United States v. Ellison

United States Court of Appeals
For the First Circuit

No. 16-1460

UNITED STATES OF AMERICA,

Appellee,

v.

DOUGLAS ELLISON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Bjorn Lange, Assistant Federal Public Defender, was on brief
for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief for appellee.

August 2, 2017
 BARRON, Circuit Judge. Douglas Ellison pled guilty to

violating 18 U.S.C. § 2113(a), the federal bank robbery statute.

In this appeal, he challenges his 10-year prison sentence. We

affirm.

I.

On August 20, 2014, Ellison was indicted in the United

States District Court for the District of New Hampshire on one

count of violating § 2113(a). That provision reads:

Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from
the person or presence of another, or obtains
or attempts to obtain by extortion any
property or money or any other thing of value
belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association; or

Whoever enters or attempts to enter any bank,
credit union, or any savings and loan
association, or any building used in whole or
in part as a bank, credit union, or as a
savings and loan association, with intent to
commit in such bank, credit union, or in such
savings and loan association, or building, or
part thereof, so used, any felony affecting
such bank, credit union, or such savings and
loan association and in violation of any
statute of the United States, or any
larceny --

Shall be fined under this title or imprisoned
not more than twenty years, or both.

The indictment charged that Ellison "did knowingly and

intentionally, by force and violence, or by intimidation, take

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from the person and presence of another currency belonging to and

in the care, custody, control, management, and possession of the

Northeast Credit Union . . . [i]n violation of [§ 2113(a)]."

(emphasis added). On November 25, 2015, Ellison pled guilty to

that count.

At the change-of-plea colloquy, the District Court

explained the elements of the offense to which Ellison was pleading

guilty. Those elements were that Ellison "intentionally took money

from the Northeast Credit Union in Manchester from a bank

employee," that Ellison "used intimidation or force and

violence . . . to obtain the money," and that "the deposits of the

credit union were insured by the National Credit Union

Administration." (emphasis added).

Prior to the sentencing hearing, the probation office

prepared a presentence investigation report ("PSR"). The PSR

calculated the sentencing range applicable to Ellison under the

United States Sentencing Guidelines. According to the PSR, Ellison

was, in consequence of his prior convictions, in criminal history

category VI. The PSR also determined that, under the guidelines,

Ellison's total offense level was 29. The PSR then calculated the

applicable guidelines sentencing range for Ellison to be 151 to

188 months' imprisonment.

Ellison filed an objection to the PSR. Ellison argued

that the PSR wrongly based the determination that his total offense

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level was 29 on a finding that he was a career offender under

U.S.S.G. § 4B1.1(a). The career offender guideline provides that:

A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). At the time that Ellison was sentenced, the

career offender guideline defined a crime of violence as follows:

any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that -- (1) has as an
element the use, attempted use, or threatened
use of physical force against the person of
another; or (2) is burglary of a dwelling,
arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.

U.S.S.G. § 4B1.2(a) (Nov. 1, 2015).1

The first subpart of this definition is commonly

referred to as the force clause. The trailing portion of the

second subpart of the definition, which follows the list of

1 As of August 1, 2016, that provision was revised such that
subpart (2) now reads: "is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive material as defined
in 18 U.S.C. § 841(c)."

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enumerated qualifying offenses, is commonly referred to as the

residual clause.

Ellison argued that, because the offense for which he

was convicted could be committed by "intimidation," that offense

did not have as an element the "use, attempted use, or threatened

use of physical force against another." Accordingly, Ellison

argued that the offense for which he was convicted did not qualify

as a "crime of violence" under the force clause of the definition

set forth in the career offender guideline. He also contended

that, after the Supreme Court's decision in Johnson v. United

States, 135 S. Ct. 2551 (2015), the residual clause of the career

offender guideline is void because it is unconstitutionally vague.

Thus, Ellison argued, the offense for which he was convicted did

not qualify as a "crime of violence."

Without the career offender designation, Ellison further

argued, his applicable total offense level would have been 21,

rather than 29. And, Ellison argued, if the career offender

guideline enhancement had not been applied to him, his applicable

guidelines range would have been 77 to 96 months' imprisonment,

rather than 151 to 188 months' imprisonment, given that Ellison

did not contest the PSR's statement that his criminal history

category was VI.

Ellison's sentencing hearing was held on April 18, 2016.

The District Court found that, as the government had argued, the

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offense for which Ellison was convicted did qualify as a crime of

violence under the force clause of the career offender guideline.

On that basis, the District Court concluded that, as the PSR had

determined, Ellison's total offense level was 29 and that the

applicable guidelines range for his sentence was 151 to 188 months'

imprisonment. The District Court then sentenced Ellison to a term

of 120 months' imprisonment.

Ellison now appeals the District Court's determination

that the offense for which he was convicted qualified as a crime

of violence under the career offender guideline. Ellison raised

this same legal issue below, so we review the District Court's

decision de novo. United States v. Collins, 811 F.3d 63, 66 (1st

Cir. 2016).

II.

To challenge his career offender designation on appeal,

Ellison initially argued both that the offense for which he was

convicted did not qualify under the force clause of the career

offender guideline and that the residual clause of the career

offender guideline is void because it is unconstitutionally vague.

After he filed his appellate brief, however, the Supreme Court

decided Beckles v. United States, 137 S. Ct. 886 (2017). There,

the Court ruled that advisory guidelines are not subject to

constitutional vagueness challenges. Because the career offender

guideline that was applied to Ellison was advisory, Ellison no

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longer presses the contention that the guideline's residual clause

is unconstitutionally vague. Instead, in the wake of Beckles,

Ellison submitted a supplemental brief in which he argues that,

notwithstanding Beckles, Johnson established that "residual clause

determinations are guesswork and the [residual clause] cannot be

clearly and consistently interpreted and applied," such that "it

is procedural error and an abuse of discretion to calculate the

guideline range based on an attempt to interpret and apply the

residual clause." (citing Johnson, 135 S. Ct. at 2558-60, 2562-

63).

We need not decide here how the residual clause in the

career offender guideline applies post-Beckles. For, as we will

explain, the offense for which Ellison was convicted qualifies as

a "crime of violence" under the career offender guideline's force

clause. Thus, for that reason, the District Court did not err in

applying the career offender guideline to Ellison.

III.

The parties agree that § 2113(a) sets forth as a separate

offense "by force and violence, or by intimidation, tak[ing], or

attempt[ing] to take, from the person or presence of

another . . . any property or money or any other thing of value

belonging to, or in the care, custody, control, management, or

possession of, any bank, credit union, or any savings and loan

association," and that Ellison was convicted of this offense.

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Accordingly, the question for us is whether this

offense -- violating § 2113(a) by "force and violence, or

intimidation" -- qualifies as a crime of violence under the force

clause of the career offender guideline. See Mathis v. United

States, 136 S. Ct. 2243, 2249 (2016).

To resolve that question, we must determine whether

violating § 2113(a) by "force and violence, or intimidation" has

as an element "the use, attempted use, or threatened use of

physical force against the person of another." U.S.S.G.

§ 4B1.2(a). And, as the text of the guideline indicates, we thus

must examine the elements of the offense, rather than the conduct

that this particular defendant engaged in in committing the

offense. See United States v. Ramos-González, 775 F.3d 483, 504

(1st Cir. 2015). In undertaking that elements-based review,

moreover, we must determine whether the least serious conduct that

the offense's elements encompass would require such a use or

threatened use of physical force. For, under the "categorical

approach" that we must apply, the offense qualifies as a "crime of

violence" only if the least serious conduct encompassed by the

elements of the offense still falls within the guideline's force

clause. United States v. Armour, 840 F.3d 904, 908 (7th Cir.

2016).

Ellison contends that, because the phrase "force and

violence, or intimidation" is set forth in the disjunctive in

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§ 2113(a), the question is whether "intimidation" has as an element

a "threatened use of physical force."2 The government does not

disagree. But the government contends, relying in part on the

rulings of a number of our sister circuits, that "intimidation"

under § 2113(a) does have as an element the "use, attempted use,

or threatened use of physical force against the person of another."

See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016)

(holding that "a taking 'by intimidation' involves the threat to

use [physical] force"); United States v. McBride, 826 F.3d 293,

296 (6th Cir. 2016) ("The defendant must at least know that his

actions would create the impression in an ordinary person that

resistance would be met by force. A taking by intimidation under

§ 2113(a) therefore involves the threat to use physical force.");

United States v. Jenkins, 651 Fed. App'x 920, 924 (11th Cir. 2016)

(stating that "intimidation occurs when an ordinary person in the

teller's position could reasonably infer a threat of bodily harm

2 Ellison understandably does not argue that committing the
offense by means of "force and violence," rather than
"intimidation," would not necessarily involve the "use, attempted
use, or threatened use of physical force against the person of
another." We also note that Black's Law Dictionary defines
"intimidation" as "unlawful coercion; extortion." Black's Law
Dictionary 949 (10th ed. 2009). However, the statute includes
both "by force and violence, or intimidation" and "by extortion"
as separate means of committing the offense. 18 U.S.C. § 2113(a).
Ellison makes no argument that "intimidation" in § 2113(a) includes
extortion.

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from the defendant's acts" (quoting United States v. Kelley, 412

F.3d 1240, 1244 (11th Cir. 2005))).

In countering the government, Ellison makes a number of

arguments, the first of which is that "intimidation" merely

requires that the perpetrator induce "fear" in the victim and not

that the perpetrator threaten -- either explicitly or

implicitly -- the victim with bodily harm. As a result, Ellison

contends, even if a threat of bodily harm constitutes a "threatened

use of physical force" for purposes of the career offender

guideline's definition of a "crime of violence," "intimidation"

under § 2113(a) does not require that there be a threat of that

kind.

Ellison relies for this argument primarily on our

decision in United States v. Henson, 945 F.2d 430 (1st Cir. 1991).

In that case, a defendant challenged the sufficiency of the

evidence for his convictions on three counts of violating § 2113(a)

by means of "force and violence, or by intimidation," for three

separate occasions on which he had delivered an emphatic note

demanding money to a bank teller, but did not display a weapon or

make an explicit threat of bodily harm. Id. at 439. In explaining

why the evidence sufficed to support the convictions, we reasoned

that "[i]ntimidation is conduct 'reasonably calculated to produce

fear.'" Id. (quoting United States v. Harris, 530 F.2d 576, 579

(4th Cir. 1976)).

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 But, Henson did not hold that a threat of bodily harm

need not be made at all in order for a defendant to have committed

the bank robbery by "intimidation." Henson indicated only that

threats of bodily harm need not be explicit. In fact, in stating

generally that "[i]ntimidation is conduct 'reasonably calculated

to produce fear,'" id. (quoting Harris, 530 F.2d at 579), Henson

cited as support for that proposition United States v. Alsop, 479

F.2d 65, 66 (9th Cir. 1976), which Henson described as holding

that "taking in such a way as to place an ordinary person in fear

of bodily harm constitutes 'intimidation.'" Henson, 945 F.2d at

439 (emphasis added). In addition, in addressing the count for

which there was testimony that the defendant had handed a teller

a note saying "put fifties and twenties into an envelope now!!,"

id., Henson pointed out that:

[a]lthough . . . no threat of bodily harm was
expressed, a rational juror reasonably could
find that Henson's emphatic written demand
for the immediate surrender of the bank's
money was enough to cause fear in an ordinary
person under these circumstances. . . .
Neither the actual or threatened display of a
weapon, nor an explicit threat of force, is
essential to establish intimidation under the
statute.

Id. at 439-40 (emphasis added). And, finally, in the course of

addressing the other two counts at issue in that case, Henson noted

that the evidence regarding what the defendant had said to the

bank teller in each instance was sufficient to qualify as

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"intimidation," at least for the purposes of our review for

manifest injustice, id. at 439 n.8, because "[f]rom the perspective

of an ordinary person confronted with the predicament in which

these tellers suddenly found themselves, [the defendant's]

communications clearly were sufficient to raise fears of bodily

harm." Id. at 440 (emphasis added).

Moreover, following Henson, we made clear in United

States v. Burns, 160 F.3d 82 (1st Cir. 1998), that "[c]ourts

generally evaluate levels of intimidation under an objective

standard: whether a reasonable person in the same circumstances

would have felt coerced by a threat of bodily harm." Id. at 85

(emphasis in original); see also Jenkins, 651 Fed. App'x at 924

(stating that "intimidation occurs when an ordinary person in the

teller's position could reasonably infer a threat of bodily harm

from the defendant's acts" (quoting Kelley, 412 F.3d at 1244)).

And, Ellison does not explain how that statement in Burns accords

with his contention that "intimidation" may be proved even in the

absence of any such threat.

Simply put, Ellison fails to identify a single

case -- either of our own or of any other court -- that holds that

"intimidation" may be proved absent any action by the defendant

that would, as an objective matter, cause a fear of bodily harm.

And, in light of Henson and Burns, and the weight of precedent

from other courts, we agree with the government that proving

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"intimidation" under § 2113(a) requires proving that a threat of

bodily harm was made.

As a fallback argument, Ellison contends that, even if

"intimidation" requires proof of at least a threat of bodily harm,

a threat to poison or to withhold vital medicine both qualify as

a threat of bodily harm. Yet, Ellison argues, such a threat is

not a "threatened use of physical force" due to the indirect manner

in which the threatened injury would be visited upon the victim.

Accordingly, Ellison contends, his conviction under § 2113(a)

cannot qualify as one for a crime of violence under the career

offender guideline.

This argument, however, is undermined by United States

v. Castleman, 134 S. Ct. 1405 (2014). There, the Supreme Court

made clear that poisoning or infecting with a disease does

constitute a "use or attempted use of physical force" under 18

U.S.C. § 921(a)(33)(A)(ii), id. at 1414-15, notwithstanding that

the "harm occurs indirectly." Id. at 1415. The Court explained

that the "use of force" is "the act of employing poison knowingly

as a device to cause physical harm." Id. And, while

§ 921(a)(33)(A)(ii) is a distinct provision that uses somewhat

different words than the force clause of the definition of a "crime

of violence" in the career offender guideline, Ellison makes no

argument as to why the logic of Castleman is inapplicable here.

Nor does any such argument occur to us. Indeed, in a recent case

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interpreting the similarly worded force clause in the definition

of a "violent felony" in ACCA, 18 U.S.C. § 924(e)(2)(B)(i), we

rejected the same argument Ellison asks us to accept. See United

States v. Edwards, 857 F.3d 420, 427 (1st Cir. 2017) ("Edwards is

dead wrong in characterizing the poisoning as an application of

indirect force. . . . The force required to apply poison to a

victim -- while certainly lower in newtons than the force of a

bullet -- is still force.").

We also are unpersuaded by Ellison's argument that

"intimidation" could encompass a threat to withhold life-saving

medicine and thus that "intimidation" need not have as an element

a "threatened use of physical force." We are not supposed to

imagine "fanciful, hypothetical scenarios" in assessing what the

least serious conduct is that the statute covers. United States

v. Fish, 758 F.3d 1, 6 (1st Cir. 2014). Rather, we must find "a

realistic probability, not a theoretical possibility, that the

[government] would apply its statute to conduct that falls outside

the generic definition of a crime." Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007). Ellison offers no realistic probability

of the statute applying to the commission of a bank robbery through

a threatened withholding of life-saving treatment.

Finally, Ellison contends that violating § 2113(a) by

"force and violence, or intimidation" does not qualify as a "crime

of violence" under the career offender guideline for yet another

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reason. He argues that, to prove a violation of § 2113(a) by

"intimidation," the government need prove only that a reasonable

person would have felt intimidated, and not that the defendant

knew that his actions would be intimidating to a reasonable person.

And because Ellison contends that § 2113(a) lacks any mens rea

element with respect to intimidation, a conviction for violating

§ 2113(a) by means of intimidation cannot qualify as one for a

crime of violence, given the logic of our decision in Fish, 758

F.3d at 4.

Ellison points out, in this regard, that Fish concerned

whether an offense qualifies as a "crime of violence" under 18

U.S.C. § 16(b), which defines a "crime of violence" to include

crimes that "involve[] a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense." Yet, Ellison notes, we held in Fish

that the reckless variant of assault and battery with a deadly

weapon under Massachusetts law did not qualify as a "crime of

violence" because recklessness "falls short of the mens rea

required under section 16(b)." Id. at 16 (citing 18 U.S.C.

§ 16(b)).3 Ellison accordingly contends that -- insofar as there

3 In so holding in Fish, we relied on the Supreme Court's
statement in Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004), that
"'use' requires active employment," and "[w]hile one may, in
theory, actively employ something in an accidental manner, it is
much less natural to say that a person actively employs physical

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is no mens rea requirement at all with respect to "intimidation"

under § 2113(a) -- Fish's logic requires the conclusion that a

conviction for violating § 2113(a) by "intimidation" does not

qualify as a "crime of violence" under the career offender

guideline.

But Ellison's contention that § 2113(a) does not impose

a mens rea requirement as to the element of "intimidation" is

mistaken. In Carter v. United States, 530 U.S. 255 (2000), the

Supreme Court addressed whether the element of "intent to steal or

purloin" that expressly appears in § 2113(b) was impliedly

contained in § 2113(a) as well. The Court explained that § 2113(a)

does not contain that element, because "[t]he presumption in favor

of scienter requires a court to read into a statute only that mens

rea which is necessary to separate wrongful conduct from 'otherwise

innocent conduct.'" Id. at 269 (quoting United States v.

X-Citement Video, Inc., 513 U.S. 64, 72 (1994)). And, the Court

concluded, that presumption "demands only that we read [§ 2113(a)]

as requiring proof of general intent -- that is, that the defendant

possessed knowledge with respect to the actus reus of the crime

(here, the taking of property of another by force and violence or

force against another person by accident." We reasoned that
"although the Supreme Court [in Leocal] explicitly limited its
reasoning to negligence-or-less crimes, Leocal's rationale would
seem to apply equally to crimes encompassing reckless conduct
wherein force is brought to bear accidentally, rather than being
actively employed." Fish, 758 F.3d at 9.

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intimidation)." Id. at 268. Thus, the Court, at the very least,

strongly suggested that the offense of committing bank robbery by

"force and violence or intimidation" does have an implicit mens

rea element of general intent -- or knowledge -- as to the actus

reus of the offense.

To be sure, as Ellison points out, two circuits, post-

Carter, have continued to state that the government need not show

that the defendant knew that his actions would be intimidating in

order to secure a conviction under § 2113(a). See Kelley, 412

F.3d at 1244 ("[A] defendant can be convicted under § 2113(a) even

if he did not intend for an act to be intimidating."); United

States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) ("[W]hether or

not [the defendant] intended to intimidate the teller is irrelevant

in determining his guilt.").4 But Kelley simply cited to Yockel

and two pre-Carter cases in support of that proposition, 412 F.3d

at 1244, and thus did not address the passage that we just reviewed

from Carter that suggests the opposite. And Yockel relied on the

fact that Carter stated that the statute requires only proof of

"general intent" -- as opposed to "specific intent" -- without

explaining how the fact that § 2113(a) contains only that more

limited mens rea requirement undermines the government's position

4 Ellison also notes that courts had ruled similarly pre-
Carter, too. See, e.g., United States v. Foppe, 993 F.2d 1444,
1451 (9th Cir. 1993).

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that § 2113(a) must be read to require knowledge with respect to

the element of "force and violence, or intimidation." After all,

Carter described the general intent element that the presumption

in favor of scienter would "demand" as one that requires that "the

defendant possessed knowledge with respect to the actus reus of

the crime (here, the taking of property of another by force and

violence or intimidation)." 530 U.S. at 268. We thus do not see

how Yockel can be squared with Carter. See McCoy v. Mass. Inst.

of Tech., 950 F.2d 13, 19 (1st Cir. 1991) ("[F]ederal appellate

courts are bound by the Supreme Court's considered dicta almost as

firmly as by the Court's outright holdings, particularly when, as

here, a dictum is of recent vintage and not enfeebled by any

subsequent statement.").

We therefore agree with the two circuits that have

interpreted the Court's decision in Carter to require that "the

government must prove not only that the accused knowingly took

property, but also that he knew that his actions were objectively

intimidating." McNeal, 818 F.3d at 155; see also McBride, 826

F.3d at 296 ("The defendant must at least know that his actions

would create the impression in an ordinary person that resistance

would be met by force."). Accordingly, we reject Ellison's mens

rea-based argument as to why his conviction under § 2113(a) does

not qualify as one for a "crime of violence" under the force clause

of the definition set forth in the career offender guideline.

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 III.

For the foregoing reasons, the sentence is affirmed.

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