Derrick Estell v. United States , 924 F.3d 1291 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2550
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Derrick Estell,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
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Appeal from United States District Court
for the Western District of Arkansas - Hot Springs
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Submitted: April 17, 2019
Filed: June 4, 2019
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Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Derrick Estell pleaded guilty in 2014 to two counts of using a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). In
one instance, Estell brandished a gun during a bank robbery; the other involved use
of a gun during a carjacking. The district court1 sentenced Estell to 384 months’
imprisonment.
Estell later moved to vacate his convictions under 28 U.S.C. § 2255, arguing
that they were unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551(2015). His theory is that neither bank robbery nor carjacking is a “crime of
violence” under § 924(c)(3)(B), because the definition of “crime of violence” in that
subsection is unconstitutionally vague, so he was not properly convicted of using a
firearm during a crime of violence.
The definition of “crime of violence” in § 924(c)(3) includes both a “force
clause” and a “residual clause.” The “residual clause” encompasses a felony offense
“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.” 18
U.S.C. § 924(c)(3)(B). Johnson held that a different residual clause in § 924(e)(2)(B)
was unconstitutionally vague, and Estell’s post-conviction motion urged that the logic
of Johnson compelled the same conclusion under § 924(c)(3)(B). He also asserted
that the bank robbery and carjacking offenses did not qualify as crimes of violence
under the force clause of § 924(c)(3)(A), so the alleged unconstitutionality of the
residual clause made his convictions invalid.
The district court denied Estell’s motion based on United States v. Prickett, 839
F.3d 697 (8th Cir. 2016) (per curiam), which held that Johnson did not render the
residual clause of § 924(c)(3)(B) unconstitutionally vague. Id. at 700. The district
court granted a certificate of appealability, and Estell argues on appeal that Prickett
is both wrong and superseded by intervening authority. He relies on Johnson and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that another residual clause,
1
The Honorable Susan O. Hickey, now Chief Judge, United States District
Court for the Western District of Arkansas.
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found in 18 U.S.C. § 16, was unconstitutionally vague. The Supreme Court is now
considering the residual clause of § 924(c)(3)(B) in United States v. Davis, No. 18-
431 (argued Apr. 17, 2019).
The government responds that even if the residual clause of § 924(c)(3)(B) is
unconstitutionally vague, Estell’s bank robbery and carjacking qualify as crimes of
violence under the force clause of § 924(c)(3)(A). An offense qualifies as a “crime
of violence” under that clause if it is a felony and “has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another.” 18 U.S.C. § 924(c)(3)(A). Bank robbery and carjacking both have as an
element the use or threatened use of physical force, because each offense must be
committed either “by force and violence” or “by intimidation,” which means the
threat of force. Id. §§ 2113(a), 2119; United States v. Wright, 957 F.2d 520, 521 (8th
Cir. 1992). We have thus said in prior decisions that each of Estell’s underlying
offenses is a “crime of violence” under § 924(c)(3)(A). See Allen v. United States,
836 F.3d 894, 894 (8th Cir. 2016) (bank robbery); United States v. Mathijssen, 406
F.3d 496, 500 (8th Cir. 2005) (carjacking); United States v. Jones, 34 F.3d 596, 601-
02 (8th Cir. 1994) (carjacking).
Estell argues nonetheless that his offenses do not categorically require the use
or threatened use of force because the “intimidation” element in the bank robbery
statute may be met through a defendant’s reckless or negligent conduct. He also
contends that bank robbery does not require “violent physical force,” because
intimidation occurs when a person “reasonably could infer a threat of bodily harm
from the defendant’s acts,” and “it is possible to cause bodily injury without
employing violent physical force.” He asserts that the intimidation element in the
carjacking statute likewise disqualifies that offense as a categorical crime of violence.
Estell’s arguments are foreclosed by the reasoning of United States v. Harper,
869 F.3d 624 (8th Cir. 2017). There, we explained that even though bank robbery by
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intimidation does not require a specific intent to intimidate, see United States v.
Yockel, 320 F.3d 818, 824 (8th Cir. 2003), it still constitutes a threat of physical force
because “‘threat,’ as commonly defined, ‘speak[s] to what the statement
conveys—not to the mental state of the author.’” Harper, 869 F.3d at 626 (quoting
Elonis v. United States, 135 S. Ct. 2001, 2008 (2015)). Thus, if the government
establishes that a defendant committed bank robbery by intimidation, it follows that
the defendant threatened a use of force causing bodily harm. See Yockel, 320 F.3d
at 824. And “[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.’” Harper, 869 F.3d at 626 (quoting United States v. Winston, 845 F.3d 876,
878 (8th Cir. 2017)). The same goes for carjacking by intimidation. We therefore
conclude that Estell’s underlying offenses of bank robbery and carjacking qualify as
crimes of violence under § 924(c)(3)(A). His convictions and sentences under
§ 924(c)(1)(A) for using a firearm during and in relation to those crimes are not
unconstitutional.
The judgment of the district court is affirmed.
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