Godwin v. United States of America (INMATE 3), No. 2:2016cv00509 - Document 45 (M.D. Ala. 2020)
Court Description: OPINION. The court will adopt the report and recommendation that the petition be denied, but for the reasons stated here. An appropriate judgment will be entered. Signed by Honorable Judge Myron H. Thompson on 2/28/2020. (dmn, )
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Godwin v. United States of America (INMATE 3) Doc. 45 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION JERALD DEAN GODWIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:16cv509-MHT (WO) OPINION Petitioner Jerald Dean Godwin, a federal inmate, filed this lawsuit seeking habeas relief pursuant to 28 U.S.C. § 2255. He challenges his conviction and 84-month sentence for brandishing a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(A)(ii). this conviction as The petition challenges unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). This lawsuit is now before the court on the recommendation of the United States Magistrate Judge that Godwin’s petition be denied. Godwin objected to Dockets.Justia.com the recommendation, and the parties have additional briefing ordered by the court. filed After an independent and de novo review of the record, the court concludes that Godwin’s objections should be overruled and the magistrate judge’s recommendation adopted, albeit for somewhat different reasons. I. BACKGROUND In March 2010, Godwin pleaded guilty to both bank robbery, in violation of 18 U.S.C. § 2113(a), and brandishing a firearm during and in relation to a crime of violence, in violation of § 924(c)(1)(A)(ii). The predicate the “crime firearm-brandishing of violence” conviction was underlying the bank robbery. The district court sentenced him to 70 months in prison for the bank robbery, plus a consecutive 84 months for the firearm conviction. In June 2016, Godwin filed a motion requesting that his § 924(c) firearm conviction and sentence be vacated 2 based on the Supreme Court’s decision in Johnson. The magistrate judge construed this motion as a motion to alter, U.S.C. denying amend or vacate § 2255. the The petition prejudice. the magistrate and Godwin judgment pursuant judge dismissing timely to 28 recommended the case with objected to the recommendation. II. DISCUSSION Godwin § 924(c), challenges a his statute conviction that for criminalizes violating the use, carrying, possession, or brandishing of a firearm in connection with a “crime of violence.”1 1. The statute provides for a mandatory-minimum sentence of five years’ imprisonment consecutive to any other sentence upon conviction of using, carrying, or possessing a firearm “during and in relation to” or “in furtherance of” a “crime of violence.” 18 U.S.C. § 924(c)(1)(A)(i) & (D)(ii). However, “if the firearm is brandished,” the minimum sentence increases to seven years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(ii) & (D)(ii). 3 Section 924(c) defines a “crime of violence” as “an offense that is a felony and--" “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or “(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3). Subpart A is frequently referred to as the “elements clause” and subpart B the “residual clause.” See, e.g., United States v. Davis, 139 S. Ct. 2319, 2324 (2019).2 Godwin argues that his § 924(c) firearm conviction is invalid because the statute’s residual clause unconstitutionally vague in light of Johnson. is Johnson involved a challenge to a sentence under a different statute, the Armed Career Criminal Act (ACCA), which 2. The Eleventh Circuit Court of Appeals also has at times referred to the former clause as the “use-of-force” clause. See, e.g., In re Saint Fleur, 824 F.3d 1337, 1339 (11th Cir. 2016). 4 establishes an enhanced mandatory-minimum sentence when a defendant convicted of being a prohibited person in possession of a firearm has three or more prior convictions for a “serious drug offense” or a “violent felony.” 18 U.S.C. § 924(e). The ACCA defines the term “violent felony” in part as an offense that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious another.” added.) phrase, potential 18 risk U.S.C. of physical injury § 924(e)(2)(B)(ii) to (emphasis The Supreme Court held that the italicized referred to as the “residual clause,” is unconstitutionally vague under the due process clause of the Fifth Amendment. Johnson, 135 S. Ct. at decision in 2555-2560, 2563. Godwin contends that the Court’s Johnson renders unconstitutional the similarly worded residual clause in the definition of “crime of violence” in § 924(c), the statute criminalizing the 5 use, carrying, possession, or brandishing of a firearm during a crime of violence. Three years after Godwin filed his habeas petition, the Supreme Court agreed: In United States v. Davis, the Court extended its ruling in Johnson and held that § 924(c)’s residual clause, like the ACCA’s residual clause, is unconstitutionally vague. 139 S. Ct. at 2325-2333, 2336. Since Davis announced a new substantive rule, see In re Hammoud, 931 F.3d 1032, 1038 (11th Cir. 2019), it applies retroactively to cases on collateral review, such as this one, see Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (explaining that new substantive rules apply retroactively on collateral review); see also Welch v. United States, 136 S. Ct. 1257, 1268 (2016) (concluding “that Johnson announced a substantive rule that has retroactive effect in cases on collateral review.”). The upshot is that Godwin’s bank-robbery conviction does not qualify as a crime of 6 violence under § 924(c)’s residual clause, because Davis voided that clause for vagueness. A. § 924(c)’s Residual Clause Still, the success of Godwin’s residual-clause argument is not enough to invalidate his conviction for brandishing a firearm during a crime of violence. succeed, he resulted must from clause.” show that application Hammoud, 931 “his of § 924(c) solely F.3d at the To conviction residual 1041 (citations He may make this showing in two ways. First, he omitted). “may rely on the relevant record,” Weeks v. United States, 930 F.3d 1263, 1273 (11th Cir. 2019), to show “that--more likely than not--it was use of the residual clause that” was the basis for the firearm conviction. Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017). in the Godwin concedes that the record of proceedings trial court “is silent” 7 as to whether his conviction was based on the residual clause. Petitioner’s Second Supplemental Brief (doc. no. 43) at 7-8. Nothing presentence in the indictment, investigation plea report, agreement, judgment, or transcripts suggests reliance on either the residual clause or the elements clause of § 924(c). Godwin’s argument fails to this extent, for “[i]f it is just as likely that the sentencing court relied on the elements ... clause, solely or as an alternative basis for the [conviction]..., that his then [conviction] residual clause.” precedent otherwise making movant ... has was due failed to use to show of the rely “on Beeman, 871 F.3d at 1222. Alternatively, legal the to at prevail, the Godwin relevant obvious, that a may time ‘holding, violation [of or the relevant ... criminal statute] qualified as a violent felony only under the residual clause.’” Weeks, 930 F.3d at 1273 (quoting Beeman, 871 F.3d at 1224). It must be kept in mind that the holding of a case is 8 quite narrow and fact-specific. See United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (“We have pointed out many times that regardless of what [our] court says in its opinion, the decision can hold nothing beyond the facts of that case.” (citation and internal quotations omitted.)). Also, and critically, this inquiry is “a historical” one. at 1224 n. 5. sentencing Beeman, 871 F.3d “[I]f the law was clear at the time of that only the residual clause would authorize a finding that the prior conviction was a violent felony, that circumstance would strongly point to a sentencing per the residual clause.”3 Id. A later 3. Had Godwin challenged his § 924(c) firearm conviction on direct appeal, then the relevant time period would run not only through the time of sentencing, but also through the end of his appeal. See Weeks, 930 F.3d at 1275 (“Because the basis for the enhanced sentence did not become fixed until after the direct appeal, it is necessary in such a case to look to the record and binding precedent through the time of direct appeal to determine whether the claimant has shown ‘that--more likely than not--it was use of the residual clause that led to the ... enhancement of his sentence.’”). Godwin, however, did not appeal his 9 decision about the law as it stands currently would “cast[] very little historical fact.” light” on the “question of Id. Godwin has failed to identify the required legal precedent. He was convicted in June 2010, and he has not identified any law, as of that date, “holding, or otherwise making obvious, that a violation [of the bank robbery statute under which he was convicted] qualified as a violent felony only under the residual clause.” Id. at 1224. B. § 924(c)’s Elements Clause Godwin nevertheless attempts to establish that his firearm-brandishing conviction rested on the residual clause by showing that his conviction could not rest on the elements clause. His argument is essentially that, because there are only two ways to establish a crime of conviction or sentence, so the basis for his conviction became fixed at the end of his sentencing. 10 violence under § 924(c)--the elements clause and the residual clause--“disproving one is necessarily proof of the other.” Beeman, 871 F.3d at 1230 (Williams, J., dissenting). Because Godwin’s argument, although foreclosed by binding circuit law as shown later, has some plausibility, the court will set it forth in some detail. To begin, it is helpful to understand the approach that applies constitutes similar when a determining crime statutes. constitutes a crime of violence Whether of whether under a violence an offense § 924(c) particular under and offense § 924(c)’s elements clause is a question of law that a court “must answer ‘categorically’--that is, by reference to the elements of the offense, and not the actual facts of [a defendant’s] conduct.” United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013), overruled on other grounds by Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc), abrogated on other 11 grounds by Davis, 139 S. Ct. at 2325-33. Accordingly, the question is whether a given statute of conviction “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” (quoting 18 U.S.C. McGuire, 706 F.3d § 924(c)(3)(A)). at “Only 1336 if the plausible applications of the statute of conviction all require the use or threatened use of force can [a defendant] be held guilty of a crime of violence” under the elements clause. Put differently, categorically § 924(c)’s Id. at 1337 (emphasis added). qualify elements a as conviction crime clause if of there does violence is a not under “realistic probability” that the statute of conviction would apply to conduct that does not involve the use, attempted use, or threatened use of physical force. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); accord United States v. St. Hubert, 909 F.3d 335, 350 (11th 12 Cir. 2018) (applying the “realistic probability” standard to the “crime of violence” determination under 18 U.S.C. § 924(c)(3)(A)), cert. denied, 139 S. Ct. 1394 (2019), abrogated in part on Davis, 139 S. Ct. at 2324, 2336. other grounds by To show a realistic probability, a defendant or petitioner generally “must at least point to his own case or other cases in which the ... courts in fact did apply the statute” without requiring the use, attempted use, or threatened use of physical force.4 St. Hubert, 909 F.3d at 350 (internal quotation mark omitted) (quoting United States v. Hill, 832 F.3d 135, 140 (2d Cir. 2016) (quoting in part convicted of bank Duenas-Alvarez, 549 U.S. at 193)). As noted earlier, Godwin was robbery under 18 U.S.C. § 2113(a), which establishes, in relevant part, that a defendant who “by force and 4. However, such a showing is unnecessary in those cases where the “statutory language itself” clearly creates the realistic probability. Ramos v. U.S. Attn’y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013). 13 violence, take, or from by the intimidation, person or takes, presence or of attempts to 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” is guilty of bank robbery. Godwin makes two main arguments why there is a “realistic probability” that § 2113(a) would apply to conduct that does not, as required by the elements clause, involve the use, attempted use, or threatened use of physical force. First, he contends that such a realistic probability exists because bank robbery under § 2113(a) can be committed by extortion, which need not involve the use or threatened use of physical force. Second, he argues that § 924(c)’s elements clause requires a higher level of mens rea than that required for a § 2113(a) conviction. 14 1. Physical Force Argument Godwin contends that, when a categorical analysis is applied, § 2113(a) does not have “as an element the use, attempted force,” 18 use, U.S.C. or threatened § 924(c)(3)(A) use of physical (emphasis added), given that it can be committed by “by extortion,” 18 U.S.C. § 2113(a). To determine whether the phrase “by extortion” § 2113(a) renders categorically overbroad, the first step is to assess whether the statute is divisible between “by extortion” on the one hand, and “by force and violence, or intimidation” on the other. i. Divisibility Section 2113(a) is a disjunctively phrased statute, in that it criminalizes bank robbery “by force and violence, or by intimidation ... or ... by extortion.” 18 U.S.C. § 2113(a) (emphasis added). United States, the Supreme Court In Mathis v. explained how to conduct categorical analysis of criminal statutes with “disjunctive phrasing.” 136 S. Ct. 2243, 2253 (2016). 15 Courts terms must in start an by determining “alternatively elements or means.” whether phrased the statute listed ... are Id. at 2256. “Elements are the constituent parts of a crime’s legal definition--the things the prosecution conviction.” omitted). must Id. at 2248 Means, on the prove (internal other to sustain quotation hand, are a marks different factual methods of committing a single element of a crime. A See id. at 2249. disjunctively alternative elements phrased defines considered “divisible.” confronted with a statute multiple See divisible id. that crimes at statute, lists and 2248. the is When court may apply the “modified categorical approach” and examine certain documents determine the set from of defendant’s conviction. the record elements of that conviction applied in to the United States v. Gundy, 842 F.3d 1156, 1162 (11th Cir. 2016) (citing Mathis, 136 S. Ct. at 2249). These elements 16 are then used to determine whether the conviction constituted a crime of violence under the elements clause of § 924(c). By contrast, a statute listing “various factual means of committing a single offense ... is considered indivisible, and that indivisible set of elements will be the basis (internal of the quotation defendant’s marks conviction.” omitted). If a Id. statute’s indivisible set of elements encompasses more criminal conduct than the elements clause of § 924(c), then a conviction under the statute does not qualify as a crime of violence under that clause. Mathis outlined three tools for determining whether a statute’s listed terms are elements or means--that is, whether the statute is divisible. First, statute on its face may resolve the issue.” 136 S. Ct. at 2256. carry different elements.” Id. “the Mathis, For instance, if the “alternatives punishments, Second, ... courts may they look must at be court decisions interpreting a disjunctively phrased statute. 17 See id. clear “If a precedential ... court decision makes that a statute’s alternative phrasing simply lists alternative methods of committing one offense, such that a jury need not agree on which alternative method the defendant committed in order to sustain a conviction, then the statute is not divisible.” 842 F.3d at 1163 (internal quotation (quoting Mathis, 136 S. Ct. at 2256). tools “fail[] to provide clear marks Gundy, omitted) If the first two answers,” judges may “peek” at the record of conviction itself “for the sole and limited purpose of determining whether the listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256-57 (internal quotation marks and alterations omitted) (citation omitted). As discussed below, while there is support for the opposite support Godwin’s conclusion in caselaw, position as well, albeit that there from § 2113(a) is other is significant circuits, not a crime for of violence under § 924(c)’s elements clause because the 18 bank-robbery statute is not divisible between “by force and violence, or by intimidation” on the one hand, and “by extortion” on the other. ii. “By extortion” Section 2113(a) provides, in relevant part: “Whoever, 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 ...; or Whoever enters or attempts to enter any bank, ..., or any building used in whole or in part as a bank ..., with intent to commit in such bank ..., or part thereof, so used, any felony affecting such bank, ... and in violation of any statute of the United States, or any larceny— Shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 2113(a). The First, Third, Circuit Courts of Fourth, Appeals Sixth, have all and Seventh stated that § 2113(a) is comprised of two offenses: one is codified 19 in the first paragraph of § 2113(a)--which contains the disjunctive phrasing at issue here--and the other is codified in § 2113(a)’s second paragraph, which criminalizes entering a bank with the intent to commit a felony or any larceny therein. See, e.g., United States v. Williams, 841 F.3d 656, 659 (4th Cir. 2016) (“As its text makes clear, subsection 2113(a) can be violated in two distinct ways: (1) bank robbery, which involves taking or attempting to take from a bank by force [and violence], intimidation, or extortion; and (2) bank burglary, which simply involves entry or attempted entry into a bank with the intent to commit a crime therein.”) (quoting United States v. Almeida, 710 F.3d 437, 440 (1st Cir. 2013)); United States v. Loniello, 610 F.3d 488, 496 (7th Cir. 2010) (explaining that “§ 2113(a) creates two crimes,” one defined in the first paragraph, and the other in the second paragraph); see also United States v. Wilson, 880 F.3d 80, 84 n.3 (3rd Cir. 2018) (accepting district court’s 20 determination that “§ 2113(a) was a divisible statute because it contained two paragraphs, each containing a separate version of the crime”). By stating that § 2113(a) contains two offenses codified separately in the first and second paragraphs, these opinions thus suggest that § 2113(a) is divisible only between the first and second paragraphs. Several § 2113(a) paragraph. opinions is not indicate further more divisible expressly within its that first For example, in United States v. McBride, the Sixth Circuit explained that “Section 2113(a) seems to contain a divisible set of elements, only some of which constitute violent felonies--taking property from a bank by force and violence, or intimidation, or extortion on one hand and entering a bank intending to commit any felony affecting it (e.g., such as mortgage fraud) on the other.” 2016) (emphasis added). 826 F.3d 293, 296 (6th Cir. The “on one hand ... on the other” structure of this sentence reflects the court’s 21 view that § 2113(a) contains only two alternative offenses, each respectively codified in the first and second paragraphs, instead of the first paragraph being divisible into more offenses. Even more Williams element explicitly, repeatedly of force the referred and Fourth to a violence, Circuit single in “robbery intimidation, or extortion,” reinforcing the conclusion that the court interpreted those disjunctively listed terms to be different means of satisfying one element, rather than as alternative elements. 841 F.3d at 657-660, n.3. Similarly, an unpublished Third Circuit opinion also explicitly stated intimidation or that extortion the force alternatives and violence, comprised one single element: “The elements of the crime are: [1] taking or attempting to take, [2] anything of value, [3] by force and violence, by intimidation, extortion from a financial institution ....” or by United States v. Lewis, 720 Fed. App’x 111, 115 (3rd Cir. 22 2018) (unpublished) (internal quotation marks omitted) (quoting United States v. Askari, 140 F.3d 536, 548 (3d Cir. 1998) (en banc), vacated and superseded on other grounds on reconsideration, 159 F.3d 774 (3d Cir. 1998); see also United States v. Ellison, 866 F.3d 32, 36 n.2 (1st Cir. 2017) (“[T]he statute includes both ‘by force extortion’ and violence, as separate or intimidation’ means of and committing ‘by the offense.” (emphasis added)). The Ninth Circuit Court of Appeals stands alone as the only circuit court to conclude, in United States v. Watson, 881 F.3d 782, 786 (2018), paragraph of § 2113(a) is divisible. that the first There, the court rejected the contention that “§ 2113(a) prohibits one indivisible offense of bank robbery with three alternative means of committing it: (1) by force and violence; (2) by intimidation; or (3) by extortion.” Id. Instead, the court held, § 2113(a) is divisible between “bank robbery and bank extortion.” 23 Id. The explain string Ninth its Circuit’s Watson reasoning, citation to decision instead three simply authorities, clearly supports Watson’s holding. does not providing none of a which The first authority cited is United States v. Jennings, 439 F.3d 604, 612 (9th Cir. 2006). court appears to Based on the pincite, the Watson be referring to the assertion in Jennings that § 2113(a) “covers not only individuals who take property from a bank ‘by force and violence, or by intimidation,’ ... but also those who obtain property from a bank by extortion and those who enter a bank with the intent to commit a felony therein.” (quoting 18 U.S.C. § 2113(a)). phrasing is far from clear. in Watson also provides Id. Yet the import of this The second authority cited little support its holding. United States v. Eaton, 934 F.2d 1077, 1079 (9th Cir. 1991), merely states that “[b]ank robbery under section 2113(a) is defined, in relevant part, as taking ‘by force and violence, or by 24 intimidation ... or ... by extortion’ anything of value from the ‘care, custody, control, management, or possession of, any bank ....’” Id. (quoting 18 U.S.C. § 2113(a)). It is not clear how this statement supports the conclusion that § 2113(a) is divisible between bank robbery by force and violence or intimidation on the one hand, and by extortion on the other. Indeed, one could read this statement as indicating that the single offense of “bank robbery” can be committed by the alternative means of force and violence, intimidation, or extortion. The third cited instructions--in source, particular, Ninth “9th Circuit jury Crim. Jury Cir. Instr. 8.162”--do not support Watson’s holding that the first paragraph of § 2113(a) is divisible between bank robbery and bank extortion. The instructions (d) for set bank § 2113(a) & forth element”: “[First, the violence or Watson, 881 F.3d at 786. robbery the following defendant, intimidation, 25 under through [took] 18 U.S.C. the “first force and [obtained by extortion] [[property] [money] belonging to the management or or in care, possession institution];]”. 9th [something Cir. of custody, [specify Crim. Jury (2010 Edition, updated Sept. 2018).5 two more separate elements. of value]] control, financial Instr. 8.162 It then sets forth See id. Far from supporting Watson’s holding, the jury instructions, by listing the disjunctive phrasing in the description of the first “element,” suggest that the alternative terms are separate means of satisfying a single element. In contrast with Watson, the other circuit court opinions cited here point out that the text of § 2113(a) indicates that it is divisible between the first and second paragraphs. F.3d at 659. See, e.g., Williams, 841 The two separate paragraphs are most naturally read to codify two separate offenses, with the first paragraph setting forth alternative means of 5. Watson does not specify which edition of the jury instructions it was referring to. 26 wrongfully acquiring property. As Judge Easterbrook explained in Loniello, the first and second paragraphs of § 2113(a) are “self-contained units,” and, like in “many other criminal statutes,” the “or” between the two paragraphs is meant to “group multiple offenses to show that the same penalty applies.” 610 F.3d at 493; see also id. (“The form in § 2113(a) is ‘Whoever does x [comprising elements 1, 2, 3, and 4] or y [comprising elements 4, 5, 6, and 6] shall be imprisoned not more than z years,’ where each set of 4 elements describes a complete offense.”). Additionally, as Godwin argues, the history of § 2113(a) strongly suggests that Congress intended “by extortion” to be an alternative means of committing the single offense of bank robbery. criminalized only taking Before 1986, § 2113(a) property “by force and violence, or by intimidation,” and contained no express reference to extortion. See United States v. Cataldo, 832 F.2d 869, 870 n.1 (5th Cir. 1987). 27 Federal courts interpreting “divided this over former the question proscribed extortionate who, a from place version of § 2113(a) whether this conduct--e.g., outside the a bank, were provision perpetrator threatens the family of a bank official in order to cause the bank official to remove money from the bank and deliver it to a specified location.” H.R. Rep. No. 99-797, 32, 1986 U.S.C.C.A.N. 6138, 6155. could be prosecutd could be prosecuted under under Some had held that it § 2113(a), the others Hobbs Act, held 18 it U.S.C. § 1951, while still others held that either would be appropriate. Id. conduct prosecutable is Explaining that under” the “[e]xtortionate then-existing version of § 2113(a),6 Congress amended the statute to add the extortion language simply for “clarification” that § 2113(a) was the exclusive statute “for 6. See, e.g., United States v. Golay, 560 F.2d 866, 869 (8th Cir. 1977) (“Where the crime of bank robbery is committed by extortionate means, as was the case here, we feel it would be appropriate to convict” under the Federal Bank Robbery Act). 28 prosecuting extortionate activity involving the obtaining of bank monies,” and to overrule those courts that had held that it was prosecutable only under the Hobbs Act or under both statutes. 56. According to the Id. at 32-33, 6155- legislative history, Congress added the “by extortion” language to § 2113(a), not to create a new § 2113(a) is offense, the but to appropriate make Fifth Circuit, that under which statute prosecute bank robbery by extortion. the clear “Congress the to As summarized by amended § 2113(a) to include a clause that expressly brings bank robbery by extortionate 2113(a).” added). means within Cataldo, 832 the F.2d coverage at 870 of n.1 section (emphasis For the foregoing reasons, there is a strong argument that “by extortion” is a means of committing, rather than an element of, bank robbery, and accordingly, that the first paragraph of § 2113(a) is not divisible. 29 Assuming the first paragraph of § 2113(a) is not divisible, it would serve as “the basis of [Godwin’s] conviction.” Gundy, 842 F.3d at 1162. Godwin’s conviction would not qualify as a crime of violence under § 924(c)’s “realistic 193, that elements probability,” a defendant clause if there Duenas-Alvarez, could be were 549 U.S. convicted a at under § 2113(a) even though his crime did not involve “the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c). If extortion were treated as a means rather than an element in § 2113(a), it appears, there could be such a realistic possibility. Section 2113(a) does not define “extortion.” legislative statute history adding the for the 1986 extortion amendment language The to the offers the following definition: “The term ‘extortion’ as used in 18 U.S.C. 2113(a) means obtaining property from another person, without the other person's consent, induced by 30 the wrongful violence, use or of actual fear.”). H.R. U.S.C.C.A.N. 6138, 6156. the definition of REP. threatened 99-797, force, 33, 1986 This is almost identical to “extortion” Act, 18 U.S.C. § 1951. or codified in the Hobbs See 18 U.S.C § 1951(b)(2) (“The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”). The Eleventh Circuit Court of Appeals has held that “[f]ear of economic loss is a type of fear within the purview” of extortion under § 1951. United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir. 1984) (citations omitted); see also United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980) (affirming conviction for attempted extortion under 18 U.S.C. § 1951 based on defendant’s exploitation of victim’s “fear of economic loss”). Because the term “extortion” as defined in the Hobbs Act encompasses fear of economic 31 loss, robbery by extortion could be committed without the use, attempted use, or threatened use of physical force. first paragraph robbery by robbery of force by § 2133(a) and violence extortion, categorically is broader it than not or Thus, if the divisible intimidation would § 924(c)’s seem to into and be physical-force requirement. If, in the alternative, the generic definition of extortion were applied to § 2113(a), the result would appear to be the same. In interpreting other federal statutes that similarly leave the term undefined, the Supreme Court has filled this gap by defining “generic” extortion as “obtaining something of value from another with his consent induced by the wrongful use of force, fear or threats.” Inc., 537 Scheidler v. Nat’l Org. for Women, U.S. 393, 409-410 (2003) (defining “extortion” for RICO purposes) (citing United States v. Nardello, 393 “extortion” U.S. for the 286, 290, Travel 32 296 Act)); (1969) see (defining also United States v. Montiel-Cortes, 849 F.3d 221, 228 (5th Cir. 2017) (“The generic, contemporary definition of extortion is “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.”); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088 n.2 (11th Cir. 2004) (using the same definition for conduct “capable of being generically classified as extortionate”) U.S. at 409-410). applied gaps in its Scheidler, 537 Just as the Supreme Court has long generic other (citing definition federal of statutes, extortion this same to fill generic definition could be applied to § 2113(a). The Supreme Court’s definition of generic extortion encompasses criminal conduct that does not involve “the use, attempted use, or threatened use of physical force against example, the in person or Nardello, property the Court of another.” squarely held For that extortion encompasses obtaining money through “threats to expose alleged homosexual conduct.” 33 393 U.S. at 295-96 (defining generic extortion and holding that the “indictment encompasses a type of activity generally known as extortionate since money was to be obtained from the victim exposure”). by virtue Thus, if of the fear and generic threats of definition of extortion applies to § 2113(a), and the first paragraph of § 2113(a) § 2113(a) is not arguably divisible, would not a conviction under constitute a crime of § 2113(a) bank-robbery violence under § 924(c). *** To summarize, conviction whether categorically a qualifies as a crime of violence under § 924(c)’s elements clause depends on whether § 2113(a) is divisible into separate offenses of bank robbery by extortion and bank robbery by force and violence or intimidation. There is a serious argument that it is not divisible in this way, and, accordingly, that the offense does not constitute crime of violence under § 924(c)’s elements clause. 34 a 2. Mens Rea Argument Godwin conviction also does contends not that his bank-robbery categorically meet the elements clause’s definition of a crime of violence because the mens rea requirement for the elements clause is higher than the mens conviction by rea required for intimidation a bank-robbery under § 2113(a). Convictions for offenses satisfied by the negligent or accidental force do use, not attempted qualify use, as crimes § 924(c)’s elements clause. 543 U.S. worded 1, or threatened of use violence of under See Leocal v. Ashcroft, 9 (2004) (interpreting elements clause in 18 U.S.C. the identically § 16(a), which defines the term “crime of violence” for a variety of criminal and noncriminal statutes). In Leocal, the Supreme Court held that the “use” of force requires “active employment” rather than “negligent or merely accidental conduct.” Id. 35 at 9, 10. The Eleventh Circuit has applied Leocal’s mens rea requirement for § 16(a)’s elements clause to the identically worded elements clause in § 924(c), which is at issue here. See McGuire, offense people of on 706 F.3d attempting board at to 1337-38 disable satisfied the (concluding an aircraft elements clause that with of § 924(c) because it “involves an ‘active crime’ done ‘intentionally’ against the property of another, with extreme and manifest indifference to the owner of that property and the wellbeing of the passengers”) (citing Leocal, 543 U.S. at 7, 9). While Leocal and McGuire make clear that negligent or accidental elements conduct clause, it does remains not satisfy unsettled § 924(c)’s whether the minimum required mens rea for an offense to qualify as a crime of violence is either knowing or reckless.7 See 7. The key difference between reckless and knowing is that the former requires that one “consciously disregard a substantial risk that the conduct will cause harm to another,” whereas the latter requires 36 United (2014) States v. (“Leocal Castleman, reserved 572 the U.S. 157, question 169 n.8 whether a reckless application of force could constitute ‘use’ of force.”). In Existing caselaw points in both directions.8 any “realistic case, Godwin probability” argues that a that there defendant in is a the Eleventh Circuit could be convicted of § 2113(a) bank that one be “aware that harm is practically certain.” Voisine v. United States, 136 S. Ct. 2272, 2278 (2016) (internal quotation marks, alterations, and citations omitted). 8. Compare Voisine, 136 S. Ct. at 2276 (holding that a reckless mens rea satisfies the elements clause of the definition of a “misdemeanor crime of domestic violence,” which is similarly worded to § 924(c)’s elements clause), with United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010) (concluding that “a conviction predicated on a mens rea of recklessness does not satisfy the ‘use of physical force’ requirement” of the elements clause in “crime of violence” definition applicable to § 2L1.2 of the United States Sentencing Guidelines, which is nearly identical to § 924(c)’s). See also Castleman, 572 U.S. at 169 n.8 (noting that the “Courts of Appeals have almost uniformly held that” a reckless application of force is not sufficient to constitute a “use” of force, and citing cases). 37 robbery by intimidation for negligently using or threatening to use force, which would fail to satisfy either a reckless or a knowing mens rea requirement. Section 2113(a) does not explicitly state the mens rea that it requires for conviction. 2000, the require Supreme “general Court Nevertheless, in interpreted intent—that is, that § 2113(a) the to defendant possessed knowledge with respect to the actus reus of the crime”--in that case, the “taking of property of another by force and violence or intimidation.” v. United States, 530 U.S. 255, 268 Carter (2000). Some subsequent appellate court decisions--including United States v. Horsting, an unpublished opinion by the Eleventh Circuit--have interpreted Carter’s holding to mean that the government must prove that the defendant both “knowingly took ... property” actions were objectively intimidating.” 947, 950 (11th Cir. 2017) and “knew his 678 Fed. App’x (unpublished); see also United States v. McNeal, 818 F.3d 141, 155 (4th Cir. 38 2016). Yet, Godwin argues, in several other post-Carter cases from within the Eleventh Circuit, courts did not require evidence that the defendant knew his actions were objectively intimidating; instead it required only that his actions were objectively intimidating. See, e.g., United States v. McCree, 2006 WL 3709611, at *4 (N.D. Ga. 2006) (Duffey, Jr., J.) (holding that the defendant’s belief intimidating was whether he that legally could be his conduct “irrelevant” convicted for was to bank not resolving robbery by intimidation under § 2113(a)), affirmed, 225 Fed. App’x 860, 862-63 (11th Cir. 2007) (unpublished) (“Whether a particular act objectively, constitutes and a defendant intimidation can be is viewed convicted under section 2113(a) even if he did not intend for an act to be intimidating.” (citation omitted)); United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (explaining that under § 2113(a), “intimidation occurs when an ordinary person in 39 the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts,” defendant’s contention intimidate could and have accordingly that his resulted lack in rejecting of intent conviction for to a lesser offense than § 2113(a) (internal quotation marks and citations omitted)); United States v. Kelley, 412 F.3d 1240, 1244-46 (11th Cir. 2005) (holding that there was sufficient evidence to satisfy the intimidation element of § 2113(a), because “an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts.” (citation omitted)). Importantly, as the Supreme Court clarified in Elonis v. United States, 575 U.S. 723, ___, 35 S. Ct. 2001, 2011-12 inquiry (2015), applied in the these type of reasonable-person cases is equivalent to a negligence standard.9 Elonis involved a federal statute 9. A person “acts negligently with respect to a material element of an offense”--such as 40 criminalizing “any communication containing threat ... to injure the person of another.” 2004 (quoting 18 U.S.C. § 875(c)). any Id. at The Court held that liability under the statute could not “turn on whether a ‘reasonable person’ regards the communication as a threat--regardless of what the defendant thinks” because that would unacceptably “reduce[] culpability on the all-important negligence.” element of the crime Id. at 2011 (citations omitted). to The courts in § 2113(a) cases cited by Godwin arguably have applied just such a negligence standard. Therefore, Godwin has raised a serious question as to whether in the Eleventh Circuit, there is a “realistic intimidation--“when he should be aware of a substantial and unjustifiable risk that the material element”--here, intimidation--“exists or will result from his conduct.” Model Penal Code § 2.02(2)(d) (emphasis added). The basic distinction between recklessness and negligence is that “[a]n actor is criminally negligent when he should have been aware of the risk but was not, while recklessness requires that the defendant actually be aware of the risk but disregard it.” People v. Hall, 999 P.2d 207, 219-20 (Col. 2000) (citation omitted). 41 probability” of being convicted under negligent or accidental conduct. § 2113(a) for Pierre, 879 F.3d at 1252. 3. Sams and Beeson Decisions As shown above, Godwin’s arguments on these issues are far from frivolous, consideration. However, and such deserve careful consideration is foreclosed by the Eleventh Circuit’s opinion in In re Sams, which § 2113(a) by held that “a bank robbery conviction under force and violence or by intimidation qualifies as a crime of violence under the” elements clause. 830 F.3d 1234, 1239 (11th Cir. 2016). Sams does not at all address the extortion or mens rea issues raised here by Godwin. The appeal was decided on an application for leave to file a second or successive habeas petition expedited, filed 30-day by a pro timeline, se see prisoner 28 on an U.S.C. § 2244(b)(3)(D); In re Williams, 898 F.3d 1098, 1104 42 (11th Cir. (raising 2018) (Wilson, concerns applications as with J., specially treating binding concurring) decisions precedent due to on such “serious limitations in the decision-making process”), and the pro se petitioner likely was not sophisticated enough to raise the complex issues Godwin’s counsel has raised here. In deciding that § 2113(a) bank robbery constitutes a crime of violence, the Sams court relied on its prior holdings that armed bank robbery and armed carjacking constitute crimes of violence. See Sams, 830 F.3d at 1238-39 (citing In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) and United States v. Moore, 43 F.3d 568, 572–73 (11th Cir. 1994)). However, the determination that bank robbery satisfies the elements clause does not necessarily follow from the conclusion that armed bank robbery requires proof does, of given the that armed additional bank element robbery that the defendant, “in committing, or attempting to commit” a 43 bank robbery under § 2113(a) “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.” Hines court additional explicitly took See reliance on at Hines 1337. to Thus, conclude in this armed bank robbery satisfies the elements clause. F.3d § 2113(d) account that 824 in into The holding Hines, requirement 18 U.S.C. § 2113(d). the that Sams court’s § 2113(a) is categorically a crime of violence seems misplaced. Moore, in which the Eleventh Circuit found that armed carjacking is a crime of violence under § 924(c), offers little more support for the court’s conclusion. Sams cites Moore for its statement that, “‘Tak[ing] or attempt[ing] to take by force and violence or by intimidation,’ 18 U.S.C. § 2119, encompasses ‘the use, attempted use, or threatened use of physical force....’ 18 U.S.C. § 924(c)(3)(A).” However, support the for Moore this Moore, 43 F.3d at 572-73. court offered critical 44 no conclusion. explanation or Instead, it merely pointed to a the crime now-defunct of residual violence to back clause definition of up its position. See Moore, 43 F.3d at 573 (“Moreover, the defendant need not have engaged in actual violence in order for the predicate offense to violence under section 924(c)(1). be a crime of The offense is a crime of violence if it ‘by its nature, involves a substantial risk that physical force ... may be used in the course of committing § 924(c)(3)(B).”) circuits have the offense.’ Sams goes on to note concluded that § 2113(a) of those decisions addressed the U.S.C. that is violence under § 924(c)’s elements clause. none 18 other crime of However, extortion and mens rea issues raised by Godwin here.10 10. One of the cases, United States v. McNeal, did address an argument that “bank robbery by ‘intimidation’ is not a crime of violence under the force clause of § 924(c)(3) because ... bank robbery can be committed by recklessly engaging in intimidation.” 818 F.3d 141, 155 (4th Cir. 2016). However, unlike here, the McNeal court was not presented with, and accordingly did not address, the 45 Despite these misgivings, this court is bound to follow Sams. the court See St. Hubert, 909 F.3d at 346. Thus, must bank-robbery conclude conviction that Godwin’s qualifies as § 2113(a) a crime of violence under § 924(c)’s elements clause. In any case, even if Sams had reached the opposite conclusion, Beeman. Godwin’s As petition discussed would earlier, be precluded Beeman requires by a petitioner to show, by pointing to the record in his case or to clear law in existence at the time he was sentenced (of if he appealed, through the time of his appeals), the that he could not have been convicted under elements clause and that he must have convicted solely under the residual clause. been Beeman, Eleventh Circuit cases cited by Godwin as evidence of a reasonable probability of being convicted under § 2113(a) with a mens rea of only negligence. 46 871 F.3d at 1222. Godwin’s Because the Sams decision postdates sentencing, outcome here. it could not have changed the Moreover, Godwin has not otherwise shown the necessary clear law at the time of his sentencing. Accordingly, the court will adopt the report and recommendation that the petition be denied, but for the reasons stated here. An appropriate judgment will be entered. DONE, this the 28th day of February, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 47
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