USA v. Otto Horsting, III

Filing

Opinion issued by court as to Appellant Otto Hendrick Horsting, III. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 02/03/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13156
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00081-KD-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTTO HENDRICK HORSTING, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(February 3, 2017)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Otto Horsting, III appeals his 180-month sentence after pleading guilty to
one count of being a felon in possession of a firearm. The district court sentenced
him to the statutory mandatory minimum upon finding that his prior convictions

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for unarmed bank robbery, for first-degree Alabama burglary and for assault with a
dangerous weapon qualified as violent felonies under the “elements clause” of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal, Horsting
argues that: (1) the “intimidation prong” of the bank robbery statute, 18 U.S.C. §
2113(a), does not involve the use, attempted use, or threatened use of violent force
as required by the elements clause; and (2) since intimidation does not require an
intentional threat of violent force, a mens rea of recklessness or negligence could
improperly lead to an ACCA conviction. After careful review, we affirm.
We review de novo whether a particular conviction is a “violent felony”
under the ACCA. United States v. Canty, 570 F.3d 1251, 1254 (11th Cir. 2009).
The ACCA imposes a 15-year mandatory minimum sentence on an offender who
is convicted of violating 18 U.S.C. § 922(g) if the offender has three previous
convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).
The ACCA defines the term “violent felony” as any crime punishable by a term of
imprisonment exceeding one year that:
(i)

has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

(ii)

is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.

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18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes called the
“elements clause,” while the second prong contains the “enumerated crimes” and
“residual” clauses. United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).
Horsting’s relevant prior conviction was under 18 U.S.C. § 2113(a), which
makes it a crime if any person “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.” 18 U.S.C. § 2113(a). For § 2113(a)
purposes, “intimidation occurs when an ordinary person in the teller’s position
reasonably could infer a threat of bodily harm from the defendant’s acts.” United
States v. Kelley, 412 F.3d 1240, 1244 (11th Cir. 2005) (quotation omitted).
Section 2113(a) is a general intent crime, requiring a defendant to “possess[]
knowledge with respect to the actus reus of the crime (here, the taking of property
of another by force and violence or intimidation).” Carter v. United States, 530
U.S. 255, 268 (2000).
In In re Sams, 830 F.3d 1234 (11th Cir. 2016), we addressed whether §
2113(a) robbery qualified as a crime of violence under the use-of-force clause
found in 18 U.S.C. § 924(c)(3)(A). Id. at 1237-39. Section 924(c) requires a
mandatory consecutive sentence for any defendant who uses a firearm during a
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crime of violence or a drug trafficking crime. 18 U.S.C. § 924(c)(1). For purposes
of § 924(c), “crime of violence” means an offense that is a felony and:
(A)
(B)

has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
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.

Id. § 924(c)(3). In holding that § 2113(a) robbery is a crime of violence under §
924(c), we agreed with this reasoning from the Fourth Circuit:
Put succinctly, . . . [b]ank robbery under § 2113(a), “by force and
violence,” requires the use of physical force. Bank robbery under §
2113(a), “by intimidation,” requires the threatened use of physical
force. Either of those alternatives includes an element that is “the use,
attempted use, or threatened use of physical force,” and thus bank
robbery under § 2113(a) constitutes a crime of violence under the
force clause of § 924(c)(3).
In re Sams, 830 F.3d at 1239 (quoting United States v. McNeal, 818 F.3d 141, 153
(4th Cir. 2016)).
Here, the only question before us is whether § 2113(a) bank robbery
categorically qualifies as a violent felony under § 924(e). We conclude that it
does. In In re Sams, we held that § 2113(a) robbery is a crime of violence under §
924(c)’s language, and agreed with the Fourth Circuit’s reasoning that intimidation
“requires the threatened use of physical force.”

830 F.3d at 1239 (quoting

McNeal, 818 F.3d at 153). Aside from a reference to “property” that is not at issue
here, the language of § 924(c)(3)(A) defining a crime of violence is identical to
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that of § 924(e)(2)(B)(i)’s provision defining a violent felony. Compare 18 U.S.C.
§ 924(c)(3)(A) (requiring the underlying offense to include as an element, “the use,
attempted use, or threatened use of physical force against the person or property of
another”), with 18 U.S.C. § 924(e)(2)(B)(i) (requiring the underlying offense to
include as an element, “the use, attempted use, or threatened use of physical force
against the person of another”). Thus, bank robbery by intimidation also satisfies
the ACCA elements clause’s requirement of “threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
As for Horsting’s mens rea argument, we are unpersuaded. In Kelley, we
held that intimidation for the purposes of § 2113(a) robbery “occurs when an
ordinary person in the teller’s position reasonably could infer a threat of bodily
harm from the defendant’s acts.” 412 F.3d at 1244 (quotation omitted). This
objective standard does not conflict with the Supreme Court’s requirement of
knowledge concerning the actus reus of unarmed bank robbery. Under § 2113(a),
the applicable actus reus is the taking of the property of another by intimidation.
See Carter, 530 U.S. at 268. That we assess “by intimidation” from the standpoint
of a reasonable person in the victim’s position does not mean the intimidating
defendant has not knowingly “threatened use of physical force against the person
of another.” Rather, our approach simply measures the defendant’s knowledge
objectively, taking into account the circumstances surrounding his actions.
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Notably, we still require, for purposes of § 2113(a), the government to prove that
the accused knowingly took the property and that he knew his actions were
objectively intimidating. As a result, contrary to Horsting’s claim, reckless or
negligent conduct is not included in the mens rea for § 2113(a) robbery.
In short, the district court did not err in finding that Horsting’s § 2113(a)
robbery conviction qualified as a violent felony under the ACCA. Nor did it err in
imposing the statutory mandatory minimum sentence.
AFFIRMED.

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