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United States v. Benally

United States Court of Appeals, Ninth Circuit

August 1, 2016

United States of America, Plaintiff-Appellee,
v.
Joe Arviso Benally, Defendant-Appellant.

          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 In a separate unpublished memorandum disposition, we address Benally's challenge to the trial proceedings and sentence.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 ...


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