COLLOTON, Circuit Judge.
Derrick Angelo Harper pleaded guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). At sentencing, the district court
A defendant is a career offender if he is convicted of a "crime of violence" and has two prior convictions for crimes of violence. USSG § 4B1.1(a). The guidelines define "crime of violence" in the "force" clause to include an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." USSG § 4B1.2(a)(1). The guideline also enumerates several offenses, including "robbery," that constitute a crime of violence. Id. § 4B1.2(a)(2). The government argues that Harper's bank robberies qualify as crimes of violence under both the "force" clause and the enumeration of "robbery."
To determine whether Harper's convictions satisfy the "force" clause, we apply the "categorical approach," and consider only the statutory elements of the offense. United States v. Roblero-Ramirez, 716 F.3d 1122, 1125 (8th Cir. 2013). If a statute covers more conduct than the definition of "crime of violence," and "comprises multiple, alternative versions of the crime," then we may apply a "modified categorical approach" to determine which alternative was the offense of conviction. Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013). The court may "consult a limited class of judicial records to determine under which alternative the defendant was convicted." United States v. Hudson, 851 F.3d 807, 809 (8th Cir. 2017).
A person violates 18 U.S.C. § 2113(a) under the first paragraph of the provision if he, "by force and violence, or by intimidation, takes ... from the person or presence of another, or obtains ... by extortion any property or money or any other thing of value belonging to ... any bank." Section 2113(a) contains a second paragraph that proscribes "enter[ing] or attempt[ing]
Harper's contention is that "the most innocent conduct penalized under § 2113(a) is `intimidation,'" and that a violation of § 2113(a) by intimidation does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another. In United States v. Wright, 957 F.2d 520 (8th Cir. 1992), however, this court held that robbery by intimidation under § 2113(a) categorically involves the threatened use of force: "Intimidation means the threat of force." Id. at 521 (quotation omitted). Wright thus controls here unless it has been superseded by an intervening decision of the Supreme Court.
Harper suggests that Wright was abrogated by Elonis v. United States, ___ U.S. ___, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), but we see no inconsistency between the two decisions. Elonis held that the crime of transmitting a communication containing a threat under 18 U.S.C. § 875(c) requires proof that the defendant made the communication with the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat, or, possibly, with reckless disregard for the likelihood that the communication would be so viewed. Id. at 2012-13. Harper reasons that because "intimidation" in § 2113(a) does not require proof that the robber intentionally intimidated a victim, see United States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003), robbery by intimidation does not have as an element the threatened use of force. In other words, he seems to contend, "threatened use of force" after Elonis requires a specific intent to issue a threat.
Elonis did not announce a universal definition of "threat" that always requires the same mens rea. To the contrary, the Court observed that "threat," as commonly defined, "speak[s] to what the statement conveys — not to the mental state of the author." 135 S.Ct. at 2008. Elonis held only that a certain criminal statute required proof of a particular mens rea. The Court did not redefine the phrase "threatened use of force" as it appears in the sentencing guidelines.
Harper also mentions fleetingly the possibility that a person could be intimidated without a robber threatening to use violent force — that is, force "capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); see United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012). This argument fails because bank robbery by intimidation requires proof that the victim "reasonably could infer a threat of bodily harm" from the robber's acts. Yockel, 320 F.3d at 824 (quotation omitted). A threat of bodily harm requires a threat to use violent force because "it is impossible to cause bodily injury without using force `capable of' producing that result." United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting United States v. Castleman, ___ U.S. ___, 134 S.Ct. 1405, 1416-17, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring)).
The holding of Wright therefore controls: bank robbery by intimidation under § 2113(a) is a crime of violence under the force clause, because it involves a threatened
The judgment of the district court is affirmed.