United States v. Campbell, No. 15-3869 (7th Cir. 2017)

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Justia Opinion Summary

Campbell, age 69 years, has been diagnosed with schizoaffective and post‐traumatic stress disorders. In 2012, Campbell was residing in a Chicago Reentry Center, completing his sentence for a 2005 conviction for entering a bank with intent to commit robbery. He was given a pass to a hospital but entered a grocery store. He walked through the store, gathering sunglasses, a turquoise and purple squirt gun, and a bottle of tequila. He entered the restroom, turned his shirt inside out, put on the sunglasses, and drank the liquor. He then approached the tellers at a branch bank inside the store. Pointing the squirt gun, he said, “Let’s make this easy.” The tellers filled his bag with $1495. Campbell was arrested in the parking lot. . He was indicted for bank robbery by intimidation, 18 U.S.C. 2113(a). In 2015, his competency restored, Campbell agreed to plead guilty and that he would be a career offender under U.S.S.G. 4B1.1(a) because bank robbery by intimidation is a crime of violence. His lawyer nonetheless argued that the crime of violence definition requires specific intent and bank robbery by intimidation is a general intent offense. The district court and Seventh Circuit disagreed, finding that bank robbery by intimidation is a crime of violence under the elements clause of the pre-2016 version of section 4B1.2(a).

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 3869 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JERRY CAMPBELL, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 cr 00398 — Edmond E. Chang, Judge. ____________________ ARGUED MAY 16, 2017 — DECIDED JULY 31, 2017 ____________________ Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. The issue in this appeal is whether federal bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) is a crime of violence for purposes of the pre 2016 federal Sentencing Guideline provision for career of fenders in U.S.S.G. § 4B1.2(a). We have held that federal bank robbery by intimidation satisfies the elements clause of the statutory definition of a crime of violence under 18 U.S.C. § 924(c). United States v. Williams, — F.3d —, No. 16 3373 (7th 2 No. 15 3869 Cir. July 27, 2017); United States v. Armour, 840 F.3d 904 (7th Cir. 2016). In this appeal, we hold that federal bank robbery by intimidation is also a crime of violence for the purposes of applying the pre 2016 versions of the career offender Guide line and affirm the decision of the district court.1 Today, plaintiff Jerry Campbell is 69 years old. He has been diagnosed with schizoaffective and post traumatic stress dis orders and has a long history of mental health treatment. Un fortunately, Campbell also has a long and rather unsuccessful history of committing robberies. In May 2012, Campbell was 64 years old and residing in the Salvation Army Residential Reentry Center in Chicago, having been released to the halfway house to complete his sentence for a 2005 conviction for entering a bank with intent to commit bank robbery. He was given a pass to Cook County Hospital for a psychological examination on May 24, 2012, and he left the hospital without a doctor’s authorization on May 27, 2012. Later that day, he entered a grocery store that had a branch bank inside. He withdrew $35, which was the balance of his checking account. He then walked through the grocery portion of the store, gathering a pair of sunglasses, a turquoise and purple squirt gun with an orange tip, and a bot tle of tequila. He entered the restroom, turned his shirt inside out, put on the sunglasses, and drank the liquor. He then left the restroom and approached the bank tellers at the bank. 1 Effective August 1, 2016, U.S.S.G. § 4B1.2(a) was amended to remove the so called residual clause in the definition of a crime of violence, but robbery was added to the list of enumerated crimes of violence. U.S.S.G. app. C, amend. 798. The amendment adding robbery to the list of enumer ated crimes cannot be applied retroactively to Campbell’s 2012 crime. See Peugh v. United States, 569 U.S. —, —, 133 S. Ct. 2072, 2078 (2013). No. 15 3869 3 Pointing the squirt gun, he said, “Let’s make this easy,” and “Hey big boy, I want both drawers from you.” The tellers filled his shopping bag with $1495 in currency. Campbell left the store but was promptly arrested in the parking lot. He had some of the money on his person. The Chicago police officers who caught him found more cash un der a car in the parking lot. He was indicted on a single count of bank robbery by intimidation in violation of 18 U.S.C. § 2113(a). Soon after the indictment, Campbell was found mentally incompetent by the district court and hospitalized for two years to restore competency. Then, in July 2015, with compe tency restored, Campbell entered a plea agreement in which he agreed to plead guilty to bank robbery by intimidation and agreed that he would be a career offender under U.S.S.G. § 4B1.1(a) because bank robbery by intimidation is a crime of violence. In anticipation of sentencing, however, his lawyer filed a sentencing memorandum arguing that the career of fender Guideline should not apply because the crime of vio lence definition in U.S.S.G. § 4B1.2(a)(1) requires specific in tent and bank robbery by intimidation is a general intent of fense. The district court disagreed, finding that bank robbery by intimidation is a crime of violence under the elements clause of § 4B1.2(a) even though it is also a crime of general intent. The judge calculated the guideline range to be 151–188 months. Without the career offender designation, the sentenc ing range would have been 57–71 months. Judge Chang care fully considered the mental health and age of Campbell and imposed a below guideline sentence of 100 months in prison. Campbell now appeals the district court decision to treat him as a career offender under the Sentencing Guidelines. He 4 No. 15 3869 argues that bank robbery by intimidation does not require the intentional mens rea necessary for a crime of violence to count under the elements clause toward application of the career of fender Guideline. We review de novo the district court’s deci sion as to whether bank robbery qualifies as a crime of vio lence under § 4B1.2(a)(1). United States v. Edwards, 836 F.3d 831, 834 (7th Cir. 2016). For the following reasons, we reaffirm our prior holdings that bank robbery by intimidation is a crime of violence, so we affirm the district court’s application of the career offender Guideline. The elements clause of § 4B1.2(a)(1) reads: (a) The term “crime of violence” means any of fense 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 per son of another … .2 To determine if an offense is a crime of violence under the el ements clause, we apply the categorical approach. Edwards, 836 F.3d at 833; United States v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009); see generally Descamps v. United States, 570 U.S. —, —, 133 S. Ct. 2276, 2283 (2013) (describing categorical ap proach). Courts look only to the statutory elements of the crime, without paying attention to the specific facts of the case, such as Campbell’s mental health or his use of a colorful plastic squirt gun (however relevant those circumstances 2 The elements clause in the definition was not affected by Amend ment 798 in 2016. No. 15 3869 5 were for sentencing). Descamps, 570 U.S. at —, 133 S. Ct. at 2283, citing Taylor v. United States, 495 U.S. 575, 600 (1990). We presume the conviction rested on the least serious acts that would satisfy the statute. Johnson v. United States, 559 U.S. 133, 137 (2010). We have twice found that bank robbery by intimidation is a crime of violence as defined in the elements clause of 18 U.S.C. § 924(c)(3) which closely mirrors the language of § 4B1.2(a)(1). Williams, — F.3d at —, slip op. at 7–8; Armour, 840 F.3d at 908. Similar language is found in “elements clauses” in 18 U.S.C. § 16(a), § 924(c), § 924(e), and U.S.S.G. § 4B1.2(a), and courts’ interpretations of the clauses generally have been interchangeable. See, e.g., Woods, 576 F.3d at 404 (“[W]e … refer to the ACCA and the career offender provi sions of the Guidelines interchangeably.”). (The elements clauses in § 16(a) and § 924(c)(3) include the use of force against property as well as persons, but that difference does not matter here.) In Armour, we found that intimidation in § 2113(a) means the threat of force. The government proves intimidation when “a bank robber’s words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance will be met with force.” 840 F.3d at 909 (citations omitted). The type of force giving rise to that reasonable fear, we held, could satisfy the low threshold re quired by the elements clause of the crime of violence defini tion. Id. at 908–09. We thus concluded that bank robbery by intimidation was a crime of violence under the elements clause of § 924(c). Id. at 909. 6 No. 15 3869 In Williams, we addressed whether § 924(c) demanded that the predicate crime of bank robbery requires that the intimi dation be intentional. Williams, — F.3d at —, slip op. at 5–7. The defendant argued that § 2113(a) does not require that the robber intend to intimidate the victim or bank teller, and thus that the crime could not be a crime of violence under the ele ments clause of § 924(c)(3), which requires intentional use or threats of force. We rejected that argument. We found that Williams’s argument regarding the intent requirement of in timidation was imported from, and better suited to, statutes criminalizing pure threats. Intimidation as an element of a bank robbery does not occur by negligent or accidental con duct. It is caused by an intentional threat of force. See Wil liams, — F.3d at —, slip op at 6–7. Similar to the argument made in Williams, Campbell ar gues that § 2113(a) requires only general intent, which he con tends is insufficient to meet the higher mens rea of specific in tent he argues is required by the Guidelines. In short, accord ing to Campbell, because bank robbery by intimidation is a general intent crime, it cannot be a crime of violence. Campbell is correct that § 2113(a) is a crime of general in tent. United States v. Durham, 645 F.3d 883, 891 n.1 (7th Cir. 2011), citing Carter v. United States, 530 U.S. 255, 269–70 (2000) (explaining that knowingly engaging in acts of using force and taking money satisfies “general intent” requirement of bank robbery, even if defendant might not intend to deprive bank permanently of possession of money). However, the cases cited by Campbell fail to support his argument that gen eral intent crimes cannot satisfy the definition of crime of vi olence in the Guidelines. He relies on Rutherford for the asser tion that § 4B1.2(a)(1) addresses only intentional acts. United No. 15 3869 7 States v. Rutherford, 54 F.3d 370, 373 (7th Cir. 1995). In Ruther ford, we reasoned that a “drunk driving accident is not the re sult of plan, direction, or purpose” and held that reckless or negligent conduct—in that case an assault conviction for driv ing under the influence and causing bodily injury—did not satisfy the intentional use of force requirement in the guide line definition. Id. at 372. Rutherford does not stand, however, for the proposition that only specific intent crimes qualify as crimes of violence. Rutherford and similar cases address crimes based on negli gent or reckless conduct, not general intent crimes like bank robbery. 54 F.3d at 373–74 (addressing negligent and reckless criminal acts as falling outside of the elements clause of § 4B1.2(1) (1995)); United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) (holding that “the residual clause of the ACCA” ex cludes “those crimes with a mens rea of negligence or reckless ness”). Moreover, in United States v. Castleman, the Supreme Court found only that the use of force requirement in 18 U.S.C. § 922(g) requires “a higher degree of intent than negli gent or merely accidental conduct,” and never stated that gen eral intent crimes could not constitute crimes of violence. 572 U.S. —, —, 134 S. Ct. 1405, 1415 (2014), citing Leocal v. Ashcroft, 543 U.S. 1, 9–10 (2004) (holding that conviction for driving un der influence of alcohol and causing serious bodily injury was not crime of violence warranting deportation under definition in § 16(a)). In Woods, we observed: “In separating out purposeful, vi olent, and aggressive crimes as the bases for enhancement of a later, unrelated criminal sentence, Congress was attempting to focus on those offenders whose criminal history evidenced a high risk for recidivism and future violence.” 576 F.3d at 411 8 No. 15 3869 (citations omitted). Not only is bank robbery by intimidation a “purposeful, violent, and aggressive” crime, Campbell’s long record of robberies is not inconsistent with the type of criminal history signaling “a high risk for recidivism and fu ture violence.” Id.; see also, e.g., Armour, 840 F.3d. at 909 (bank robbery by intimidation “inherently contains a threat of vio lent physical force”). Campbell argues that “Armour does not address the issue presented in this appeal.” For the foregoing reasons, we disa gree. We addressed nearly the same argument in Williams and are not persuaded that we should interpret the elements clause of U.S.S.G. § 4B1.2(a)(1) any differently than we inter preted § 924(c)(3) as applied to bank robbery in Williams and Armour. Bank robbery by intimidation is a crime of violence under the elements clause of the definition in § 4B1.2(a)(1). The decision of the district court is AFFIRMED.

Primary Holding

Bank robbery by intimidation is a crime of violence under the elements clause of the pre-2016 version of U.S.S.G. 4B1.2(a).

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