USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11740
Non-Argument Calendar
____________________
MARCELLUS HENDERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket Nos. 1:20-cv-01695-LMM,
1:03-cr-00648-LMM-GGB-1
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 2 of 9
2 Opinion of the Court 21-11740
____________________
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Marcellus Henderson, a federal prisoner represented by
counsel, appeals the district court’s denial of his authorized, succes-
sive
28 U.S.C. § 2255 motion to vacate. The district court, after
denying the motion, granted a certificate of appealability (“COA”)
on whether Henderson’s conviction, for aiding and abetting at-
tempted bank robbery resulting in death, in violation of
18 U.S.C.
§§ 2113(a), (d), and (e) is a crime of violence under
18 U.S.C. §
924(c)(3)(A).
On appeal, Henderson argues that his motion should have
been granted because attempted bank robbery resulting in death is
not a crime of violence under § 924(c)(3)(A)’s elements clause, par-
ticularly in light of United States v. Taylor,
142 S.Ct. 2015 (2022).
Henderson also argues that aiding and abetting attempted bank
robbery resulting in death is not a crime of violence because an
aider and abettor need not participate in every element a principal
participates in.
When reviewing a district court’s denial of a § 2255 motion,
we review questions of law de novo and factual findings for clear
error. Steiner v. United States,
940 F.3d 1282, 1288 (11th Cir. 2019).
Whether a particular conviction is a crime of violence under
§ 924(c) is a question of law and is reviewed de novo. Id. The scope
of our review of an unsuccessful § 2255 motion is limited to the
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 3 of 9
21-11740 Opinion of the Court 3
issues enumerated in the COA. McKay v. United States,
657 F.3d
1190, 1195 (11th Cir. 2011).
Section 924(c) of Title 18 of the U.S. Code provides for a
mandatory consecutive sentence for any defendant who uses or
carries a firearm during a crime of violence or a drug-trafficking
crime.
18 U.S.C. § 924(c)(1). For the purposes of § 924(c), a “crime
of violence” means an offense that is a felony and:
(A) has as an element the use, attempted use, or
threatened use of physical force against the per-
son or property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of commit-
ting the offense.
Id. § 924(c)(3)(A), (B) (emphasis added). Section 924(c)(3)(A) is
known as the “elements clause,” while § 924(c)(3)(B) is known as
the “residual clause.” See, e.g., Thompson v. United States,
924
F.3d 1153, 1155 (11th Cir. 2019).
In Davis, the U.S. Supreme Court held that the residual
clause in § 924(c)(3)(B) was unconstitutionally vague. United
States v. Davis,
139 S. Ct. 2319, 2336 (2019). Therefore, an offense
can only qualify as a crime of violence if it “has as an element the
use, attempted use, or threatened use of physical force against the
person or property of another.”
Id.
“[W]e use a categorial approach to determine whether a
predicate offense is a ‘crime of violence’ under the elements clause.
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 4 of 9
4 Opinion of the Court 21-11740
That is, we ask whether the elements of the predicate offense in the
statute denote a ‘crime of violence’; we do not look to the particu-
lar facts of the defendant’s conduct or the specifics of the defend-
ant’s trial.” Alvarado-Linares v. United States,
44 F.4th 1334, 1342
(11th Cir. 2022) (citing United States v. Bates,
960 F.3d 1278, 1286
(11th Cir. 2020)). “Specifically, we must decide whether a convic-
tion. . . requires the government to prove—as an element of the
offense—the use or attempted use of physical force.”
Id. at 1346.
Section 2113 of Title 18 of the U.S. Code states, in relevant
part:
(a) Whoever, by force and violence, or by intimi-
dation, takes, or attempts to take, from the per-
son or presence of another, or obtains or at-
tempts to obtain by extortion any property or
money or any other thing of value belonging
to, or in the care, custody, control, manage-
ment, or possession of, any bank, credit union,
or any savings and loan association; or
Whoever enters or attempts to enter any bank,
credit union, or any savings and loan associa-
tion, or any building used in whole or in part
as a bank, credit union, or as a savings and loan
association, with intent to commit in such
bank, credit union, or in such savings and loan
association, or building, or part thereof, so
used, any felony affecting such bank or such
savings and loan association and in violation of
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 5 of 9
21-11740 Opinion of the Court 5
any statute of the United States, or any lar-
ceny–
Shall be fined under this title or imprisoned not
more than twenty years, or both.
(d) Whoever, in committing, or in attempting to
commit, any offense defined in subsections (a)
and (b) of this section, assaults any person, or
puts in jeopardy the life of any person by the
use of a dangerous weapon or device, shall be
fined under this title or imprisoned not more
than twenty-five years, or both.
(e) Whoever, in committing any offense defined
in this section, or in avoiding or attempting to
avoid apprehension for the commission of
such offense, or in freeing himself or attempt-
ing to free himself from arrest or confinement
for such offense, kills any person, or forces any
person to accompany him without the consent
of such person, shall be imprisoned not less
than ten years, or if death results shall be pun-
ished by death or life imprisonment.
18 U.S.C. § 2113(a), (d), and (e).
We have held that a bank robbery conviction under
§ 2113(a) qualifies as a “crime of violence” under § 924(c)(3)(A)’s
elements clause because a “taking ‘by force and violence’ entails
the use of physical force” and “a taking ‘by intimidation’ involves
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 6 of 9
6 Opinion of the Court 21-11740
the threat to use such force.” In re Sams,
830 F.3d 1234, 1239 (11th
Cir. 2016). We have also held that armed bank robbery convictions
under § 2113(a) and (d) qualify as crimes of violence under the ele-
ments clause. In re Hines,
824 F.3d 1334, 1336-37 (11th Cir. 2016).
In Taylor, a federal prisoner filed a successive § 2255 motion,
challenging the enhancement of his sentence based on a prior con-
viction for attempted Hobbs Act robbery being identified as the
predicate crime of violence. Taylor, 142 S. Ct. at 2019; id. at 2027
(Thomas, J., dissenting) (noting that the Fourth Circuit had granted
Taylor leave to file a second or successive § 2255 motion). The dis-
trict court denied his motion, but the Fourth Circuit vacated and
remanded. Id. at 2019-20. On certiorari review, the Supreme
Court resolved a circuit split and held that attempted Hobbs Act
robbery does not qualify as a predicate crime of violence under
§ 924(c)(3)(A)’s elements clause. Id. at 2019-21. At the outset, the
Court noted that, under the categorical approach, the facts of a par-
ticular defendant’s case are immaterial because the “only relevant
question is whether the federal felony at issue always requires the
government to prove—beyond a reasonable doubt, as an element
of its case—the use, attempted use, or threatened use of force.” Id.
at 2020.
The Court then explained that, to prove attempted Hobbs
Act robbery, the government must show that the defendant in-
tended to unlawfully take or obtain personal property by means of
actual or threatened force and completed a “substantial step” to-
ward that end. Id. But the Court noted that, while the government
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 7 of 9
21-11740 Opinion of the Court 7
would have to show that the defendant took an “unequivocal” and
“significant” step towards committing robbery, the government
need not show that the defendant actually used, attempted to use,
or even threatened to use force, as required by § 924(c). Id. at 2020
21. The Court stressed that “an intention to take property by force
or threat, along with a substantial step toward achieving that ob-
ject, . . . is just that, no more.” Id. at 2020. For example, the Court
elaborated, a defendant who was apprehended before reaching his
robbery victim could be convicted of attempted Hobbs Act rob-
bery, even though he has not yet engaged in threatening conduct,
so long as the government had other evidence of his intent and a
substantial step. Id. at 2020-21. Therefore, the Court concluded
that attempted Hobbs Act robbery was not a crime of violence un-
der the text of § 924(c)(3)(A). Id. at 2021.
In so holding, the Supreme Court rejected the government’s
argument, adopted by this Court in United States v. St. Hubert,
909
F.3d 335 (11th Cir. 2018), that, because a completed Hobbs Act rob-
bery qualifies as a crime of violence, an attempted Hobbs Act rob-
bery must qualify as well.
Id. at 2021-22 (citing St. Hubert,
909 F.3d
at 352-53). The Court emphasized that the “elements clause does
not ask whether the defendant committed a crime of violence or
attempted to commit one,” but rather “asks whether the defendant
did commit a crime of violence.” Id. at 2022 (emphasis in original).
The Court concluded that, had Congress intended the elements
clause to encompass attempted crimes of violence, it could have
explicitly included attempt in its definition. Id. Ultimately, the
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 8 of 9
8 Opinion of the Court 21-11740
Court affirmed the Fourth Circuit’s decision to reverse and remand
Taylor’s enhanced sentence. Id. at 2019-20, 2025-26.
In Alvarado-Linares, which was decided after Taylor, we af-
firmed the defendant’s convictions under, the Violent Crimes in
Aid of Racketeering Act (“VICAR”) and § 924(c), holding that mal-
ice murder and attempted murder qualified as “crimes of violence.”
Alvarado-Linares, 44 F.4th at 1348. Because the indictment alleged
that the VICAR charges were based on violations of Georgia’s mal-
ice murder and attempted murder statutes, we relied on the ele-
ments of Georgia malice murder and concluded that it necessarily
entails the use of physical force against another, and thus qualifies
as a crime of violence. Id. at 1343-45. It also noted that the federal
definition of murder also contains an element of force, so a VICAR
murder conviction predicated on federal murder would also meet
the definition of a crime of violence. Id. at 1345.
We also held that, under the categorical approach, Al-
varado-Linares’s convictions for attempted murder qualified as
crimes of violence because a conviction for attempted murder un-
der Georgia or federal law requires the intent to kill someone and
the completion of a substantial step toward that goal, which quali-
fies as an attempted use of force. Id. at 1346-48. We distinguished
Taylor because, unlike Hobbs Act robbery, an individual always
must use force to commit murder and cannot commit the least-cul-
pable form of murder via a mere threat. Id. We interpreted “Tay-
lor to hold that, where a crime may be committed by the threat-
ened use of force, an attempt to commit that crime—i.e., an
USCA11 Case: 21-11740 Document: 33-1 Date Filed: 02/09/2023 Page: 9 of 9
21-11740 Opinion of the Court 9
attempt to threaten—falls outside the elements clause.” Id. at 1346.
Therefore, because the completed crime of murder has an element
of the use of force, attempted murder has as an element the at-
tempted use of force. Id. at 1348.
Section 2(a) of Title 18 of the U.S. Code states, “Whoever
commits an offense against the United States or aids, abets, coun-
sels, commands, induces or procures its commission, is punishable
as a principal.”
18 U.S.C. § 2(a).
In In re Colon, we found that aiding and abetting a Hobbs
Act robbery also qualifies as a “crime of violence” under the
use-of-force clause in § 924(c)(3)(A). In re Colon,
826 F.3d 1301,
1305 (11th Cir. 2016) (successive application context). In reaching
this conclusion, we noted that, under
18 U.S.C. § 2, aiding and abet-
ting is not a separate federal crime, but rather, an alternative charge
that permits one to be found guilty as a principal for the substantive
crimes, taking on the acts of the principal as a matter of
law.
Id. This Court also reasoned that, “because an aider and abet-
tor is responsible for the acts of the principal as a matter of law, an
aider and abettor of a Hobbs Act robbery necessarily commits all
the elements of a principal Hobbs Act robbery.”
Id.
For these reasons, we conclude that the district court did not
err in denying Henderson’s motion to vacate and affirm.
AFFIRMED.
