Gary Harris v. United States

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0273p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
GARY DUANE HARRIS,
│
Petitioner-Appellant, │
> No. 21-5040
│
v. │
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
│
┘
Appeal from the United States District Court for the Western District of Kentucky at Paducah.
Nos. 5:19-cv-00046; 5:96-cr-00024-2—Thomas B. Russell, District Judge.
Argued: October 26, 2021
Decided and Filed: December 1, 2021
Before: DAUGHTREY, COLE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Frank W. Heft, Jr., OFFICE OF THE FEDERAL DEFENDER, Louisville,
Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S OFFICE,
Louisville, Kentucky, for Appellee. ON BRIEF: Frank W. Heft, Jr., Scott T. Wendelsdorf,
OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Terry M.
Cushing, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Gary Duane Harris appeals
from the district court’s denial of his second or successive 28 U.S.C. § 2255 motion to vacate, set
No. 21-5040 Harris v. United States Page 2
aside, or correct a portion of the 480-month sentence he presently is serving. After pleading
guilty to aiding and abetting second-degree murder, aiding and abetting attempted robbery, and
aiding and abetting using or carrying a firearm during and in relation to a crime of violence, the
district court sentenced Harris to concurrent sentences of 420 months and 180 months for the
second-degree-murder and attempted-robbery convictions, respectively. The district court also
imposed a consecutive 60-month sentence for the firearm conviction.
Harris argues that the consecutive 60-month sentence must be vacated because it is
possible that the district court imposed that punishment pursuant to the unconstitutionally vague
“residual clause” of 18 U.S.C. § 924(c)(3)(B). Furthermore, Harris insists that the 60-month
sentence cannot be saved under the so-called “elements clause” of 18 U.S.C. § 924(c)(3)(A)
because neither his conviction for aiding and abetting second-degree murder nor his conviction
for aiding and abetting attempted robbery could have been considered a “crime of violence”
under caselaw existing at the time of sentencing.
Although it is possible that Harris could demonstrate that his sentence is constitutionally
suspect, our inquiry does not end there. To justify relief under § 2255, Harris must identify not
only constitutional error but also harm that he suffered from that error. At best, Harris can show
that the record of his sentencing is silent as to whether the district court relied upon § 924(c)(3)’s
elements clause or residual clause when imposing punishment upon him. Thus, even if the
record’s utter silence is sufficient to show that Harris’s sentence is constitutionally suspect,
Harris still must establish that he could not have been sentenced to the consecutive 60-month
prison term under § 924(c)(3)’s elements clause. Because the 18 U.S.C. § 2111 crime of aiding
and abetting attempted robbery necessarily constitutes a crime of violence under the elements
clause of 18 U.S.C. § 924(c)(3)(A), we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1996, two seventeen-year-olds, Gary Duane Harris and Anthony Charles Gaines,
Jr., approached two soldiers near a convenience store on the United States Army base in Fort
Campbell, Kentucky. In an attempt to rob the soldiers, Gaines pulled a handgun from his
No. 21-5040 Harris v. United States Page 3
clothing. As Gaines attempted to transfer the weapon to his other hand, the gun discharged, and
a bullet struck Private First Class Michael Alonso-Caravia in the neck, killing him.
Following their arrests, both Harris and Gaines pleaded guilty to charges of aiding and
abetting second-degree murder, in violation of 18 U.S.C. §§ 2 and 1111; aiding and abetting
attempted robbery, in violation of 18 U.S.C. §§ 2 and 2111; and aiding and abetting using or
carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2and 924(c). The district court sentenced Harris to concurrent prison terms of 420 months and 180
months for the second-degree-murder and attempted-robbery convictions and to a consecutive
60-month prison term for the § 924(c) conviction. We affirmed the convictions and sentence on
direct appeal. United States v. Harris (Harris I), 238 F.3d 777 (6th Cir. 2001) (per curiam).
Harris’s initial collateral attempts to vacate, set aside, or correct his sentence proved
unsuccessful. See Harris v. United States (Harris II), No. 04-5196 (6th Cir. May 4, 2004)
(order); In re Gary Duane Harris (Harris III), No. 16-5469 (6th Cir. Sept. 23, 2016) (order).
In March 2019, however, a panel of this court granted Harris authorization to file a second or
successive § 2255 motion challenging the legitimacy of the § 924(c) conviction and sentence.
In re Gary Duane Harris (Harris IV), No. 18-6172 (6th Cir. Mar. 18, 2019) (order). In that
motion, Harris argued that his § 924(c) conviction and sentence cannot withstand constitutional
scrutiny because, in enhancing his sentence, the district court may have relied upon the residual
clause of 18 U.S.C. § 924(c)(3)(B), a clause whose continued vitality at that time had been called
into question.
Indeed, in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), the Supreme Court
concluded that § 924(c)(3)(B)’s residual clause was so vague as to violate principles of due
process. Harris thus asserted that his § 924(c) sentence must be vacated because it was likely
that the district court improperly relied upon the invalidated residual clause to support
his enhanced sentence. The district court disagreed, Harris v. United States (Harris V), No.
5:96-CR-24-TBR, 2020 WL 7769094 (W.D. Ky. Dec. 30, 2020), but did grant Harris a
certificate of appealability on the following issues:
(1) the standard for granting a motion to vacate a sentence based on § 924(c)
where the record is silent but it is possible or likely that the district court relied on
No. 21-5040 Harris v. United States Page 4
the residual clause at sentencing, and (2) whether either of Harris’s predicate
offenses under 18 U.S.C. §§ 1111 or 2111 is a categorical crime of violence under
the elements clause of § 924(c).
Id., 2020 WL 7769094, at *5.
DISCUSSION
Standard of Review and Requirements for § 2255 Relief
We review de novo the denial of a § 2255 motion. Nagi v. United States, 90 F.3d 130,
134 (6th Cir. 1996) (citation omitted). We also review de novo the legal question of whether an
offense constitutes a “crime of violence” under 18 U.S.C. § 924(c). United States v. Rafidi,
829 F.3d 437, 443 (6th Cir. 2016) (citing United States v. Denson, 728 F.3d 603, 607 (6th Cir.
2013)).
An initial § 2255 motion “must allege one of three bases as a threshold standard: (1) an
error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the entire proceeding invalid.”
Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citing United States v.
Addonizio, 442 U.S. 178, 185–86 (1979)). But when seeking relief pursuant to a second or
successive § 2255 motion, the movant faces a more onerous burden and must base the request for
relief on either:
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
Harris cannot point to any newly discovered evidence to support his claim for collateral
relief. Rather, he alleges that, in light of the new rule of constitutional law set forth in Davis, the
district court improperly relied upon the residual clause of § 924(c)(3) to justify his enhanced
sentence for aiding and abetting the use or carrying of a firearm.
No. 21-5040 Harris v. United States Page 5
Basis for Harris’s 18 U.S.C. § 924(c) Sentence
By pleading guilty to Count 3 of the superseding indictment returned against him, Harris
admitted that he aided and abetted his co-defendant in using or carrying a firearm during and in
relation to two crimes—aiding and abetting second-degree murder and aiding and abetting
attempted robbery. Consequently, he was subject to sentencing pursuant to the provisions of
18 U.S.C. § 924(c)(1)(A)(i)1, which provides:
[A]ny person who, during and in relation to any crime of violence . . . for which
the person may be prosecuted in a court of the United States, uses or carries a
firearm . . . shall, in addition to the punishment provided for such crime of
violence . . . be sentenced to a term of imprisonment of not less than 5 years.
(Emphasis added.)
The term “crime of violence” in § 924(c)(1)(A) is explicitly defined in 18 U.S.C.
§ 924(c)(3) to mean a felony 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) 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 committing the
offense.
Section 924(c)(3)(A) is known as the statute’s “elements clause,” while § 924(c)(3)(B) is known
as the “residual clause.”
Challenges to Statutory Residual Clauses
In 2015, the United States Supreme Court ruled in Johnson v. United States, 576 U.S. 591(2015), that a sentence imposed pursuant to a “residual clause” in the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)2, could be challenged as a violation of due process.
1
Although Harris was convicted of three aiding and abetting offenses, “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a
principal.” 18 U.S.C. § 2(a) (emphasis added).
2
The residual clause of the ACCA defined a “violent felony,” in part, as “any crime punishable by
imprisonment for a term exceeding one year” that “involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
No. 21-5040 Harris v. United States Page 6
According to the Court, “the indeterminacy of the wide-ranging inquiry required by the residual
clause both denies fair notice to defendants and invites arbitrary enforcement by judges.”
Johnson, 576 U.S. at 597. Because invalidation of that clause “changed the substantive reach of
the Armed Career Criminal Act,” the Court later recognized that Johnson’s holding must be
applied retroactively to other cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1265 (2016). Even so, because of the difference in language between the residual clause of the
ACCA and its definition of a “violent felony” and § 924(c)(3)(B)’s residual clause’s definition of
a “crime of violence,” questions persisted as to whether Johnson’s holding also applied to
enhanced sentences for using or carrying a firearm during or in relation to such a crime of
violence.
Approximately three years after Johnson, the Supreme Court offered some indication of
the ultimate answer to those questions in its ruling in Sessions v. Dimaya, 138 S. Ct. 1204(2018). In Dimaya, the Court considered a challenge to the constitutionality of a residual clause
contained in 18 U.S.C. § 16’s general definition of the term “crime of violence.” Id. at 1210. In
18 U.S.C. § 16(b), Congress, as it did in § 924(c)(3)(B), defined a “crime of violence” to be, in
part, “any other offense that is a felony and 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 committing
the offense.” And in Dimaya, as in Johnson, the Court concluded that the residual clause at issue
“produces more unpredictability and arbitrariness than the Due Process Clause tolerates.”
Dimaya, 138 S. Ct. at 1223 (quoting Johnson, 576 U.S. at 598).
Finally, in Davis, the Supreme Court addressed head-on the contention that the residual
clause in 18 U.S.C. § 924(c)(3)(B) faced the same vagueness problems as did the provisions of
18 U.S.C. § 924(e)(2)(B)(ii) and 18 U.S.C. § 16(b). Doing so, the Court, not surprisingly, agreed
“that § 924(c)(3)(B) is unconstitutionally vague” and cannot serve to define a “crime of
violence” for purposes of conviction and sentencing. Davis, 139 S. Ct. at 2336. Moreover,
given the similarities between the statutory language at issue in Johnson and in Davis, we have
held that Davis applies retroactively. In re Franklin, 950 F.3d 909, 911 (6th Cir. 2020) (order)
(per curiam) (relying upon Welch).
No. 21-5040 Harris v. United States Page 7
Determination of the Basis for the Crime-of-Violence Finding
In this appeal, Harris relies upon Davis’s invalidation of § 924(c)’s residual clause to
support his claim that his conviction for using or carrying a firearm during and in relation to a
crime of violence, as well as the resulting, consecutive, 60-month sentence, must be vacated.
According to Harris, nothing in the record of his conviction and sentence indicates that the
district court did not rely upon the unconstitutional residual clause of § 924(c)(3)(B) in finding
that Harris had committed a crime of violence; therefore, he insists that the residual clause
actually must have been the basis for the district court’s finding.
To support that contention, Harris cites our decision in Williams v. United States,
927 F.3d 427 (6th Cir. 2019), and analyzes the five factors that case identified as aids in
determining whether a particular sentence was imposed pursuant to an unconstitutional residual
clause. After examining the sentencing record, the legal background at the time of sentencing,
the presence of informed decisionmakers, the nature of the predicate offense, and later,
predictable, legal developments, Harris concludes that those factors “establish that it is possible
or likely that he was sentenced under § 924(c)(3)(B)’s residual clause,” and that the otherwise
silent record “must be construed in [his] favor.” (Appellant’s Br. at 9, 25.)
Engaging in an examination of the Williams factors yields little benefit to Harris in this
case, however. First, the sentencing record is silent as to the district court’s basis for finding
Harris worthy of enhanced punishment.
Second, consideration of the legal background at the time of sentencing does not give a
definitive answer to the relevant question raised by Harris in this collateral challenge. In 1999,
no binding Sixth Circuit precedent established definitively that either aiding and abetting
second-degree murder or aiding and abetting attempted robbery categorically was a crime of
violence. Furthermore, by that time, the Supreme Court had explained that courts should
determine whether an offense was a “crime of violence” or a “violent felony,” not by examining
the circumstances surrounding the commission of the crime, but rather by engaging in a
categorical-approach analysis. See Taylor v. United States, 495 U.S. 575, 602 (1990).
No. 21-5040 Harris v. United States Page 8
As we explained in our en banc decision in United States v. Burris, 912 F.3d 386, 392
(6th Cir. 2019):
The categorical approach prohibits federal sentencing courts from looking at the
particular facts of the defendant’s previous state or federal felony convictions;
rather, federal sentencing courts “may ‘look only to the statutory definitions’—
i.e., the elements—of a defendant’s prior offenses.” Descamps [v. United States],
570 U.S.[254, 261 (2013)] (quoting Taylor, 495 U.S. at 600 . . .). The question
for the sentencing court in the elements-clause context is whether every defendant
convicted of that state or federal felony must have used, attempted to use, or
threatened to use physical force against the person of another in order to have
been convicted, not whether the particular defendant actually used, attempted to
use, or threatened to use physical force against the person of another in that
particular case.
(Citations omitted.) Because the district court did not engage in an explicit categorical-approach
analysis at sentencing, Harris contends that the district judge must have relied upon the residual
clause in § 924(c)(3)(B) to justify the consecutive, 60-month sentence he imposed. Even at that
time, however, it would have been clear to the district court that the federal crime of attempted
robbery contained, by definition, the element of force, making it unnecessary to engage in a
categorical-approach analysis. Indeed, a conviction under 18 U.S.C. § 2111 requires a taking or
an attempted taking from a person “by force and violence, or by intimidation.”3 (Emphasis
added.)
Moreover, by 1993, we had recognized that even the concept of “intimidation” required
proof of “conduct and words calculated to create the impression that any resistance or defiance
by the [victim] would be met by force.” United States v. Perry, 991 F.2d 304, 310 (6th Cir.
1993) (quoting United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991)); see also United States
v. Henry, 722 F. App’x 496, 500 (6th Cir. 2018) (“[I]ntimidation is all it takes to satisfy
§ 924(c)(3)(A)’s elements clause, which defines crimes involving the ‘threatened use of physical
force’ as crimes of violence.”) (citing United States v. McBride, 826 F.3d 293, 296 (6th Cir.
2016)). Thus, the legal background in 1999 offers no real support for Harris’s argument; if
anything, an examination of that legal background indicates that Harris’s conviction for aiding
3
In its entirety, 18 U.S.C. § 2111 provides that “[w]hoever, within the special maritime and territorial
jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person
or presence of another anything of value, shall be imprisoned not more than fifteen years.”
No. 21-5040 Harris v. United States Page 9
and abetting attempted robbery fell squarely within the parameters of § 924(c)(3)’s elements
clause, justifying imposition of a § 924(c)(1)(A) sentence.
Third, Harris cannot rely upon information provided by a decisionmaker familiar with the
basis for the sentencing decision. Unfortunately, the sentencing judge died in 2013, years before
Harris first raised his challenge to his sentence based upon the Supreme Court’s decision in
Davis. This factor, therefore, “casts no affirmative light on the question at hand.” Williams,
927 F.3d at 444.
Fourth, an examination of the nature of the predicate offenses also does little to aid
Harris’s cause. In fact, such an analysis lends credence to the belief that the district court relied
upon § 924(c)(3)’s elements clause in enhancing Harris’s sentence because the predicate offense
of aiding and abetting attempted robbery requires a finding of a taking or an attempted taking by
force and violence. 18 U.S.C. § 2111.
Fifth, any consideration of legal developments occurring after sentencing sheds little light
on the district court’s actual sentencing rationale. Nevertheless, Sixth Circuit decisions rendered
after Harris was sentenced establish that statutory language virtually identical to that found in
18 U.S.C. § 2111, the federal prohibition on robbery and attempted robbery, satisfies the
elements clause of 18 U.S.C. § 924(c)(3)(A). See, e.g., United States v. Jackson, 918 F.3d 467,
484–86 (6th Cir. 2019) (finding that carjacking is a crime of violence under the elements clause
of § 924(c) because a conviction under 18 U.S.C. § 2119 requires the taking of a motor vehicle
“from the person or presence of another by force and violence or by intimidation, or attempts to
do so”); McBride, 826 F.3d at 295–96 (concluding that bank robbery under 18 U.S.C. § 2113,
which requires a taking or an attempt to take certain property “from the person or presence of
another” “by force and violence, or by intimidation,” constitutes a crime of violence under
§ 4B1.2(a) of the United States Sentencing Guidelines).
Harris concedes that examination of the Williams factors does not conclusively establish
that the sentencing judge relied upon § 924(c)’s residual clause when sentencing him. Indeed, he
notes that “the record [in this matter] is silent on whether the § 924(c) sentence is based on the
No. 21-5040 Harris v. United States Page 10
statute’s residual clause or its elements clause.” (Appellant’s Br. at 26.) He nevertheless argues
that such silence should lead us to conclude that his § 924(c) sentence is unconstitutional.
“It is a ‘tall order’ for a petitioner to show which . . . clause a district court applied when
the sentencing record is silent—a burden all the more unjust considering that silence is the norm,
not the exception.” Raines v. United States, 898 F.3d 680, 690–91 (6th Cir. 2018) (Cole, C.J.,
concurring). But even engaging in a Williams-factors analysis does little to aid Harris. As the
district court noted when denying Harris relief on his second or successive § 2255 motion, “In
the part of the Williams opinion that Harris relies on, the [Sixth Circuit] was considering whether
Williams was entitled to raise a second or successive motion under § 2255 in the first place, not
whether a motion to vacate should prevail.” Harris V, 2020 WL 7769094, at *3 (citing Williams,
927 F.3d at 439). “Although the [Sixth Circuit] found that Williams was entitled to bring a
second § 2255 motion, it still had to answer the question of whether Williams’s predicate offense
qualified under the ACCA’s elements clause before deciding if the § 924(e) sentence should be
vacated.” Id.; Williams, 927 F.3d at 445 (citing Van Cannon v. United States, 890 F.3d 656, 661
(7th Cir. 2018) (“To win § 2255 relief, Van Cannon had to establish a Johnson error and that the
error was harmful. The government confessed the Johnson error . . . . The only remaining
dispute concerned the question of prejudice.”)). Thus, deciding whether an enhanced sentence
relied upon the residual clause or the elements clause of § 924(c)(3) does not, by itself, determine
whether Harris is entitled to the relief he seeks. Harris also must establish that he suffered
prejudice from an improper sentencing calculation. Consequently, even despite the possibility
that the district court relied upon the residual clause of § 924(c)(3)(B) in sentencing Harris,
Harris also must show that neither of his predicate offenses qualified for enhanced sentencing
under § 924(c)(3)’s elements clause. See, e.g., Porter v. United States, 959 F.3d 800, 801–02
(6th Cir. 2020), cert. denied, 141 S. Ct. 1060 (2021).
Determination of Whether Harris’s Predicate Convictions Are Crimes of Violence
Aiding and Abetting Second-Degree Murder
Squelching any inclination to presume that a second-degree murder conviction
necessarily involves the use, attempted use, or threatened use of physical force against the person
No. 21-5040 Harris v. United States Page 11
of another, the Supreme Court recently held that an offense requiring a mens rea of simple
recklessness does not qualify as a violent felony under the elements clause of the ACCA,
18 U.S.C. § 924(e)(2)(B)(i), a clause that is essentially identical to § 924(c)(3)(A). Borden v.
United States, 141 S. Ct. 1817, 1825 (2021). Consequently, the question presents itself whether
second-degree murder prohibited by 18 U.S.C. § 1111 can be committed with mere recklessness
such that it does not necessarily involve the application of force and violence against the person
of another. We need not resolve that question in this case, however. Because a district court
may enhance the prison term under § 924(c) for the use or carrying of a firearm during and in
relation to even one offense that can be considered a “crime of violence,” we may affirm the
district court’s judgment as long as Harris’s conviction for aiding and abetting attempted robbery
involves the “use, attempted use, or threatened use of physical force against the person or
property of another.”
Aiding and Abetting Attempted Robbery
In arguing that a conviction under 18 U.S.C. § 2111 does not meet that standard, Harris
cites United States v. Camp, 903 F.3d 594, 601 (6th Cir. 2018), and United States v. Yates,
866 F.3d 723, 734 (6th Cir. 2017), for the proposition that, pursuant to a categorical-approach
analysis, “the elements of § 2111 must be compared to the elements of generic robbery which is
defined as ‘the “misappropriation of property under circumstances involving immediate danger
to the person.”’” (Appellant’s Br. at 40 (quoting Camp, 903 F.3d at 601).) Camp and Yates,
however, were not concerned with whether the crimes at issue in those cases—Hobbs Act
robbery (Camp) and Ohio’s robbery statute, Ohio Rev. Code Ann. § 2911.02(A)(3) (Yates)—
were crimes of violence under 18 U.S.C. § 924(c)(3)(A).4 Rather, the issue in those cases
required an examination of whether the crimes met the generic definition of robbery as listed in
the enumeration clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines.5
4
In fact, in Camp, we recognized that the plain text of the Hobbs Act may be sufficient to categorize
robbery as a crime of violence under the use-of-force clause of 18 U.S.C. § 924(c). Camp, 903 F.3d at 600.
5
The provisions of § 4B1.2(a) of the Guidelines, like the relevant provisions of the ACCA, 18 U.S.C.
§ 924(e)(2)(B), previously contained three clauses defining the terms “crime of violence” in the Guidelines or
“violent felony” in the ACCA. In addition to the equivalents of an elements clause and a residual clause, § 4B1.2(a)
of the Guidelines and 18 U.S.C. § 924(e)(2)(B) contained what are known as enumeration clauses that list specific
No. 21-5040 Harris v. United States Page 12
Unlike the involved analysis that must be undertaken to determine whether an
individual’s prior conviction constitutes an enumerated, generic offense under § 4B1.2(a)(2) of
the Guidelines or an enumerated, generic offense under § 924(e)(2)(B)(ii) of the ACCA, an
analysis under § 924(c)(3)(A) requires only that the predicate offense for which a defendant was
convicted necessarily “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” See In re Franklin, 950 F.3d at 911 (explaining
the relevant inquiry to determine whether arson, 18 U.S.C. § 844(i), constitutes a crime of
violence under the elements clause of § 924(c)(3)(A)).
Even so, Harris continues to argue that 18 U.S.C. § 2111 cannot be considered a crime of
violence because its language “is broader than generic robbery because: 1) under the statute
intimidation does not have to involve ‘immediate danger to the person;’ and 2) unlike generic
robbery, § 2111 includes attempted robbery.” (Appellant’s Br. at 42.) Again, however, under
the elements clause of § 924(c)(3)(A), the government need not establish that every element of a
§ 2111 violation is included in the definition of generic robbery. Instead, the government need
show only that even “the least of th[e] acts criminalized” by § 2111 requires the use, attempted
use, or threatened use of force. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (alteration in
original) (internal quotation marks and citation omitted). Because “intimidation” “involves the
threat to use physical force,” McBride, 826 F.3d at 296, and because even attempts to take
anything of value from a person “by force and violence, or by intimidation” constitute § 2111
violations, 18 U.S.C. § 2111 is a crime of violence for purposes of § 924(c)(3)(A). See, e.g.,
United States v. Fultz, 923 F.3d 1192, 1193, 1195 (9th Cir.), cert. denied, 140 S. Ct. 668 (2019)
(finding that robbery on a government reservation under § 2111 is a crime of violence for
purposes of § 924(c)(3)(A)); United States v. Shirley, 808 F. App’x 672, 677 (10th Cir. 2020)
(robbery under § 2111 meets the requirements of the elements clause of § 924(c)(3)(A)); United
States v. Ben, 783 F. App’x 443, 443 (5th Cir. 2019), cert. denied, 140 S. Ct. 1547 (2020)
(same).
crimes that meet the respective definitions of a “crime of violence” and a “violent felony.” See U.S.S.G.
§ 4B1.2(a)(2) (now listing “murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense,
robbery, arson, extortion, or the use or unlawful possession of a firearm . . . or explosive material . . . .”); 18 U.S.C.
§ 924(e)(2)(B)(ii) (listing crimes involving burglary, arson, extortion, or use of explosives).
No. 21-5040 Harris v. United States Page 13
CONCLUSION
Because 18 U.S.C. § 2111 has, as an essential element, “the use, attempted use, or
threatened use of physical force against the person or property of another,” it is a crime of
violence for purposes of § 924(c)(3)(A)’s elements clause. Harris thus has failed to establish any
prejudice from the imposition of his § 924(c) sentence. Consequently, we AFFIRM the
judgment of the district court denying Harris’s second or successive § 2255 motion.