Allen v. United States
2016 U.S. App. LEXIS 14523
| 8th Cir. | 2016Background
- Billie Jerome Allen sought authorization to file a successive 28 U.S.C. § 2255 motion claiming Johnson and Welch invalidate his § 924(c) predicate enhancement.
- Allen’s underlying federal conviction was for bank robbery under 18 U.S.C. § 2113(a) and (e) (not for armed bank robbery under § 2113(d)).
- The panel majority denied authorization, concluding bank robbery under §§ 2113(a) and (e) qualifies as a "crime of violence" under the § 924(c)(3)(A) "force" clause.
- The majority relied on circuit and sister-circuit precedent holding federal robbery statutes that criminalize takings "by force and violence, or by intimidation" have as an element the use, attempted use, or threatened use of physical force.
- Judge Melloy dissented, arguing Allen made a sufficient prima facie showing to warrant district-court consideration because questions remain about the mens rea for the intimidation element of § 2113(a) and whether Johnson implicates § 924(c)(3)(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bank robbery under 18 U.S.C. § 2113(a) & (e) is a "crime of violence" under 18 U.S.C. § 924(c)(3)(A) (the "force" clause) | Allen: Johnson undermines predicate classifications; his§ 2113(a)/(e) conviction may lack the required intentional use of physical force | Government/Majority: § 2113(a)/(e) encompasses taking "by force and violence, or by intimidation," which satisfies the § 924(c)(3)(A) element | Denied authorization — court held § 2113(a)/(e) is a crime of violence under § 924(c)(3)(A) |
| Whether Johnson v. United States extends to the § 924(c)(3)(B) residual clause and whether a successive § 2255 should be authorized on that basis | Allen (and dissent): Circuit split suggests Johnson may apply to § 924(c)(3)(B) or identical language in § 16(b); movant made a prima facie showing warranting district review | Government/Majority: declined to authorize relief on this basis given holding as to the force clause; other circuits vary | Court denied authorization overall; dissent would have granted permission to file successive § 2255 for fuller district-court review |
Key Cases Cited
- United States v. Boman, 810 F.3d 534 (8th Cir. 2016) (held federal robbery with element "by force and violence, or by intimidation" has element of use/attempted use/threatened use of physical force)
- In re Hines, 824 F.3d 1334 (11th Cir. 2016) (held armed bank robbery meets the requirement of use/attempted use/threatened use of physical force)
- United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (concluded armed bank robbery is a crime of violence under § 924(c)(3)(A))
- Woods v. United States, 805 F.3d 1152 (8th Cir. 2015) (described the low prima facie standard for authorizing successive § 2255 motions)
- United States v. Pickar, 616 F.3d 821 (8th Cir. 2010) (held mens rea for bank robbery does not attach to the intimidation element)
- United States v. Yockel, 320 F.3d 818 (8th Cir. 2003) (same: mens rea element does not apply to intimidation in bank robbery)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (observed that "use of physical force against the person or property of another" suggests a higher degree of intent)
- In re Hubbard, 825 F.3d 225 (4th Cir. 2016) (granted permission to file successive petition on question whether Johnson invalidates language identical to § 16(b))
- In re Pinder, 824 F.3d 977 (11th Cir. 2016) (authorized successive § 2255 to pursue Johnson challenge to § 924(c)(3)(B))
- United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (held Johnson does not apply to § 924(c)(3)(B))
- In re Fields, 826 F.3d 785 (5th Cir. 2016) (denied permission to file successive § 2255 applying Johnson to § 924(c)(3)(B))