United States v. Otto Hendrick Horsting, III
678 F. App'x 947
| 11th Cir. | 2017Background
- Otto Horsting pleaded guilty to being a felon in possession of a firearm and received a 180-month sentence under the ACCA mandatory minimum.
- The district court counted three prior convictions (including an unarmed bank robbery under 18 U.S.C. § 2113(a)) as violent felonies to trigger ACCA.
- The key statutory provision is the ACCA "elements clause," which covers offenses with an element of "use, attempted use, or threatened use of physical force against the person of another."
- § 2113(a) criminalizes taking property from a bank "by force and violence, or by intimidation."
- The Eleventh Circuit previously held in In re Sams that § 2113(a) robbery qualifies as a "crime of violence" under § 924(c) because "intimidation" includes threatened use of physical force.
- Horsting challenged (1) whether the "intimidation" prong of § 2113(a) meets the ACCA elements-clause force requirement, and (2) whether the mens rea for intimidation could be satisfied by recklessness or negligence, which would be incompatible with the elements clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2113(a) "intimidation" fits ACCA elements clause requiring use/attempted use/threatened use of physical force | Horsting: "Intimidation" does not necessarily involve threatened use of physical force, so it is not a violent felony | Government: Intimidation entails a threatened use of physical force and thus satisfies the elements clause | Court: § 2113(a) robbery by intimidation categorically qualifies as a violent felony under the ACCA elements clause |
| Whether § 2113(a) mens rea can be met by recklessness or negligence, making it incompatible with knowledge requirement | Horsting: Intimidation is judged objectively and could capture reckless/negligent conduct, lacking required mens rea | Government: § 2113(a) is a general-intent crime requiring knowledge of the actus reus; objective standard does not allow mere recklessness/negligence | Court: Objective victim-centered standard still requires the defendant to knowingly take property and knowingly commit intimidating acts; reckless or negligent conduct is not enough |
Key Cases Cited
- United States v. Canty, 570 F.3d 1251 (11th Cir.) (standard of review for ACCA categorical questions)
- United States v. Owens, 672 F.3d 966 (11th Cir.) (describing elements and residual clauses)
- In re Sams, 830 F.3d 1234 (11th Cir.) (held § 2113(a) robbery is a crime of violence under § 924(c))
- United States v. McNeal, 818 F.3d 141 (4th Cir.) (reasoning that § 2113(a) intimidation requires threatened use of physical force)
- United States v. Kelley, 412 F.3d 1240 (11th Cir.) (defines § 2113(a) intimidation from reasonable teller’s perspective)
- Carter v. United States, 530 U.S. 255 (Sup. Ct.) (recognizes § 2113(a) as a general-intent crime requiring knowledge of the actus reus)