United States v. Ellison
866 F.3d 32
| 1st Cir. | 2017Background
- Douglas Ellison pled guilty to violating 18 U.S.C. § 2113(a) for taking money from a credit union by "force and violence, or by intimidation."
- PSR treated Ellison as a career offender under U.S.S.G. § 4B1.1, producing a total offense level of 29 and a Guidelines range of 151–188 months; the district court sentenced him to 120 months.
- Ellison objected, arguing § 2113(a) (the "intimidation" alternative) is not a "crime of violence" under the career-offender force clause because intimidation does not necessarily involve threatened physical force and may lack the required mens rea.
- Post-briefing, Beckles foreclosed vagueness challenges to advisory Guidelines, so Ellison pressed that (1) intimidation does not necessarily involve threatened physical force and (2) § 2113(a) lacks the requisite mens rea for the force-clause predicate.
- The First Circuit applied the categorical approach, examined the elements of § 2113(a) (intimidation variant), and evaluated precedent on whether intimidation requires a (threatened) use of physical force and knowledge that the conduct would be intimidating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2113(a) by "intimidation" qualifies under the career-offender force clause (requires use/attempted use/threatened use of physical force) | Ellison: "Intimidation" can mean causing fear without a threat of bodily harm and thus may not involve threatened physical force | Government: Intimidation under § 2113(a) requires at least an objective threat of bodily harm (threatened use of physical force) | Held: § 2113(a) intimidation requires a threat of bodily harm and thus satisfies the force-clause element |
| Whether indirect threats (e.g., poisoning or withholding medicine) count as threatened use of physical force | Ellison: Indirect threats are not a "threatened use of physical force" because harm is indirect | Government: Indirect means (poisoning) can be use of physical force; Castleman supports including indirect physical harm | Held: Indirect physical harm (poisoning, etc.) can constitute use of physical force; Castleman and First Circuit precedent support this |
| Whether § 2113(a) requires mens rea that the defendant knew his acts were intimidating | Ellison: § 2113(a) can be satisfied by objective intimidation without defendant's knowledge, so mens rea is lacking for career-offender purposes | Government: Carter and subsequent interpretations imply at least general intent/knowledge that conduct was intimidating | Held: Carter implies general-intent mens rea — government must prove defendant knew his actions would be objectively intimidating; thus mens rea requirement satisfied |
| Whether the residual-clause vagueness (career-offender) argument saves Ellison | Ellison: Johnson renders residual clause void; calculations based on it are impermissible | Government: Beckles holds advisory Guidelines are not subject to vagueness challenges; residual-clause argument no longer pressed | Held: Court did not need to decide residual-clause application post-Beckles because the force clause applies; Beckles forecloses vagueness challenge to advisory Guidelines |
Key Cases Cited
- Beckles v. United States, 137 S. Ct. 886 (2017) (advisory Sentencing Guidelines are not subject to vagueness challenges)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (poisoning or infecting can constitute use of physical force)
- Carter v. United States, 530 U.S. 255 (2000) (§ 2113(a) contains a general-intent requirement — defendant must know the actus reus)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach requires examining statutory elements)
- United States v. Fish, 758 F.3d 1 (1st Cir. 2014) (mens rea analysis in determining whether offenses qualify as crimes of violence)