United States v. Deandre Armour ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2170
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANDRE ARMOUR,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cr-00159-SEB-DKL-01 — Sarah Evans Barker, Judge.
____________________
ARGUED MAY 24, 2016 — DECIDED NOVEMBER 1, 2016
____________________
Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal stems from an at-
tempted bank robbery. It presents issues concerning the de-
fendant’s sentence and the definition of a “crime of violence”
in 18 U.S.C. § 924(c), which provides extra punishment for use
of a firearm in committing a crime of violence. We affirm the
district court’s judgment for the most part, but we must re-
mand for re-sentencing on one count of conviction because
2 No. 15-2170
the court imposed a mandatory minimum sentence under
§ 924(c) without a jury finding on the key fact.
I. The Attempted Bank Robbery, Trial, and Sentence
On the morning of June 26, 2013, appellant Deandre Ar-
mour directed two other men as they attempted to rob a bank
branch in a suburb of Indianapolis. Duryea Rogers and Xavier
Hardy hid outside the bank entrance and forced a teller into
the bank at gunpoint as she was opening the locked door. Ar-
mour sat in the bank parking lot and directed Rogers and
Hardy by radio. Armour had recruited Rogers and Hardy be-
fore the robbery. He supplied them with clothing, reserved
their hotel rooms, and orchestrated the plan.
Inside the bank, Hardy stood lookout for more arriving
employees while Rogers ordered the teller to disable the
bank’s alarm and open the safe. No other bank employees
were trying to go inside the bank because they had not been
given the all-clear signal. In the meantime, the teller inside the
bank was unable to open the safe. Once Rogers realized the
bank teller could not open the safe, he told Armour over the
radio that they needed to abort the robbery. Rogers and
Hardy forced the teller to the floor, tied her with plastic “zip
ties,” and stole her car to flee. All three men were arrested
quickly; two firearms were found with them.
Rogers and Hardy pled guilty. Both testified against Ar-
mour, who went to trial. The jury found Armour guilty on
three charges: conspiracy to commit armed bank robbery un-
der 18 U.S.C. § 371; aiding and abetting attempted armed
bank robbery under 18 U.S.C. § 2113(a) and (d) and § 2; and
aiding and abetting using or carrying and/or brandishing a
No. 15-2170 3
firearm during and in relation to a crime of violence under 18
U.S.C. § 924(c). Armour was sentenced to a total of 324
months (27 years) in prison. The sentence included an 84-
month (seven-year) consecutive sentence on the § 924(c)
charge, which is the mandatory minimum sentence for bran-
dishing a firearm.
On appeal, Armour does not challenge his convictions for
conspiracy and aiding and abetting the attempted bank rob-
bery. He makes three arguments. First, he argues his entire
sentence was erroneously based on a finding that he was a
career offender under the Sentencing Guidelines. He con-
tends, based on Samuel Johnson v. United States, 576 U.S. —,
135 S. Ct. 2551 (2015), that two prior Indiana convictions for
robbery should no longer qualify as “crimes of violence” un-
der the Guidelines. (Since there are two relevant opinions
called Johnson v. United States, we include first names.) Sec-
ond, also based on Samuel Johnson, he contends that the
§ 924(c) firearm conviction must be reversed because the un-
derlying predicate offense, attempted armed bank robbery,
should not qualify as a “crime of violence.” Third, if his
§ 924(c) conviction stands, Armour contends that the seven-
year mandatory minimum § 924(c) sentence should be va-
cated under Alleyne v. United States, 570 U.S. —, 133 S. Ct. 2151(2013), because the jury did not find that he aided and abetted
the “brandishing” of the firearms during the attempted rob-
bery. We affirm on the first two issues but agree with Armour
on the last.
II. Indiana Robbery as a “Crime of Violence”
Armour was sentenced as a career offender under § 4B1.1
of the United States Sentencing Guidelines. That designation
4 No. 15-2170
depended on treating as crimes of violence two prior convic-
tions for robbery under Indiana law. Based on Samuel Johnson,
Armour argues that those Indiana robbery convictions under
Ind. Code § 35-42-5-1 should not be treated as “crimes of vio-
lence” under § 4B1.1. Armour’s trial counsel objected to the
career offender designation and mentioned the Samuel John-
son case, which was then awaiting a decision by the Supreme
Court.
After Armour was sentenced, the Supreme Court held in
Samuel Johnson that the “residual clause” in the definition of a
“violent felony” in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2), is unconstitutionally vague. 576 U.S. at —, 135 S.
Ct. at 2557. We recently held that Samuel Johnson applies to
invalidate the virtually identical residual clause of the defini-
tion of “crime of violence” in § 4B1.2(a) of the advisory Sen-
tencing Guidelines. United States v. Hurlburt, — F.3d —, 2016
WL 4506717 (7th Cir. Aug. 29, 2016) (en banc). Those decisions
leave intact the “elements clause” of the “crime of violence”
definition under § 4B1.2(a)(1), which applies to Armour’s
convictions for robbery.
Armour argues that Indiana robbery does not qualify as a
crime of violence under the elements clause of § 4B1.2 because
it may be committed not only by using or threatening the use
of force but also by “putting any person in fear.” Ind. Code
§ 35-42-5-1.1 He argues that “putting any person in fear” does
not necessarily involve “the use, attempted use, or threatened
use of physical force against the person of another.”
1 A comprehensive retooling of Indiana’s criminal code took effect in
2014 and reclassified the severity of crimes, including robbery. Ind. Pub.
L. 158–2013, § 450. The amendments are not relevant to the issues here.
No. 15-2170 5
In United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), we
rejected the same argument based on “putting any person in
fear” as applied to the elements clause of the definition of a
“violent felony” under the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(i). We explained in Duncan that the
“fear” in the Indiana robbery statute is fear of bodily injury,
and Indiana courts have interpreted the statute so that “rob-
bery by placing a person in fear of bodily injury under Indi-
ana law involves an explicit or implicit threat of physical force
and therefore qualifies as a violent felony” under the statute.
833 F.3d at 758; see also United States v. Lewis, 405 F.3d 511,
514 (7th Cir. 2005). The reasoning of Duncan extends to the
career offender Guideline here. The district court properly
sentenced Armour as a career offender under the Guidelines.
III. Federal Attempted Bank Robbery as a “Crime of Violence”
Armour was convicted of using, carrying, and/or bran-
dishing a firearm “during and in relation to any crime of vio-
lence” in violation of 18 U.S.C. § 924(c). Armour argues that
the Supreme Court’s decision in Samuel Johnson requires us to
reverse his conviction on that count because attempted armed
bank robbery does not qualify as a “crime of violence” for
purposes of § 924(c). We disagree because the federal crime of
attempted armed bank robbery qualifies as a crime of violence
under the “elements” clause of the definition, which is not un-
constitutionally vague.
As noted, Samuel Johnson held that the residual clause of
the definition of a “violent felony” in the Armed Career Crim-
inal Act (ACCA) is unconstitutionally vague. 576 U.S. at —,
135 S. Ct. at 2557. Armour was not sentenced under the ACCA
enhancement under § 924(e) but was convicted under 18
U.S.C. § 924(c)(1)(A), which provides:
6 No. 15-2170
Except to the extent that a greater minimum
sentence is otherwise provided by this subsec-
tion or by any other provision of law, any per-
son who, during and in relation to any crime of
violence … for which the person may be prose-
cuted in a court of the United States, uses or car-
ries a firearm, or who, in furtherance of any
such crime, possess a firearm, shall, in addition
to the punishment provided for such crime of
violence or drug trafficking crime … (i) be sen-
tenced to a term of imprisonment of not less
than 5 years.
The definition of “crime of violence” in § 924(c) tracks closely
the ACCA definition that was struck down in part in Samuel
Johnson, including the elements clause and the residual clause:
For purposes of this subsection the term “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.
18 U.S.C. § 924(c)(3). The Supreme Court has not said whether
the residual clause of § 924(c)(3) is also unconstitutionally
vague, though the parallels to Samuel Johnson and the ACCA
definition are strong. We need not decide that question here,
No. 15-2170 7
however. Armour’s conviction for attempted bank robbery
under 18 U.S.C. § 2113(a) satisfies the elements clause of the
definition of the “crime of violence.”
Since Armour did not raise this issue of law in the district
court, our review is for plain error, see United States v. Olano,
507 U.S. 725, 732–35 (1993), but on this issue the standard of
review does not matter. We find no error, plain or otherwise.
We assume for purposes of argument that Samuel Johnson ex-
tends to the residual clause in the definition of “crime of vio-
lence” in § 924(c)(3).2 Even with that assumption, Armour’s
§ 924(c) conviction still stands because the conviction for at-
tempted armed bank robbery satisfies the elements clause of
the definition. The crime had “as an element the use, at-
tempted use, or threatened use of physical force against the
person or property of another.” § 924(c)(3)(A).
The federal bank robbery statute provides in relevant part:
(a) Whoever, by force and violence, or by intimida-
tion, 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
2 The Second Circuit recently held that Samuel Johnson does not extend
to the residual clause in § 924(c)(3). United States v. Hill, 832 F.3d 135, 145–
50 (2d Cir. 2016). In Hill the Second Circuit noted that we and four other
circuits have held that Samuel Johnson extends to the residual clause in 18
U.S.C. § 16(b), which is essentially the same as the residual clause in
§ 924(c)(3). Id. at 149, citing United States v. Vivas-Ceja, 808 F.3d 719, 723
(7th Cir. 2015), among other cases. The Supreme Court recently granted
review in a case presenting the § 16(b) issue. Lynch v. Dimaya, No. 15-1498,
cert. granted, Sept. 29, 2016.
8 No. 15-2170
care, custody, control, management, or posses-
sion of, any bank, … 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.
18 U.S.C. § 2113(a) & (d). Armour did not actually enter the
bank during the attempted robbery. He was convicted under
18 U.S.C. § 2 as a person who aided, abetted, counseled, com-
manded, induced, or procured commission of the attempted
robbery.
Armour bases his challenge on the fact that a person can
commit robbery by “intimidation,” as distinct from “by force
or violence,” and he argues that robbery by “intimidation”
does not qualify as a crime of violence. We disagree. In apply-
ing the categorical approach to the elements of § 2113(a) and
(d), we must presume the conviction rested on the least seri-
ous acts that could satisfy the statute. See Curtis Johnson v.
United States, 559 U.S. 133, 137 (2010), citing Shepard v. United
States, 544 U.S. 13, 26 (2005). “Intimidation means the threat
of force.” United States v. Jones, 932 F.2d 624, 625 (7th Cir.
1991). Intimidation exists “when a bank robber’s words and
actions would cause an ordinary person to feel threatened, by
giving rise to a reasonable fear that resistance or defiance will
No. 15-2170 9
be met with force.” United States v. Gordon, 642 F.3d 596, 598
(7th Cir. 2011), citing United States v. Thornton, 539 F.3d 741,
748 (7th Cir. 2008); United States v. Burnley, 533 F.3d 901, 903
(7th Cir. 2008); United States v. Clark, 227 F.3d 771, 775 (7th Cir.
2000). “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. The
intimidation element is satisfied “if an ordinary person would
reasonably feel threatened under the circumstances.” Burnley,
533 F.3d at 903. In Burnley, we explained that the defendant
“does not have to make an explicit threat or even announce
that he is there to rob the bank. Credibly implying that a re-
fusal to comply with a demand for money will be met with
more forceful measures is enough.” Id.Curtis Johnson teaches that the violent force that must be
feared for robbery by intimidation to be a crime of violence
has a low threshold — a fear of a slap in the face is enough.
See Curtis Johnson, 559 U.S. at 143; see also Duncan, 833 F.3d at
754. This low threshold of violent force is necessarily satisfied
in attempted bank robbery by intimidation. A bank employee
can reasonably believe that a robber’s demands for money to
which he is not entitled will be met with violent force of the
type satisfying Curtis Johnson because bank robbery under
§ 2113(a) inherently contains a threat of violent physical force.
Armour also argues that his conviction should be vacated
because robbery under § 2113(d) could be accomplished by
“assault.” The jury was instructed here that “assault” means
“an intentional attempt to inflict, or threat to inflict, bodily in-
jury upon another person with the apparent and present abil-
ity to cause such injury that creates in the victim a reasonable
10 No. 15-2170
fear or apprehension of bodily harm. An assault may be com-
mitted without actually touching, striking, or injuring the
other person.” Under § 2113(d), the “assault” putting the vic-
tim in fear must be “by the use of a dangerous weapon or de-
vice,” so we need not worry about such hypothetical minor
injuries as paper cuts or hits from painful snowballs. Cf. Flores
v. Ashcroft, 350 F.3d 666, 670, 672 (7th Cir. 2003) (misdemeanor
battery with bodily injury not a crime of domestic violence
under immigration statute because such minor injuries could
satisfy criminal statute). Thus, for the same reasons that rob-
bery by intimidation under § 2113(a) qualifies as a crime of
violence under § 924(c), so does robbery by assault by a dan-
gerous weapon or device under § 2113(d). The victim’s fear of
bodily harm is necessarily fear of violent physical force that is
inherent in armed bank robbery.
For these reasons, robbery by intimidation under § 2113(a)
and robbery by assault by a dangerous weapon or device un-
der § 2113(d) have as an element the use, attempted use, or
threatened use of physical force against the person or prop-
erty of another and thus qualify as crimes of violence under
§ 924(c). Accord, In re Sams, 830 F.3d 1234, 1238 (11th Cir.
2016); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); United
States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). We affirm
Armour’s conviction for using or brandishing a firearm dur-
ing and in relation to a “crime of violence.”3
3Some offenders convicted of attempts to commit crimes of violence
have argued that their attempts should not be deemed crimes of violence
because the substantial step toward completion of the crime need not itself
be a violent step. Such an argument is difficult to square with the statutory
language reaching an offense that “has as an element the … attempted use
… of physical force.” An attempt conviction requires proof of intent to
No. 15-2170 11
IV. Brandishing a Firearm
Finally, Armour contends that his § 924(c) sentence should
be vacated because the jury did not find facts necessary for
the court to apply the seven-year mandatory minimum sen-
tence for “brandishing” a firearm as required by Alleyne v.
United States, 570 U.S. —, 133 S. Ct. 2151 (2013). Armour did
not raise this issue in the district court, so we also review this
issue only for “plain error.” United States v. Cureton, 739 F.3d
1032, 1045 (7th Cir. 2014). Under this standard, we will not
reverse a decision unless the defendant demonstrates “(1)
[that] there was error; (2) that the error was plain; and (3) that
the error affected the defendant’s substantial rights.” Id., cit-
ing United States v. Olano, 507 U.S. 725, 732–35 (1993). If all
three of these conditions are met, we will reverse if the error
“‘seriously affect[s] the fairness, integrity, or public reputa-
tion of the judicial proceedings,’ that is, if the error would re-
sult in a miscarriage of justice.” Id., citing Olano, 507 U.S. at732–35, and United States v. Ramirez-Fuentes, 703 F.3d 1038,
1042 (7th Cir. 2013) (internal citation omitted).
This demanding standard is met here. The jury’s verdict
did not find, expressly or even implicitly, that Armour was
responsible for “brandishing” firearms in the robbery. The
jury instructions and verdict form simply did not require the
jury to distinguish among using, carrying, and brandishing a
firearm. The district court plainly erred under Alleyne by ap-
carry out all elements of the crime, including, for violent offenses, threats
or use of violence. Armour has not raised such an argument here, which
we would view skeptically. See Morris v. United States, 827 F.3d 696, 698–
99 (7th Cir. 2016) (Hamilton, J., concurring.)
12 No. 15-2170
plying to Armour the mandatory minimum seven-year con-
secutive sentence for brandishing without a jury verdict find-
ing him guilty of brandishing.
Section 924(c)(1)(A) provides that anyone who “uses or
carries a firearm” in relation to a “crime of violence” shall:
(i) be sentenced to a term of imprisonment
of not less than 5 years;
(ii) if the firearm is brandished, be sentenced
to a term of imprisonment of not less
than 7 years; and
(iii) if the firearm is discharged, be sentenced
to a term of imprisonment of not less
than 10 years.
The jury was instructed as follows on the charge under
§ 924(c)(1)(A):
In order for you to find the Defendant guilty of
this charge as a coconspirator, the government
must prove each of the following elements be-
yond a reasonable doubt:
First: The Defendant, acting as a coconspirator,
committed the crime of attempted armed bank
robbery as charged in Count Two of the Indict-
ment; and
Second: The Defendant, acting as a coconspira-
tor, knowingly used or carried and/or bran-
dished a firearm during and in relation to that
crime.
No. 15-2170 13
Since Armour did not enter the bank himself, the jury was
also instructed under a theory of aiding and abetting under
18 U.S.C. § 2. That instruction said that Armour could be con-
victed under this theory only if he “knowingly and intention-
ally assisted another’s use, carrying or brandishing of a fire-
arm during and in relation to a crime of violence.” The in-
struction also said that a “person who merely aids the under-
lying offense, to wit, attempted armed bank robbery, know-
ing that a firearm would be used or carried does not aid the
commission of the offense charged in Count Three. The De-
fendant must aid in the commission of the use or carrying of
a firearm to be guilty of this charge.” The jury received further
instruction on “using” and “carrying” a firearm, but not on
“brandishing.”
In Alleyne, the Supreme Court held that “any fact that in-
creases the mandatory minimum is an ‘element’ that must be
submitted to the jury.” 570 U.S. at —, 133 S. Ct. at 2155. In that
case, Alleyne had been charged with several federal offenses
including using or carrying a firearm in relation to a crime of
violence in violation of § 924(c)(1)(A). Id. The jury verdict said
that the jury found Alleyne used or carried a firearm during
and in relation to a crime of violence but did not contain any
finding that the firearm was “brandished.” Id. at 2156. Alleyne
objected to the seven-year enhancement under § 924(c) for
brandishing. Id. The Supreme Court held that facts “that in-
crease the mandatory minimum sentence are … elements and
must be submitted to the jury and found beyond a reasonable
doubt.” Id. at 2158. The Court concluded that the term “ele-
ments” necessarily “includes not only facts that increase the
ceiling, but also those that increase the floor.” Id. There simply
was no such finding here for the “brandishing” enhancement.
That was an Alleyne error in the sentence.
14 No. 15-2170
Such an Alleyne error will not result in a miscarriage of jus-
tice where the evidence of brandishing is so strong that no
reasonable jury would have convicted the defendant on a
§ 924(c) count but acquitted him on brandishing. Cureton, 739
F.3d at 1046, citing United States v. Kirklin, 727 F.3d 711, 719
(7th Cir. 2013). In Cureton, the victim testified that Cureton
“‘came over to [her] and put the gun up to [her] head’, asked
her where the money was, told her it was her last chance, and
said that she would never see her daughter again.” 739 F.3d
at 1046. That was the only evidence supporting the § 924(c)
charge. We concluded that the jury “could not have rationally
convicted Cureton on the § 924(c)(1) charge yet believed he
did not brandish the gun.” Id.
There is no doubt that firearms were brandished in this
attempted robbery, but this case is not like Cureton because of
Armour’s role in the attempt. Armour did not brandish a fire-
arm himself. To apply the brandishing enhancement, the jury
should have been instructed that the government needed to
prove beyond a reasonable doubt that Armour knew in ad-
vance not only that Rogers and Hardy would be carrying fire-
arms but also that they would be brandishing them. See Rose-
mond v. United States, 572 U.S. —, —, 134 S. Ct. 1240, 1251–52
(2014) (to find defendant guilty of aiding and abetting co-de-
fendant’s use of firearm in crime of violence under § 924(c),
jury would need to find that defendant had advance
knowledge of intended use of firearm).
In this case, the jury heard evidence that Armour told
Hardy to bring his firearm, that Armour led the enterprise,
and that Hardy and Rogers actually brandished firearms dur-
ing the attempted robbery. We have no doubt that this evi-
dence could easily support a finding that Armour aided and
No. 15-2170 15
abetted the brandishing. But in light of the high standard of
proof beyond a reasonable doubt, we cannot save this sen-
tence on the ground that any reasonable jury would have con-
victed Armour of aiding and abetting the actual brandishing.
In light of the failure to instruct the jury on the point and to
insist on a more specific verdict, we cannot overlook the Al-
leyne error here.
We must therefore vacate Armour’s seven-year manda-
tory minimum consecutive sentence for brandishing and re-
mand for the limited purpose of re-sentencing him on the
prison portion of the sentence for aiding and abetting using
or carrying a firearm during a crime of violence. There is no
guarantee, though, that Armour will receive a lower sentence.
The verdict still supports the five-year mandatory minimum
sentence for using or carrying a firearm, and that is, after all,
just the minimum. The district court may exercise its discre-
tion to sentence above the statutory mandatory minimum.
The district judge did not signal in this record, however, that
the difference between the five-year and seven-year mini-
mums would not have made a difference to the decision.
To sum up then, we AFFIRM the defendant’s conviction
for violation of § 924(c) but VACATE the sentence on that
count and remand for re-sentencing on that count consistent
with this opinion. We also AFFIRM the district court’s deci-
sion to sentence defendant as a career offender under the Sen-
tencing Guidelines.