Depraved‑Mind Attempted Murder Qualifies as a “Crime of Violence” Under the Guidelines: United States v. Delgado (2d Cir. 2025)

Introduction

United States v. Delgado is a precedential Second Circuit decision that squarely addresses two recurring issues in federal criminal law after the Supreme Court’s Bruen decision: (1) whether 18 U.S.C. § 922(g)(1)—the felon-in-possession statute—remains constitutional, and (2) whether Florida’s offense of attempted second-degree murder (based on a “depraved mind” mental state) qualifies as a “crime of violence” for purposes of calculating the base offense level under U.S.S.G. § 2K2.1.

The defendant, Daniel Delgado, pled guilty to possessing ammunition after a prior felony conviction. He challenged the constitutionality of § 922(g)(1) and disputed the district court’s application of the Sentencing Guidelines, arguing that his Florida conviction for attempted second-degree murder was not categorically a crime of violence. The Second Circuit affirmed in full, reinforcing (post-Bruen) the constitutionality of § 922(g)(1) and setting an important Guidelines precedent: Florida attempted second-degree murder—with its “depraved mind” element—is a crime of violence under the elements clause.

Summary of the Judgment

• Second Amendment: The panel held that Delgado’s facial constitutional challenge to § 922(g)(1) is foreclosed by the Second Circuit’s recent decision in Zherka v. Bondi, which reaffirmed the statute’s validity after Bruen. An undeveloped as-applied challenge also fails.
• Crime of Violence: Applying the categorical approach, the court held that Florida attempted second-degree murder (Fla. Stat. §§ 782.04(2), 777.04(1)) is a “crime of violence” under U.S.S.G. § 4B1.2(a)(1)’s elements clause because it has, as an element, the attempted use of physical force against the person of another. The “depraved mind” mental state exceeds ordinary recklessness and is sufficiently directed “against” another.
• Disposition: The district court’s judgment was affirmed; the Guidelines calculation (base offense level 20 under § 2K2.1(a)(4)(A)) and 30-month sentence stand.

Case Background

Delgado was stopped by a New York State Police trooper for erratic driving. An inventory search uncovered a privately assembled “ghost gun” and approximately 29 rounds of ammunition. Delgado admitted ownership. He had multiple prior convictions, including a Florida felony for attempted second-degree murder arising from a 1999 shooting in Miami, where he shot a man in the back after an argument; the victim survived.

A federal grand jury charged him with possessing ammunition after a felony conviction, in violation of § 922(g)(1). Delgado pled guilty (without an agreement), later moved to withdraw his plea and to dismiss the indictment on Second Amendment grounds, and objected to the Guidelines calculation that treated his Florida attempt conviction as a crime of violence. The district court denied the constitutional motion (relying on then-binding Second Circuit precedent) and overruled the Guidelines objection. On appeal, the Second Circuit affirmed.

Detailed Analysis

Precedents Cited and Their Influence

• New York State Rifle & Pistol Ass’n v. Bruen (2022): Delgado invoked Bruen to argue that § 922(g)(1) violates the Second Amendment. The Second Circuit rejected that argument as foreclosed by its post-Bruen decision in Zherka.
• Zherka v. Bondi (2d Cir. 2025): The controlling authority reaffirming the constitutionality of § 922(g)(1) even after Bruen. It recognized Congress’s longstanding authority to disarm dangerous categories, including felons, and rejected as-applied challenges by “nonviolent” felons; a fortiori, Delgado’s as-applied challenge as a violent felon fails.
• District of Columbia v. Heller (2008): Quoted in Zherka to support longstanding limitations, including the disarmament of felons.
• Johnson v. United States (2010) and United States v. Castleman (2014): Clarify that “physical force” means violent force capable of causing pain or injury; bodily injury cannot result without applying force. These baseline principles underpin the elements-clause analysis.
• Borden v. United States (2021): A plurality held that offenses with only ordinary recklessness do not satisfy the elements clause because force is not “directed against” another. Importantly, Borden expressly reserved whether higher mental states like “depraved heart” or “extreme recklessness” qualify; Delgado addresses that gap.
• Descamps v. United States (2013): Governs the categorical approach vs. modified categorical approach; the Florida offense here is not divisible, so the traditional categorical approach applies.
• Second Circuit decisions applying the categorical approach: United States v. Moore, United States v. Cooper, Villanueva v. United States, and United States v. Scott set out the two-step analysis and confirm reliance on state supreme court definitions of elements.
• Florida authorities defining the offense:
  • In re Standard Jury Instructions in Criminal Cases—Report 2017‑06 (Fla. 2018): Articulates the elements of attempted second-degree murder and the meaning of “imminently dangerous” conduct and “depraved mind.”
  • Ramsey v. State (Fla. 1934) and State v. Ellison (Fla. 1990): Explain “depraved mind” as conduct showing ill will, hatred, spite, or evil intent directed toward another; it is the “highest grade of malice.”
  • State v. Brady (Fla. 1999): Firing a shot in a crowded nightclub supports attempted second-degree murder for multiple victims because the act is imminently dangerous and reflects a depraved mind.
  • Fisher v. State (Fla. 1998): Discusses premeditation for first-degree murder; the Second Circuit explains why Fisher does not mean second-degree murder can be predicated on intent to damage property alone.
  • Coicou v. State (Fla. 2010): Attempted second-degree murder involves an act that could have resulted in death and a depraved mind without regard for human life.
• Post-Borden federal appellate consensus (every circuit to address the gap): Crimes with mental states between ordinary recklessness and knowledge—e.g., depraved-heart or extreme indifference murder—qualify under elements clauses because they involve consciously directed, imminently dangerous conduct toward others:
  • 1st Cir.: United States v. Báez‑Martínez
  • 4th Cir.: United States v. Manley
  • 6th Cir.: United States v. Harrison
  • 8th Cir.: United States v. Janis
  • 9th Cir. (en banc): United States v. Begay
  • 10th Cir.: United States v. Kepler
  • 11th Cir.: Alvarado‑Linares v. United States

Legal Reasoning

1) Constitutionality of § 922(g)(1)

The court reviewed constitutional questions de novo. It held Delgado’s facial challenge to § 922(g)(1) is foreclosed by Zherka, which reaffirmed the statute’s validity post-Bruen. The panel also rejected an undeveloped as-applied challenge; even if considered, Zherka’s reasoning—that felon disarmament is a longstanding, permissible regulation—defeats it, particularly for a violent felon.

2) Florida attempted second-degree murder is a “crime of violence”

The court reviewed Guidelines interpretation de novo and used the categorical approach. The applicable provision, § 2K2.1(a)(4)(A), sets a base offense level of 20 when the defendant committed the instant firearms/ammunition offense after sustaining a prior felony “crime of violence,” as defined by § 4B1.2(a)(1)’s elements clause: an offense having “as an element the use, attempted use, or threatened use of physical force against the person of another.”

Key steps:

• Identify the state offense elements (bound by Florida Supreme Court law). Attempted second-degree murder requires:

  1) The defendant intentionally committed an act which would have resulted in the death of the victim but for prevention or failure; and
  2) The act was imminently dangerous to another and demonstrated a depraved mind without regard for human life.

  An “imminently dangerous” act is one that a person of ordinary judgment knows is reasonably certain to kill or cause serious bodily injury; is done from ill will, hatred, spite, or evil intent; and indicates indifference to human life.
• Physical force requirement. Murder plainly entails violent force; attempted murder satisfies the “attempted use” prong. Florida attempt requires an intentional act that “would have resulted in death,” which necessarily involves violent force.
• “Against the person of another” after Borden. The elements clause requires force directed “against” someone. Offenses with only ordinary recklessness fail. But Florida’s “depraved mind” exceeds ordinary recklessness: it requires ill will, spite, or evil intent and conduct reasonably certain to cause death or serious injury. This is closer to knowledge than recklessness because the actor proceeds despite practical certainty of harm. As a result, the force is consciously directed at others.
• Rejection of the “property-only” theory based on Fisher. Fisher, a first-degree premeditated murder case, does not stand for the proposition that second-degree murder (or its attempt) can rest on force against property alone. The Florida Supreme Court’s observation in Fisher emphasized the imminently dangerous, depraved-mind nature of firing into an apparently occupied home resulting in death—conduct manifestly directed at persons.
• No need to reach the “enumerated offenses” clause. While “murder” and “voluntary manslaughter” are enumerated crimes of violence (and attempts are listed in commentary for the 2021 Manual), the court resolved the case under the elements clause: the Florida offense requires the attempted use of force against a person.

Impact

• Guidelines and sentencing in the Second Circuit: This decision cements that Florida attempted second-degree murder is a categorical crime of violence under § 4B1.2(a)(1). Defendants with this prior will receive a higher base offense level under § 2K2.1(a)(4)(A) in felon-in-possession and ammunition cases.
• Mens rea after Borden: The Second Circuit aligns with an emerging consensus that “depraved heart” or “extreme indifference” offenses qualify under elements clauses. Practitioners should expect similar treatment for analogous state offenses that require:
  • An intentional act;
  • Directed at or in conscious disregard of the likely impact on persons (not mere property);
  • With risk levels approaching practical certainty of death or serious injury to others;
  • Accompanied by malice-type descriptors (ill will, spite, evil intent) or statutory equivalents.
• Across federal schemes using elements clauses: While Delgado applies the Guidelines, its reasoning—paralleling ACCA jurisprudence—will be persuasive in other contexts employing materially identical “elements clause” language (e.g., ACCA, § 924(c)), particularly as courts continue to parse Borden’s footnote reserving “extreme recklessness.”
• Felon-in-possession challenges post-Bruen: Zherka’s reaffirmation, incorporated here, signals that Second Amendment challenges to § 922(g)(1) are unlikely to succeed in the Second Circuit, whether facial or as-applied—especially for defendants with violent felony histories.
• Florida offense landscape: For Florida priors, this opinion provides clear guidance: attempted second-degree murder, defined via Florida’s jury instructions and high court decisions, categorically involves the attempted use of force “against” another. Efforts to recharacterize the offense as property-oriented will not prevail under the categorical approach.

Complex Concepts Simplified

• Elements clause: A legal definition used in federal statutes and Guidelines to classify offenses that require, as an element, the use, attempted use, or threatened use of violent physical force against a person.
• Categorical approach: Courts compare the statutory elements of a prior offense with the federal definition (e.g., “crime of violence”) without looking at the defendant’s actual conduct. If the minimum conduct criminalized by the state statute necessarily involves the required “use/attempted use/threatened use” of force against a person, the offense qualifies categorically.
• Modified categorical approach: Used only when a statute is divisible (lists alternative elements). Courts may consult a limited set of documents (like indictments) to identify which alternative formed the basis of conviction. Not applicable in Delgado.
• Ordinary recklessness vs. depraved mind/extreme indifference:
  • Ordinary recklessness: Conscious disregard of a substantial and unjustifiable risk; under Borden, this is insufficient because the force isn’t necessarily directed “against” another.
  • Depraved mind/extreme indifference: More culpable than ordinary recklessness; involves ill will, spite, or evil intent, and acts that are reasonably certain to cause death or serious injury, making harm to others practically certain. Courts treat this as sufficiently directed at persons.
• Attempt liability: Requires an intent to commit the proscribed conduct and a substantial step (or similar act) toward its completion. In Florida, attempted second-degree murder requires an intentional act that would have resulted in death but for failure or intervention, plus depraved-mind elements.
• Facial vs. as‑applied challenges:
  • Facial: The law is unconstitutional in all its applications. Delgado’s facial challenge to § 922(g)(1) fails under Zherka.
  • As-applied: The law is unconstitutional as applied to a particular defendant’s circumstances. Delgado’s was undeveloped and, in any event, fails given his violent felony history.
• Guidelines cross-references:
  • § 2K2.1 (Firearms/Ammunition) uses the career-offender definition of “crime of violence” in § 4B1.2(a).
  • The 2021 Manual (the version the court applied) includes attempts in commentary; Delgado did not require reliance on commentary because the elements clause expressly covers the “attempted use” of force.

Conclusion

United States v. Delgado delivers two significant messages. First, the Second Circuit reiterates—through the lens of Zherka—that § 922(g)(1) remains constitutional after Bruen; felon-in-possession prosecutions continue apace. Second, the court provides a careful, textually grounded explication of why Florida attempted second-degree murder qualifies as a “crime of violence” under the Guidelines’ elements clause. The decision clarifies that “depraved mind” mental states—requiring ill will and acts reasonably certain to cause fatal or grievous harm—exceed ordinary recklessness and satisfy Borden’s requirement that force be “against” another person.

Key takeaways:

• Florida attempted second-degree murder is categorically a crime of violence under § 4B1.2(a)(1); defendants with this prior will face a higher § 2K2.1 base offense level.
• Post-Borden, extreme indifference/depraved-heart offenses are likely to qualify under elements clauses because they involve consciously directed, imminently dangerous conduct toward others.
• Second Amendment challenges to § 922(g)(1) remain nonstarters in the Second Circuit.

By aligning with a multi-circuit consensus on extreme-indifference mental states and reaffirming the felon-disarmament tradition, Delgado will shape sentencing outcomes involving analogous state homicide attempts and guide lower courts in applying the categorical approach to serious, person-directed offenses.