UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-15104

Plaintiff-Appellee, D.C. Nos. 3:16-cv-00748- v. RCJ 3:12-cr-00004- DANIEL JAMES DRAPER, RCJ-VPC-1

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Argued and Submitted December 5, 2022 San Francisco, California

Filed October 17, 2023

Before: Jacqueline H. Nguyen and Jennifer Sung, Circuit Judges, and Joseph F. Bataillon, * District Judge.

Opinion by Judge Nguyen

* The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. 2 USA V. DRAPER

SUMMARY **

28 U.S.C. § 2255

The panel affirmed the district court’s denial of Daniel Draper’s motion under 28 U.S.C. § 2255 in which he argued that his conviction under 18 U.S.C. § 924(c) for using a firearm during a crime of violence and its mandatory consecutive sentence should be vacated because his predicate crime, voluntary manslaughter, does not qualify as a crime of violence. Applying United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc) (which held that depraved heart murder necessarily entails the force required to qualify as a crime of violence under § 924(c)’s elements clause, 18 U.S.C. § 924(c)(3)(A)), the panel held that voluntary manslaughter is a crime of violence under § 924(c). The panel wrote that for purposes of § 924(c), voluntary manslaughter has the same mental state as murder—intent to commit a violent act against another or recklessness with extreme indifference to human life. Like murder, voluntary manslaughter requires at least an “extreme and necessarily oppositional” state of mind. The panel held that the district court therefore properly denied Draper’s § 2255 motion.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. DRAPER 3

COUNSEL Wendi L. Overmyer (argued) and Amy B. Cleary, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Federal Public Defender’s Office, Las Vegas, Nevada; for Defendant-Appellant. Adam M. Flake (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Jason M. Frierson, United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; Robert L. Ellman and William R. Reed, Assistant United States Attorneys, United States Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.

OPINION NGUYEN, Circuit Judge:

Daniel Draper shot and killed Linford Dick. A jury convicted him of voluntary manslaughter, a violation of 18 U.S.C. § 1112, and using a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c). Draper appeals the district court’s denial of his motion under 28 U.S.C. § 2255. He argues that his § 924(c) conviction and its mandatory 15-year consecutive sentence should be vacated because his predicate crime, voluntary manslaughter, does not qualify as a crime of violence. Whether homicide is inherently a violent crime might seem like a straightforward question, but the answer depends on both the definition of violent crime and the type of homicide at issue. The statute we consider here, 18 U.S.C. 4 USA V. DRAPER

§ 924(c)(1)(A), enhances the sentence of a person who uses or possesses a firearm while committing a cri