United States v. Jerad Hanks

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 13, 2020
• Docket: 18-14183
• Status: Unpublished

Opinion

Case: 18-14183 Date Filed: 01/13/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14183 Non-Argument Calendar ________________________

D.C. Docket No. 6:18-cr-00028-CEM-TBS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERAD HANKS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 13, 2020)

Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14183 Date Filed: 01/13/2020 Page: 2 of 5

After pleading guilty, Jerad Hanks was convicted of bank robbery, 18 U.S.C.

§ 2113(a), and brandishing a firearm during and in relation to a crime of violence,

18 U.S.C. § 924(c)(1)(A). He now appeals the denial of his motion to dismiss the

§ 924(c) count in his indictment, arguing that federal bank robbery does not qualify

as a predicate crime of violence for purposes of § 924(c). Hanks’s arguments are

foreclosed by binding circuit precedent. We therefore affirm.

Section 924(c) provides for a mandatory consecutive sentence for any

defendant who uses or carries a firearm during and in relation to, or possesses a

firearm in furtherance of, either a “crime of violence” or a “drug trafficking crime.”

18 U.S.C. § 924(c)(1)(A). We review de novo whether an offense qualifies as a

“crime of violence” under § 924(c). United States v. McGuire, 706 F.3d 1333, 1336

(11th Cir. 2013).

For the purposes of § 924(c), “crime of violence” means an offense that is a

felony and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. § 924(c)(3). We refer to subsection (c)(3)(A) as the “elements clause.”

Subsection (c)(3)(B), what we call the “residual clause,” has been struck down by

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the Supreme Court as unconstitutionally vague. United States v. Davis, 139 S. Ct.

2319, 2336 (2019).

We use a categorical approach to decide whether an offense satisfies the

elements-clause definition. McGuire, 706 F.3d at 1336. Under that approach, we

look solely to the elements of the offense of conviction, assume that the conviction

rested upon the least of the acts criminalized, and then determine whether those acts

qualify as a crime of violence. United States v. Vail-Bailon, 868 F.3d 1293, 1296

(11th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 2620 (2018).

Federal bank robbery may be committed “by force and violence, or by

intimidation.” 18 U.S.C. § 2113(a). “Under section 2113(a), intimidation occurs

when an ordinary person in the teller’s position reasonably could infer a threat of

bodily harm from the defendant’s acts.” United States v. Kelley, 412 F.3d 1240,

1244 (11th Cir. 2005) (quotation marks omitted). Whether an act constitutes

intimidation is viewed objectively, and a defendant can be convicted even if he does

not intend for an act to be intimidating. Id.

Seeking reversal of his § 924(c) conviction, Hanks makes two interrelated

arguments. First, he says that the “same constitutional vagueness infirmity” that led

the Supreme Court to invalidate the residual clause also applies to the elements

clause. The reason § 924(c)(3)(A) is vague, according to Hanks, is that it sweeps in

offenses, like federal bank robbery, that can be committed without the use, attempted

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use, or threatened use of physical force. That leads to his second argument, which

is that federal bank robbery “by intimidation” lacks the required level of force or

mens rea to qualify as a crime of violence under the elements clause. Hanks’s two

arguments therefore collapse into one: that federal bank robbery is not categorically

a crime of violence under § 924(c)(3)(A).

As he acknowledges, however, we have held that federal bank robbery under

§ 2113(a), including “by intimidation,” does categorically qualify as a crime of

violence under the elements clause of § 924(c)(3). In re Sams, 830 F.3d 1234, 1239

(11th Cir. 2016). We reasoned that federal bank robbery categorically qualifies as a

crime of violence because “[a] taking ‘by force and violence’ entails the use of

physical force [and] a taking ‘by intimidation’ involves the threat to use such force.”

Id. (quoting United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016)).

Although Hanks believes that Sams was wrongly decided, we are bound by

that decision under the prior-precedent rule because it has not been overruled or

undermined to the point of abrogation by this Court sitting en banc or the Supreme

Court. See United States v. St. Hubert, 909 F.3d 335, 345 (11th Cir. 2018) (holding

that the prior precedent rule “applies with equal force” to published decisions

involving applications to file second or successive habeas petitions), cert. denied,

139 S. Ct. 1394 (2019). And because Sams is controlling, we have no occasion to

resolve any ambiguity through application of the rule of lenity, as Hanks proposes.

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Because Sams holds that federal bank robbery is a crime of violence under the

elements clause, Hanks’s § 924(c) conviction is valid, notwithstanding the Supreme

Court’s invalidation of the residual clause. A crime needs to satisfy only one clause

of § 924(c)(3) to be considered a crime of violence. Accordingly, we affirm the

district court’s denial of Hanks’s motion to dismiss the § 924(c) count in his

indictment, and we affirm his resulting conviction.

AFFIRMED.