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

                       FOR THE TENTH CIRCUIT                        April 12, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                    No. 17-2131
                                         (D.C. Nos. 2:16-CV-00563-MV-KBM)
MARTIN MICHAEL YBARRA,                         and 2:09-CR-00900-MV-1
                                                       (D.N.M.)
       Defendant - Appellant.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
                  _________________________________

      Mr. Martin Ybarra pleaded guilty to possessing a firearm after being

convicted of a felony. See 18 U.S.C. § 922(g). In determining the sentence,

the district court found that Mr. Ybarra had three prior convictions for

violent felonies, triggering the Armed Career Criminal Act’s establishment

of a minimum term of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1).




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

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our 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).
With the finding of three prior convictions for violent felonies, the court

imposed a fifteen-year sentence.

      Mr. Ybarra moved under 28 U.S.C. § 2255 to vacate his sentence,

alleging that the fifteen-year minimum did not apply because federal bank

robbery (18 U.S.C. § 2113(a)) did not constitute a violent felony. The

district court denied relief, and we affirm.

I.    Application of the Fifteen-Year Minimum Sentence Under the
      Armed Career Criminal Act

      Under the Armed Career Criminal Act, Mr. Ybarra would be subject

to a fifteen-year minimum sentence if he had three or more past

convictions for violent felonies. The issue here is whether Mr. Ybarra’s

three prior convictions for federal bank robbery involved violent felonies.

      The Armed Career Criminal Act contains three clauses defining the

term “violent felony”:

      1.    Elements Clause: The statute of conviction contains “as an
            element the use, attempted use, or threatened use of physical
            force” against another person. 18 U.S.C. § 924(e)(2)(B)(i).

      2.    Enumerated-Offense Clause: The conviction is for burglary,
            arson, extortion, or another crime involving the use of
            explosives. 18 U.S.C. § 924(e)(2)(B)(ii).

      3.    Residual Clause: The conviction otherwise involved conduct
            creating a serious potential risk of physical injury to another
            person. Id.

      The parties agree that Mr. Ybarra’s convictions for federal bank

robbery did not satisfy the Enumerated-Offense Clause. And the Supreme


                                      2
Court held in Johnson v. United States that the Residual Clause is

unconstitutionally vague. 135 S. Ct. 2551, 2556-63 (2015). Mr. Ybarra

invokes Johnson, arguing that the fifteen-year minimum is no longer

applicable because his convictions for federal bank robbery would

constitute violent felonies only under the unconstitutional Residual Clause.

But the district court relied on a different clause, the Elements Clause,

concluding that it applied to federal bank robbery. We agree.

II.    Standard of Review

       The district court denied Mr. Ybarra’s § 2255 motion as a matter of

law, and we engage in de novo review. See United States v. Harris, 844

F.3d 1260, 1263 (10th Cir. 2017), cert. denied, ___ U.S. ___, 2018 WL

1568033 (Apr. 2, 2018).

III.   Elements Clause

       We use the categorical approach to decide whether federal bank

robbery constitutes a violent felony under the Elements Clause. United

States v. Hammons, 862 F.3d 1052, 1054 (10th Cir. 2017). Under the

categorical approach, we compare the elements of federal bank robbery to

the statutory definition of a “violent felony.” See United States v. Titties,

852 F.3d 1257, 1265-66 (10th Cir. 2017). The statutory definition of a

“violent felony” is a crime that “has as an element the use, attempted use,

or threatened use of physical force against the person of another.” 18

U.S.C. § 924(e)(2)(B)(i); see p. 2, above.

                                       3
      The parties agree that the federal bank-robbery statute is divisible

and that Mr. Ybarra was convicted under the section stating:

      Whoever, by force and violence, or by intimidation, takes, or
      attempts to take, from the person or presence of another, . . .
      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 . . .
      [s]hall be fined under this title or imprisoned not more than
      twenty years, or both.

18 U.S.C. § 2113(a). Thus, we must decide whether bank robbery “by force

and violence, or by intimidation” requires “the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C.

§§ 924(e)(2)(B)(i), 2113(a).

      A.    The Bank-Robbery Statute and the Definition of “Violent
            Felony”

      We held in United States v. McGuire that the statute for federal bank

robbery (18 U.S.C. § 2113(a)) has “‘as an element the use, attempted use,

or threatened use of physical force against the person of another.’” 678 F.

App’x 643, 645 (10th Cir. 2017) (unpublished) (quoting 18 U.S.C.

§ 924(e)(2)(B)(i)). McGuire was based on the sentencing guidelines rather

than the Armed Career Criminal Act. But case law interpreting the

guideline term “Crime of Violence” is persuasive in interpreting the phrase

“Violent Felony” under the Armed Career Criminal Act. See United States

v. Moyer, 282 F.3d 1311, 1315 (10th Cir. 2002). Though McGuire is

unpublished, it is persuasive.


                                      4
     We consider not only our unpublished opinion in McGuire but also

the consensus of other federal appellate courts. Nine circuit courts have

considered whether the federal bank-robbery statute (18 U.S.C. § 2113(a))

constitutes a “crime of violence” or a “violent felony,” and all of these

courts have answered “yes.” See United States v. Watson, 881 F.3d 782

passim (9th Cir. 2018) (per curiam) (holding that federal bank robbery is a

crime of violence under 18 U.S.C. § 924(c)(3)); United States v. Williams,

864 F.3d 826, 827, 830 (7th Cir. 2017) (same); Holder v. United States,

836 F.3d 891, 892 (8th Cir. 2016) (per curiam) (same); In re Sams, 830

F.3d 1234, 1238-39 (11th Cir. 2016) (per curiam) (same); United States v.

McNeal, 818 F.3d 141, 153, 157 (4th Cir. 2016) (same); United States v.

Wilson, 880 F.3d 80, 84-85 (3d Cir. 2018) (holding that federal bank

robbery is a crime of violence under U.S.S.G. § 4B1.2); United States v.

Ellison, 866 F.3d 32 passim (1st Cir. 2017) (same); United States v.

Brewer, 848 F.3d 711, 716 (5th Cir. 2017) (same); United States v.

McBride, 826 F.3d 293, 296 (6th Cir. 2016) (same).

     Based on McGuire and the uniform body of case law in other circuits,

we conclude that the federal bank-robbery statute requires “the use,

attempted use, or threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B)(i).




                                      5
      B.   Mr. Ybarra’s Arguments

      Mr. Ybarra presents four arguments against characterizing his federal

bank-robbery convictions as violent felonies:

     1.    Federal bank robbery does not require proof of violent physical
           force because the robbery can be accomplished with de minimis
           force or no force at all.

     2.    “Intimidation” does not inherently include a threat of violent
           physical force because physical injury can be caused without
           the use of physical force.

     3.    Federal bank robbery does not require proof that the use,
           attempted use, or threatened use of physical force be directed
           against the person of another.

     4.    The test for intimidation is inherently speculative.

These arguments fail.

      First, Mr. Ybarra contends that the federal bank-robbery statute can

be violated without the necessary degree of physical force. Under the

Armed Career Criminal Act, “physical force” means “violent force—that

is, force capable of causing physical pain or injury to another person.”

Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original).

Invoking this definition, Mr. Ybarra argues that the federal bank-robbery

statute does not require violent force. We disagree.

      In determining whether the federal bank-robbery statute requires

violent force, we consider the least serious of the acts criminalized by the

statute. See United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017),

cert. denied, ___ U.S. ___, 2018 WL 1568033 (Apr. 2, 2018). Here, the least

                                      6
culpable conduct is intimidation. See United States v. Brewer, 848 F.3d

711, 715 (5th Cir. 2017). Thus, we must decide whether robbery by

intimidation requires the statutorily mandated degree of force.

      The Tenth Circuit’s pattern jury instructions explain that to take “by

means of intimidation” requires the defendant to say or do something that

would cause “a person of ordinary sensibilities [to] be fearful of bodily

harm.” Tenth Circuit Pattern Jury Instruction Criminal § 2.77 at 259-60

(2011). And we have said that taking by intimidation requires conduct and

words “reasonably calculated to put another in fear, or conduct and words

. . . calculated to create the impression that any resistance or defiance by

the [individual] would be met by force.” United States v. Lajoie, 942 F.2d

699, 701 n.5 (10th Cir. 1991) (internal quotations and citations omitted).

Thus, intimidation under the federal bank-robbery statute could exist only

if the defendant had intentionally acted in a way that would cause “a

person of ordinary sensibilities” to fear bodily harm. Tenth Circuit Pattern

Jury Instruction Criminal § 2.77 at 259-60 (2011); see United States v.

Lewis, 628 F.2d 1276, 1279 (10th Cir. 1980) (stating that bank robbery by

intimidation is “‘unambiguously dangerous to others’” (quoting United

States v. DeLeo, 422 F.2d 487, 491 (1st Cir. 1970))). In these

circumstances, we conclude that federal bank robbery has as an element the

use, attempted use, or threatened use of physical force.



                                      7
      Second, Mr. Ybarra complains that bank robbery by intimidation

focuses on bodily harm rather than on physical force. See Tenth Circuit

Pattern Jury Instruction Criminal § 2.77 at 259-60 (2011) (defining “take

by intimidation” to require the defendant to say or do something to cause

“a person of ordinary sensibilities [to] be fearful of bodily harm”). Mr.

Ybarra faults the district court for equating the fear of bodily harm with

the required use of violent physical force. In our view, however, the

district court’s approach was consistent with the Supreme Court’s approach

in United States v. Castleman, 134 S. Ct. 1405 (2014).

      There, the Supreme Court explained that “the knowing or intentional

causation of bodily injury necessarily involves the use of physical force.”

Castleman, 134 S. Ct. at 1414. We applied Castleman in United States v.

Ontiveros, 875 F.3d 533 (10th Cir. 2017), petition for cert. filed (U.S.

Apr. 4, 2018) (No. 17-8367). In Ontiveros, we explained that Castleman

had “specifically rejected the contention that ‘one can cause bodily injury

without the use of physical force.’” 875 F.3d at 536 (quoting Castleman,

134 S. Ct. at 1409). We went on to apply Castleman to violent felonies

under the Armed Career Criminal Act. Id. at 538. Under Ontiveros, we

reject Mr. Ybarra’s argument that the threat of bodily harm does not

include as an element the threat of physical force. 1


1
      Mr. Ybarra contends that Ontiveros was wrongly decided. But we are
obligated to follow Ontiveros in the absence of en banc consideration or a
                                       8
     Third, Mr. Ybarra observes that a crime of violence exists only if the

force is directed against a person. See United States v. Ford, 613 F.3d

1263, 1271 (10th Cir. 2010). Based on this observation, Mr. Ybarra

opposes characterization of federal bank robbery as a crime of violence,

arguing that physical force need not be directed at another person. We

disagree.

     The federal bank-robbery statute requires that the taking be from the

person or presence of a person by means of force and violence or

intimidation. See 18 U.S.C. § 2113(a). This requirement confines the force

to the person controlling the property. Thus, even the least serious act

criminalized (taking by intimidation) necessarily entails a threat of bodily

harm to the person controlling the property. See Tenth Circuit Pattern Jury

Instruction Criminal § 2.77 at 259-60 (2011) (“To take ‘by means of

intimidation’ is to say or do something in such a way that a person of

ordinary sensibilities would be fearful of bodily harm.”); accord United

States v. Ellison, 866 F.3d 32, 37 (1st Cir. 2017) (concluding “that proving

‘intimidation’ under [the federal bank-robbery statute] requires proving

that a threat of bodily harm was made”); United States v. Kelley, 412 F.3d

1240, 1244 (11th Cir. 2005) (stating that “‘intimidation’” under the federal

bank-robbery statute takes place only if an “‘ordinary person in the teller’s


superseding Supreme Court decision. United States v. Caiba-Antele, 705
F.3d 1162, 1165 (10th Cir. 2012). Thus, our panel must follow Ontiveros.
                                      9
position reasonably could infer a threat of bodily harm’” (quoting United

States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (per curiam))).

      Finally, Mr. Ybarra contends that the test for intimidation is

inherently speculative. Mr. Ybarra forfeited this argument by failing to

raise it in district court. See United States v. Wright, 848 F.3d 1274, 1280-

81 (10th Cir. 2017), petition for cert. filed, ___ U.S. ___, 138 S. Ct. 115

(2017). And on appeal, Mr. Ybarra did not ask for plain error review,

which “‘surely marks the end of the road for an argument for reversal not

first presented to district court.’” United States v. Lamirand, 669 F.3d

1091, 1100 n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 634

F.3d 1123, 1127-28 (10th Cir. 2011)). Thus, we decline to consider Mr.

Ybarra’s new argument.

IV.   Conclusion

      Mr. Ybarra’s prior convictions for federal bank robbery involved

“the use, attempted use, or threatened use of physical force against the

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Thus, the district court

correctly concluded that Mr. Ybarra’s prior convictions involved violent

felonies as defined under the Elements Clause. These prior convictions




                                       10
triggered the statutory 15-year minimum applied, so we affirm the denial

of relief under § 2255.


                                     Entered for the Court


                                     Robert E. Bacharach
                                     Circuit Judge




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