USCA11 Case: 21-11252 Date Filed: 12/15/2021 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11252
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ARMSTRONG, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00224-WWB-EJK-1
____________________
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2 Opinion of the Court 21-11252
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
After pleading guilty, John Armstrong, Jr., was convicted of
Hobbs Act robbery, see 18 U.S.C. § 1951(a), three counts of bank
robbery or attempted bank robbery, see 18 U.S.C. § 2113(a), and
three counts of brandishing a firearm during and in relation to a
“crime of violence,” namely bank robbery or attempted bank rob-
bery, see 18 U.S.C. § 924(c)(1)(A)(ii). He now appeals his § 924(c)
convictions, arguing that the statute is unconstitutionally vague
and that bank robbery under § 2113(a) is not a crime of violence.
Because Armstrong’s arguments are foreclosed by binding prece-
dent, we affirm.
Section 924(c) provides for a mandatory consecutive sen-
tence for any defendant who uses or carries a firearm during and in
relation to, or possesses a firearm in furtherance of, either a “crime
of violence” or a “drug trafficking crime.” 18 U.S.C.
§ 924(c)(1)(A)(i)–(ii). More severe penalties apply if the firearm was
“brandished” or “discharged.” See id. Here, for instance, Arm-
strong was sentenced to three consecutive seven-year sentences for
the § 924(c) convictions, in addition to a 168-month sentence for
the robbery convictions.
We review de novo whether an offense qualifies as a “crime
of violence” under § 924(c). United States v. McGuire, 706 F.3d
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21-11252 Opinion of the Court 3
1333, 1336 (11th Cir. 2013). For the purposes of § 924(c), “crime of
violence” means an offense that is a felony and
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of an-
other may be used in the course of committing the
offense.
Id. § 924(c)(3). Subsection (A) is known as the “use-of-force” or
“elements” clause, while subsection (B) is known as the “residual”
clause. In re Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016).
In United States v. Davis, 139 S. Ct. 2319, 2336 (2019), the
Supreme Court extended its holdings in Johnson v. United States,
576 U.S. 591 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018),
to § 924(c) and held that § 924(c)(3)(B)’s residual clause, like the re-
sidual clauses in the Armed Career Criminal Act and 18 U.S.C. §
16(b), is unconstitutionally vague. Davis, 139 S. Ct. at 2325–27,
2336. The Court did not, however, hold that the use-of-force
clause was similarly unconstitutional, and we continue to apply
§ 924(c)(3)(A) after Davis. See, e.g., Brown v. United States, 942
F.3d 1069, 1075 (11th Cir. 2019); Steiner v. United States, 940 F.3d
1282, 1293 (11th Cir. 2019).
We use a categorical approach to decide if an offense satisfies
§ 924(c)(3)(A)’s definition. McGuire, 706 F.3d at 1336. Under that
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4 Opinion of the Court 21-11252
approach, we look solely to the elements of the offense of convic-
tion, assume that the conviction rested upon the least of the acts
criminalized, and then determine if those acts qualify as a crime of
violence. United States v. Vail Bailon, 868 F.3d 1293, 1296 (11th
Cir. 2017) (en banc).
Armstrong contends that, following the Supreme Court’s
decision in Davis, § 924(c)(3)(A) is also unconstitutionally void for
vagueness because, under the categorical approach, bank robbery
under § 2113(a) can be committed without the use, attempted use,
or threatened use of physical force.
As he acknowledges, however, we have held that bank rob-
bery under § 2113(a), including “by intimidation,” categorically
qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force
clause. In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016). We rea-
soned that federal bank robbery categorically qualifies as a crime of
violence because “[a] taking ‘by force and violence’ entails the use
of physical force [and] a taking ‘by intimidation’ involves the threat
to use such force.” Id. (quoting United States v. McNeal, 818 F.3d
141, 153 (4th Cir. 2016)). Moreover, we have held that a conviction
for attempting to commit a crime of violence or for aiding and abet-
ting a crime of violence also qualifies as a crime of violence for pur-
poses of § 924(c)(3)(A)’s use-of-force clause. See Steiner, 940 F.3d
at 1293 (aiding and abetting); United States v. St. Hubert, 909 F.3d
335, 351–52 (11th Cir. 2018) (attempt), abrogated on other grounds
by Davis, 139 S. Ct. 2319. Thus, both attempted bank robbery and
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21-11252 Opinion of the Court 5
aiding and abetting a bank robbery under § 2113(a) likewise qualify
as crimes of violence for purposes of § 924(c)(3)(A).
Based on our precedent, Armstrong’s convictions under
§ 2113(a) count as crimes of violence for the purposes of
§ 924(c)(3)(A)’s use-of-force clause, which remains valid even after
Davis’s invalidation of § 924(c)(3)(B)’s residual clause. Sams, 830
F.3d at 1239; see Steiner, 940 F.3d at 1293; St. Hubert, 909 F.3d at
351–52. Although Armstrong believes that Sams was wrongly de-
cided, we are bound by that decision under the prior precedent rule
because it has not been overruled or undermined to the point of
abrogation by this Court sitting en banc or the Supreme Court. See
St. Hubert, 909 F.3d at 345 (holding that the prior precedent rule
“applies with equal force” to published decisions involving applica-
tions to file second or successive habeas petitions). Therefore, we
affirm Armstrong’s § 924(c) convictions.
AFFIRMED.