United States v. Brian Carr ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2019 Decided January 7, 2020
No. 18-3053
UNITED STATES OF AMERICA,
APPELLEE
v.
BRIAN ERIC CARR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cr-00106-1)
A.J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Elizabeth Gabriel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy
Curt, Assistant U.S. Attorneys.
Before: HENDERSON and RAO, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
2
RAO, Circuit Judge: After Brian Carr was convicted under
the federal bank robbery statute, see 18 U.S.C. § 2113(a), the
district court elevated his sentencing range on the grounds that
he was a “career offender.” See U.S. Sentencing Guidelines
Manual § 4B1.1 (2002). To reach that conclusion, the judge
found that two prior convictions under the same bank robbery
statute were “crime[s] of violence” under the Guidelines. See
id. § 4B1.2(a). At the time, the Guidelines’ definition of a
crime of violence was nearly identical to the definition of
“violent felony” under the Armed Career Criminal Act
(ACCA). See 18 U.S.C. § 924(e)(2)(B). While Carr was
serving his sentence, the Supreme Court struck down one part
of ACCA’s definition of a violent felony—a provision
commonly known as the residual clause. See Johnson v. United
States, 135 S. Ct. 2551 (2015). Carr filed a motion under 28
U.S.C. § 2255 to vacate or correct his sentence, arguing that the
Guidelines’ identical residual clause is also unconstitutional.
We need not reach Carr’s constitutional objection, because
in 2003, when Carr was sentenced, a prior conviction could be
a crime of violence under either the residual clause or the
Guidelines’ independent elements clause, which defines a
crime of violence as one that “has as an element the use,
attempted use, or threatened use of physical force.” See
U.S.S.G. § 4B1.2(a)(1). The federal bank robbery statute
requires proof that a defendant took property “by force and
violence, or by intimidation.” See 18 U.S.C. § 2113(a). To
satisfy this requirement, the defendant must have at least
knowingly threatened someone with physical force (or have
attempted to do so), which squarely places the offense within
the Guidelines’ elements clause. We therefore affirm the
district court’s holding that Carr’s prior bank robbery
convictions were crimes of violence and affirm the denial of
Carr’s motion for post-conviction relief.
3
I.
In 2002, Carr walked into a bank in downtown
Washington, D.C., and gave the teller a note demanding
money. United States v. Carr, 373 F.3d 1350, 1352 (D.C. Cir.
2004). The police arrested him at the scene of the crime and
later linked him to four other robberies. Id. Carr was then
indicted and convicted of five counts of bank robbery under
Section 2113(a). During sentencing, the judge found that two
prior convictions under the same statute each counted as a
crime of violence. Those two prior convictions for crimes of
violence made Carr a career offender, U.S.S.G. § 4B1.1, which
significantly elevated his sentencing range. At the time of
Carr’s sentencing, the Guidelines defined a crime of violence
in part as:
[A]ny 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 burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). This provision includes two distinct
definitions that are relevant here. Subsection (1) of this
definition is the elements clause. The second half of Subsection
(2)—“or otherwise involves conduct that presents a serious
potential risk of physical injury to another”—was the residual
4
clause.1 When Carr was sentenced, however, the judge did not
specify whether he relied on the Guidelines’ residual clause or
the elements clause in finding that the prior bank robbery
convictions were crimes of violence.2
Without the career offender enhancement, Carr would
have had a Guidelines range of 140 to 175 months. After the
enhancement, Carr’s Guidelines range was 210 to 262 months.
Carr appealed, and this court affirmed. See Carr, 373 F.3d
1350. In 2005, Carr brought his first motion to vacate his
sentence under Section 2255. See Memorandum, United States
v. Carr (D.D.C. Feb. 21, 2006) (No. 02-106). He raised several
ineffective assistance of counsel claims, none of which were
successful. Id.While Carr was serving his sentence, the Supreme Court
decided Johnson, which held the residual clause of ACCA’s
definition of a violent felony was void for vagueness in
violation of the Due Process Clause. 135 S. Ct. 2551. The
residual clause held unconstitutional in Johnson exactly
mirrors the residual clause defining a crime of violence in the
Sentencing Guidelines. See In re Sealed Case, 548 F.3d 1085,
1
The Sentencing Commission removed the residual clause’s
definition of a crime of violence after Johnson held that ACCA’s
identical residual clause was unconstitutional. See U.S. Sentencing
Commission: Supplement to the 2015 Guidelines Manual at 7, 10
(Aug. 1, 2016).
2
This was a common practice before the Supreme Court’s ruling in
Johnson. See United States v. Booker, 240 F. Supp. 3d 164, 168
(D.D.C. 2017) (“[T]here was no practical reason for judges to make
this distinction at sentencing prior to June 26, 2015, when the
Supreme Court decided that the residual clause was void for
vagueness.”).
5
1089 (D.C. Cir. 2008) (explaining that “we apply the ACCA
standard to determine whether an offense qualifies as a crime
of violence under section 4B1.2”).
Carr sought leave to file a second Section 2255 motion,
arguing that the residual clause that was once part of the
Guidelines’ definition of a crime of violence was
unconstitutionally vague under the reasoning of Johnson. This
court gave Carr permission to file the second motion because
he had “made a prima facie showing that his claim relies on a
new, previously unavailable rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court.” The district court below denied Carr’s second
Section 2255 motion because, regardless of whether the
residual clause was unconstitutional, his prior convictions for
bank robbery were crimes of violence under the elements
clause of the Sentencing Guidelines. United States v. Carr, 314
F. Supp. 3d 272, 283 (D.D.C. 2018).3
3
Because we hold that Carr’s convictions were crimes of violence
under the Guidelines’ elements clause, we do not address whether
the Guidelines’ residual clause was unconstitutional under Johnson
or whether defendants can bring such a challenge under Section
2255. We note the Supreme Court has left open the question of
whether a defendant who was sentenced under the Guidelines’
residual clause when it was mandatory can now bring a successful
motion under Section 2255. See Beckles v. United States, 137 S. Ct.
886, 896 (2017) (“We hold only that the advisory Sentencing
Guidelines … are not subject to a challenge under the void-for-
vagueness doctrine.”). The circuits have split over this same
question. Compare Cross v. United States, 892 F.3d 288, 307 (7th
Cir. 2018) (granting a Section 2255 motion in light of Johnson), with
United States v. London, 937 F.3d 502, 509 (5th Cir. 2019) (holding
that such motions are untimely); Russo v. United States, 902 F.3d
880, 882–84 (8th Cir. 2018) (same); United States v. Green, 898 F.3d
315, 317–23 (3d Cir. 2018) (same); United States v. Brown, 868 F.3d
6II.
We review the denial of a Section 2255 motion to vacate a
sentence de novo. United States v. Palmer, 296 F.3d 1135,
1141 (D.C. Cir. 2002). Carr’s motion challenges his sentence
on the grounds that the residual clause’s definition of a crime
of violence was unconstitutional. On appeal, Carr focuses
almost exclusively on disputing the district court’s conclusion
that bank robbery constitutes a crime of violence under the
elements clause, whether or not the residual clause was
unconstitutional. Because the sentencing court did not specify
whether Carr’s convictions were crimes of violence under the
residual clause or the elements clause, we may uphold his
designation as a career offender if his prior bank robbery
convictions meet either definition. Therefore, we need not
reach Carr’s constitutional objection to the residual clause if
bank robbery under Section 2113(a) fits within the elements
clause’s definition of a crime of violence.
Thus, we start with the question of whether bank robbery
“has as an element the use, attempted use, or threatened use of
physical force.” U.S.S.G. § 4B1.2(a)(1). To answer that
question we apply the “categorical approach,” United States v.
Brown, 892 F.3d 385, 402 (D.C. Cir. 2018), which means that
we view the crime “in terms of how the law defines the offense
and not in terms of how an individual offender might have
committed it on a particular occasion.” Begay v. United States,
553 U.S. 137, 141 (2008). More specifically, we must ask
whether “the least of th[e] acts criminalized … are
297, 301 (4th Cir. 2017) (same); Raybon v. United States, 867 F.3d
625, 630 (6th Cir. 2017) (same); United States v. Pullen, 913 F.3d
1270, 1280–85 (10th Cir. 2019) (holding that a similar request
constituted an impermissible second Section 2255 motion); In re
Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (same).
7
encompassed by the generic federal offense.” Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013) (quotation marks omitted).
We look “only to the elements of the crime to determine
whether, by its terms, commission of the crime inherently (i.e.,
categorically) requires the kind of force” that is required under
Section 4B1.2(a). Brown, 892 F.3d at 402. Every circuit to
consider the question has held that bank robbery under
Section 2113(a) meets the requirements for a crime of violence
under the elements clause.4 We now join those circuits.
The least culpable conduct covered by the statute—bank
robbery “by intimidation”—categorically involves a threat of
physical force. Moreover, while Carr is correct that crimes of
negligence cannot count as crimes of violence under the
elements clause, the federal bank robbery statute requires more
than mere negligence. Section 2113(a) applies only if a
defendant took or attempted to take property with knowledge
that his conduct was objectively intimidating. Federal bank
robbery thus squarely fits within the elements clause’s
definition of a crime of violence.5
4
See United States v. McCranie, 889 F.3d 677, 678–81 (10th Cir.
2018); United States v. Wilson, 880 F.3d 80, 84–85 (3d Cir. 2018);
United States v. Harper, 869 F.3d 624, 627 (8th Cir. 2017); United
States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017); United States v.
Brewer, 848 F.3d 711, 716 (5th Cir. 2017); United States v. McBride,
826 F.3d 293, 295–96 (6th Cir. 2016); United States v. Jones, 932
F.2d 624, 625 (7th Cir. 1991); United States v. Selfa, 918 F.2d 749,
751 (9th Cir. 1990); United States v. McNeal, 818 F.3d 141, 153, 157
(4th Cir. 2016) (applying ACCA’s identical elements clause).
5
Because we hold that Carr’s prior convictions were crimes of
violence under the elements clause of the Guidelines, we need not
reach the government’s four procedural arguments presented in the
alternative.
8
A.
The federal bank robbery statute provides:
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
under this title or imprisoned not more than
twenty years, or both.6
18 U.S.C. § 2113(a). This statute requires that a person act with
“force and violence” or “by intimidation.” Because
intimidation is the least culpable conduct covered by the
statute, we must ask whether robbery “by intimidation”
necessarily involves a threat of physical force such that it
counts as a crime of violence under the Guidelines’ elements
clause. In the ACCA context, the Supreme Court has held that
“force” means “violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis omitted).
We agree with our fellow circuits that Section 2113(a)
requires a threat of physical force because it applies only to
conduct “reasonably calculated to put another in fear, or
conduct and words calculated to create the impression that any
resistance or defiance by the individual would be met by
force.” United States v. McCranie, 889 F.3d 677, 680 (10th Cir.
6
The same subsection includes a second paragraph making it a crime
to enter a bank with the intent to commit a felony. See 18 U.S.C.
§ 2113(a). Only the first paragraph is at issue in this case.
9
2018) (quotation marks omitted); United States v. Jones, 932
F.2d 624, 625 (7th Cir. 1991) (“Intimidation means the threat
of force.”).
While the ordinary meaning of the word “intimidation” is
arguably broad enough to encompass nonviolent threats, the
history of common law robbery makes clear that the federal
bank robbery statute uses the word to refer only to threats of
violence. Traditionally, the sole difference between the
common law crimes of robbery and larceny was that robbery
had an additional element of physical force. See, e.g.,
Stokeling, 139 S. Ct. at 550 (“At common law, an unlawful
taking was merely larceny unless the crime involved
‘violence.’”); Pixley v. United States, 692 A.2d 438, 439 (D.C.
1997) (one element of “robbery in the usual common law
sense” is that the property be taken “using force or violence”);
People v. Ryan, 88 N.E. 170, 171 (Ill. 1909) (“If a thing of
value be feloniously taken from the person of another with such
violence as to occasion a substantial corporal injury, or if it be
obtained by a violent struggle with the possessor, it is
‘robbery’; but if the article is taken without any sensible or
material violence to the person and without any struggle for its
possession it is merely ‘larceny from the person.’”).
While physical force has always been the touchstone for
robbery, it was sufficient at common law for the defendant to
threaten physical force. Jurists usually used one of two terms
to describe that threat: “putting in fear” or “intimidation.” See
4 William Blackstone, Commentaries *243 (“[R]obbery … is
the felonious and forcible taking, from the person of another,
of goods or money to any value, by violence or putting in
fear.”); Commw. v. Clifford, 62 Mass. 215, 216 (1851)
(“Robbery, by the common law, is larceny from the person,
accompanied by violence or by putting in fear.”); United States
v. Durkee, 25 F. Cas. 941, 942 (C.C.N.D. Cal. 1856)
10
(“[R]obbery … is larceny accompanied by intimidation or
force.”).
In the Twentieth Century, many states codified the
traditional common law elements of robbery, using the word
“intimidation” to express the requirement of “putting in fear.”
As one court explained, “Intimidation in the law of robbery
means putting in fear[.] … The modern draftsmen have
changed the words but not the meaning. They employ the
single word ‘intimidation’, but the meaning is identical.”
United States v. Baker, 129 F. Supp. 684, 685 (S.D. Cal. 1955);
see also Johnson v. State, 57 S.E. 1056, 1056 (Ga. 1907)
(“[O]ur Penal Code definition [and its use of ‘intimidation’] is
merely declaratory of the common law.”). No matter which
term is used, only a threat of physical force is sufficient to make
out the elements of robbery. See LaFave, 3 SUBST. CRIM. L.
§ 20.3(d)(2) n. 72 (“[T]he threat must be of immediate use of
physical force.”); Karl Oakes, 77 CORPUS JURIS SECUNDUM
§ 15 (2019) (explaining that intimidation “results when the
words or conduct of the accused exercise such domination and
control over the victim as to overcome the victim’s mind and
overbear the victim’s will, placing the victim in fear of bodily
harm” (emphasis added)); United States v. Harris, 844 F.3d
1260, 1266, 1270 (10th Cir. 2017) (“[C]ommon law robbery
requires a taking ‘by violence or intimidation.’ … [W]hether
by force, or by threats or intimidation, we conclude that
robbery in Colorado has as an element the use or threatened use
of physical force against another person.”); Royal v. State, 490
So. 2d 44, 46 (Fla. 1986) (noting that robbery requires only
intimidation, but explaining that “[i]t is violence that makes
robbery an offense of greater atrocity than larceny”); Fleming
v. Commw., 196 S.E. 696, 697 (Va. 1938) (“The … fear must
be of a physical nature.”).
11
In 1934, Congress enacted the first federal bank robbery
statute, which reflected state common law and criminalized
theft “by force and violence, or by putting in fear.” See ch. 304,
48 Stat. 783 (1934) (formerly codified at 12 U.S.C. § 588b(a)
(1946)). In 1948, as part of a recodification, Congress relocated
criminal statutes from various titles of the United States Code
into Title 18. See An Act to Revise, Codify, and Enact into
Positive Law, Title 18 of the United States Code, Pub. L. 80-
772, 62 Stat. 683 (1948). Congress also made changes aimed
at “[a] clear and uniform style.” H.R. Rep. No. 80-304, at 8
(1947). The new code included the present day
Section 2113(a), which criminalizes theft from a bank “by
intimidation.” Courts have consistently read Section 2113(a)’s
use of “intimidation” to mean the same thing as “putting in
fear” in the 1934 statute. See United States v. Higdon, 832 F.2d
312, 315 (5th Cir. 1987); United States v. Robinson, 527 F.2d
1170, 1172 n.2 (6th Cir. 1975). Section 2113(a) plainly uses
language drawn from the classic definition of common law
robbery, which requires the use or threatened use of force.
The Guidelines’ elements clause likewise encompasses
the violence element of common law robbery by requiring “the
use, attempted use, or threatened use of physical force.”
U.S.S.G. § 4B1.2(a)(1). The Supreme Court explained that
ACCA’s identical elements clause was designed to mirror the
definition of common law robbery. See Stokeling, 139 S. Ct. at
550–52 (interpreting 18 U.S.C. § 924(e)(2)(B)(i)). The Court
emphasized that “[i]f a word is obviously transplanted from
another legal source, whether the common law or other
legislation, it brings the old soil with it.” Id. at 551 (quoting
Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)). In other words,
ACCA’s elements clause carries the same force requirement as
the common law definition. Id. Both Section 2113(a) and the
Guidelines’ definition of a crime of violence call for the
amount of force required under the common law definition of
12
robbery. “There is no space between” the two provisions.
Jones, 932 F.2d at 625 (quotation marks omitted). Thus, bank
robbery readily fits within the Guidelines’ definition of a crime
of violence in the elements clause.
Despite the established and longstanding meaning of
intimidation, Carr has argued that the federal bank robbery
statute applies to two classes of cases that do not involve the
requisite amount of force for a crime of violence under the
Guidelines. First, he emphasizes on appeal that
Section 2113(a) applies even if the defendant does not make
his threats explicit. For instance, a thief might hand a teller a
note that says, “Give me the money,” without mentioning what
happens if the teller does not. But if Section 2113(a) applies in
that case, it is only because a reasonable teller could infer that
the note conveys an implicit threat of violence. See United
States v. Wilson, 880 F.3d 80, 85 (3d Cir. 2018) (requiring
conduct such that a teller “reasonably could infer a threat of
bodily harm”); United States v. Harper, 869 F.3d 624, 626 (8th
Cir. 2017) (“[B]ank robbery by intimidation requires proof that
the victim reasonably could infer a threat of bodily harm.”
(quotation marks omitted)). Whether implicit or explicit,
Section 2113(a) always requires a threat of physical force.
Second, Carr emphasized below that a defendant can be
convicted under Section 2113(a) without threatening physical
contact. According to Carr, a thief who threatens to poison a
teller could arguably be convicted under the bank robbery
statute, but that thief would not have committed a crime of
violence under the Guidelines because there was no threat of
physical contact. Yet in an analogous context the Supreme
Court has rejected the notion that the force requirement is
satisfied only by physical contact. United States v. Castleman,
572 U.S. 157 (2014). Relying on ACCA precedent, Castleman
interpreted the term “physical force” in a similar elements
13
clause to encompass crimes that can be committed without
physical contact—for instance, crimes committed with the use
of poison. Id. at 170. The Court explained that if poison causes
bodily injury, then the defendant has necessarily used force
because “[i]t is impossible to cause bodily injury without
applying force in the common-law sense.” Id. Similarly here, a
thief who threatened to poison a teller could be convicted under
Section 2113(a) and that conviction would count as a crime of
violence because the bodily injury caused by the poison would
necessarily involve the use of force within the common law
meaning incorporated by the Guidelines.
We therefore hold that the least culpable conduct covered
by the statute—bank robbery “by intimidation”—categorically
involves a threat of physical force as required by the elements
clause’s definition of a crime of violence.
B.
Next, we address whether federal bank robbery has a
sufficient mens rea requirement to count as a crime of violence
under the Sentencing Guidelines. The parties do not dispute
that a crime of violence under the Guidelines requires more
than negligence and that a mental state of recklessness or more
would be sufficient under existing circuit precedent. See United
States v. Haight, 892 F.3d 1271, 1281 (D.C. Cir. 2018)
(holding in the ACCA context “that the use of violent force
includes the reckless use of such force”); see also Carr Br. at 8,
12; United States Br. at 28–33.
The government here maintains that the statute requires at
least recklessness because it requires proof that the defendant
knew he was intimidating someone. See United States v.
Bailey, 444 U.S. 394, 404 (1980) (explaining that under
modern mens rea categorizations, “[t]he different levels in this
hierarchy are commonly identified, in descending order of
14
culpability, as purpose, knowledge, recklessness, and
negligence”). According to Carr, however, the statute simply
requires that the government prove negligence—in other
words, the government must prove the defendant should have
known there was a substantial risk his conduct was
intimidating. See ALI, Model Penal Code § 2.02(2)(d) (“A
person acts negligently with respect to a material element of an
offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result
from his conduct.”).
To evaluate the mens rea requirement in the bank robbery
statute, we start with Carter v. United States, in which the
Supreme Court held that Section 2113(a) has a “general intent”
requirement. 530 U.S. 255, 268 (2000). After first observing
that Section 2113(a) lacks any explicit mens rea element, the
Court explained that there is a general “presumption in favor of
scienter.” Id. That presumption applies, however, only to the
extent a mens rea requirement “is necessary to separate
wrongful conduct from ‘otherwise innocent conduct.’” Id. at
269 (quoting United States v. X-Citement Video, Inc., 513 U.S.
64, 72 (1994)). The Court reasoned that it is inherently wrong
to take property by force, regardless of whether one intends to
steal. Id. at 268–70. The Court therefore drew the line at
general intent, which it defined as “knowledge with respect to
the actus reus of the crime (here, the taking of property of
another by force and violence or intimidation).” Id. at 268.
Someone who forcefully takes money while sleepwalking does
not act with general intent because he has no knowledge of
what he is doing. Id. at 269. On the other hand, the statute does
not require specific intent to steal and therefore would apply to
a person who knowingly takes money by force, even if he
thinks the money is his. Id. at 269–70. He may not have
intended to steal, but he still had knowledge of the actus reus.
Id.
15
Carter requires that under Section 2113(a) the government
must prove the defendant knew his conduct was intimidating,
a standard requiring more than mere negligence. The Court
stated that a person must know he is “taking [the] property of
another by … intimidation.” Id. at 268. Moreover, the
underlying goal of implicit mens rea requirements is to separate
wrongful from innocent conduct. Id. at 268–70. As the Court
explained, a person who forcefully takes property acts
wrongfully even if it is not his intent to steal. Id. The same
cannot be said of a person who uses no force and has no
knowledge that his conduct is threatening. That person engages
only “in innocent, if aberrant, activity,” id. at 257, and we
should be “reluctant to infer that a negligence standard was
intended in criminal statutes.” Elonis v. United States, 135 S.
Ct. 2001, 2011 (2015). Our reading of the federal bank robbery
statute, requiring the defendant to know his actions were
objectively intimidating, accords with every court to have
reached this issue.7
7
See United States v. Hendricks, 921 F.3d 320, 329 (2d Cir. 2019)
(“A defendant acts ‘by intimidation’ when he knowingly engages in
conduct from which an ordinary person in the teller’s position
reasonably could infer a threat of bodily harm.” (quotation marks
omitted)); United States v. Garcia-Ortiz, 904 F.3d 102, 108 (1st Cir.
2018) (requiring “knowledge on the part of the defendant that his
actions were objectively intimidating”); United States v. Deiter, 890
F.3d 1203, 1213 (10th Cir. 2018) (agreeing with other circuits “that
to be convicted of bank robbery by intimidation, the defendant must
have at least known his actions were objectively intimidating”);
United States v. Watson, 881 F.3d 782, 785 (9th Cir. 2018) (“[A]
defendant may not be convicted if he only negligently intimidated
the victim. The offense must at least involve the knowing use of
intimidation.” (citation omitted)); Wilson, 880 F.3d at 87 (agreeing
with other circuits who “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
16
In response, Carr notes that two circuits have held a
defendant does not need to intend to intimidate. See United
States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005)
(“Whether a particular act constitutes intimidation is viewed
objectively, and a defendant can be convicted under section
2113(a) even if he did not intend for an act to be intimidating.”
(citation omitted)); United States v. Woodrup, 86 F.3d 359, 364
(4th Cir. 1996) (“[T]he intimidation element of § 2113(a) is
satisfied … whether or not the defendant actually intended the
intimidation.”). These cases, however, are consistent with the
framework we have identified. As Carter made clear, Section
2113(a) does not require specific intent, so it does not matter
whether the defendant intended to intimidate. See Carter, 530
U.S. at 270. Yet the defendant must at least have knowledge
that he is intimidating someone. The Fourth Circuit—one of
the two circuits Carr is relying on—has made that point
explicitly. See United States v. McNeal, 818 F.3d 141, 155–56
(4th Cir. 2016) (“[T]o secure a conviction of bank robbery ‘by
intimidation,’ the government must prove not only that the
accused knowingly took property, but also that he knew that
his actions were objectively intimidating.”).
intimidation requirement by requiring the government to prove a
defendant ‘knew that his actions were objectively intimidating.’”);
United States v. McNeal, 818 F.3d 141, 155–56 (4th Cir. 2016)
(“[T]o secure a conviction of bank robbery ‘by intimidation,’ the
government must prove not only that the accused knowingly took
property, but also that he knew that his actions were objectively
intimidating.”); McBride, 826 F.3d at 296 (“The defendant must at
least know that his actions would create the impression in an ordinary
person that resistance would be met by force. A taking by
intimidation under § 2113(a) therefore involves the threat to use
physical force.”).
17
Finally, Carr focuses on the fact that every court has
defined intimidation at least partly in objective terms of what a
reasonable, ordinary person would find intimidating, which
Carr argues is a textbook negligence rule. Yet that is only half
the standard. While the actus reus is judged in objective terms
(whether an ordinary person would find the conduct
intimidating), the mens rea is defined in subjective terms
(whether the defendant had knowledge that an ordinary person
would view his conduct as intimidating). See, e.g., United
States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (“The
defendant must at least know that his actions would create the
impression in an ordinary person that resistance would be met
by force.”). That the intimidation requirement has one
objective component does not diminish its distinct subjective
prong, which separates this offense from crimes of mere
negligence.8
Accordingly we hold that the federal bank robbery statute
applies only if the defendant had knowledge that his conduct
was intimidating, and the statute therefore satisfies the mens
8
Carr also argues that Section 2113(a)’s requirement is identical to
the mens rea requirement proposed by the government in Elonis,
which the Supreme Court described as “a negligence standard.” 135
S. Ct. at 2011 (interpreting 18 U.S.C. § 875(c) (“Whoever transmits
in interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of
another, shall be fined under this title or imprisoned not more than
five years, or both.”)). Yet Section 2113(a) requires more than what
was at issue in that case, where the government’s proposed standard
would have required knowledge of the contents of a threatening
message, but would not have required knowledge that the contents
were threatening. See id. As we have discussed, the federal bank
robbery statute requires that the defendant subjectively knew his
actions were threatening.
18
rea requirement for a crime of violence under the Sentencing
Guidelines.9
***
Bank robbery under Section 2113(a) categorically
involves the use or threatened use of force. It also requires that
the defendant have knowledge that he is threatening someone.
We therefore join nine of our fellow circuits in holding that
bank robbery under Section 2113(a) is categorically a crime of
violence under the elements clause of the Guidelines. That was
true before Johnson, and it remains true today. The district
court rightly dismissed Carr’s Section 2255 motion, so we
affirm.
9
After we held oral argument in this case, the Supreme Court granted
certiorari to decide whether recklessness alone is sufficient under
ACCA’s identical elements clause. See Walker v. United States, No.
19-373 (Nov. 15, 2019). Because we hold that the federal bank
robbery statute requires knowledge, and therefore more than
recklessness, the question presented in Walker does not implicate our
holding. See Petition for Certiorari, Walker v. United States, No. 19-
373 at I (Sep. 19, 2019) (presenting only the question of “[w]hether
a criminal offense that can be committed with a mens rea of
recklessness can qualify as a ‘violent felony’”); see also Walker v.
United States, 931 F.3d 467, 468 (6th Cir. 2019) (Kethledge, J.,
dissenting from the denial of rehearing en banc) (acknowledging that
ACCA’s elements clause would be satisfied by higher requirements
like “knowledge or intent”).