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

                             FOR THE TENTH CIRCUIT                        February 1, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-3282
                                                (D.C. Nos. 6:16-CV-01166-JTM and
PATRICK H. McGUIRE,                                   6:92-CR-10096-JTM-1)
                                                             (D. Kan.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Patrick McGuire seeks a certificate of appealability (“COA”) to appeal the

district court’s dismissal of his 28 U.S.C. § 2255 motion. We deny a COA and

dismiss the appeal.

                                           I

      Following a jury trial in 1993, McGuire was convicted of aiding and abetting

an armed bank robbery. He was acquitted on additional charges of carrying a firearm

during and in relation to a crime of violence and being a felon in possession of a

firearm. The presentence investigation report (“PSR”) recommended a sentence

enhancement under U.S.S.G. § 4B1.1(B), based on findings that McGuire was at least

      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
eighteen years old at the time of his offense, he had two prior felony convictions

involving crimes of violence, and his instant offense qualified as a crime of violence

under the Guidelines. The district court adopted the findings and recommendations

in the PSR and sentenced McGuire to 25 years’ imprisonment.

      McGuire filed his § 2255 motion in district court on May 31, 2016, arguing

that his sentence should be vacated under Johnson v. United States, 135 S. Ct. 2551

(2015). The district court denied relief, holding that McGuire had erroneously

asserted he was convicted of carrying a firearm during and in relation to a crime of

violence under 18 U.S.C. § 924(c). The court further concluded that even if it

construed McGuire’s motion as challenging his sentence enhancement under the

Guidelines’ career offender provisions, his bank robbery conviction constituted a

crime of violence without reliance on the unconstitutional “residual clause” of

U.S.S.G. § 4B1.2(1)(ii) (1989). The court declined to issue a COA, which McGuire

now seeks from this court.1

                                           II

      A movant may not appeal the denial of habeas relief under 28 U.S.C. § 2255

without a COA. § 2253(c)(1)(B). A COA will issue “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). A

movant meets this standard by demonstrating “that reasonable jurists could debate

      1
         Although the PSR, judgment of conviction, indictment, and jury instructions
from McGuire’s criminal trial were not part of the record on appeal, we exercise our
discretion to take judicial notice of these documents, which were publicly filed in
prior proceedings in the district court or this court. See United States v. Ahidley, 486
F.3d 1184, 1192 n.5 (10th Cir. 2007).
                                           2
whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted).

       In his application to this court, McGuire asserts that he was convicted of

carrying a firearm during and in relation to a crime of violence under § 924(c), and

that this conviction must be vacated in light of Johnson. But as the district court

correctly noted, McGuire was not convicted of that charge. Accordingly, he has not

stated a claim for relief.

       Even construing McGuire’s application liberally to assert that his sentence for

the bank robbery conviction was unconstitutionally enhanced based on a finding that

federal bank robbery constitutes a “crime of violence” under § 4B1.1,2 we conclude

he has not made a substantial showing of the denial of a constitutional right. At the

time of McGuire’s conviction, § 4B1.2 defined a “crime of violence” as

       any offense under federal or state law punishable by imprisonment for a
       term exceeding one year that (i) has as an element the use, attempted
       use, or threatened use of physical force against the person of another, or
       (ii) is burglary of a dwelling, arson, or extortion, involves use of


       2
        McGuire does not cite to § 4B1.1 in either his initial § 2255 motion or his
application for a COA. However, he does argue that he was subject to a sentence
enhancement under the “residual clause” of § 924(c), and that this clause was
invalidated by Johnson. Section 4B1.2(1)(ii) of the Guidelines, which defines “crime
of violence,” contains language identical to the residual clause in § 924. Compare
U.S.S.G. § 4B1.2(1)(ii) (1989), with 18 U.S.C. § 924(e)(2)(B)(ii). In construing
McGuire’s pro se filings liberally, we assume he meant to challenge the sentence
enhancement imposed pursuant to § 4B1.1.

                                           3
      explosives, or otherwise involves conduct that presents a serious
      potential risk of physical injury to another.

(emphasis added). The second clause of subsection (ii) is identical to § 924’s

residual clause, which was held unconstitutionally vague in Johnson. Accordingly, if

McGuire’s sentence was enhanced under that provision, he could be entitled to relief.

See United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that the

residual clause of § 4B1.2 is unconstitutionally vague).

      As the district court concluded, however, McGuire’s federal bank robbery

conviction qualifies as a predicate offense under the elements clause of § 4B1.2(1)(i)

because it contains, as an element, the use or threatened use of force.3 Because

§ 2113(a) is divisible,4 we apply the modified categorical approach to determine

which elements of the statute formed the basis of McGuire’s conviction. See

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (stating that courts

presented with a statute that “sets out one or more elements of the offense in the

alternative” may look to certain types of documents, such as indictments and jury

instructions, “to determine which alternative formed the basis of the defendant’s prior


      3
        That McGuire was convicted as an aider and abettor and not as a principal is
irrelevant to our analysis. Under 18 U.S.C. § 2, “[w]hoever commits an offense
against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.”
      4
        Section 2113(a) includes at least two sets of divisible elements: (1) taking,
or attempting to take, by force, violence, or intimidation, property from a bank; and
(2) entering or attempting to enter any bank, credit union, or savings and loan
association with the intent to commit a felony. See United States v. McBride, 826
F.3d 293, 296 (6th Cir. 2016) (noting that § 2113(a) “seems to contain a divisible set
of elements, only some of which constitute violent felonies”).
                                           4
conviction”). Review of the indictment and jury instructions from McGuire’s

criminal trial reveals that he was charged and convicted of aiding and abetting in the

taking, by force and violence, and by intimidation, from the person or presence of

another, approximately $68,256.00 belonging to a bank.

      McGuire’s crime of conviction thus has “as an element the use, attempted use,

or threatened use of physical force against the person of another.” § 4B1.2(1)(i).

Although § 2113(a) includes a taking “by intimidation,” courts have stated that

“intimidation” involves the threat of physical force. See, e.g., McBride, 826 F.3d at

295-96; Lloyd v. United States, No. CIV 16-0513, 2016 WL 5387665, at *5 (D.N.M.

Aug. 31, 2016) (unpublished) (“The Courts of Appeals have uniformly ruled that

federal crimes involving takings ‘by force and violence, or by intimidation,’ have as

an element the use, attempted use, or threatened use of physical force.”); cf. United

States v. Harris, No. 16-1237, 2017 WL 34458, at *9 (10th Cir. Jan. 4, 2017) (to be

published in F.3d) (holding that Colorado robbery, whether committed by force, or

by threats or intimidation, “has as an element the use or threatened use of physical

force against another”). Moreover, courts have consistently held that federal bank

robbery qualifies as a predicate offense under the Guidelines’ elements clause. See,

e.g., McBride, 826 F.3d at 295-96; United States v. Jenkins, 651 F. App’x 920, 925

(11th Cir. 2016) (unpublished); United States v. Selfa, 918 F.2d 749, 751 (9th Cir.

1990). Accordingly, even construing McGuire’s application liberally, no reasonable

jurist would debate the district court’s denial of habeas relief.



                                            5
                                     III

     For the foregoing reasons, we DENY McGuire’s application for a COA and

DISMISS the appeal.


                                      Entered for the Court


                                      Carlos F. Lucero
                                      Circuit Judge




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