Case Number: 22-2153

Judge: BIBAS, Circuit Judge

Court: UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Plaintiff's Attorney: Robert A. Zauzmer [ARGUED]
U.S. ATTORNEY’S OFFICE

Defendant's Attorney: Stacie M. Fahsel [ARGUED]
Renee Pietropaolo
FEDERAL PUBLIC DEFENDER’S OFFICE

Description: Simple questions can be hard to answer. Is armed bank robbery a crime of violence? That should be a no-brainer. But because the categorical approach applies, answering this question
is far from simple. Fortunately, here, the common-sense answer is also the right one.
Mark Jordan robbed banks, sometimes while carrying a
gun. Now he claims that federal armed bank robbery can be
committed recklessly, so it does not count as a crime of violence under a federal gun statute. But the federal armed-bankrobbery statute is divisible into different crimes. And the specific crime that he pleaded guilty to requires purpose or
knowledge, not recklessness. So we can use the modified categorical approach to get a common-sense result: armed bank
robbery is a crime of violence.
We will thus affirm the District Court’s denial of Jordan’s
motion to correct his sentence. And we hold that whenever a
federal crime is predicated on committing another crime (or
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trying or planning to), the elements of the predicate crime
count as elements of the first crime too.
I. THE ARMED BANK ROBBERIES
Jordan robbed three banks. During two of the robberies, he
fired a gun to get the tellers to hand over the money. Luckily,
no one was hurt.
Jordan was charged with three armed bank robberies under
18 U.S.C. §2113(d) plus two gun charges under 18 U.S.C.
§924(c). The armed-bank-robbery statute punishes “use of a
dangerous weapon or device” while committing or attempting
to commit bank robbery or another crime under §2113(a) (or
bank larceny under §2113(b)). §2113(d). The gun-crime
statute punishes “any person who, during and in relation to any
crime of violence … uses or carries a firearm.” §924(c)(1)(A).
His armed bank robberies were the qualifying crimes of
violence.
Jordan pleaded guilty to all five counts and was sentenced
to 318 months in prison. He later challenged this sentence by
filing a motion under 28 U.S.C. §2255, but the court denied it.
Then he filed a second §2255 motion, arguing that §2113(d) is
not a “crime of violence” under §924(c). That is the motion we
now consider.
Section 924(c)(3) defines a “crime of violence” as any felony that either:
[The elements clause:] (A) has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or
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[The residual clause:] (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.
The Supreme Court invalidated the residual clause as unconstitutionally vague, leaving only the elements clause standing.
United States v. Davis, 139 S. Ct. 2319, 2336 (2019).
In the District Court, Jordan faced an uphill battle. We have
already held that, under the elements clause, §2113(d) is a
crime of violence. United States v. Johnson, 899 F.3d 191,
203–04 (3d Cir. 2018). But Jordan argues that the Supreme
Court abrogated that ruling in Borden v. United States, 141 S.
Ct. 1817 (2021). Borden held that crimes are not “violent felonies” under the Armed Career Criminal Act (ACCA) if they
can be committed recklessly. Id. at 1834. Because ACCA and
§924(c) are worded almost identically, Borden’s holding applies equally to both laws. See id. at 1824 (noting that 18
U.S.C. §16(a), which like §2113(d) adds the phrase “or property,” is “relevantly identical to ACCA’s elements clause”).
Jordan claims that a bank robber can violate §2113(d) recklessly, so after BoJordan claims that a bank robber can violate §2113(d) recklessly, so after Borden, it cannot be a §924(c) crime of violence. Disagreeing, the District Court denied Jordan’s §2255
motion. It reasoned that Borden “did not squarely overrule
Johnson,” so Johnson is still binding. App. 7 (brackets and internal quotation marks omitted).
The District Court had jurisdiction to consider Jordan’s second §2255 motion. Because he has no new evidence, the court
could consider his second or successive motion only if his
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claim relies on a new, retroactive rule of constitutional law. 28
U.S.C. §§2244(b)(2)(A), (b)(4), 2255(h)(2).
It does. After the Supreme Court in Davis invalidated the
residual clause, we gave Jordan and other similarly situated inmates permission to file second or successive §2255 motions.
In re Matthews, 934 F.3d 296, 298 n.2 (3d Cir. 2019). And Jordan may have been sentenced under the residual clause. That
“is enough to demonstrate that his motion to correct his sentence relies on” Davis’s qualifying rule of constitutional law.
United States v. Peppers, 899 F.3d 211, 224 (3d Cir. 2018).
Thus, the District Court had jurisdiction over his second
motion and could consider the merits. And we have jurisdiction
to review that court’s decision under 28 U.S.C. §2253(a).
II. SECTION 2113(d) IS DIVISIBLE INTO SEPARATE CRIMES
We review de novo whether §2113(d) is a §924(c) crime
of violence. United States v. Wilson, 880 F.3d 80, 83 (3d Cir.
2018). To answer that question, we must apply the categorical
approach. Id. Under that approach, we look to whether the elements of §2113(d) “match the elements of” §924(c). Mathis v.
United States, 579 U.S. 500, 504 (2016). Section 2113(d) is a
crime of violence only if its elements are the same as, or narrower than, those required by §924(c)’s elements clause. Id.
When a statute is indivisible, defining a single crime, it fits
cleanly into this classic categorical approach. Id. at 504–05.
But we do not always try to match all the elements in a statute. Some statutes are divisible, “list[ing] elements in the alternative, and thereby defin[ing] multiple crimes.” Id. at 505. To
figure out which of the alternative elements “was integral to
the defendant’s conviction,” we use the modified categorical
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approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
So first, we must figure out if §2113(d) is divisible. It is.
A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal 6
approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
So first, we must figure out if §2113(d) is divisible. It is.
A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal 6
approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
So first, we must figure out if §2113(d) is divisible. It is.
A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal 6
approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
So first, we must figure out if §2113(d) is divisible. It is.
A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal 6
approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
So first, we must figure out if §2113(d) is divisible. It is.
A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal requirements.” Id
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Outcome: Common sense wins this time: armed bank robbery is a
crime of violence. The statutory text, the record, and our precedent show that § 2113(d) is a divisible statute. Whenever a
federal crime is predicated on committing, attempting to commit, or conspiring to commit another crime, the elements of the
particular predicate crime at issue are elements of the nested
crime too. And an armed bank robbery (a § 2113(d) violation
predicated on § 2113(a)’s first paragraph) always involves purposely or knowingly using, attempting to use, or threatening to
use force. So even after Borden, this version of § 2113(d) is a
crime of violence under § 924(c). We will thus affirm

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