                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 16-10520
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           3:13-cr-00108-
                                                   MMD-VPC-1
 VAN MCDUFFY, AKA Van
 McDuffie,
            Defendant-Appellant.                      OPINION


        Appeal from the United States District Court
                 for the District of Nevada
         Miranda M. Du, District Judge, Presiding

                 Submitted February 15, 2018*
                   San Francisco, California

                       Filed May 15, 2018

Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
           and David C. Nye,** District Judge.

                 Opinion by Judge N.R. Smith


    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
    **
       The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
2                  UNITED STATES V. MCDUFFY

                            SUMMARY***


                            Criminal Law

    The panel affirmed a conviction by jury trial for bank
robbery resulting in death, in violation of 18 U.S.C.
§ 2113(e).

    Rejecting the argument that the sentence enhancement in
§ 2113(e) applies only when a bank robber knowingly kills a
person in the course of a bank robbery, and agreeing with
other circuits, the panel concluded that the only mens rea
required is the mens rea necessary to commit the underlying
bank robbery.

  The panel addressed other issues in a concurrently-filed
memorandum disposition.


                              COUNSEL

Michael J. Kennedy, Law Offices of Michael Jerome
Kennedy PLLC, Reno, Nevada, for Defendant-Appellant.

Adam Flake, Assistant United States Attorney; Elizabeth O.
White, Appellate Chief; Steven W. Myhre, Acting United
States Attorney; United States Attorney’s Office, Las Vegas,
Nevada; for Plaintiff-Appellee.




    ***
        This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. MCDUFFY                            3

                             OPINION

N.R. SMITH, Circuit Judge:

   We agree with the Supreme Court: “Accidents happen.
Sometimes they happen to individuals committing crimes
with loaded guns.” Dean v. United States, 556 U.S. 568, 570
(2009).

    In 18 U.S.C § 2113(e), Congress mandated an enhanced
punishment for an individual who kills a person in the course
of committing a bank robbery. We conclude the enhancement
applies even when the bank robber accidentally kills
someone. The enhancement does not require a separate mens
rea; the only mens rea required is the mens rea necessary to
commit the underlying bank robbery.1

                          I. Background

    On October 16, 2013, Van McDuffy entered a Bank of
America branch in Reno, Nevada, brandished a handgun, and
demanded money from one of the bank tellers. The teller took
the money from the till, put it in a plastic bag, and handed it
to McDuffy. At that moment, Charles Sperry (a bank
customer) attempted to grab the gun from McDuffy.
However, “as he went to grab the gun, [McDuffy] shot him in
the chest.” Sperry subsequently died from his wound. After
shooting Sperry, McDuffy did not end the robbery. Instead,
he calmly approached another teller and forced her to hand
over the money from her till. With the money in hand,


    1
      In this opinion, we address only McDuffy’s claim that § 2113(e)
contains a separate mens rea requirement. We resolve the remaining
claims in a memorandum disposition filed concurrently with this opinion.
4               UNITED STATES V. MCDUFFY

McDuffy then fled the bank. An off-duty police officer who
was in the bank during the robbery pursued McDuffy and
apprehended him at a nearby bus stop.

    The government charged McDuffy with violating several
sections of 18 U.S.C § 2113, which criminalize various acts
of theft perpetrated against banks. Section 2113(a)
criminalizes generic bank robbery, United States v. Watson,
881 F.3d 782, 786 (9th Cir. 2018); § 2113(d) provides an
enhanced sentence if the bank robber assaults any person with
a dangerous weapon; and § 2113(e) provides a further
enhanced sentence “if death results” from the defendant’s
conduct during the bank robbery.

    Section 2113(e) does not contain an explicit mens rea
requirement. Nevertheless, McDuffy urged the district court
to read a mens rea requirement into § 2113(e). He argued that
the enhancement in § 2113(e) should apply only when a bank
robber “knowingly” kills a person in the course of a bank
robbery.2 The district court rejected this argument and
instructed the jury that, to find McDuffy guilty:

       the government must prove each of the
       following elements beyond a reasonable
       doubt:

       First, the defendant took money belonging to
       or in the care, custody, control, management,
       or possession of Bank of America, using force
       and violence, or intimidation in doing so, and
       intentionally made a display of force that

    2
      McDuffy produced some evidence indicating he accidentally
discharged the firearm.
               UNITED STATES V. MCDUFFY                     5

       reasonably caused another person to fear
       bodily harm by using a firearm;

       Second, while doing so, the defendant killed
       Charles Barton Sperry; and

       Third, the deposits of Bank of America were
       then insured by the Federal Deposit Insurance
       Corporation.

The jury found McDuffy guilty. Consequently, the district
court sentenced McDuffy to life imprisonment, as provided
in § 2113(e).

                  II. Standard of Review

    McDuffy appeals, claiming the district court misstated the
law when it instructed the jury that § 2113(e) applies to
accidental killings. “Whether a jury instruction misstates the
law, an element of the crime, or the burden of proof is . . .
subject to de novo review.” United States v. Doe, 705 F.3d
1134, 1143 (9th Cir. 2013).

                       III. Discussion

   On de novo review, we find § 2113(e) does not contain a
separate requirement that the defendant intend the killing
which results from his bank robbery (hereafter, the “mens rea
requirement”). Thus, the enhancement applies even if a bank
robber accidentally kills someone in the course of a bank
robbery. In relevant part, § 2113 directs that

       (a) Whoever by force and violence, or by
       intimidation, takes, or attempts to take, from
6                  UNITED STATES V. MCDUFFY

         the person or presence of another . . . any
         property or money or any other thing of value
         belonging to . . . any bank . . .

         ....

         [s]hall be fined under this title or imprisoned
         not more than twenty years, or both.

         ....

         (d) Whoever, in committing, or in attempting
         to commit, any offense defined in subsections
         (a) and (b) of this section, assaults any person
         . . . by the use of a dangerous weapon or
         device, shall be fined under this title or
         imprisoned not more than twenty-five years,
         or both.

         (e) Whoever, in committing any offense
         defined in this section . . . if death results shall
         be punished by death or life imprisonment.

18 U.S.C. § 2113(a), (d), (e).3

    In Carter v. United States, the Supreme Court determined
the mens rea requirement in § 2113(a). 530 U.S. 255, 269
(2000). It concluded that, to establish a violation of § 2113(a),


    3
       Section 2113(e) also provides an enhancement if the defendant
“forces any person to accompany him without the consent of such
person.” When we refer to § 2113(e), we are referring to the enhancement
that applies “if death results,” because that is the portion of the statute at
issue on appeal.
                  UNITED STATES V. MCDUFFY                             7

the government must prove the defendant acted with “general
intent—i.e., proof of knowledge with respect to the actus
reus” of generic bank robbery. Id. “Put differently, the
prosecution must show that the defendant knew ‘the facts that
ma[de] his conduct fit the definition of the offense.’” United
States v. McNeal, 818 F.3d 141, 155 (4th Cir. 2016) (quoting
Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)).

    Although not necessarily determining that § 2113(d)
contains a mens rea requirement, we have held that “use” of
a deadly weapon in § 2113(d) requires more than mere
possession. United States v. Odom, 329 F.3d 1032, 1035 (9th
Cir. 2003). Thus, “[t]he common denominator to the
decisions affirming convictions under § 2113(d) is that the
robber knowingly made one or more victims at the scene of
the robbery aware that he had a gun, real or not.” Id.
(emphasis added). McDuffy does not challenge this
interpretation.4

    With that background in mind, we now turn to
interpreting § 2113(e). When interpreting a statute, “[w]e
start, as always, with the language of the statute.” Williams v.
Taylor, 529 U.S. 420, 431 (2000). The language of § 2113(e)
does not contain an explicit mens rea requirement. However,
the Supreme Court has determined that, even when a statute
does not specify a mens rea, “[s]ome indication of
congressional intent, express or implied, is required to


    4
      The jury found McDuffy guilty of violating § 2113(e). The district
court treated bank robbery with a dangerous weapon under §§ 2113(a), (d)
as a lesser included offense of bank robbery resulting in death under
§§ 2113(a), (e). Thus, in accordance with the jury instructions, the jury
never determined whether McDuffy qualified for the lesser enhancement
in § 2113(d).
8               UNITED STATES V. MCDUFFY

dispense with mens rea as an element of a crime.” Staples v.
United States, 511 U.S. 600, 606 (1994) (italics omitted). In
the cases where congressional intent is lacking in the statute,
courts must read a mens rea requirement into the statute, but
“only that mens rea which is necessary to separate wrongful
conduct from ‘otherwise innocent conduct.’” Carter v. United
States, 530 U.S. 255, 269 (2000) (italics omitted) (quoting
United States v. X-Citement Video, Inc., 513 U.S. 64, 72
(1994)). We are tasked with applying this framework to the
enhancement in § 2113(e).

    The Supreme Court has already confronted this issue in
the context of a similar sentencing enhancement. Dean,
556 U.S. at 570. In Dean, the Supreme Court was asked to
determine the mens rea that applied to the sentencing
enhancement in 18 U.S.C. § 924(c)(1)(A)(iii). Id. Section
924(c)(1)(A) provides that

       any person who, during and in relation to any
       crime of violence or drug trafficking crime
       . . . for which the person may be prosecuted in
       a court of the United States, 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 or drug trafficking crime–

           (i) be sentenced to a term of imprisonment
           of not less than 5 years;

           (ii) if the firearm is brandished, be
           sentenced to a term of imprisonment of
           not less than 7 years; and
               UNITED STATES V. MCDUFFY                     9

           (iii) if the firearm is discharged, be
           sentenced to a term of imprisonment of
           not less than 10 years.

The Supreme Court looked to both the text and structure of
the statute and concluded that Congress intended to omit a
mens rea requirement in § 924(c)(1)(A)(iii). Id. at 572–73.
First, the Court determined that, when a statute does not
contain an explicit mens rea requirement, “Congress’s use of
the passive voice further indicates that [the enhancement]
does not require proof of intent.” Id. at 572. When Congress
uses the passive voice, “[i]t is whether something
happened—not how or why it happened—that matters.” Id.
Second, the Court pointed to other provisions in the statute
where Congress specifically included a mens rea requirement.
Id. at 572–73. “[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Id. at 573 (alteration in original)
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
Thus, both the text and structure of the statute indicated
Congress purposefully omitted a separate mens rea
requirement. Id. at 572–73.

    But the Court did not stop there. Instead, it determined
that, even if Congress did not intend the omission, it was
unnecessary to read a separate mens rea requirement into the
sentencing enhancement. Id. at 574–77. The Court reasoned
that “[i]t is unusual to impose criminal punishment for the
consequences of purely accidental conduct. But it is not
unusual to punish individuals for the unintended
consequences of their unlawful acts.” Id. at 575. “The felony-
murder rule is a familiar example: If a defendant commits an
10              UNITED STATES V. MCDUFFY

unintended homicide while committing another felony, the
defendant can be convicted of murder.” Id. Thus,

       [t]he fact that the actual discharge of a gun
       covered under § 924(c)(1)(A)(iii) may be
       accidental does not mean that the defendant is
       blameless. The sentencing enhancement in
       subsection (iii) accounts for the risk of harm
       resulting from the manner in which the crime
       is carried out, for which the defendant is
       responsible. An individual who brings a
       loaded weapon to commit a crime runs the
       risk that the gun will discharge accidentally. A
       gunshot in such circumstances—whether
       accidental or intended—increases the risk that
       others will be injured, that people will panic,
       or that violence (with its own danger to those
       nearby) will be used in response. Those
       criminals wishing to avoid the penalty for an
       inadvertent discharge can lock or unload the
       firearm, handle it with care during the
       underlying violent or drug trafficking crime,
       leave the gun at home, or—best yet—avoid
       committing the felony in the first place.

Id. at 576. As a result, the Supreme Court concluded there
was no need to read a mens rea requirement into
§ 924(c)(1)(A)(iii), because “the defendant [was] already
guilty of unlawful conduct” by committing the underlying
“basic crime,” i.e., the crime of violence or drug trafficking
offense. Id. Thus, the sentencing enhancement applies “if a
gun is discharged in the course of a violent or drug trafficking
crime, whether on purpose or by accident.” Id. at 577.
                UNITED STATES V. MCDUFFY                      11

    More recent Supreme Court cases, and our precedent,
further support this reasoning. “The ‘presumption in favor of
a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct.’”
Elonis, 135 S. Ct. at 2011 (quoting X-Citement Video,
513 U.S. at 72) (emphasis added). “[F]acts that increase
mandatory minimum sentences must be submitted to the
jury,” Alleyne v. United States, 570 U.S. 99, 116 (2013),
however, such facts are not statutory elements nor do they
criminalize otherwise innocent conduct. A fact that must be
proved for a mandatory minimum sentence to apply (such as
the quantity of drugs illegally distributed) is not an element
of the “generic crime” but rather “the ‘functional equivalent
of an element’ that [needs] to be submitted to a jury and
proved beyond a reasonable doubt for the purposes of
sentencing alone.” United States v. Vera, 770 F.3d 1232,
1249 (9th Cir. 2014) (quoting United States v. Toliver,
351 F.3d 423, 430 (9th Cir. 2003)). Such predicate facts do
not criminalize otherwise innocent conduct, because the
underlying conviction does not depend on the presence or
absence of the predicate fact. See id. (holding that “[t]he
tainted drug quantity verdict does not affect the validity of the
underlying conspiracy conviction because drug quantity was
not an element of the charged conspiracy offense”). Thus, the
presumption in favor of scienter is lessened, if not altogether
absent, when considering sentencing enhancement provisions.
See Dean, 556 U.S. at 574–77.

    Given this precedent, we simply apply the Supreme
Court’s reasoning in Dean to this case. The text and structure
of § 2113(e) indicate Congress intended to omit a mens rea
requirement. Section 2113(e) makes no mention of a mens rea
and even describes the killing in the passive voice (“if death
results”). These facts suggest Congress intended to omit a
12              UNITED STATES V. MCDUFFY

mens rea requirement. Dean, 556 U.S. at 572. Further, the
structure of § 2113 indicates that the omission was
purposeful. “[W]here Congress includes particular language
in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Id. at 573 (alteration in original) (quoting
Russello, 464 U.S. at 23). Congress specifically included
mens rea requirements in certain subsections of § 2113. For
example § 2113(b) requires “intent to steal or purloin” and
§ 2113(c) criminalizes possession of property stolen from a
bank but only if the defendant knows the property is stolen.
In contrast, Congress was silent in § 2113(e) regarding mens
rea. Thus, we conclude that Congress intended to omit a
separate mens rea requirement in § 2113(e).

   Even assuming Congress’s omission was not purposeful,
we follow Dean; there is no need to read a mens rea
requirement into § 2113(e). The enhancement applies only
when the defendant is guilty of an underlying “basic crime”
such as bank robbery. Committing the basic crime of bank
robbery is already wrongful conduct. See Dean, 556 U.S. at
576. Thus, there is no need to add an additional mens rea
requirement. See Carter, 530 U.S. at 269 (holding that courts
must read a mens rea into a criminal statute only to the extent
necessary to distinguish between wrongful and innocent
conduct).

    Moreover, § 2113(e) is the functional equivalent of the
felony-murder rule but in the form of a sentencing
enhancement. Felony-murder does not require a mens rea
beyond the mens rea necessary to commit the underlying
felony. See Dean, 556 U.S. at 575–76. Neither does the
                UNITED STATES V. MCDUFFY                      13

sentencing enhancement equivalent of felony-murder in
§ 2113(e) require a separate mens rea.

    This conclusion is in accord with our sister circuits. See
United States v. Vance, 764 F.3d 667, 675 (7th Cir. 2014)
(holding that § 2113(e) “duplicates the general federal felony-
murder statute”); United States v. Jackson, 736 F.3d 953,
957–58 (10th Cir. 2013) (“[T]he scienter requirement comes
from ‘knowingly’ committing the underlying bank
robbery.”); United States v. Allen, 247 F.3d 741, 782 (8th Cir.
2001) (“[A] conviction under § 2113(e) for armed robbery in
which a killing occurs does not require an additional finding
of specific intent to kill. Instead, the statute is like common
law felony murder . . . .”), judgment vacated on other grounds
by United States v. Allen, 536 U.S. 953 (2002); United States
v. Poindexter, 44 F.3d 406, 408–09 (6th Cir. 1995) (“[T]he
settled principles of construction direct us to conclude that the
legislature did not intend to add an additional scienter
requirement to the killing component of the crime.”),
superseded by statute on other grounds as recognized in
United States v. Parks, 583 F.3d 923 (6th Cir. 2009).

    Thus, the district court did not err in instructing the jury
that § 2113(e) applies as long as the bank robber kills
someone in the course of the bank robbery, regardless of
whether the killing was accidental. The only mens rea
required is the mens rea necessary to commit the underlying
bank robbery.

    AFFIRMED.
