United States v. Derrick Angelo Harper, 2017 U.S. App. LEXIS 16079

Background

Derrick Angelo Harper pleaded guilty to one count of bank robbery (18 U.S.C. § 2113(a)) and was sentenced to 188 months.
At sentencing the district court designated Harper a career offender under U.S.S.G. § 4B1.1(a) based on the conviction being a "crime of violence" and two prior bank-robbery convictions.
The sentencing issue: whether § 2113(a) bank robbery (first paragraph, by "force and violence, or by intimidation") qualifies as a "crime of violence" under the Guidelines' force clause.
Harper argued his prior bank-robbery convictions (and the instant offense) could be committed by mere intimidation that does not involve threatened physical force, so they are not categorically crimes of violence.
The government maintained that robbery by intimidation under § 2113(a) necessarily involves the threatened use of physical force and therefore fits the force clause; it also pointed to the Guidelines’ enumeration of "robbery."
The district court applied the categorical (and, if needed, modified categorical) approach and treated intimidation-based bank robbery as involving threatened force; this court affirmed.

Issues

Issue	Harper's Argument	Government's Argument	Held
Whether § 2113(a) bank robbery (first paragraph, including "intimidation") is a "crime of violence" under the Guidelines' force clause	Intimidation can be accomplished without threatened physical force, so § 2113(a) does not categorically have as an element the use, attempted use, or threatened use of physical force	Robbery by intimidation requires a victim reasonably to infer a threat of bodily harm, which is a threatened use of violent force; thus § 2113(a) fits the force clause	Affirmed: bank robbery by intimidation under § 2113(a) is a crime of violence under the force clause
Whether Elonis abrogates prior Eighth Circuit precedent holding intimidation equals threat	Elonis changed the mens rea required for some threat statutes, so intimidation might not require threatened-force element	Elonis did not redefine the phrase "threatened use of force" for the Guidelines; it addressed mens rea in a specific statute	Held: Elonis does not overrule Wright; Wright remains controlling
Whether a threat of bodily harm can exist without violent force such that Castleman/Johnson issues would preclude force-clause treatment	Intimidation might not require force capable of causing physical pain or injury	For a threat of bodily harm to be effective it must be a threat to use violent force; case law supports that bodily-harm threats involve force capable of causing injury	Held: Threat of bodily harm entails threatened use of violent force; argument fails
Whether the career-offender designation was correct (including possible reliance on Guidelines enumeration of "robbery")	Harper contested force-clause classification; he accepted applying amended guideline enumerating robbery	Government argued either force clause or enumeration ("robbery") supports career-offender status	Held: Career-offender designation correct on force-clause ground; no need to reach enumeration issue

Key Cases Cited

United States v. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013) (categorical approach for crime-of-violence analysis)
Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach and limits on judicial factfinding)
United States v. Hudson, 851 F.3d 807 (8th Cir. 2017) (limited record consultation under modified categorical approach)
United States v. Wright, 957 F.2d 520 (8th Cir. 1992) (robbery by intimidation under § 2113(a) involves threatened use of force)
Elonis v. United States, 135 S. Ct. 2001 (2015) (mens rea requirements for criminal threats statute)
United States v. Yockel, 320 F.3d 818 (8th Cir. 2003) (intimidation requires a reasonable inference of threat of bodily harm)
United States v. Castleman, 134 S. Ct. 1405 (2014) (discussion of force sufficient to cause bodily injury)
United States v. Winston, 845 F.3d 876 (8th Cir. 2017) (threat of bodily harm requires force capable of producing injury)
Allen v. United States, 836 F.3d 894 (8th Cir. 2016) (bank robbery is a crime of violence under the force clause)