United States District Court, D. Nevada
C. JONES United States District Judge.
jury indicted Defendant Daniel Draper of murder under 18
U.S.C. § 1111 and use of a firearm during a crime of
violence causing death under §§ 924(c)(1)(A) and
924(j). (See Superseding Indictment, ECF No. 51). A
jury convicted Defendant of the lesser included offense of
voluntary manslaughter under § 1112 and the § 924
offense, and the Court sentenced him to 180 months
imprisonment on each count, to be served consecutively.
(See J. 1-2, ECF No. 114). The Court of Appeals
affirmed. The Court denied a habeas corpus motion under 28
U.S.C. § 2255, and both this Court and the Court of
Appeals denied a certificate of appealability.
has received leave from the Court of Appeals to file a
successive habeas corpus motion. Defendant's motion is
based on Johnson v. United States, 135 S.Ct. 2551
(2015) (Johnson II). Defendant argues the voluntary
manslaughter conviction forming the basis for his conviction
under § 924 was not a “crime of violence”
under 18 U.S.C. § 924(c)(3) because the residual clause
defining “crime of violence” is similar to the
residual clause of § 924(e)(2), which the Supreme Court
has struck down as unconstitutionally vague. See Johnson
II, 135 S.Ct. at 2563. The definition of “crime of
violence” applied to Defendant reads as follows, with
the allegedly unconstitutionally vague residual clause
(3) For purposes of this subsection the term “crime of
violence” means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3)(A)-(B) (emphasis added). The
definition of “violent felony” at issue in
Johnson reads as follows, with the
unconstitutionally vague residual clause emphasized:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another
Id. § 924(e)(2)(B)(i)-(ii) (emphasis added).
The language of the two clauses is not identical, but even
assuming for the sake of argument that the difference in
language is not enough to rescue § 924(c)(3)(B) from
constitutional infirmity, Johnson II is no aid to
Defendant, because the physical-force clause of §
924(c)(3)(A) applies here.
under § 1112 “has as an element the use, attempted
use, or threatened use of physical force against the person
of another, ” id. § 924(c)(3)(A), because
it requires an “unlawful killing, ” §
1112(a). The Supreme Court has ruled that the “physical
force” required is “physical force capable of
causing physical pain or injury to another person.”
Johnson v. United States (Johnson
I), 559 U.S. 133, 138 (2010) (interpreting the analogous
physical force clause under § 924(e)(2)(B)(i)).
Johnson I does not prevent a homicide crime from
being a categorical crime of violence under the physical
force clause, because it is not possible to kill a person
without exerting “physical force capable of causing
physical pain or injury.” If the force required for a
conviction of manslaughter must necessarily cause death, it
must also necessarily be capable of causing injury.
Congress has explicitly included “manslaughter other
than involuntary manslaughter (as described in section
1112)” under the definition of “serious violent
felony” for the purposes of the three-strikes rule for
mandatory life imprisonment. See 18 U.S.C. §
3559(c)(2)(F)(i). The unavoidable conclusion is that Congress
intended to include voluntary manslaughter under the
definitions of “crime of violence” and
“violent felony, ” as well. Indeed, voluntary
manslaughter is viewed by Congress not only as
“violent, ” but “serious[ly]” so. It
is difficult to conceive how Congress could have explicitly
categorized voluntary manslaughter under § 1112 as a
“serious violent felony” helping to support a
mandatory life sentence while not intending it to qualify as
a “crime of violence” so as to support a
relatively minor sentencing enhancement.
under the physical force clause must also be intentional, not
merely negligent or reckless. Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).
Although the Court of Appeals has noted that a defendant
might be convicted for voluntary manslaughter under §
1112 without an intent to kill, i.e., where he kills
recklessly but upon passion instead of malice, see United
States v. Paul, 37 F.3d 496, 499 n.1 (9th Cir. 1994),
another panel previously noted that a conviction for
voluntary manslaughter under § 1112 as a lesser included
offense of murder under § 1111, as here, requires proof
of at least an intentional injury even if there is no intent
to kill, see United States v. Quintero, 21 F.3d 885,
890 (9th Cir. 1994) (“To convict a defendant charged
with murder of voluntary manslaughter, the government must
prove that (1) the defendant intentionally inflicted an
injury upon another from which the other died; and (2)
the homicide was committed without justification or
excuse.” (emphasis added)).
murder defendant becomes entitled to an instruction on the
lesser included offense of voluntary manslaughter if he
produces evidence “that the defendant was acting out of
passion rather than malice.” United States v.
Begay, 673 F.3d 1038, 1045 (9th Cir. 2011) (quoting
id.). Another post-Paul panel has noted
that passion and malice both imply the mental state of
intent. See Kleeman v. U.S. Parole Comm'n, 125
F.3d 725, 731 (9th Cir. 1997) (citing Paul, 37 F.3d
at 499) (“If a defendant kills with the mental
state required for murder, but does so in the
‘heat of passion' caused by adequate provocation,
then the defendant is guilty of voluntary
manslaughter.” (emphasis added)). “Intent
without malice, not the heat of passion, is the defining
characteristic of voluntary manslaughter.” Id.
(quoting Quintero, 21 F.3d at 890) (emphasis added).
And it is not even clear that the Paul panel's
statement that voluntary manslaughter can be committed via
mere recklessness as to the result of death is correct.
See Wakaksan v. United States, 367 F.3d 639, 645
(8th Cir. 1966) ...