No. 22-3452 ___________________________

Thomas Joseph Brewer,

lllllllllllllllllllllPlaintiff - Appellant,

v.

United States of America,

lllllllllllllllllllllRespondent - Appellee. ____________

Appeal from United States District Court for the District of South Dakota - Western ____________

Submitted: October 17, 2023 Filed: January 10, 2024 ____________ Before SMITH, Chief Judge, LOKEN and COLLOTON, Circuit Judges. ____________ COLLOTON, Circuit Judge.

Thomas Brewer appeals the denial of his motion to vacate sentence under 28 U.S.C. § 2255. Brewer disputes the lawfulness of his 10-year prison sentence for discharging a firearm during and in relation to a crime of violence. See 18 U.S.C. § 924(c)(1)(A)(iii). Brewer shot and killed a man during a quarrel. He was convicted of voluntary manslaughter under 18 U.S.C. § 1112, but he maintains that the firearms conviction is invalid because voluntary manslaughter is not a “crime of violence.” We reject that contention and affirm the judgment.

Brewer pleaded guilty in 2017 to voluntary manslaughter, see id. §§ 1112, 1153, and to discharge of a firearm during and in relation to a crime of violence, see id. § 924(c)(1)(A)(iii). The district court sentenced him to consecutive terms of 97 months’ and 120 months’ imprisonment, respectively.

In 2020, Brewer moved to vacate his sentence on the firearms offense. He argued that voluntary manslaughter no longer qualifies as a “crime of violence” under § 924(c).

[T]he 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 or property 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. Id. § 924(c)(3). The district court1 denied the motion, relying on McCoy v. United States, 960 F.3d 487, 490 (8th Cir. 2020).

Manslaughter is “the unlawful killing of a human being without malice.” 18 U.S.C. § 1112(a). Voluntary manslaughter means a manslaughter committed “[u]pon a sudden quarrel or heat of passion.” Id.

1 The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota.

-2- Brewer’s argument proceeds in two steps. First, he observes that the Supreme Court declared unconstitutional the residual clause of § 924(c)(3)(B), so voluntary manslaughter cannot be a crime of violence under that provision. See United States v. Davis, 139 S. Ct. 2319 (2019). Second, he maintains in light of Borden v. United States, 141 S. Ct. 1817 (2021), that voluntary manslaughter does not have as an element the use of physical force against the person of another as required by § 924(c)(3)(A). Borden held that an offense with a mens rea of ordinary recklessness does not meet the use-of-force criteria.

Voluntary manslaughter, however, requires more than ordinary recklessness; the government must prove that a defendant acted with “a general intent to kill, intent to do serious bodily injury, or with depraved heart recklessness.” McCoy, 960 F.3d at 489 (quoting United States v. Serawop, 410 F.3d 656, 666 (10th Cir. 2005)). Before Borden, our decision in McCoy held that the mens rea of depraved heart recklessness is sufficient, and that voluntary manslaughter is a crime of violence under § 924(c)(3)(A).

Brewer argues that Borden supersedes McCoy.