and Submitted April 11, 2016 San Francisco, California
from the United States District Court No. 3:13-cr-08095-GMS-1
for the District of Arizona G. Murray Snow, District Judge,
L. Kaplan (argued), Assistant Federal Public Defender; Jon M.
Sands, Federal Public Defender; Office of the Federal Public
Defender, Phoenix, Arizona; for Defendant-Appellant.
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.
Before: Dorothy W. Nelson, John T. Noonan, and Diarmuid F.
O'Scannlain, Circuit Judges.
a conviction for using a firearm in connection with a
"crime of violence" under 18 U.S.C. § 924(c),
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
panel explained that after 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) (taking up the question of reckless
conduct under § 16(a)), a "crime of violence"
requires a mental state higher than recklessness-it requires
intentional conduct. The panel wrote that United States
v. Springfield, 829 F.2d 860 (9th Cir. 1987) (holding
that involuntary manslaughter under § 1112 is a
"crime of violence" for purposes of §
924(c)(3)), is clearly irreconcilable with the reasoning and
results of Leocal and Fernandez-Ruiz and is
no longer good law.
NOONAN, Circuit Judge.
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unpublished memorandum disposition, we address Benally's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 that involuntary manslaughter is not a
"crime of violence" and reverse the § 924(c)
count of conviction.
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
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 ...