     Case: 19-10065   Document: 00515297651        Page: 1   Date Filed: 02/04/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                    FILED
                                                                February 4, 2020
                                    No. 19-10065
                                                                 Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

ASTON CHARLES BUTLER,

             Defendant - Appellant



                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, COSTA, and HO, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Added to the statute books in 1934 just a few months after Bonnie and
Clyde’s crime spree came to an end, bank robbery is now one of the classic
federal crimes. The first section of the “Bank robbery and incidental crimes”
statute covers what most would think of as bank robbery—using force,
violence, or intimidation to steal property from a bank. 18 U.S.C. § 2113(a).
Less well known is that the same section of the statute also makes it a crime
to burglarize a bank—that is, to enter a bank with the intent to commit a felony
or larceny inside the bank. Id. This appeal requires us to decide whether bank
robbery and bank burglary are separate offenses or only different means of
committing the same offense.
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      The question no doubt sounds academic. But the answers to academic
questions have serious consequences under the categorial approach that
governs much of modern federal sentencing. So it is with this question about
the bank robbery statute, which determines whether a defendant should be
sentenced under the Armed Career Criminal Act.
                                         I.
      Aston Charles Butler pleaded guilty to being a felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). Although that crime ordinarily carries a
maximum penalty of ten years in prison, id. § 924(a)(2), the Armed Career
Criminal Act imposes a fifteen-year minimum when the defendant has three
prior convictions for violent felonies or serious drug offenses, id. § 924(e)(1).
Butler had four convictions for federal bank robbery and two convictions for
Texas robbery. The sentencing court concluded that Butler’s federal bank
robbery convictions constituted violent felonies. That qualified Butler as an
armed career criminal, so the court sentenced him to the fifteen-year minimum
sentence.
                                        II.
      Butler’s appeal turns on whether the federal bank robbery statute
describes two different offenses or two different means of committing the same
offense. Some background on the categorical approach we use to determine if
a crime counts as a violent felony is necessary to understand why this
distinction matters.
      The Armed Career Criminal Act provides multiple definitions for
“violent felony.”    The relevant definition for this appeal is: any crime
punishable by more than one year of imprisonment that “has as an element
the use, attempted use, or threatened use of physical force against the person
of another.”   Id. § 924(e)(2)(B)(i).   That definition is called the “elements
clause.” Welch v. United States, 136 S. Ct. 1257, 1261 (2016).
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      The analysis a court applies to determine if a conviction satisfies the
elements clause depends on whether the offense statute is divisible. United
States v. Burris, 920 F.3d 942, 947 (5th Cir. 2019). An indivisible statute lays
out “a single . . . set of elements to define a single crime.” Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016). We evaluate indivisible statutes using
the categorical approach, assessing whether the elements of the crime include
the use of force. Burris, 920 F.3d at 947. Our focus on the elements means
that we “ignor[e] the particular facts of the case.” Mathis, 136 S. Ct. at 2248.
Put differently, we ask: Does the defendant’s conviction for this crime mean he
must have used, attempted to use, or threatened to use physical force to
commit it?
      A divisible statute, by contrast, “list[s] elements in the alternative, and
thereby define[s] multiple crimes.” Id. at 2249. When a statute describes
multiple crimes, the modified categorical approach permits courts to “look[] to
a limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy)” to figure out which of the statute’s crimes the
defendant was convicted of. Id. Once the court has narrowed down the crime
of conviction to a specific offense, it then applies the same analysis as the
categorical approach, asking whether the elements of that specific crime
include the use of force. Burris, 920 F.3d at 947.
      The modified approach makes a difference when a statute describes one
offense that qualifies as a violent felony and another that does not. Any doubt
about whether a defendant committed a violent felony allows him to avoid the
enhanced punishment for armed career criminals because the categorical
approach requires “certainty.” Shepard v. United States, 544 U.S. 13, 21
(2005); see also Taylor v. United States, 495 U.S. 575, 602 (1990). But the
modified approach provides that certainty if it can narrow the defendant’s
conviction to a single qualifying offense. So it is invariably the government
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that argues a statute is divisible and subject to narrowing via the modified
approach.
      That is the situation here. The government asserts that section 2113(a)
describes two separate offenses. The statute reads:
            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; or

            Whoever enters or attempts to enter any bank, credit union,
      or any savings and loan association, or any building used in whole
      or in part as a bank, credit union, or as a savings and loan
      association, with intent to commit in such bank, credit union, or in
      such savings and loan association, or building, or part thereof, so
      used, any felony affecting such bank, credit union, or such savings
      and loan association and in violation of any statute of the United
      States, or any larceny . . . .

18 U.S.C. § 2113(a).
      If these paragraphs describe separate crimes, then the indictment
charging Butler’s bank robberies can be used to narrow his offense to the first
paragraph.   That indictment alleges that each of his four bank robberies
involved taking property from a bank employee “by force, violence and
intimidation.” Bank robbery by intimidation is a crime of violence, United
States v. Brewer, 848 F.3d 711, 716 (5th Cir. 2017), and a crime of violence is
also a violent felony, United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011)
(per curiam). So if the modified categorical approach applies, then Butler has
at least three violent felonies and he was properly sentenced to fifteen years.
      But if section 2113(a) describes a single offense, and its two paragraphs
just set out two different means of committing that offense, then Butler
contends he is not an armed career criminal. That is because, he maintains,

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                                        No. 19-10065
one method of violating the statute—the unlawful entry method—does not
require the use of force. If he is right, then a conviction under section 2113(a)
does not necessarily mean that the defendant used physical force when he
committed the crime.           And that would mean four of Butler’s six felony
convictions would not be violent felonies, allowing him to escape the armed
career criminal classification and its minimum sentence.
                                              III.
      We reject the first link in Butler’s argument and determine that section
2113(a) is divisible.1 Recall that an indivisible statute lays out “a single . . . set
of elements to define a single crime” while a divisible statute “list[s] elements
in the alternative, and thereby define[s] multiple crimes.” Mathis, 136 S. Ct.
at 2248–49. Distinguishing between the two is sometimes difficult because
statutes often use alternative language not just to spell out different elements
but also to provide “various factual means of committing a single element.” Id.
at 2249. A statute that merely articulates alternative means of committing
the same crime is indivisible. A statute that sets out alternative elements
creates different crimes and is thus divisible.
      How can we tell the difference between elements and means?                           An
element is a “‘constituent part[]’ of a crime’s legal definition” that a jury must
find to be true to convict the defendant. Id. at 2248 (quoting Elements of Crime,
BLACK’S LAW DICTIONARY (10th ed. 2014)). For example, imagine a statute
“that makes it a crime (1) to take (2) from a person (3) through force or the
threat of force (4) property (5) belonging to a bank.” Richardson v. United
States, 526 U.S. 813, 817 (1999). Each numbered prerequisite is an element—
something the government must prove to secure a conviction. Id. Means, by
contrast, are different ways a defendant can satisfy an element. See id. A


      1   We thus need not decide if the “unlawful entry” paragraph describes a violent felony.
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defendant could meet the hypothetical statute’s third element, for instance, by
using a knife or a gun. Id. The government does not need to prove particular
means. See id. As long as each juror agrees that the defendant used “force or
the threat of force,” a jury could still convict even if it disagrees as to how he
did so. Id.
      Now to the question Butler’s case presents: Does section 2113(a) outline
two different means of committing the same crime (making it indivisible) or
two different crimes with their own sets of elements (making it divisible)?
      We first look to the text and structure of the statute. The intimidation
language and the unlawful entry language appear in separate paragraphs,
separated by a disjunctive “or.” 18 U.S.C. § 2113(a). Each paragraph also uses
the word “or” internally. One example from the intimidation paragraph is its
description of the object of the crime as “any property or money or any other
thing of value.” Id. (emphasis added). An example from the unlawful entry
paragraph is its requirement that the defendant have the “intent to commit . . .
any felony . . . or any larceny.” Id. (emphasis added). And an example common
to both paragraphs is language limiting their scope to situations when the
victim is a “bank, credit union, or . . . savings and loan association.”       Id.
(emphasis added).
      Comparing the statute’s use of “or” between the two paragraphs to its
use of the same word within each paragraph demonstrates that the paragraphs
are meant to be different offenses with their own elements. The paragraphs
use “or” internally to set out alternative means. They do not delineate different
crimes for stealing computers as opposed to cash reserves or for robbing a bank
as opposed to a credit union. To illustrate the point differently, a defendant
commits an offense under the first paragraph only if he takes something (an
element), and that thing can be property, money, or anything else that has
value (the means).
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      But the “or” between paragraphs—one preceded by a semicolon rather
than commas—represents a sharper divide. Indeed, the typical means-versus-
elements inquiry focuses on disjunctive words within a single sentence. The
Iowa burglary statute in Mathis is an example. That law forbade unlawful
entry into “any building, structure, [or] land, water, or air vehicle,” with those
various locations serving only as different means of committing the same
offense. Mathis, 136 S. Ct. at 2250 (alteration in original) (emphasis omitted)
(quoting IOWA CODE § 702.12 (2013)); see also, e.g., Gomez-Perez v. Lynch, 829
F.3d 323, 328 (5th Cir. 2016) (holding that the Texas misdemeanor assault
statute lists different means of committing the same offense when it describes
“intentionally, knowingly, or recklessly” causing bodily injury). Butler does
not identify any case holding that separate paragraphs of a statute merely
describe different means of the same offense. That is not surprising.          In
writing, a paragraph break often signals that a new idea is coming. It is
likewise logical to conclude that a paragraph break in a statute signals a new
offense.
      The different conduct each paragraph proscribes confirms what
grammar suggests. The two paragraphs evoke two different traditional crimes.
In criminalizing the taking of property from another by force or intimidation,
the first paragraph resembles traditional robbery. See Robbery, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“The illegal taking of property from the person of
another, or in the person’s presence, by violence or intimidation; aggravated
larceny.”). The second paragraph’s prohibition on entry with the intent to
commit a felony or larceny resembles traditional burglary. See Taylor, 495
U.S. at 598 (“[T]he generic, contemporary meaning of burglary contains at least
the following elements: an unlawful or unprivileged entry into, or remaining
in, a building or other structure, with intent to commit a crime.”).


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                                  No. 19-10065
      We have recognized that these traditionally distinct crimes, as applied
to the context of a bank, have different elements. To convict a defendant under
section 2113(a)’s first paragraph, the government must show:
      (1) an individual or individuals (2) used force and violence or
      intimidation (3) to take or attempt to take (4) from the person or
      presence of another (5) money, property, or anything of value
      (6) belonging to or in the care, custody, control, management, or
      possession (7) of a bank, credit union, or savings and loan
      association.

United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir.1994). By contrast, the
second paragraph requires the government to prove:
      (1) an entry or an attempt to enter (2) any bank, credit union, or
      any savings and loan association (or building used in whole or part
      as such), (3) with the intent to commit there (4) any felony (5)
      affecting such bank, credit union, or savings and loan association.

United States v. Dentler, 492 F.3d 306, 310 (5th Cir. 2007). Other than a bank
or other covered financial institution being the victim, there is no overlap
between these elements. Contrast Mathis, 136 S. Ct. at 2250 (explaining that
the Iowa burglary statute “defines one crime, with one set of elements . . . while
specifying multiple means of fulfilling its locational element”).
      We have not previously addressed the statute’s divisibility, but in
addition to ascribing different elements to each paragraph, we have remarked
that section 2113(a) “describes two separate offenses.” Dentler, 492 F.3d at
309; see also United States v. McGhee, 488 F.2d 781, 784 (5th Cir. 1974) (“The
two parts of the subsection are separable.”). And other circuits have uniformly
treated section 2113(a) as divisible; in only one unpublished case did the
parties even dispute the issue. See United States v. Moore, 916 F.3d 231, 238
(2d Cir. 2019) (“The parties do not contest that § 2113(a) of the federal bank
robbery statute is divisible, and we agree.”); United States v. Watson, 881 F.3d
782, 785 n.1 (9th Cir. 2018) (explaining that although the unlawful entry

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                                   No. 19-10065
paragraph “is not a crime of violence, it is irrelevant . . . because it is divisible
from the § 2113(a) bank robbery offense” the defendants were convicted of);
United States v. Rinker, 746 F. App’x 769, 772 (10th Cir. 2018) (rejecting the
same argument that Butler makes because “the bank-robbery statute is
divisible”); United States v. McGuire, 678 F. App’x 643, 645 (10th Cir. 2017)
(“Because     § 2113(a) is divisible, we apply the modified categorical
approach . . . .”).
       Prince v. United States, 352 U.S. 322 (1957), does not support a contrary
decision. Prince was convicted of two bank robbery counts—one under the
robbery paragraph of section 2113(a) and the other under the burglary
paragraph—and was given consecutive sentences. Id. at 324. The Court
explained that unlawful entry was a preparatory act and held that if the
defendant actually completed the robbery, the punishments would “merge[]”
such that he could not be sentenced consecutively. Id. at 328–29. According
to Butler, Prince suggests that section 2113(a) creates one indivisible crime
with a single punishment.
       If anything, Prince supports the view that section 2113(a) establishes
separate crimes. It describes section 2113 as “creat[ing] and defin[ing] several
crimes incidental to and related to thefts from banks.” Id. at 323. “If the
Justices had a ‘one offense’ view of § 2113, then they should have held the
separate counts of Prince’s indictment to be multiplicitous.” United States v.
Loniello, 610 F.3d 488, 494 (7th Cir. 2010).         As the Seventh Circuit has
explained, “the Prince line of decisions requires merger of sentences, not of
offenses.” Id. at 496. Merger of sentences may be required even when there is
more than one underlying crime. See United States v. Vasquez, 867 F.2d 872,
875 (5th Cir. 1989) (“When Congress creates different crimes aimed at
successive stages of a single criminal undertaking, the defendant can properly
be charged and tried for multiple offenses, but may be punished only for the
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                                No. 19-10065
commission of one offense.”); United States v. Forester, 836 F.2d 856, 861 (5th
Cir. 1988) (“Separate charges were permissible. Separate convictions were
possible. But only one sentence is appropriate.”).
                                     ***
      Section 2113(a) is divisible. The sentencing court thus properly used the
bank robbery indictment to narrow Butler’s robbery convictions to the violent
felonies of taking bank property from another through intimidation. With at
least three such violent felonies, he was properly sentenced as an armed career
criminal.
      The judgment is AFFIRMED.




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