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

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

W ILLIAM J. M C B RIDE , J R ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ Nos. 15-3759/ 3761/ 3762/ 3763/ 3764

Appeal from the United St ates District Court for the Southern District of Ohio at Columbus. Nos. 2:14-cr-00249; 2:14-c r-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 Appe llant. Mary Beth Young, UNI TED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ BOGGS, Circuit Judge. William McBride signe d 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 Mc Bride 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 o ffender based on two prior 

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

convictions for bank robbery, also in violat ion of § 2113. McBride’s sentencing memorandum asked the court to depart downw ard from the Sentencing Guide lines 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 caree r-offender point at sentencing. Had he not been labeled a career offender, the Guidelines sent encing range would have been 100 to 125 months of imprisonment. The district court senten ced 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 pr edicate offense under the career-offender guideline.
McBride waived this argument, except insofa r 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 sign ed) 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 inte ntionally 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 exte nt that his cl aim relies on Johnson , we review for plain error. Priddy , 808 F.3d at 682.
To be a career offender, a defendant must ha ve at least two prior felony convictions for a crime of violence or a controlled-substance offe nse. §4B1.1(a)(3). U nder 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 pe rson of another, or (2) is bur glary of a dwel ling, arson, or extortion, involves use of explosives, or othe rwise involves conduct that presents a serious potential risk of physical injury to another.” USSG §4B1.2(a). In Johnson , the Supreme CourtNos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 3

invalidated the residual clause of the similarl y 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 wa ived is that his prior convictions for bank robbery were crimes of violence before Johnson , but through the resi dual clause alone. Conviction for bank robbery under § 2113(a) require s proving that a defe ndant “by force and violence, or by intimidation, takes, or attempts to take . . . any pr operty . . . belong ing to, or in the care, custody, control, management, or posse ssion of, any bank.” According to McBride, bank robbery was a crime of violence through §4B 1.2(a)’s now-defunct resi dual clause but not through its physical-force clause. Fo r 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 Suprem e Court instructed courts to use a categorical approach in designa ting ACCA-predicate offenses. See also United States v. Arnold , 58 F.3d 1117, 1121 (6th Ci r. 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 propheti c call to “only look to the stat ute.” 893 F.2d at 820. That reasoning is unhelpful post- Taylor

. Bank robbery by “force and violence” plainl y involves “the use, attempted use, or threatened use of physical force.” Whether the sa me 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 im pression 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 ex tortion” involves the “threat[] to do bodily harm in the future .”). Intimidation concerns whether an ordinary person woul d feel threatenedNos. 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”—w ith 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 w ould 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) (“Th ere 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 dayli ght 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) (c onsidering 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 viol ation of § 2113(a) is ca tegorically a crime of violence. In addition to bank robbe ry, 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 affec ting it (e.g., such as mortgage fra ud) 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 McBr ide appears to concede that his priorNos. 15-3759/ 3761/ 3762/ 3763/ 3764 United States v. McBride Page 5

convictions fall under the first se t of elements listed in § 2113( a), that question is beyond the limited scope of our review.

We AFFIRM the district c ourt’s judgment and sentence.