United States v. Begay, 14-10080

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHRISTEN, Circuit Judge
• Citation: 33 F.4th 1081
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randly Irvin BEGAY, aka Randly Begay, Defendant-Appellant.
• Docket Number: 14-10080
• Decision Date: 05 May 2022

33 F.4th 1081

UNITED STATES of America, Plaintiff-Appellee,

v.Randly Irvin BEGAY, aka Randly Begay, Defendant-Appellant.

No. 14-10080

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 24, 2022 Pasadena, California

Filed May 5, 2022

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.

Krissa M. Lanham (argued) and Karla Hotis Delord, Assistant United States Attorneys; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

Mitchell Keiter, Keiter Appellate Law, Beverly Hills, California, for Amicus Curiae Amicus Populi.

Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson, Richard R. Clifton, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen, Mark J. Bennett, Eric D. Miller and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Christen

; Concurrence by Chief Judge Murguia ; Dissent by Judge Wardlaw ; Dissent by Judge Ikuta

OPINION

CHRISTEN, Circuit Judge:

Randly Irvin Begay appeals his federal convictions for second-degree murder in violation of 18 U.S.C. §§ 1111(a) and 1153, and for discharging a firearm during a "crime of violence" in violation of 18 U.S.C. § 924(c). Begay also appeals the district court's restitution award. Begay raises three primary arguments. First, he argues the district court erred because it failed to instruct the jury that to convict Begay of second-degree murder, the government bore the burden of proving beyond a reasonable doubt that he did not act in the heat of passion or "upon a sudden quarrel." Second, Begay urges us to reverse his § 924(c) conviction because second-degree murder, he argues, can be committed recklessly and therefore does not constitute a crime of violence. Last, Begay argues the district court's restitution award was plainly erroneous.

A divided three-judge panel of our court agreed with Begay's second argument and held that second-degree murder does not qualify as a crime of violence for purposes of 18 U.S.C. § 924(c). See United States v. Begay , 934 F.3d 1033, 1038 (9th Cir. 2019). The government petitioned for panel rehearing, but we held that petition in abeyance because ongoing en banc proceedings in United States v. Orona , 923 F.3d 1197 (9th Cir. 2019), asked whether an offense committed with ordinary recklessness qualifies as a violent felony under the Armed Career Criminal Act (ACCA), id. at 1199 ; see also United States v. Orona , 942 F.3d 1159 (9th Cir. 2019). The Orona appeal was ultimately dismissed because the petitioner passed away, see United States v. Orona , 987 F.3d 892, 893 (9th Cir. 2021), but while Orona was still pending, the Supreme Court granted certiorari in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), to address "whether a criminal offense can count as a ‘violent felony’ [under the ACCA] if it requires only a mens rea of recklessness," id. at 1821. The issue in Borden is closely related to the one presented in Begay's case, so we continued to hold the government's petition in abeyance.

Ultimately, the Supreme Court's decision in Borden stopped short of deciding whether offenses that may be committed with mental states between ordinary recklessness and knowledge (such as "depraved heart" and "extreme recklessness") qualify as crimes of violence, id. at 1825 n.4, but a majority of the nonrecused active judges of our court voted to rehear Begay's case en banc after Borden was decided. Now, having considered the parties' supplemental briefs and argument, we hold that second-degree murder qualifies as a crime of violence pursuant to § 924(c)(3)(A). We affirm Begay's convictions, but vacate and remand the district court's restitution order.

I

On the morning of March 4, 2013, Begay, Meghan Williams (Begay's girlfriend), Roderick Ben, and Lionel Begay (Begay's nephew) sat in a van parked outside Begay's parents' home on the Navajo Nation Indian Reservation in Tuba City, Arizona. Ben was in the driver's seat, Lionel was in the front passenger seat, and Williams and Begay were sitting behind the driver's and passenger's seats, respectively. All four of the van's occupants had been drinking alcohol and smoking methamphetamine for several hours. Williams and Begay got into an argument about her alleged infidelities, and Begay accused her of cheating on him with Ben. Lionel later testified that this type of argument was "pretty normal" for Williams and Begay. According to Williams's testimony, Begay said he "was tired of everybody calling him and thinking that he was a bitch for being with [her]."

Williams testified that at some point during the argument, Begay pulled a gun out of his pocket and placed it on his right leg. Williams told the jury that Begay said he was "not going to be a bitch no more," and she saw Begay pick up the gun. Williams testified that she put her head down, "curled up," and then she heard a gunshot. When Williams looked up, she saw that Ben had been shot in the head. Law enforcement officers later found a shell casing on the floor between the two front seats of the van, but they never found the gun used in the shooting.¹

A federal grand jury indicted Begay on one count of second-degree murder (Count 1) and one count of discharging a firearm during a crime of violence (Count 2). At trial, the parties jointly submitted jury instructions for second-degree murder. Begay's attorney did not object to the instructions as presented nor request a voluntary manslaughter instruction. The district court instructed the jurors that to find Begay guilty on Count 2, the government bore the burden to prove beyond a reasonable doubt that Begay "committed the crime of murder in the second degree as charged in Count 1 of the indictment, which I instruct you is a crime of violence."

Begay's theory at trial was that someone else in the van shot Ben, but during his closing argument, defense counsel also briefly argued that the government had not proved the element of malice aforethought because there was no evidence that Begay had deliberated or acted with extreme disregard for human life. The government's theory was that Begay shot Ben, and the government argued that the evidence "fully corroborated" Williams's version of the events and disproved Begay's "stories." In addition to Williams's testimony describing what happened in the van, the government presented testimony from the medical examiner who performed an autopsy on Ben's body. He testified that the trajectory of the gunshot suggested a bullet entered Ben's skull on the right side above his ear and exited on the left. During its rebuttal, the government referred to Williams's and Lionel's testimony that Begay and Williams were arguing before Ben was shot.

The jury convicted Begay on both counts, and the district court sentenced him to 204 months on Count 1 and 120 months on Count 2 to be served consecutively.² The district court also imposed $23,622 in mandatory restitution pursuant to 18 U.S.C. § 3663A. Begay appeals both convictions and the restitution award.

II

Generally, "[w]e review de novo whether a criminal conviction is a ‘crime of violence’ and whether a jury instruction misstated the elements of an offense." United States v. Benally , 843 F.3d 350, 353 (9th Cir. 2016). But where a defendant makes an argument for the first time on appeal that was not the basis of an objection in the trial court, we review for plain error. United States v. Cuevas-Lopez , 934 F.3d 1056, 1060 (9th Cir. 2019) ; see also Fed. R. Crim. P. 52(b). "Plain error requires an (1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Smith , 282 F.3d 758, 765 (9th Cir. 2002) (citing Johnson v. United States , 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ). We have discretion to notice a plain error if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

III

Because this shooting took place on the Navajo Nation Indian Reservation, it occurred within "Indian country" for the purposes of the Major Crimes Act. See 18 U.S.C. §§ 1151, 1153 ; see also Benally , 843 F.3d at 352. "An ‘Indian’ who commits murder ... in ‘Indian country’ is subject to applicable federal criminal laws." Id. (citing § 1153(a) ). Though the Act does not define the term "Indian," "[t]he generally accepted test for Indian status considers (1) the degree of Indian blood; and (2) tribal or government recognition as an Indian." United States v. Bruce , 394 F.3d 1215, 1223 (9th Cir. 2005) (internal quotation marks omitted) (quoting United States v. Keys , 103 F.3d 758, 761 (9th Cir. 1996) ). Here, the parties stipulated that Begay "has descendant status as an Indian, such as being a blood relative to a parent, grandparent, or great-grandparent who is clearly identified as an Indian from a federally recognized tribe." We have jurisdiction pursuant to 28 U.S.C. § 1291.

IV

Begay challenges his second-degree murder conviction based on the district court's jury instructions for the first time on appeal. He argues that because he made a showing at trial of "sudden quarrel or heat of passion," the district court erred by failing to instruct the jury that the government bore the burden of proving beyond a reasonable doubt that Begay did not act upon a sudden quarrel or in the heat of passion. Begay argues that the government bears the burden of proving each element of the charged offense, and a rational jury could have found reasonable doubt about whether he acted out of passion rather than malice. Begay observes that even the government argued he acted "out of rage and passion during a heated argument about infidelity." We review for plain error because Begay did not raise this argument in the district court. See Cuevas-Lopez , 934 F.3d at 1060.

"A defendant is entitled to an instruction upon his theory of ...