     Case: 15-10866   Document: 00513880657       Page: 1   Date Filed: 02/17/2017




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

                                   No. 15-10866                        FILED
                                                                February 17, 2017
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff–Appellee,

v.

DAVID LEE BREWER,

             Defendant–Appellant.




Cons w/No. 15-10947


UNITED STATES OF AMERICA,

             Plaintiff–Appellee,

v.

WILLIAM EUGENE BOYD,

             Defendant–Appellant.




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


Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
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                         No. 15-10866 cons. w/No. 15-10947
EDWARD C. PRADO, Circuit Judge:
       This case involves a consolidated criminal appeal in which David Lee
Brewer and William Eugene Boyd (collectively, “the Appellants”) each pleaded
guilty pursuant to a plea agreement to one count of bank robbery. The
Appellants were sentenced as career offenders in separate proceedings. The
Appellants both objected to application of the career-offender enhancement
during sentencing. The district court in both cases overruled this objection, and
Brewer and Boyd now appeal. Because federal bank robbery qualifies as a
crime of violence under § 4B1.2(a)(1), we AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       This case is a consolidated direct appeal of two criminal cases involving
federal bank robbery. A brief summary of the facts of each Appellant’s case
follows.
A.     David Lee Brewer
       On December 17, 2014, David Lee Brewer robbed a bank in Lubbock,
Texas. In January 2015, Brewer was indicted on one count of federal bank
robbery in violation of 18 U.S.C. § 2113(a) and in May of that year he pleaded
guilty. In its presentence report (“PSR”), the Probation Office applied the
career-offender enhancement under U.S.S.G § 4B1.1 because it concluded that
the instant offense was a “crime of violence” and that Brewer had two prior
felony convictions that were either crimes of violence or controlled substance
offenses. This initially raised Brewer’s offense level from 24 to 32 1 and also
raised Brewer’s criminal history category from IV to VI.
       Brewer filed written objections to the PSR’s application of the career-
offender Guidelines enhancement. He raised the same objections later during



       1After considering Brewer’s acceptance of responsibility, Brewer’s total offense level
was reduced to 29.
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the sentencing hearing. The district judge ultimately overruled Brewer’s
objections and accepted the PSR’s recommendation of a sentencing range
between 151 and 188 months. The district judge subsequently sentenced
Brewer at the top of that range.
B.    William Eugene Boyd
      Like Brewer, William Eugene Boyd was indicted under 18 U.S.C.
§ 2113(a) for federal bank robbery and pleaded guilty. The Probation Office
classified Boyd as a career offender based on its conclusion that federal bank
robbery is a “crime of violence” under U.S.S.G. § 4B1.2. This enhancement
raised Boyd’s adjusted offense level to 32 and his criminal history category
from IV to VI.
      Boyd made the same objections as Brewer to the application of the
career-offender enhancement—both in writing and during sentencing.
Thereafter, the district court overruled Boyd’s objections, applied the career-
offender enhancement, calculated an advisory Guidelines range of 151 to 188
months, and imposed a within-range sentence.
      Both Brewer and Boyd timely appealed application of the career-offender
enhancement to federal bank robbery.
                               II. DISCUSSION
      Both Appellants preserved error by arguing before the district court that
their bank robbery convictions do not qualify as “crimes of violence” under
§ 4B1.2 for the purposes of the § 4B1.1 career-offender enhancement.
Accordingly, “[t]his court reviews de novo the characterization of a prior offense
as a crime of violence.” United States v. Flores-Vasquez, 641 F.3d 667, 669 (5th
Cir. 2011).
      Section 4B1.1 provides an enhancement for defendants who qualify as
“career offenders.” See U.S.S.G. § 4B1.1(c). A defendant is considered a “career
offender” if:
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        (1) the defendant was at least eighteen years old at the time the
        defendant committed the instant offense of conviction; (2) the
        instant offense of conviction is a felony that is either a crime of
        violence or a controlled substance offense; and (3) the defendant
        has at least two prior felony convictions of either a crime of violence
        or a controlled substance offense.
U.S.S.G. § 4B1.1(a). Here, Appellants only argue that their instant convictions
of federal bank robbery do not constitute “crimes of violence.” When the
Appellants were sentenced, the Guidelines defined “crime of violence” as
follows:
        The term “crime of violence” means any offense under federal or
        state law, punishable by imprisonment for a term exceeding one
        year, that—
              (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. 2
U.S.S.G. § 4B1.2(a) (U.S. Sentencing Comm’n 2015). At the time, the
application notes to § 4B1.2 added that a “‘[c]rime of violence’ includes murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery,
arson, extortion, extortionate extension of credit, and burglary of a dwelling.”




   2An amended version of this provision went into effect on August 1, 2016. The provision
now reads:
        The term “crime of violence” means any offense under federal or state law,
        punishable by imprisonment for a term exceeding one year, that—
              (1) has as an element the use, attempted use, or threatened use of
              physical force against the person of another, or
              (2) is murder, voluntary manslaughter, kidnapping, aggravated
              assault, a forcible sex offense, robbery, arson, extortion, or the use or
              unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or
              explosive material as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a) (U.S. Sentencing Comm’n 2016).
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U.S.S.G. § 4B1.2 cmt. n.1. Appellants argue that federal bank robbery does not
fall within either clause contained in § 4B1.2(a).
      We “employ a categorical approach when classifying a conviction for
enhancement purposes, . . . and ‘the analysis is grounded in the elements of
the statute of conviction rather than a defendant’s specific conduct.’” United
States v. Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir. 2014) (per curiam)
(quoting United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013)); accord
United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).
Under the categorical approach, we “assume[] that the defendant committed
the least culpable act to satisfy the count of conviction as long as there is ‘a
realistic probability, not a theoretical possibility, that the State would apply
its statute to [that conduct].’” United States v. Carrasco-Tercero, 745 F.3d 192,
198 (5th Cir. 2014) (emphasis omitted) (quoting Moncrieffe v. Holder, 133 S.
Ct. 1678, 1685 (2013)). To show a realistic probability exists when a statute of
conviction is not plain on its face, it is helpful for an offender to “at least point
to his own case or other cases in which [a] court[] in fact did apply the statute
in the special . . . manner for which he argues.” Id. (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). In other words, “[t]heoretical
applications of a statute to conduct that would not constitute a crime of
violence do not demonstrate that the statutory offense is categorically not a
crime of violence.” Id. at 197–98.
      Here, Appellants were convicted of federal bank robbery. A person
commits this offense when he:
      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 . . . .

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18 U.S.C. § 2113(a). Robbery by intimidation constitutes the least culpable
conduct for which a defendant can be convicted under the statute. 3 Thus, the
question before this Court is whether a robbery by intimidation necessarily
involves conduct that fits within either definition of “crime of violence”
articulated in § 4B1.2(a).

      As to § 4B1.2(a)(1), the Appellants argue that a burglary by intimidation
can occur without threatened, attempted, or actual use of force. Specifically,
the Appellants contend that the broad definition this Court used for
“intimidation” in United States v. Higdon, 832 F.2d 312 (5th Cir. 1987), permits
a conviction for federal bank robbery “even without a threat to actually use
force.” In Higdon, this Court explained that “intimidation results when one
individual acts in a manner that is reasonably calculated to put another in
fear.” 832 F.2d at 315. “Thus, from the perspective of the victim, a taking ‘by
intimidation’ under section 2113(a) occurs when an ordinary person in the
[victim’s] position reasonably could infer a threat of bodily harm from the
defendant’s acts.” Id. Although the Appellants are correct that on its face this
definition would appear to include conduct other than a threat to use physical
force—for example, poisoning or arson—our case law does not support such an
interpretation.
      For example, the facts in Higdon itself show that intimidation in the
bank-robbery context is inherently tied to a threatened use of force. In that
case, the defendant made “insistent demands that the tellers empty their cash
drawers under circumstances calculated to engender fear and surprise in
banking personnel.” Higdon, 832 F.2d at 315. The Court found that the
defendant’s “scarcely-veiled threat of some unarticulated reprisal should the



      3 Moreover, the parties do not dispute that both Appellants were convicted of robbery
by intimidation.
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                       No. 15-10866 cons. w/No. 15-10947
two victims ‘dare’ to get up from the floor [was] pungent with intimidation.” Id.
And the Court noted that it could “discern the aggressive, coercive nature of
[the defendant’s] terse and pointed orders” and that even the defendant’s
“posture   in   the   surveillance   photographs . . . exude[d]   an   aggressive,
threatening presence as he lean[ed] over the teller counter and, with his right
hand, demand[ed] compliance by his gestures.” Id. at 315–16. Although the
Court did not find an express threat of destructive or violent force, it
nevertheless concluded the evidence was sufficient to uphold the defendant’s
conviction for federal bank robbery “by intimidation.” Id. at 316.
      The facts of Higdon show that while an express threat to use force may
not be required for a conviction of robbery by intimidation, an implicit threat
to use force is required. The kind of “intimidation” that suffices to put a victim
in fear of bodily injury during the course of a bank robbery, and which would
in turn allow a defendant to complete such a robbery, is the very sort of threat
of immediate, destructive, and violent force required to satisfy the “crime of
violence” definition. It is hard to imagine any successful robbery accomplished
by threatening some far-removed reprisal that does not involve physical force.
While the Appellants have presented several examples of cases where courts
have found evidence sufficient to support a conviction for federal bank robbery
by intimidation where no express threat was made, these cases do not
demonstrate bank robbery could be accomplished without at least an implicit
threat of direct physical force. See, e.g., United States v. Hopkins, 703 F.2d
1102, 1103 (9th Cir. 1983) (noting that the victim “testified that during the
course of [the defendant’s] attempt she felt intimidated, frightened, and
concerned for her unborn child” and that “the threats implicit in [the
defendant’s] written and verbal demands for money provide sufficient evidence
of intimidation to support the jury’s verdict”); United States v. Robinson, 527
F.2d 1170, 1172 (6th Cir. 1975) (concluding that “[a]n ‘ordinary person’ in the
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                          No. 15-10866 cons. w/No. 15-10947
teller’s position could reasonably . . . infer an implicit threat in the demand,
‘Give me all your money,’ accompanied by the presentation of a ‘black pouch’”). 4
       And the decisions of other circuits likewise support our conclusion that
robbery by intimidation must involve at least an implicit threat to use force.
Other circuit courts to consider this issue have determined that federal bank
robbery constitutes a crime of violence. See, e.g., United States v. Wright, 957
F.2d 520, 521 (8th Cir. 1992) (holding federal bank robbery is a “crime of
violence” under § 4B1.2(a)(1) because it involves the threat of force); United
States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same); United States v. Selfa,
918 F.2d 749, 751 (9th Cir. 1990) (same); United States v. Maddalena, 893 F.2d
815, 819 (6th Cir. 1989) (same).
       Because the Appellants have failed to present any cases showing that
robbery by intimidation can be accomplished without at least an implicit threat
to use force, we agree with our sister circuits that federal bank robbery is a
crime of violence under U.S.S.G. § 4B1.2(a)(1). Accordingly, we do not address
the parties’ other arguments regarding the application notes or the residual
clause of § 4B1.2(a)(2).
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court.




       4Although none of the cases cited by the Government expressly state that the “threat”
found by the court is a threat of physical violence, this seems to be the conclusion implicit in
these holdings. Certainly, none of these cases suggests that the “threat” communicated by
the defendant or experienced by the victim is a threat of some removed bodily injury that
does not involve physical violence.
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