Is Murder a Crime of Violence? U.S. v. Begay, Ninth Circuit Court of Appeals, Filed August 19, 2019

Is murder a crime of violence? It seems obvious, right? I mean, what could be more violent than killing a person?

In U.S. v. Begay, the Ninth Circuit Court of Appeals held that second-degree murder is not a crime of violence for purposes of 18 USC Section 924(c), an enhancement statute that provides additional penalties for a person convicted of discharging a firearm during a “crime of violence.”

924(c)’s definition of violent crime is slowly but surely being dismantled by the federal courts in a demonstration of why words matter in federal statutes. In June of this year, the U.S. Supreme Court found that one-half of 924(c)’s definition of violent crime, the “residual clause,” is unconstitutionally vague and cannot be enforced.

Now, we are finding that the other half of 924(c)’s definition of violent crime, the “elements clause,” is severely limited in its scope due to the wording of the statute. In Begay, the Ninth Circuit has put another nail in 924(c)’s coffin, at least until Congress decides to rewrite it. Much more carefully, this time…

Is Murder a Crime of Violence?

Murder is violent. But whether it can be considered a “crime of violence” for purposes of 924(c) depends on whether the elements of the crime fit the definitions provided in 924(c)’s elements clause.

As the Ninth Circuit explains in Begay, they don’t.

What is 18 USC Section 924(c)?

924(c) provides for additional penalties when a person uses, carries, or possesses a firearm during a crime of violence. It defines a crime of violence 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.

Subsection (A) has been called the “elements clause,” because it requires an analysis of a crime’s elements to determine whether the crime qualifies.

Subsection (B) is called the “residual clause,” kind of a catch-all intended to cover, well, violent crimes that don’t require the use of violence? The US Supreme Court has found that subsection (B) is unconstitutionally vague and cannot be enforced.

Is Murder a Crime of Violence Under the Elements Clause?

Under 924(c)’s elements clause, a “crime of violence” is defined as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

It sounds like murder would qualify… But the US Supreme Court has also held that a crime of violence as defined in 924(c) requires purposeful, or intentional, conduct:

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.

Does Murder Require Intentional Conduct?

Doesn’t murder require intentional conduct? You would think so, but…

One necessary element of second-degree murder is “malice aforethought.” What is malice aforethought?

“[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.”).

Second-degree murder could mean you intended to kill a person or to cause serious bodily injury (a purposeful act). But it could also mean that you had a “depraved heart,” which means “reckless indifference.” Reckless is not the same as intentional, which means that, at least in some cases, second-degree murder does not have to be an intentional act.

If I walk up to you, pull out a gun, and intentionally shoot you in the head, that could be second-degree murder. But, if I play a game of Russian roulette, with no intention of hurting anyone, that could also be second-degree murder although there is no intent to kill:

“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 . . . .” PinedaDoval, 614 F.3d at 1039.

Similarly, a drive-by shooting is not necessarily an intentional act, and therefore the federal courts have found that it is not a crime of violence under the federal definition:

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.

Is Murder a Crime of Violence Under the Residual Clause?

Second-degree murder is not a crime of violence under 924(c)’s residual clause because, in U.S. v. Davis, the Supreme Court has already found that the residual clause is unconstitutionally vague and unenforceable.

What is the Categorical Approach to 924(c)?

But, if a person intentionally kills someone under the facts of a particular case, shouldn’t that qualify as an intentional act for purposes of 924(c)?

It doesn’t, because the courts use a “categorical approach” to defining crimes of violence:

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).

Under the categorical approach, the facts of any individual case do not matter. What matters is the elements that must be proven under the statute – if the conduct prohibited by the statute’s elements includes conduct that is not intentional, then it is not a crime of violence under 924(c):

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.

One element of second-degree murder is malice aforethought, which could be defined as reckless conduct, not intentional, therefore second-degree murder is not a crime of violence regardless of the facts of an individual case.

What is the Modified Categorical Approach to 924(c)?

Under the “modified categorical approach,” the Court could have considered only the portion of the statute that was the basis of the defendant’s conviction. They did not, because the government didn’t argue for use of the modified categorical approach:

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).

So – believe it or not, murder is not a crime of violence…

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.