United States v. Williams

864 F.3d 826, 2017 WL 3186297, 2017 U.S. App. LEXIS 13611
Court of Appeals for the Seventh Circuit·Decided July 27, 2017·No. No. 16-3373·Published·Cited by 33 cases

Opinion

HAMILTON, Circuit Judge.

A person may commit the federal crime of bank robbery “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). The issue in this appeal is whether the federal offense of bank robbery under 18 U.S.C. § 2113(a) qualifies as a “crime of violence” under 18 U.S.C. § 924(e). We hold that it does. We have held that the so-called “residual clause” in the § 924(c) definition of a crime of violence is unconstitutionally vague, United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), but even bank robbery fits easily into the “elements clause” of the definition of a crime of violence because even when committed “by intimidation,” it has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” See 18 U.S.C. § 924(c)(3)(A).1

On December 4, 2013, defendant-appellant Justin Williams and Malcolm Carpenter entered a Bank of America branch in Homewood, Illinois. Each was carrying a nine-millimeter handgun. Williams pointed his gun at several employees and forced them to the ground while Carpenter ordered two employees to open the vault and to fill a bag with money. The robbers left with more than $80,000 in cash. The next day, the two men were located in the gray Volvo described by witnesses as the getaway car. Inside the car, police also found the missing cash, the bank’s anti-theft devices, and two nine-millimeter handguns.

Williams and Carpenter were charged with bank robbery in violation of § 2113(a). The indictment that followed added a second count for using a firearm in the course of the robbery under § 924(c) and a third count (later dropped) for being a felon in possession of a firearm under § 922(g)(1).

Williams moved to dismiss the § 924(c) charge. He argued that federal bank robbery is not a crime of violence under § 924(c)(3)(A) because § 2113(a) provides that bank robbery can be committed “by intimidation,” as well as “by force and violence.” His theory is that a robber can “intimidate” a victim without intending to do so, and an intentional use or threat of force is essential for a crime of violence. The district court denied the motion, finding that bank robbery is a crime of violence under the elements clause because under Seventh Circuit precedent, “intimidation means threatened force capable of causing bodily harm and therefore constitutes threatened ‘violent force’ under § 924(c)(3)(A).” United States v. Carpenter, No. 13 CR 930, 2016 WL 878631, at *2 (N.D. Ill. Mar. 8, 2016) (citation omitted) (emphasis in original); see also id., citing United States v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011) (“Intimidation exists when a bank robber’s words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance will be met with force.”).

Williams then entered into a written conditional plea agreement, pleading guilty to bank robbery and use of a firearm in the course of a crime of violence but reserving his right to appeal the order deny[828] ing his motion to dismiss the firearm charge. The district judge sentenced Williams-to a total of 120 months in prison, comprised of a below-guideline term of 36 months .for the robbery charge and a mandatory consecutive term of 84 months for the § 924(c) charge.

' Williams appeals his conviction under § 924(c), arguing that federal bank robbery under § 2113(a) is not categorically a “crime of violence.” We review de novo the district court’s decision as to whether bank robbery qualifies as a crime of violence under § 924(c)(3)(A). See Cardena, 842 F.3d at 1000, citing United States v. Cureton, 739 F.3d 1032, 1040 (7th Cir. 2014). To determine if an offense is a crime of violence under the elements clause, § 924(c)(3)(A), we focus of course on the statutory elements of-the offense, not the actual facts underlying the particular defendant’s crime. See Descamps v. United States, 570 U.S. -, -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013), citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Edwards, 836 F.3d 831, 833 (7th Cir. 2016). We must presume the conviction rested on the least serious acts that would satisfy the statute. Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265,176 L.Ed.2d 1 (2010).2

In United States v. Armour, we held that federal attempted bank robbery is a crime of violence under the elements clause of §' 924(c). 840 F.3d 904, 907 (7th Cir. 2016). Armour argued that, since bank robbery can be committed by intimidation as distinct from “by force or violence,” it could not be a crime of violence. Id. at 908. Applying the categorical approach, we disagreed. We reasoned that' “[ijntimidation means the threat of force” and exists “when a bank robber’s words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance-will be met with force.” Id. at 909 (citations omitted). In short, the intimidation element of the crime of bank robbery is satisfied when an individual feels threatened under the circumstances. See, e.g., Gordon, 642 F.3d at 598 (holding that intimidation exists when the robber’s actions cause reasonable fear that defiance will be met with physical force); United States v. Burnley, 533 F.3d 901, 903 (7th Cir. 2008) (intimidation does not require an explicit .threat; implied threats that refusal to comply will be met with force are sufficient); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (“Intimidation means the threat of force.”).

In Armour, we observed that the threatened violent force must clear only “a low threshold—a fear of a slap in the face is enough.” Armour, 840 F.3d at 909, citing Johnson, 559 U.S. at 143, 130 S.Ct. 1265. “A bank employee can reasonably believe that a robber’s demands for money to which he is not entitled will be met with violent force of the type • [required] ... because bank robbery [by intimidation], under § 2113(a) inherently contains a threat of violent physical force.” Id. Thus, we found the “low threshold of violent force is necessarily satisfied in an attempted bank robbery by intimidation,” and we held that bank robbery is a crime of violence. Id.

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United States v. Williams, 864 F.3d 826, 2017 WL 3186297, 2017 U.S. App. LEXIS 13611 (7th Cir. 2017).

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