Case: 18-15152 Date Filed: 11/07/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15152 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cr-00028-CEM-TBS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JURDEN ROGERS,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 7, 2019)
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-15152 Date Filed: 11/07/2019 Page: 2 of 7
Jurden Rogers appeals the district court’s denial of his motion to dismiss his
§ 924(c) charge and his subsequent conviction for brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c). Rogers argues that his
conviction for federal bank robbery, in violation of 18 U.S.C. § 2113(a), required
sufficient force or mens rea to qualify as a crime of violence under § 924(c).
Rogers also contends that the district court clearly erred in finding that he had
committed perjury at trial and erroneously applied the guideline enhancement for
perjury. Additionally, Rogers challenges for the first time on appeal the specificity
of the district court’s findings regarding perjury.
I.
We review de novo whether a crime is a crime of violence under 18 U.S.C.
§ 924(c). The prior-precedent rule binds us to follow a prior binding precedent
unless and until it is overruled or undermined to the point of abrogation by this
Court en banc or the Supreme Court. United States v. Vega-Castillo, 540 F.3d
1235, 1236 (11th Cir. 2008). To undermine our precedent to the point of
abrogation, a subsequent decision of the Supreme Court must be squarely on point
and directly conflict with a holding rather than merely weaken it. United States v.
Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). The prior-precedent rule “applies
with equal force” to published decisions involving applications to file second or
2 Case: 18-15152 Date Filed: 11/07/2019 Page: 3 of 7
successive habeas petitions. United States v. St. Hubert, 909 F.3d 335, 345 (11th
Cir. 2018), cert. denied, 139 S. Ct. 246 (2018).
Section 924(c) provides for a mandatory consecutive sentence for any
defendant who uses or carries a firearm during a crime of violence or a
drug-trafficking crime. 18 U.S.C. § 924(c)(1). 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). The first clause is referred to as the elements clause, and the
second clause is referred to as the residual clause. In United States v. Davis, 139
S. Ct. 2319, 2336 (2019), the Supreme Court ruled that the residual clause was
unconstitutionally vague.
We use a categorical approach to determine whether an offense qualifies as a
crime of violence under the elements clause of § 924(c)(3). Ovalles v. United
States, 905 F.3d 1300, 1302-03 (11th Cir. 2018). Under that approach, we look to
the elements of the offense of conviction, presume “‘that the conviction rested
upon nothing more than the least of the acts criminalized,’” and then determine
whether those acts qualify as crimes of violence. United States v. Vail-Bailon, 868
3 Case: 18-15152 Date Filed: 11/07/2019 Page: 4 of 7
F.3d 1293, 1296 (11th Cir. 2017) (en banc) (quoting Moncrieffe v. Holder, 569
U.S. 184, 185 (2013)), cert. denied, 138 S. Ct. 2620 (2018).
With the categorical approach in mind, we consider the crime of federal
bank robbery. 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
under section 2113(a) even if he did not intend for an act to be intimidating.” Id.
(citation omitted).
We have held that federal bank robbery is a crime of violence under the
elements clause of § 924(c)(3). In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016);
see Ovalles, 905 F.3d at 1304 (citing Sams, 830 F.3d at 1239) (stating that federal
bank robbery “‘by intimidation’” categorically qualifies as a crime of violence
under § 924(c)(3)(A) (quoting 18 U.S.C. § 2113(a))). We reasoned that federal
bank robbery 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.” Sams, 830 F.3d at 1239 (quoting United States v.
McNeal, 818 F.3d 141, 153 (4th Cir. 2016)).
4 Case: 18-15152 Date Filed: 11/07/2019 Page: 5 of 7
Here, our prior precedent of Sams precludes Rogers’s argument that bank
robbery is not a crime of violence under § 924(c)(3)’s elements clause. Rogers’s
argument is little more than that we should revisit Sams. While Davis invalidated
§ 924(c)(3)’s residual clause as unconstitutionally vague, a crime needs to satisfy
only one clause of § 924(c)(3) to be considered a crime of violence, and Sams
holds that bank robbery is a crime of violence under the elements clause.
Accordingly, we affirm the district court’s denial of Rogers’s motion to dismiss the
§ 924(c) charge and Rogers’s § 924(c) conviction.
II.
We review for clear error the district court’s factual findings supporting an
obstruction-of-justice enhancement, and we give due deference to the district
court’s application of the Guidelines to those facts. United States v. Singh, 291
F.3d 756, 763 (11th Cir. 2002). In doing so, we accord great deference to the
district court’s credibility determinations. Id. We will not hear challenges to the
specificity of the district court’s findings regarding perjury if they were not raised
at the sentencing hearing.1 United States v. Esquenazi, 752 F.3d 912, 938 (11th
Cir.
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Case: 18-15152 Date Filed: 11/07/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15152 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cr-00028-CEM-TBS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JURDEN ROGERS,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(November 7, 2019)
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-15152 Date Filed: 11/07/2019 Page: 2 of 7
Jurden Rogers appeals the district court’s denial of his motion to dismiss his
§ 924(c) charge and his subsequent conviction for brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c). Rogers argues that his
conviction for federal bank robbery, in violation of 18 U.S.C. § 2113(a), required
sufficient force or mens rea to qualify as a crime of violence under § 924(c).
Rogers also contends that the district court clearly erred in finding that he had
committed perjury at trial and erroneously applied the guideline enhancement for
perjury. Additionally, Rogers challenges for the first time on appeal the specificity
of the district court’s findings regarding perjury.
I.
We review de novo whether a crime is a crime of violence under 18 U.S.C.
§ 924(c). The prior-precedent rule binds us to follow a prior binding precedent
unless and until it is overruled or undermined to the point of abrogation by this
Court en banc or the Supreme Court. United States v. Vega-Castillo, 540 F.3d
1235, 1236 (11th Cir. 2008). To undermine our precedent to the point of
abrogation, a subsequent decision of the Supreme Court must be squarely on point
and directly conflict with a holding rather than merely weaken it. United States v.
Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). The prior-precedent rule “applies
with equal force” to published decisions involving applications to file second or
2 Case: 18-15152 Date Filed: 11/07/2019 Page: 3 of 7
successive habeas petitions. United States v. St. Hubert, 909 F.3d 335, 345 (11th
Cir. 2018), cert. denied, 139 S. Ct. 246 (2018).
Section 924(c) provides for a mandatory consecutive sentence for any
defendant who uses or carries a firearm during a crime of violence or a
drug-trafficking crime. 18 U.S.C. § 924(c)(1). 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). The first clause is referred to as the elements clause, and the
second clause is referred to as the residual clause. In United States v. Davis, 139
S. Ct. 2319, 2336 (2019), the Supreme Court ruled that the residual clause was
unconstitutionally vague.
We use a categorical approach to determine whether an offense qualifies as a
crime of violence under the elements clause of § 924(c)(3). Ovalles v. United
States, 905 F.3d 1300, 1302-03 (11th Cir. 2018). Under that approach, we look to
the elements of the offense of conviction, presume “‘that the conviction rested
upon nothing more than the least of the acts criminalized,’” and then determine
whether those acts qualify as crimes of violence. United States v. Vail-Bailon, 868
3 Case: 18-15152 Date Filed: 11/07/2019 Page: 4 of 7
F.3d 1293, 1296 (11th Cir. 2017) (en banc) (quoting Moncrieffe v. Holder, 569
U.S. 184, 185 (2013)), cert. denied, 138 S. Ct. 2620 (2018).
With the categorical approach in mind, we consider the crime of federal
bank robbery. 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
under section 2113(a) even if he did not intend for an act to be intimidating.” Id.
(citation omitted).
We have held that federal bank robbery is a crime of violence under the
elements clause of § 924(c)(3). In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016);
see Ovalles, 905 F.3d at 1304 (citing Sams, 830 F.3d at 1239) (stating that federal
bank robbery “‘by intimidation’” categorically qualifies as a crime of violence
under § 924(c)(3)(A) (quoting 18 U.S.C. § 2113(a))). We reasoned that federal
bank robbery 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.” Sams, 830 F.3d at 1239 (quoting United States v.
McNeal, 818 F.3d 141, 153 (4th Cir. 2016)).
4 Case: 18-15152 Date Filed: 11/07/2019 Page: 5 of 7
Here, our prior precedent of Sams precludes Rogers’s argument that bank
robbery is not a crime of violence under § 924(c)(3)’s elements clause. Rogers’s
argument is little more than that we should revisit Sams. While Davis invalidated
§ 924(c)(3)’s residual clause as unconstitutionally vague, a crime needs to satisfy
only one clause of § 924(c)(3) to be considered a crime of violence, and Sams
holds that bank robbery is a crime of violence under the elements clause.
Accordingly, we affirm the district court’s denial of Rogers’s motion to dismiss the
§ 924(c) charge and Rogers’s § 924(c) conviction.
II.
We review for clear error the district court’s factual findings supporting an
obstruction-of-justice enhancement, and we give due deference to the district
court’s application of the Guidelines to those facts. United States v. Singh, 291
F.3d 756, 763 (11th Cir. 2002). In doing so, we accord great deference to the
district court’s credibility determinations. Id. We will not hear challenges to the
specificity of the district court’s findings regarding perjury if they were not raised
at the sentencing hearing.1 United States v. Esquenazi, 752 F.3d 912, 938 (11th
Cir. 2014), superseded on other grounds by statute as recognized in United States
v. Gross, 661 F. App’x. 1007, 1023 (11th Cir. 2016). 1 At sentencing, the district court must allow the defendant’s attorney to comment on the PSI and other matters relating to an appropriate sentence. Fed. R. Crim. P. 32(i)(1)(C). After imposing a sentence, the district court must (1) elicit fully articulated objections to the court’s findings of fact and conclusions of law, and (2) ensure that the grounds are clearly stated. See United States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). Here, that occurred. 5 Case: 18-15152 Date Filed: 11/07/2019 Page: 6 of 7
Rogers did not challenge the specificity of the district court’s findings at
sentencing, so he cannot challenge it here. But even if he could, he could not
succeed.
A factual finding is clearly erroneous only if it leaves us with a ‘“definite
and firm conviction that a mistake has been committed.”’ United States
v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A factual finding cannot be
clearly erroneous when the factfinder chooses between two permissible views of
the evidence. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).
“Although it is preferable that the district court make specific findings by
identifying the materially false statements individually, it is sufficient if the court
makes a general finding of obstruction encompassing all the factual predicates of
perjury.” United States v. Duperval, 777 F.3d 1324, 1337 (11th Cir. 2015)
(citation and quotation marks omitted). To satisfy the factual predicates for a
finding of perjury, the testimony must have been (1) under oath; (2) false; (3)
material; and (4) given with the willful intent to provide false testimony. Singh,
291 F.3d at 763 & n.4. The district court makes a sufficient general finding of
obstruction when it expressly adopts the facts in the presentence investigation
report (“PSI”) and the PSI addresses in detail the defendant’s actions that warrant
the enhancement. United States v. Smith, 231 F.3d 800, 820 (11th Cir. 2000).
6 Case: 18-15152 Date Filed: 11/07/2019 Page: 7 of 7
Here, the district court did just that. It complied with its obligation to make
a general finding of obstruction encompassing all the factual predicates of perjury
by expressly adopting the PSI and the probation officer’s position in the PSI
addendum. In short, the district court did not clearly err in finding Rogers
committed perjury based on the evidence at trial that contradicted Rogers’s
testimony. The district court correctly applied the guidelines enhancement for
obstruction of justice.
AFFIRMED.