United States v. Derrick Angelo Harper , 869 F.3d 624 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3907
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Derrick Angelo Harper,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 12, 2017
Filed: August 23, 2017
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Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Derrick Angelo Harper pleaded guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a). At sentencing, the district court1 concluded that
Harper was a career offender under USSG § 4B1.1(a), and that he was subject to
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
enhanced punishment under that section of the advisory sentencing guidelines. The
court determined that Harper was a career offender because the offense of conviction
was a “crime of violence,” and his two prior convictions for bank robbery in violation
of § 2113(a) were also crimes of violence. The court sentenced Harper to 188
months’ imprisonment. Harper argues on appeal that the district court committed
procedural error in computing the advisory guideline range, because his bank robbery
convictions were not crimes of violence.
A defendant is a career offender if he is convicted of a “crime of violence” and
has two prior convictions for crimes of violence. USSG § 4B1.1(a). The guidelines
define “crime of violence” in the “force” clause to include an offense that “has as an
element the use, attempted use, or threatened use of physical force against the person
of another.” USSG § 4B1.2(a)(1). The guideline also enumerates several offenses,
including “robbery,” that constitute a crime of violence. Id. § 4B1.2(a)(2). The
government argues that Harper’s bank robberies qualify as crimes of violence under
both the “force” clause and the enumeration of “robbery.”2
To determine whether Harper’s convictions satisfy the “force” clause, we apply
the “categorical approach,” and consider only the statutory elements of the offense.
United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013). If a statute
covers more conduct than the definition of “crime of violence,” and “comprises
multiple, alternative versions of the crime,” then we may apply a “modified
categorical approach” to determine which alternative was the offense of conviction.
2
Effective August 2016, the Sentencing Commission amended § 4B1.2(a)(2)
to include “robbery” as an enumerated crime of violence; the previous guideline
enumerated “robbery” as a crime of violence in the commentary. USSG § 4B1.2,
comment. (n.1) (2015). Harper committed the bank robbery here in January 2016, but
was sentenced in September 2016, so the amended guideline applies unless its use
would violate the Ex Post Facto Clause of the Constitution. USSG § 1B1.11(a),
(b)(1). Harper’s current position is that we should apply the amended guideline.
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Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). The court may “consult
a limited class of judicial records to determine under which alternative the defendant
was convicted.” United States v. Hudson, 851 F.3d 807, 809 (8th Cir. 2017).
A person violates 18 U.S.C. § 2113(a) under the first paragraph of the
provision if he, “by force and violence, or by intimidation, takes . . . from the person
or presence of another, or obtains . . . by extortion any property or money or any other
thing of value belonging to . . . any bank.” Section 2113(a) contains a second
paragraph that proscribes “enter[ing] or attempt[ing] to enter any bank . . . with intent
to commit in such bank . . . any felony affecting such bank . . . and in violation of any
statute of the United States, or any larceny.” Harper does not dispute that his three
convictions were under the first paragraph. His challenge to the career-offender
designation focuses on the first paragraph of § 2113(a) only, and he implicitly
concedes that each paragraph of § 2113(a) defines at least one separate crime. See
United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016).
Harper’s contention is that “the most innocent conduct penalized under
§ 2113(a) is ‘intimidation,’” and that a violation of § 2113(a) by intimidation does not
have, as an element, the use, attempted use, or threatened use of physical force against
the person of another. In United States v. Wright, 957 F.2d 520 (8th Cir. 1992),
however, this court held that robbery by intimidation under § 2113(a) categorically
involves the threatened use of force: “Intimidation means the threat of force.” Id. at
521 (quotation omitted). Wright thus controls here unless it has been superseded by
an intervening decision of the Supreme Court.
Harper suggests that Wright was abrogated by Elonis v. United States, 135 S.
Ct. 2001 (2015), but we see no inconsistency between the two decisions. Elonis held
that the crime of transmitting a communication containing a threat under 18 U.S.C.
§ 875(c) requires proof that the defendant made the communication with the purpose
of issuing a threat, or with knowledge that the communication will be viewed as a
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threat, or, possibly, with reckless disregard for the likelihood that the communication
would be so viewed. Id. at 2012-13. Harper reasons that because “intimidation” in
§ 2113(a) does not require proof that the robber intentionally intimidated a victim, see
United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation
does not have as an element the threatened use of force. In other words, he seems to
contend, “threatened use of force” after Elonis requires a specific intent to issue a
threat.
Elonis did not announce a universal definition of “threat” that always requires
the same mens rea. To the contrary, the Court observed that “threat,” as commonly
defined, “speak[s] to what the statement conveys—not to the mental state of the
author.” 135 S. Ct. at 2008. Elonis held only that a certain criminal statute required
proof of a particular mens rea. The Court did not redefine the phrase “threatened use
of force” as it appears in the sentencing guidelines.
Harper also mentions fleetingly the possibility that a person could be
intimidated without a robber threatening to use violent force—that is, force “capable
of causing physical pain or injury to another person.” Johnson v. United States, 559
U.S. 133, 140 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir.
2012). This argument fails because bank robbery by intimidation requires proof that
the victim “reasonably could infer a threat of bodily harm” from the robber’s acts.
Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat
to use violent force because “it is impossible to cause bodily injury without using
force ‘capable of’ producing that result.” United States v. Winston, 845 F.3d 876, 878
(8th Cir. 2017) (quoting United States v. Castleman, 134 S. Ct. 1405, 1416-17 (2014)
(Scalia, J., concurring)).
The holding of Wright therefore controls: bank robbery by intimidation under
§ 2113(a) is a crime of violence under the force clause, because it involves a
threatened use of force. See also Allen v. United States, 836 F.3d 894, 894-95 (8th
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Cir. 2016) (per curiam) (holding that bank robbery in violation of § 2113(a) and (e)
is a “crime of violence” under the force clause of 18 U.S.C. § 924(c)(3)(A)). The
district court correctly ruled that Harper qualified as a career offender. We need not
address whether Harper also qualifies as a career offender because § 4B1.2(a)(2)
enumerates “robbery” as a crime of violence. Cf. United States v. Jenkins, 651 F.
App’x 920, 925 (11th Cir. 2016) (per curiam).
The judgment of the district court is affirmed.
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