United States v. Begay, No. 14-10080 (9th Cir. 2019)Annotate this Case
Defendant appealed his conviction and sentence for second degree murder and discharging a firearm during a crime of violence. The Ninth Circuit affirmed the murder conviction and held that the district 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 also held that, because second degree murder can be committed recklessly, rather than intentionally, it does not categorically constitute a crime of violence under the elements clause. Likewise, second degree murder cannot constitute a crime of violence under the unconstitutionally vague residual clause. Therefore, the panel reversed defendant's conviction for discharging a firearm. Finally, the panel held that the district court plainly erred by imposing mandatory restitution under 18 U.S.C. 3663A, because second degree murder is not categorically a crime of violence.