United States v. Andre Lewis
720 F. App’x 111
| 3rd Cir. | 2018Background
- Andre Lewis pleaded guilty to one count of unarmed bank robbery and two counts of attempted unarmed bank robbery under 18 U.S.C. § 2113(a) after incidents involving demand notes and a threatened firearm; he obtained $1,740.25 in one robbery and nothing in two attempted robberies.
- The Presentence Report classified Lewis as a career offender under U.S.S.G. § 4B1.1 based on his current bank-robbery conviction plus prior convictions for a drug offense and Pennsylvania aggravated assault (18 Pa. Cons. Stat. § 2702(a)(4)).
- Lewis objected that his prior aggravated assault conviction and his § 2113(a) bank robbery are not "crimes of violence" under U.S.S.G. § 4B1.2, arguing they do not necessarily involve the use, attempted use, or threatened use of violent physical force.
- The District Court overruled Lewis’s objection, applied the career-offender enhancement (but departed downward) and sentenced him to 120 months’ imprisonment; Lewis appealed.
- The Third Circuit reviewed the aggravated-assault issue de novo and the bank-robbery issue for plain error, analyzed whether each offense meets § 4B1.2(a)(1)’s force and mens rea requirements, and applied the categorical/modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2113(a) bank robbery (by intimidation) is a "crime of violence" under § 4B1.2(a)(1) | Lewis: "Intimidation" can occur without threatened physical force; so § 2113(a) does not necessarily require violent physical force | Government: Intimidation in bank robbery means causing fear of bodily injury — necessarily a threatened use of physical force and requires intent/knowledge | Held: § 2113(a) robbery by intimidation necessarily involves threatened use of violent physical force and an implicit scienter; it is a crime of violence |
| Whether Pennsylvania aggravated assault § 2702(a)(4) is a "crime of violence" under § 4B1.2(a)(1) | Lewis: The statute might encompass non-violent means or conduct that does not amount to violent physical force | Government: § 2702(a)(4) requires intentionally/knowingly causing bodily injury with a deadly weapon — necessarily violent physical force | Held: § 2702(a)(4) requires violent physical force (bodily impairment/substantial pain caused by a deadly weapon) and satisfies the force and mens rea elements |
| Proper application of the categorical/modified categorical approach to the instant federal bank robbery conviction | Lewis: (challenged only aggravated-assault in district) | Government: Courts must apply categorical approach consistent with precedent (Chapman and others) | Held: Court applied categorical/modified categorical approach per precedent and concluded result supports career-offender designation |
| Whether Lewis was properly designated a career offender under U.S.S.G. § 4B1.1 | Lewis: At least one predicate (aggravated assault or bank robbery) is not a crime of violence, so career-offender status is improper | Government: Both bank robbery and the § 2702(a)(4) conviction qualify as crimes of violence and he has a prior drug conviction, so career-offender status is proper | Held: Career-offender designation affirmed; sentence affirmed |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (interpreting "physical force" as "violent force" for force-clause analysis)
- Castleman v. United States, 572 U.S. 157 (use of force includes indirect applications like poisoning)
- Carter v. United States, 530 U.S. 255 (§ 2113(a) requires general intent/knowledge as to taking by force or intimidation)
- United States v. Brown, 765 F.3d 185 (3d Cir.) (categorical approach governs whether conviction is a crime of violence)
- United States v. Chapman, 866 F.3d 129 (3d Cir.) (applied categorical approach to career-offender analysis; scienter requirement discussion)
- United States v. Ellison, 866 F.3d 32 (1st Cir.) (held § 2113(a) is a crime of violence under § 4B1.2)
- United States v. Brewer, 848 F.3d 711 (5th Cir.) (same as to § 2113(a) intimidation element)
- United States v. McBride, 826 F.3d 293 (6th Cir.) (same conclusion regarding § 2113(a) and intimidation)