United States Court of Appeals

For the Eighth Circuit

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No. 16-3907

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Derrick Angelo Harper,

lllllllllllllllllllll Defendant - Appellant.

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: May 12, 2017

 Filed: August 23, 2017

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Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

Derrick Angelo Harper pleaded guilty to one count of bank robbery, in

violation of 18 U.S.C. § 2113(a). At sentencing, the district court concluded that 1

Harper was a career offender under USSG § 4B1.1(a), and that he was subject to

The Honorable Michael J. Davis, United States District Judge for the District 1

of Minnesota.
enhanced punishment under that section of the advisory sentencing guidelines. The

court determined that Harper was a career offender because the offense of conviction

was a “crime of violence,” and his two prior convictions for bank robbery in violation

of § 2113(a) were also crimes of violence. The court sentenced Harper to 188

months’ imprisonment. Harper argues on appeal that the district court committed

procedural error in computing the advisory guideline range, because his bank robbery

convictions were not crimes of violence. 

A defendant is a career offender if he is convicted of a “crime of violence” and

has two prior convictions for crimes of violence. USSG § 4B1.1(a). The guidelines

define “crime of violence” in the “force” clause to include an offense that “has as an

element the use, attempted use, or threatened use of physical force against the person

of another.” USSG § 4B1.2(a)(1). The guideline also enumerates several offenses,

including “robbery,” that constitute a crime of violence. Id. § 4B1.2(a)(2). The

government argues that Harper’s bank robberies qualify as crimes of violence under

both the “force” clause and the enumeration of “robbery.”

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To determinewhether Harper’s convictions satisfy the “force” clause, we apply

the “categorical approach,” and consider only the statutory elements of the offense. 

United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013). If a statute

covers more conduct than the definition of “crime of violence,” and “comprises

multiple, alternative versions of the crime,” then we may apply a “modified

categorical approach” to determine which alternative was the offense of conviction. 

Effective August 2016, the Sentencing Commission amended § 4B1.2(a)(2) 2

to include “robbery” as an enumerated crime of violence; the previous guideline

enumerated “robbery” as a crime of violence in the commentary. USSG § 4B1.2,

comment. (n.1) (2015). Harper committed the bank robbery here in January 2016, but

was sentenced in September 2016, so the amended guideline applies unless its use

would violate the Ex Post Facto Clause of the Constitution. USSG § 1B1.11(a),

(b)(1). Harper’s current position is that we should apply the amended guideline.

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Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). The court may “consult

a limited class of judicial records to determine under which alternative the defendant

was convicted.” United States v. Hudson, 851 F.3d 807, 809 (8th Cir. 2017). 

A person violates 18 U.S.C. § 2113(a) under the first paragraph of the

provision if he, “by force and violence, or by intimidation, takes . . . from the person

or presence of another, or obtains . . . by extortion any property or money or any other

thing of value belonging to . . . any bank.” Section 2113(a) contains a second

paragraph that proscribes “enter[ing] or attempt[ing] to enter any bank . . . with intent

to commit in such bank . . . any felony affecting such bank . . . and in violation of any

statute of the United States, or any larceny.” Harper does not dispute that his three

convictions were under the first paragraph. His challenge to the career-offender

designation focuses on the first paragraph of § 2113(a) only, and he implicitly

concedes that each paragraph of § 2113(a) defines at least one separate crime. See

United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016).

Harper’s contention is that “the most innocent conduct penalized under

§ 2113(a) is‘intimidation,’” and that a violation of § 2113(a) by intimidation does not

have, as an element, the use, attempted use, orthreatened use of physicalforce against

the person of another. In United States v. Wright, 957 F.2d 520 (8th Cir. 1992),

however, this court held that robbery by intimidation under § 2113(a) categorically

involves the threatened use of force: “Intimidation means the threat of force.” Id. at

521 (quotation omitted). Wright thus controls here unless it has been superseded by

an intervening decision of the Supreme Court.

Harper suggests that Wright was abrogated by Elonis v. United States, 135 S.

Ct. 2001 (2015), but we see no inconsistency between the two decisions. Elonis held

that the crime of transmitting a communication containing a threat under 18 U.S.C.

§ 875(c) requires proof that the defendant made the communication with the purpose

of issuing a threat, or with knowledge that the communication will be viewed as a

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threat, or, possibly, with reckless disregard for the likelihood that the communication

would be so viewed. Id. at 2012-13. Harper reasons that because “intimidation” in

§ 2113(a) does not require proof that the robber intentionally intimidated a victim, see

United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation

does not have as an element the threatened use of force. In other words, he seems to

contend, “threatened use of force” after Elonis requires a specific intent to issue a

threat.

Elonis did not announce a universal definition of “threat” that always requires

the same mens rea. To the contrary, the Court observed that “threat,” as commonly

defined, “speak[s] to what the statement conveys—not to the mental state of the

author.” 135 S. Ct. at 2008. Elonis held only that a certain criminal statute required

proof of a particular mens rea. The Court did not redefine the phrase “threatened use

of force” as it appears in the sentencing guidelines.

Harper also mentions fleetingly the possibility that a person could be

intimidated without a robber threatening to use violent force—that is, force “capable

of causing physical pain or injury to another person.” Johnson v. United States, 559

U.S. 133, 140 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir.

2012). This argument fails because bank robbery by intimidation requires proof that

the victim “reasonably could infer a threat of bodily harm” from the robber’s acts. 

Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat

to use violent force because “it is impossible to cause bodily injury without using

force ‘capable of’ producing that result.” United States v. Winston, 845 F.3d 876, 878

(8th Cir. 2017) (quoting United States v. Castleman, 134 S. Ct. 1405, 1416-17 (2014)

(Scalia, J., concurring)).

The holding of Wright therefore controls: bank robbery by intimidation under

§ 2113(a) is a crime of violence under the force clause, because it involves a

threatened use of force. See also Allen v. United States, 836 F.3d 894, 894-95 (8th

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Cir. 2016) (per curiam) (holding that bank robbery in violation of § 2113(a) and (e)

is a “crime of violence” under the force clause of 18 U.S.C. § 924(c)(3)(A)). The

district court correctly ruled that Harper qualified as a career offender. We need not

address whether Harper also qualifies as a career offender because § 4B1.2(a)(2)

enumerates “robbery” as a crime of violence. Cf. United States v. Jenkins, 651 F.

App’x 920, 925 (11th Cir. 2016) (per curiam).

The judgment of the district court is affirmed.

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