17‐2245‐cr United States v. Evans
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2018
Argued: September 24, 2018 Decided: May 8, 2019
No. 17‐2245‐cr
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UNITED STATES OF AMERICA
Appellee,
‐v.‐
RONALD EVANS,
Defendant‐Appellant,
TASHINE KNIGHTER,
Defendant.
Before: WESLEY, LIVINGSTON, Circuit Judges, and CRAWFORD, District Judge.
Judge Geoffrey W. Crawford, of the United States District Court for the District of Vermont, sitting by designation.
Defendant‐Appellant Ronald Evans appeals the district court’s June 16, 2017 decision and order resentencing him to 180 months’ imprisonment following both his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the subsequent grant of his habeas petition on the ground that his original sentence was rendered retroactively invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). Evans now claims that two of his ACCA predicates—second‐degree burglary under North Carolina law and federal bank robbery—do not qualify as “violent felonies” under ACCA. We conclude that second‐degree burglary under North Carolina law qualifies categorically as a violent felony under ACCA’s “enumerated clause.” We also conclude that federal bank robbery qualifies categorically as a violent felony under ACCA’s “elements clause.” The district court therefore did not err in determining that Evans was subject to ACCA’s mandatory minimum term of imprisonment of 180 months. Accordingly, the judgment of the district court is AFFIRMED.
FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York.
FOR DEFENDANT‐APPELLANT: REETUPARNA DUTTA, Hodgson Russ LLP, Buffalo, New York.
DEBRA ANN LIVINGSTON, Circuit Judge:
The Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B),
imposes a 15‐year mandatory minimum sentence if a defendant is convicted of
being a felon in possession of a firearm following three prior convictions for a
“violent felony.” This appeal presents the latest entry in a series of cases defining
offenses that qualify as “violent felonies” for an enhanced sentence under ACCA.
Specifically, this case calls upon us to answer two questions of first impression in
this Circuit: (1) whether second‐degree burglary in violation of North Carolina
General Statute § 14‐51 qualifies as a “violent felony” under ACCA’s “enumerated
clause”; and (2) whether federal bank robbery in violation of 18 U.S.C. § 2113(a)
qualifies as a “violent felony” under ACCA’s “elements clause.” For the reasons
outlined below, we answer these two questions in the affirmative and hold that
both statutes are “violent felonies” within the ambit of ACCA. We therefore
AFFIRM the July 14, 2017 judgment of the district court sentencing Defendant‐
Appellant Ronald Evans pursuant to ACCA (Richard J. Arcara, Judge).1
1 Evans’s Notice of Appeal, filed on June 30, 2017, refers only to the district court’s sentence entered on June 16, 2017. The district court did not enter judgment until July 14, 2017. We construe Evans’s Notice of Appeal as referring to the July 14th judgment. See Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.”); see also Manrique v. United States, 137 S.Ct. 1266, 1273 (2017) (construing Federal Rule of Appellate Procedure 4(b)(2)).
BACKGROUND
I. Factual Background2
Defendant‐Appellant Ronald Evans (“Evans”) was charged by way of a
seven‐count indictment with manufacturing and uttering counterfeit currency and
conspiracy to manufacture and utter counterfeit currency, in violation of 18 U.S.C.
§§ 471, 472, 473 and 2, and unlawful possession of a firearm by a felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). On July 26, 2011 Evans pled guilty to the
count of the indictment charging him with being a felon in possession of a firearm.
ACCA provides that a person who violates § 922(g) and who has three previous
convictions for a “violent felony” shall be imprisoned for a minimum of 15 years.
18 U.S.C. § 924(e). ACCA defines “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year” that
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
2 The factual background presented here is derived from undisputed facts from the parties’ submissions, uncontroverted testimony presented at sentencing, and Evans’s presentencing report.
Id. at § 924(e)(2)(B). The first clause is referred to as ACCA’s “elements clause,”
Stokeling v. United States, 139 S.Ct. 544, 549 (2019), the first portion of the second
clause—“is burglary, arson, or extortion”—as ACCA’s “enumerated clause,” id. at
556, and the remainder as ACCA’s “residual clause,” Johnson v. United States, 135
S.Ct. 2551, 2556 (2015). Evans acknowledged in his written plea agreement that
he qualified as an armed career criminal based on three prior violent felony
convictions, subjecting him to a 15‐year mandatory minimum sentence. The
district court accordingly sentenced Evans to 180 months’ imprisonment on
September 25, 2012.
On May 3, 2016 Evans filed a motion in conjunction with a previously filed
habeas petition, asserting that his ACCA status had been rendered retroactively
invalid under Johnson, 135 S.Ct. at 2257, which struck down ACCA’s residual
clause under the void‐for‐vagueness doctrine. The district court granted Evans’s
motion, concluding that his prior sentence had indeed been rendered retroactively
invalid under Johnson because one of his three ACCA predicate convictions (for
attempted burglary in the third‐degree in violation of N.Y. Penal Law § 140.20)
had qualified as a violent felony only under ACCA’s voided residual clause. The
district court, however, transferred the matter to the original sentencing judge for
resentencing, directing the court to consider whether any of Evans’s other prior
convictions could be substituted as ACCA predicates.
At a resentencing hearing held on June 16, 2017, the district court
determined that among Evans’s criminal history at least three offenses qualified
as “violent felonies” under ACCA, such that Evans continued to face a mandatory
minimum sentence of 15 years. Appendix (“A.”) 477–505. First, Evans was
convicted in 1982 of federal bank robbery in violation of 18 U.S.C. § 2213(a).
According to his presentencing report, this conviction occurred after he
approached a teller window at a bank branch in Buffalo, New York, and then
handed the teller a blue tote bag and a demand note that read, “I have a gun fill
bag.” Next, in 1983, Evans was convicted of federal armed bank robbery in
violation of 18 U.S.C. § 2113(d). The conduct underlying this conviction involved
Evans and two co‐conspirators entering a bank in Buffalo wearing ski masks and
armed with a pistol and a shotgun, yelling “Everyone get down, this is a hold up!”
Finally, Evans was convicted in 2001 in North Carolina of second‐degree burglary
in violation of N.C. Gen Stat. § 14‐51. According to his presentencing report, this
conviction occurred after he and an accomplice broke into a home, confined and
restrained the victims therein, hit one victim with a hand gun and proceeded to
steal property with a combined value of $30,000. The district court determined
that the first two offenses qualified categorically as violent felonies under ACCA’s
elements clause, and that the final offense qualified categorically as a violent
felony under ACCA’s enumerated clause. Accordingly, the district court re‐
sentenced Evans to 180 months’ imprisonment, the same sentence as was
originally imposed. This appeal followed.
DISCUSSION
Having laid out the facts surrounding Evans’s appeal, we now set them
aside in order to ascertain whether his predicate convictions qualify as crimes of
violence under ACCA. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)
(“Facts . . . are mere real‐word things . . . . ACCA . . . cares not a whit about them.”
(internal citation omitted)). On appeal we consider Evans’s claim that two of his
ACCA predicates—second‐degree burglary under North Carolina law and federal
bank robbery—do not categorically qualify as crimes of violence within the
meaning of 18 U.S.C. § 924(e).3 We conclude that they do.
I
We first consider whether Evans’s conviction for second‐degree burglary
under North Carolina law qualifies as a “crime of violence” under ACCA’s so‐
called “enumerated clause.” By way of reminder, ACCA imposes a 15‐year
mandatory minimum sentence on defendants, such as Evans, who are convicted
of violating § 924(g) and have already accrued three prior convictions for the
commission of violent felonies. The enumerated clause defines “violent felony”
to include any crime punishable by imprisonment for more than a single year, that,
in relevant part, “is burglary, arson, or extortion.” See 18 U.S.C. § 924(e)(2)(B)(ii).
To determine whether a past conviction is for an enumerated offense under
ACCA, courts employ a “categorical approach.” Descamps v. United States, 570
U.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); see
also Mathis, 136 S.Ct. at 2248–51 (outlining the categorical approach and applying
it to a state burglary conviction). This approach requires us to evaluate a prior
3 Evans concedes on appeal that his 1983 conviction for armed bank robbery in violation of 18 U.S.C. § 2113(d) is a qualifying offense.
conviction “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). To do so, we “compare the elements of
the statute forming the basis of the defendant’s conviction with the elements of the
‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 570 U.S.
at 257.
In other words, we identify “the minimum criminal conduct necessary for
conviction under a particular statute,” United States v. Acosta, 470 F.3d 132, 135 (2d
Cir. 2006) (per curiam), and determine whether that conduct falls within the scope
of the “generic” definition of the crime. To show a predicate conviction is not a
violent felony, there must be “‘a realistic probability, not a theoretical possibility,’
that the statute at issue could be applied to conduct that does not constitute” a
violent felony. United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (quoting Gonzales
v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)).
As noted above, Evans was convicted in 1982 of second‐degree burglary
under North Carolina law. Although ACCA enumerates “burglary” as a “violent
felony,” pursuant to the categorical approach not every offense labeled as
“burglary” under state law qualifies as a violent felony under ACCA. Taylor, 495
U.S. at 602; Mathis, 136 S.Ct. at 2250–51 (holding that where the parties agreed that
Iowa’s burglary statute “cover[ed] more conduct than generic burglary does” the
statute did not qualify as a violent felony under ACCA); see also Descamps, 570 U.S.
at 282 (Alito J., dissenting) (“While the concept of a conviction for burglary might
seem simple, things have not worked out that way . . . .”). To determine whether
a past conviction for burglary qualifies as a violent felony under ACCA, courts
employing the categorical approach accordingly “compare the elements of the
crime of conviction with the elements of the ‘generic’ version” of burglary.
Mathis, 136 S.Ct. at 2247. Thus, we focus here on whether the elements of North
Carolina second‐degree burglary “are the same as, or narrower than, those of
generic burglary.” Descamps, 570 U.S. at 282. We conclude that they are and
therefore that Evans’s conviction for second‐degree burglary under North
Carolina law qualifies as a violent felony under ACCA.
The Supreme Court has defined “generic burglary” as the “unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent
to commit a crime.” United States v. Stitt, 139 S.Ct. 399, 405–06 (2018) (quoting
Taylor, 495 U.S. at 598). Thus, in order to qualify categorically, a state burglary
offense must require (1) the unlawful or unprivileged entry (2) into a dwelling (3)
with the intent to commit a crime.
North Carolina defines common law burglary as “the breaking and entering
of a dwelling house of another in the nighttime with the intent to commit a felony
therein.” State v. Williams, 333 S.E.2d 708, 720 (N.C. 1985). Moreover, State
appellate court decisions clarify that an “unlawful or unprivileged entry” is also
an essential element of common law burglary. United States v. Mack, 855 F.3d 581,
586 (4th Cir. 2017) (citing State v. Upchurch, 421 S.E.2d 577, 588 (N.C. 1992)); see also
United States v. Walker, 595 F.3d 441, 443–44 (2d Cir. 2010) (noting that in employing
the categorical approach “[a] statute is not merely analyzed on its face; rather, we
consider the statutory language as it has been elucidated by the relevant state’s
courts”).
Common law burglary occurs in the second‐degree in North Carolina when:
committed in a dwelling house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime.
N.C. Gen. Stat. § 14‐51. Thus, in order to obtain a conviction for second‐degree
burglary in North Carolina, the State must prove (i) the unlawful breaking and
entering (ii) in the nighttime (iii) into a dwelling house or sleeping apartment (iv)
unoccupied at the time of the offense (v) with the intent to commit a felony therein.
At first glance, second‐degree burglary under North Carolina law would
not appear to be broader than the generic definition of burglary. And indeed, the
Fourth Circuit has already concluded that first‐degree burglary in North Carolina
satisfies the generic definition of burglary for the purposes of applying the United
States Sentencing Guidelines (the “Guidelines”). See Mack, 855 F.3d at 586.
Evans argues on appeal, however, that second‐degree burglary under North
Carolina law is broader than the generic definition of burglary because it can
encompass unlawful entry into mobile conveyances. He relies on a few North
Carolina cases to support his argument. See, e.g., State v. Taylor, 428 S.E.2d 273,
274 (N.C. Ct. App. 1993) (holding that an eight by twelve‐foot trailer parked on a
farm qualifies as a “dwelling” for the purpose of affirming a first‐degree burglary
conviction); State v. Douglas, 277 S.E.2d 467, 470 (N.C. Ct. App. 1981), affm’d at 285
S.E.2d 802 (N.C. 1982) (defining “an unoccupied mobile home” as a “building” for
the purposes of N.C. Gen. State § 14‐54, a lesser included offense of second‐degree
burglary). Evans points also to the Supreme Court’s decision in Taylor v. United
States, which, he argues, indicated that burglary of certain nontypical structures
and vehicles falls outside the scope of generic burglary. See Taylor, 495 U.S. at 599
(noting that some states “define burglary more broadly” than generic burglary “by
including places, such as automobiles and vending machines, other than
buildings”).
The mobile home door left slightly ajar by Taylor, however, has been closed
shut by the Supreme Court’s more recent opinion in Stitt, holding that “burglary
of a nonpermanent or mobile structure that is adapted or used for overnight
accommodation can qualify as ‘burglary’ under [ACCA].” Stitt, 139 S.Ct. at 404–
06. The Court reasoned that such a definition satisfies the “generic” definition
of burglary because it accords with state criminal codes at the time of ACCA’s
passage. Id. at 406. Moreover, the Court noted, in passing ACCA, Congress
would have viewed burglary of a vehicle used for overnight accommodation as
inherently dangerous because “[a]n offender who breaks into a mobile home, an
RV, a camping tent, a vehicle, or another structure that is adapted for or
customarily used for lodging runs a . . . risk of violent confrontation.” Id.
Following Stitt, then, it is clear that second‐degree burglary under North
Carolina law fits within the generic definition of burglary. North Carolina’s
statute and the case law surrounding it establish that second‐degree burglary
criminalizes only breaking and entering into a “dwelling house” or “sleeping
apartment.” N.C. Gen. Stat. § 14‐51. North Carolina courts have held that a
mobile structure qualifies as such only if “the victim has made that trailer an area
of repose, one which he can reasonably expect to be safe from criminal intrusion.”
Taylor, 428 S.E.2d at 274. Thus, burglary under North Carolina law does not
extend to the breaking and entering of a mere automobile, but instead aligns with
the Supreme Court’s definition of generic burglary, encompassing such unlawful
entry of a vehicle that is “adapted for or customarily used for lodging.” Stitt, 139
S.Ct. at 406.
In sum, even though a mobile home can qualify as a “dwelling house” under
North Carolina law, such a definition, as Stitt makes clear, does not broaden the
statute beyond ACCA’s reach. We therefore hold that second‐degree burglary in
violation of N.C. Gen. State § 14‐51 qualifies as a violent felony under ACCA’s
enumerated clause.
II
Evans next argues that his prior conviction for federal bank robbery in
violation of 18 U.S.C. § 2113(a) does not categorically qualify as a violent felony
under ACCA’s elements clause. By way of reminder, ACCA’s elements clause
defines the term “violent felony” as “an offense that is a felony” and
(i) has as an element the use, attempted use, or threatened use of physical force against the person or property of another.
8 U.S.C. § 924(e). The federal bank robbery statute provides:
(a) 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.
18 U.S.C. § 2113(a).
To address Evans’s claim we again apply the “categorical approach.”
Stokeling, 139 S.Ct. at 554–55 (applying the categorical approach in holding that
robbery under Florida law qualifies as a predicate violent felony under ACCA’s
elements clause). “This approach, familiar by now, involves two steps: first we
identify the elements of the predicate conviction by determining the minimum
criminal conduct a defendant must commit to be convicted; second, we determine
whether that minimum criminal conduct has as an element the use, attempted use,
or threatened use of physical force.” United States v. Moore, 916 F.3d 231, 240 (2d
Cir. 2019) (internal quotation marks omitted). Once more, we may not “consider
the facts of the offense conduct . . . under the rigidly structured regime of
categorical analysis.” Villanueva v. United States, 893 F.3d 123, 128 (2d Cir. 2018)
(internal quotation marks and citation omitted).
Evans argues that federal bank robbery does not categorically qualify as a
crime of violence under ACCA’s elements clause because the offense
“encompasses ‘intimidation’ and ‘extortion’ as ‘means’ by which the offense can
be accomplished.” Br. Def‐Appellant at 30. First, we need not address Evans’s
argument regarding bank robbery “by extortion” because we agree with the Ninth
Circuit that § 2113(a) “contains at least two separate offenses, bank robbery and
bank extortion.” United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018). Because
Evans was convicted of bank robbery—indeed Congress amended the statute after
his conviction to include bank extortion, Criminal Law and Procedure Technical
Amendments Act of 1986, Pub. L. No. 99‐646 § 68, 100 Stat. 3592, 3616 (amending
18 U.S.C. § 2113(a))—we need not decide whether bank extortion qualifies as a
crime of violence.
Evans’s argument therefore hinges entirely on whether bank robbery “by
intimidation” is categorically a crime of violence. In answering this question “we
do not write on a blank slate.” Hill, 890 F.3d at 56. As we recently observed in
concluding that federal credit union robbery qualifies as a crime of violence for the
purposes of 18 U.S.C. § 924(c), “this circuit, in a summary order, and our sister
circuits, in published opinions, have consistently held that federal bank robbery
by intimidation is a crime of violence under the force clause of various sentence
enhancement Guidelines and statutes.” 4 United States v. Hendricks, 2019 WL
1560582 at *5 (2d Cir. Apr. 11, 2019) (quotation marks omitted). These decisions
have rejected the same argument that Evans advances here. 5 As the Fourth
4 18 U.S.C. § 924(c)(3)’s “force clause” defines the term “crime of violence” as “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. at § 924(c)(3)(A). We have noted the similarities between ACCA’s “elements clause” and § 924(c)(3)’s “force clause” and have accordingly looked to cases analyzing ACCA’s elements clause to interpret the “similarly . . . worded” force clause presented in 924(c)(3)(A)). Hill, 890 F.3d at 56. We have done the same with § 4B1.2 of the Guidelines, which defines “crime of violence” for purposes of the “career offender” enhancement, U.S.S.G. § 4B1.1(a), as an offense that is a felony and that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1); see also United States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010) (“Given the substantial similarity between the [ACCA’s] definition of ‘violent felony’ and the [Guidelines’] definition of ‘crime of violence,’ authority interpreting one phrase frequently is found to be persuasive in interpreting the other phrase.”) (alterations in original) (quoting United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994)).
5 See United States v. Ellison, 866 F.3d 32, 39–40 (1st Cir. 2017) (holding that federal bank
robbery qualifies as a crime of violence under the Guidelines’ career offender “force clause”); United States v. Brewer, 848 F.3d 711, 715–16 (5th Cir. 2017) (same); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same); United States v. Wright, 957 F.2d 520, 521–22 (8th Cir. 1992) (same); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same);
Circuit has persuasively argued, “[a] taking ‘by force and violence’ entails the use
of physical force. Likewise, a taking ‘by intimidation’ involves the threat to use
such force.” United States. v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (emphasis
added); see also United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017)
(“‘[I]ntimidation’ as used in the federal bank robbery statute requires that a person
take property in such a way that would put an ordinary, reasonable person in fear
of 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 includes a merely threatened use of
force is an element of every bank robbery.”).
The decades‐old out of circuit case law on which Evans relies in arguing to
the contrary merely confirms that bank robbery by intimidation necessarily
involves the threat to use force. Evans cites to instances where a defendant was
United States v. Gutierrez, 876 F.3d 1254, 1256–57 (9th Cir. 2017) (holding that federal bank robbery is a crime of violence under § 924(c)(3)(A)); United States. v. McNeal, 818 F.3d 141, 156–57 (4th Cir. 2016) (same); see also United States v. Horsting, 678 F. App’x 947, 949–50 (11th Cir. 2017) (unpublished opinion) (concluding that federal bank robbery constitutes a “violent felony” under ACCA); Kucinski v. United States, No. 16‐cv‐201‐PB, 2016 WL 4444736, at *3 (D.N.H. Aug. 23, 2016) (noting that “a number of courts have rejected these same arguments, and determined—unanimously, it appears—that federal bank robbery constitutes a violent felony under the ACCA”).
convicted of bank robbery after making an emphatic written demand for money,
absent explicitly threatening to use force or violence. See, e.g., United States v.
Henson, 945 F.2d 430, 439 (1st Cir. 1991) (affirming bank robbery conviction where
evidence demonstrated that defendant stood within two feet of the teller and
handed her a note directing her to “put fifties and twenties into an envelope
now!!”); United States v. Bingham, 628 F.2d 548, 549 (9th Cir. 1980) (affirming bank
robbery conviction where evidence demonstrated that defendant told teller that
“she had ‘three seconds’ to give him the money in the top drawer, and then
repeated this demand”). Contrary to Evans’s assertion, these examples establish
that where a defendant commits bank robbery without engaging in acts of force or
violence, he necessarily invokes “the threat to use . . . force.” McNeal, 818 F.3d at
153 (emphasis added). And a defendant issuing such a threat does not need to
“specif[y] . . . any particular means in order [for that threat] to be effective.” Hill,
890 F.3d at 59. In other words, a demand to “give me all your money” carries
with it an implicit threat of force. Only in “backing down in the face of these
threats [do] the victims avoid physical force.” United States v. Pereira‐Gomez, 903
F.3d 155, 166 (2d Cir. 2018) (holding that attempted robbery in the second degree
under New York law qualifies as a “crime of violence” under the Guidelines’
“force clause”).
Evans also argues that “intimidation” for the purposes of § 2113(a) requires
only “putting the victim in fear of bodily harm,” United States v. McCormack, 829
F.2d 322, 324 (2d Cir. 1987), and that the threatened use of physical force is not, in
fact, essential to placing a person in such fear. Evans contends—though he cites
to no case law on the subject—that federal bank robbery could theoretically be
achieved by threatening to “injure” a victim via an indirect means such as
“poison.” Br. Def‐Appellant at 34. We reject this argument as well.
First, for the purposes of applying the categorical approach, “hypotheticals
are insufficient” because a defendant must show that there is a “realistic
probability” that federal bank robbery would reach the conduct Evans describes.
Hill, 890 F.3d at 58 (internal quotation marks omitted). The categorical approach
“requires more than the application of legal imagination to a . . . statute’s
language.” Deunas‐Alvarez, 549 U.S. at 193. Evans has not unearthed an
example of “bank robbery by poison,” so his attempt at applying “legal
imagination” to the federal bank robbery statute must accordingly fail, id.6
Next, we have already rejected the argument that placing another in fear of
injury—even indirect injury—does not involve a threat or use of force, see Hill, 890
F.3d at 59–60, and we do so again today. As we held in Hill:
[A] robbery still has as an element “the use, attempted use, or threatened use of physical force against the person or property of another,” notwithstanding that it is accomplished by threatening to poison a victim, rather than to shoot him. Some threats do not require specification of any particular means in order to be effective; yet they still threaten some type of violence and the application of some force. Consider: “That’s a nice car—would you like to be able to continue driving it?”
Id. at 59. Evans suggests that our decision in Hill is not binding here because it
relied on the Supreme Court’s decision in Castleman, which interpreted the word
“force” as employed in connection with a different statute, 18 U.S.C. § 922(g)(9)
(defining a misdemeanor crime of violence). See United States v. Castleman, 572
U.S. 157, 168 (2014). But Hill applied Castleman’s reasoning to 18 U.S.C. § 924 (at
6 Furthermore, McCormack, on which Evans relies, does not define “intimidation” for the purposes of interpreting the federal bank robbery statute, as Evans contends. Instead, the decision merely recites the jury instructions given by the district court in that particular case. See McCormack, 829 F.2d at 324–25 (holding that it was “inconceivable that any juror, after finding that [the defendant] pointed a gun at the bank teller and threatened to blow her head off, would conclude that she was not intimidated”).
issue here), noting that there was “no persuasive reason why the same principle
should not apply to the construction of § 924(c)(3).” Hill, 890 F.3d at 59. We find
Castleman’s reasoning equally persuasive in the present case.7
For the numerous reasons catalogued above, federal bank robbery “requires
the use or threat of force in order to overcome the victim’s resistance to the theft,”
Moore, 916 F.3d at 242 ( citing Stokeling, 139 S.Ct. at 555), and therefore qualifies as
a “violent felony” under ACCA’s elements clause.
* * *
The aspirations behind the categorical approach first articulated in Taylor
were worthy ones. The Supreme Court hoped to remain faithful to “ACCA’s text
and history[,] . . . avoid[] the Sixth Amendment concerns that would arise from
sentencing courts’ making findings of fact that properly belong to juries[, a]nd . . .
avert[] ‘the practical difficulties and potential unfairness of a factual approach.’”
7 Recent Supreme Court guidance interpreting ACCA’s elements clause buttresses our conclusion that federal bank robbery qualifies as a crime of violence under ACCA. The Supreme Court has now established that threatened force need not be of a particular strength in order to fall within ACCA’s elements clause. Stokeling, 139 S.Ct. at 554. “Force” is “violent” for the purposes of ACCA if it is sufficient to “overcome the victim’s resistance . . . however slight that resistance might be.” Id. at 550. Thus, while Evans attempts to distinguish between the use of “some force” or “indirect force” and the use of “violent force,” his proffered distinctions must fail. Evans has not offered an example of federal bank robbery that does not involve force sufficient to “overcome the victim’s resistance,” and this court has been unable to conceive of one.
Descamps, 570 U.S. at 267 (quoting Taylor, 495 U.S. at 600–01). But the laudable
goals motivating this approach have not been realized. See Mathis, 136 S.Ct. at 2258
(Kennedy J., concurring) (labeling the categorical approach “a system that each
year proves more unworkable”); Transcript of Oral Argument at 26, Stitt, 139 S.Ct.
(No. 17‐765) (Alito J.) (characterizing the Court’s categorical approach
jurisprudence as “one royal mess”).
In hindsight, judicial difficulties with the categorical approach might have
been expected. The approach demands that federal courts employ an analysis
for which they are not constitutionally (or practically) suited. While cases such
as Evans’s undoubtedly pose an actual case or controversy as the Constitution
demands, see U.S. Const. art. III § 2, cl. I, the categorical approach paradoxically
instructs courts resolving such cases to embark on an intellectual enterprise
grounded in the facts of other cases not before them, or even imagined scenarios.
Courts are required to discern the outer reaches of countless federal and state
statutory provisions in an exercise most reminiscent of the law school classroom,
and quite alien to courts’ well‐established role of adjudicating “concrete legal
issues, presented in actual cases, not abstractions.” United Public Workers v.
Mitchell, 330 U.S. 75, 89 (1947) (quotation marks omitted).
A solution lies with two sources: Congress, which can “amend[] the ACCA,”
and the Supreme Court, which may “revisit its precedents in an appropriate case.”
Mathis, 136 S.Ct. at 2258 (Kennedy J., concurring) (calling for a reconsideration of
the categorical approach should “continued congressional inaction” persist).
Mindful of the competing textual, constitutional, and practical concerns
underpinning the categorical approach, we offer no opinion as to which of the
many proposed solutions—from a conduct‐specific approach 8 to eliminating
mandatory minimums9—may be appropriate. We ask only that Congress or the
Supreme Court take action. Until such time, the litany of ACCA challenges will
continue, as will our efforts faithfully to apply the categorical approach, however
8 See, e.g., U.S. Sent’g Commission, Proposed Amendments to the Federal Sentencing Guidelines (Dec. 13, 2018), http://www.ussc.gov/sites/default/files/pdf/news/press‐ releases‐and‐news‐advisories/press‐releases/20181213_News‐Release.pdf (announcing proposed amendment to the Guidelines that would “enable the sentencing courts to consider the conduct that formed the basis of the offense of conviction” in light of the “extensive litigation” and “inconsistent sentencing outcomes” that have resulted from the categorical approach).
9 See, e.g., Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L. REV.
199, 221–22 (1993) (arguing that Congress should eliminate mandatory minimums in favor of greater reliance on discretionary Guidelines, which “can achieve a substantial degree of determinacy, predictability, uniformity and even severity . . . [while still] preserv[ing] discretion . . . and allow[ing] sufficient flexibility to avoid the inequities and process costs that rigid mandatories entail”); see also United States v. Booker, 543 U.S. 220, 223 (2005) (explaining that “advisory [sentencing] provisions that recommend[], rather than require[], the selection of particular sentences in response to differing sets of facts, . . . would not implicate the Sixth Amendment”).
awkward its demand that judges deciding cases act, instead, the part of law school
professors spinning out hypotheticals.
CONCLUSION
We conclude that second‐degree burglary under North Carolina law
qualifies categorically as a crime of violence under ACCA’s enumerated clause
and that federal bank robbery qualifies categorically as a crime of violence under
ACCA’s elements clause. We therefore AFFIRM the judgment of the district court.