US v. Ellison

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1460]

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Entry ID: 6110216

United States Court of Appeals
For the First Circuit
No. 16-1460
UNITED STATES OF AMERICA,
Appellee,
v.
DOUGLAS ELLISON,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]

Before
Torruella, Thompson, and Barron,
Circuit Judges.

Bjorn Lange, Assistant Federal Public Defender, was on brief
for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief for appellee.

August 2, 2017

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BARRON, Circuit Judge.

Date Filed: 08/02/2017

Entry ID: 6110216

Douglas Ellison pled guilty to

violating 18 U.S.C. § 2113(a), the federal bank robbery statute.
In this appeal, he challenges his 10-year prison sentence.

We

affirm.
I.
On August 20, 2014, Ellison was indicted in the United
States District Court for the District of New Hampshire on one
count of violating § 2113(a).

That provision reads:

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, credit union, or any savings and loan
association; or
Whoever enters or attempts to enter any bank,
credit union, or any savings and loan
association, or any building used in whole or
in part as a bank, credit union, or as a
savings and loan association, with intent to
commit in such bank, credit union, or in such
savings and loan association, or building, or
part thereof, so used, any felony affecting
such bank, credit union, or such savings and
loan association 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.

The

indictment

charged

that

Ellison

"did

knowingly

and

intentionally, by force and violence, or by intimidation, take

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from the person and presence of another currency belonging to and
in the care, custody, control, management, and possession of the
Northeast Credit Union . . . [i]n violation of [§ 2113(a)]."
(emphasis added).

On November 25, 2015, Ellison pled guilty to

that count.
At

the

change-of-plea

colloquy,

the

District

Court

explained the elements of the offense to which Ellison was pleading
guilty. Those elements were that Ellison "intentionally took money
from

the

Northeast

employee,"

that

Credit

Ellison

Union
"used

in

Manchester

intimidation

from

or

a

bank

force

and

violence . . . to obtain the money," and that "the deposits of the
credit

union

were

Administration."

insured

by

the

National

Credit

Union

(emphasis added).

Prior to the sentencing hearing, the probation office
prepared a presentence investigation report ("PSR").

The PSR

calculated the sentencing range applicable to Ellison under the
United States Sentencing Guidelines. According to the PSR, Ellison
was, in consequence of his prior convictions, in criminal history
category VI.

The PSR also determined that, under the guidelines,

Ellison's total offense level was 29.

The PSR then calculated the

applicable guidelines sentencing range for Ellison to be 151 to
188 months' imprisonment.
Ellison filed an objection to the PSR.

Ellison argued

that the PSR wrongly based the determination that his total offense

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level was 29 on a finding that he was a career offender under
U.S.S.G. § 4B1.1(a).

The career offender guideline provides that:

A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).

At the time that Ellison was sentenced, the

career offender guideline defined a crime of violence as follows:
any offense 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 person of
another; or (2) is burglary of a dwelling,
arson,
or
extortion,
involves
use
of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a) (Nov. 1, 2015).1
The

first

subpart

of

this

referred to as the force clause.

definition

is

commonly

The trailing portion of the

second subpart of the definition, which follows the list of

1

As of August 1, 2016, that provision was revised such that
subpart (2) now reads: "is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession of a firearm
described in 26 U.S.C. § 5845(a) or explosive material as defined
in 18 U.S.C. § 841(c)."

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enumerated qualifying offenses, is commonly referred to as the
residual clause.
Ellison argued that, because the offense for which he
was convicted could be committed by "intimidation," that offense
did not have as an element the "use, attempted use, or threatened
use of physical force against another."

Accordingly, Ellison

argued that the offense for which he was convicted did not qualify
as a "crime of violence" under the force clause of the definition
set forth in the career offender guideline.

He also contended

that, after the Supreme Court's decision in Johnson v. United
States, 135 S. Ct. 2551 (2015), the residual clause of the career
offender guideline is void because it is unconstitutionally vague.
Thus, Ellison argued, the offense for which he was convicted did
not qualify as a "crime of violence."
Without the career offender designation, Ellison further
argued, his applicable total offense level would have been 21,
rather than 29.

And, Ellison argued, if the career offender

guideline enhancement had not been applied to him, his applicable
guidelines range would have been 77 to 96 months' imprisonment,
rather than 151 to 188 months' imprisonment, given that Ellison
did not contest the PSR's statement that his criminal history
category was VI.
Ellison's sentencing hearing was held on April 18, 2016.
The District Court found that, as the government had argued, the

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offense for which Ellison was convicted did qualify as a crime of
violence under the force clause of the career offender guideline.
On that basis, the District Court concluded that, as the PSR had
determined, Ellison's total offense level was 29 and that the
applicable guidelines range for his sentence was 151 to 188 months'
imprisonment.

The District Court then sentenced Ellison to a term

of 120 months' imprisonment.
Ellison now appeals the District Court's determination
that the offense for which he was convicted qualified as a crime
of violence under the career offender guideline.

Ellison raised

this same legal issue below, so we review the District Court's
decision de novo.

United States v. Collins, 811 F.3d 63, 66 (1st

Cir. 2016).
II.
To challenge his career offender designation on appeal,
Ellison initially argued both that the offense for which he was
convicted did not qualify under the force clause of the career
offender guideline and that the residual clause of the career
offender guideline is void because it is unconstitutionally vague.
After he filed his appellate brief, however, the Supreme Court
decided Beckles v. United States, 137 S. Ct. 886 (2017).

There,

the Court ruled that advisory guidelines are not subject to
constitutional vagueness challenges.

Because the career offender

guideline that was applied to Ellison was advisory, Ellison no

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longer presses the contention that the guideline's residual clause
is unconstitutionally vague.

Instead, in the wake of Beckles,

Ellison submitted a supplemental brief in which he argues that,
notwithstanding Beckles, Johnson established that "residual clause
determinations are guesswork and the [residual clause] cannot be
clearly and consistently interpreted and applied," such that "it
is procedural error and an abuse of discretion to calculate the
guideline range based on an attempt to interpret and apply the
residual clause." (citing Johnson, 135 S. Ct. at 2558-60, 256263).
We need not decide here how the residual clause in the
career offender guideline applies post-Beckles.

For, as we will

explain, the offense for which Ellison was convicted qualifies as
a "crime of violence" under the career offender guideline's force
clause.

Thus, for that reason, the District Court did not err in

applying the career offender guideline to Ellison.
III.
The parties agree that § 2113(a) sets forth as a separate
offense "by force and violence, or by intimidation, tak[ing], or
attempt[ing]

to

take,

from

the

person

or

presence

of

another . . . any property or money or any other thing of value
belonging to, or in the care, custody, control, management, or
possession of, any bank, credit union, or any savings and loan
association," and that Ellison was convicted of this offense.

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Accordingly,
offense

--

the

Page: 8

question

violating

§

Date Filed: 08/02/2017

for

2113(a)

us

by

is

"force

Entry ID: 6110216

whether
and

this

violence,

or

intimidation" -- qualifies as a crime of violence under the force
clause of the career offender guideline.

See Mathis v. United

States, 136 S. Ct. 2243, 2249 (2016).
To resolve that question, we must determine whether
violating § 2113(a) by "force and violence, or intimidation" has
as an element "the use, attempted use, or threatened use of
physical

force

§ 4B1.2(a).

against

the

person

of

another."

U.S.S.G.

And, as the text of the guideline indicates, we thus

must examine the elements of the offense, rather than the conduct
that

this

offense.
(1st

particular

defendant

engaged

in

in

committing

the

See United States v. Ramos-González, 775 F.3d 483, 504

Cir.

2015).

In

undertaking

that

elements-based

review,

moreover, we must determine whether the least serious conduct that
the offense's elements encompass would require such a use or
threatened use of physical force.

For, under the "categorical

approach" that we must apply, the offense qualifies as a "crime of
violence" only if the least serious conduct encompassed by the
elements of the offense still falls within the guideline's force
clause.

United States v. Armour, 840 F.3d 904, 908 (7th Cir.

2016).
Ellison contends that, because the phrase "force and
violence, or intimidation" is set forth in the disjunctive in

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§ 2113(a), the question is whether "intimidation" has as an element
a "threatened use of physical force."2
disagree.

The government does not

But the government contends, relying in part on the

rulings of a number of our sister circuits, that "intimidation"
under § 2113(a) does have as an element the "use, attempted use,
or threatened use of physical force against the person of another."
See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016)
(holding that "a taking 'by intimidation' involves the threat to
use [physical] force"); United States v. McBride, 826 F.3d 293,
296 (6th Cir. 2016) ("The defendant must at least know that his
actions would create the impression in an ordinary person that
resistance would be met by force.

A taking by intimidation under

§ 2113(a) therefore involves the threat to use physical force.");
United States v. Jenkins, 651 Fed. App'x 920, 924 (11th Cir. 2016)
(stating that "intimidation occurs when an ordinary person in the
teller's position could reasonably infer a threat of bodily harm

2

Ellison understandably does not argue that committing the
offense by means of "force and violence," rather than
"intimidation," would not necessarily involve the "use, attempted
use, or threatened use of physical force against the person of
another."
We also note that Black's Law Dictionary defines
"intimidation" as "unlawful coercion; extortion."
Black's Law
Dictionary 949 (10th ed. 2009).
However, the statute includes
both "by force and violence, or intimidation" and "by extortion"
as separate means of committing the offense. 18 U.S.C. § 2113(a).
Ellison makes no argument that "intimidation" in § 2113(a) includes
extortion.

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from the defendant's acts" (quoting United States v. Kelley, 412
F.3d 1240, 1244 (11th Cir. 2005))).
In countering the government, Ellison makes a number of
arguments,

the

first

of

which

is

that

"intimidation"

merely

requires that the perpetrator induce "fear" in the victim and not
that

the

perpetrator

threaten

--

either

implicitly -- the victim with bodily harm.

explicitly

or

As a result, Ellison

contends, even if a threat of bodily harm constitutes a "threatened
use

of

physical

force"

for

purposes

of

the

career

offender

guideline's definition of a "crime of violence," "intimidation"
under § 2113(a) does not require that there be a threat of that
kind.
Ellison

relies

for

this

argument

primarily

on

our

decision in United States v. Henson, 945 F.2d 430 (1st Cir. 1991).
In that case, a defendant challenged the sufficiency of the
evidence for his convictions on three counts of violating § 2113(a)
by means of "force and violence, or by intimidation," for three
separate occasions on which he had delivered an emphatic note
demanding money to a bank teller, but did not display a weapon or
make an explicit threat of bodily harm.

Id. at 439.

In explaining

why the evidence sufficed to support the convictions, we reasoned
that "[i]ntimidation is conduct 'reasonably calculated to produce
fear.'"

Id. (quoting United States v. Harris, 530 F.2d 576, 579

(4th Cir. 1976)).

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But, Henson did not hold that a threat of bodily harm
need not be made at all in order for a defendant to have committed
the bank robbery by "intimidation." Henson indicated only that
threats of bodily harm need not be explicit.

In fact, in stating

generally that "[i]ntimidation is conduct 'reasonably calculated
to produce fear,'" id. (quoting Harris, 530 F.2d at 579), Henson
cited as support for that proposition United States v. Alsop, 479
F.2d 65, 66 (9th Cir. 1976), which Henson described as holding
that "taking in such a way as to place an ordinary person in fear
of bodily harm constitutes 'intimidation.'"
439 (emphasis added).

Henson, 945 F.2d at

In addition, in addressing the count for

which there was testimony that the defendant had handed a teller
a note saying "put fifties and twenties into an envelope now!!,"
id., Henson pointed out that:
[a]lthough . . . no threat of bodily harm was
expressed, a rational juror reasonably could
find that Henson's emphatic written demand
for the immediate surrender of the bank's
money was enough to cause fear in an ordinary
person under these circumstances. . . .
Neither the actual or threatened display of a
weapon, nor an explicit threat of force, is
essential to establish intimidation under the
statute.
Id. at 439-40 (emphasis added).

And, finally, in the course of

addressing the other two counts at issue in that case, Henson noted
that the evidence regarding what the defendant had said to the
bank

teller

in

each

instance

was

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sufficient

to

qualify

as

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"intimidation," at least for the purposes of our review for
manifest injustice, id. at 439 n.8, because "[f]rom the perspective
of an ordinary person confronted with the predicament in which
these

tellers

suddenly

found

themselves,

[the

defendant's]

communications clearly were sufficient to raise fears of bodily
harm."

Id. at 440 (emphasis added).
Moreover, following Henson, we made clear in United

States v. Burns, 160 F.3d 82 (1st Cir. 1998), that "[c]ourts
generally

evaluate

levels

of

intimidation

under

an

objective

standard: whether a reasonable person in the same circumstances
would have felt coerced by a threat of bodily harm."

Id. at 85

(emphasis in original); see also Jenkins, 651 Fed. App'x at 924
(stating that "intimidation occurs when an ordinary person in the
teller's position could reasonably infer a threat of bodily harm
from the defendant's acts" (quoting Kelley, 412 F.3d at 1244)).
And, Ellison does not explain how that statement in Burns accords
with his contention that "intimidation" may be proved even in the
absence of any such threat.
Simply

put,

Ellison

fails

to

identify

a

single

case -- either of our own or of any other court -- that holds that
"intimidation" may be proved absent any action by the defendant
that would, as an objective matter, cause a fear of bodily harm.
And, in light of Henson and Burns, and the weight of precedent
from other courts, we agree with the government that proving

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"intimidation" under § 2113(a) requires proving that a threat of
bodily harm was made.
As a fallback argument, Ellison contends that, even if
"intimidation" requires proof of at least a threat of bodily harm,
a threat to poison or to withhold vital medicine both qualify as
a threat of bodily harm.

Yet, Ellison argues, such a threat is

not a "threatened use of physical force" due to the indirect manner
in which the threatened injury would be visited upon the victim.
Accordingly, Ellison contends, his conviction under § 2113(a)
cannot qualify as one for a crime of violence under the career
offender guideline.
This argument, however, is undermined by United States
v. Castleman, 134 S. Ct. 1405 (2014).
made

clear

that

poisoning

or

There, the Supreme Court

infecting

with

a

disease

does

constitute a "use or attempted use of physical force" under 18
U.S.C. § 921(a)(33)(A)(ii), id. at 1414-15, notwithstanding that
the "harm occurs indirectly."

Id. at 1415.

The Court explained

that the "use of force" is "the act of employing poison knowingly
as

a

device

to

cause

physical

harm."

Id.

And,

while

§ 921(a)(33)(A)(ii) is a distinct provision that uses somewhat
different words than the force clause of the definition of a "crime
of violence" in the career offender guideline, Ellison makes no
argument as to why the logic of Castleman is inapplicable here.
Nor does any such argument occur to us.

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Indeed, in a recent case

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interpreting the similarly worded force clause in the definition
of a "violent felony" in ACCA, 18 U.S.C. § 924(e)(2)(B)(i), we
rejected the same argument Ellison asks us to accept.

See United

States v. Edwards, 857 F.3d 420, 427 (1st Cir. 2017) ("Edwards is
dead wrong in characterizing the poisoning as an application of
indirect force. . . . The force required to apply poison to a
victim -- while certainly lower in newtons than the force of a
bullet -- is still force.").
We

also

are

unpersuaded

by

Ellison's

argument

that

"intimidation" could encompass a threat to withhold life-saving
medicine and thus that "intimidation" need not have as an element
a "threatened use of physical force."

We are not supposed to

imagine "fanciful, hypothetical scenarios" in assessing what the
least serious conduct is that the statute covers.
v. Fish, 758 F.3d 1, 6 (1st Cir. 2014).

United States

Rather, we must find "a

realistic probability, not a theoretical possibility, that the
[government] would apply its statute to conduct that falls outside
the generic definition of a crime."
549 U.S. 183, 193 (2007).

Gonzales v. Duenas-Alvarez,

Ellison offers no realistic probability

of the statute applying to the commission of a bank robbery through
a threatened withholding of life-saving treatment.
Finally, Ellison contends that violating § 2113(a) by
"force and violence, or intimidation" does not qualify as a "crime
of violence" under the career offender guideline for yet another

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He argues that, to prove a violation of § 2113(a) by

"intimidation," the government need prove only that a reasonable
person would have felt intimidated, and not that the defendant
knew that his actions would be intimidating to a reasonable person.
And because Ellison contends that § 2113(a) lacks any mens rea
element with respect to intimidation, a conviction for violating
§ 2113(a) by means of intimidation cannot qualify as one for a
crime of violence, given the logic of our decision in Fish, 758
F.3d at 4.
Ellison points out, in this regard, that Fish concerned
whether an offense qualifies as a "crime of violence" under 18
U.S.C. § 16(b), which defines a "crime of violence" to include
crimes that "involve[] a substantial risk that physical force
against the person or property of another may be used in the course
of committing the offense."

Yet, Ellison notes, we held in Fish

that the reckless variant of assault and battery with a deadly
weapon under Massachusetts law did not qualify as a "crime of
violence"

because

recklessness

required under section 16(b)."
§ 16(b)).3

"falls

short

of

the

mens

rea

Id. at 16 (citing 18 U.S.C.

Ellison accordingly contends that -- insofar as there

3

In so holding in Fish, we relied on the Supreme Court's
statement in Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004), that
"'use' requires active employment," and "[w]hile one may, in
theory, actively employ something in an accidental manner, it is
much less natural to say that a person actively employs physical

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is no mens rea requirement at all with respect to "intimidation"
under § 2113(a) -- Fish's logic requires the conclusion that a
conviction for violating § 2113(a) by "intimidation" does not
qualify

as

a

"crime

of

violence"

under

the

career

offender

guideline.
But Ellison's contention that § 2113(a) does not impose
a mens rea requirement as to the element of "intimidation" is
mistaken.

In Carter v. United States, 530 U.S. 255 (2000), the

Supreme Court addressed whether the element of "intent to steal or
purloin"

that

expressly

appears

in

§

2113(b)

was

impliedly

contained in § 2113(a) as well. The Court explained that § 2113(a)
does not contain that element, because "[t]he presumption in favor
of scienter requires a court to read into a statute only that mens
rea which is necessary to separate wrongful conduct from 'otherwise
innocent

conduct.'"

Id.

at

269

(quoting

United

X-Citement Video, Inc., 513 U.S. 64, 72 (1994)).

States

v.

And, the Court

concluded, that presumption "demands only that we read [§ 2113(a)]
as requiring proof of general intent -- that is, that the defendant
possessed knowledge with respect to the actus reus of the crime
(here, the taking of property of another by force and violence or

force against another person by accident."
We reasoned that
"although the Supreme Court [in Leocal] explicitly limited its
reasoning to negligence-or-less crimes, Leocal's rationale would
seem to apply equally to crimes encompassing reckless conduct
wherein force is brought to bear accidentally, rather than being
actively employed." Fish, 758 F.3d at 9.

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intimidation)."

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Id. at 268.

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Thus, the Court, at the very least,

strongly suggested that the offense of committing bank robbery by
"force and violence or intimidation" does have an implicit mens
rea element of general intent -- or knowledge -- as to the actus
reus of the offense.
To be sure, as Ellison points out, two circuits, postCarter, have continued to state that the government need not show
that the defendant knew that his actions would be intimidating in
order to secure a conviction under § 2113(a).

See Kelley, 412

F.3d at 1244 ("[A] defendant can be convicted under § 2113(a) even
if he did not intend for an act to be intimidating."); United
States v. Yockel, 320 F.3d 818, 824 (8th Cir. 2003) ("[W]hether or
not [the defendant] intended to intimidate the teller is irrelevant
in determining his guilt.").4

But Kelley simply cited to Yockel

and two pre-Carter cases in support of that proposition, 412 F.3d
at 1244, and thus did not address the passage that we just reviewed
from Carter that suggests the opposite.

And Yockel relied on the

fact that Carter stated that the statute requires only proof of
"general intent" -- as opposed to "specific intent" -- without
explaining how the fact that § 2113(a) contains only that more
limited mens rea requirement undermines the government's position

4

Ellison also notes that courts had ruled similarly preCarter, too. See, e.g., United States v. Foppe, 993 F.2d 1444,
1451 (9th Cir. 1993).

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that § 2113(a) must be read to require knowledge with respect to
the element of "force and violence, or intimidation."

After all,

Carter described the general intent element that the presumption
in favor of scienter would "demand" as one that requires that "the
defendant possessed knowledge with respect to the actus reus of
the crime (here, the taking of property of another by force and
violence or intimidation)."

530 U.S. at 268.

how Yockel can be squared with Carter.

We thus do not see

See McCoy v. Mass. Inst.

of Tech., 950 F.2d 13, 19 (1st Cir. 1991) ("[F]ederal appellate
courts are bound by the Supreme Court's considered dicta almost as
firmly as by the Court's outright holdings, particularly when, as
here, a dictum is of recent vintage and not enfeebled by any
subsequent statement.").
We therefore agree with the two circuits that have
interpreted the Court's decision in Carter to require that "the
government must prove not only that the accused knowingly took
property, but also that he knew that his actions were objectively
intimidating."

McNeal, 818 F.3d at 155; see also McBride, 826

F.3d at 296 ("The defendant must at least know that his actions
would create the impression in an ordinary person that resistance
would be met by force.").

Accordingly, we reject Ellison's mens

rea-based argument as to why his conviction under § 2113(a) does
not qualify as one for a "crime of violence" under the force clause
of the definition set forth in the career offender guideline.

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Case: 16-1460

Document: 00117184699

Page: 19

Date Filed: 08/02/2017

Entry ID: 6110216

III.
For the foregoing reasons, the sentence is affirmed.

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