                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 Submission Deferred October 20, 2015
               Submitted May 26, 2016
   Submission Vacated and Deferred March 29, 2017
            Resubmitted August 19, 2019
               San Francisco, California

                 Filed August 19, 2019

    Before: Dorothy W. Nelson, Richard R. Clifton,
         and N. Randy Smith, Circuit Judges.

            Opinion by Judge D.W. Nelson;
             Dissent by Judge N.R. Smith
2                  UNITED STATES V. BEGAY

                          SUMMARY *


                          Criminal Law

    The panel affirmed a conviction for second-degree
murder (18 U.S.C. §§ 1111 and 1153), reversed a conviction
for discharging a firearm during a “crime of violence”
(18 U.S.C. § 924(c)(1)(A)), reversed a mandatory restitution
order, and remanded for resentencing.

    Affirming the second-degree murder conviction, the
panel held that the district court did not plainly err in failing
to instruct the jury on absence of “heat of passion” as an
element of second-degree murder.

    The panel held that because second-degree murder can
be committed recklessly, it does not categorically constitute
a “crime of violence” under the elements clause, 18 U.S.C.
§ 924(c)(3)(A). Because in light of United States v. Davis,
139 S. Ct. 2319 (2019), second-degree murder likewise
cannot constitute a crime of violence under the residual
clause, 18 U.S.C. § 924(c)(3)(B), the panel concluded that
the defendant’s § 924(c) conviction cannot stand.

    The panel held that because second-degree murder is not
categorically a crime of violence, the district court erred in
imposing mandatory restitution under 18 U.S.C. § 3663A.

   Dissenting from Parts II and III, Judge N.R. Smith would
hold that second-degree murder is a crime of violence under

    *
      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

§ 924(c)(3)(A). He wrote that the majority goes too far in
extending the concept of recklessness to include malice
aforethought, which, including “depraved heart” murder,
requires conduct well beyond mere recklessness.


                       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.

Karla Hotis Delord (argued), Assistant United States
Attorney; Krissa M. Lanham, Deputy Appellate Chief;
Robert L. Miskell, Appellate Chief; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.


                        OPINION

D.W. NELSON, Circuit Judge:

    Randly Irvin Begay appeals his jury conviction and
sentence for second-degree murder under 18 U.S.C. §§ 1111
and 1153 and discharging a firearm during a “crime of
violence” in violation of 18 U.S.C. § 924(c)(1)(A). We
affirm Begay’s conviction for second-degree murder. We
hold that second-degree murder is not a “crime of violence,”
reverse the § 924(c) count of conviction, reverse the
mandatory restitution order, and remand for resentencing.

    Begay’s conviction is AFFIRMED in part, REVERSED
in part, and REMANDED for resentencing.
4                UNITED STATES V. BEGAY

              FACTS AND PROCEEDINGS

    On March 4, 2013, Randly Begay, a Native American,
shot Roderick Ben in the head with a handgun, killing Ben.
Begay was charged with second-degree murder and
discharging a firearm during a “crime of violence.”

     After a few hours of drinking and smoking
methamphetamine, Begay, Ben, Begay’s nephew Lionel
Begay, and Begay’s girlfriend Meghan Williams were
sitting inside a van parked in front of Begay’s parents’
residence in Tuba City, Arizona, located within the Navajo
Nation Indian Reservation. While sitting inside the van,
Williams and Begay were arguing about Williams’ alleged
infidelity, including Begay’s accusations that she had been
cheating on him with Ben. Begay stated he was tired of
people thinking that he was a “bitch” because of Williams
cheating on him. During the argument, Begay pulled out a
gun and laid it on his leg. Ben saw the gun and told Begay
not to shoot the windows of the van. Begay continued to
argue with Williams, stating that he was not going to be a
“bitch” anymore and that he was not scared to go to prison
for life. Begay then shot Ben in the head once.

    At trial, Begay’s theory of defense was that someone else
in the car had shot Ben. In closing argument, Begay’s
attorney briefly argued that Begay lacked the requisite
malice because he did not act deliberately. During closing
argument, the government argued that Begay intentionally
shot Ben because he was angry about Williams’ alleged
infidelity with Ben. Begay and the government submitted
joint jury instructions, requesting an instruction on second-
degree murder only. Begay’s attorney did not request a
voluntary or involuntary manslaughter instruction, nor did
he object to the instructions as presented.
                  UNITED STATES V. BEGAY                      5

    The jury, instructed to find second-degree murder to be
a “crime of violence,” convicted Begay of second-degree
murder (Count One) and discharging a firearm during a
“crime of violence” under 18 U.S.C. § 924(c)(1)(A)(iii)
(Count Two). The district court sentenced Begay to 204
months’ imprisonment on Count One and a consecutive term
of 120 months’ imprisonment on Count Two. The district
court imposed mandatory restitution under 18 U.S.C.
§ 3663A in the amount of $23,622. Begay appeals his
conviction on both counts as well as the restitution order.

                      JURISDICTION

    An “Indian” who commits murder in “Indian country” is
subject to applicable federal criminal laws. 18 U.S.C.
§ 1153(a). The location of the shooting here, the Navajo
Nation Indian Reservation, is “Indian country” for the
purposes of § 1153. 18 U.S.C. § 1151. We have jurisdiction
under 28 U.S.C. § 1291.

                        DISCUSSION

                               I

    “[T]he Due Process Clause requires the prosecution to
prove beyond a reasonable doubt the absence of the heat of
passion on sudden provocation when the issue is properly
presented in a homicide case.” Mullaney v. Wilbur, 421 U.S.
684, 704 (1975). Where, as here, a defendant does not object
to the jury instructions given by the district court, we review
for plain error. United States v. Matsumaru, 244 F.3d 1092,
1102 (9th Cir. 2001).

    On appeal, Begay argues for the first time that the district
court erred by failing to instruct the jury that, in order to
establish the element of malice, the government had to prove
6                UNITED STATES V. BEGAY

beyond a reasonable doubt that Begay did not act in the heat
of passion or upon a sudden quarrel. At trial, Begay’s
attorney did not request a voluntary manslaughter
instruction, object to the absence of such an instruction, or
introduce evidence of sudden quarrel or heat of passion at
trial. Begay’s theory of defense was that he did not kill the
victim. Cf. United States v. Anderson, 201 F.3d 1145, 1153
(9th Cir. 2000) (“A defendant arguing voluntary
manslaughter ‘attempts to negate the malice element by
claiming, in essence, that she was not acting maliciously
because some extreme provocation . . . severely impaired her
capacity for self-control in committing the killing.’”
(quoting United States v. Quintero, 21 F.3d 885, 890 (9th
Cir. 1994))).

    During closing argument, Begay’s attorney briefly
argued that the government could not prove malice because
Begay did not act deliberately, but did not argue that Begay
acted in heat of passion or upon a sudden quarrel. The
argument Begay’s attorney made regarding malice centered
on Begay’s lack of deliberation, arguing “to deliberate and
to intend to do something is not to simply be high and pull
the trigger.” Begay’s attorney did not argue that Begay
lacked malice because he shot Ben in heat of passion or
because he was provoked. See Anderson, 201 F.3d at 1152
(“A failure to give a jury instruction, even if error, does not
seriously affect the fairness and integrity of judicial
proceedings if the defense at trial made no argument relevant
to the omitted instruction.”).

    Although the government introduced evidence at trial
that Begay may have been angry at the time of the shooting
and discussed Begay’s anger during closing argument, the
evidence, arguments, and jury instructions taken as a whole
did not “properly present” the issue of heat of passion or
                  UNITED STATES V. BEGAY                       7

provocation to the jury. See United States v. Roston,
986 F.2d 1287, 1290 (9th Cir. 1993) (holding that the issue
of heat of passion was not properly presented where there
was insufficient evidence of provocation and the defendant’s
theory of the case was that he did not kill the victim); cf.
United States v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987)
(finding that the district court erred by failing to give
defendant’s requested instructions regarding accidental
killing and heat of passion where “that defense [was]
raised”). As such, the district court did not plainly err in
failing to instruct the jury on absence of “heat of passion” as
an element of second-degree murder. We therefore affirm
Begay’s conviction under Count One for second-degree
murder.

                               II

     “We review de novo whether a criminal conviction is a
‘crime of violence’ [under section 924(c)(3)] and whether a
jury instruction misstated the elements of an offense.”
United States v. Benally, 843 F.3d 350, 353 (9th Cir. 2016).
Where, as here, a party raises an argument for the first time
on appeal, we generally review for plain error; however, we
are not limited to plain error review “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.’” United States v.
Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)
(quoting United States v. Echavarria-Escobar, 270 F.3d
1265, 1267–68 (9th Cir. 2001)). Here, whether second-
degree murder is a crime of violence is a pure question of
law, and the government, which has fully briefed the issue,
suffers no prejudice. We therefore apply de novo review. See
id. at 1106 (reviewing de novo whether California attempted
8                UNITED STATES V. BEGAY

robbery is a crime of violence despite the petitioner’s failure
to raise the issue before the district court).

    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.” To determine whether second-degree
murder is a “crime of violence” we apply the “categorical
approach” laid out in Taylor v. United States, 495 U.S. 575
(1990). Benally, 843 F.3d at 352. Based on the facts of this
case, it may be hard to understand how the shooting of 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 v.
United States, 570 U.S. 254, 257 (2013). 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.

    If the statute of conviction is overbroad, we may ask
whether the statute is divisible, and, if it is, apply the
“modified categorical approach” to determine which
“statutory phrase” formed the basis of the defendant’s
conviction. Descamps, 570 U.S. at 263 (quoting Nijhawan v.
Holder, 557 U.S. 29, 41 (2009)). Where, as here, the
government has not argued that the statute of conviction is
divisible, we need not conduct a modified categorical
analysis. See United States v. Walton, 881 F.3d 768, 774–75
(9th Cir. 2018) (declining to conduct a modified categorical
analysis because the government failed to argue that the
statute of conviction was divisible).
                  UNITED STATES V. BEGAY                      9

    Accordingly, we compare the elements of 18 U.S.C.
§ 1111, the second-degree murder statute, to the definition
of a “crime of violence” found in § 924(c)(3). A “crime of
violence” is defined as a felony that

       (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.

18 U.S.C. § 924(c)(3). Subsection (A) is commonly known
as the “elements clause” and subsection (B) is commonly
known as the “residual clause.” Because the Supreme Court
declared 18 U.S.C. § 924 (c)(3)(B) unconstitutionally vague
in United States v. Davis, 139 S.Ct. 2319, 2336 (2019), we
need only determine whether second-degree murder
constitutes a crime of violence under the “elements clause”
in subsection (A).

                               A

    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.

    “[B]ecause the wording of [18 U.S.C. § 924(c)(3) and
18 U.S.C. § 16] is virtually identical, we interpret their plain
language in the same manner.” Benally, 843 F.3d at 354
(analyzing the required mental state for § 924(c)(3) by
looking to case law interpreting § 16); see also Davis,
139 S.Ct. at 2326 (“Like § 924(c)(3), § 16 contains an
elements clause and a residual clause. The only difference is
10               UNITED STATES V. BEGAY

that § 16’s elements clause, unlike § 924(c)(3)’s elements
clause, isn’t limited to felonies . . . .”). 18 U.S.C. § 16
defines the term “crime of violence” as:

       (a) an offense that has an element the use,
       attempted use, or threatened use of physical
       force against the person or property of
       another, or

       (b) any other offense that is a felony and 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.

(emphasis added). The only substantive difference is that the
felony requirement applies to both subsections of
§ 924(c)(3) and only to subsection (b) of § 16, but this
difference “does not affect the operative language used to
interpret the statute’s requisite mental state.” Benally,
843 F.3d at 354 n.1; see also Smith v. City of Jackson, 544
U.S. 228, 233 (2005) (plurality) (holding that a term is given
the same meaning “when Congress uses the same language
in two statutes having similar purposes.”).

    A “crime of violence” requires intentional conduct. In
Leocal v. Ashcroft, the Supreme Court discussed the mens
rea necessary to commit a “crime of violence” under
18 U.S.C. § 16. 543 U.S. 1 (2004). The Supreme Court
reasoned that § 16’s requirement that force be used “against”
someone or something suggests that “crimes of violence”
require “a higher degree of intent than negligent or merely
accidental conduct.” Leocal, 543 U.S. at 9–11.

    We have since interpreted Leocal’s reasoning to hold
that “crimes of violence,” as defined in both § 16 and
                  UNITED STATES V. BEGAY                      11

§ 924(c), require purposeful conduct. Benally, 843 F.3d at
353–54 (applying Leocal and Fernandez-Ruiz v. Gonzales,
466 F.3d 1121 (9th Cir. 2006) (en banc) to find that
involuntary manslaughter, which requires only gross
negligence, is not a crime of violence under § 924(c));
Covarrubias Teposte v. Holder, 632 F.3d 1049, 1053 (9th
Cir. 2011) (concluding from Leocal, Fernandez-Ruiz, and
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008)
that an intentional use of force was required for a crime of
violence as defined in either subsection of 18 U.S.C. § 16);
Gomez-Leon, 545 F.3d at 787 (holding that a crime of
violence under 18 U.S.C. § 16 “must require proof of an
intentional use of force or a substantial risk that force will be
intentionally used during its commission”); Fernandez-Ruiz,
466 F.3d at 1130 (holding that crimes that can be committed
recklessly are not “crimes of violence” for the purposes of
§ 16 because reckless conduct “is not purposeful”).

    The government argues that Voisine v. United States, —
U.S. — , 136 S.Ct. 2272 (2016) “implicitly overruled
Fernandez-Ruiz.” As we recently explained, “Voisine
expressly left open the question that Fernandez-Ruiz
answered” and is not “so clearly irreconcilable with
Fernandez-Ruiz’s reasoning that this three-judge panel is no
longer bound by the precedent of our court.” United States
v. Orona, 923 F.3d 1197, 1203 (9th Cir. 2019). In Voisine,
the Supreme Court held that the definition of “misdemeanor
crime of domestic violence” in 18 U.S.C. § 921(a)(33)(A)
includes reckless assaults. Id. at 2278. In doing so, however,
the Court explicitly stated, “our decision today concerning
§ 921(a)(33)(A)’s scope does not resolve whether § 16
includes reckless behavior. Courts have sometimes given
these two statutory definitions divergent readings in light of
differences in their contexts and purposes, and we do not
foreclose that possibility with respect to the required mental
12                  UNITED STATES V. BEGAY

states.” Id. at 2280 n.4. Given that explicit qualification, the
unique “context[] and purpose[]” of domestic violence, and
the differences in statutory text between the provision at
issue and the one interpreted in Voisine, we continue to apply
our case law interpreting 18 U.S.C. § 16 to 18 U.S.C.
§ 924(c)(3). 1 See Voisine, 136 S.Ct. at 2290 (limiting the
holding to the context of misdemeanor domestic violence);
United States v. Castleman, 572 U.S. 157, 162–63 (2014)
(same); Benally, 843 at 354 (continuing to apply our
precedent interpreting § 16 in interpreting § 924(c)(3)
“because the wording of the two statutes is virtually
identical”). It follows from our precedent that a crime of
violence under 18 U.S.C. § 924(c)(3) requires the intentional
use of force.

    The elements of second-degree murder are that the
defendant (1) “unlawfully kill[ed] a human being” (2) “with
malice aforethought.” 18 U.S.C. § 1111(a); Ninth Circuit
Model Criminal Jury Instruction 8.108. “[M]alice
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.” United States v. Pineda-Doval,
614 F.3d 1019, 1038 (9th Cir. 2010). As such, second-degree
murder may be committed recklessly—with a depraved
heart mental state—and need not be committed willfully or
intentionally. See United States v. Houser, 130 F.3d 867,
871–72 (9th Cir. 1997) (“Malice aforethought does not
require an element of willfulness if the existence of that



     1
      See also Gonzales-Ramirez v. Sessions, 727 F. App’x 404, 405 n.7
(9th Cir. 2018) (unpublished) (concluding that Voisine “does not affect
our § 16(a) case law.”).
                 UNITED STATES V. BEGAY                     13

malice is inferred from the fact that defendant acted
recklessly with extreme disregard for human life.”).

    It is of no consequence that the recklessness required for
second-degree murder must be “extreme” and goes beyond
ordinary recklessness. In Gomez-Leon, we made clear that,
in order to constitute a crime of violence, “the underlying
offense must require proof of an intentional use of force or a
substantial risk that force will be intentionally used during
its commission.” 545 F.3d at 787. “[O]ur precedent seems
squarely to place crimes motivated by intent on a pedestal,
while pushing off other very dangerous and violent conduct
that, because not intentional, does not qualify as a ‘crime of
violence.’” Covarrubias, 632 F.3d at 1053. Reckless
conduct, no matter how extreme, is not intentional.

    Second-degree murder also does not involve a
“substantial risk that force will be intentionally used during
its commission.” Gomez-Leon, 545 F.3d at 787. In
Covarrubias, we held that a California offense prohibiting
the malicious and willful discharge of a firearm at an
inhabited dwelling was not a “crime of violence” because it
could be committed recklessly, not just intentionally.
Covarrubias, 632 F.3d at 1053–55. Although we conducted
our analysis under § 16(b) because the BIA rested its
decision on subsection (b), id. at 1052, the analysis regarding
intent bears upon either subsection of § 16, and by analogy,
18 U.S.C. § 924(c)(3). See, e.g., Gomez-Leon, 545 F.3d
at 787 (requiring intentional use of force for a crime of
violence under either subsection of § 16); Benally, 843 F.3d
at 354. In contrast to crimes like burglary that can be
committed only intentionally, “with a crime committed
recklessly, it is unlikely that the reckless actor will, in
response to external events, form an intent to use force in
furtherance of his crime.” Covarrubias, 632 F.3d at 1055.
14                UNITED STATES V. BEGAY

“Classic examples of second-degree murder include
shooting a gun into a room that the defendant knows to be
occupied, a game of Russian roulette, and driving a car at
very high speeds along a crowded main street . . . .” Pineda-
Doval, 614 F.3d at 1039. For purposes of our analysis, these
examples are substantively indistinguishable from the
offense—“Shooting at an Inhabited Dwelling or Vehicle”—
that we held was not categorically a crime of violence in
Covarrubias. This risk that a crime could escalate to the use
of intentional force is no more substantial for a defendant
who recklessly kills than it is for a defendant who recklessly
shoots at a house.

    The cases the government cites do not squarely address
whether second-degree murder is a crime of violence.
Instead, in those cases, we found that other challenges to
§ 924(c) convictions lacked merit. See, e.g., United States v.
Percy, 250 F.3d 720 (9th Cir. 2001) (addressing the Sixth
Amendment right to counsel and prosecutorial misconduct);
Houser, 130 F.3d 867 (discussing the role of the jury and the
mens rea required for second-degree murder). More
recently, in United States v. JJ, we reviewed a district court's
decision to try a juvenile as an adult under the Federal
Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. United
States v. JJ, 704 F.3d 1219 (9th Cir. 2013). In JJ, the
question of whether “second-degree murder, if committed by
an adult, would be a felony crime of violence” was not in
dispute. Id. at 1222. Far from “holding” that second-degree
murder is a “crime of violence” for purposes of § 924(c), JJ
focused on when it might be in the interest of justice to try a
juvenile as an adult. Id. Because second-degree murder can
                     UNITED STATES V. BEGAY                             15

be committed recklessly, rather than intentionally, it does not
categorically constitute a crime of violence. 2

                                    B

    Second-degree murder is not categorically a crime of
violence under the elements clause, 18 U.S.C.
§ 924(c)(3)(A). And, pursuant to Davis, second-degree
murder cannot constitute a crime of violence under the
residual clause, section 924(c)(3)(B), as the residual clause
is unconstitutionally vague. Begay’s § 924(c) conviction for
discharging a firearm during and in relation to a crime of
violence therefore cannot stand under either the elements
clause or residual clause of § 924(c)(3). We reverse Count
Two of his conviction.

                                    III

    We review the legality of a restitution order de novo and
the factual findings supporting the order for clear error.
United States v. Luis, 765 F.3d 1061, 1065 (9th Cir. 2014)
(quoting United States v. Brock-Davis, 504 F.3d 991, 996
(9th Cir. 2007)). Where, as here, a defendant raises an
objection to a restitution order for the first time on appeal,
we review for plain error. United States v. Van Alystne, 584
F.3d 803, 819 (9th Cir. 2009).

    18 U.S.C. § 3663A directs a district court to impose
mandatory restitution where a defendant is convicted of a
crime of violence, as defined in 18 U.S.C. § 16. 18 U.S.C.

    2
       In holding that second-degree murder does not qualify as a
categorical crime of violence because it can be committed recklessly, we
do not reach Begay's argument that second-degree murder does not
qualify as a categorical crime of violence for the additional reason that it
can be committed without the use of violent force.
16              UNITED STATES V. BEGAY

§ 3663A(c)(1)(A)(i). We conclude that the district court
plainly erred in imposing mandatory restitution under
18 U.S.C. § 3663A because second-degree murder is not
categorically a crime of violence, and vacate the mandatory
restitution order. In light of this disposition, we need not
address Begay’s claim that the district court failed to make
the necessary findings for the restitution order.

                     CONCLUSION

    We AFFIRM Count One of Begay’s conviction for
second-degree murder. 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), VACATE the
mandatory restitution order imposed under 18 U.S.C.
§ 3663A, and REMAND for resentencing.

  AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED.
                      UNITED STATES V. BEGAY                           17

SMITH, N.R., Circuit Judge, dissenting from Parts II & III
of the Majority’s opinion: 1

    MURDER 2 in the second-degree is NOT a crime of
violence??? Yet attempted first-degree murder, 3 battery, 4
assault, 5 exhibiting a firearm, 6 criminal threats 7 (even
attempted criminal threats 8), and mailing threatening

    1
        I concur in Part I of the Majority’s opinion.

    2
         Murderers are “deserving of the most serious forms of
punishment.” Graham v. Florida, 560 U.S. 48, 69 (2010), as modified
(July 6, 2010). The Supreme Court recognized “a line between homicide
and other serious violent offenses against the individual,” because
“[s]erious nonhomicide crimes may be devastating in their harm but in
terms of moral depravity and of the injury to the person and to the public,
they cannot be compared to murder in their severity and irrevocability.”
Id. (citation, quotation marks, and alteration omitted).
    3
      United States v. Studhorse, 883 F.3d 1198, 1206 (9th Cir.), cert.
denied, 139 S. Ct. 127 (2018) (Wash. Rev. Code § 9A.32.030(1)).

     4
       United States v. Perez, No. 17-10216, 2019 WL 3022334, *5 (9th
Cir. July 11, 2019) (Cal. Penal Code § 243(d)).

    5
     United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir.
2018) (Cal. Penal Code § 245(a)(1)); United States v. Cabrera-Perez,
751 F.3d 1000, 1007 (9th Cir. 2014) (Ariz. Rev. Stat. §§ 13-1203, 13-
1204).

    6
     Bolanos v. Holder, 734 F.3d 875, 878 (9th Cir. 2013) (Cal. Penal
Code § 417.3).

    7
       Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003)
(Cal. Penal Code § 422).
    8
      Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016)
(Cal. Penal Code §§ 422, 664).
18                   UNITED STATES V. BEGAY

communications 9 are crimes of violence. How can this be?
“I feel like I am taking crazy pills.” 10

    This unbelievable result (arising because of the
Majority’s opinion) stems from the Majority’s
misapplication of the categorical approach to conclude that
second-degree murder cannot serve as a predicate crime of
violence under 18 U.S.C. § 924(c)(3)(A). Never mind that
the Majority’s result is contrary to Supreme Court precedent
and our precedent 11 and further defies reality and logic. See
United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018), cert.
denied, 139 S. Ct. 844, 202 L. Ed. 2d 612 (2019) (noting that
“the categorical approach must be grounded in reality, logic,
and precedent, not flights of fancy”).

    “Malice aforethought” 12 is a required element of first-
and second-degree murder. 18 U.S.C. § 1111(a). Rather
than use “malice aforethought” as a clear (and easy)
distinction for a crime of violence, the Majority plucks the
     9
      United States v. De La Fuente, 353 F.3d 766, 770–71 (9th Cir.
2003) (18 U.S.C. § 876(c)).

     10
      Ben Stiller (Director), Zoolander [Film], United States:
Paramount Pictures (2001).

     11
        Our sister circuit has also recognized that it would be illogical to
find that “the most morally repugnant crime—murder—would not be a
crime of violence while at the same time permitting many less-serious
crimes to be so classified.” In re Irby, 858 F.3d 231, 237 (4th Cir. 2017)
(citation and quotation marks omitted) (analyzing crime of violence
under the force provision).

     12
        “[M]alice 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.” United States v. Pineda-Doval, 614 F.3d 1019, 1038 (9th Cir.
2010).
                 UNITED STATES V. BEGAY                     19

term “recklessness” out of the defined term of “depraved
heart murder” and rejects any notion that there are varying
degrees of recklessness in order to hold that second-degree
murder is not a crime of violence. As a result, the term
“crime of violence” now has no real or logical meaning. I
do not understand how this can be.

                              I.

    Prior to the Comprehensive Crime Control Act of 1984
(CCCA), when Congress enacted the term “crime of
violence,” it outlined specific crimes that met the definition.
See Narcotic Addict Rehabilitation Act of 1966, Pub. L. No.
89-793, tit. I, § 2901, 80 Stat. 1438 (1966) (defining “crime
of violence” as “voluntary manslaughter, murder, rape,
mayhem, kidnaping, robbery, burglary or housebreaking in
the nighttime, extortion accompanied by threats of violence,
assault with a dangerous weapon or assault with intent to
commit any offense punishable by imprisonment for more
than one year, arson punishable as a felony, or an attempt or
conspiracy to commit any of the foregoing offenses”),
repealed by Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, tit. II, § 218(a)(6), 98 Stat. 1837 (1984);
Federal Firearms Act of 1938, Pub. L. No. 75-785, § 6, 52
Stat. 1250 (1938) (defining “crime of violence” as “murder,
manslaughter, rape, mayhem, kidnaping, burglary,
housebreaking; assault with intent to kill, commit rape, or
rob; assault with a dangerous weapon, or assault with intent
to commit any offense punishable by imprisonment for more
than one year”), repealed by Gun Control Act of 1968, Pub.
L. No. 90-618, § 203, 82 Stat. 1214 (1968). Upon enacting
the CCCA, Congress changed the definition of “crime of
violence” to include “an offense that is a felony” and that
“has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.”
20               UNITED STATES V. BEGAY

18 U.S.C. §§ 16(a), 924(c)(3)(A). However, Congress has
indicated that murder is crime of violence on several
occasions since the CCCA enactment. See 132 Cong. Rec.
7698 (April 16, 1986) (explaining the need to expand the
Armed Career Criminal Act beyond robbery and burglary to
include murder, rape, and heroin smuggling); H.R. Rep. 105-
86, *76–77 (1997) (noting that “[t]he age at which a juvenile
may be proceeded against as an adult drops to 13 if the crime
of violence alleged is assault, murder [citing 18 U.S.C.
§ 1111(a)], attempted murder, or if the juvenile possessed a
firearm during the offense, robbery, bank robbery,
aggravated sexual abuse.” (footnotes omitted)).

    Because Congress no longer provided a specific list of
offenses that were “crimes of violence,” courts were left to
apply the categorical approach to determine which offenses
met the new definition. Thus, since the enactment of the
CCCA, the interpretation of the term “crime of violence” has
evolved in the Supreme Court and the Ninth Circuit.
Notably, as demonstrated below, the Ninth Circuit’s
interpretation of included crimes has narrowed over time.

    Initially, we rejected an argument that aggravated assault
with a recklessness mens rea was a not crime of violence.
See United States v. Ceron-Sanchez, 222 F.3d 1169, 1172–
73 (9th Cir. 2000), overruled by Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). One year
later, we declined to extend the holding to cover “negligent
conduct,” instead concluding that a “crime of violence”
could not be committed if a person acted “negligently—
rather than intentionally or recklessly.” United States v.
Trinidad-Aquino, 259 F.3d 1140, 1144–45 (9th Cir. 2001).
Thereafter, in Leocal v. Ashcroft, the Supreme Court defined
a crime of violence when it interpreted the phrase “use of
physical force against another” to mean “a higher degree of
                     UNITED STATES V. BEGAY                            21

intent than negligent or merely accidental conduct.”
543 U.S. 1, 9 (2004) (alterations omitted). 13 Thus, Leocal
effectively affirmed our decision in Trinidad-Aquino. In
2005, we determined that a crime of violence does not
include acts that are “gross[ly] negligen[t] (but without
malice aforethought).” See Lara-Cazares v. Gonzales, 408
F.3d 1217, 1221 (9th Cir. 2005). The next year, we rejected
our prior case law and followed our sister circuits to
conclude that acts “involving the reckless use of force” were
also not crimes of violence. See Fernandez-Ruiz, 466 F.3d
at 1129. 14

    Following Leocal and Fernandez-Ruiz, we next
overruled our prior precedent, which had made involuntary
manslaughter, 15 under 18 U.S.C. § 1112, a crime of
violence. United States v. Benally, 843 F.3d 350, 354 (9th
Cir. 2016) (holding that United States v. Springfield, 829
F.2d 860 (9th Cir. 1987) was “clearly irreconcilable with the
reasoning and the results of Leocal and Fernandez-Ruiz and

    13
       Leocal did not address “whether a state or federal offense that
requires proof of the reckless use of force against a person or property of
another qualifies as a crime of violence under 18 U.S.C. § 16.” Leocal,
543 U.S. at 13.

    14
       In United States v. Orona, we concluded that Voisine v. United
States, 136 S. Ct. 2272, 2279–82 (2016) did not overrule Fernandez-
Ruiz. 923 F.3d 1197, 1202–03 (9th Cir. 2019).

    15
      Manslaughter can be a “lesser included offense” of second-degree
murder. See United States v. Anderson, 201 F.3d 1145, 1148 (9th Cir.
2000). An involuntary manslaughter instruction is proper when the
defense theory is that the killing was accidental or self-defense. Id.
at 1151–52. A voluntary manslaughter instruction is proper when
defense “introduces evidence of sudden quarrel or heat of passion.”
United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994).
22                  UNITED STATES V. BEGAY

is no longer good law”). In Benally, we recognized that “[a]
conviction for involuntary manslaughter requires, at a
minimum, a mental state of gross negligence, defined as a
wanton or reckless disregard for human life.” 16 Id. at 353
(internal quotation marks and citation omitted).

    Against this historical backdrop of interpreting the term
“crime of violence,” the Majority now concludes “[s]econd-
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.” Maj. Op. 9 However, the
“recklessness” (the Majority now cites) arises only when one
can be found to possess malice aforethought because of a
“depraved-heart murder,” wherein “a defendant’s conduct
must create a ‘very high degree of risk’ of injury to other
persons, he must be aware of that risk, and he cannot have a
justifiable reason for taking that risk.” Pineda-Doval,
614 F.3d at 1038 (footnote omitted). In making this
decision, the Majority ignores the differences between
“gross negligence” and “malice aforethought,” concluding
instead that “[i]t is of no consequence that the recklessness
required for second-degree murder must be ‘extreme’ and
goes beyond ordinary recklessness.” 17 Maj. Op. 13. Thus,
     16
        Although we have not yet addressed whether voluntary
manslaughter under 18 U.S.C. § 1112 is a crime of violence, we have
determined that state voluntary manslaughter crimes are not crimes of
violence, because they can be committed recklessly. See Quijada-
Aguilar v. Lynch, 799 F.3d 1303, 1306–07 (9th Cir. 2015) (holding
California voluntary manslaughter is not a crime of violence, because a
conviction requires “merely reckless conduct”).

     17
       The Majority’s notion that the term “recklessness” effectively has
one meaning conjures up visions of Alice in Wonderland: “When I use
a word, . . . it means just what I choose it to mean—neither more nor
less.” Lewis Carroll, Through the Looking-Glass and What Alice Found
There.
                     UNITED STATES V. BEGAY                             23

its decision in effect equates the term “malice aforethought”
with “gross negligence” or “accidental conduct.” That
cannot be correct. Instead, there are significant differences
between the mens rea necessary to support a conviction
using ordinary recklessness and the recklessness necessary
to establish malice aforethought. That difference must be
taken into account when defining a “crime of violence.”

    Post-Leocal, we have referenced terms such as “mere”
or “simple” recklessness in the context of applying the
categorical analysis and have held that the ordinary form of
recklessness does not fall within the definition of a “crime of
violence.” See, e.g., Covarrubias Teposte v. Holder,
632 F.3d 1049, 1054 (9th Cir. 2011) (holding the California
offense of shooting at an inhabited dwelling 18 or vehicle is
not a crime of violence because it “requires a merely reckless
mens rea”); Pineda-Doval, 614 F.3d at 1040 (noting that
“second-degree murder required a finding of extreme
recklessness evincing disregard for human life, not simple
recklessness” (emphasis added)); Fernandez-Ruiz, 466 F.3d
at 1124 (“We ordered rehearing en banc to resolve an inter-
and intra-circuit conflict as to whether . . . crimes involving
the merely reckless use of force can be crimes of violence.”
(emphasis added)). These cases outline that the ordinary or
“simple” form of recklessness is consistent with “gross
negligence.” 19



    18
       For purposes of the California Penal Code section 246, an
“inhabited dwelling” need not be occupied. Covarrubias Teposte,
632 F.3d at 1054.
    19
       “‘Gross negligence’ is a relative term. It is doubtless to be
understood as meaning a greater want of care than is implied by the term
‘ordinary negligence;’ but, after all, it means the absence of the care that
24                  UNITED STATES V. BEGAY

    However, we have never directly addressed “deliberate”
or “extreme” recklessness in the same context, 20 which
clearly provides a higher standard than “mere recklessness.”
See Pineda-Doval, 614 F.3d at 1039 (recognizing that
“merely reckless driving cannot provide the basis for a
second-degree murder conviction,” because “‘something
more’ was required to establish the malice aforethought
necessary to prove second-degree murder” (quoting United
States v. Hernandez-Rodriguez, 975 F.2d 622, 627 (9th Cir.
1992)).

     This distinction between mere or simple recklessness
and “extreme” recklessness is critical. The depraved-heart
(i.e., reckless indifference) necessary for a conviction of
second-degree murder requires more than “mere
recklessness”; it requires malice aforethought.            See
18 U.S.C. § 1111(a) (“Murder is the unlawful killing of a
human being with malice aforethought.”); see also United
States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987) (“The
difference between that recklessness which displays
depravity and such extreme and wanton disregard for human
life as to constitute ‘malice’ and that recklessness that
amounts only to [gross negligence] lies in the quality of
awareness of the risk.” (citation omitted)). “Malice
aforethought does not mean simply hatred or ill will, but also
embraces the state of mind with which one intentionally
commits a wrongful act without legal justification or excuse.
It may be inferred from circumstances which show a wanton

was necessary under the circumstances.” Milwaukee & St. P.R. Co. v.
Arms, 91 U.S. 489, 495 (1875).

     20
       In United States v. Cabrera-Perez, we seemed to recognize a
difference in “the reckless mens rea” when we suggested that a crime of
violence required a “mens rea of at least extreme recklessness.” 751 F.3d
at 1005.
                    UNITED STATES V. BEGAY                            25

and depraved spirit, a mind bent on evil mischief without
regard to its consequences.” United States v. Celestine,
510 F.2d 457, 459 (9th Cir. 1975) (emphasis added) (internal
quotation marks and citation omitted); see also Lesina,
833 F.2d at 159 (noting that “disregard for human life
becomes more callous, wanton or reckless, and more
probative of malice aforethought, as it approaches a mental
state comparable to deliberation and intent”). Notably, we
have referred to extreme “reckless indifference” as
“depraved-heart murder.” Pineda-Doval, 614 F.3d at 1038.
As even the Majority acknowledges, “[c]lassic examples of
second-degree murder include shooting a gun into a room
that the defendant knows to be occupied, playing a game of
Russian roulette, and driving a car at very high speeds along
a crowded main street.” Id. at 1039. Yet, none of these
examples demonstrate a recklessness equivalent to gross
negligence. See Fernandez-Ruiz, 466 F.3d at 1130.

      Although the specific facts of a case do not play into a
categorical analysis, they do shed light on what conduct
amounts to the recklessness of depraved heart murder. For
example, we held that certain types of actions amounted to
“extreme disregard for life” in United States v. Houser,
130 F.3d 867 (9th Cir. 1997), United States v. Boise, 916
F.2d 497 (9th Cir. 1990), and Celestine, 510 F.2d 457. In
Houser, the defendant “took a handgun from his truck,
pumped a cartridge into the chamber of the gun, [and] held
the gun behind his back.” 130 F.3d at 869. He then
approached his girlfriend and, “[a]fter four or five seconds[,]
. . . brought his right arm to the left side of [his girlfriend’s]
neck and shot her.” 21 Id. We concluded that the district


    21
       “Houser’s defense was that the shooting was wholly accidental;
that he did not intend to use the gun but that [his girlfriend] grabbed it
26                  UNITED STATES V. BEGAY

court’s “extreme disregard” instruction was proper. 22 Id.
at 871. In Boise, we held that “the jury could rationally
conclude beyond a reasonable doubt that Boise displayed ‘a
wanton and depraved spirit, a mind bent on evil mischief
without regard to its consequences,’” when he killed a small
child through “two blunt force blows to the head.” 916 F.2d
at 500 (quoting Celestine, 510 F.2d at 459). Similarly, in
Celestine, we held that a jury was permitted to conclude
“that the homicide was accompanied by a callous and
wanton disregard of human life,” when the defendant killed
a woman by beating her with his fists and by repeatedly
kicking a stick into her vagina. 510 F.2d at 458–59.

    These cases do not demonstrate the type of conduct
indicative of mere or simple recklessness that is equivalent
to gross negligence. See Leocal, 543 U.S. at 9; see also
Fernandez-Ruiz, 466 F.3d at 1130 (“[T]he reckless use of
force is ‘accidental’ and crimes of recklessness cannot be
crimes of violence.”). Thus, the extreme recklessness
necessary to equate to malice aforethought is not and cannot
be “accidental.” See Fernandez-Ruiz, 466 F.3d at 1130; see
also Leocal, 543 U.S. at 9. To the contrary, killing
“recklessly with extreme disregard for human life” most
naturally suggests a higher degree of depravity or knowing
disregard. If the underlying use of physical force were
“accidental,” the charge (or conviction) would be
involuntary manslaughter. See Ninth Cir. Crim. Jury Inst.

and tried to wrest it from him, causing an accidental discharge.” Houser,
130 F.3d at 870.

     22
       In Houser, we concluded that the district court’s use of “the
expression ‘extreme disregard for human life’ instead of ‘a wanton and
depraved spirit, a mind bent on evil mischief without regard to its
consequences,’” was not error because they were “functionally
equivalent.” 130 F.3d at 871 n.3.
                    UNITED STATES V. BEGAY                          27

8.110 (requiring a jury to find that “the defendant acted with
gross negligence, defined as wanton or reckless disregard for
human life”). Thus, murder, which requires malice
aforethought (with its higher degree of intent), must
necessarily be a crime of violence.

    As Judge Wardlaw aptly recognized in her dissent in
Fernandez-Ruiz, “[r]ecklessness is a distinct mens rea,
which lies closer to intentionality than to negligence.”
466 F.3d at 1141–42 (Wardlaw, J., dissenting). The
Supreme Court has also recognized that “the reckless
disregard for human life . . . represents a highly culpable
mental state.” Tison v. Arizona, 481 U.S. 137, 157–58
(1987). The Majority’s suggestion that second-degree
murder can be committed without any intentional conduct is
simply not correct. Although a defendant may not have to
intended to kill (“express malice”), he or she nevertheless
killed a human being with “an intentional act that had a high
probability of resulting in death (implied malice).” See
Pollard v. White, 119 F.3d 1430, 1434 (9th Cir. 1997)
(noting at a minimum “implied malice aforethought” was
demonstrated by the defendant’s statement “that he was
going to ‘blow [the victim] away’” because it showed “an
intent to shoot when he pulled the trigger” (alteration in
original)). Again, these examples denote the difference
between gross negligence (mere recklessness) and malice
aforethought (depraved heart murder). 23


    23
        The difference between the required mens rea necessary for a
conviction of manslaughter or for murder also demonstrates this
important distinction. Under the federal definition, manslaughter is
defined as an “unlawful killing of a human being without malice.”
18 U.S.C. § 1112)(a) (emphasis added). Killing without malice suggests
that the mental state required to commit manslaughter is lesser than the
mental state required to commit some degree of murder. See United
28                  UNITED STATES V. BEGAY

                                   II.

    “[T]o construe statutes so as to avoid results glaringly
absurd, has long been a judicial function.” Armstrong Paint
& Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333
(1938). Yet, the Majority does not seem to even contemplate
the far-reaching results of its decision. This Majority
opinion produces precisely those “glaringly absurd” results,
which we are instructed to avoid. See Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982) (noting “that
interpretations of a statute which would produce absurd
results are to be avoided if alternative interpretations
consistent with the legislative purpose are available”).

    We have already concluded that as exhibiting a firearm
in the presence of a passenger in a motor vehicle under
California Penal Code section 417.3, Bolanos, 734 F.3d at
878, assault under Arizona Revised Statute sections 13-
1203, 13-1204, Cabrera-Perez, 751 F.3d at 1007, and
criminal threats under California Penal Code section 422,
Rosales-Rosales, 347 F.3d at 717, are all crimes of violence.
Although none of these crimes can be committed
“recklessly,” how can our court logically conclude that
second-degree murder (the killing of a human being) is not
a crime of violence when these lesser crimes are?



States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994) (explaining voluntary
manslaughter may involve “a defendant who killed unintentionally but
recklessly with extreme disregard for human life . . . in the heat of
passion with adequate provocation”); see also Quintero, 21 F.3d at 890
(“Intent without malice, not the heat of passion, is the defining
characteristic of voluntary manslaughter.”). Yet, the Majority’s opinion
ignores this difference in mens rea.
                     UNITED STATES V. BEGAY                            29

     Even more problematic with this decision: under the
Majority’s approach, attempted murder would be a crime of
violence while the complete offense would not be. 24 See
Braxton v. United States, 500 U.S. 344, 351 n.**(1991)
(“Although a murder may be committed without an intent to
kill, an attempt to commit murder requires a specific intent
to kill.”). We reached this same conclusion in United States
v. Studhorse, 883 F.3d 1198. There, we first concluded that
the crime could not be committed recklessly, because “the
mental state required for criminal attempt (specific intent) is
the highest mental state,” “[r]egardless of the intent required
to commit the underlying crime.” Id. at 1203. Next, we
concluded that Washington attempted first degree murder 25
fell under § 16(a)’s definition of “crime of violence.” See id.
at 1204 (Section 16(a) requires “an element the use,
attempted use, or threatened use of physical force against the
person.” ). As with Studhorse, an attempt to commit murder
under 18 U.S.C. § 1113 similarly would require a substantial
step and an intent to commit the crime. United States v.
Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam).
It is illogical to conclude that an attempted murder is a

    24
       This holding would also seem to conflict with convictions under
18 U.S.C. § 373, solicitation to commit a crime of violence, wherein a
person solicits another to commit murder.
    25
       Under Revised Code of Washington section 9A.32.030(1), first-
degree murder includes “(b) Under circumstances manifesting an
extreme indifference to human life, he or she engages in conduct which
creates a grave risk of death to any person, and thereby causes the death
of a person.” Under the Majority’s view, first-degree murder in
Washington would not be a crime of violence, which the Studhorse panel
rejected. 883 F.3d at 1204 (“[W]e easily conclude that Washington
attempted first degree murder falls within § 16(a)’s definition of a ‘crime
of violence.’”).
30                    UNITED STATES V. BEGAY

“crime of violence” that could garner a higher sentence than
that for the actual killing of a human being.

    The Majority’s opinion also conflicts with other statutes
and sentencing guidelines, which presume that murder is a
crime of violence. 26 See, e.g., 18 U.S.C. § 3559(f)(1)
(increasing the mandatory minimum for violent crimes
against children “if the crime of violence is murder”);
     26
        The Majority’s analysis could easily exclude first-degree murder
as a crime of violence. First- and second-degree murder both require that
(1) the defendant unlawfully killed another and (2) the defendant killed
with malice aforethought (which can be committed “recklessly with
extreme disregard for human life”). See 8 U.S.C. § 1111(a); Ninth Cir.
Crim. Jury Inst. 8.107, 8.108. Although first degree murder can be:

          perpetrated by poison, lying in wait, or any other kind
          of willful, deliberate, malicious, and premeditated
          killing; or committed in the perpetration of, or attempt
          to perpetrate, any arson, escape, murder, kidnapping,
          treason, espionage, sabotage, aggravated sexual abuse
          or sexual abuse, child abuse, burglary, or robbery; or
          perpetrated as part of a pattern or practice of assault or
          torture against a child or children; or perpetrated from
          a premeditated design unlawfully and maliciously to
          effect the death of any human being other than him
          who is killed[,]

18 U.S.C. § 1111(a), the“malice aforethought” element is still required.
Id. Thus, if any degree of reckless conduct precludes a crime from being
designated as a crime of violence, by the Majority’s logic first-degree
murder would not be a crime of violence either. It further defies reason
that a defendant could be subject to the death penalty; yet not be found
to have committed a crime of violence. See 18 U.S.C. § 3591(a)(2)(D)
(The Federal Death Penalty Act recognizes that a murder could include
the mens rea of “intentionally and specifically engag[ing] in an act of
violence, knowing that the act created a grave risk of death to a person,
other than one of the participants in the offense, such that participation
in the act constituted a reckless disregard for human life and the victim
died as a direct result of the act.”).
                 UNITED STATES V. BEGAY                   31

U.S.S.G. § 4B1.2(a)(2) (“‘[C]rime of violence’ means . . .
murder.”); U.S.S.G. § 2L1.2 cmt. n.2 (“‘Crime of violence’
means . . . murder . . . .”). Again, the question: why carve
out this exception for second-degree murder under § 16(a)
and § 924(c)(3)(A), when Congress has been clear that
murder is a crime of violence?

    The Majority goes too far in extending the concept of
recklessness to include malice aforethought.          Malice
aforethought, including “depraved heart” murder, requires
conduct well beyond mere recklessness. Murder should be
a categorical match to a crime of violence because of the
necessary element of malice aforethought.           Holding
otherwise makes the definition of “crime of violence”
virtually meaningless and will lead to utterly absurd results
in future cases.
