FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2219 (D.C. Nos. 1:16-CV-00513-JB-WPL, MATTHEW CLAYTON LLOYD, 1:07-CR-02238-JB-1 & 1:08-CR-03048-JB-1) Defendant - Appellant. (D.N.M.) _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _________________________________
Matthew Lloyd appeals the dismissal of his 28 U.S.C. § 2255 motion. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
I
Lloyd pled guilty in federal court to two counts of armed bank robbery in violation
of 18 U.S.C. § 2113(a), (d); one count of carjacking in violation of 18 U.S.C. § 2119; and
one count of using and brandishing a firearm during and in relation to a crime of violence
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. (armed bank robbery) in violation of 18 U.S.C. § 924(c)(1)(A). The district court
imposed the 27-year sentence specified by the parties’ Rule 11(c)(1)(C) plea agreement.
In doing so, the court apportioned seven years to the § 924(c) count consecutive to a total
of twenty years for the robbery and carjacking counts. It did not identify which clause of
§ 924(c) applied.1
In 2016, Lloyd filed a § 2255 motion to vacate his § 924(c) sentence. He argued
that his sentence could not be predicated on armed bank robbery after Samuel Johnson v.
United States, 135 S. Ct. 2551, 2557 (2015). The district court rejected Lloyd’s
argument, concluding that even if Samuel Johnson invalidated § 924(c)’s residual clause,
armed bank robbery nevertheless qualifies as a crime of violence under § 924(c)’s
elements clause. We granted Lloyd a certificate of appealability.
II
“We review the district court’s legal rulings on a § 2255 motion de novo and its
findings of fact for clear error.” United States v. Harris, 844 F.3d 1260, 1263 (10th Cir.
2017), cert. denied, 138 S. Ct. 1438 (2018) (quotation and alteration omitted). Whether
1 The term “crime of violence” is defined in two clauses of § 924(c)(3). The first clause, known as the elements clause, includes a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A). The second clause, known as the residual clause, includes a felony “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.” § 924(c)(3)(B).
2 an offense constitutes a crime of violence for purposes of § 924(c) is a legal question we
review de novo. United States v. Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009).2
To determine whether a predicate crime constitutes a crime of violence, we
employ the categorical approach, looking “only to the fact of conviction and the statutory
definition of the prior offense” without regard to “the particular facts disclosed by the
record of conviction.” Serafin, 562 F.3d at 1107-08. In doing so, “we must presume that
the conviction rested upon nothing more than the least of the acts criminalized, and then
determine whether even those acts are encompassed by the [statute].” Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (quotation and alteration omitted).
The federal bank robbery statute provides in part:
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 . . . [s]hall be fined under this title or imprisoned not more than twenty years, or both.
§ 2113(a). Subsection (d) elevates simple bank robbery to armed bank robbery by
proscribing “the use of a dangerous weapon or device” to “assault[ ]” or “put[ ] in
2 Like the district court, we need not decide the extent to which Lloyd’s sentence arises from his Rule 11(c)(1)(C) agreement, rather than § 924(c), given that he is not eligible for resentencing in any event. We also note that after the district court denied Lloyd’s § 2255 motion and the parties completed their appellate briefing, this court held that § 924(c)’s residual clause, like the Armed Career Criminal Act’s residual clause, violates due process. United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018) (citing Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), which invalidated § 924(c)(3)(B)’s counterpart in 18 U.S.C. § 16). 3 jeopardy the life of any person.” § 2113(d); see also United States v. Davis, 437 F.3d
989, 993 (10th Cir. 2006).
Lloyd argues that bank robbery “by intimidation” is not a crime of violence
because it can be accomplished without an intentional use of force. The term “crime of
violence” does not “encompass accidental or negligent conduct.” Leocal v. Ashcroft, 543
U.S. 1, 11 (2004) (discussing 18 U.S.C. § 16). But “§ 2113(a) requires more than mere
recklessness or negligence; it requires proof of general intent—that is, that the defendant
possessed knowledge with respect to the actus reus of the crime (here, the taking of
property of another by force and violence or intimidation).” United States v. Deiter, 890
F.3d 1203, 1213 (10th Cir. 2018) (quotation, alteration, citation, and emphasis omitted).
And because “intimidation requires a purposeful act that instills objectively reasonable
fear (or expectation) of force or bodily injury, . . . federal bank robbery convictions
categorically qualify as crimes of violence.” United States v. McCranie, 889 F.3d 677,
680-81 (10th Cir.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2219 (D.C. Nos. 1:16-CV-00513-JB-WPL, MATTHEW CLAYTON LLOYD, 1:07-CR-02238-JB-1 & 1:08-CR-03048-JB-1) Defendant - Appellant. (D.N.M.) _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, HARTZ, and MORITZ, Circuit Judges. _________________________________
Matthew Lloyd appeals the dismissal of his 28 U.S.C. § 2255 motion. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.
I
Lloyd pled guilty in federal court to two counts of armed bank robbery in violation
of 18 U.S.C. § 2113(a), (d); one count of carjacking in violation of 18 U.S.C. § 2119; and
one count of using and brandishing a firearm during and in relation to a crime of violence
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. (armed bank robbery) in violation of 18 U.S.C. § 924(c)(1)(A). The district court
imposed the 27-year sentence specified by the parties’ Rule 11(c)(1)(C) plea agreement.
In doing so, the court apportioned seven years to the § 924(c) count consecutive to a total
of twenty years for the robbery and carjacking counts. It did not identify which clause of
§ 924(c) applied.1
In 2016, Lloyd filed a § 2255 motion to vacate his § 924(c) sentence. He argued
that his sentence could not be predicated on armed bank robbery after Samuel Johnson v.
United States, 135 S. Ct. 2551, 2557 (2015). The district court rejected Lloyd’s
argument, concluding that even if Samuel Johnson invalidated § 924(c)’s residual clause,
armed bank robbery nevertheless qualifies as a crime of violence under § 924(c)’s
elements clause. We granted Lloyd a certificate of appealability.
II
“We review the district court’s legal rulings on a § 2255 motion de novo and its
findings of fact for clear error.” United States v. Harris, 844 F.3d 1260, 1263 (10th Cir.
2017), cert. denied, 138 S. Ct. 1438 (2018) (quotation and alteration omitted). Whether
1 The term “crime of violence” is defined in two clauses of § 924(c)(3). The first clause, known as the elements clause, includes a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A). The second clause, known as the residual clause, includes a felony “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.” § 924(c)(3)(B).
2 an offense constitutes a crime of violence for purposes of § 924(c) is a legal question we
review de novo. United States v. Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009).2
To determine whether a predicate crime constitutes a crime of violence, we
employ the categorical approach, looking “only to the fact of conviction and the statutory
definition of the prior offense” without regard to “the particular facts disclosed by the
record of conviction.” Serafin, 562 F.3d at 1107-08. In doing so, “we must presume that
the conviction rested upon nothing more than the least of the acts criminalized, and then
determine whether even those acts are encompassed by the [statute].” Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013) (quotation and alteration omitted).
The federal bank robbery statute provides in part:
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 . . . [s]hall be fined under this title or imprisoned not more than twenty years, or both.
§ 2113(a). Subsection (d) elevates simple bank robbery to armed bank robbery by
proscribing “the use of a dangerous weapon or device” to “assault[ ]” or “put[ ] in
2 Like the district court, we need not decide the extent to which Lloyd’s sentence arises from his Rule 11(c)(1)(C) agreement, rather than § 924(c), given that he is not eligible for resentencing in any event. We also note that after the district court denied Lloyd’s § 2255 motion and the parties completed their appellate briefing, this court held that § 924(c)’s residual clause, like the Armed Career Criminal Act’s residual clause, violates due process. United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018) (citing Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), which invalidated § 924(c)(3)(B)’s counterpart in 18 U.S.C. § 16). 3 jeopardy the life of any person.” § 2113(d); see also United States v. Davis, 437 F.3d
989, 993 (10th Cir. 2006).
Lloyd argues that bank robbery “by intimidation” is not a crime of violence
because it can be accomplished without an intentional use of force. The term “crime of
violence” does not “encompass accidental or negligent conduct.” Leocal v. Ashcroft, 543
U.S. 1, 11 (2004) (discussing 18 U.S.C. § 16). But “§ 2113(a) requires more than mere
recklessness or negligence; it requires proof of general intent—that is, that the defendant
possessed knowledge with respect to the actus reus of the crime (here, the taking of
property of another by force and violence or intimidation).” United States v. Deiter, 890
F.3d 1203, 1213 (10th Cir. 2018) (quotation, alteration, citation, and emphasis omitted).
And because “intimidation requires a purposeful act that instills objectively reasonable
fear (or expectation) of force or bodily injury, . . . federal bank robbery convictions
categorically qualify as crimes of violence.” United States v. McCranie, 889 F.3d 677,
680-81 (10th Cir. 2018) (interpreting the similarly worded elements clause of U.S.S.G.
§ 4B1.2(a)(1)); accord In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016) (per curiam)
(applying § 924(c)(3)’s elements clause and collecting cases holding that bank robbery by
force and violence or by intimidation qualifies as a crime of violence). Given that “bank
robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank
robbery is also a crime of violence” within the meaning of § 924(c)(3)’s elements clause.
United States v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016); accord United States v.
Watson, 881 F.3d 782, 786 (9th Cir. 2018) (per curiam) (“Because bank robbery ‘by
4 force and violence, or by intimidation’ is a crime of violence, so too is armed bank
robbery.”).
Lloyd further argues that because bank robbery can be committed “by extortion,”
the crime does not necessarily involve the use of physical force. See Curtis Johnson v.
United States, 559 U.S. 133, 140 (2010) (stating that “in the context of a statutory
definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is,
force capable of causing physical pain or injury to another person”);3 United States v.
Valdez, 158 F.3d 1140, 1143 n.4 (10th Cir. 1998) (stating that “an individual may be able
to commit a bank robbery under the language of 18 U.S.C. § 2113(a) ‘by extortion’
without the threat of violence”). But Lloyd was convicted of armed bank robbery, which
involves the use of a dangerous weapon or device to either assault a person or jeopardize
his life. § 2113(d). Employing such a weapon or device “necessarily threatens the use
of” violent force. United States v. Maldonado-Palma, 839 F.3d 1244, 1250 (10th Cir.
2016), cert. denied, 137 S. Ct. 1214 (2017).
III
AFFIRMED. Entered for the Court
Carlos F. Lucero Circuit Judge
3 In United States v. Melgar-Cabrera, No. 16-2018, 2018 WL 2749713, at *8 (10th Cir. June 8, 2018), this court held that Curtis Johnson’s definition of “physical force” as “violent force” applies to § 924(c)(3)(A). 5