United States v. Gregory Cross

691 F. App'x 312

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2017
• Docket: 15-50458
• Status: Unpublished

Opinion

MEMORANDUM ***

Gregory Cross (Cross) appeals from his 120-month sentence for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Cross argues that the district court erred in applying the career offender guideline under U.S.S.G. § 4B1.1 because his convictions for unarmed bank robbery do not categorically qualify as crimes of violence within the meaning of U.S.S.G. § 4B1.2. Because the parties are familiar with the facts, we do not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

We held in United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990), that unarmed bank robbery in violation of § 2113(a) constitutes a crime of violence under the “force clause” of U.S.S.G. § 4B1.2 and within the meaning of § 4B1.1. Similarly, we held in United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000), that armed bank robbery in violation of § 2113(a) & (d) constitutes a crime of violence within the meaning of 18 U.S.C. § 924(c). No intervening authority has overruled these precedents.

Contrary to Cross’s arguments that unarmed bank robbery does not require violent force or intentional conduct, “intimidation” under § 2113(a) requires the necessary level of violent physical force as defined by Johnson v. United States, 559 U.S. 133, 140, 143, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Furthermore, as a general intent statute, conviction under § 2113(a) requires intentional use or threatened use of force and therefore does not conflict with Leocal v. Ashcroft, 543 U.S. 1, 8-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), or Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir. 2006) (en banc). See Carter v. United States, 530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (holding that § 2113(a) “requir[es] proof of general intent” (emphasis omitted)). Accordingly, no “intervening higher authority” is “clearly irreconcilable” with Selfa and Wright, and those precedents are controlling here. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). .

Therefore, the district court did not err in applying the career offender guideline, because Cross’s conviction under § 2113(a) qualified as a crime of violence under the guidelines. 1

AFFIRMED.

*** xhiS disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 . Because unarmed bank robbery qualifies as a crime of violence under § 4B 1.2(a)(1), we do not reach the parties’ arguments regarding the commentary to that provision. We have, however, stated that the commentary's language supports the conclusion that unarmed bank robbery is a crime of violence. See Selfa, 918 F.2d at 751.