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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11093
Non-Argument Calendar
________________________
D.C. Docket Nos. 3:17-cv-00178-RV-EMT; 3:97-cr-00068-RV-EMT-1
JOSEPH FENELON COOPER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 12, 2021)
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
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Joseph Fenelon Cooper appeals the district court’s dismissal of his second and
successive section 2255 motion. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 7, 1997, Cooper, armed with a pistol, entered First Union Bank in
Tallahassee, Florida. Cooper banged his pistol on the counter, warned the teller “this
isn’t a joke, [g]ive me the money,” and left the bank with $2,418.
A few weeks later, on March 31, 1997, Cooper and two co-conspirators
planned to rob the Premier Bank in Tallahassee after carjacking a taxi. They
successfully stole the cab, but when they got to the bank, they noticed that it was
busy. They decided to wait for “business to slow down,” and began circling the bank
in the stolen cab. But their plans were thwarted when a police officer spotted the
stolen cab and attempted to pull them over. Cooper and his co-conspirators fled and
eventually abandoned the stolen cab, leaving a loaded handgun in the back seat. In
the process of fleeing, they also left behind a backpack containing gloves, masks, a
hammer, and another handgun. They were eventually caught and arrested. Cooper’s
co-conspirators admitted that they planned to use the guns during the robbery.
In connection with the attempted robbery of Premier Bank, Cooper was
charged with attempting bank robbery, in violation of 18 U.S.C. section 2113(a), and
possessing a firearm during a crime of violence, in violation of 18 U.S.C. section
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924(c).1 As to the attempted bank robbery, the indictment charged that Cooper
“attempt[ed], by force, violence, and intimidation, to take from the presence of
another, United States currency belonging to and in the care, custody, control,
management, and possession of the Premier Bank,” in violation of 18 U.S.C. section
2113(a). And, as to possessing a firearm during a crime of violence, the indictment
charged that the attempted bank robbery was the predicate “crime of violence” under
section 924(c). A jury convicted Cooper of both charges.
Cooper moved for a judgment of acquittal. The district court denied the
motion, and, as to the possession of a firearm in connection with a crime of violence
charge, the district court concluded that it could “construe [it] as applying to an
armed bank robbery as being one of those crimes, and an attempted bank robbery to
be sufficient, to be a crime of violence.” The district court then sentenced Cooper
to one hundred sixty months’ imprisonment for attempted bank robbery and sixty
months’ imprisonment for possessing a firearm during a crime of violence. Cooper
appealed, and we affirmed. United States v. Cooper,
176 F.3d 492 (11th Cir. 1999).
1
For his role in the completed robbery of First Union Bank, Cooper was convicted of
(1) conspiring to commit bank robbery, (2) armed bank robbery, and (3) possessing a firearm in
connection with a crime of violence. Cooper does not challenge these convictions in his section
2255 motion.
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In 2000, Cooper filed a section 2255 motion to vacate his convictions. The
district court denied his motion, and we denied his request for a certificate of
appealability.
Then, in 2016, after the Supreme Court held in Johnson v. United States,
576
U.S. 591 (2015) that the residual clause of the Armed Career Criminal Act was
unconstitutionally vague, Cooper sought permission to file a second section 2255
motion. We granted him permission as to his section 924(c) conviction because we
could not “definitively say that the attempted-bank-robbery charge against Cooper
involved the use, attempted use, or threatened use of physical force against another.”
So, we directed the district court to consider his claim and determine whether
Cooper’s motion satisfied the requirements of section 2255(h).
Cooper argued that “under the facts of this case” his attempted bank robbery
could only have been a crime of violence under the residual clause because the
evidence at his trial “did not establish force or intimidation in any way” as it related
to the attempted bank robbery. Cooper also argued that because his statute of
conviction, 18 U.S.C. section 2113(a), contained two ways to commit attempted
bank robbery, one of which did not require proof of force or intimidation, it could
not be considered a crime of violence except under the residual clause. 2 And,
2
Under section 2113(a), there are two ways to commit attempted bank robbery.
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because the government did not show force or intimidation, Cooper argued, he could
only have been convicted under paragraph two of section 2113(a), which did not
include force, violence, or intimidation as an element.
The district court dismissed Cooper’s second section 2255 motion because he
failed to satisfy the requirements of section 2255(h). The district court explained
that Cooper had to show that it was “more likely than not that the residual clause,
and only the residual clause, was the basis for the conviction.” The district judge—
who was the judge that sentenced Cooper—found that he relied exclusively on the
elements clause of section 924(c)(3). The district court also found that our decisions
after Cooper’s conviction confirmed that attempted bank robbery “qualifie[d] as an
elements clause crime of violence.” The district court explained that bank robbery
was a crime of violence under section 924(c)(3)’s elements clause, see In re Sams,
[(1)] 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; or
[(2)] Whoever enters or attempts to enter any bank, credit union, or any savings and
loan association, 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, credit union, or such savings and loan association and
in violation of any statute of the United States, or any larceny
Shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 2113(a).
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830 F.3d 1234, 1239 (11th Cir. 2016) (per curiam), and that “attempted crimes of
violence may also categorically qualify [as crimes of violence] under [section]
924(c)(3)(A).”
We granted a certificate of appealability to determine:
Whether the district court erred in finding that Cooper failed to satisfy
his burden under Beeman v. United States,
871 F.3d 1215 (11th Cir.
2017), to show that he was unconstitutionally sentenced under the
residual clause of 18 U.S.C. [section] 924(c), when he was convicted
of attempted armed bank robbery.
STANDARD OF REVIEW
When reviewing a district court’s dismissal of a section 2255 motion, we
review the district court’s factual findings for clear error and legal determinations de
novo. United States v. Pickett,
916 F.3d 960, 964 (11th Cir. 2019).
DISCUSSION
Section 924(c) of the Armed Career Criminal Act makes it a separate crime,
punishable by a five-year minimum sentence consecutive to any other sentence, to
use or carry a firearm “during and in relation to,” or possess a firearm “in furtherance
of,” any “crime of violence.” 18 U.S.C. § 924(c). The Act defines a “crime of
violence” as a felony offense that: (A) “has as an element the use, attempted use, or
threatened use of physical force against the person or property of another”; or (B)
“by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.” Id.
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§ 924(c)(3)(A)–(B). The first part of the definition is known as the elements clause,
and the second part is known as the residual clause. Granda v. United States,
990
F.3d 1272, 1284 (11th Cir. 2021). In United States v. Davis,
139 S. Ct. 2319 (2019),
the Supreme Court held that section 924(c)(3)’s residual clause was
unconstitutionally vague.
Cooper argues that the district court erred by dismissing his section 2255
motion because he met his burden “to show that his [section] 924(c) conviction
resulted from application of solely the residual clause.” See In re Hammoud,
931
F.3d 1032, 1041 (11th Cir. 2019) (per curiam) (explaining that the section 2255
movant “bear[s] the burden of showing he is actually entitled to relief on his Davis
claim, meaning he will have to show that his [section] 924(c) conviction resulted
from application of solely the residual clause”). Cooper contends that, because the
government did not establish force or intimidation in connection with his attempted
bank robbery, his conviction must have been under the second paragraph of section
2113(a), which could only have been a crime of violence under section 924(c)(3)’s
residual clause. We disagree.
In Granda, we held that collateral relief for a Davis claim is subject to
harmless error review. 990 F.3d at 1292. The harmless error standard provides that
“relief is proper only if we have grave doubt” about whether an error, including
improperly relying on section 924(c)(3)’s invalid residual clause, had a “substantial
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and injurious effect or influence in determining the . . . verdict.” Id. (quoting Davis
v. Ayala,
576 U.S. 257, 267–68 (2015)). Put another way, we may only grant relief
“if the error ‘resulted in actual prejudice.’”
Id. (quoting Brecht v. Abrahamson,
507
U.S. 619, 637 (1993)). To show actual prejudice, we must “ask directly whether the
error substantially influenced” the court’s decision.
Id. (internal quotation marks
omitted). It is not enough that the court could have relied on the now-invalid residual
clause; we can only grant relief if Cooper can show that the court did rely on the
residual clause.
Id. at 1288. Here, we have no “grave doubt” about whether Cooper
was convicted and sentenced based solely on the residual clause because the district
court’s findings, the indictment, and the jury instructions show that the district court
relied on the elements clause.
First, the district court found that it relied solely on the elements clause of
section 924(c)(3) to determine that attempted bank robbery was a crime of violence.
“The district court obviously is in a better position than we are to evaluate what
likely happened [at sentencing],” especially since this is the same judge who initially
sentenced Cooper. See Pickett, 916 F.3d at 967. And Cooper has not shown that
the district court’s conclusion—that it relied solely on section 924(c)(3)’s elements
clause—was clearly erroneous because he has not identified any evidence in the trial
or sentencing record contradicting the district court’s conclusion. See id. at 964
(reviewing a district court’s factual findings for clear error).
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Second, the indictment supports the conclusion that the district court relied on
the elements clause because the indictment based the section 924(c) charge on
attempted bank robbery under the first paragraph of section 2113(a). The indictment
charged that Cooper “attempt[ed], by force, violence, and intimidation, to take from
the presence of another, United States currency belonging to and in the care, custody,
control, management, and possession of the Premier Bank” in violation of 18 U.S.C.
section 2113(a). This charge mirrors almost exactly the first paragraph of section
2113(a). See 18 U.S.C. § 2113(a) (“Whoever, by force and violence, or by
intimidation, . . . attempts to take, from the person or presence of another, . . . money
. . . in the care, custody, control, management, or possession of, any bank”). And,
attempted bank robbery under the first paragraph of section 2113(a) “has as an
element the use, attempted use, or threatened use of physical force against the person
or property of another.” See id. § 924(c)(3)(A).
Moreover, “a bank robbery conviction under [section] 2113(a) by force and
violence or by intimidation qualifies as a crime of violence” under the elements
clause of section 924(c). In re Sams, 830 F.3d at 1239. And, when a substantive
offense qualifies as a crime of violence under the elements clause, an attempt to
commit that offense is itself a crime of violence “given [section] 924(c)’s ‘statutory
specification that an element of attempted force operates the same as an element of
completed force, and the rule that conviction of attempt requires proof of intent to
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commit all elements of the completed crime.’” United States v. St. Hubert,
909 F.3d
335, 352 (11th Cir. 2018) (citation omitted), abrogated on other grounds by Davis,
139 S. Ct. 2319. So, even where a defendant’s actions in attempting bank robbery
“fall[] short of actual or threatened force, the robber has attempted to use actual or
threatened force because he has attempted to commit a crime that would be violent
if completed.”
Id. at 353 (discussing attempted Hobbs Act robbery).3
Third, like the indictment, the jury instructions reinforce the conclusion that
the district court relied on the elements clause in determining that Cooper’s
attempted bank robbery conviction was a crime of violence. Here, “there is no
uncertainty about whether the jury in [Cooper’s] case relied on a predicate offense
that is a violent crime.” See In re Price,
964 F.3d 1045, 1048 (11th Cir. 2020). The
jury instructions told the jury that it only could convict Cooper of possessing a
firearm in connection with a crime of violence if it found him guilty of attempted
bank robbery. The instructions also explained that:
[Cooper] can be found guilty of [attempted bank robbery] only if all
of the following facts are proved beyond a reasonable doubt:
First: That [Cooper] knowingly attempted to take from the person or
the presence of the person described in the indictment, money or
3
Cooper argues that St. Hubert was wrongly decided and should be overturned. But “we
are bound by all prior panel decisions, ‘unless and until they are overruled or undermined to the
point of abrogation by the Supreme Court or by this Court sitting en banc.’” Hylor v. United
States,
896 F.3d 1219, 1226 (11th Cir. 2018) (alteration adopted) (quoting United States v.
Deshazior,
882 F.3d 1352, 1355 (11th Cir. 2018)).
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property then in the possession of a federally insured bank as
charged; and
Second: That [Cooper] intended to do so by means of force or
violence or by means of intimidation.
(emphasis added). The jury instructions continued: “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. . . . The essence of the offense is the
taking of money or property aided and accompanied by intentionally intimidating
behavior on the part of [Cooper].” The jury instructions did not say Cooper could
be convicted for merely attempting to enter the bank (i.e., committing attempted
bank robbery under the second paragraph of the attempted bank robbery statute);
rather, they required the jury to find that Cooper attempted to take money from the
bank “by means of force or violence or by means of intimidation.” Thus, the jury
instructions show that when the district court looked to them to determine if
Cooper’s attempted bank robbery conviction was a crime of violence, it considered
the first paragraph of the attempted bank robbery statute, see 18 U.S.C. § 2113(a),
which “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another,” see 18 U.S.C. § 924(c)(3)(A).
Because the indictment and jury instructions show that Cooper was convicted
and sentenced under the first paragraph of the attempted bank robbery statute, and
Cooper has not pointed to any evidence showing that the district court clearly erred
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by concluding that it relied solely on the elements clause, Cooper cannot show that
the district court relied on section 924(c)(3)’s residual clause. In sum, this record
does not show a “substantial likelihood” that the district court did not rely in whole
or in part on the elements clause when sentencing Cooper. See Granda, 990 F.3d at
1288.
AFFIRMED.
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