Corey Kidd v. United States ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2465
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Corey Kidd
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: May 13, 2019
Filed: July 3, 2019
[Published]
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Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
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PER CURIAM.
Corey Kidd pleaded guilty in 2011 to using a firearm in furtherance of a crime
of violence in violation of 18 U.S.C. § 924(c)(1)(A), which provides consecutive
mandatory minimum sentences for “any person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” The crime of violence
underlying Kidd’s conviction was aiding and abetting armed robbery of controlled
substances in violation of 18 U.S.C. §§ 2, 2118(a), and 2118(c)(1). The district court1
denied Kidd’s 2016 motion to vacate his firearm conviction, see 28 U.S.C. § 2255,
but granted a certificate of appealability on the question whether the residual clause
definition of “crime of violence” set forth in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague. Because the residual clause definition does not apply in
this case, we affirm the district court’s judgment denying relief.
Kidd argues that aiding and abetting armed robbery involving controlled
substances does not qualify as a crime of violence under the force clause definition
of 18 U.S.C. § 924(c)(3)(A). The relevant portion of the robbery statute proscribes
taking or attempting to take controlled substances from the person or presence of
another “by force or violence or by intimidation.” 18 U.S.C. § 2118(a). Kidd
contends that because the offense can be committed by means of intimidation, it does
not have “as an element the use, attempted use, or threatened use of physical force
against the person or property of another” that is required under § 924(c)(3)(A).
We have defined intimidation as “the threat of force.” United States v. Wright,
957 F.2d 520, 521 (8th Cir. 1992). Accordingly, we have held that the federal
offenses of bank robbery and carjacking—both of which are committed either “by
force and violence” or “by intimidation”—categorically qualify as crimes of violence
under the force clause of § 924(c)(3)(A). Estell v. United States, 924 F.3d 1291, 1293
(8th Cir. 2019) (holding that bank robbery under 18 U.S.C. § 2113(a) and carjacking
under 18 U.S.C. § 2119 qualify as crimes of violence under § 924(c)(3)(A)).
Applying the same definition of “intimidation” in this case, we hold that the offense
1
The Honorable Susan O. Hickey, now Chief Judge, United States District
Court for the Western District of Arkansas, adopting in part the report and
recommendation of Honorable Barry A. Bryant, then Chief United States Magistrate
Judge for the Western District of Arkansas.
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of armed robbery involving controlled substances categorically qualifies as a crime
of violence under the force clause of § 924(c)(3)(A).
Kidd maintains that intimidation does not require the intentional threat of
physical force. See Allen v. United States, 836 F.3d 894, 895-96 (8th Cir. 2016)
(Melloy, J., dissenting). We recently considered and rejected this argument in Estell,
in which we held that the petitioner’s arguments were foreclosed by the court’s
reasoning in United States v. Harper, 869 F.3d 624 (8th Cir. 2017):
[In Harper,] we explained that even though bank robbery by
intimidation does not require a specific intent to intimidate, it still
constitutes a threat of physical force because “threat,” as commonly
defined, speaks to what the statement conveys—not to the mental state
of the author. Thus, if the government establishes that a defendant
committed bank robbery by intimidation, it follows that the defendant
threatened a use of force causing bodily harm. And a threat of bodily
harm requires a threat to use violent force because it is impossible to
cause bodily injury without using force capable of producing that
result.
Estell, 924 F.3d at 1293 (internal quotation marks and citations omitted). For the
same reasons, we conclude that the offense of armed robbery involving controlled
substances satisfies the force clause even when the offense is committed by means of
intimidation. Because we treat an aider and abettor no differently than a principal,
see 18 U.S.C. § 2, we hold that Kidd’s underlying offense categorically qualifies as
a crime of violence under § 924(c)(3)(A). We thus conclude that his conviction and
sentence under § 924(c)(1)(A) are not unconstitutional.
Because § 924(c)(3)(A) applies in this case, the Supreme Court’s recent
decision in United States v. Davis does not afford Kidd the relief he seeks. See
United States v. Davis, No. 18-431, --- S. Ct. ----, 2019 WL 2570623 (June 24, 2019)
(striking down the residual clause of § 924(c)(3)(B) as unconstitutionally vague).
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The judgment is affirmed.
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