           Case: 15-11741   Date Filed: 05/27/2016   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11741
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:14-cr-00526-JDW-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

GLENN JOHN FOX,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 27, 2016)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Glenn John Fox appeals his conviction for brandishing a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), as well as the total

120-month sentence of imprisonment he received after pleading guilty to that

offense and to bank robbery, in violation of 18 U.S.C. § 2113(a). He argues, for

the first time on appeal, that his conviction for brandishing a firearm during a

crime of violence should be vacated because, after Johnson v. United States

(Samuel Johnson), 576 U.S. ___, 135 S. Ct. 2551 (2015), bank robbery is not a

“crime of violence” that can support the conviction.        He also challenges the

procedural and substantive reasonableness of his sentence, claiming that the district

court erred in considering rehabilitation when imposing a term of imprisonment

and that his sentence was substantively unreasonable in light of his age and lack of

criminal history. After careful review, we affirm.

                                         I.

      Fox contends that the Supreme Court’s recent decision in Samuel Johnson

invalidated 18 U.S.C. § 924(c)(3)(B), one of two provisions defining what is a

“crime of violence” for purposes of § 924(c)(1)(A) (criminalizing possession of a

firearm during and in relation to, or in furtherance of, a crime of violence).

According to Fox, § 924(c)(3)(B)’s definition of “crime of violence” is

unconstitutionally vague for the same reasons the Court in Samuel Johnson held

the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.


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§ 924(e), unconstitutionally vague. He also argues that bank robbery does not

qualify under § 924(c)’s other definition of “crime of violence” because it does not

have as an element “the use, attempted use, or threatened use of physical force

against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).

      We generally review constitutional challenges to a statute de novo. United

States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). Arguments raised for the

first time on appeal in a criminal case, however, are reviewed for plain error only.

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “To find plain

error, there must be: (1) error, (2) that is plain, and (3) that has affected the

defendant’s substantial rights.” United States v. Hesser, 800 F.3d 1310, 1324 (11th

Cir. 2015) (quoting other sources). If those three conditions are met, we may

exercise our discretion to correct the error, “but only if the error seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted). Because Fox did not raise his arguments to the district

court, we review for plain error.

      “An error is plain if it is obvious and clear under current law[,]” United

States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006), which is determined at the

time the case is reviewed on appeal, United States v. Pantle, 637 F.3d 1172, 1175

(11th Cir. 2011). The threshold for establishing a “plain” error is high. Unless the

explicit language of a statute or rule specifically resolves an issue, there can be no


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plain error without precedent from the Supreme Court or this Court directly

resolving the issue. Hesser, 800 F.3d at 1325.

       Fox was convicted of violating § 924(c), which states, in relevant part, that

“any person who, during and in relation to any crime of violence . . . uses or carries

a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such crime of violence[,]” be sentenced to

a consecutive term of imprisonment of not less than five years.                      18 U.S.C.

§ 924(c)(1)(A)(i).      If the firearm was brandished, the consecutive term of

imprisonment must be not less than seven years. Id. § 924(c)(1)(A)(ii).

       The statute defines a “crime of violence” as a felony that

       (A)     has as an element the use, attempted use, or threatened use of
               physical force against the person or property of another, or

       (B)     that by its nature, involves a substantial risk that physical force
               against the person or property of another may be used in the
               course of committing the offense.

Id. § 924(c)(3).

       Fox compares subsection (B) above to the ACCA’s “residual clause,” one of

three ways a prior conviction could qualify as a “violent felony” for purposes of

enhancing a defendant’s sentence under the ACCA. 1 The residual clause provided


       1
         The other two ways are the “elements clause” (a felony that “has as an element the use,
attempted use, or threatened use of physical force against the person or property of another”),
and the “enumerated crimes clause” (a felony that “is burglary, arson, or extortion, [or] involves
use of explosives”). See 18 U.S.C. § 924(e)(2)(B).
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that an offense was a violent felony if it “otherwise involve[d] conduct that

present[ed] a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B).

       The Supreme Court in Samuel Johnson held the residual clause

unconstitutionally vague because it creates uncertainty about (1) how to evaluate

the risks posed by the crime in an abstract “ordinary case,” instead of based on

concrete factors or statutory elements, and (2) how much risk it takes to qualify as

a violent felony. 135 S. Ct. at 2557-58. The Court explained that the residual

clause forced courts to interpret the requisite degree of risk in light of the

enumerated crimes, which were “far from clear in respect to the degree of risk each

posed.” Id. at 2558. The Court also observed that the vagueness of the residual

clause was confirmed by the Court’s own repeated failed attempts to craft a

principled and objective standard out of the residual clause, as well as the fact that

the clause proved nearly impossible to apply consistently in the lower courts. Id. at

2558-60.

       Here, Fox has not shown plain error for two main reasons. 2 First, Samuel

Johnson did not expressly invalidate the crime-of-violence definition in

§ 924(c)(3)(B) or even broadly condemn criminal laws using risk-based terms. See

       2
         We emphasize that, in this appeal, the issue of whether, upon de novo review, §
924(c)(3)(B)’s definition of “crime of violence” is unconstitutionally vague, in violation of
Samuel Johnson’s reasoning, is not before us. Therefore, we expressly do not opine on that issue
here.
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135 S. Ct. at 2561. Nor is it clear that Samuel Johnson’s reasoning regarding the

ACCA’s residual clause applies with equal force to § 924(c)(3)(B).          Section

924(c)(3)(B)’s definition of crime of violence may require gauging the riskiness of

conduct by reference “to an idealized ordinary case of the crime,” see United

States v. Keelan, 786 F.3d 865, 871 (11th Cir. 2015) (holding that an identical

definition of crime of violence in 18 U.S.C. § 16(b) is subject to the “ordinary

case” analysis when evaluating the riskiness of conduct), but it does not “link[] a

phrase such as ‘substantial risk’ to a confusing list of examples,” as the residual

clause does, see Samuel Johnson, 135 S. Ct. at 2561. In addition, Fox has not

shown that § 924(c)(3)(B) has been subject to the same kind of uncertainty in

application as the residual clause. See Samuel Johnson, 135 S. Ct. at 2559-60.

There may be other relevant differences as well, but it is enough to note that the

two provisions are not identical in language or application. Therefore, it is not

clear or obvious that Samuel Johnson invalidated § 924(c)(3)(B).

      Second, Fox has not shown that bank robbery under § 2113 plainly does not

qualify under § 924(c)(3)’s other definition of the term “crime of violence”—a

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

force against the person or property of another.”        18 U.S.C. § 924(c)(3)(A).

Section 2113(a) provides that bank robbery must be committed “by force and

violence, or by intimidation.” 18 U.S.C. § 2113(a). “Under section 2113(a),


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intimidation occurs when an ordinary person in the teller’s position reasonably

could infer a threat of bodily harm from the defendant’s acts.” United States v.

Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (internal quotation marks omitted).

      We have not expressly held that bank robbery under § 2113(a) qualifies as a

crime of violence as defined by § 924(c)(3)(A), but our precedent supports the

government’s position that it does qualify. See, e.g., United States v. Lockley, 632

F.3d 1238, 1244-45 (11th Cir. 2011) (holding that a Florida robbery statute with a

similar intimidation element categorically qualified as a crime of violence under

the Sentencing Guidelines because it had as an element the use, attempted use, or

threatened use of physical force against another); United States v. Moore, 43 F.3d

568, 572-73 (11th Cir. 1994) (stating that “[t]ak[ing] or attempt[ing] to take by

force and violence or by intimidation . . . encompasses the use, attempted use, or

threatened use of physical force”) (internal quotation marks and citations omitted);

Likewise, at least a few other circuit courts have concluded that § 2113(a)

constitutes a crime of violence under § 924(c)(3)(A). See, e.g., United States v.

Wright, 215 F.3d 1020, 1028 (9th Cir. 2000); Royal v. Tombone, 141 F.3d 596, 602

(5th Cir. 1998); United States v. Adkins, 937 F.2d 947, 950 n.2 (4th Cir. 1991).

      In any case, because Fox has not cited to, and an independent review has not

uncovered, any precedent holding that bank robbery under § 2113(a) is not a




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qualifying offense under § 924(c)(3)(A), he cannot show plain error. See Hesser,

800 F.3d at 1325. We affirm his § 924(c)(1)(A) brandishing conviction.

                                        II.

      Fox also challenges the procedural and substantive reasonableness of his

sentence. We review the reasonableness of a sentence under a deferential abuse-

of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). In reviewing a sentence for reasonableness, we first determine whether the

district court committed procedural error at sentencing before evaluating whether

the sentence was substantively reasonable in light of the totality of the

circumstances. Id.

                                        A.

      Fox first argues that the district court procedurally erred at sentencing by

considering rehabilitation when crafting his sentence of imprisonment.         Fox

arguably did not preserve this argument because he did not clearly “inform the

district court of the legal basis for the objection.” United States v. Massey, 443

F.3d 814, 819 (11th Cir. 2006). He merely objected in general terms that his

sentence was “substantively and procedurally” unreasonable. Regardless of our

standard of review, however, Fox has not shown that resentencing is warranted.

      In Tapia v. United States, the Supreme Court held that a sentencing court

may not impose or lengthen a prison term in order to promote an offender’s


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rehabilitation. 564 U.S. 319, 131 S. Ct. 2382, 2391 (2011). Following Tapia, we

held in Vandergrift that a “Tapia error occurs where the district court considers

rehabilitation when crafting a sentence of imprisonment,” not merely when it

tailors the length of the sentence to permit completion of a rehabilitation program,

or makes rehabilitation the dominant factor in reaching its sentencing

determination. United States v. Vandergrift, 754 F.3d 1303, 1310 (11th Cir. 2014)

(emphasis in original). “Because it is impermissible to consider rehabilitation, a

court errs by relying on or considering rehabilitation in any way when sentencing a

defendant to prison.” Id. at 1311. “This is true regardless of how dominant the

error was in the court’s analysis and regardless of whether we can tell with

certainty that the court relied on rehabilitation because the sentence was tailored to

a rehabilitation program.” Id.

      However, “a court commits no error by discussing the opportunities for

rehabilitation within prison or the benefits of specific treatment or training

programs. To the contrary, a court properly may address a person who is about to

begin a prison term about these important matters.” Tapia, 131 S. Ct. at 2392; see

Vandergrift, 754 F.3d at 1311 (stating that although a district court may discuss

rehabilitation during the sentencing hearing, the court erred because “prison’s

rehabilitative benefits were considered in the course of deciding whether or not

Vandergrift should be sentenced to prison at all”).


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      After careful review, we do not believe that the district court erred in

considering rehabilitation when crafting Fox’s sentence of imprisonment. Fox

cites the following comments from the district court when discussing the § 3553(a)

factors (the emphasis is Fox’s):

             In addition to reflecting the seriousness of the offense, a
             sentence should promote respect for the law, act as a
             deterrent, and protect the public. You are a danger to the
             public unless and until you receive and follow the advice
             and assistance of experts who can help you understand
             and address your psychological issues, your drug abuse
             issues, those tendencies that you have, your depression. .
             . . . When you get out of prison, your chances of finding
             a job are not gonna get any better. They’ll be
             substantially less likely or worse and that depression will
             always be there or that potential for depression. So under
             those circumstances, your supervision will be a challenge
             to the United States Probation Office and that should be
             addressed in the sentence as well.

             [. . . .]

                    The bottom line in this case is however troubled
             you may be as an individual, however skewed your
             thinking may have been, you committed an offense,
             actually two offenses, that placed yourself and others in
             jeopardy and society cannot allow individuals like
             yourself to present that risk. So you need to address it
             while in custody and once you’re out.              As [the
             prosecutor] says, we could be talking about something
             much more serious in terms of injury to others if that gun
             had discharged either intentionally or accidently.

      While the district court did reference the need for Fox to address his mental-

health issues, these comments do not show that the district court considered the


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need for rehabilitation in its decision to impose or lengthen his term of

imprisonment. Rather, it appears that the district court was primarily responding to

Fox’s arguments related to his mental-health issues and drug addiction. Moreover,

there is nothing improper about the court’s discussion with Fox of his opportunities

for rehabilitation while in prison or the benefits of treatment programs. See Tapia,

131 S. Ct. at 2392.

       But even assuming that the district court committed Tapia error, Fox has not

shown that remand for resentencing is warranted. 3               While a sentence can be

unreasonable if it “was substantially affected by [the court’s] consideration of

impermissible factors,” “a district court’s consideration of an impermissible factor

at sentencing is harmless if the record as a whole shows the error did not

substantially affect the district court’s selection of the sentence imposed.” United

States v. Williams, 456 F.3d 1353, 1361-62 (11th Cir. 2006), abrogated on other

grounds by Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007); see

Vandergrift, 754 F.3d at 1311 (stating that Tapia error is treated no differently than

“any other instance where a court considers an impermissible sentencing factor”).

       Here, the record conclusively demonstrates that any rehabilitative

considerations “constituted only a minor fragment of the court’s reasoning.” See

       3
         We do not agree with the government that, indulging the assumption that Tapia error
occurred, such error was invited. Nevertheless, we do note the difficulty courts may face in
attempting to respond to sentencing arguments related to mental health or drug addiction without
being accused of committing Tapia error.
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Vandergrift, 754 F.3d at 1312 (quoting United States v. Bennett, 698 F.3d 194, 200

(4th Cir. 2012)).        The primary consideration of the district court was the

seriousness of the offense, repeatedly emphasized by the court at sentencing, as

well as, to a lesser extent, the danger Fox posed to the public. For example, near

the end of the hearing, the district court summed up its sentence entirely in terms

of the seriousness of the offense: “a sentence of less than [ten years] would not

adequately reflect the seriousness of the offense.” Based on the record as a whole,

we have no doubt that the error, if any, was harmless under the circumstances. See

Williams, 456 F.3d at 1362.

                                               III.

       Fox next argues that his sentence was substantively unreasonable because it

was greater than necessary to serve the purposes of sentencing in light of Fox’s

age, lack of criminal history, and the court’s Tapia error.

       In sentencing a defendant, the district court must consider the § 3553(a)

factors 4 and then impose a sentence that is “sufficient, but not greater than

necessary to comply with the purposes” of sentencing listed in 18 U.S.C. §

3553(a)(2). These purposes are retribution, deterrence, incapacitation, and, when

appropriate, rehabilitation. See 18 U.S.C. § 3553(a)(2). The weight given to
       4
          The district court must consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable guideline
range, the pertinent policy statements of the Sentencing Commission, the need to avoid
unwanted sentencing disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553
(a)(1), (3)-(7).
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specific § 3553(a) factors is committed to the sound discretion of the district court.

United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We may conclude

that a district court abused its discretion if the court (1) fails to account for a factor

due significant weight, (2) gives significant weight to an irrelevant or improper

factor, or (3) commits a clear error of judgment in balancing the sentencing factors

by arriving at a sentence outside the range of reasonable sentences based on the

facts of the case. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010)

(en banc). “[W]e ordinarily expect a sentence within the Guidelines range to be

reasonable.” United States v. Asante, 782 F.3d 639, 648 (11th Cir. 2015) (internal

quotation marks omitted)

      Here, Fox has not shown that the district court abused its discretion in

sentencing him. Fox was sentenced to 36 months in prison for the bank-robbery

offense, within the guideline range of 30 to 37 months, to be followed by a

consecutive term of seven years in prison for the brandishing offense. Before

sentencing him, the court thoughtfully weighed the § 3553(a) factors and

considered Fox’s arguments. The district court adequately explained the weight it

gave to the seriousness of the offense based on Fox’s use of a firearm during the

bank robbery, which posed a serious risk to the victims and himself. See United

States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (attaching “great weight”

to the seriousness of the offense did not render the sentence unreasonable).


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Despite his age and lack of criminal history, Fox has not shown that the district

court committed a clear error of judgment in balancing the proper factors. See

Irey, 612 F.3d at 1190.

      AFFIRMED.




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