Thomas Joseph Brewer v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 22-3452
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Thomas Joseph Brewer,
lllllllllllllllllllllPlaintiff - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: October 17, 2023
Filed: January 10, 2024
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Before SMITH, Chief Judge, LOKEN and COLLOTON, Circuit Judges.
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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

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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.
1The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
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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. Borden did not address whether
an offense committed with depraved heart or extreme recklessness has as an element
the use of force against the person of another. See Borden, 141 S. Ct. at 1825 n.4
(plurality opinion). On that basis, the district court concluded that McCoy is still
binding precedent. Brewer responds that even if Borden did not address the issue, the
decision undermined the reasoning of McCoy. McCoy reasoned that depraved heart
recklessness was a sufficient mens rea because this court had ruled in United States
v. Fogg, 836 F.3d 951 (8th Cir. 2016), that a lesser mens rea of ordinary recklessness
was sufficient. Brewer argues that because Borden abrogated Fogg, it is an open
question after Borden whether McCoy’s conclusion about voluntary manslaughter
was correct.
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Assuming for the sake of analysis that we should address the question anew,
we reaffirm after Borden that voluntary manslaughter has as an element the use of
force against the person of another. This court held in Janis v. United States, 73 F.4th
628 (8th Cir. 2023), that second-degree murder is a crime of violence. In reaching
that decision, we concluded that a mens rea of “depraved heart” or “extreme
recklessness” is sufficient to establish a use of force against the person of another.
Id. at 632-33. Extreme recklessness falls between knowledge and ordinary
recklessness on a spectrum of mental states; it requires that a perpetrator act with
extreme disregard for human life. Serawop, 410 F.3d at 666. Extreme recklessness
in a criminal case “is considered a form of intentional conduct because it ‘includes
an element of deliberateness—a conscious acceptance of a known, serious risk.’” Id.
at 663 n.4 (quoting Archuleta v. McShan, 897 F.2d 495, 499 (10th Cir. 1990)); cf.
Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir. 1966) (“Voluntary
manslaughter is an unlawful, intentional killing committed without malice
aforethought, while in a sudden heat of passion due to adequate provocation.”).
In considering whether an offender convicted of second-degree murder
necessarily uses force against another, Janis deemed it sufficient after Borden that
extreme recklessness approaches the definition of knowledge: “Because the risk from
extreme-reckless conduct is so high, the harmful result nears ‘practical certainty’ that
force will be applied to another person.” 73 F.4th at 634. Other circuits likewise
have concluded that a mens rea of depraved heart or extreme recklessness is
sufficient to establish a use of force against another. United States v. Begay, 33 F.4th
1081, 1094 (9th Cir. 2022) (en banc); United States v. Manley, 52 F.4th 143, 150-51
(4th Cir. 2022); United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022).
Although these decisions involved murder rather than manslaughter, the distinction
is immaterial: “voluntary manslaughter functions more like a partial defense to
murder, describing conduct undertaken intentionally but in the ‘heat of passion.’”
United States v. Steward, 880 F.3d 983, 987 (8th Cir. 2018). The offense of
voluntary manslaughter may reflect mitigation due to heat of passion, but it requires
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the same heightened mens rea that applies in a case of second-degree murder. Accord
United States v. Draper, 84 F.4th 797, 800 (9th Cir. 2023).
Brewer also invokes a decision of this court, United States v. Lung’aho, 72
F.4th 845 (8th Cir. 2023), holding that arson under 18 U.S.C. § 844(f)(1) is not a
crime of violence. Lung’aho construed the element of acting “maliciously” to mean
that an arsonist could be convicted based on a “willful disregard of a likelihood of
harm.” Id. at 848-49. This mens rea was held insufficient to show a use of physical
force against the property of another. Id. at 851. In Janis, however, this court
concluded that second-degree murder, if committed with a mental state of depraved
heart or extreme recklessness, requires “more risk and culpability” than arson. 73
F.4th at 632 (quoting Lung’aho, 72 F.4th at 850). Hence, on a “sliding scale of
probabilities,” id. at 634 (quoting Lung’aho, 72 F.4th at 849), this court’s decisions
place extreme recklessness and offenses like murder and voluntary manslaughter
further along the culpability spectrum than “willful disregard of a likelihood of harm”
and the offense of arson. Janis, not Lung’aho, is the apposite precedent here.2
The judgment of the district court is affirmed.
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2Citing United States v. Flute, 929 F.3d 584 (8th Cir. 2019), Brewer argues that
a pregnant woman who uses deadly force against an unborn child could be convicted
of voluntary manslaughter without using force against the person of another. If the
voluntary manslaughter statute were to reach that far, cf. Janis, 73 F.4th at 636, then
the victim would be a child born alive. We are aware of no authority suggesting that
a defendant could be convicted of voluntary manslaughter in that situation without
using force against the born-alive child who dies, even if a culpable act were taken
before the time of birth. Cf. United States v. Castleman, 572 U.S. 157, 171 (2014).
We again reject the argument. See McCoy, 960 F.3d at 490.
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