U.S. v. Jones

Decision Date13 May 1991
Docket NumberNos. 90-3114,90-3166,s. 90-3114
Citation932 F.2d 624
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dan JONES and Jerome A. Jones, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Matthew L. Jacobs, Asst. U.S. Atty., Milwaukee, Wis., for U.S.

Thomas M. Croke, Brookfield, Wis., for Dan Jones.

Michael L. Chernin, Milwaukee, Wis., for Jerome A. Jones.

Before BAUER, Chief Judge, and CUMMINGS and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The defendants were convicted of bank robbery. Only one issue, raised by only one defendant, merits discussion--whether for purposes of sentencing the judge properly classified Dan Jones as a "career offender," a classification that resulted in a long sentence (twelve years). For him to be so classified, it was necessary that the bank robbery be a "crime of violence." Sentencing Guidelines Sec. 4B1.1. It was an unarmed robbery. Jones walked up to a teller and announced, "This is a hold up." He demanded that the teller give him money from the teller's drawer. When the teller hesitated, Jones leapt onto the teller's counter, pulled open the drawer, grabbed $2,000 in cash from it, stuffed it in a bag that he had brought with him, and ran out of the bank with his accomplice. The accomplice had been holding a bag too, which the teller had surmised contained a weapon, and he had repeatedly warned her, "Don't touch nothing," presumably meaning don't touch an alarm button. But neither robber brandished, or for that matter could have brandished, a weapon, because neither was armed.

The bank robbery statute required the government to prove, beyond a reasonable doubt of course, that Jones took the money "by force and violence, or by intimidation." 18 U.S.C. Sec. 2113(a). Intimidation means the threat of force. The threat can of course be a bluff. United States v. Lucas, 619 F.2d 870 (10th Cir.1980). The question in this case is whether the behavior of the defendant and his accomplice constituted a threat, which in turn depends on whether their conduct and words were calculated to create the impression that any resistance or defiance by the teller would be met with force. There was ample basis for such an inference. United States v. Hopkins, 703 F.2d 1102 (9th Cir.1983); United States v. Slater, 692 F.2d 107, 109 (10th Cir.1982).

That decides the case. For section 4B1.2(1)(i) of the Guidelines defines crime of violence to include an offense that "has as an element the ... threatened use of physical force against the person of another." There is no "space" between "bank robbery" and "crime of violence." A defendant properly convicted of bank robbery is guilty per se of a crime of violence, because violence in the broad sense that includes a merely...

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    ...... [unless] `that offense can be committed without violence within the meaning of section 4B1.1.'") (quoting United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991)); United States v. Cornelius, 931 F.2d 490, 493 (8th Cir.1991) (using factual approach to determine whether possession of fi......
  • United States v. Evans
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    ...bodily harm, which necessarily entails the threatened use of physical force." (internal quotation marks omitted)); United States v. Jones , 932 F.2d 624, 625 (7th Cir. 1991) ("There is no ‘space’ between ‘bank robbery’ and ‘crime of violence’ ... because violence in the broad sense that inc......
  • United States v. Carr
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    ...would be met by force." United States v. McCranie , 889 F.3d 677, 680 (10th Cir. 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 en......
  • United States v. Folse
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    ...such force." Lloyd v. United States, 2016 WL 5387665, at *5–6, 2016 U.S. Dist. LEXIS 118274, at *14 (citing, e.g., United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) )("Intimidation means the threat of force[.]"). Accordingly, the Court concluded that bank robbery "by force and viole......
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