United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2019 Decided January 7, 2020 

No. 18-3053 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

BRIAN ERIC CARR, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:02-cr-00106-1) 

A.J. Kramer, Federal Public Defender, argued the cause 

and filed the briefs for appellant. 

Elizabeth Gabriel, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Jessie K. Liu, 

U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy 

Curt, Assistant U.S. Attorneys. 

Before: HENDERSON and RAO, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge RAO. 
2 

RAO, Circuit Judge: After Brian Carr was convicted under 

the federal bank robbery statute, see 18 U.S.C. § 2113(a), the 

district court elevated his sentencing range on the grounds that 

he was a “career offender.” See U.S. Sentencing Guidelines 

Manual § 4B1.1 (2002). To reach that conclusion, the judge 

found that two prior convictions under the same bank robbery 

statute were “crime[s] of violence” under the Guidelines. See 

id. § 4B1.2(a). At the time, the Guidelines’ definition of a 

crime of violence was nearly identical to the definition of 

“violent felony” under the Armed Career Criminal Act 

(ACCA). See 18 U.S.C. § 924(e)(2)(B). While Carr was 

serving his sentence, the Supreme Court struck down one part 

of ACCA’s definition of a violent felony—a provision 

commonly known as the residual clause. See Johnson v. United 

States, 135 S. Ct. 2551 (2015). Carr filed a motion under 28 

U.S.C. § 2255 to vacate or correct his sentence, arguing that the 

Guidelines’ identical residual clause is also unconstitutional. 

We need not reach Carr’s constitutional objection, because 

in 2003, when Carr was sentenced, a prior conviction could be 

a crime of violence under either the residual clause or the 

Guidelines’ independent elements clause, which defines a 

crime of violence as one that “has as an element the use, 

attempted use, or threatened use of physical force.” See 

U.S.S.G. § 4B1.2(a)(1). The federal bank robbery statute 

requires proof that a defendant took property “by force and 

violence, or by intimidation.” See 18 U.S.C. § 2113(a). To 

satisfy this requirement, the defendant must have at least 

knowingly threatened someone with physical force (or have 

attempted to do so), which squarely places the offense within 

the Guidelines’ elements clause. We therefore affirm the 

district court’s holding that Carr’s prior bank robbery 

convictions were crimes of violence and affirm the denial of 

Carr’s motion for post-conviction relief. 
3 

I. 

In 2002, Carr walked into a bank in downtown 

Washington, D.C., and gave the teller a note demanding 

money. United States v. Carr, 373 F.3d 1350, 1352 (D.C. Cir. 

2004). The police arrested him at the scene of the crime and 

later linked him to four other robberies. Id. Carr was then 

indicted and convicted of five counts of bank robbery under 

Section 2113(a). During sentencing, the judge found that two 

prior convictions under the same statute each counted as a 

crime of violence. Those two prior convictions for crimes of 

violence made Carr a career offender, U.S.S.G. § 4B1.1, which 

significantly elevated his sentencing range. At the time of 

Carr’s sentencing, the Guidelines defined a crime of violence 

in part as: 

[A]ny offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that— 

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or 

(2) is burglary of a dwelling, arson, or 

extortion, involves use of explosives, or 

otherwise involves conduct that presents a 

serious potential risk of physical injury to 

another. 

U.S.S.G. § 4B1.2(a). This provision includes two distinct 

definitions that are relevant here. Subsection (1) of this 

definition is the elements clause. The second half of Subsection 

(2)—“or otherwise involves conduct that presents a serious 

potential risk of physical injury to another”—was the residual 
4 

clause.1

 When Carr was sentenced, however, the judge did not 

specify whether he relied on the Guidelines’ residual clause or 

the elements clause in finding that the prior bank robbery 

convictions were crimes of violence.2 

Without the career offender enhancement, Carr would 

have had a Guidelines range of 140 to 175 months. After the 

enhancement, Carr’s Guidelines range was 210 to 262 months. 

Carr appealed, and this court affirmed. See Carr, 373 F.3d 

1350. In 2005, Carr brought his first motion to vacate his 

sentence under Section 2255. See Memorandum, United States 

v. Carr (D.D.C. Feb. 21, 2006) (No. 02-106). He raised several 

ineffective assistance of counsel claims, none of which were 

successful. Id.

While Carr was serving his sentence, the Supreme Court 

decided Johnson, which held the residual clause of ACCA’s 

definition of a violent felony was void for vagueness in 

violation of the Due Process Clause. 135 S. Ct. 2551. The 

residual clause held unconstitutional in Johnson exactly 

mirrors the residual clause defining a crime of violence in the 

Sentencing Guidelines. See In re Sealed Case, 548 F.3d 1085, 

1

 The Sentencing Commission removed the residual clause’s 

definition of a crime of violence after Johnson held that ACCA’s 

identical residual clause was unconstitutional. See U.S. Sentencing 

Commission: Supplement to the 2015 Guidelines Manual at 7, 10 

(Aug. 1, 2016).

2

 This was a common practice before the Supreme Court’s ruling in 

Johnson. See United States v. Booker, 240 F. Supp. 3d 164, 168 

(D.D.C. 2017) (“[T]here was no practical reason for judges to make 

this distinction at sentencing prior to June 26, 2015, when the 

Supreme Court decided that the residual clause was void for 

vagueness.”). 
5 

1089 (D.C. Cir. 2008) (explaining that “we apply the ACCA 

standard to determine whether an offense qualifies as a crime 

of violence under section 4B1.2”). 

Carr sought leave to file a second Section 2255 motion, 

arguing that the residual clause that was once part of the 

Guidelines’ definition of a crime of violence was 

unconstitutionally vague under the reasoning of Johnson. This 

court gave Carr permission to file the second motion because 

he had “made a prima facie showing that his claim relies on a 

new, previously unavailable rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme 

Court.” The district court below denied Carr’s second 

Section 2255 motion because, regardless of whether the 

residual clause was unconstitutional, his prior convictions for 

bank robbery were crimes of violence under the elements 

clause of the Sentencing Guidelines. United States v. Carr, 314 

F. Supp. 3d 272, 283 (D.D.C. 2018).3

3

 Because we hold that Carr’s convictions were crimes of violence 

under the Guidelines’ elements clause, we do not address whether 

the Guidelines’ residual clause was unconstitutional under Johnson

or whether defendants can bring such a challenge under Section 

2255. We note the Supreme Court has left open the question of 

whether a defendant who was sentenced under the Guidelines’ 

residual clause when it was mandatory can now bring a successful 

motion under Section 2255. See Beckles v. United States, 137 S. Ct. 

886, 896 (2017) (“We hold only that the advisory Sentencing 

Guidelines ... are not subject to a challenge under the void-forvagueness doctrine.”). The circuits have split over this same 

question. Compare Cross v. United States, 892 F.3d 288, 307 (7th 

Cir. 2018) (granting a Section 2255 motion in light of Johnson), with

United States v. London, 937 F.3d 502, 509 (5th Cir. 2019) (holding 

that such motions are untimely); Russo v. United States, 902 F.3d 

880, 882–84 (8th Cir. 2018) (same); United States v. Green, 898 F.3d 

315, 317–23 (3d Cir. 2018) (same); United States v. Brown, 868 F.3d 
6 

II. 

We review the denial of a Section 2255 motion to vacate a 

sentence de novo. United States v. Palmer, 296 F.3d 1135, 

1141 (D.C. Cir. 2002). Carr’s motion challenges his sentence 

on the grounds that the residual clause’s definition of a crime 

of violence was unconstitutional. On appeal, Carr focuses 

almost exclusively on disputing the district court’s conclusion 

that bank robbery constitutes a crime of violence under the 

elements clause, whether or not the residual clause was 

unconstitutional. Because the sentencing court did not specify 

whether Carr’s convictions were crimes of violence under the 

residual clause or the elements clause, we may uphold his 

designation as a career offender if his prior bank robbery 

convictions meet either definition. Therefore, we need not 

reach Carr’s constitutional objection to the residual clause if 

bank robbery under Section 2113(a) fits within the elements 

clause’s definition of a crime of violence. 

Thus, we start with the question of whether bank robbery 

“has as an element the use, attempted use, or threatened use of 

physical force.” U.S.S.G. § 4B1.2(a)(1). To answer that 

question we apply the “categorical approach,” United States v. 

Brown, 892 F.3d 385, 402 (D.C. Cir. 2018), which means that 

we view the crime “in terms of how the law defines the offense 

and not in terms of how an individual offender might have 

committed it on a particular occasion.” Begay v. United States, 

553 U.S. 137, 141 (2008). More specifically, we must ask 

whether “the least of th[e] acts criminalized ... are 

297, 301 (4th Cir. 2017) (same); Raybon v. United States, 867 F.3d 

625, 630 (6th Cir. 2017) (same); United States v. Pullen, 913 F.3d 

1270, 1280–85 (10th Cir. 2019) (holding that a similar request 

constituted an impermissible second Section 2255 motion); In re 

Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (same). 
7 

encompassed by the generic federal offense.” Moncrieffe v. 

Holder, 569 U.S. 184, 191 (2013) (quotation marks omitted). 

We look “only to the elements of the crime to determine 

whether, by its terms, commission of the crime inherently (i.e., 

categorically) requires the kind of force” that is required under 

Section 4B1.2(a). Brown, 892 F.3d at 402. Every circuit to 

consider the question has held that bank robbery under 

Section 2113(a) meets the requirements for a crime of violence 

under the elements clause.4

 We now join those circuits. 

The least culpable conduct covered by the statute—bank 

robbery “by intimidation”—categorically involves a threat of 

physical force. Moreover, while Carr is correct that crimes of 

negligence cannot count as crimes of violence under the 

elements clause, the federal bank robbery statute requires more 

than mere negligence. Section 2113(a) applies only if a 

defendant took or attempted to take property with knowledge 

that his conduct was objectively intimidating. Federal bank 

robbery thus squarely fits within the elements clause’s 

definition of a crime of violence.5

4 See United States v. McCranie, 889 F.3d 677, 678–81 (10th Cir. 

2018); United States v. Wilson, 880 F.3d 80, 84–85 (3d Cir. 2018); 

United States v. Harper, 869 F.3d 624, 627 (8th Cir. 2017); United 

States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017); United States v. 

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

826 F.3d 293, 295–96 (6th Cir. 2016); 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. McNeal, 818 F.3d 141, 153, 157 

(4th Cir. 2016) (applying ACCA’s identical elements clause). 

5

 Because we hold that Carr’s prior convictions were crimes of 

violence under the elements clause of the Guidelines, we need not 

reach the government’s four procedural arguments presented in the 

alternative. 
8 

A. 

The federal bank robbery statute provides: 

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.6

18 U.S.C. § 2113(a). This statute requires that a person act with 

“force and violence” or “by intimidation.” Because 

intimidation is the least culpable conduct covered by the 

statute, we must ask whether robbery “by intimidation” 

necessarily involves a threat of physical force such that it 

counts as a crime of violence under the Guidelines’ elements 

clause. In the ACCA context, the Supreme Court has held that 

“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 omitted). 

We agree with our fellow circuits that Section 2113(a) 

requires a threat of physical force because it applies only to 

conduct “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. McCranie, 889 F.3d 677, 680 (10th Cir. 

6 The same subsection includes a second paragraph making it a crime 

to enter a bank with the intent to commit a felony. See 18 U.S.C. 

§ 2113(a). Only the first paragraph is at issue in this case. 
9 

2018) (quotation marks omitted); United States v. Jones, 932 

F.2d 624, 625 (7th Cir. 1991) (“Intimidation means the threat 

of force.”). 

While the ordinary meaning of the word “intimidation” is 

arguably broad enough to encompass nonviolent threats, the 

history of common law robbery makes clear that the federal 

bank robbery statute uses the word to refer only to threats of 

violence. Traditionally, the sole difference between the 

common law crimes of robbery and larceny was that robbery 

had an additional element of physical force. See, e.g., 

Stokeling, 139 S. Ct. at 550 (“At common law, an unlawful 

taking was merely larceny unless the crime involved 

‘violence.’”); Pixley v. United States, 692 A.2d 438, 439 (D.C. 

1997) (one element of “robbery in the usual common law 

sense” is that the property be taken “using force or violence”); 

People v. Ryan, 88 N.E. 170, 171 (Ill. 1909) (“If a thing of 

value be feloniously taken from the person of another with such 

violence as to occasion a substantial corporal injury, or if it be 

obtained by a violent struggle with the possessor, it is 

‘robbery’; but if the article is taken without any sensible or 

material violence to the person and without any struggle for its 

possession it is merely ‘larceny from the person.’”). 

While physical force has always been the touchstone for 

robbery, it was sufficient at common law for the defendant to 

threaten physical force. Jurists usually used one of two terms 

to describe that threat: “putting in fear” or “intimidation.” See 

4 William Blackstone, Commentaries *243 (“[R]obbery ... is 

the felonious and forcible taking, from the person of another, 

of goods or money to any value, by violence or putting in 

fear.”); Commw. v. Clifford, 62 Mass. 215, 216 (1851) 

(“Robbery, by the common law, is larceny from the person, 

accompanied by violence or by putting in fear.”); United States 

v. Durkee, 25 F. Cas. 941, 942 (C.C.N.D. Cal. 1856) 
10 

(“[R]obbery ... is larceny accompanied by intimidation or 

force.”). 

In the Twentieth Century, many states codified the 

traditional common law elements of robbery, using the word 

“intimidation” to express the requirement of “putting in fear.” 

As one court explained, “Intimidation in the law of robbery 

means putting in fear[.] ... The modern draftsmen have 

changed the words but not the meaning. They employ the 

single word ‘intimidation’, but the meaning is identical.”

United States v. Baker, 129 F. Supp. 684, 685 (S.D. Cal. 1955);

see also Johnson v. State, 57 S.E. 1056, 1056 (Ga. 1907) 

(“[O]ur Penal Code definition [and its use of ‘intimidation’] is 

merely declaratory of the common law.”). No matter which 

term is used, only a threat of physical force is sufficient to make 

out the elements of robbery. See LaFave, 3 SUBST. CRIM. L. 

§ 20.3(d)(2) n. 72 (“[T]he threat must be of immediate use of 

physical force.”); Karl Oakes, 77 CORPUS JURIS SECUNDUM

§ 15 (2019) (explaining that intimidation “results when the 

words or conduct of the accused exercise such domination and 

control over the victim as to overcome the victim’s mind and 

overbear the victim’s will, placing the victim in fear of bodily 

harm” (emphasis added)); United States v. Harris, 844 F.3d 

1260, 1266, 1270 (10th Cir. 2017) (“[C]ommon law robbery 

requires a taking ‘by violence or intimidation.’ ... [W]hether 

by force, or by threats or intimidation, we conclude that 

robbery in Colorado has as an element the use or threatened use 

of physical force against another person.”); Royal v. State, 490 

So. 2d 44, 46 (Fla. 1986) (noting that robbery requires only 

intimidation, but explaining that “[i]t is violence that makes 

robbery an offense of greater atrocity than larceny”); Fleming 

v. Commw., 196 S.E. 696, 697 (Va. 1938) (“The ... fear must 

be of a physical nature.”). 
11 

In 1934, Congress enacted the first federal bank robbery 

statute, which reflected state common law and criminalized 

theft “by force and violence, or by putting in fear.” See ch. 304, 

48 Stat. 783 (1934) (formerly codified at 12 U.S.C. § 588b(a) 

(1946)). In 1948, as part of a recodification, Congress relocated 

criminal statutes from various titles of the United States Code 

into Title 18. See An Act to Revise, Codify, and Enact into 

Positive Law, Title 18 of the United States Code, Pub. L. 80-

772, 62 Stat. 683 (1948). Congress also made changes aimed 

at “[a] clear and uniform style.” H.R. Rep. No. 80-304, at 8 

(1947). The new code included the present day 

Section 2113(a), which criminalizes theft from a bank “by 

intimidation.” Courts have consistently read Section 2113(a)’s 

use of “intimidation” to mean the same thing as “putting in 

fear” in the 1934 statute. See United States v. Higdon, 832 F.2d 

312, 315 (5th Cir. 1987); United States v. Robinson, 527 F.2d 

1170, 1172 n.2 (6th Cir. 1975). Section 2113(a) plainly uses 

language drawn from the classic definition of common law 

robbery, which requires the use or threatened use of force. 

The Guidelines’ elements clause likewise encompasses 

the violence element of common law robbery by requiring “the 

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

U.S.S.G. § 4B1.2(a)(1). The Supreme Court explained that 

ACCA’s identical elements clause was designed to mirror the 

definition of common law robbery. See Stokeling, 139 S. Ct. at 

550–52 (interpreting 18 U.S.C. § 924(e)(2)(B)(i)). The Court 

emphasized that “[i]f a word is obviously transplanted from 

another legal source, whether the common law or other 

legislation, it brings the old soil with it.” Id. at 551 (quoting

Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)). In other words, 

ACCA’s elements clause carries the same force requirement as 

the common law definition. Id. Both Section 2113(a) and the 

Guidelines’ definition of a crime of violence call for the 

amount of force required under the common law definition of 
12 

robbery. “There is no space between” the two provisions. 

Jones, 932 F.2d at 625 (quotation marks omitted). Thus, bank 

robbery readily fits within the Guidelines’ definition of a crime 

of violence in the elements clause. 

Despite the established and longstanding meaning of 

intimidation, Carr has argued that the federal bank robbery 

statute applies to two classes of cases that do not involve the 

requisite amount of force for a crime of violence under the 

Guidelines. First, he emphasizes on appeal that 

Section 2113(a) applies even if the defendant does not make 

his threats explicit. For instance, a thief might hand a teller a 

note that says, “Give me the money,” without mentioning what 

happens if the teller does not. But if Section 2113(a) applies in 

that case, it is only because a reasonable teller could infer that 

the note conveys an implicit threat of violence. See United 

States v. Wilson, 880 F.3d 80, 85 (3d Cir. 2018) (requiring 

conduct such that a teller “reasonably could infer a threat of 

bodily harm”); United States v. Harper, 869 F.3d 624, 626 (8th 

Cir. 2017) (“[B]ank robbery by intimidation requires proof that 

the victim reasonably could infer a threat of bodily harm.” 

(quotation marks omitted)). Whether implicit or explicit, 

Section 2113(a) always requires a threat of physical force. 

Second, Carr emphasized below that a defendant can be 

convicted under Section 2113(a) without threatening physical 

contact. According to Carr, a thief who threatens to poison a 

teller could arguably be convicted under the bank robbery 

statute, but that thief would not have committed a crime of 

violence under the Guidelines because there was no threat of 

physical contact. Yet in an analogous context the Supreme 

Court has rejected the notion that the force requirement is 

satisfied only by physical contact. United States v. Castleman, 

572 U.S. 157 (2014). Relying on ACCA precedent, Castleman

interpreted the term “physical force” in a similar elements 
13 

clause to encompass crimes that can be committed without 

physical contact—for instance, crimes committed with the use 

of poison. Id. at 170. The Court explained that if poison causes 

bodily injury, then the defendant has necessarily used force 

because “[i]t is impossible to cause bodily injury without 

applying force in the common-law sense.” Id. Similarly here, a 

thief who threatened to poison a teller could be convicted under 

Section 2113(a) and that conviction would count as a crime of 

violence because the bodily injury caused by the poison would 

necessarily involve the use of force within the common law 

meaning incorporated by the Guidelines. 

We therefore hold that the least culpable conduct covered 

by the statute—bank robbery “by intimidation”—categorically 

involves a threat of physical force as required by the elements 

clause’s definition of a crime of violence. 

B. 

Next, we address whether federal bank robbery has a 

sufficient mens rea requirement to count as a crime of violence 

under the Sentencing Guidelines. The parties do not dispute 

that a crime of violence under the Guidelines requires more 

than negligence and that a mental state of recklessness or more 

would be sufficient under existing circuit precedent. See United 

States v. Haight, 892 F.3d 1271, 1281 (D.C. Cir. 2018) 

(holding in the ACCA context “that the use of violent force 

includes the reckless use of such force”); see also Carr Br. at 8, 

12; United States Br. at 28–33. 

The government here maintains that the statute requires at 

least recklessness because it requires proof that the defendant 

knew he was intimidating someone. See United States v. 

Bailey, 444 U.S. 394, 404 (1980) (explaining that under 

modern mens rea categorizations, “[t]he different levels in this 

hierarchy are commonly identified, in descending order of 
14 

culpability, as purpose, knowledge, recklessness, and 

negligence”). According to Carr, however, the statute simply 

requires that the government prove negligence—in other 

words, the government must prove the defendant should have 

known there was a substantial risk his conduct was 

intimidating. See ALI, Model Penal Code § 2.02(2)(d) (“A 

person acts negligently with respect to a material element of an 

offense when he should be aware of a substantial and 

unjustifiable risk that the material element exists or will result 

from his conduct.”). 

To evaluate the mens rea requirement in the bank robbery 

statute, we start with Carter v. United States, in which the 

Supreme Court held that Section 2113(a) has a “general intent” 

requirement. 530 U.S. 255, 268 (2000). After first observing 

that Section 2113(a) lacks any explicit mens rea element, the 

Court explained that there is a general “presumption in favor of 

scienter.” Id. That presumption applies, however, only to the 

extent a mens rea requirement “is necessary to separate 

wrongful conduct from ‘otherwise innocent conduct.’” Id. at 

269 (quoting United States v. X-Citement Video, Inc., 513 U.S. 

64, 72 (1994)). The Court reasoned that it is inherently wrong 

to take property by force, regardless of whether one intends to 

steal. Id. at 268–70. The Court therefore drew the line at 

general intent, which it defined as “knowledge with respect to 

the actus reus of the crime (here, the taking of property of 

another by force and violence or intimidation).” Id. at 268. 

Someone who forcefully takes money while sleepwalking does 

not act with general intent because he has no knowledge of 

what he is doing. Id. at 269. On the other hand, the statute does 

not require specific intent to steal and therefore would apply to 

a person who knowingly takes money by force, even if he 

thinks the money is his. Id. at 269–70. He may not have 

intended to steal, but he still had knowledge of the actus reus. 

Id. 
15 

Carter requires that under Section 2113(a) the government 

must prove the defendant knew his conduct was intimidating, 

a standard requiring more than mere negligence. The Court 

stated that a person must know he is “taking [the] property of 

another by ... intimidation.” Id. at 268. Moreover, the 

underlying goal of implicit mens rea requirements is to separate 

wrongful from innocent conduct. Id. at 268–70. As the Court 

explained, a person who forcefully takes property acts 

wrongfully even if it is not his intent to steal. Id. The same 

cannot be said of a person who uses no force and has no 

knowledge that his conduct is threatening. That person engages 

only “in innocent, if aberrant, activity,” id. at 257, and we 

should be “reluctant to infer that a negligence standard was 

intended in criminal statutes.” Elonis v. United States, 135 S. 

Ct. 2001, 2011 (2015). Our reading of the federal bank robbery 

statute, requiring the defendant to know his actions were 

objectively intimidating, accords with every court to have 

reached this issue.7

7 See United States v. Hendricks, 921 F.3d 320, 329 (2d Cir. 2019) 

(“A defendant acts ‘by intimidation’ when he knowingly engages in 

conduct from which an ordinary person in the teller’s position 

reasonably could infer a threat of bodily harm.” (quotation marks 

omitted)); United States v. Garcia-Ortiz, 904 F.3d 102, 108 (1st Cir. 

2018) (requiring “knowledge on the part of the defendant that his 

actions were objectively intimidating”); United States v. Deiter, 890 

F.3d 1203, 1213 (10th Cir. 2018) (agreeing with other circuits “that 

to be convicted of bank robbery by intimidation, the defendant must 

have at least known his actions were objectively intimidating”); 

United States v. Watson, 881 F.3d 782, 785 (9th Cir. 2018) (“[A] 

defendant may not be convicted if he only negligently intimidated 

the victim. The offense must at least involve the knowing use of 

intimidation.” (citation omitted)); Wilson, 880 F.3d at 87 (agreeing 

with other circuits who “have rejected the argument that § 2113(a) 

criminalizes negligent or reckless behavior. They have harmonized 

Carter with the ‘reasonable teller’ standard inherent in § 2113(a)’s 
16 

In response, Carr notes that two circuits have held a 

defendant does not need to intend to intimidate. See United 

States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) 

(“Whether a particular act constitutes intimidation is viewed 

objectively, and a defendant can be convicted under section 

2113(a) even if he did not intend for an act to be intimidating.” 

(citation omitted)); United States v. Woodrup, 86 F.3d 359, 364 

(4th Cir. 1996) (“[T]he intimidation element of § 2113(a) is 

satisfied ... whether or not the defendant actually intended the 

intimidation.”). These cases, however, are consistent with the 

framework we have identified. As Carter made clear, Section 

2113(a) does not require specific intent, so it does not matter 

whether the defendant intended to intimidate. See Carter, 530 

U.S. at 270. Yet the defendant must at least have knowledge 

that he is intimidating someone. The Fourth Circuit—one of 

the two circuits Carr is relying on—has made that point 

explicitly. See United States v. McNeal, 818 F.3d 141, 155–56 

(4th Cir. 2016) (“[T]o secure a conviction of bank robbery ‘by 

intimidation,’ the government must prove not only that the 

accused knowingly took property, but also that he knew that 

his actions were objectively intimidating.”). 

intimidation requirement by requiring the government to prove a 

defendant ‘knew that his actions were objectively intimidating.’”); 

United States v. McNeal, 818 F.3d 141, 155–56 (4th Cir. 2016) 

(“[T]o secure a conviction of bank robbery ‘by intimidation,’ the 

government must prove not only that the accused knowingly took 

property, but also that he knew that his actions were objectively 

intimidating.”); McBride, 826 F.3d at 296 (“The defendant must at 

least know that his actions would create the impression in an ordinary 

person that resistance would be met by force. A taking by 

intimidation under § 2113(a) therefore involves the threat to use 

physical force.”). 
17 

Finally, Carr focuses on the fact that every court has 

defined intimidation at least partly in objective terms of what a 

reasonable, ordinary person would find intimidating, which 

Carr argues is a textbook negligence rule. Yet that is only half 

the standard. While the actus reus is judged in objective terms 

(whether an ordinary person would find the conduct 

intimidating), the mens rea is defined in subjective terms 

(whether the defendant had knowledge that an ordinary person 

would view his conduct as intimidating). See, e.g., United 

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

defendant must at least know that his actions would create the 

impression in an ordinary person that resistance would be met 

by force.”). That the intimidation requirement has one 

objective component does not diminish its distinct subjective 

prong, which separates this offense from crimes of mere 

negligence.8

 

Accordingly we hold that the federal bank robbery statute 

applies only if the defendant had knowledge that his conduct 

was intimidating, and the statute therefore satisfies the mens 

8

 Carr also argues that Section 2113(a)’s requirement is identical to 

the mens rea requirement proposed by the government in Elonis, 

which the Supreme Court described as “a negligence standard.” 135 

S. Ct. at 2011 (interpreting 18 U.S.C. § 875(c) (“Whoever transmits 

in interstate or foreign commerce any communication containing any 

threat to kidnap any person or any threat to injure the person of 

another, shall be fined under this title or imprisoned not more than 

five years, or both.”)). Yet Section 2113(a) requires more than what 

was at issue in that case, where the government’s proposed standard 

would have required knowledge of the contents of a threatening 

message, but would not have required knowledge that the contents 

were threatening. See id. As we have discussed, the federal bank 

robbery statute requires that the defendant subjectively knew his 

actions were threatening. 
18 

rea requirement for a crime of violence under the Sentencing 

Guidelines.9

* * * 

Bank robbery under Section 2113(a) categorically 

involves the use or threatened use of force. It also requires that 

the defendant have knowledge that he is threatening someone. 

We therefore join nine of our fellow circuits in holding that 

bank robbery under Section 2113(a) is categorically a crime of 

violence under the elements clause of the Guidelines. That was 

true before Johnson, and it remains true today. The district 

court rightly dismissed Carr’s Section 2255 motion, so we 

affirm. 

9

 After we held oral argument in this case, the Supreme Court granted 

certiorari to decide whether recklessness alone is sufficient under 

ACCA’s identical elements clause. See Walker v. United States, No. 

19-373 (Nov. 15, 2019). Because we hold that the federal bank 

robbery statute requires knowledge, and therefore more than 

recklessness, the question presented in Walker does not implicate our 

holding. See Petition for Certiorari, Walker v. United States, No. 19-

373 at I (Sep. 19, 2019) (presenting only the question of “[w]hether 

a criminal offense that can be committed with a mens rea of 

recklessness can qualify as a ‘violent felony’”); see also Walker v. 

United States, 931 F.3d 467, 468 (6th Cir. 2019) (Kethledge, J., 

dissenting from the denial of rehearing en banc) (acknowledging that 

ACCA’s elements clause would be satisfied by higher requirements 

like “knowledge or intent”).