                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                       August 21, 2018
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff–Appellee,

v.                                                 No. 18-1227
                                        (D.C. Nos 1:16-CV-01514-MSK and
RONALD JOHN RINKER,                           1:05-CR-00515-MSK-1)
                                                    (D. Colo.)
       Defendant–Appellant.
                  _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
               _________________________________

      This appeal requires us to decide whether armed bank robbery

constitutes a crime of violence under 18 U.S.C. § 924(c)’s elements clause.

The issue grows out of Mr. Ronald Rinker’s guilty plea on a charge of

brandishing a firearm during a crime of violence (armed bank robbery).

Following the district court’s acceptance of the plea and imposition of the

sentence, Mr. Rinker moved for relief under 28 U.S.C. § 2255, contending


*
     Oral argument would not materially aid our consideration of the
appeal. Thus, we have decided the appeal based on the briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
that armed bank robbery is not a crime of violence. The district court did

not decide this issue. Instead, the court denied relief based on Mr. Rinker’s

delay in filing his motion. 1

      Mr. Rinker wants to appeal. To do so, however, he needs a certificate

of appealability. 2 We grant the certificate of appealability, but we affirm

the denial of relief on the merits because armed bank robbery constitutes a

crime of violence under 18 U.S.C. § 924(c)’s elements clause.

      We start with the standard for a certificate of appealability. We must

issue a certificate if the underlying claim’s timeliness and sufficiency are

reasonably debatable. 3 We conclude that they are. Thus, we grant a

certificate of appealability on

           whether the claim is timely and

           whether armed bank robbery constitutes a crime of violence
            under 18 U.S.C. § 924(c).

But we also affirm.

      In district court, the government argued that the motion was untimely

and that armed bank robbery constitutes a crime of violence. The district

court ruled only on timeliness. But we can assume for the sake of argument



1
      See 28 U.S.C. § 2255(f)(1) (providing a one-year period of
limitations).
2
      28 U.S.C. § 2253(c)(1)(B).
3
      Slack v. McDaniel, 529 U.S. 473, 484 (2000).
                                       2
that the § 2255 motion was timely; this assumption would require us to

consider whether armed bank robbery constitutes a crime of violence.

      A crime of violence can be committed through § 924(c)’s residual

clause or elements clause. 4 The residual clause is unconstitutionally

vague, 5 but Mr. Rinker has not questioned the constitutionality of the

elements clause.

      Applying the elements clause, we use the categorical approach. 6

Under the categorical approach, an offense constitutes a crime of violence

if an element of the offense consists of the use, attempted use, or

threatened use of physical force against someone’s person or property. 7

The physical force must consist of violent force, which is force capable of
                                                     8
causing physical pain or injury to another person.

      Mr. Rinker contended in district court that his underlying crime,

armed bank robbery, did not satisfy the elements clause for four reasons:

      1.    The statute criminalizes intimidation;

      2.    conviction on a charge of armed bank robbery does not require
            the use, attempted use, or threatened use of physical force;

4
      18 U.S.C. § 924(c)(3).
5
      United States v. Salas, 889 F.3d 681, 684–86 (10th Cir. 2018).
6
     United States v. Melgar-Cabrera, 892 F.3d 1053, 1060–61 (10th Cir.
2018).
7
      18 U.S.C. § 924(c)(3)(A).
8
      Melgar-Cabrera, 892 F.3d at 1063–64.
                                      3
     3.    the crime can be completed through an attempt preceding the
           use, attempted use, or threatened use of physical force; and

     4.    bank robbery can be committed by entering a bank to commit
           larceny, which does not require the use of physical force.

     We rejected the first two contentions in United States v. McCranie. 9

There the issue was whether a conviction for bank robbery constituted a

crime of violence under the sentencing guideline governing enhancement

as a career offender (U.S. Sentencing Guidelines Manual § 4B1.1(a)). 10

Applying the guideline, we held that bank robbery constituted a crime of

violence, reasoning that

          intimidation categorically involves a threatened use of physical
           force against another person 11 and

          bank robbery is committed only if the defendant uses, attempts
           to use, or threatens to use physical force. 12




9
     889 F.3d 677 (10th Cir. 2018).
10
     McCranie, 889 F.3d at 678.
11
     Id. at 680–81.
12
     Id. at 679.

                                      4
The elements clauses are identical in the guidelines and 18 U.S.C.

§ 924(c). 13 Thus, under McCranie, we reject Mr. Rinker’s first two

contentions. 14

      Mr. Rinker’s third contention stems from the possibility that Mr.

Rinker’s conviction for bank robbery had been based only on an attempt to

commit the robbery. 15 In light of this possibility, Mr. Rinker argues that he

could have been convicted of attempted armed bank robbery without using,

attempting, or threatening physical force. We disagree.




13
      Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”
under § 924(c)) with U.S. Sentencing Guidelines Manual § 4B1.2(a)(1)
(defining a “crime of violence” under the guidelines).
14
      McCranie also forecloses Mr. Rinker’s argument that armed bank
robbery does not require physical force. Armed bank robbery requires
proof of the same elements as bank robbery. Compare 18 U.S.C. § 2113(a)
with 18 U.S.C. § 2113(d). Thus, if bank robbery requires the use, attempted
use, or threatened use of physical force, the same would be true of armed
bank robbery. See United States v. Higley, 726 F. App’x 715, 717 (10th
Cir. 2018) (unpublished) (pre-McCranie opinion holding that armed bank
robbery constitutes a crime of violence under § 924(c)); see also United
States v. Wade, 719 F. App’x 822, 825–27 (10th Cir. 2017) (unpublished)
(same); United States v. Smith, 730 F. App’x 710, 711 (10th Cir. 2018)
(unpublished) (applying McCranie to hold that armed bank robbery
constitutes a crime of violence under § 924(c) because its elements clause
is identical to the guidelines’ elements clause).
15
    See 18 U.S.C. § 2113(d) (establishing a crime of “attempting to
commit” bank robbery).

                                      5
      Mr. Rinker’s argument fails under the statutory elements of “armed

bank robbery” and “crime of violence.” Armed bank robbery criminalizes

attempts, 16 which exist only when defendants

           intend to commit acts that would satisfy all of the elements of
            armed bank robbery and

           take a substantial step toward committing the crime. 17

And we have previously held that armed bank robbery requires as an

element the use, attempted use, or threatened use of physical force. 18 So

even if Mr. Rinker had been convicted of attempted armed bank robbery,

he would necessarily have attempted to use physical force, 19 triggering

§ 924(c)’s elements clause. 20



16
      Id.
17
      See Braxton v. United States, 500 U.S. 344, 349 (1991).
18
      See pp. 4–5, above.
19
      See United States v. St. Hubert, 883 F.3d 1319, 1334 (11th Cir.
2018); see also Hill v. United States, 877 F.3d 717, 719 (7th Cir. 2017)
(concluding that when a substantive offense is a violent felony, an attempt
to commit that offense is also a violent felony because conviction for an
attempt requires satisfaction of all elements and § 924 punishes both the
use and attempted use of force); United States v. Dean, 724 F. App’x 681,
681 (10th Cir. 2018) (unpublished) (stating that when a substantive offense
constitutes a violent felony, an attempt to commit that offense is also a
violent felony).
20
      See United States v. Armour, 840 F.3d 904, 907–09 (7th Cir. 2016)
(holding that “the federal crime of attempted armed bank robbery qualifies
as a crime of violence under the ‘elements’ clause of the definition”).

                                      6
      Finally, Mr. Rinker points out that bank robbery can be committed by

entering a bank with the intent to commit larceny; thus, according to Mr.

Rinker, the offense can be completed without using any physical force. But

the bank-robbery statute is divisible, 21 containing multiple offenses,

including (1) either intimidation or the use of force and violence and (2)

entry into a bank with the intent to commit larceny or a felony.

      Because the bank-robbery statute is divisible, we use the modified

categorical approach to identify the offense underlying Mr. Rinker’s

conviction. 22 Under this approach, we consider the indictment and plea

documents, which showed that Mr. Rinker had pleaded guilty to armed

bank robbery “by force and violence, and by intimidation.” Appellant’s

App’x at 7. He was not convicted based on an intent to commit larceny; as

a result, this argument fails.

                                    * * *

      We grant a certificate of appealability on timeliness and the merits,

but we affirm the denial of relief. Mr. Rinker’s offense of conviction,




21
      United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018) (stating
that § 2113(a) is divisible); see also United States v. McBride, 826 F.3d
293, 296 (6th Cir. 2016) (dictum) (stating that § 2113(a) “seems to contain
a divisible set of elements”); see also United States v. McGuire, 678 F.
App’x 643, 645 (10th Cir. 2017) (unpublished) (stating that § 2113(a) is
divisible).
22
      Descamps v. United States, 570 U.S. 254, 265 (2013).
                                       7
armed bank robbery, constitutes a crime of violence under 18 U.S.C.

§ 924(c). Thus, his § 2255 claim fails on the merits.

                                   Entered for the Court




                                   Robert E. Bacharach
                                   Circuit Judge




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