the person or property of another.’” Majority
at 22–23 (emphasis added). The majority acknowledges that
depraved heart murder does not require “that a defendant
target his conduct at any particular individual,” but relies on
Báez-Martinez for the proposition that depraved heart murder
is “necessarily oppositional because a defendant ‘certainly
must be aware that there are potential victims before he can
48 UNITED STATES V. BEGAY

act with indifference toward them.’” Majority at 26 (quoting
United States v. Báez-Martinez, 950 F.3d 119, 127 (1st Cir.
2020)). The concurrence likewise relies on a tautology,
arguing that depraved heart murder, which requires only that
“the perpetrator is aware of both the presence of potential
victims and the very high risk” of harming them, C.J.
Murguia Concurrence at 33, inherently involves directed or
targeted actions against such potential victims, even if the
perpetrator “neither aims at nor consciously desires to harm
them,” C.J. Murguia Concurrence at 33.

But this circular reasoning is not persuasive. First, the
majority’s reliance on Báez-Martinez is misplaced, because
it was decided before Borden limited “crimes of violence” to
offenses involving oppositional or targeted conduct (and
before Borden made clear that reckless offenses did not so
qualify). If anything, Báez-Martinez is contrary to Borden,
which established that a person’s awareness and conscious
disregard of a substantial and unjustifiable risk to another
does not mean the person is engaged in the “use of physical
force against the person of another,” because that element
“demands that the perpetrator direct his action at, or target,
another individual.” Borden, 141 S. Ct. at 1825. Contrary to
the majority and concurrence, a person may take actions with
extreme disregard for human life without any such targeting.
As discussed, a drunk driver who speeds the wrong way down
a highway can be convicted of second-degree murder under
§ 1111(a) because the driver’s conduct involves extreme
disregard for human life. But under the natural meaning of
words, such drunk driving does not constitute action directed
against, or targeting, another individual, or the conscious use
of force against a particular target. See id. at 1825. Likewise,
raising aggressive dogs and failing to control them may
evince an extreme disregard for human life, see Davidson,
 UNITED STATES V. BEGAY 49

987 P.2d at 344, but such conduct is not the same as targeting
or directing force against another person.

The majority and concurrence attempt to support their
conclusion that depraved heart murder under § 1111(a) is a
crime of violence by relying on the “context and purpose” of
§ 924(c). See Majority at 26 (citation omitted); see also C.J.
Murguia Concurrence at 33. The gist of this argument seems
to be that offenses charged as second-degree murder “are
among the most culpable of crimes,” Majority at 27, and
therefore a “consideration of context reinforces the
conclusion that second-degree murder qualifies as a crime of
violence pursuant to the elements clause of § 924(c)(3),”
Majority at 29. Again, these statements merely assume the
conclusion and do not adequately explain why second-degree
depraved heart murder under § 1111(a) is necessarily targeted
against another. If anything, the context of § 924(c) cuts in
the opposite direction. Congress divided the definition of
“crime of violence” into two prongs, and the second
prong—the residual clause—was clearly meant to capture
offenses such as depraved heart murder, which can pose an
unreasonable risk of harm without being targeted against
another person. This raises the strong inference that the first
prong of § 924(c), the elements clause—which after Davis is
the only prong remaining—was not meant to include that sort
of offense.

***

There is no need to take crazy pills to disagree with the
majority. Congress meant for second-degree murder to
qualify as a crime of violence under the residual clause. The
Supreme Court determined that the residual clause was void
for vagueness, see Davis, 139 S. Ct. at 2336, and defined the
50 UNITED STATES V. BEGAY

elements clause as including only conduct that targets or is
directed at another individual, see Borden, 141 S. Ct. at 1827.
Because second-degree murder can be committed with
extreme recklessness, and so does not necessarily involve a
directed or targeted use of force against the victim, and
because the elements clause requires such a directed or
targeted use of force under Borden, second-degree murder is
not a categorical match and so does not qualify as a crime of
violence under the elements clause.

The “crazy pills” conclusion that second-degree murder
is not a crime of violence could be eliminated if Congress
were to amend § 924(c) to include a residual clause that could
withstand a constitutional vagueness challenge, or if the
Supreme Court took Justice Thomas’s advice to overrule its
determination that the residual clause is void for vagueness.
It is not our job to disregard Supreme Court precedent in
order to fix this problem. I therefore dissent from the
majority’s holding that second-degree murder is a crime of
violence under the elements clause.5

5
Thus, for the reasons explained in Judge Wardlaw’s partial dissent,
see J. Wardlaw Dissent at 35–36, I would vacate Begay’s entire sentence
and remand for resentencing. See Davis, 139 S. Ct. at 2336 (“As this
Court has noted, when a defendant’s § 924(c) conviction is invalidated,
courts of appeals ‘routinely’ vacate the defendant’s entire sentence on all
counts ‘so that the district court may increase the sentences for any
remaining counts’ if such an increase is warranted.” (citation omitted)).
I would also reverse the restitution award because second-degree murder
is not a crime of violence under the elements clause. See Begay, 934 F.3d
at 1041; cf. Majority at 31. However, I do not dissent from the majority’s
holding that the district court did not plainly err in its instructions to the
jury. Majority at 14.