United States v. Wilson

• Decision Date: 17 January 2018
• Docket Number: No. 16-3485,16-3485
• Citation: 880 F.3d 80
• Parties: UNITED STATES of America v. Jerome WILSON, Appellant
• Court: U.S. Court of Appeals — Third Circuit

880 F.3d 80

UNITED STATES of America

v.Jerome WILSON, Appellant

No. 16-3485

United States Court of Appeals, Third Circuit.

Argued November 7, 2017

Filed: January 17, 2018

Eric A. Boden, Robert A. Zauzmer [ARGUED], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Christy Martin [ARGUED], Rossman D. Thompson, Jr., Federal Community Defender Officer for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Before: JORDAN, HARDIMAN, SCIRICA, Circuit Judges

OPINION OF THE COURT

JORDAN, Circuit JudgeIf it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a "crime of violence" under the United States Sentencing Guidelines. In doing so, we join several other federal courts of appeals that have held the same under the guidelines or the Armed Career Criminal Act ("ACCA").

Jerome Wilson pled guilty to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The District Court imposed a prison sentence that was in part a result of the guidelines' career-offender enhancement, U.S.S.G. § 4B1.2, which, in Wilson's case, was applicable if bank robbery by intimidation counts as a crime of violence. The District Court correctly applied that enhancement, and it was not plain error that the Court also applied an enhancement for making a death threat. We will therefore affirm the sentencing order.

I. BACKGROUND

The facts of the case are not in dispute. Wilson pled guilty to three counts of unarmed bank robbery or attempted bank robbery in violation of 18 U.S.C. § 2113(a), and the District Court sentenced him to 151 months' imprisonment, three years of supervised released, restitution of $3,122, and a special assessment of $300. The sentence was based in part on two enhancements: one for being a career offender, U.S.S.G. § 4B1.2, and the other for making a death threat, U.S.S.G. § 2B3.1(b)(2)(F). Of the three crimes, two were completed bank robberies by demand note and one was an attempted robbery by demand note. In one of the completed robberies, the note Wilson passed to the bank teller said, "this is a hold up, empty your drawers now, or else." (App. at 37.)

The presentence report ("PSR") suggested that § 2113(a) be treated as a "crime of violence" under the guidelines, and, because Wilson had two prior convictions under that same statute, that he be classified as a "career offender." If followed, those suggestions increased Wilson's total offense level from 27 to 32 and his criminal history category from IV to VI. The PSR credited Wilson with a 3-level downward adjustment of his offense level for acceptance of responsibility, making his total suggested offense level 29. Ultimately, the threat-of-death enhancement did not increase the total offense level beyond that which was mandated by the career-offender enhancement; that is, even without the threat-of-death enhancement, Wilson's total offense level and criminal history category would have been the same.

At sentencing, Wilson did not raise any objections concerning the 2-level threat-of-death enhancement, but he did object to being treated as a "career offender" under the guidelines, arguing that § 2113(a) did not meet the guidelines' definition of a "crime of violence." The District Court overruled that objection and ultimately sentenced him to the bottom of the guidelines range calculated in the PSR.

II. DISCUSSION ¹

On appeal, Wilson challenges the District Court's application of the career-offender enhancement and the threat-of-death enhancement to his sentence. We conclude that the District Court correctly applied the career-offender enhancement because bank robbery by intimidation is categorically a crime of violence under § 4B1.2(a) of the guidelines. We further conclude that the District Court's application of the threat-of-death enhancement was not plain error.

A. Bank Robbery by Intimidation is Categorically a Crime of Violence Under the Guidelines.

Whether bank robbery by intimidation is a crime of violence is a strange but not new question. It is strange because to ask the question would seem to answer it—of course the threat of violence is inherent in bank robbery, and § 4B1.2(a)(1) of the guidelines specifically includes within the definition of a "crime of violence" "any offense under federal or state law ... that ... has as an element the ... threatened use of physical force against the person of another...." It is not a new question, though, because seven of our sister circuits have had to address this question and have concluded that bank robbery by intimidation does indeed qualify as a "crime of violence" under § 4B1.2(a)(1) or the nearly identically worded "elements" clause of the ACCA, 18 U.S.C. § 924(c)(3)(A).² See United States v. Hopkins , 577 F.3d 507, 511 (3d Cir. 2009) ("[Because] the definition of a ‘violent felony’ under the ACCA is sufficiently similar to the definition of a ‘crime of violence’ under the Sentencing Guidelines[,] ... authority interpreting one is generally applied to the other[.]" (footnote omitted)). Wilson argues that, because a defendant can be convicted of violating § 2113(a) without specifically intending to intimidate anyone, bank robbery cannot categorically be called a crime of violence. For the reasons that follow, that argument fails.

1. The Categorical Approach Applies to Determine Whether Bank Robbery by Intimidation is a "Crime of Violence" Under the Guidelines.

We exercise plenary review over a district court's decision that a conviction is one for a crime of violence, as defined by the guidelines, United States v. Brown , 765 F.3d 185, 188 (3d Cir. 2014), and we use the categorical approach to determine whether a conviction so qualifies, United States v. Chapman , 866 F.3d 129, 133 (3d Cir. 2017). That approach requires us to compare the elements of the statute under which the defendant was convicted to the guidelines' definition of "crime of violence." Id. at 133-34. A conviction under § 2113(a)can be a crime of violence only if " ‘the least of th[e] acts’ criminalized" is sufficient to meet the guidelines' definition of a crime of violence. Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (alteration in original) (quoting Johnson v. United States , 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ); see also United States v. Dahl , 833 F.3d 345, 350 (3d Cir. 2016) (determining "the least culpable conduct hypothetically necessary to sustain a conviction under the statute" (citation omitted)).

Here, Wilson was convicted under the first paragraph of § 2113(a),³ which states:

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 ... or imprisoned not more than twenty years, or both.

18 U.S.C. § 2113(a). The least culpable conduct covered by that statute is unarmed bank robbery by intimidation. See United States v. Brewer , 848 F.3d 711, 715 (5th Cir. 2017) (concluding that the least culpable conduct under § 2113(a) is "robbery by intimidation"). Thus, we must compare the elements of bank robbery by intimidation to the guidelines' definition of "crime of violence." Chapman , 866 F.3d at 133-34.

As noted earlier, supra n.2, guidelines § 4B1.2 defines "crime of violence" for purposes of the career-offender enhancement as:

(a) ... any 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 murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a). We refer to § 4B1.2(a)(1) as the "elements," or "force," clause and to § 4B1.2(a)(2) as the "enumerated offenses" clause. To determine whether Wilson's conviction categorically qualifies as a "crime of violence" under the "elements" clause, we ask whether bank robbery by intimidation has as an element of the offense "the use, attempted use, or threatened use of physical force against the person of another[.]" U.S.S.G. § 4B1.2(a)(1).

2. Section 2113(a) Has as an Element of the Offense "The Use, Attempted Use, or Threatened Use of Physical Force."

Unarmed bank robbery by intimidation clearly does involve the "threatened use of physical force against the person of another[.]" U.S.S.G. § 4B1.2(a)(1). If a common sense understanding of the word "intimidation" were not enough to prove that,⁴ our precedent establishes that § 2113(a)'s prohibition on taking the "property or money or any other thing of value" either "by force and violence, or by intimidation" has as an element the "threat of force." United States v. Askari , 140 F.3d 536, 541 (3d Cir. 1998) (en banc) (quotation marks and citation omitted), vacated on other grounds , 159 F.3d 774 (3d Cir. 1998) ; see also id. ("As used in § 2113(a), the term ‘intimidation’ means ‘to make fearful or put into fear.’ " (citation omitted)). Whether the theft of money from a bank involved intimidation is determined under an objective standard and from the victim's perspective, "i.e. , whether an ordinary person in the [bank] teller's position reasonably could infer a threat of bodily harm from the defendant's acts." Id. (quotation marks and citation omitted).

Each of our sister circuits to have addressed the issue has, not surprisingly, concluded that robbing a bank by intimidation does involve the "the use, attempted use,...