Begay

Defendant-appellant Kenderick Begay appeals his convictions of two first-degree murders in violation of 18 U.S.C. §§ 1153 , 1111 and of two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A). Begay’s principal argument on appeal is that the evidence introduced at trial, when taken in the light most favorable to the government, fails to establish that he committed a “premeditated killing.” 18 U.S.C. § 1111 . Because we agree that the government failed to introduce evidence sufficient to show premeditation — an essential element of first-degree murder — we reverse the denial of his motion for judgment of acquittal on counts one and two and thus his first-degree murder convictions. We affirm, however, his two convictions for using a firearm during a crime of violence and his sentence of thirty-five years’ imprisonment on those two counts.

I. BACKGROUND

In the early morning hours of March 28, 2002, Kenderick Begay 1 drove his truck through the Navajo Indian Reservation in Greasewood, Arizona after leaving a gathering at the “windmill,” an area in town where the youth partied. His passengers included his sister Mecheryl Begay, Loren Clark,…

concurring:

I concur in this court’s opinion, but write separately regarding Part III, which deals with the reversal of Begay’s murder convictions. If I were writing on a clean slate in the Ninth Circuit, I would direct the district court in this case to enter a judgment of conviction on the lesser-included offense of second-degree murder. However, I am bound by United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir.1992), which mandates a procedure that when, as in this case, the conviction for the greater offense is in issue and may be reversed, the government must request such possible relief in its opening brief.

This requirement is not the rule in similar cases in other circuits. In DeMarrias v. United States, 453 F.2d 211, 215 (8th Cir.1972), for example, the court determined that implicit in a jury’s finding of guilt on a second-degree murder charge was a finding of guilt on the lesser-included charge of manslaughter. Therefore, when the court set aside the second-degree murder conviction for insufficient evidence, it directed “a remand for resentencing on the voluntary manslaughter charge as an appropriate means to accomplish substantial justice.” DeMarrias, 453 F.2d at…

Daniel L. Kaplan, Assistant Federal Public Defender, Phoenix, AZ, for the defendant-appellant.

Ann Birmingham Scheel, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee.

Before: MYRON H. BRIGHT, [*] PROCTER HUG, JR., and STEPHEN REINHARDT, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge BRIGHT.

REINHARDT, Circuit Judge:

Defendant-appellant Kenderick Begay appeals his convictions of two first-degree murders in violation of 18 U.S.C. §§ 1153 , 1111 and of two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A). Begay's principal argument on appeal is that the evidence introduced at trial, when taken in the light most favorable to the government, fails to establish that he committed a "premeditated killing." 18 U.S.C. § 1111 . Because we agree that the government failed to introduce evidence sufficient to show premeditation — an essential element of first-degree murder — we reverse the denial of his motion for judgment of acquittal on counts one and two and thus his first-degree murder convictions. We affirm, however, his two convictions for using a firearm during a crime of violence and his…