Argued
and Submitted April 11, 2016 San Francisco, California
Appeal
from the United States District Court No. 3:13-cr-08095-GMS-1
for the District of Arizona G. Murray Snow, District Judge,
Presiding
Daniel
L. Kaplan (argued), Assistant Federal Public Defender; Jon M.
Sands, Federal Public Defender; Office of the Federal Public
Defender, Phoenix, Arizona; for Defendant-Appellant.
Karla
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.
SUMMARY
[*]
Criminal
Law
Reversing
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
approach.
The
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.
OPINION
NOONAN, Circuit Judge.
Joe
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unpublished memorandum disposition, we address Benally's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.
FACTS
AND PROCEEDINGS
On
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
violence."
At
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 ...