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United States v. Begay

United States Court of Appeals, Ninth Circuit

August 19, 2019

United States of America, Plaintiff-Appellee,
v.
Randly Irvin Begay, AKA Randly Begay, Defendant-Appellant.

          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

          Appeal from the United States District Court for the District of Arizona No. 3:13-cr-08073-NVW-1 Neil V. Wake, District Judge, Presiding

          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.

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

          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 § 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.

          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.

         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.

         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 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 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 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 ...


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