Tiffany Janis v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 22-2471
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Tiffany Janis
Petitioner - Appellant
v.
United States of America
Respondent - Appellee
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: May 10, 2023
Filed: July 14, 2023
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Tiffany Charlene Janis appeals her conviction for discharging a firearm during
a crime of violence. See 18 USC § 924(c)(1)(A)(iii). Having jurisdiction under 28
U.S.C. § 1291 and § 2253, this court affirms.

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I.
Janis shot and killed her husband when she found him cheating. She pled
guilty to second-degree murder in Indian country. See 18 U.S.C. §§ 1111(a), 1153.
She also pled guilty to discharging a firearm during the commission of a crime of
violence. See 18 U.S.C. § 924(c)(1)(A)(iii).
A year later, Janis moved to vacate her § 924(c) conviction, believing that
intervening Supreme Court cases rendered it unlawful. See 28 U.S.C. § 2255.
Specifically, she argued that federal second-degree murder could not be considered
a “crime of violence” under § 924(c)(3)(A). The district court1 dismissed her
motion. She appeals.
II.
This court reviews de novo whether second-degree murder qualifies as a
“crime of violence.” McCoy v. United States, 960 F.3d 487, 489 (8th Cir. 2020).
A.
Janis pled guilty to discharging a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). Like other laws,2 § 924(c) defines “crime of
violence” using a “force clause” (also called an “elements clause”) and a “residual
clause”:
[T]he term “crime of violence” means an offense that is a
felony and—
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
2 See, for example, the Armed Career Criminal Act, 18 U.S.C. § 924(e); the
criminal code’s general provisions at 18 U.S.C. § 16; and U.S. Sentencing
Guidelines §§ 4B1.1, 4B1.2, and 2K2.1.

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[Force Clause] (A) has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
[Residual Clause] (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) (alterations added).
When Janis pled guilty under § 924(c), federal second-degree murder might
have qualified as a “crime of violence” under either the force or the residual
clause. The Supreme Court changed the landscape by invalidating the residual
clause as unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319, 2336
(2019). See also Jones v. United States, 39 F.4th 523, 526 (8th Cir. 2022) (“Davis
applies retroactively to cases on collateral review.”). Today, Janis’s murder
conviction must satisfy the force clause to qualify as a crime of violence.
See McCoy, 960 F.39 at 489.
To decide whether second-degree murder qualifies as a crime of violence
under the force clause, this court applies the categorical approach described in
United States v. Taylor, 142 S.Ct. 2015, 2020 (2022). Accord McCoy, 960 F.39 at
489. This approach compares the elements of second-degree murder with the force
clause’s requirements. Taylor, 142 S.Ct. at 2020. “The only relevant question is
whether the federal felony at issue always requires the government to prove—
beyond a reasonable doubt, as an element of its case—the use, attempted use, or
threatened use of force” against the person or property of another. Id. See 18 U.S.C.
§ 924(c)(3)(A) (force must be used, attempted, or threatened “against the person or
property of another”).
Federal murder requires proof beyond a reasonable doubt that the defendant
committed an “unlawful killing of a human being with malice aforethought.” 18

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U.S.C. § 1111(a). The statute lists the killings that qualify as first-degree murder.3
“Any other murder is murder in the second degree.” Id. Second-degree murder thus
has two elements: (1) unlawful killing of a human being; with (2) malice
aforethought. See United States v. Iron Crow, 970 F.3d 1003, 1009 (8th Cir. 2020).
The categorical approach asks whether those elements always satisfy § 924(c).
Recently, analyzing near-identical statutory language in the Armed Career
Criminal Act, the Supreme Court showed how to interpret 924(c)’s force clause. See
Borden v. United States, 141 S.Ct. 1817, 1825–28 (2021) (plurality opinion); see
also id. at 1834 (Thomas, J., concurring in the judgment). The plurality analyzed
the clause’s text, which defines violent felonies as those involving the “use of
physical force against the person of another.” 18 U.S.C. § 924(e). It held that the
direct object—“use of force against the person of another”—introduces a
“conscious object” that force is “consciously directed” against. Borden, 141 S.Ct.
at 1825, 26 (emphasis added), distinguishing Voisine v. United States, 579 U.S. 686,
691–93 (2016) (holding that the phrase “use of force,” standing alone, encompasses
crimes committed with ordinary recklessness). A concurrence in the judgment
concluded that the word “use” applies “only to intentional acts designed to cause
harm.” Borden, 141 S.Ct. at 1835 (Thomas, J., concurring in the judgment).
3 The statute says:
Every murder perpetrated by poison, lying in wait, or any
other kind of willful, deliberate, malicious, and
premeditated killing; or committed in the perpetration of,
or attempt to perpetrate, any arson, escape, murder,
kidnapping, treason, espionage, sabotage, aggravated
sexual abuse or sexual abuse, child abuse, burglary, or
robbery; or perpetrated as part of a pattern or practice of
assault or torture against a child or children; or perpetrated
from a premeditated design unlawfully and maliciously to
effect the death of any human being other than him who is
killed, is murder in the first degree.
18 U.S.C. § 1111(a).

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The Court concluded that the force clause excluded crimes capable of being
committed with a mens rea of ordinary recklessness. Someone recklessly
committing a crime, the plurality said, merely “pay[s] insufficient attention to the
potential application of force.” Id. at 1827. “[B]ecause his conduct is not opposed
to or directed at another . . . [he] has not used force ‘against’ another person in the
targeted way that [the force] clause requires.” Id.
Borden does not resolve Janis’s case—second-degree murder cannot be
committed with ordinary recklessness. See United States v. Johnson, 879 F.2d 331,
334 (8th Cir. 1989). See also United States v. Larry, 51 F.4th 290, 292 (8th Cir.
2022) (“Borden holds only that the force clause categorically excludes offenses that
can be committed recklessly.”). Second-degree murder requires malice
aforethought, a heightened mens rea. See Johnson, 879 F.2d at 334; Stevenson v.
United States, 162 U.S. 313, 320 (1896) (“Malice in connection with the crime of
killing is but another name for a certain condition of a man’s heart or mind.”); United
States v. Smith, 18 U.S. (5 Wheat.) 153, 160 (1820) (“In respect to murder, . . .
‘malice aforethought’ is of the essence of the offence . . . .”). Nonetheless, Borden’s
analysis of the statutory phrase “against the person of another” is instructive. See
United States v. Frazier, 48 F.4th 884, 886 (8th Cir. 2022) (applying Borden’s
analytical approach).
B.
Janis argues that killing a person “with malice aforethought” can be done
without “us[ing] force against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). This court’s second-degree murder cases, she says, show that
“malice aforethought” can be established without a perpetrator “targeting” force in
the way that the force clause, as interpreted by the Borden plurality, requires.
Under the approach of the Borden plurality, § 924(c)’s force clause requires
directing or targeting force at another person or their property. See Borden, 141
S.Ct. at 1825 (“The phrase ‘against another,’ when modifying the ‘use of force,’

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demands that the perpetrator direct his action at, or target, another individual.”).
Federal second-degree murder will always clear this bar. Because it requires malice
aforethought, the crime always involves “consciously directed” force and thus
constitutes a “crime of violence” under §924(c)’s force clause.
The categorical approach compels this conclusion for malice aforethought.
Malice aforethought expresses the “universal and persistent” concept “that a
defendant must be ‘blameworthy in mind’ before he can be found guilty.” Elonis v.
United States, 575 U.S. 723, 734 (2015), quoting Morissette v. United States, 342
U.S. 246, 250, 252 (1952). But the concept is—and has long been— “elusive.”
Morissette, 342 U.S. at 252. See also Francis Wharton, A Treatise on the Law of
Homicide in the United States ch. 1, § 3 (1875) (Malice aforethought is
“distinctive[,] inconclusive,” and requires “peculiar exposition and limitation”),
cited by Allen v. United States, 164 U.S. 492, 495 (1896), and Schad v. Arizona,
501 U.S. 624, 648 (1991) (Scalia, concurring in part and concurring in the
judgment).
Malice aforethought’s definition may be elusive, but its function is not:
“malice aforethought”—a murder-specific term appearing only once in the entire
United States Code (18 U.S.C. § 1111, “Murder”)—distinguishes between more and
less culpable killings. Historically, it “focus[ed] on mental state in order to
distinguish those who deserved death from those who . . . would be spared.” Tison
v. Arizona, 481 U.S. 137, 156 (1987). As governments began deciding that not all
murders warranted execution, they retained “malice aforethought” to distinguish
murder from manslaughter. Mullaney v. Wilbur, 421 U.S. 684, 693 (1975). This
distinction has deep roots. See 4 W. Blackstone, Commentaries on the Laws of
England 191, 198–201 (1769); Stevenson, 162 U.S. at 320 (“The presence or
absence of this malice or mental condition marks the boundary which separates the
two crimes of murder and manslaughter.”). The federal murder statute continues the
tradition of using “malice aforethought” to distinguish murder from manslaughter;
the more-culpable homicide from the less-culpable one. Compare 18 U.S.C. §

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1111(b) (authorizing a life sentence for murder) with 18 U.S.C. § 1112 (setting a 15-
year maximum for manslaughter, defined as an unlawful killing “without malice”).
This court defines “malice aforethought” as the “intent, at the time of a killing,
willfully to take the life of a human being, or an intent willfully to act in callous and
wanton disregard of the consequences to human life.” United States v. Comly, 998
F.3d 340, 343 (8th Cir. 2021) (emphasis added), quoting Eighth Circuit Manual of
Model Jury Instructions (Criminal) § 6.18.1111A-1 (2018). See United States v.
Cottier, 908 F.3d 1141, 1147 (8th Cir. 2018) (recognizing that this definition “tracks
circuit precedent verbatim”); Johnson, 879 F.2d at 334 (approving this definition).
Similar articulations go back hundreds of years. See United States v.
Lung’aho, --- F.4th ---, ---, No. 22-3268, 2023 WL 4359975, at *2 (8th Cir. July 6,
2023) (relying on hundreds of years of common law to define the term “malice” or
“maliciously”). For example, Maine law—described as “like that of other
jurisdictions,” Mullaney, 421 U.S. at 697—permitted inferring malice aforethought
only where a “deliberate, cruel act, [was] committed by one person against another”
without provocation, State v. Neal, 37 Me. 468, 470 (1854) (emphasis added). The
Model Penal Code’s definition also contains a direct object—it limits murder to
reckless conduct “manifesting extreme indifference to the value of human life.”
Model Penal Code § 210.2(1)(b) (emphasis added). Other circuits agree, too. See,
e.g., United States v. Hicks, 389 F.3d 514, 530 (5th Cir. 2004) (malice aforethought
involves “extreme recklessness and wanton disregard for human life” (emphasis
added)); United States v. Baez-Martinez, 950 F.3d 119, 127 (1st Cir. 2020) (“[W]hat
separates malice aforethought is the extreme indifference to the value of human life.”
(quotation omitted)); United States v. Pineda-Doval, 614 F.3d 1019, 1037 (9th Cir.
2010) (malice aforethought involves “callous and wanton disregard of human life”
and “extreme indifference to the value of human life.” (emphasis added)).
The history and definition of “malice aforethought” demonstrate that federal
second-degree murder satisfies § 924(c)’s force clause. The phrase “malice
aforethought” necessarily denotes the oppositional conduct that the force clause

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requires: “an intent willfully to act in callous and wanton disregard of the
consequences to human life.” Comly, 998 F.3d at 343, quoting Eighth Circuit
Model Jury Instruction (Crim.) § 6.18.1111A-1. This requires “more risk and
culpability” than the standard of “willful disregard of the likelihood” of harm.
Lung’aho, --- F.4th at ---, at *3 (holding that arson, in 18 U.S.C. § 844(f)(1), is not
a “crime of violence” because its mental state, “maliciously,” requires only a “willful
disregard of the likelihood” of damage to federally connected property). Second-
degree murder is thus a crime of violence.
C.
Janis suggests a narrower focus, based on the premise that “malice
aforethought” can be established by a “depraved heart” or “extreme recklessness.”
Such conduct, she argues, does not include the “targeted” or “directed” force that
the Borden plurality says is required for a crime of violence. Thus, she says, second-
degree murder cannot constitute a crime of violence.
Even if this court adopted Janis’s preferred approach,4 it would reach the same
result. Janis begins with the modern four-part categorization of mental states that
4 This court must focus on the least culpable conduct criminalized by the
murder statute. Frazier, 48 F.4th at 885. But extreme recklessness might not be the
right focus. Murder always requires malice aforethought—extreme recklessness is
not an alternative means of murdering, nor is it an alternative culpable mental state.
See Elonis v. United States, 575 U.S. 723, 734 (2015) (malice aforethought
describes a culpable mental state); Stevenson, 162 U.S. at 320. Extreme-
recklessness murders might not be conceptually distinct acts warranting
individualized analysis.
Even if they were, extreme-recklessness murders (where a killer has malice
aforethought) are not necessarily less culpable than intentional ones (where a killer
also has malice aforethought). The big division in culpability is not within malice-
aforethought homicides, but between homicides committed with malice
aforethought and those without. See Tison, 481 U.S. at 156; Mullaney, 421 U.S. at
693. In short, it is unclear whether subdividing malice aforethought and analyzing

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are, “in descending order of culpability: purpose, knowledge, recklessness, and
negligence.” Borden, 141 S.Ct. at 1823. Crimes committed purposely or knowingly
satisfy § 924(c)’s force clause; crimes capable of being committed recklessly or
negligently do not. Id. at 1826. But the Court reserved judgment on crimes
involving mental states—like extreme recklessness—between knowledge and
recklessness. Id. at 1825 n.4 (“Some States recognize mental states (often called
‘depraved heart’ or ‘extreme recklessness’) between recklessness and knowledge.
We have no occasion to address whether offenses with those mental states fall within
the elements clause.”).
Janis says that second-degree murder can be committed with extreme
recklessness, relying heavily on this court’s quotation of the D.C. Circuit’s statement
of malice aforethought: “Malice may be established by evidence of conduct which
is ‘reckless and wanton, and a gross deviation from a reasonable standard of care, of
such a nature that a jury is warranted in inferring that defendant was aware of a
serious risk of death or serious bodily harm.’” United States v. Black Elk, 579 F.2d
49, 51 (8th Cir. 1978) (per curiam), quoting United States v. Cox, 509 F.2d 390, 392
(D.C. Cir. 1974). That articulation is often repeated. See, e.g., Cottier, 908 F.3d at
1146; United States v. French, 719 F.3d 1002, 1008 (8th Cir. 2013).
The authorities underlying Black Elk show that malice aforethought requires
a “wanton disregard of human life, and a “defendant’s “awareness of a serious
danger to life.” See United States v. Dixon, 419 F.2d 288, 293 n.8 (D.C. Cir. 1969)
(Leventhal, J., concurring), cited in Cox, 509 F.2d at 392 n.1. For that reason, Black
Elk is consistent with this court’s precedent that highlights the high degree of risk to
it piecemeal is appropriate, or whether that represents improper “obsess[ion] with
hair-splitting distinctions, either traditional or novel, that Congress neither stated nor
implied when it made the conduct criminal.” United States v. Bailey, 444 U.S. 394,
407 (1980). See also id. at 406 (“[E]lement-by-element analysis is a useful tool for
making sense of an otherwise opaque concept, [but] it is not the only principle to be
considered.”).

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human life. See, e.g., Comly, 998 F.3d at 343 (Malice aforethought is the “intent, at
the time of a killing, willfully to take the life of a human being, or an intent willfully
to act in callous and wanton disregard of the consequences to human life.”). See
generally Johnson, 879 F.2d at 334 (approving the “callous and wanton” definition
and also citing the Black Elk quotation).
Black Elk’s context shows that the standard it articulates is close to knowledge
and far from ordinary recklessness. Black Elk contrasts its standard with “the
subjective intent to kill,” another term for purposefulness. Black Elk, 579 F.2d at
51. If malice aforethought is defined by highlighting its small differences from
purpose, it seems natural to locate it near the next most culpable mental state,
knowledge.
Extreme recklessness also approaches the definition of knowledge. An
individual acts knowingly “if he is aware that [a] result is practically certain to follow
from his conduct.” United States v. Bailey, 444 U.S. 394, 404 (1980) (quotations
omitted). Because the risk from extreme-reckless conduct is so high, the harmful
result nears “practical certainty” that force will be applied to another person. See
Baez-Martinez, 950 F.3d at 127 (“[T]he defendant who shoots a gun into a crowded
room has acted with malice aforethought precisely because there is a much higher
probability—a practical certainty—that injury to another will result. And the
defendant certainly must be aware that there are potential victims before he can act
with indifference toward them.”).
These considerations have led every other circuit considering the issue after
Borden to conclude that “malice aforethought” conduct satisfies § 924(c)’s force
clause. See Begay, 33 F.4th at 1093; United States v. Manley, 52 F.4th 143, 150
(4th Cir. 2022); Alvarado-Linares v. United States, 44 F.4th 1334, 1344 (11th Cir.
2022); United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022). This court
agrees.

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Faced with strong arguments and the emerging circuit consensus, Janis turns
to this court’s decision in United States v. Boose, 739 F.3d 1185 (8th Cir. 2014).
That case held that Arkansas first-degree battery could be committed with a mental
state of ordinary recklessness, despite an additional statutory requirement that a
defendant manifest “extreme indifference to the value of human life.” Id. at 1188.
Because Boose analyzed a different mens rea than that applicable to federal second-
degree murder, it does not require a result incongruous with the circuit consensus.
Finally, Janis spotlights reckless-driving crimes to argue that extreme-
recklessness murders need not involve directed force. She identifies five out-of-
circuit cases that she says establish the possibility of committing second-degree
murder by recklessly driving. See United States v. Fleming, 739 F.2d 945, 947–48
(4th Cir. 1984); United States v. Sheffey, 57 F.3d 1419, 1431 (6th Cir. 1995); United
States v. Chippewa, 141 F.3d 118 (table), No. 97-30160, 1998 WL 123150, at *1
(9th Cir. Mar. 17, 1998) (unpublished); United States v. Merritt, 961 F.3d 1105,
1118 (10th Cir. 2020); United States v. Lemus-Gonzalez, 563 F.3d 88, 93 (5th Cir.
2009). This possibility, she argues, shows that second-degree murder can be
committed without targeting force in the way Borden requires.
Neither Janis nor this court has found an Eighth Circuit case concluding that
reckless driving can be murder. But assuming it could, reckless-driving-murder
convictions require malice aforethought which, as discussed, is a sufficient mens rea
to satisfy § 924(c)’s force clause. The term reckless driving applied to murder
convictions is a misnomer—drivers who commit murder do not exhibit ordinary
recklessness, but rather willfully act in callous and wanton disregard of the
consequences to human life. See Black Elk, 579 F.2d at 51; Comly, 998 F.3d at 343;
Baez-Martinez, 950 F.3d at 127.
Janis’s five out-of-circuit cases themselves involved egregiously dangerous
conduct with such a high probability of harm and such a callous and wanton
disregard of human life that a jury could infer the existence of malice aforethought.
See Lung’aho, 2023 WL 4359975, at *3 (using the degree of “risk and culpability”

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in a “sliding scale of probabilities” to apply the categorical approach); Stevenson,
162 U.S. at 320 (“[T]he only way to decide upon [malice aforethought] at the time
of a killing is to infer it from the surrounding facts, and that inference is one of fact,
for a jury.”). The Fourth Circuit upheld a jury’s verdict because the “degree” of
danger was high enough that the jury could conclude “that defendant intended to
operate his car in the manner in which he did with a heart that was without regard
for the life and safety of others.” Fleming, 739 F.3d at 948. The Fifth Circuit
affirmed a district court’s second-degree-murder sentencing enhancement because
the “circumstances [were] beyond the recklessness involved in the ordinary
intoxicated-driving offense.” Lemus-Gonzalez, 563 F.3d at 93. The Tenth Circuit
emphasized the defendant’s special knowledge of just how risky his conduct was.
Merritt, 961 F.3d at 1112. And both the Sixth and Ninth Circuits emphasized the
heightened risk and heightened disdain for human life necessary to permit an
inference of malice aforethought. See Sheffey, 57 F.3d at 1430; Chippewa, 1998
WL 123150, at *1.
That a jury can find malice aforethought based on a defendant’s acts behind
the wheel does not undermine the conclusion that malice aforethought satisfies the
force clause. Cf. Borden, 141 S.Ct. at 1827 (contrasting a knowingly homicidal
driver who “would prefer a clear road,” but “sees a pedestrian in his path [and] plows
ahead anyway” with a reckless one who “decides to run a red light, and hits a
pedestrian whom he did not see.”); Lung’aho, 2023 WL 4359975, at *2 (“running
over a pedestrian the driver knows is right in front of him would still count [as a
crime of violence], but one for recklessly hitting a pedestrian while texting would
not”). It would overstate the holding of Borden to require that every use of force
against the person of another must purposefully target the specific person who is
victimized. Cf. Restatement (Second) of Torts § 8A, comment b, illus. 1 (“A throws
a bomb into B’s office for the purpose of killing B. A knows that C, B’s
stenographer, is in the office. A has no desire to injure C, but knows that his act is
substantially certain to do so. C is injured by the explosion. A is subject to liability
to C for an intentional tort.”); Voisine, 579 U.S. at 705 (Thomas, J., dissenting)
(citing the Restatement). Therefore, this court rejects Janis’s argument.

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III.
Janis argues that, due to the possibility of second-degree murder against an
unborn child, the crime cannot be considered a “crime of violence.” She argues that
a person can commit federal second-degree murder by applying force to an unborn
child—but because a fetus is not “the person or property of another” as that phrase
is used by § 924(c)—it is possible to commit federal second-degree murder in a way
that does not “use force against the person or property of another.” 18 U.S.C. §
924(c). See generally 1 U.S.C. § 8(a) (a “person” or “human being” is an individual
who is “born alive”); 18 U.S.C. § 1111(a) (Murder is the unlawful killing of a human
being . . . .”).
Janis relies on United States v. Flute, 929 F.3d 584 (8th Cir. 2019), which held
that an indictment sufficiently alleged involuntary manslaughter when a baby died
shortly after birth because the pregnant mother “ingest[ed] prescribed and over-the-
counter medicines in a grossly negligent manner.” Flute, 929 F.3d at 586. This
conduct, this court held, constituted unlawful killing of another human being who
was born alive. Id. Relying on Flute, Janis maintains that a mother could commit
second-degree murder by using force only against an unborn child (who is later born
alive but dies from prenatal injuries), so the crime does not require the use of force
against “the person . . . of another.”
Assuming for the sake of analysis that the use of force against an unborn child
who dies after birth is not the use of force against “the person” of another, see United
States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011), Janis’s reliance on Flute
does not carry the day. The divided panel decision in Flute is the only reported case
holding that a mother could be convicted of involuntary manslaughter for prenatal
conduct. This court in McCoy did not extend the rationale of Flute to voluntary
manslaughter. 960 F.3d at 490. Janis suggests no authority under the common law
or the federal statute that would extend Flute even further to convict a mother of
second-degree murder (or first-degree murder) based on her prenatal conduct.
Therefore, this court rejects Janis’s argument.

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IV.
Homicides committed with malice aforethought involve the “use of force
against the person or property of another,” so second-degree murder is crime of
violence. This holding implements the Supreme Court’s command to interpret
statutes using not only “the statutory context, structure, history, and purpose,” but
also “common sense.” Abramski v. United States, 573 U.S. 169, 179 (2014). In the
Court’s force-clause cases, it counsels common-sense reasoning. In Leocal v.
Ashcroft, 543 U.S. 1 (2004), the Court said that it “cannot forget that we ultimately
are determining the meaning of the term ‘crime of violence.’” Id. at 11. The Court
was more explicit in Johnson v. United States, 559 U.S. 133 (2010), where it
reminded courts that “[u]ltimately, context determines meaning” when interpreting
a phrase “used in defining” the term “violent felony.” Id. at 139–40. The Borden
plurality followed suit, noting that the “ordinary meaning” of “violent felony”
“informs [its statutory] construction.” Borden, 141 S.Ct. at 1817.
Murder is the ultimate violent crime—irreversible and incomparable “in terms
of moral depravity.” Kennedy v. Louisiana, 554 U.S. 407, 438 (2008). The Borden
plurality agreed, quoting an opinion by then-Judge Alito that “[t]he quintessential
violent crimes,’ like murder or rape, ‘involve the intentional use’ of force.” Borden,
141 S.Ct. at 1830, quoting Oyebanji v. Gonzales, 418 F.3d 260, 264 (3d Cir. 2005).
Malice aforethought, murder’s defining characteristic, encapsulates the crime’s
violent nature.
Janis unlawfully killed her husband with malice aforethought. That was
murder—a crime of violence. Janis’s § 924(c) conviction need not be vacated.
* * * * * * *
The judgment is affirmed.
______________________________

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