United States v. Jerome Wilson
Opinion
OPINION OF THE COURT
If it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is, categorically a “crime of violence” under the United States Sentencing Guidelines. In doing so, we join several other federal courts of appeals that have held the same under the guidelines or the Armed Career Criminal Act (“ACCA”).
Jerome Wilson pled guilty to unarmed bank robbery in violation of
I. Background
The facts of the case are not in dispute. Wilson pled guilty to three counts of unarmed bank robbery or attempted bank robbery in violation of
The presentence report (“PSR”) suggested that § 2113(a) be treated as a “crime of violence” under the guidelines, and, because Wilson had two prior convictions under that same statute, that he be classified as- a “career offender.” If followed, those suggestions increased Wilson’s total offense level from 27 to 32 and his criminal history category from IV to VI. The PSR credited Wilson with a 3-level downward adjustment of his offense level for acceptance of responsibility, making his total suggested offense level 29. Ultimately, the threat-of-death enhancement did not increase the total offense level,beyond that which was mandated by the career-offender, enhancement;, that is, even without the threat-of-death enhancement, Wilson’s total offense level and criminal, history category would have been the same.
At sentencing, Wilson did not raise any objections concerning the 2-level threat-of-death enhancement, but he did object to being treated as a “career offender” under the guidelines, arguing that § 2113(a) did not meet the guidelines’ definition of a “crime of violence.” The District Court overruled that' objection and ultimately sentenced him to the bottom of the guidelines range calculated in the PSR.
II. Discussion 1 •
On appeal, Wilson challenges the District Court’s application of the career-offender enhancement and the threat-of- *83 death enhancement to his sentence. We conclude that the District Court correctly applied the career-offender enhancement because bank robbery by intimidation is categorically a crime of violence under § 4B1.2(a) of the guidelines. We further conclude that the District Court’s application of the threat-of-death enhancement was not plain error.
A. Bank Robbery by Intimidation is Categorically a Crime of Violence Under the Guidelines.
Whether bank robbery by intimidation is a crime of violence is a strange but not new question. It is strange because to ask the question would seem to answer it—of course the threat of violence is inherent in bank robbery, and § 4B1.2(a)(l) of the guidelines specifically includes within the definition of a “crime of violence” “any offense under federal or state law ... that ... has as an element the ... threatened use of physical force against the person of another....” It is not a new question, though, because seven of our sister circuits have had to address this question and have concluded that bank robbery by intimidation does indeed qualify as a “crime of violence” under § 4B1.2(a)(l) or the nearly identically worded “elements” clause of the ACCA,
1. The Categorical Approach Applies to Determine Whether Bank Robbery by Intimidation is a “Crime of Violence” Under the Guidelines.
We exercise plenary review over a district court’s decision that a conviction is one for a crime of violence, as defined by the guidelines,
United States v. Brown,
Here, Wilson was convicted under the first paragraph of § 2113(a), 3 which states:
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 ... Shall be fined ... or imprisoned not more than twenty years, or both.
As noted earlier, supra n.2, guidelines § 4B1.2 defines “crime of violence” for purposes of the career-offender enhancement as:
(a) ... any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in26 U.S.C. § 5845 (a) or explosive material as defined in18 U.S.C. § 841 (c).
U.S.S.G. § 4B1.2(a). . We refer to § 4B 1.2(a)(1) as the “elements,” or “force,” clause and to § 4B1.2(a)(2) as the “enumerated offenses” clause. To determine whether Wilson’s conviction categorically qualifies as a “crime of violence” under the “elements” clause, we ask whether bank robbery by intimidation has as an element of the offense “the use, attempted use, or threatened use of physical force against the person of another[.]” U.S.S.G. § 4B1.2(a)(l).
2. Section 2113(a) Has as an Element of the Offense “The Use, Attempted Use, or Threatened Use of Physical Force.”
Unarmed bank robbery by intimidation clearly does involve the “threatened
*85
use of physical force against the person of another[.]” U.S.S.G. § 4Bl,2(a)(l). If a common sense understanding of the word “intimidation” were not enough to prove that,
4
our precedent establishes that § 2113(a)’s prohibition on taking the “property or money or any other thing of value” either “by force and violence, or by intimidation” has as an element the “threat of force.”
United States v. Askari,
Each of our sister circuits to have addressed the issue has, not surprisingly, concluded that robbing a bank by intimidation does involve the “the use, attempted use, or threatened use of physical force against the person of another[.]” U.S.S.G. § 4B1.2(a)(l). Those courts also define § 2113(a)’s “intimidation” requirement in terms of a “threat of physical force,” when interpreting the “elements” clause in the guidelines or the similarly worded “elements” clause of the ACCA. 5 Our conclusion is the same. 6
3. Section 2113(a) Requires Knowing Conduct.
Wilson argues that § 2113(a) is not categorically a crime of violence because one can be convicted under that statute without intending to intimidate anyone. More particularly, his argument proceeds as follows. First, he says correctly that the
*86
“intimidation” element of § 2113(a) is measured by an objective standard from the .victim’s perspective,
“ie.,
whether an ordinary person in the [bank] teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts.”
Askari,
To - bolster his argument,- he turns to
Elonis v. United States,
— U.S. -,
Wilson’s attempt to extend Elonis’s reasoning to § 2113(a) is misguided. That case clarifies that courts should read a scienter requirement into statutes only to the extent necessary to prevent criminalizing otherwise innocent conduct.
In
Carter v. United States,
the Supreme Court specifically held that “the presumption in favor of scienter demands only that we read subsection (a) [of § 2113] as requiring proof of
general
intent—that is, that the defendant possessed knowledge with respect to the
actus reus
of the crime (here, the taking of property of another by force and violence or intimidation).”
Other courts of appeals have rejected the argument that § 2113(a) criminalizes negligent or reckless behavior. They have harmonized
Carter
with the “reasonable teller” standard inherent in § 2113(a)’s intimidation requirement by requiring the government to prove a defendant “knew that his actions were objectively intimidating.”
McNeal,
818 F.3d at 155.
8
In short,
Carter
and
Elonis
are, not at odds. By reading a general intent requirement into' § 2113(a),
Carter
requires the government to prove that the defendant acted with the knowledge that those actions would result in the taking, of property by the use of force and violence or by intimidation.
Carter,
We thus join our sister circuits in holding that bank robbery by intimidation, as set forth in § 2113(a), categorically qualifies as a crime of violence under § 4B1.2(a)’s “elements” clause. 10 Since bank robbery by intimidation is indeed a crime of violence, the District Court was correct to apply the career-offender enhancement.
B. Applying the Threat-of-Death Enhancement Was Not Plain Error.
Wilson has also complained on appeal that the District Court wrongly subjected him to a sentencing enhancement for making a death threat. He did not, however, register that objection before the District Court. ‘We review an unpreserved objection for plain error.”
Dahl,
Here, Wilson cannot establish that the District Court committed plain error by applying the threat-of-death enhancement because that enhancement did not affect his sentence. Assuming that Wilson could establish that application of the enhancement constituted an obvious error, he still cannot show that the error affected his substantial rights because the District Court correctly applied the career-offender enhancement, and the threat-of-death enhancement did not increase his sentence beyond the sentence mandated by the career-offender enhancement. 11 Thus, Wilson has not shown plain error.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District Court.
, The 'District Court had jurisdiction under
. Like § 4B1.2(a), the ACCA is divided into an "elements” clause, which defines "crime of violence” broadly to include federal or state law offenses that involve the use or threatened use of force, and an “enumerated offenses" clause, which lists certain specific offenses that are to be considered crimes of violence. Robbery is among the enumerated offenses, but we have chosen to address the crime at issue here—18 U.S.C, § 2113(a)— under the elements clause of § 4B 1.2(a). , Many courts of appeals have concluded that bank robbery under § 2113(a) is categorically a crime of violence.
See United States v. Harper,
. The District Court determined that § 2113(a) was a divisible statute because it contained two paragraphs, each containing a separate version of the crime.
See Descamps v. United States,
. The word "intimidate” is defined in the dictionary as "to make ... fearful” or "to compel or deter by or as if by threats,” Intimidate, Merriam-Webster Dictionary, https:// www.merriam-webster.com/dictionary/ intimidate (last visited Dec. 4, 2017).
.
See, e.g., Harper,
.In his opening brief, Wilson argues that § 2113(a) encompasses conduct that does not meet the Supreme Court’s definition of “physical force,”
i.e., "violent
force—that is, force capable of causing physical pain or injury to another person[,]”
Johnson,
. The proposition that a defendant can be convicted under § 2113(a) without intending to intimidate is not without support in the case law.
See United States v. Kelley,
.
See also Harper,
. Wilson maintains that every circuit court has misread Carter. As explained above, we do not agree with Wilson on that point. Nevertheless, we briefly note three hypotheticals that Wilson poses for his contention that § 2113(a) c.an be violated by negligent or reckless behavior; (1) a defendant could rob a bank with no intent to intimidate based on a sincere belief that the bank teller would simply hand over money on demand based on a bank’s policy to comply with all demands for money, regardless of the perceived seriousness of the threat; (2) a drug addict might submit a demand note to a teller without caring whether or not his note resulted in a teller handing over money; and (3) a bank robber with a physically imposing presence could instill fear in a bank teller without intending to intimidate. In each of those examples, an individual is taking intentional action, i.e., attempting to rob a bank, Impos *88 ing an objective standard with relation to the intimidation element does not change that and does not turn § 2113(a) into a statute that criminalizes negligent behavior. Accordingly, the least culpable way of violating § 2113(a)’s first paragraph will always constitute a "crime of violence.”
. Because we conclude that bank robbery by intimidation is categorically a "crime of violence” under the "elements” clause, we do not analyze whether it also is a "crime of violence” under the "enumerated offenses” clause. U.S.S.G. § 4B 1.2(a).
. Once the career-offender enhancement is triggered, the offense level determined by that guideline applies if it “is greater than the offense level otherwise applicable^]” U.S.S.G. § 4B 1.1(b). The offense level mandated by the career-offender enhancement of § 4B 1.1 (b)(3) is 32, which is greater than 27, the "offense level otherwise applicable” with the threat-of-death enhancement. Accordingly, the threat-of-death enhancement would only increase Wilson's sentence if we were to hold the career-offender enhancement inapplicable. Because we hold that the career-offender enhancement applies, any error (if there were any) in applying the threat-of-death enhancement did not affect the sentence Wilson received.
Reference
- Full Case Name
- UNITED STATES of America v. Jerome WILSON, Appellant
- Cited By
- 66 cases
- Status
- Published