Sunday, August 25, 2019

Case o' The Week: Ninth Very Intentional, on Recklessness - Begay, Recklessness, and Crimes of Violence

  No “crazy pills” were ingested in the writing of this opinion.

The Hon. Judge D.W. Nelson

United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), decision available here.

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. 
  Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18 USC §§ 1111 and 1153. Id. at *1.
  He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “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.’” Id.  

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] 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. . . . 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.” Id. at *3.
  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. Id. at *4. “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) . . . .” Id. at *6.

Of Note: Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting).

  In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as some sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id.
  Judge Smith’s dissent conspicuously baits the en banc hook. The Ninth shouldn't bite – the dissent doesn’t grapple with the reality of the controlling Ninth Circuit, en banc Fernandez-Ruiz decision, and fails to engage with the Majority’s (correct) reading of Voisine. While this outcome may stick in some craws, Begay’s legal analysis is spot on.   

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a “misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez-Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. 
  In a thoughtful and principled analysis, Judge D.W. Nelson carefully explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id.
  Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.
For Further Reading: Last week a (Latino) Tenderloin drug dealer was sentenced in federal court, in the Northern District of California. See N.D. Cal. USAO Press Release here. 
  A week or so before, the “Federal Initiative for the Tenderloin” (“FIT”) kicked off, with drug charges filed against nine (Latino) defendants in the Tenderloin. See N.D. Cal. USAO Press Release here. 
 Days before that, thirteen (Latino) defendants were charged in a drug trafficking conspiracy, for allegedly selling drugs in the Tenderloin. See N.D. Cal. USAO Press Release here. 

  Substitute “Latino defendant” for “black defendant,” and the USAO's new “FIT"-focus has some Safe Schools déjà vu, all over again. See “For Further Reading,” available here; and here.

Image of the Honorable Judge D.W. Nelson from
Image of “Tenderloin National Forest” from

Steven Kalar, Federal Public Defender ND Cal. Website at


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