# United States Court of Appeals

for the Fifth Circuit

No. 19

- 10261

Summ ary Ca le ndar

United States of America,

Plaintiff

— Appellee

,

versus

Blake Taylor,

Defendant

— Appellant

.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18

- CR

- 231

- 1

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before Stewart, Higginson, and Wilson

, Circuit Ju dges

.

Per Curiam: *

Blake Taylor pleaded guilty to one count of attempted bank robbery,

in violation of 18 U.S.C. § 2113(a) and (d), and one count of using, carrying,

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals

Fifth Circuit 

### FILED

June 22, 2023

Lyle W. Cayce

Clerk Case: 19-10261 Document: 00516796872 Page: 1 Date Filed: 06/22/20232 No. 19

- 10261

brandishing, and discharging a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The district court

sentenced him above the guidelines range to a term of 180 months in prison

on the robbery count with a consecutive term of 360 months on the firearm

coun t, and this court affirmed the convictions and sentences. United States

v. Taylor , 844 F. App’x 705, 708

- 10 (5th Cir. 2021), vacated , 142 S. Ct. 2862

(2022). Taylor petitioned the Supreme Court, which granted certiorari,

vacated this court’s judgment, and remanded for further consideration in

light of United States v. Taylor ( Justin Taylor ), 142 S. Ct. 2015 (2022). Taylor

v. United States

, 142 S. Ct. 2862 (2022).

On remand, Taylor presses several arguments against classifying his

attempted bank robbery conviction as a “crime of violence” under

§ 924(c)(3)(A) and maintains that he preserved them by filing a motion to

dismiss. Because the sole argument presented in that motion concerned

§ 924(c)(3)(B), which is not at issue here, this position is untenable, and the

Government is thus correct that our review is for plain error. See Puckett v.

United States , 556 U.S. 129, 135 (2009); United States v. Gomez

- Valle , 828

F.3d 324, 328 (5th Cir. 2016). In any event, our consideratio n of Taylor’s

arguments leads us to conclude that he shows no error, plain or otherwise.

Justin Taylor held that a conviction for attempt to commit robbery in

violation of the Hobbs Act, 18 U.S.C. § 1951(a), cannot serve as a predicate

for conviction under § 924(c) because it does not constitute a “crime of

violence” as defined in § 924(c)(3)(A). 142 S. Ct. at 2020

- 21. To meet that

definition, an offense must necessarily require proof, as an element of the

offense, of the use, attempted use, or threatened u se of force. Id. at 2020

. The only conduct required to support conviction for attempted Hobbs Act

robbery is a substantial step toward completing such a robbery

— an element

that Justin Taylor determined encompasses conduct beyond the scope of

§ 924(c)(3)(A). Id. at 2020

- 21. Case: 19-10261 Document: 00516796872 Page: 2 Date Filed: 06/22/20233 No. 19

- 10261

Some attempt offenses are defined in the same way as attempted

Hobbs Act robbery. See United States v. Resendiz

- Ponce , 549 U.S. 102, 106

-

07 (2007). In this circuit, attempted bank robbery is not one of them. This

court has instead held that § 2113(a) defines attempted and completed bank

robbery as forms of a single offense that necessarily involves the actual use of

force or intimidation. See United States v. Bellew

, 369 F.3d 450, 454 (5th Cir.

2004). Further, we have held that this offense constitutes a crime of violence

as defined in § 924(c)(3)(A) and elsewhere because even its least culpable

form “must involve at least an implicit threat to use force.” United States v.

Brewer

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

, 937 F.3d

546, 552

- 53 (5th Cir. 2019).

Under this court’s rule of orderliness, panels are bound by circuit

precedent in the absence of an intervening change in the law such as a

“contrary or superseding decision by this court sitting en banc or by the

United States Supreme Court.” United States v. Setser , 607 F.3d 128, 131 (5th

Cir. 2010) (internal quotation marks and citation omitted). To qualify as an

intervening chang e in the law, a decision must “unequivocally overrule prior

precedent; mere illumination of a case is insufficient.” United States v. Petras

, 879 F.3d 155, 164 (5th Cir. 2018) (internal quotation marks and citations

omitted).

Taylor does not argue that Bellew

, Brewer , or Pervis have been

overruled, urging instead that aspects of Justin Taylor ’s reasoning are

instructive here. For instance, he suggests this court should adopt a

definition of attempted bank robbery that parallels the definition of attempted

Hobbs Act robbery used in Justin Taylor

. Even if we were to credit such

arguments, we would not be justified in accepting them as a sufficient basis

for disregarding our precedent. See Petras , 879 F.3d at 164; Jacobs v. Nat’l

D rug Intelligence Ctr. , 548 F.3d 375, 377

- 78 (5th Cir. 2008). Case: 19-10261 Document: 00516796872 Page: 3 Date Filed: 06/22/20234 No. 19

- 10261

The remaining contentions that Taylor advances do not rely on Justin

Taylor at all. First, he argues that the two paragraphs of § 2113(a) are

indivisible

— a theory this court rejected in United States v. Butler , 949 F.3d

230, 234

- 36 (5th Cir. 2020). Second, Taylor contends that convictions under

§ 2113(a) and (d) do not qualify as crimes of violence. We have long held that

violation of § 2113(a) is a lesser

- included offense of a § 2113(d) violation. See

Burger v. United States

, 454 F.2d 723, 724 (5th Cir. 1972) (per curiam)

. Thus,

as Taylor’s arguments against classifying § 2113(a) robbery as a crime of

violence are unavailing, this argument must fail as well.

For these reasons, Taylor fails to show that the district court erred by

viewing his conviction under § 2113(a) and (d) as a crime of violence for the

purpose of § 924(c). He does not suggest that Justin Taylor provides any

basis for questioning our prior analysis of the remaining issues in this appeal,

and we discern none. See Taylor , 844 F. App’x 708

- 10. Accordingly, we again

AFFIRM the judgment of the district court. Case: 19-10261 Document: 00516796872 Page: 4 Date Filed: 06/22/2023