United States v. McCranie
Opinion
We must determine whether a conviction for federal bank robbery categorically qualifies as a crime of violence under the elements clause of the career-offender sentencing guideline. We conclude that it does, so exercising jurisdiction under
BACKGROUND
Edward Dean McCranie pleaded guilty to federal bank robbery.
See
*678
At the sentencing hearing, McCranie objected to the PSR's career-offender recommendation, arguing that none of his three referenced felony convictions qualify as a crime of violence. The district court rejected this argument. First, it noted that under our circuit's precedent Colorado robbery qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1). Second, it reached the same conclusion for federal bank robbery. So the district court applied the career-offender enhancement and sentenced McCranie to a mid-level, 175-month term of imprisonment.
DISCUSSION
On appeal, McCranie raises the same issues: He claims that neither Colorado robbery nor federal bank robbery qualify as a crime of violence. But he "recognize[s] that this court has held that Colorado robbery is categorically a crime of violence."
3
Appellant's Opening Br. at 45 (citing
United States v. Harris
,
So we can resolve this appeal by deciding one issue-whether federal bank robbery by taking property by force, violence, or intimidation qualifies categorically as a crime of violence. If so, then
*679
McCranie qualifies as a career offender under § 4B1.1. We review de novo whether a prior conviction qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(1).
See
United States v. Maldonado-Palma
,
In the district court, the government relied on only the elements clause of § 4B1.2(a). Under that section, "[t]he term '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 ...." U.S.S.G. § 4B1.2(a)(1). In deciding whether McCranie's convictions qualify as crimes of violence under this language, we must determine whether his federal bank robbery offenses categorically meet the crime-of-violence definition without reference to the underlying facts of his convictions.
4
United States v. Armijo
,
The relevant portion of the federal bank-robbery statute requires a taking, or attempted taking, of property "by force and violence, or by intimidation."
With all that in mind, we turn to McCranie's arguments: (1) that federal bank robbery can be committed without the use of physical force, and (2) that federal bank robbery committed by intimidation doesn't require the threatened use of physical force.
A. Non-Physical Force and Unarmed Bank Robbery
McCranie argues that a person can commit federal bank robbery without the use, attempted use, or threatened use of
physical
force. Specifically, he relies on this court's decisions in
United States v. Perez-Vargas
,
But as McCranie recognizes, we recently overruled the
Perez-Vargas
line of cases, concluding that the Supreme Court has "specifically rejected the contention that 'one can cause bodily injury without the use of physical force.' "
United States v. Ontiveros
,
B. The Categorical Approach and Unarmed Bank Robbery
We turn to McCranie's other claim-that "intimidation" doesn't necessarily entail the threatened use of force. 5 Here, McCranie argues that federal bank robbery can occur even when an unusually timid bank teller feels intimidated, despite the lack of any objective threat. See Appellant's Opening Br. at 31 (discussing the "putting-in-fear possibility in this circuit's law, which depends on the result and not the means used."). So we must determine whether intimidation requires a threatened use of physical force.
Our cases answer that question. "We have defined intimidation in the context of § 2113(a) as an act by [the] defendant 'reasonably calculated to put another in fear, or conduct and words calculated to create the impression that any resistance or defiance by the individual would be met by force.' "
United States v. Valdez
,
The Tenth Circuit Criminal Pattern Jury Instructions are similarly demanding, stating, "To take 'by means of intimidation' is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm." Tenth Circuit Criminal Pattern Jury Instructions No. 2.77 (2018). And then, putting to rest any concerns of the too-timid teller, the instructions clarify that "a taking would not be by 'means of intimidation' if the fear, if any, resulted from the alleged victim's own timidity rather than some intimidating conduct on the part of the defendant. The essence of the offense is the taking of money or property accompanied by intentional, intimidating behavior on the part of the defendant."
Faced with this more-recent law, McCranie reaches backward to language from
United States v. Slater
,
Taking stock of our cases and the pattern jury instructions, every definition of intimidation requires a purposeful act that instills objectively reasonable fear (or expectation) of force or bodily injury.
Cf.
Moncrieffe v. Holder
,
Other circuits agree. 6 As the Seventh Circuit explained, "[t]here is no 'space' between 'bank robbery' and 'crime of violence.' A defendant properly convicted of bank robbery is guilty per se of a crime of violence, because violence in the broad sense that includes a merely threatened use of force is an element of every bank robbery." Jones , 932 F.2d at 625 (finding that federal bank robbery committed by intimidation is categorically a crime of violence under the guidelines). Bank robbery by intimidation involves the threatened use of physical force, and so the district court correctly labeled McCranie's instant and prior convictions crimes of violence. 7
CONCLUSION
For the above reasons, we affirm the district court.
The relevant section of § 2113(a) reads:
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ....
McCranie pleaded guilty under the force, violence, and intimidation clause of the statute in both federal bank robberies at issue in the career-offender determination. And the parties point us solely to that part of the statute.
The plea agreement for McCranie's earlier conviction was properly filed at the district court,
United States v. McCranie
, no. 16-cr-198-LTB, docket no. 40-1-though it isn't in the appellate record-and so we take judicial notice of it.
See
Binford v. United States
,
Career-offender status attaches when "(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a).
McCranie preserves this issue pending en banc or Supreme Court review. We address it no further in this opinion.
We assume, without deciding, that as McCranie suggests the categorical or modified categorical approach, not a fact-specific approach, applies to his instant offense.
McCranie made much of this argument in pursuit of the now-defunct non-physical-force exception. But it requires addressing anyway.
The First, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits, as well as the Eleventh Circuit in an unpublished case, have concluded that federal bank robbery by intimidation requires the threatened use of physical force against the person of another under § 4B1.2(a)(1).
See
United States v. Wilson
,
We also find persuasive similar unpublished decisions of this court.
See
United States v. Ybarra
, No. 17-2131, --- Fed.Appx. ----, ----,
McCranie makes additional arguments we don't reach, having concluded that his federal bank robbery convictions are categorically crimes of violence.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Edward Dean MCCRANIE, A/K/A Edward Dean McCrainie, Defendant-Appellant.
- Cited By
- 31 cases
- Status
- Published