UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. MARTIN MICHAEL YBARRA, De fendant - 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. Yb arra had three prio r 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 ar gument would not ma terially 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 judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But our order and judgment may be ci ted 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 Court2 With the finding of thr ee 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 minimu m 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 Ac t, Mr. Ybarra would be subject to a fifteen-year minimum sentence if he had three or more past convictions for violent fe lonies. The issue here is whether Mr. Ybarra’s three prior convictions fo r federal bank robbery i nvolved violent felonies. The Armed Career Criminal Act cont ains 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: Th e conviction is for burglary, arson, extortion, or anothe r crime involving the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). 3. Residual Clause: The convictio n otherwise involved conduct creating a serious potential risk of physical injury to another person. Id

. The parties agree that Mr. Ybarra’s convicti ons for federal bank robbery did not satisfy the Enumerat ed-Offense Clause. And the Supreme3 Court held in Johnson v. United States that the Residual Clause is unconstitutionally vagu e. 135 S. Ct. 2551, 2556- 63 (2015). Mr. Ybarra invokes Johnson , arguing that the fifteen-y ear minimum is no longer applicable because his convictions for federal bank robbery would constitute violent feloni es only under the unconstitutiona l Residual Clause. But the district court re lied on a different clause, the Elements Clause, concluding that it app lied to federal bank robbery. We agree. II. Standard of Review The district court denied Mr. Ybar ra’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 fel ony under the El ements Clause. United States v. Hammons , 862 F.3d 1052, 1054 (10th Cir. 2017). Under the categorical approach, we compare the elements of federa l 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 elem ent 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 convic ted under the s ection 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 savi ngs and loan association . . . [s]hall be fined under this title or impris oned 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 inti midation” requires “the use, attempted use, or threatened use of physical force agains t the person of another.” 18 U.S.C. §§ 924(e)(2)(B)(i), 2113(a). A. The Bank-Robbery Statute and th e 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 elemen t the use, attempted use, or threatened use of physi cal force against the pers on of another.’” 678 F. App’x 643, 645 (10th Cir. 2017) ( unpublished) (quotin g 18 U.S.C. § 924(e)(2)(B)(i)). McGuire was based on the senten cing guidelines rather than the Armed Career Criminal Ac t. But case law in terpreting the guideline term “Crime of Violence” is persuasive in interpreting the phrase “Violent Felony” und er 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 no t only our unpublis hed opinion in McGuire but also the consensus of other federal appellate courts. Nine circuit courts have considered whether the federal bank-robbery stat ute (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) (p er 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 (8 th 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 Ci r. 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 cas e law in other circuits, we conclude that the federal bank-r obbery statute requ ires “the use, attempted use, or threatened use of physical force agains t the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).6 B. Mr. Ybarra’s Arguments Mr. Ybarra presents four argument s against characterizing his federal bank-robbery convictions as violent felonies: 1. Federal bank robbery does not re quire proof of violent physical force because the robbery can be accomplished with de minimis force or no force at all. 2. “Intimidation” does not inherent ly include a thr eat 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-r obbery statute can be violated without th e necessary degree of phys ical force. Under the Armed Career Criminal Act, “physical fo rce” means “ violent force—that is, force capable of causing physical pa in or injury to another person.” Johnson v. United States , 559 U.S. 133, 140 (2010) (e mphasis in original). Invoking this definition, Mr. Ybarra argues that the federal bank-robbery statute does not require viol ent force. We disagree. In determining whether the fede ral 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 least7 culpable conduct is intimidation. See United States v. Brewer , 848 F.3d 711, 715 (5th Cir. 2017). Thus, we must decide whet her robbery by intimidation requires the statutor ily mandated degree of force. The Tenth Circuit’ s pattern jury instructions explain that to take “by means of intimidation” requ ires the defendant to sa y or do something that would cause “a person of ordinary sensibil ities [to] be f earful of bodily harm.” Tenth Circuit Pattern Jury Instruction Criminal § 2.77 at 259-60 (2011). And we have said that taking by intimidation re quires conduct and words “reasonably calculate d 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 statut e 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 (10t h Cir. 1980) (stating th at bank robbery by intimidation is “‘unambiguously da ngerous to othe rs’” (quoting United States v. DeLeo , 422 F.2d 487, 491 (1st Cir. 1970 ))). In these circumstances, we conclude that federal bank robber y has as an element the use, attempted use, or threat ened use of phy sical force.8 Second, Mr. Ybarra complains that bank robbery by intimidation focuses on bodily harm rather than on phy sical force. See Tenth Circuit Pattern Jury In struction Criminal § 2.77 at 259-60 (2011) (d efining “take by intimidation” to requir e the defendant to say or do something to cause “a person of ordinary sensibilities [to] be fear ful of bodily harm”). Mr. Ybarra faults the district court for equating the fear of bodily harm with the required use of violent physica l force. In our view, however, the district court’s approach was consiste nt with the Supreme Court’s approach in United States v. Castleman , 134 S. Ct. 1405 (2014). There, the Supreme Court explained that “t he knowing or intentional causation of bodily in jury 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) (N o. 17-8367). In Ontiveros , we explained that Castleman had “specifically rejected the contention that ‘one can cause bodily injury without the use of phy sical 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 Car eer Criminal Act. Id. at 538. Under Ontiveros, we reject Mr. Ybarra’s argu ment 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 decide d. But we are obligated to follow Ontiveros in the absence of en banc consideration or a9 Third, Mr. Ybarra observ es that a crime of violen ce 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 obse rvation, Mr. Ybarra opposes characterization of federal bank robbery as a cr ime of violence, arguing that physical forc e need not be directed at another person. We disagree. The federal bank-robbery statute requires that th e 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 in timidation) necessarily en tails a threat of bodily harm to the person cont rolling 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 someth ing 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 (1 st Cir. 2017) (concl uding “that proving ‘intimidation’ under [the federal bank-robbery statute] requires proving that a threat of bod ily harm was made”); United States v. Kelley , 412 F.3d 1240, 1244 (11th Cir. 2005) (stating that “‘intimi dation’” under the federal bank-robbery statute takes place only if an “‘ordi nary 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 th reat of bodily harm’” (quoting United States v. Cornillie , 92 F.3d 1108, 1110 (11th Ci r. 1996) (per curiam))). Finally, Mr. Ybarra contends th at the test for intimidation is inherently speculative. Mr . Ybarra forfeited this ar gument 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 ro ad for an argument for reversal not first presented to district court.’” United States v. Lamirand , 669 F.3d 1091, 1100 n.7 (10th Ci r. 2012) (quoting Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127-28 (10th Ci r. 2011)). Thus, we decl ine to consider Mr. Ybarra’s new argument. IV. Conclusion Mr. Ybarra’s prior conv ictions for federal ba nk robbery involved “the use, attempted use, or threaten ed use of physical force against the person of another.” 18 U. S.C. § 924(e)(2)(B)(i). Th us, the district court correctly concluded that Mr. Ybarra’s prior convictions involved violent felonies as defined under the Elemen ts Clause. These pr ior convictions11 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