United States v. Taylor ( 2023 )

Case: 19-10261 Document: 00516796872 Page: 1 Date Filed: 06/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 22, 2023
No. 19-10261 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Blake Taylor,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-231-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Stewart, Higginson, and Wilson, Circuit Judges.
Per Curiam:*
Blake Taylor pleaded guilty to one count of attempted bank robbery,
in violation of 18 U.S.C. § 2113(a) and (d), and one count of using, carrying,
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-10261 Document: 00516796872 Page: 2 Date Filed: 06/22/2023
No. 19-10261
brandishing, and discharging a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The district court
sentenced him above the guidelines range to a term of 180 months in prison
on the robbery count with a consecutive term of 360 months on the firearm
count, and this court affirmed the convictions and sentences. United States
v. Taylor, 844 F. App’x 705, 708-10 (5th Cir. 2021), vacated, 142 S. Ct. 2862
(2022). Taylor petitioned the Supreme Court, which granted certiorari,
vacated this court’s judgment, and remanded for further consideration in
light of United States v. Taylor (Justin Taylor), 142 S. Ct. 2015 (2022). Taylor
v. United States, 142 S. Ct. 2862 (2022).
On remand, Taylor presses several arguments against classifying his
attempted bank robbery conviction as a “crime of violence” under
§ 924(c)(3)(A) and maintains that he preserved them by filing a motion to
dismiss. Because the sole argument presented in that motion concerned
§ 924(c)(3)(B), which is not at issue here, this position is untenable, and the
Government is thus correct that our review is for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Gomez-Valle, 828
F.3d 324, 328 (5th Cir. 2016). In any event, our consideration of Taylor’s
arguments leads us to conclude that he shows no error, plain or otherwise.
Justin Taylor held that a conviction for attempt to commit robbery in
violation of the Hobbs Act, 18 U.S.C. § 1951(a), cannot serve as a predicate
for conviction under § 924(c) because it does not constitute a “crime of
violence” as defined in § 924(c)(3)(A). 142 S. Ct. at 2020-21. To meet that
definition, an offense must necessarily require proof, as an element of the
offense, of the use, attempted use, or threatened use of force. Id. at 2020.
The only conduct required to support conviction for attempted Hobbs Act
robbery is a substantial step toward completing such a robbery—an element
that Justin Taylor determined encompasses conduct beyond the scope of
§ 924(c)(3)(A). Id. at 2020-21.
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No. 19-10261
Some attempt offenses are defined in the same way as attempted
Hobbs Act robbery. See United States v. Resendiz-Ponce, 549 U.S. 102, 106-
07 (2007). In this circuit, attempted bank robbery is not one of them. This
court has instead held that § 2113(a) defines attempted and completed bank
robbery as forms of a single offense that necessarily involves the actual use of
force or intimidation. See United States v. Bellew, 369 F.3d 450, 454 (5th Cir.
2004). Further, we have held that this offense constitutes a crime of violence
as defined in § 924(c)(3)(A) and elsewhere because even its least culpable
form “must involve at least an implicit threat to use force.” United States v.
Brewer, 848 F.3d 711, 716 (5th Cir. 2017); see United States v. Pervis, 937 F.3d
546, 552-53 (5th Cir. 2019).
Under this court’s rule of orderliness, panels are bound by circuit
precedent in the absence of an intervening change in the law such as a
“contrary or superseding decision by this court sitting en banc or by the
United States Supreme Court.” United States v. Setser, 607 F.3d 128, 131 (5th
Cir. 2010) (internal quotation marks and citation omitted). To qualify as an
intervening change in the law, a decision must “unequivocally overrule prior
precedent; mere illumination of a case is insufficient.” United States v. Petras,
879 F.3d 155, 164 (5th Cir. 2018) (internal quotation marks and citations
omitted).
Taylor does not argue that Bellew, Brewer, or Pervis have been
overruled, urging instead that aspects of Justin Taylor’s reasoning are
instructive here. For instance, he suggests this court should adopt a
definition of attempted bank robbery that parallels the definition of attempted
Hobbs Act robbery used in Justin Taylor. Even if we were to credit such
arguments, we would not be justified in accepting them as a sufficient basis
for disregarding our precedent. See Petras, 879 F.3d at 164; Jacobs v. Nat’l
Drug Intelligence Ctr., 548 F.3d 375, 377-78 (5th Cir. 2008).
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The remaining contentions that Taylor advances do not rely on Justin
Taylor at all. First, he argues that the two paragraphs of § 2113(a) are
indivisible—a theory this court rejected in United States v. Butler, 949 F.3d
230, 234-36 (5th Cir. 2020). Second, Taylor contends that convictions under
§ 2113(a) and (d) do not qualify as crimes of violence. We have long held that
violation of § 2113(a) is a lesser-included offense of a § 2113(d) violation. See
Burger v. United States, 454 F.2d 723, 724 (5th Cir. 1972) (per curiam). Thus,
as Taylor’s arguments against classifying § 2113(a) robbery as a crime of
violence are unavailing, this argument must fail as well.
For these reasons, Taylor fails to show that the district court erred by
viewing his conviction under § 2113(a) and (d) as a crime of violence for the
purpose of § 924(c). He does not suggest that Justin Taylor provides any
basis for questioning our prior analysis of the remaining issues in this appeal,
and we discern none. See Taylor, 844 F. App’x 708-10. Accordingly, we again
AFFIRM the judgment of the district court.
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