1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0136p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

WILLIAM J. MCBRIDE, JR., 

Defendant-Appellant. 

┐

│

│

│

│

│

│

│

┘

Nos. 15-3759/ 3761/ 3762/ 

3763/ 3764 

Appeal from the United States District Court 

for the Southern District of Ohio at Columbus. 

Nos. 2:14-cr-00249; 2:14-cr-00277; 2:15-cr-00009; 

2:15-cr-00010—James L. Graham, District Judge. 

Decided and Filed: June 10, 2016 

Before: BOGGS, ROGERS, and STRANCH, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Cincinnati, Ohio, for Appellant. Mary Beth Young, UNITED STATES ATTORNEY’S 

OFFICE, Columbus, Ohio, for Appellee. 

_________________ 

OPINION 

_________________ 

BOGGS, Circuit Judge. William McBride signed a plea agreement after being charged in 

five jurisdictions with six counts of bank robbery in violation of 18 U.S.C. § 2113(a), (d). The 

agreement included an “understand[ing]” that McBride would be sentenced as a career offender 

because “he ha[d] at least two prior crime of violence convictions.” See USSG §4B1.1(a). The 

presentence report recommended designating McBride a career offender based on two prior 

>
Nos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 2 

convictions for bank robbery, also in violation of § 2113. McBride’s sentencing memorandum 

asked the court to depart downward from the Sentencing Guidelines advisory range of 188 to 

235 months of imprisonment, but agreed that “[t]here is no dispute that McBride is a ‘career 

offender.’” His counsel also conceded the career-offender point at sentencing. Had he not been 

labeled a career offender, the Guidelines sentencing range would have been 100 to 125 months 

of imprisonment. The district court sentenced McBride to 216 months of imprisonment. 

McBride now contests his career-offender designation, arguing that in light of Johnson v. United 

States, 135 S. Ct. 2551 (2015), § 2113 is not a predicate offense under the career-offender 

guideline. 

 McBride waived this argument, except insofar as it could not have been made before 

Johnson. A defendant waives the argument that a sentencing enhancement does not apply by 

“explicitly agreeing” that it does, such as through “plain, positive concurrence.” United States v. 

Knox, 593 F. App’x 536, 536, 537 (6th Cir. 2015); see also United States v. Mabee, 765 F.3d 

666, 671 (6th Cir. 2014); cf. United States v. Priddy, 808 F.3d 676, 681 (6th Cir. 2015). 

Statements in the plea agreement (that he signed) and the sentencing memorandum (that counsel 

submitted on his behalf) demonstrate that McBride agreed with a career-offender designation. In 

addition, counsel reiterated that position at the sentencing hearing. However, a defendant can 

abandon only “known right[s].” United States v. Olano, 507 U.S. 725, 733 (1993) (emphasis 

added). McBride could not have intentionally relinquished a claim based on Johnson, which was 

decided after his sentencing. See United States v. Stines, 313 F.3d 912, 917–18 (6th Cir. 2002); 

United States v. Rogers, 118 F.3d 466, 471 (6th Cir. 1997). Although McBride otherwise 

waived the right to appeal his career-offender status, to the extent that his claim relies on 

Johnson, we review for plain error. Priddy, 808 F.3d at 682. 

 To be a career offender, a defendant must have at least two prior felony convictions for a 

crime of violence or a controlled-substance offense. §4B1.1(a)(3). Under the Guidelines, a 

felony is a crime of violence if it “(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.” USSG §4B1.2(a). In Johnson, the Supreme Court 
Nos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 3 

invalidated the residual clause of the similarly worded Armed Career Criminal Act (ACCA), 

18 U.S.C. § 924(e)(2)(B), as unconstitutionally vague. 135 S. Ct. at 2563. We extended 

Johnson’s holding to the career-offender guideline. United States v. Pawlak, ___ F.3d ___, No. 

15-3566, 2016 WL 2802723, at *8 (6th Cir. May 13, 2016). 

 The only claim that McBride could not have waived is that his prior convictions for bank 

robbery were crimes of violence before Johnson, but through the residual clause alone. 

Conviction for bank robbery under § 2113(a) requires proving that a defendant “by force and 

violence, or by intimidation, takes, or attempts to take . . . any property . . . belonging to, or in 

the care, custody, control, management, or possession of, any bank.” According to McBride, 

bank robbery was a crime of violence through §4B1.2(a)’s now-defunct residual clause but not 

through its physical-force clause. For reasons that follow, we disagree. 

 We do not rely on United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989), where 

a Sixth Circuit panel found that a particular § 2113(a) conviction qualified as a §4B1.2(a) 

predicate offense through the physical-force clause. Maddalena predates Taylor v. United 

States, 495 U.S. 575, 588–89 (1990), where the Supreme Court instructed courts to use a 

categorical approach in designating ACCA-predicate offenses. See also United States v. Arnold, 

58 F.3d 1117, 1121 (6th Cir. 1995) (adapting Taylor to §4B1.2 context). In reaching its holding, 

the Maddalena panel relied heavily on the conduct underlying the predicate offense and even 

rejected the defendant’s prophetic call to “only look to the statute.” 893 F.2d at 820. That 

reasoning is unhelpful post-Taylor. 

 Bank robbery by “force and violence” plainly involves “the use, attempted use, or 

threatened use of physical force.” Whether the same is true of bank robbery by “intimidation” is 

a closer question, although not by much. In the context of § 2113(a), “intimidation” means 

“conduct and words . . . calculated to create the impression that any resistance or defiance . . . 

would be met by force.” United States v. Gilmore, 282 F.3d 398, 402 (6th Cir. 2002); see also

James Lindgren, “Blackmail and Extortion,” in 1 Encyclopedia of Crime and Justice 115, 115 

(Sanford H. Kadish ed., 1983) (“[R]obbery by intimidation” involves the “threat[] to do 

immediate bodily harm, whereas . . . blackmail or extortion” involves the “threat[] to do bodily 

harm in the future.”). Intimidation concerns whether an ordinary person would feel threatened 
Nos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 4 

under the circumstances, Gilmore, 282 F.3d at 403, but the prosecution must prove that the 

defendant possessed “general intent—that is . . . knowledge”—with respect to taking the 

property by intimidation, Carter v. United States, 530 U.S. 255, 268 (2000). 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. See, e.g., United States v. McNeal, 818 F.3d 141, 153, (4th Cir. 2016); 

United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (“There is no ‘space’ between ‘bank 

robbery’ and ‘crime of violence’” under the physical-force clause of §4B1.2(a).); United States v. 

Selfa, 918 F.2d 749, 751 (9th Cir. 1990). 

 We reject McBride’s contention that daylight can be found between “intimidation” and 

“threatened use of physical force.” Although McBride is correct that intimidation can be 

communicated by “words, demands, and gestures,” so too with the threat of physical force, 

Gilmore, 282 F.3d at 402. Furthermore, even if we accept McBride’s arguments that one can 

threaten to cause bodily injury that does not require physical force, see, e.g., United States v. 

Torres-Miguel, 701 F.3d 165, 168–69 (4th Cir. 2012) (considering poisoning), as discussed 

above, that is not the case with intimidation in the § 2113(a) context, which requires the threat to 

use physical force, not merely to cause bodily injury. 

 Our rejection of McBride’s Johnson argument should not be read as a complete 

endorsement of the government’s position that a violation of § 2113(a) is categorically a crime of 

violence. In addition to bank robbery, the statute criminalizes “enter[ing] or attempt[ing] to enter 

any bank . . . with intent to commit in such bank . . . any felony affecting such bank.” That 

language could certainly encompass many nonviolent felonies. Section 2113(a) seems to contain 

a divisible set of elements, only some of which constitute violent felonies—taking property from 

a bank by force and violence, or intimidation, or extortion on one hand and entering a bank 

intending to commit any felony affecting it (e.g., such as mortgage fraud) on the other. If that is 

the case, then the modified categorical approach is necessary to determine whether a particular 

§ 2113(a) conviction qualifies as a crime of violence. See Descamps v. United States, 133 S. Ct. 

2276, 2285, 2289–90 (2013). In any event, because McBride appears to concede that his prior 
Nos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 5 

convictions fall under the first set of elements listed in § 2113(a), that question is beyond the 

limited scope of our review. 

 We AFFIRM the district court’s judgment and sentence.