NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4378

_____________

UNITED STATES OF AMERICA

v.

ANDRE S. LEWIS,

 Appellant

______________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-15-cr-00368-001)

District Judge: Hon. Legrome D. Davis

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

October 2, 2017

______________

Before: SHWARTZ and ROTH, Circuit Judges,

and PAPPERT, District Judge.

*

(Filed: January 8, 2018)

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OPINION**

______________

SHWARTZ, Circuit Judge.

 * Honorable Gerald J. Pappert, United States District Judge for the Eastern District 

of Pennsylvania, sitting by designation. ** This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

Andre Lewis pleaded guilty to one count of unarmed bank robbery and two counts 

of attempted unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), and was 

sentenced pursuant to the career offender guideline, U.S.S.G. § 4B1.1. Because Lewis’s

bank robbery convictions and prior conviction for aggravated assault under 18 Pa. Cons. 

Stat. § 2702(a)(4) are crimes of violence under § 4B1.1, and because he also had a prior 

drug conviction, he was properly sentenced under the career offender guideline, and we 

will affirm.

I

In June 2015, Lewis entered a Wells Fargo bank in Philadelphia, displayed the 

handle of a firearm, and passed the teller a note stating: “I know where you live. Dn’t 

make any funny movements or us an your coworkers are fuckin dead hand over cash.” 

The teller handed Lewis $1,740.25, and Lewis left the bank. Over the next month, Lewis 

twice attempted to rob another Wells Fargo bank using similar demand notes but left with 

no money. Lewis pleaded guilty to bank robbery and attempted bank robbery in violation 

of § 2113(a). 

The United States Probation Office prepared a Presentence Investigation Report 

(“PSR”) recommending that Lewis be sentenced as a career offender under § 4B1.1.

Under that provision, a defendant qualifies for the career offender enhancement if, among 

other things, he is convicted of either a “controlled substance offense” or a “crime of 

violence” and has at least two prior convictions falling within those two categories.

U.S.S.G. § 4B1.1(a). According to the PSR, Lewis was convicted of bank robbery, 
3

which the PSR stated was a crime of violence, and had prior drug and aggravated assault 

convictions. 

Lewis objected to the career offender designation on the ground that his prior 

aggravated assault conviction did not qualify as a crime of violence. The District Court 

rejected that argument, departed downward from the applicable career offender 

Guidelines range of 151 to 181 months, and sentenced Lewis to 120 months’

imprisonment followed by three years of supervised release. Lewis appeals.

II1

Lewis argues that his unarmed bank robbery conviction and his prior Pennsylvania 

aggravated assault conviction are not “crime[s] of violence” under U.S.S.G. § 4B1.2, and 

therefore, it was error to sentence him as a career offender.

2

 

“Whether a . . . conviction constitutes a crime of violence for purposes of the 

career offender Guideline is a question of law over which we exercise plenary review.” 

United States v. Brown, 765 F.3d 185, 188 (3d Cir. 2014) (internal quotation marks 

omitted). However, where a defendant fails to preserve his objection in the District 

Court, we review for plain error.

3

 United States v. Russell, 564 F.3d 200, 203 (3d Cir. 

 1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction under 28 U.S.C. §§ 1291 and 3742. 

2 Lewis does not dispute that his drug conviction is a qualifying offense under the 

career offender provision. 

3 To establish plain error, Lewis must demonstrate: (1) an error; (2) that is clear or 

obvious; and (3) that affects his substantial rights. Gov’t of the V.I. v. Mills, 821 F.3d 

448, 456 (3d Cir. 2016). If all three prongs are satisfied, then our Court has discretion to 

remedy the error “only if the error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. at 457 (internal quotation marks and alteration

omitted).
4

2009); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may 

be considered even though it was not brought to the court’s attention.”). In the District 

Court, Lewis argued only that his prior aggravated assault conviction is not a crime of 

violence under the career offender provision. Thus, the District Court’s application of the 

career offender sentencing guideline is subject to plain error review with respect to 

Lewis’s bank robbery conviction and plenary review with respect to Lewis’s aggravated 

assault conviction.

Regardless of the standard of review, each issue raised on appeal requires us to 

consider whether a particular offense constitutes a crime of violence under § 4B1.2. A

“crime of violence” is defined as “any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year,” that “has as an element the use, attempted 

use, or threatened use of physical force against the person of another.” 4

 U.S.S.G. 

§ 4B1.2(a)(1). “[P]hysical force” under § 4B1.2(a)(1) means “violent force,” which is a 

“force capable of causing physical pain or injury to another person.” Johnson v. United 

States, 559 U.S. 133, 140 (2010) (interpreting “physical force” as used in the Armed 

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i), whose language is identical 

to § 4B1.2(a)(1)).5

 In addition, the use of physical force must be knowing or intentional;

 4 The word “use” in the force clause of § 4B1.2(a)(1) means “the intentional 

employment of . . . force, generally to obtain some end.” Tran v. Gonzales, 414 F.3d 

464, 470 (3d Cir. 2005). 5 Although Johnson involved a sentencing enhancement under the ACCA, our 

Court has extended that analysis to § 4B1.2. E.g., United States v. Chapman, 866 F.3d 

129, 132 n.3 (3d Cir. 2017); Brown, 765 F.3d at 189 n.2; United States v. Hopkins, 577 

F.3d 507, 511 (3d Cir. 2009).
5

recklessness or gross negligence are insufficient. United States v. Chapman, 866 F.3d 

129, 133-36 (3d Cir. 2017); United States v. Otero, 502 F.3d 331, 335 (3d Cir. 2007).

To determine whether the crime of conviction is a crime of violence, courts 

typically apply the categorical approach, which compares the elements of the statute 

under which the defendant was convicted with the definition of a crime of violence.

Chapman, 866 F.3d at 133-34 (citing Descamps v. United States, 133 S. Ct. 2276, 2281 

(2013)). Specifically, we “ask whether ‘the use or threat of physical force’ is an element 

of the [statute]” under which the defendant was convicted. Id. at *4. This requires us to 

“ascertain the least culpable conduct hypothetically necessary to sustain a conviction 

under the statute.” United States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (internal 

quotation marks omitted). In making this determination, “we look only to the statutory 

definitions—i.e., the elements—of a defendant’s . . . offense, and not to the particular 

facts underlying the conviction.”6 Chapman, 866 F.3d at 134 (internal quotation marks, 

alterations, and emphasis omitted). That crime is then compared to the crime of violence 

definition described above. Id. at 133-36.

7

 6 If a statute is divisible such that it “list[s] elements in the alternative, and thereby 

define[s] multiple crimes,” then courts use the modified categorical approach, which 

allows a court to consider certain limited documents to determine “what crime, with what 

elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249 

(2016). 

7 Our concurring colleague, relying on United States v. Robinson, 844 F.3d 137, 

141 (3d Cir. 2016), says that we need not resort to the categorical approach to determine 

whether the instant conviction (as opposed to a prior conviction) constitutes a crime of 

violence because “the record of all necessary facts [concerning the offense] are before the 

District Court.” After Robinson, however, our Court issued Chapman, in which it 

applied the categorical approach to determine whether the instant offense there 

constituted a crime of violence under § 4B1.2, see Chapman, 866 F.3d at 131-34, even 
6

With this background, we will consider whether unarmed bank robbery under 

§ 2113(a) and aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(4) are crimes of 

violence.

 

though the Court had the facts before it and could have reviewed the record to evaluate 

whether the offense was a crime of violence. We are bound to follow Chapman and not 

Robinson. First, like this case, Chapman assessed whether a conviction constituted a 

crime of violence under the career offender sentencing enhancement and the conviction 

was based on a plea rather than a trial. In contrast, Robinson concerned whether a posttrial conviction for Hobbs Act robbery qualified as a crime of violence for purposes of a 

conviction under 18 U.S.C. § 924(c), which punishes brandishing a firearm during the 

commission of a crime of violence. 844 F.3d at 139-40. Second, the Chapman panel was 

aware of Robinson and chose not to apply it, see, e.g., 866 F.3d at 136 (Jordan, J., 

concurring) (citing Robinson). Moreover, four other circuit courts have similarly applied 

the categorical or modified categorical approach to assess whether an instant offense of 

federal bank robbery was a crime of violence under the career offender sentencing 

enhancement. See United States v. Harper 869 F.3d 624, 626-27 (8th Cir. 2007); United 

States v. Ellison, 866 F.3d 32, (1st Cir. 2017); United States v. Brewer, 848 F.3d 711 (5th 

Cir. 2017); United States v. McBride, 826 F.3d 293 (6th Cir. 2016). As a result, we have 

applied Chapman because that is what the precedent requires.

Our application of the precedent, however, does not mean that our concurring 

colleague and the courts whose opinions she cites lack a well-founded concern. In fact, 

we agree with the observations of these jurists concerning the practicalities (or put 

differently, the lack of reality) sometimes associated with the categorical approach. 

Thus, contrary to the concurrence’s characterization, we are not closing our eyes to the 

facts or even the well-placed criticism of the categorical approach. Rather, we are

applying the approach required by the current, albeit criticized, precedent. 

In any event, whether or not we apply the categorical approach, the result is the 

same because Lewis’s unarmed bank robbery conviction constituted a crime of violence 

under the enumerated offenses clause of § 4B1.2. In the context of the Sentencing 

Guidelines, “generic federal robbery is defined . . . without the requirement of more than 

de minimis force.” United States v. Graves, __ F.3d __, 2017 WL ______ (3d Cir. Dec. 

13, 2017). Robbery by intimidation under § 2113(a) requires at least de minimis force 

and therefore is consistent with the generic crime of robbery referenced in § 4B1.2’s 

enumerated offenses clause. For this additional reason, it qualifies as a crime of violence.
7

III

A

Section 2113(a) provides, in relevant part: 

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. . . . 

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

both.

18 U.S.C. § 2113(a). The elements of the crime are: “[1] taking, or attempting to take, 

[2] anything of value, [3] by force and violence, by intimidation, or by extortion” from a 

financial institution whose accounts are insured by the Federal Deposit Insurance 

Corporation. United States v. Askari, 140 F.3d 536, 548 (3d Cir. 1998) (en banc), 

vacated and superseded on other grounds on reconsideration, 159 F.3d 774 (3d Cir. 

1998); see also 18 U.S.C. § 2113(f) (defining “bank”). Thus, § 2113(a) bank robbery is 

committed “by force and violence, or by intimidation” or by “extortion.” The least 

culpable conduct for which a defendant can be convicted under the statute is taking 

money or property “by intimidation.” We must therefore assess whether intimidation 

necessarily includes a use of physical force, meaning force “capable of causing physical 

pain or injury to another person,” Johnson, 559 U.S. at 140, and if so, whether the 

intimidation must be intentional or knowing. 

To intimidate under § 2113(a) means to cause fear of bodily injury. Askari, 140 

F.3d at 541; see also United States v. Ellison, 866 F.3d 32, 37 (1st Cir. 2017) (concluding 
8

that “proving ‘intimidation’ under § 2113(a) requires proving that a threat of bodily harm 

was made”); United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016) (observing that 

“[r]obbery by intimidation involves the threat to do immediate bodily harm”) (alterations, 

internal quotation marks, and emphasis omitted). Causing a fear of bodily injury in the 

context of a bank robbery necessarily requires a threat of physical force. As the Court of 

Appeals for the Fifth Circuit recently observed, “[t]he kind of intimidation that suffices to 

put a victim in fear of bodily injury during the course of a bank robbery . . . is the very 

sort of threat of immediate, destructive, and violent force required to satisfy the crime of 

violence definition.” United States v. Brewer, 848 F.3d 711, 715 (5th Cir. 2017) (internal 

quotation marks omitted); cf. Chapman, 866 F.3d at 135 (concluding that a threat “to 

injure” another “necessarily threatens the use of physical force”). Thus, robbery by 

intimidation under § 2113(a) necessarily includes the use or threatened use of physical 

force.

8

 Brewer, 848 F.3d at 715-16; Ellison, 866 F.3d at 35-38; McBride, 826 F.3d at 

296; United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). Therefore, § 2113(a)’s 

intimidation element satisfies § 4B1.2(a)(1)’s use or threatened use of force requirement.

 8 Lewis’s argument that intimidation in the form of a threat to cause bodily injury 

can occur without the use of physical force, such as through a threat to release poison or a 

hazardous substance, was rejected in United States v. Castleman, where the Supreme 

Court stated that poisoning does constitute a “use or attempted use of physical force” 

even though the force is applied indirectly. 134 S. Ct. 1405, 1415 (2014) (explaining that 

the use of force “is the act of employing poison knowingly as a device to cause physical 

harm” and that the fact “the harm occurs indirectly, rather than directly (as with a kick or 

punch), does not matter”); see also Ellison, 866 F.3d at 37-38 (rejecting same argument 

raised by Lewis). Although Castleman involved the application of the force clause in 18 

U.S.C. § 921(a)(33)(A)(ii), our Court has explicitly extended Castleman’s analysis of the 

use of physical force to the use of physical force clause under § 4B1.2(a)(1). Chapman, 

866 F.3d at 132-33; see also Ellison, 866 F.3d at 37-38 (same). 
9

Section 2113(a) also satisfies § 4B1.2(a)(1)’s scienter requirement even though 

§ 2113(a) lacks explicit scienter language. The Supreme Court has held that § 2113(a) 

“requir[es] 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 intimidation).” Carter v. United States, 530 U.S. 255, 268 (2000) (emphasis 

omitted). Thus, § 2113(a) has an implicit scienter requirement of intent or knowledge as 

to the taking of property by intimidation, which forecloses Lewis’s argument that a 

defendant could be convicted under that statute for mere reckless or negligent conduct. 

See Ellison, 866 F.3d at 38-40 (noting Carter requires proof defendant knowingly took 

property and knew that his actions were objectively intimidating); McNeal, 818 F.3d at 

155-56 (same); McBride, 826 F.3d at 296 (observing Carter requires prosecution to prove 

that defendant “at least kn[e]w that his actions would create the impression in an ordinary 

person that resistance would be met by force”). 

Therefore, because federal bank robbery by intimidation necessarily involves the 

use or threatened use of physical force and proof of the required mental state, it qualifies 

as a crime of violence within the meaning of § 4B1.2,9 see Ellison, 866 F.3d at 35 

(holding that 18 U.S.C. § 2113(a) is a crime of violence under the force clause of

 9 Even before Johnson’s interpretation of “physical force” under the ACCA, courts 

of appeal held that § 2113(a) bank robbery was a crime of violence under § 4B1.2. See

United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992); United States v. Jones, 932 

F.2d 624, 625 (7th Cir. 1991); United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990); 

United States v. Davis, 915 F.2d 132, 133 (4th Cir. 1990); United States v. Maddalena, 

893 F.2d 815, 819 (6th Cir. 1989). 
10

§ 4B1.2); Brewer, 848 F.3d at 716 (same); McBride, 826 F.3d at 295-96 (same), and the 

District Court did not err in so finding.

B

Lewis also argues that the District Court erred in finding that his prior conviction 

for aggravated assault under 18 Pa. Cons. Stat. § 2702(a)(4) constitutes a crime of 

violence. To evaluate his claim, we must determine whether the elements of § 2702(a)(4) 

necessarily include a use of physical force under § 4B1.2(a)(1)’s force clause and proof 

of intent or knowledge.10

Section 2702(a)(4) punishes a person who “attempts to cause or intentionally or 

knowingly causes bodily injury to another with a deadly weapon.” 18 Pa. Cons. Stat. 

§ 2702(a)(4). The provision explicitly requires intent or knowledge, thereby satisfying 

the force clause’s required mental state. See Chapman, 866 F.3d at 135-36; Otero, 502 

F.3d at 335. Thus, we must determine whether § 2702(a)(4)’s element of “caus[ing]

bodily injury with a deadly weapon” requires use of physical force under § 4B1.2(a)(1), 

meaning a “violent force” that is “capable of causing physical pain or injury to another 

person,” Johnson, 559 U.S. at 140 (emphasis omitted). 

To determine whether the crime includes that sort of violent force, we must 

examine two terms in the statute: bodily injury and deadly weapon. Pennsylvania defines 

“[b]odily injury” to mean an “impairment of physical condition or substantial pain,” and 

 10 The parties do not dispute that Pennsylvania’s aggravated assault statute is 

divisible, meaning the modified categorical approach applies, and that Lewis was 

convicted under 18 Pa. Cons. Stat. § 2702(a)(4). 
11

“[d]eadly weapon” to include “any . . . device or instrumentality which, in the manner in 

which it is used or intended to be used, is calculated or likely to produce death or serious 

bodily injury.” 18 Pa. Cons. Stat. § 2301. Aggravated assault under § 2702(a)(4) 

therefore requires intentional or knowing conduct sufficient to cause bodily “impairment” 

or “substantial pain” by means of a device that is “calculated or likely to produce death or 

serious injury.” Because “it is impossible to cause bodily injury without applying force,” 

Castleman, 134 S. Ct. at 1415, conduct causing bodily “impairment” or “substantial pain” 

necessarily involves a use of a force. Moreover, the force under § 2702(a)(4) necessarily 

includes physical force within the meaning of § 4B1.2(a)(1) because § 2702(a)(4) 

requires use of an object “calculated or likely to produce death or serious injury.” Hence,

the offense requires proof of “violent force” “capable of causing physical pain or injury,” 

required by Johnson, 559 U.S. at 140 (emphasis omitted). United States v. Whindleton, 

797 F.3d 105, 114 (1st Cir. 2015) (explaining the dangerous weapon element “imports 

the violent force required by Johnson into the otherwise overbroad simple assault 

statute”); see also Johnson, 559 U.S. at 140-41 (suggesting that the ACCA’s force 

element would be satisfied by crimes “characterized by extreme physical force, such as 

murder, forcible rape, and assault and battery with a dangerous weapon”) (internal 

quotation marks omitted).

11 As a result, aggravated assault under 18 Pa. Cons. Stat. § 

 11 Lewis’s reliance on Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa. Super. 

Ct. 2005), which affirmed the aggravated assault conviction of a mother who neglected

and starved her child to death is misplaced because that case involves a different 

provision of Pennsylvania’s aggravated assault statute. Moreover, our Court has rejected 

the argument that causing bodily injury or death does not necessarily require a use of 

violent force. Chapman, 866 F.3d at 135-36.
12

2702(a)(4) qualifies as a crime of violence under § 4B1.2(a)(1), and the District Court 

was correct in so finding. 

IV

For the foregoing reasons, Lewis was properly designated a career offender under 

§ 4B1.1, and we will affirm.