Submitted: May 12, 2017
from United States District Court for the District of
Minnesota - St. Paul
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
Angelo Harper pleaded guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a). At sentencing, the
district court concluded that Harper was a career
offender under USSG § 4B1.1(a), and that he was subject
to enhanced punishment under that section of the advisory
sentencing guidelines. The court determined that Harper was a
career offender because the offense of conviction was a
"crime of violence, " and his two prior convictions
for bank robbery in violation of § 2113(a) were also
crimes of violence. The court sentenced Harper to 188
months' imprisonment. Harper argues on appeal that the
district court committed procedural error in computing the
advisory guideline range, because his bank robbery
convictions were not crimes of violence.
defendant is a career offender if he is convicted of a
"crime of violence" and has two prior convictions
for crimes of violence. USSG § 4B1.1(a). The guidelines
define "crime of violence" in the "force"
clause to include an offense that "has as an element the
use, attempted use, or threatened use of physical force
against the person of another." USSG § 4B1.2(a)(1).
The guideline also enumerates several offenses, including
"robbery, " that constitute a crime of violence.
Id. § 4B1.2(a)(2). The government argues that
Harper's bank robberies qualify as crimes of violence
under both the "force" clause and the enumeration
determine whether Harper's convictions satisfy the
"force" clause, we apply the "categorical
approach, " and consider only the statutory elements of
the offense. United States v. Roblero-Ramirez, 716
F.3d 1122, 1125 (8th Cir. 2013). If a statute covers
more conduct than the definition of "crime of violence,
" and "comprises multiple, alternative versions of
the crime, " then we may apply a "modified
categorical approach" to determine which alternative was
the offense of conviction.
v. United States, 133 S.Ct. 2276, 2283-84 (2013). The
court may "consult a limited class of judicial records
to determine under which alternative the defendant was
convicted." United States v. Hudson, 851 F.3d
807, 809 (8th Cir. 2017).
person violates 18 U.S.C. § 2113(a) under the first
paragraph of the provision if he, "by force and
violence, or by intimidation, takes . . . from the person or
presence of another, or obtains . . . by extortion any
property or money or any other thing of value belonging to .
. . any bank." Section 2113(a) contains a second
paragraph that proscribes "enter[ing] or attempt[ing] to
enter any bank . . . with intent to commit in such bank . . .
any felony affecting such bank . . . and in violation of any
statute of the United States, or any larceny." Harper
does not dispute that his three convictions were under the
first paragraph. His challenge to the career-offender
designation focuses on the first paragraph of § 2113(a)
only, and he implicitly concedes that each paragraph of
§ 2113(a) defines at least one separate crime. See
United States v. McBride, 826 F.3d 293, 296 (6th Cir.
contention is that "the most innocent conduct penalized
under § 2113(a) is 'intimidation, '" and
that a violation of § 2113(a) by intimidation does not
have, as an element, the use, attempted use, or threatened
use of physical force against the person of another. In
United States v. Wright, 957 F.2d 520 (8th Cir.
1992), however, this court held that robbery by intimidation
under § 2113(a) categorically involves the threatened
use of force: "Intimidation means the threat of
force." Id. at 521 (quotation omitted).
Wright thus controls here unless it has been
superseded by an intervening decision of the Supreme Court.
suggests that Wright was abrogated by Elonis v.
United States, 135 S.Ct. 2001 (2015), but we see no
inconsistency between the two decisions. Elonis held
that the crime of transmitting a communication containing a
threat under 18 U.S.C. § 875(c) requires proof that the
defendant made the communication with the purpose of issuing
a threat, or with knowledge that the communication will be
viewed as a threat, or, possibly, with reckless disregard for
the likelihood that the communication would be so viewed.
Id. at 2012-13. Harper reasons that because
"intimidation" in § 2113(a) does not
require proof that the robber intentionally intimidated a
victim, see United States v. Yockel, 320 F.3d 818,
824 (8th Cir. 2003), robbery by intimidation does not have as
an element the threatened use of force. In other words, he
seems to contend, "threatened use of force" after
Elonis requires a specific intent to issue a threat.
did not announce a universal definition of "threat"
that always requires the same mens rea. To the
contrary, the Court observed that "threat, " as
commonly defined, "speak[s] to what the statement
conveys-not to the mental state of the author." 135
S.Ct. at 2008. Elonis held only that a certain
criminal statute required proof of a particular mens
rea. The Court did not redefine the phrase
"threatened use of force" as it appears in the
also mentions fleetingly the possibility that a person could
be intimidated without a robber threatening to use
violent force-that is, force "capable of
causing physical pain or injury to another person."
Johnson v. United States, 559 U.S. 133, 140 (2010);
see United States v. Williams, 690 F.3d 1056,
1067-68 (8th Cir. 2012). This argument fails because bank
robbery by intimidation requires proof that the victim
"reasonably could infer a threat of bodily harm"
from the robber's acts. Yockel, 320 F.3d at 824
(quotation omitted). A threat of bodily harm requires a
threat to use violent force because "it is impossible to
cause bodily injury without using force 'capable of'
producing that result." United States v.
Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting
United States v. Castleman, 134 S.Ct. 1405, 1416-17
(2014) (Scalia, J., concurring)).
holding of Wright therefore controls: bank robbery
by intimidation under § 2113(a) is a crime of violence
under the force clause, because it involves a threatened use
of force. See also Allen v. United States, 836 F.3d
894, 894-95 (8th Cir. 2016) (per curiam) (holding that bank
robbery in violation of § 2113(a) and (e) is a
"crime of violence" under the force clause of 18
U.S.C. § 924(c)(3)(A)). The district court correctly
ruled that Harper qualified as a career offender. We need not
address whether Harper also qualifies as a career offender
because § ...