United States v. Carr

Decision Date07 January 2020
Docket NumberNo. 18-3053,18-3053
Citation946 F.3d 598
Parties UNITED STATES of America, Appellee v. Brian Eric CARR, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

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 , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (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.

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 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, 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

II.

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, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). More specifically, we must ask whether "the least of th[e] acts criminalized ... are encompassed by the generic federal offense." Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (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

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, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis omitted).

We agree with our fellow circuits that Section 2113(a) requires a threat of physical force because it applies only...

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  • United States v. Sumner
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    • U.S. District Court — District of Columbia
    • 16 Mayo 2022
    ...how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion, '” Carr, 946 F.3d at 601 (quoting Begay v. States, 553 U.S. 137, 141 (2008)), which necessarily requires the court to turn its focus to whether “the least serious......
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2 books & journal articles
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    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
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    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 Agosto 2022
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