                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,             No. 14-10452
          Plaintiff-Appellee,
                                        D.C. No.
             v.                   3:13-cr-08095-GMS-1

JOE ARVISO BENALLY,                ORDER AND
        Defendant-Appellant.     AMENDED OPINION


      Appeal from the United States District Court
               for the District of Arizona
       G. Murray Snow, District Judge, Presiding

         Argued and Submitted April 11, 2016
              San Francisco, California

               Filed August 1, 2016
             Amended November 7, 2016

     Before: Dorothy W. Nelson, John T. Noonan,
     and Diarmuid F. O’Scannlain, Circuit Judges.

                        Order;
               Opinion by Judge Noonan
2                 UNITED STATES V. BENALLY

                           SUMMARY*


                          Criminal Law

    The panel filed an order amending an opinion filed
August 1, 2016, and denied a petition for rehearing, in a case
in which the panel reversed a conviction for using a firearm
in connection with a “crime of violence” under 18 U.S.C.
§ 924(c).

   In the August 1, 2016, opinion, the panel held that
involuntary manslaughter under 18 U.S.C. § 1112, which
requires a mental state of only gross negligence, prohibits
conduct that cannot be considered a “crime of violence”
under 18 U.S.C. § 924(c)(3), and therefore cannot qualify
under the categorical approach.

    In the order amending the opinion, the panel noted that
Voisine v. United States, 136 S. Ct. 2272 (2016), suggested
that reckless conduct can constitute a crime of violence. The
panel wrote that it need not resolve any tension regarding the
inclusion of reckless conduct because the government
conceded that § 1112 – which requires a mental state of only
gross negligence – prohibits conduct that cannot be a “crime
of violence,” even after Voisine.

   The panel wrote that United States v. Springfield, 829
F.2d 860 (9th Cir. 1987), which held that involuntary
manslaughter under § 1112 is a “crime of violence” for
purposes of § 924(c)(3)), is no longer good law because it is

  *
    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. BENALLY                     3

clearly irreconcilable with the reasoning and results of Leocal
v. Ashcroft, 543 U.S. 1 (2004) (interpreting 18 U.S.C. § 16(a)
and (b)), and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th
Cir. 2006) (en banc) (holding that neither recklessness nor
gross negligence is a sufficient mens rea to establish that a
conviction is for a crime of violence under § 16).


                         COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.

Karla Delord (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; John S.
Leonardo, United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.


                          ORDER

    The opinion filed on August 1, 2016 is amended as
follows:

    Replace the portion of the opinion that runs from the
second paragraph of page 9 of the slip opinion (beginning
<Leocal explicitly leaves open the question whether . . . >)
through the end of the penultimate paragraph on page 10
(which ends < . . . and is no longer good law.>) with:

   <After Leocal, we held that “neither recklessness nor
gross negligence is a sufficient mens rea to establish that a
4               UNITED STATES V. BENALLY

conviction is for a crime of violence under § 16.” Fernandez-
Ruiz, 466 F.3d at 1130. This June, the Supreme Court
suggested the opposite, and held that for purposes of a
similar statute—18 U.S.C. § 921(a)(33)(A)—reckless conduct
indeed can constitute a crime of violence. See Voisine v.
United States, 136 S. Ct. 2272, 2279–80, 2282 (2016). But
we need not resolve any tension regarding the inclusion of
reckless conduct in this case. The government concedes that
§ 1112, which requires a mental state of only gross
negligence, prohibits conduct that cannot be a “crime of
violence,” even after Voisine. Springfield’s opposing rule is
clearly irreconcilable with the reasoning and the results of
Leocal and Fernandez-Ruiz and is no longer good law.>

    With this amendment, the panel votes to deny the petition
for rehearing.

    No further petitions for rehearing will be entertained.



                         OPINION

NOONAN, Circuit Judge:

    Joe Arviso Benally appeals a jury conviction for
involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153
and for using a firearm in connection with a “crime of
violence” under 18 U.S.C. § 924(c). In a separate
unpublished memorandum disposition, we address Benally’s
challenge to the trial proceedings and sentence. In this
opinion, we address whether involuntary manslaughter can be
considered a “crime of violence” under § 924(c). We hold
                UNITED STATES V. BENALLY                    5

that involuntary manslaughter is not a “crime of violence”
and reverse the § 924(c) count of conviction.

              FACTS AND PROCEEDINGS

    On January 17, 2013, Carlos Harvey was shot in the chest
with Benally’s rifle, killing Harvey. Both Benally and
Harvey lived on the same multi-house compound in a rural
part of the Navajo Nation Indian Reservation in Oak Springs,
Arizona. On April 30, 2013, a federal grand jury returned an
indictment against Benally for the second-degree murder of
Carlos Harvey and for using a firearm in connection with a
“crime of violence.”

    At trial, the government presented evidence that, after a
day of drinking, Benally shot Harvey intentionally after an
argument. Other government evidence indicated that the
shooting was accidental and part of a drunken game. The
jury did not convict Benally of second-degree murder, but of
the lesser-included offense of involuntary manslaughter. The
jury, instructed to find involuntary manslaughter to be a
“crime of violence,” also convicted Benally of using a firearm
in connection with a “crime of violence” under § 924(c).
Benally appeals his conviction on both counts.

                      JURISDICTION

    An “Indian” who commits murder or manslaughter 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 (defining “Indian
country” to include “all land within the limits of any Indian
reservation under the jurisdiction of the United States
6               UNITED STATES V. BENALLY

Government”). We have appellate jurisdiction under
28 U.S.C. § 1291.

                       DISCUSSION

    Benally’s conviction under § 924(c) for use of a firearm
requires a predicate “crime of violence.” To determine
whether Benally’s conviction for involuntary manslaughter is
a “crime of violence” we apply the “categorical approach”
laid out in Taylor v. United States, 495 U.S. 575 (1990).
United States v. Amparo, 68 F.3d 1222, 1224–26 (9th Cir.
1995); see also United States v. Piccolo, 441 F.3d 1084,
1086–87 (9th Cir. 2006) (as amended) (applying the
categorical approach to the definition of a “crime of violence”
found in U.S.S.G. § 4B1.2). Under this approach, we do not
look to the particular 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, 133 S. Ct. 2276,
2281 (2013) (describing this approach under 18 U.S.C.
§ 924(e)). The defendant’s crime cannot categorically be a
“crime of violence” if the statute of conviction punishes any
conduct not encompassed by the statutory definition of a
“crime of violence.” See id.; Piccolo, 441 F.3d at 1086–87;
United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir.
2012) (“If the statute of conviction is overbroad . . . it does
not categorically constitute a crime of violence.”).

    If the statute of conviction does not qualify as a
categorical “crime of violence,” we sometimes then apply the
modified categorical approach, which allows us to look to a
narrow set of documents that are part of the record of
conviction. See Descamps, 133 S. Ct. at 2281; Piccolo,
441 F.3d at 1090. Here, the government did not argue that
                UNITED STATES V. BENALLY                     7

the modified categorical approach applies and we need not
address it. Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.
2008) (“[W]here, as here, the government has not asked us to
apply the modified categorical approach, we ‘consider only
whether the categorical approach is satisfied.’” (quoting
Mandujano-Real v. Mukasey, 526 F.3d 585, 589 (9th Cir.
2008)).

    Accordingly, we compare the elements of § 1112, the
involuntary manslaughter statute, to the definition of a “crime
of violence” found in § 924(c)(3). We review de novo
whether a criminal conviction is a “crime of violence” and
whether a jury instruction misstated the elements of an
offense. Covarrubias Teposte v. Holder, 632 F.3d 1049,
1052 (9th Cir. 2011) (as amended); Amparo, 68 F.3d at 1224.

    A “crime of violence” is an offense 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).

    Involuntary manslaughter is the “unlawful killing of a
human being without malice . . . [i]n the commission of an
unlawful act not amounting to a felony, or in the commission
in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death.”
18 U.S.C. § 1112(a). 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.’” United States v. Pineda-Doval,
614 F.3d 1019, 1038–39 (9th Cir. 2010) (quoting United
8               UNITED STATES V. BENALLY

States v. Crowe, 563 F.3d 969, 973 (9th Cir. 2009) (citation
omitted)).

     In United States v. Springfield, 829 F.2d 860 (9th Cir.
1987), we held that involuntary manslaughter under § 1112
is a “crime of violence” for the purposes of § 924(c)(3). Id.
at 862–63. Although involuntary manslaughter does not
contain a use-of-physical-force element under § 924(c)(3)(A),
we held that it inherently involves a substantial risk that such
force will be used under § 924(c)(3)(B) because death by
involuntary manslaughter is “highly likely to be the result of
violence.” Id. at 863. Therefore, we held that involuntary
manslaughter “comes within the intent, if not the precise
wording, of section 924(c)(3).” Id. Additionally, we noted
that involuntary manslaughter’s requisite mental state of
“gross negligence” does not exclude it from being a “crime of
violence” because “Congress did not intend to limit ‘crimes
of violence’ to crimes of specific intent.” Id. at 863 n.1
(citing S. Rep. No. 307, 97th Cong., 1st Sess., 890–91
(1982)). But see Park v. INS, 252 F.3d 1018, 1023 (9th Cir.
2001), overruled on other grounds by Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)
(noting that the legislative history quoted did not correspond
to § 924(c), but a separate provision that never became law).

    Intervening Supreme Court and en banc Ninth Circuit
decisions, namely, Leocal v. Ashcroft, 543 U.S. 1 (2004), and
Fernandez-Ruiz v. Gonzales, 466 F.3d at 1124–32, bring
Springfield’s result into question. A three-judge panel’s
holding is deemed “effectively overruled” if intervening
higher authority has “undercut the theory or reasoning
underlying the prior circuit precedent in such a way that the
cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d
889, 893, 900 (9th Cir. 2003) (en banc).
                   UNITED STATES V. BENALLY                              9

    Leocal and Fernandez-Ruiz discuss the mental state
necessary to commit a “crime of violence.” These cases do
not specifically address § 924(c)(3), but instead interpret the
“crime of violence” definition found in a different statutory
provision, 18 U.S.C. § 16. Regardless, because the wording
of the two statutes is virtually identical,1 we interpret their
plain language in the same manner. Cf. Park, 252 F.3d at
1022 (applying Springfield’s interpretation of § 924(c)(3) to
a case involving § 16).

     In Leocal, the Supreme Court parsed the phrase “use of
force against the person or property of another” found in
§ 16(a) and (b). Leocal, 543 U.S. at 8–13. The Court, giving
the language its “‘ordinary or natural’ meaning,” determined
that it “most naturally suggests a higher degree of intent than
negligent or merely accidental conduct.” Id. at 9 (citations
omitted). While theoretically one can use force accidentally,
“it is much less natural to say that a person actively [uses]
physical force against another person by accident.” Id.

    The Court acknowledged that § 16(b) “sweeps more
broadly than § 16(a)” by expanding the definition of “crime
of violence” to include an offense carrying a “substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense.” Id. at


  1
    Under § 16, the term “crime of violence” means “(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.” 18 U.S.C. § 16 (emphasis added). The only
substantive change is the addition of the felony requirement in subsection
(b), underlined above; it does not affect the operative language used to
interpret the statute’s requisite mental state.
10              UNITED STATES V. BENALLY

10 (citing 18 U.S.C. § 16(b)). But because § 16(b) involves
the same use-of-force-against-another formulation, the
predicate crime must carry a risk of behavior involving more
volition than “merely accidental or negligent conduct.” Id. at
10–11 (“The reckless disregard in § 16 relates not to the
general conduct or to the possibility that harm will result
from a person’s conduct, but to the risk that the use of
physical force against another might be required in
committing a crime.”).

    After Leocal, we held that “neither recklessness nor gross
negligence is a sufficient mens rea to establish that a
conviction is for a crime of violence under § 16.” Fernandez-
Ruiz, 466 F.3d at 1130. This June, the Supreme Court
suggested the opposite, and held that for purposes of a similar
statute—18 U.S.C. § 921(a)(33)(A)—reckless conduct indeed
can constitute a crime of violence. See Voisine v. United
States, 136 S. Ct. 2272, 2279–80, 2282 (2016). But we need
not resolve any tension regarding the inclusion of reckless
conduct in this case. The government concedes that § 1112,
which requires a mental state of only gross negligence,
prohibits conduct that cannot be a “crime of violence,” even
after Voisine. Springfield’s opposing rule is clearly
irreconcilable with the reasoning and the results of Leocal
and Fernandez-Ruiz and is no longer good law.

    Benally’s § 924(c) count of conviction for using a firearm
in connection with a “crime of violence” is

     REVERSED.
