23-8120 United States v. Delgado
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2024
(Argued: November 22, 2024 Decided: August 27, 2025)
No. 23-8120
––––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Appellee,
-v.-
DANIEL DELGADO,
Defendant-Appellant.
Before: LIVINGSTON, Chief Judge, JACOBS, and MENASHI, Circuit Judges.
Defendant-Appellant Daniel Delgado (“Delgado”) appeals from a judgment of the United States District Court for the Southern District of New York (Karas, J.) convicting him, following his guilty plea, of knowingly possessing ammunition after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). On appeal, Delgado argues (1) that 18 U.S.C. § 922(g)(1) violates the Second Amendment of the United States Constitution and (2) that the district court procedurally erred when it concluded that his prior conviction for attempted second-degree murder under Fla. Stat. §§ 782.04(2) and 777.04(1) was a crime of violence pursuant to
1 § 2K2.1(a) of the United States Sentencing Guidelines. We disagree. Delgado’s constitutional challenge is foreclosed by our decision in Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025), which recently reaffirmed the constitutionality of 18 U.S.C. § 922(g)(1). We also agree with the district court that Florida’s offense of attempted second-degree murder is a crime of violence. Accordingly, the judgment of the district court is AFFIRMED.
FOR APPELLEE: MICHAEL D. MAIMIN (Nathan Rehn, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT: EDWARD S. ZAS, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY.
DEBRA ANN LIVINGSTON, Chief Judge:
Defendant-Appellant Daniel Delgado (“Delgado”) appeals from a judgment
of the United States District Court for the Southern District of New York (Karas,
J.), entered on December 21, 2023, convicting him, following his guilty plea of
knowingly possessing ammunition after being convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). The district court sentenced Delgado principally to thirty
months’ incarceration to be followed by a three-year term of supervised release.
On appeal, Delgado raises two arguments. First, he contends that the statute
under which he was convicted, 18 U.S.C. § 922(g)(1), violates the Second
Amendment of the United States Constitution in light of the Supreme Court’s
2 decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Second,
he argues that the district court procedurally erred when it concluded that his
prior conviction for attempted second-degree murder under Fla. Stat. §§ 782.04(2)
and 777.04(1) was a crime of violence pursuant to § 2K2.1(a) of the U.S. Sentencing
Guidelines (the “Guidelines”).
We disagree. Delgado’s constitutional challenge is foreclosed by our recent
decision in Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025), which reaffirmed the
constitutionality of § 922(g)(1) post-Bruen. We also discern no error in the district
court’s conclusion that attempted second-degree murder in violation of Fla. Stat.
§§ 782.04(2) and 777.04(1) is categorically a crime of violence. The elements of
Florida attempted second-degree murder include that a perpetrator “intentionally
committed an act which would have resulted in the death of [a person]” and that
“the act was imminently dangerous to another and demonstrating a depraved
mind without regard for human life.” In re Standard Jury Instructions in Criminal
Cases—Report 2017-06, 236 So.3d 282, 294 (Mem.) (Fla. 2018). Satisfying these
elements necessarily requires the use or attempted use of “physical force against
the person of another.” U.S.S.G. § 4B1.2(a)(1). The district court therefore correctly
3 concluded that Florida attempted second-degree murder is a crime of violence
pursuant to U.S.S.G. § 2K2.1(a).
Accordingly, we AFFIRM the judgment of the district court.
BACKGROUND
On November 4, 2021, a New York State Police trooper pulled Delgado over
after observing him driving erratically on the Taconic State Parkway. During the
traffic stop, Delgado admitted to the trooper that his driver’s license had been
suspended. The trooper informed Delgado that he was not allowed to drive home
on a suspended license and that his vehicle would be impounded. While waiting
for a tow truck, the officer conducted an inventory search of the car, during which
he discovered a loaded 9-mm pistol and a spare magazine containing a total of
approximately 29 rounds of ammunition. The firearm was a privately assembled
Glock-style gun commonly known as a “ghost gun.” Delgado admitted that both
the gun and ammunition belonged to him.
At the time he was found in possession of the gun and ammunition, Delgado
had multiple prior convictions including, as relevant here, a felony conviction for
attempted murder in the second degree in violation of Fla. Stat. §§ 782.04(2) and
4 777.04(1). 1 In 1999, Delgado shot a man in the back following an argument in front
of a Fuddruckers restaurant in Miami, Florida. The victim sustained life-
threatening injuries but ultimately survived. Delgado, who fled the scene
following the shooting, was arrested the following day and subsequently
convicted in Florida state court of attempted second-degree murder. Delgado
initially served three years in prison for his crime but violated the terms of his
parole shortly after his release by, inter alia, possessing an unauthorized firearm.
Delgado was resentenced to a fifteen-year term of imprisonment.
On July 19, 2022, a grand jury returned an indictment charging Delgado
with possessing ammunition after having previously been convicted of a felony,
in violation of § 922(g)(1). On February 22, 2023, Delgado pleaded guilty without
a plea agreement. He subsequently moved to withdraw his guilty plea and to
dismiss the indictment on the ground that § 922(g)(1) is unconstitutional in light
of the Supreme Court’s decision in Bruen. The district court denied Delgado’s
motion, explaining that the Second Circuit’s decision in United States v. Bogle, 717
F.3d 281 (2d Cir. 2013) (per curiam), which determined that § 922(g)(1) does not
1Delgado’s other prior convictions include a 1998 conviction for carrying a concealed weapon, a 1998 conviction for petit larceny, a 2004 conviction for marijuana possession, and a 2013 conviction for possessing a contraband cellphone while in prison.
5 infringe the constitutional right to bear arms under the Second Amendment,
remained binding precedent.
The Probation Office prepared a presentence investigation report (“PSR”) in
advance of Delgado’s sentencing hearing. Pursuant to U.S.S.G. § 2K2.1(a)(4)(A),
the Probation Department adopted a base offense level of 20 because Delgado had
committed his offense after sustaining a felony conviction for a crime of violence—
namely his conviction for attempted second-degree murder. After applying a
three-level reduction for acceptance of responsibility, the PSR reflected a total
offense level of 17 and a recommended sentencing range of 30 to 37 months’
imprisonment. 2
Delgado objected to the PSR, arguing that attempted second-degree murder
under Fla. Stat. §§ 782.04(2) and 777.04(1) is not categorically a crime of violence
under U.S.S.G. § 2K2.1(a) and that his base offense level should be 14. The district
court disagreed and held that attempted second-degree murder under Florida law
is indeed a crime of violence because it has “as an element of the offense [the]
intentional use of violent force. . . . [I]t can’t be done by recklessness or negligence
2 The PSR’s application of the Sentencing Guidelines was consistent with the government’s calculation presented to Delgado in a Pimental letter before he pleaded guilty. See United States v. Pimental, 932 F.2d 1029, 1034 (2d Cir. 1991) (suggesting that the government “inform defendants [who are contemplating guilty pleas] . . . as to the likely range of sentences that their pleas will authorize under the Guidelines”).
6 or . . . some lower standard than intentional conduct.” App’x 334–35. The district
court sentenced Delgado principally to 30 months’ imprisonment, to be followed
by three years’ supervised release.
Delgado timely appealed.
DISCUSSION
Delgado raises two arguments on appeal. First, he contends that the statute
under which he was convicted, 18 U.S.C. § 922(g)(1), violates the Second
Amendment of the United States Constitution. Second, he argues that the district
court procedurally erred at his sentencing when it concluded that his prior
conviction for attempted second-degree murder under Florida law is a crime of
violence. We disagree with both arguments and address each in turn.
I. Constitutional Challenge
Delgado argues that § 922(g)(1) is unconstitutional in light of the Supreme
Court’s decision in Bruen. “We review challenges to the constitutionality of federal
statutes de novo.” United States v. Griffith, 284 F.3d 338, 345 (2d Cir. 2002).
Prior to Bruen, we held in Bogle that Ҥ 922(g)(1) is a constitutional
restriction” on the right to bear arms of convicted felons. 717 F.3d at 281–82. Since
Delgado’s appeal, we have affirmed that “[o]ur holding in Bogle survives Bruen.”
Zherka, 140 F.4th at 75. Accordingly, Delgado’s facial challenge to § 922(g)(1) fails.
7 Delgado also claims that § 922(g)(1) is unconstitutional as applied to him,
but he fails to elaborate on why we should sustain an as-applied challenge in his
case. We ordinarily decline to consider arguments that are raised in a conclusory
fashion or made only in passing. See Palin v. N.Y. Times Co., 113 F.4th 245, 279 (2d
Cir. 2024) (“It is a settled appellate rule that issues . . . unaccompanied by some
effort at developed argumentation are deemed forfeited.”) (internal quotation
marks omitted). But even if we were to consider Delgado’s as-applied challenge,
it would still fail under our decision in Zherka. In that case, we concluded that
§ 922(g)(1) is “an appropriate exercise of [Congress's] longstanding power to
disarm dangerous categories of persons,” including convicted felons. See Zherka,
140 F.4th at 91; see also District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). We
also rejected the “contention that the prohibition on possession of firearms by
convicted felons violates the Second Amendment as applied to ‘nonviolent’
felons.’” Zherka, 140 F.4th at 96. Here, nothing in the record indicates why it
would be unconstitutional to apply § 922(g)(1) to a violent felon such as Delgado.
II. Crime of Violence
Delgado next argues that the district court committed procedural error
when it determined that his prior conviction for attempted second-degree murder
8 pursuant to Fla. Stat. §§ 782.04(2) and 777.04(1) constitutes a crime of violence for
the purposes of § 2K2.1(a)(4)(A). We disagree.
“We review the procedural reasonableness of a sentence for abuse of
discretion.” United States v. Cooper, 131 F.4th 127, 130 (2d Cir. 2025) (per curiam).
“A district court commits procedural error when it, inter alia, makes a mistake in
its Guidelines calculation.” United States v. Taylor, 961 F.3d 68, 74 (2d Cir. 2020)
(quoting United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (per curiam)). In
considering whether a district court committed procedural error, we review de
novo “questions of law, including . . . interpretation of the Guidelines.” 3 Yilmaz,
910 F.3d at 688.
Under U.S.S.G. § 2K2.1(a)(4)(A), a defendant convicted of violating
§ 922(g)(1) has a base offense level of 20 “if the defendant committed any part of
the instant offense subsequent to sustaining one felony conviction of . . . a crime of
violence.” The commentary to the 2021 Guidelines provides that the term “‘crime
of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1
3 Although Delgado argued at sentencing that Florida attempted second-degree murder is not a crime of violence, the government contends that the argument he made before the district court was substantially different from the argument he now advances on appeal and that we should therefore apply plain error review. Ultimately, we need not decide which standard of review applies because Delgado’s challenge fails even under the more exacting de novo review.
9 of the Commentary to § 4B1.2.” 4 U.S.S.G. § 2K2.1 cmt. n.1. Section 4B1.2(a)(1), in
turn, provides that a “‘crime of violence’ means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year that . . . has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” This provision is commonly called the “elements clause.” 5
“To determine whether a previously committed state law
crime . . . constitutes a crime of violence under U.S.S.G. § 2K2.1(a), we
apply the . . . categorical approach.” 6 Cooper, 131 F.4th at 131. The categorical
approach involves a familiar two-step analysis: “first we identify the elements of
the predicate conviction by determining the minimum criminal conduct a
defendant must commit to be convicted; second, we determine whether that
4 We rely on the 2021 version of the Guidelines because that was the “Manual in effect on the date that the defendant was sentenced.” U.S.S.G. § 1B1.11(a).
5 Section 4B1.2(a)(2)—known as the “enumerated offenses” clause—also lists several offenses that are crimes of violence, including “murder” and “voluntary manslaughter.” U.S.S.G. § 4B1.2(a)(2). The commentary of § 4B1.2 makes clear that the term “crime of violence” includes “the offenses of . . . attempt[s] to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1. Because Florida attempted-second degree murder requires the attempted use of force against the person of another, we need not decide whether it qualifies under the enumerated offenses clause. Cf. Stegemann v. United States, 132 F.4th 206, 213 (2d Cir. 2025) (applying to the Sentencing Guidelines “the normal principle that an undefined term receives its ordinary meaning”).
6 When a state statute is “divisible,” meaning the statute “sets out one or more elements of the offense in the alternative,” we apply the modified categorical approach. Descamps v. United States, 570 U.S. 254, 257 (2013). As the parties acknowledge, the offense at issue here is not divisible, and so we apply the traditional categorical approach.
10 minimum criminal conduct ‘has as an element the use, attempted use, or
threatened use of physical force.’” United States v. Moore, 916 F.3d 231, 240 (2d Cir.
2019) (quoting U.S.S.G. § 4B1.2(a)(1)). “If the state statute prohibits any conduct
that does not constitute a crime of violence, then the crime of conviction does not
categorically constitute a crime of violence under section 2K2.1(a).” Cooper, 131
F.4th at 131. Under the categorical approach, we “are not permitted to consider
the facts of the offense conduct,” such as that Delgado committed attempted
murder by shooting someone in the back. Villanueva v. United States, 893 F.3d 123,
128 (2d Cir. 2018).
We begin by “look[ing] to state law in identifying the elements of a crime.”
United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (en banc). In doing so, we are
bound by the state supreme court’s “interpretation of state law, including its
determination of the elements” of the offense at issue. Johnson v. United States, 559
U.S. 133, 138 (2010). Here, Delgado was convicted under Fla. Stat. §§ 782.04(2) and
777.04(1). Section 782.04(2), the state’s second-degree murder statute, criminalizes
“[t]he unlawful killing of a human being, when perpetrated by any act imminently
dangerous to another and evincing a depraved mind regardless of human life,
although without any premeditated design to effect the death of any particular
11 individual.” Florida’s attempt statute, Fla. Stat. § 777.04(1), provides that “[a]
person who attempts to commit an offense prohibited by law and in such attempt
does any act toward the commission of such offense, but fails in the preparation
or is intercepted or prevented in the execution thereof, commits the offense of
criminal attempt.”
Drawing from these two statutes, the Florida Supreme Court has articulated
the two elements of attempted second-degree murder:
1. (Defendant) intentionally committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he] [she] failed to do so.
2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.
In re Standard Jury Instructions, 236 So.3d at 294. An act is “imminently dangerous
to another and demonstrating a depraved mind” if it is an act or series of acts that:
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.
12 Id. In addition, under Florida law, “to convict the defendant of Attempted Second
Degree Murder, it is not necessary for the State to prove the defendant had an
intent to cause death.” Id.
The question we must decide is whether, based on these elements, Florida
attempted second-degree murder “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1). We conclude that it does.
The parties do not dispute that attempted second-degree murder involves
physical force. “[T]he phrase ‘physical force’ means violent force—that is, force
capable of causing physical pain or injury to another person.” Johnson, 559 U.S. at
140. A statute criminalizing the actual killing of another person inevitably
involves a level of force capable of causing physical pain or injury. See United
States v. Castleman, 572 U.S. 157, 170 (2014) (“It is impossible to cause bodily injury
without applying force in the common-law sense.”). To be sure, in an attempted
murder, the victim does not die and need not be physically injured at all. But
§ 4B1.2(a)(1) also covers the “attempted use” of force, and “if murder requires
violent force because death results, then attempted murder does, too.” United
States v. Báez-Martínez, 950 F.3d 119, 132 (1st Cir. 2020); see also Cooper, 131 F.4th at
13 134 (holding that attempted second-degree assault is categorically a crime of
violence). Because Florida attempted second-degree murder requires an
“intentionally committed . . . act which would have resulted in . . . death,” In re
Standard Jury Instructions, 236 So.3d at 294, the offense plainly satisfies the physical
force requirement.
Of course, to qualify as a crime of violence, the physical force must be used,
attempted, or threatened “against the person of another.” U.S.S.G. § 4B1.2(a)(1)
(emphasis added). In Borden v. United States, a plurality of the Supreme Court
explained that “[t]he phrase ‘against another,’ when modifying the ‘use of force,’
demands that the perpetrator direct his action at, or target, another individual.” 7
593 U.S. 420, 429 (2021). The Borden plurality held that crimes with a mens rea of
ordinary recklessness, though they may involve physical force, do not require that
force to be directed against another. Id. A defendant who recklessly commits a
crime merely “pay[s] insufficient attention to the potential application of
force.” Id. at 432. “[B]ecause his conduct is not opposed to or directed at
7 Borden concerned the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), as opposed to the definition of “crime of violence” under the Guidelines. “But our case law is clear that the Armed Career Criminal Act’s definition of ‘violent felony’ is identical in all material respects to . . . [the] definition of ‘crime of violence’ under the Guidelines.” Cooper, 131 F.4th at 132 n.2 (internal quotation marks omitted). Accordingly, we “look[ ] to cases analyzing ACCA's elements clause to interpret . . . § 4B1.2 of the Guidelines.” United States v. Evans, 924 F.3d 21, 29 n.4 (2d Cir. 2019).
14 another . . . [h]e has not used force ‘against’ another person in the targeted way
that [the elements] clause requires.” Id. On the other hand, purposeful and
knowing acts are sufficiently directed towards another person to qualify as crimes
of violence. Id. And Borden was careful to note that it was talking about crimes
requiring only ordinary recklessness. The plurality acknowledged that “[s]ome
States recognize mental states (often called ‘depraved heart’ or ‘extreme
recklessness’) between recklessness and knowledge” and explained that it had “no
occasion to address whether offenses with those mental states fall within the
elements clause.” Id. at 429 n.4.
Although Florida’s offense of attempted second-degree murder does not
require an intent to cause death, it requires more than ordinary recklessness. 8 “A
person acts recklessly, in the most common formulation, when he ‘consciously
disregards a substantial and unjustifiable risk’ attached to his conduct, in ‘gross
8 In Delgado’s reply brief, he posits that some Florida courts have, in practice, affirmed convictions for attempted second-degree murder based on ordinary recklessness. Neither of the cases Delgado cites for this proposition support his claim, in part because neither involved attempted second-degree murder. See Pressley v. State, 395 So. 2d 1175, 1177 (Fla. Dist. Ct. App. 1981) (concluding that there was sufficient evidence to convict a defendant of second-degree murder after he engaged in a shootout and accidently killed a bystander because his acts were “reasonably certain to kill or do serious bodily injury to another” and “indicated an indifference to human life and demonstrated ill will”); U.S. Fid. & Guar. Co. v. Perez, 384 So. 2d 904, 905 (Fla. Dist. Ct. App. 1980) (confirming that “firing a gun into a crowd of people constitutes second degree murder,” even though a defendant has no intent to kill anyone). In any event, we must focus on the way the Florida Supreme Court has articulated the elements and leave to that court the task of policing the lower state courts. See Johnson, 559 U.S. at 138.
15 deviation’ from accepted standards.” Id. at 427 (quoting Model Penal Code
§ 2.02(2)(c)). But to commit attempted second-degree murder under Florida law,
a perpetrator must “demonstrat[e] a depraved mind without regard for human
life.” In re Standard Jury Instructions, 236 So.3d at 294. In contrast to ordinary
recklessness, this disregard stems from “ill will, hatred, spite, [or] an evil intent”
and manifests in a defendant’s conduct “toward [another] citizen.” Ramsey v. State,
154 So. 855, 856 (Fla. 1934); see also State v. Ellison, 561 So. 2d 576, 577 (Fla. 1990)
(rejecting a second-degree murder charge where there was insufficient evidence
that Ellison acted out of ill-will, hatred, spite or an evil intent toward his eventual
victim”) (internal quotation marks omitted) (emphasis added). This “[d]epravity
of mind is an inherent deficiency of moral sense and rectitude” and “the highest
grade of malice.” Id. at 855–56; Borden, 593 U.S. at 429 n.4. Florida attempted
second-degree murder thus fits comfortably into the intermediate category of
mental states that Borden left open.
In fact, a depraved mind, as defined by Florida law, is much closer to
knowledge than to ordinary recklessness. Borden explained that a person “acts
knowingly when ‘he is aware that [a] result is practically certain to follow from his
conduct,’ whatever his affirmative desire.” Id. at 426 (quoting United States v.
16 Bailey, 444 U.S. 394, 404 (1980)). Knowing conduct includes those offenses where
a person, “even though not affirmatively wanting the result, still makes a
deliberate choice with full awareness of consequent harm.” Id. Florida attempted
second-degree murder requires an intentional act that is “reasonably certain to kill
or do serious bodily injury to another,” In re Standard Jury Instructions, 236 So.3d
at 294. In this way, extreme recklessness “approaches the definition of
knowledge” because the risk is so high that “the harmful result nears ‘practical
certainty’ that force will be applied to another person.” United States v. Janis, 73
F.4th 628, 633–34 (8th Cir. 2023).
Take, for example, the Florida Supreme Court’s decision in State v. Brady,
745 So.2d 954 (Fla. 1999). In Brady, the defendant was convicted of two counts of
attempted second-degree murder for firing a single shot in a crowded nightclub
that missed its intended target and hit another individual in the hand. Id. at 955.
The Florida Supreme Court affirmed both convictions, explaining that “by
intentionally firing a deadly weapon in close proximity to both [victims], the
defendant intentionally committed an act that, had death resulted, would have
constituted second-degree murder as to either [victim].” Id. at 958. Delgado reads
Brady to hold that attempted second-degree murder does not require force to be
17 aimed at a specific person. But Brady emphasized that the decision to fire a gun in
a crowded room is an act so imminently dangerous to other people that a jury
could reasonably conclude that the defendant acted with a depraved mind by
knowingly firing a gun in their vicinity. Id. at 957–58; cf. Báez-Martínez, 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.”).
Every circuit that has considered the question post-Borden has concluded
that crimes involving mental states between ordinary recklessness and knowledge
qualify as crimes of violence. See United States v. Manley, 52 F.4th 143, 150–51 (4th
Cir. 2022) (holding that “reckless behavior so willful and wanton, so heedless of
foreseeable consequences, and so indifferent to the value of human life that it
supplies the element of malice . . . necessarily requires conduct that uses physical
force against another” because it is “closer in culpability to ‘knowledge’ than it is
to ‘recklessness’” (internal quotation marks omitted)); United States v. Harrison, 54
F.4th 884, 890 (6th Cir. 2022) (holding that complicity to commit murder involved
18 the use of force against the person of another because it “requires more than
recklessness—at the very least it requires wantonness under circumstances
manifesting an extreme indifference to human life” (internal quotation marks
omitted)); Janis, 73 F.4th at 631 (“Because [federal second-degree murder] requires
malice aforethought, the crime always involves ‘consciously directed’ force and
thus constitutes a ‘crime of violence.’”); United States v. Begay, 33 F.4th 1081, 1094–
95 (9th Cir. 2022) (en banc) (holding that depraved heart murder, which includes
reckless and wanton acts that cause death, is a crime of violence because there has
to be a “finding that the defendant acted with extreme indifference, and that the
indifference was toward human life”); United States v. Kepler, 74 F.4th 1292, 1303–04
(10th Cir. 2023) (holding that “depraved-heart second-degree murder is a crime of
violence” because the offender “consciously use[s] deadly force ‘against’
someone”); Alvarado-Linares v. United States, 44 F.4th 1334, 1344–46 (11th Cir. 2022)
(holding that both malice murder and attempted malice murder under Georgia
law are crimes of violence). We agree with those circuits. Accordingly, we
conclude Florida attempted second-degree murder has as an element the
“attempted use . . . of physical force against the person of another” and therefore
qualifies as a crime of violence. U.S.S.G. § 4B1.2(a)(1).
19 Delgado seeks to avoid this commonsense conclusion by relying, not on the
elements of attempted second-degree murder as articulated by the Florida
Supreme Court, but on a single sentence drawn from that court’s decision in Fisher
v. State, 715 So.2d 950 (Fla. 1998) (per curiam). In Fisher, the defendant, Andre
Fisher, got into a fight with a man named Karlon Johnson. Id. at 951. Hours later,
Fisher and three coconspirators drove to the home of Johnson’s sister, an address
at which they believed Johnson was staying, and fired 35 shots into the house and
its carport, where Johnson’s car was parked. Id. One of the bullets struck and
killed Johnson’s five-year-old nephew. Id. Fisher was tried and convicted for first-
degree premeditated murder and sentenced to death. Id. at 951–52.
Fisher appealed his conviction on the ground that the evidence failed to
establish beyond a reasonable doubt the requisite premeditation—that he had a
“fully formed purpose to kill,” as is required under Florida law for first-degree
premeditated murder. Id. at 952. The Florida Supreme Court agreed, holding that
in order to prove premeditation by circumstantial evidence, the state must present
evidence that excludes every “reasonable hypothesis that the homicide occurred
other than by premeditated design” because “[p]remeditation is more than the
mere intent to kill.” Id. In explaining why “there was insufficient proof of
20 premeditation to convict of first-degree murder,” the Florida Supreme Court
explained that it could not “rule out the possibility that Fisher and his cohorts
merely intended to frighten Johnson or damage his car.” Id.
After explaining that Fisher’s conviction for first-degree murder had to be
reversed, the Florida Supreme Court added—without elaboration—that the proof
adduced at trial was “clearly sufficient for a conviction of second-degree murder,
which is defined as the unlawful killing of a human being, when perpetrated by
any act imminently dangerous to another and evincing a depraved mind
regardless of human life, although without any premeditated design to effect the
death of any particular individual.” Id. (internal quotation marks omitted).
Latching upon this declaration in light of the court’s preceding discussion of
premeditation and the possibility that Fisher might have intended merely to
frighten Johnson or to damage his car, Delgado asserts that completed second-
degree murder can be committed “with the intent to use force against property
only,” and thus that attempted second-degree murder can also be committed by
attempting to use force against property alone. Appellant’s Br. at 23. But this is a
misreading of the case.
21 In evaluating the sufficiency of the evidence that Fisher had committed
second-degree murder, the Florida Supreme Court did not conclude that the intent
to damage a car, resulting in death, was sufficient to establish the crime. The court
instead concluded (unsurprisingly) that firing 35 shots into an apparently
occupied home, resulting in the loss of life, sufficiently reflected the commission
of an act “imminently dangerous to another and evincing a depraved mind
regardless of human life” to prove the second-degree murder charge. See Fisher,
715 So.2d at 952 (quoting Fla. Stat. § 782.04(2)). Nothing in Fisher suggests, as
Delgado contends, that a defendant could be convicted of completed second-
degree murder—let alone attempted second-degree murder—based on shooting
at a car absent such additional evidence demonstrating the elements of the offense.
To be sure, second-degree murder under Florida law, unlike first-degree murder,
does not require the establishment of a “fully formed purpose to kill.” Id. at 952
(emphasis added). But it does require the killing of another person by an act
“imminently dangerous to another and evincing a depraved mind regardless of
human life.” Fla. Stat. § 782.04(2). Fisher did not depart from this statutory
language.
22 Although not necessary for him to prevail under the categorical approach,
it is telling that Delgado has not identified an actual case in which a defendant was
convicted of attempted second-degree murder in Florida for actions undertaken
merely with the intent to use force against property. Delgado’s argument depends
on the implications of a single sentence from Fisher, which concerns premeditation
in the context of first-degree murder and does not mention attempted second-
degree murder, the offense at issue here. It is true that attempted second-degree
murder involves the same “act that could have resulted, but did not result, in the
death of someone.” Coicou v. State, 39 So. 3d 237, 241 (Fla. 2010). But the act must
also have “demonstrated a depraved mind without regard for human life.” Id.
We rely on the Florida Supreme Court’s articulation of the elements of attempted
second-degree murder. And, as discussed above, this offense requires an
intentional act that not only “would have resulted in the death of [a person]” but
also was “imminently dangerous to another [person] and demonstrating a depraved
mind without regard for human life.” In re Standard Jury Instructions, 236 So.3d at
294 (emphasis added). It is impossible to satisfy these elements without using or
attempting to use force against a person.
23 CONCLUSION
In sum, we conclude that Delgado’s constitutional challenge to 18 U.S.C.
§ 922(g)(1) is without merit. We also agree with the district court that Delgado’s
conviction for attempted second-degree murder under Fla. Stat. §§ 782.04(2) and
777.04(1) constitutes a crime of violence for the purposes of U.S.S.G. § 2K2.1(a).
We therefore conclude that the district court did not commit procedural error in
its Guidelines calculation. Accordingly, we AFFIRM the judgment of the district
court.