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United States v. Wilson

United States Court of Appeals, Third Circuit

January 17, 2018

UNITED STATES OF AMERICA
v.
JEROME WILSON, Appellant

          Argued November 7, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-15-cr-00049-001) District Judge: Hon. Anita B. Brody

          Eric A. Boden Robert A. Zauzmer [ARGUED] Office of United States Attorney. Counsel for Appellee

          Christy Martin [ARGUED] Rossman D. Thompson, Jr. Federal Community Defender Officer for the Eastern District of Pennsylvania Counsel for Appellant

          Before: JORDAN, HARDIMAN, SCIRICA, Circuit Judges

          OPINION

          JORDAN, CIRCUIT JUDGE.

         If it were somehow in doubt before, we take the opportunity now to hold that bank robbery by intimidation is categorically a "crime of violence" under the United States Sentencing Guidelines. In doing so, we join several other federal courts of appeals that have held the same under the guidelines or the Armed Career Criminal Act ("ACCA").

         Jerome Wilson pled guilty to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The District Court imposed a prison sentence that was in part a result of the guidelines' career-offender enhancement, U.S.S.G. § 4B1.2, which, in Wilson's case, was applicable if bank robbery by intimidation counts as a crime of violence. The District Court correctly applied that enhancement, and it was not plain error that the Court also applied an enhancement for making a death threat. We will therefore affirm the sentencing order.

         I. Background

         The facts of the case are not in dispute. Wilson pled guilty to three counts of unarmed bank robbery or attempted bank robbery in violation of 18 U.S.C. § 2113(a), and the District Court sentenced him to 151 months' imprisonment, three years of supervised released, restitution of $3, 122, and a special assessment of $300. The sentence was based in part on two enhancements: one for being a career offender, U.S.S.G. § 4B1.2, and the other for making a death threat, U.S.S.G. § 2B3.1(b)(2)(F). Of the three crimes, two were completed bank robberies by demand note and one was an attempted robbery by demand note. In one of the completed robberies, the note Wilson passed to the bank teller said, "this is a hold up, empty your drawers now, or else." (App. at 37.)

         The presentence report ("PSR") suggested that § 2113(a) be treated as a "crime of violence" under the guidelines, and, because Wilson had two prior convictions under that same statute, that he be classified as a "career offender." If followed, those suggestions increased Wilson's total offense level from 27 to 32 and his criminal history category from IV to VI. The PSR credited Wilson with a 3- level downward adjustment of his offense level for acceptance of responsibility, making his total suggested offense level 29. Ultimately, the threat-of-death enhancement did not increase the total offense level beyond that which was mandated by the career-offender enhancement; that is, even without the threat-of-death enhancement, Wilson's total offense level and criminal history category would have been the same.

         At sentencing, Wilson did not raise any objections concerning the 2-level threat-of-death enhancement, but he did object to being treated as a "career offender" under the guidelines, arguing that § 2113(a) did not meet the guidelines' definition of a "crime of violence." The District Court overruled that objection and ultimately sentenced him to the bottom of the guidelines range calculated in the PSR.

         II. Discussion[1]

         On appeal, Wilson challenges the District Court's application of the career-offender enhancement and the threat-of-death enhancement to his sentence. We conclude that the District Court correctly applied the career-offender enhancement because bank robbery by intimidation is categorically a crime of violence under § 4B1.2(a) of the guidelines. We further conclude that the District Court's application of the threat-of-death enhancement was not plain error.

          A. Bank Robberyby Intimidation is Categorically a Crime of Violence Under the Guidelines.

         Whether bank robbery by intimidation is a crime of violence is a strange but not new question. It is strange because to ask the question would seem to answer it - of course the threat of violence is inherent in bank robbery, and § 4B1.2(a)(1) of the guidelines specifically includes within the definition of a "crime of violence" "any offense under federal or state law ... that ... has as an element the ... threatened use of physical force against the person of another ... ." It is not a new question, though, because seven of our sister circuits have had to address this question and have concluded that bank robbery by intimidation does indeed qualify as a "crime of violence" under § 4B1.2(a)(1) or the nearly identically worded "elements" clause of the ACCA, 18 U.S.C. § 924(c)(3)(A).[2]See United States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009) ("[Because] the definition of a 'violent felony' under the ACCA is sufficiently similar to the definition of a 'crime of violence' under the Sentencing Guidelines[, ] ... authority interpreting one is generally applied to the other[.]" (footnote ...


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