UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MARTIN MICHAEL YBARRA, 

 Defendant - Appellant. 

No. 17-2131 

(D.C. Nos. 2:16-CV-00563-MV-KBM) 

and 2:09-CR-00900-MV-1 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges. 

_________________________________ 

Mr. Martin Ybarra pleaded guilty to possessing a firearm after being 

convicted of a felony. See 18 U.S.C. § 922(g). In determining the sentence, 

the district court found that Mr. Ybarra had three prior convictions for 

violent felonies, triggering the Armed Career Criminal Act’s establishment 

of a minimum term of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). 

 

*

 We have determined that oral argument would not materially aid our 

consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 

34.1(G). Thus, we have decided the appeal based on the briefs. 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But our order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 12, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

With the finding of three prior convictions for violent felonies, the court 

imposed a fifteen-year sentence. 

Mr. Ybarra moved under 28 U.S.C. § 2255 to vacate his sentence, 

alleging that the fifteen-year minimum did not apply because federal bank 

robbery (18 U.S.C. § 2113(a)) did not constitute a violent felony. The 

district court denied relief, and we affirm. 

I. Application of the Fifteen-Year Minimum Sentence Under the 

Armed Career Criminal Act 

Under the Armed Career Criminal Act, Mr. Ybarra would be subject 

to a fifteen-year minimum sentence if he had three or more past 

convictions for violent felonies. The issue here is whether Mr. Ybarra’s 

three prior convictions for federal bank robbery involved violent felonies. 

The Armed Career Criminal Act contains three clauses defining the 

term “violent felony”: 

1. Elements Clause: The statute of conviction contains “as an 

element the use, attempted use, or threatened use of physical 

force” against another person. 18 U.S.C. § 924(e)(2)(B)(i).

2. Enumerated-Offense Clause: The conviction is for burglary, 

arson, extortion, or another crime involving the use of 

explosives. 18 U.S.C. § 924(e)(2)(B)(ii). 

3. Residual Clause: The conviction otherwise involved conduct 

creating a serious potential risk of physical injury to another 

person. Id. 

 The parties agree that Mr. Ybarra’s convictions for federal bank 

robbery did not satisfy the Enumerated-Offense Clause. And the Supreme 
3 

Court held in Johnson v. United States that the Residual Clause is 

unconstitutionally vague. 135 S. Ct. 2551, 2556-63 (2015). Mr. Ybarra 

invokes Johnson, arguing that the fifteen-year minimum is no longer 

applicable because his convictions for federal bank robbery would 

constitute violent felonies only under the unconstitutional Residual Clause. 

But the district court relied on a different clause, the Elements Clause, 

concluding that it applied to federal bank robbery. We agree. 

II. Standard of Review 

The district court denied Mr. Ybarra’s § 2255 motion as a matter of 

law, and we engage in de novo review. See United States v. Harris, 844 

F.3d 1260, 1263 (10th Cir. 2017), cert. denied, ___ U.S. ___, 2018 WL 

1568033 (Apr. 2, 2018). 

III. Elements Clause 

We use the categorical approach to decide whether federal bank 

robbery constitutes a violent felony under the Elements Clause. United 

States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017). Under the 

categorical approach, we compare the elements of federal bank robbery to 

the statutory definition of a “violent felony.” See United States v. Titties, 

852 F.3d 1257, 1265-66 (10th Cir. 2017). The statutory definition of a 

“violent felony” is a crime that “has as an element the use, attempted use, 

or threatened use of physical force against the person of another.” 18 

U.S.C. § 924(e)(2)(B)(i); see p. 2, above. 
4 

The parties agree that the federal bank-robbery statute is divisible 

and that Mr. Ybarra was convicted under the section stating: 

Whoever, by force and violence, or by intimidation, takes, or 

attempts 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 . . . 

[s]hall be fined under this title or imprisoned not more than 

twenty years, or both. 

18 U.S.C. § 2113(a). Thus, we must decide whether bank robbery “by force 

and violence, or by intimidation” requires “the use, attempted use, or 

threatened use of physical force against the person of another.” 18 U.S.C. 

§§ 924(e)(2)(B)(i), 2113(a). 

A. The Bank-Robbery Statute and the Definition of “Violent 

Felony” 

 We held in United States v. McGuire that the statute for federal bank 

robbery (18 U.S.C. § 2113(a)) has “‘as an element the use, attempted use, 

or threatened use of physical force against the person of another.’” 678 F. 

App’x 643, 645 (10th Cir. 2017) (unpublished) (quoting 18 U.S.C. 

§ 924(e)(2)(B)(i)). McGuire was based on the sentencing guidelines rather 

than the Armed Career Criminal Act. But case law interpreting the 

guideline term “Crime of Violence” is persuasive in interpreting the phrase 

“Violent Felony” under the Armed Career Criminal Act. See United States 

v. Moyer, 282 F.3d 1311, 1315 (10th Cir. 2002). Though McGuire is 

unpublished, it is persuasive. 
5 

 We consider not only our unpublished opinion in McGuire but also 

the consensus of other federal appellate courts. Nine circuit courts have 

considered whether the federal bank-robbery statute (18 U.S.C. § 2113(a)) 

constitutes a “crime of violence” or a “violent felony,” and all of these 

courts have answered “yes.” See United States v. Watson, 881 F.3d 782 

passim (9th Cir. 2018) (per curiam) (holding that federal bank robbery is a 

crime of violence under 18 U.S.C. § 924(c)(3)); United States v. Williams, 

864 F.3d 826, 827, 830 (7th Cir. 2017) (same); Holder v. United States, 

836 F.3d 891, 892 (8th Cir. 2016) (per curiam) (same); In re Sams, 830 

F.3d 1234, 1238-39 (11th Cir. 2016) (per curiam) (same); United States v. 

McNeal, 818 F.3d 141, 153, 157 (4th Cir. 2016) (same); United States v. 

Wilson, 880 F.3d 80, 84-85 (3d Cir. 2018) (holding that federal bank 

robbery is a crime of violence under U.S.S.G. § 4B1.2); United States v. 

Ellison, 866 F.3d 32 passim (1st Cir. 2017) (same); United States v. 

Brewer, 848 F.3d 711, 716 (5th Cir. 2017) (same); United States v. 

McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same). 

 Based on McGuire and the uniform body of case law in other circuits, 

we conclude that the federal bank-robbery statute requires “the use, 

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

another.” 18 U.S.C. § 924(e)(2)(B)(i). 
6 

B. Mr. Ybarra’s Arguments 

 Mr. Ybarra presents four arguments against characterizing his federal 

bank-robbery convictions as violent felonies: 

1. Federal bank robbery does not require proof of violent physical 

force because the robbery can be accomplished with de minimis 

force or no force at all. 

2. “Intimidation” does not inherently include a threat of violent 

physical force because physical injury can be caused without 

the use of physical force. 

3. Federal bank robbery does not require proof that the use, 

attempted use, or threatened use of physical force be directed 

against the person of another. 

4. The test for intimidation is inherently speculative. 

These arguments fail. 

 First, Mr. Ybarra contends that the federal bank-robbery statute can 

be violated without the necessary degree of physical force. Under the 

Armed Career Criminal Act, “physical force” means “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) (emphasis in original). 

Invoking this definition, Mr. Ybarra argues that the federal bank-robbery 

statute does not require violent force. We disagree. 

In determining whether the federal bank-robbery statute requires 

violent force, we consider the least serious of the acts criminalized by the 

statute. See United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017), 

cert. denied, ___ U.S. ___, 2018 WL 1568033 (Apr. 2, 2018). Here, the least 
7 

culpable conduct is intimidation. See United States v. Brewer, 848 F.3d 

711, 715 (5th Cir. 2017). Thus, we must decide whether robbery by 

intimidation requires the statutorily mandated degree of force. 

 The Tenth Circuit’s pattern jury instructions explain that to take “by 

means of intimidation” requires the defendant to say or do something that 

would cause “a person of ordinary sensibilities [to] be fearful of bodily 

harm.” Tenth Circuit Pattern Jury Instruction Criminal § 2.77 at 259-60 

(2011). And we have said that taking by intimidation requires conduct and 

words “reasonably calculated to put another in fear, or conduct and words 

. . . calculated to create the impression that any resistance or defiance by 

the [individual] would be met by force.” United States v. Lajoie, 942 F.2d 

699, 701 n.5 (10th Cir. 1991) (internal quotations and citations omitted). 

Thus, intimidation under the federal bank-robbery statute could exist only 

if the defendant had intentionally acted in a way that would cause “a 

person of ordinary sensibilities” to fear bodily harm. Tenth Circuit Pattern 

Jury Instruction Criminal § 2.77 at 259-60 (2011); see United States v. 

Lewis, 628 F.2d 1276, 1279 (10th Cir. 1980) (stating that bank robbery by 

intimidation is “‘unambiguously dangerous to others’” (quoting United 

States v. DeLeo, 422 F.2d 487, 491 (1st Cir. 1970))). In these 

circumstances, we conclude that federal bank robbery has as an element the 

use, attempted use, or threatened use of physical force. 
8 

 Second, Mr. Ybarra complains that bank robbery by intimidation 

focuses on bodily harm rather than on physical force. See Tenth Circuit 

Pattern Jury Instruction Criminal § 2.77 at 259-60 (2011) (defining “take 

by intimidation” to require the defendant to say or do something to cause 

“a person of ordinary sensibilities [to] be fearful of bodily harm”). Mr. 

Ybarra faults the district court for equating the fear of bodily harm with 

the required use of violent physical force. In our view, however, the 

district court’s approach was consistent with the Supreme Court’s approach 

in United States v. Castleman, 134 S. Ct. 1405 (2014). 

There, the Supreme Court explained that “the knowing or intentional 

causation of bodily injury necessarily involves the use of physical force.” 

Castleman, 134 S. Ct. at 1414. We applied Castleman in United States v. 

Ontiveros, 875 F.3d 533 (10th Cir. 2017), petition for cert. filed (U.S. 

Apr. 4, 2018) (No. 17-8367). In Ontiveros, we explained that Castleman

had “specifically rejected the contention that ‘one can cause bodily injury 

without the use of physical force.’” 875 F.3d at 536 (quoting Castleman, 

134 S. Ct. at 1409). We went on to apply Castleman to violent felonies 

under the Armed Career Criminal Act. Id. at 538. Under Ontiveros, we 

reject Mr. Ybarra’s argument that the threat of bodily harm does not 

include as an element the threat of physical force.1

 

 

1

 Mr. Ybarra contends that Ontiveros was wrongly decided. But we are 

obligated to follow Ontiveros in the absence of en banc consideration or a 
9 

 Third, Mr. Ybarra observes that a crime of violence exists only if the 

force is directed against a person. See United States v. Ford, 613 F.3d 

1263, 1271 (10th Cir. 2010). Based on this observation, Mr. Ybarra 

opposes characterization of federal bank robbery as a crime of violence, 

arguing that physical force need not be directed at another person. We 

disagree. 

 The federal bank-robbery statute requires that the taking be from the 

person or presence of a person by means of force and violence or 

intimidation. See 18 U.S.C. § 2113(a). This requirement confines the force 

to the person controlling the property. Thus, even the least serious act 

criminalized (taking by intimidation) necessarily entails a threat of bodily 

harm to the person controlling the property. See Tenth Circuit Pattern Jury 

Instruction Criminal § 2.77 at 259-60 (2011) (“To take ‘by means of 

intimidation’ is to say or do something in such a way that a person of 

ordinary sensibilities would be fearful of bodily harm.”); accord United 

States v. Ellison, 866 F.3d 32, 37 (1st Cir. 2017) (concluding “that proving 

‘intimidation’ under [the federal bank-robbery statute] requires proving 

that a threat of bodily harm was made”); United States v. Kelley, 412 F.3d 

1240, 1244 (11th Cir. 2005) (stating that “‘intimidation’” under the federal 

bank-robbery statute takes place only if an “‘ordinary person in the teller’s 

 

superseding Supreme Court decision. United States v. Caiba-Antele, 705 

F.3d 1162, 1165 (10th Cir. 2012). Thus, our panel must follow Ontiveros. 
10 

position reasonably could infer a threat of bodily harm’” (quoting United 

States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (per curiam))). 

 Finally, Mr. Ybarra contends that the test for intimidation is 

inherently speculative. Mr. Ybarra forfeited this argument by failing to 

raise it in district court. See United States v. Wright, 848 F.3d 1274, 1280-

81 (10th Cir. 2017), petition for cert. filed, ___ U.S. ___, 138 S. Ct. 115 

(2017). And on appeal, Mr. Ybarra did not ask for plain error review, 

which “‘surely marks the end of the road for an argument for reversal not 

first presented to district court.’” United States v. Lamirand, 669 F.3d 

1091, 1100 n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634 

F.3d 1123, 1127-28 (10th Cir. 2011)). Thus, we decline to consider Mr. 

Ybarra’s new argument. 

IV. Conclusion 

Mr. Ybarra’s prior convictions for federal bank robbery involved 

“the use, attempted use, or threatened use of physical force against the 

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Thus, the district court 

correctly concluded that Mr. Ybarra’s prior convictions involved violent 

felonies as defined under the Elements Clause. These prior convictions 
11 

triggered the statutory 15-year minimum applied, so we affirm the denial 

of relief under § 2255. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge