USA v. Jerry Campbell
Filed opinion of the court by Judge Hamilton. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6857715-1]  [15-3869]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12‐cr‐00398 — Edmond E. Chang, Judge.
ARGUED MAY 16, 2017 — DECIDED JULY 31, 2017
Before EASTERBROOK, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The issue in this appeal is
whether federal bank robbery by intimidation in violation of
18 U.S.C. § 2113(a) is a crime of violence for purposes of the
pre‐2016 federal Sentencing Guideline provision for career of‐
fenders in U.S.S.G. § 4B1.2(a). We have held that federal bank
robbery by intimidation satisfies the elements clause of the
statutory definition of a crime of violence under 18 U.S.C.
§ 924(c). United States v. Williams, — F.3d —, No. 16‐3373 (7th
Cir. July 27, 2017); United States v. Armour, 840 F.3d 904 (7th
Cir. 2016). In this appeal, we hold that federal bank robbery
by intimidation is also a crime of violence for the purposes of
applying the pre‐2016 versions of the career offender Guide‐
line and affirm the decision of the district court.1
Today, plaintiff Jerry Campbell is 69 years old. He has been
diagnosed with schizoaffective and post‐traumatic stress dis‐
orders and has a long history of mental health treatment. Un‐
fortunately, Campbell also has a long and rather unsuccessful
history of committing robberies.
In May 2012, Campbell was 64 years old and residing in
the Salvation Army Residential Reentry Center in Chicago,
having been released to the halfway house to complete his
sentence for a 2005 conviction for entering a bank with intent
to commit bank robbery. He was given a pass to Cook County
Hospital for a psychological examination on May 24, 2012,
and he left the hospital without a doctor’s authorization on
May 27, 2012. Later that day, he entered a grocery store that
had a branch bank inside. He withdrew $35, which was the
balance of his checking account. He then walked through the
grocery portion of the store, gathering a pair of sunglasses, a
turquoise and purple squirt gun with an orange tip, and a bot‐
tle of tequila. He entered the restroom, turned his shirt inside
out, put on the sunglasses, and drank the liquor. He then left
the restroom and approached the bank tellers at the bank.
1 Effective August 1, 2016, U.S.S.G. § 4B1.2(a) was amended to remove
the so‐called residual clause in the definition of a crime of violence, but
robbery was added to the list of enumerated crimes of violence. U.S.S.G.
app. C, amend. 798. The amendment adding robbery to the list of enumer‐
ated crimes cannot be applied retroactively to Campbell’s 2012 crime. See
Peugh v. United States, 569 U.S. —, —, 133 S. Ct. 2072, 2078 (2013).
Pointing the squirt gun, he said, “Let’s make this easy,” and
“Hey big boy, I want both drawers from you.” The tellers
filled his shopping bag with $1495 in currency.
Campbell left the store but was promptly arrested in the
parking lot. He had some of the money on his person. The
Chicago police officers who caught him found more cash un‐
der a car in the parking lot. He was indicted on a single count
of bank robbery by intimidation in violation of 18 U.S.C.
Soon after the indictment, Campbell was found mentally
incompetent by the district court and hospitalized for two
years to restore competency. Then, in July 2015, with compe‐
tency restored, Campbell entered a plea agreement in which
he agreed to plead guilty to bank robbery by intimidation and
agreed that he would be a career offender under U.S.S.G.
§ 4B1.1(a) because bank robbery by intimidation is a crime of
violence. In anticipation of sentencing, however, his lawyer
filed a sentencing memorandum arguing that the career of‐
fender Guideline should not apply because the crime of vio‐
lence definition in U.S.S.G. § 4B1.2(a)(1) requires specific in‐
tent and bank robbery by intimidation is a general intent of‐
fense. The district court disagreed, finding that bank robbery
by intimidation is a crime of violence under the elements
clause of § 4B1.2(a) even though it is also a crime of general
intent. The judge calculated the guideline range to be 151–188
months. Without the career offender designation, the sentenc‐
ing range would have been 57–71 months. Judge Chang care‐
fully considered the mental health and age of Campbell and
imposed a below‐guideline sentence of 100 months in prison.
Campbell now appeals the district court decision to treat
him as a career offender under the Sentencing Guidelines. He
argues that bank robbery by intimidation does not require the
intentional mens rea necessary for a crime of violence to count
under the elements clause toward application of the career of‐
fender Guideline. We review de novo the district court’s deci‐
sion as to whether bank robbery qualifies as a crime of vio‐
lence under § 4B1.2(a)(1). United States v. Edwards, 836 F.3d
831, 834 (7th Cir. 2016). For the following reasons, we reaffirm
our prior holdings that bank robbery by intimidation is a
crime of violence, so we affirm the district court’s application
of the career offender Guideline.
The elements clause of § 4B1.2(a)(1) reads:
(a) The term “crime of violence” means any of‐
fense under federal or state law, punishable by
imprisonment for a term exceeding one year,
(1) has as an element the use, attempted use, or
threatened use of physical force against the per‐
son of another … .2
To determine if an offense is a crime of violence under the el‐
ements clause, we apply the categorical approach. Edwards,
836 F.3d at 833; United States v. Woods, 576 F.3d 400, 403–04 (7th
Cir. 2009); see generally Descamps v. United States, 570 U.S. —,
—, 133 S. Ct. 2276, 2283 (2013) (describing categorical ap‐
proach). Courts look only to the statutory elements of the
crime, without paying attention to the specific facts of the
case, such as Campbell’s mental health or his use of a colorful
plastic squirt gun (however relevant those circumstances
2 The elements clause in the definition was not affected by Amend‐
ment 798 in 2016.
were for sentencing). Descamps, 570 U.S. at —, 133 S. Ct. at
2283, citing Taylor v. United States, 495 U.S. 575, 600 (1990). We
presume the conviction rested on the least serious acts that
would satisfy the statute. Johnson v. United States, 559 U.S. 133,
We have twice found that bank robbery by intimidation is
a crime of violence as defined in the elements clause of 18
U.S.C. § 924(c)(3) which closely mirrors the language of
§ 4B1.2(a)(1). Williams, — F.3d at —, slip op. at 7–8; Armour,
840 F.3d at 908. Similar language is found in “elements
clauses” in 18 U.S.C. § 16(a), § 924(c), § 924(e), and U.S.S.G.
§ 4B1.2(a), and courts’ interpretations of the clauses generally
have been interchangeable. See, e.g., Woods, 576 F.3d at 404
(“[W]e … refer to the ACCA and the career offender provi‐
sions of the Guidelines interchangeably.”). (The elements
clauses in § 16(a) and § 924(c)(3) include the use of force
against property as well as persons, but that difference does
not matter here.)
In Armour, we found that intimidation in § 2113(a) means
the threat of force. The government proves intimidation when
“a bank robber’s words and actions would cause an ordinary
person to feel threatened, by giving rise to a reasonable fear
that resistance or defiance will be met with force.” 840 F.3d at
909 (citations omitted). The type of force giving rise to that
reasonable fear, we held, could satisfy the low threshold re‐
quired by the elements clause of the crime of violence defini‐
tion. Id. at 908–09. We thus concluded that bank robbery by
intimidation was a crime of violence under the elements
clause of § 924(c). Id. at 909.
In Williams, we addressed whether § 924(c) demanded that
the predicate crime of bank robbery requires that the intimi‐
dation be intentional. Williams, — F.3d at —, slip op. at 5–7.
The defendant argued that § 2113(a) does not require that the
robber intend to intimidate the victim or bank teller, and thus
that the crime could not be a crime of violence under the ele‐
ments clause of § 924(c)(3), which requires intentional use or
threats of force. We rejected that argument. We found that
Williams’s argument regarding the intent requirement of in‐
timidation was imported from, and better suited to, statutes
criminalizing pure threats. Intimidation as an element of a
bank robbery does not occur by negligent or accidental con‐
duct. It is caused by an intentional threat of force. See Wil‐
liams, — F.3d at —, slip op at 6–7.
Similar to the argument made in Williams, Campbell ar‐
gues that § 2113(a) requires only general intent, which he con‐
tends is insufficient to meet the higher mens rea of specific in‐
tent he argues is required by the Guidelines. In short, accord‐
ing to Campbell, because bank robbery by intimidation is a
general intent crime, it cannot be a crime of violence.
Campbell is correct that § 2113(a) is a crime of general in‐
tent. United States v. Durham, 645 F.3d 883, 891 n.1 (7th Cir.
2011), citing Carter v. United States, 530 U.S. 255, 269–70 (2000)
(explaining that knowingly engaging in acts of using force
and taking money satisfies “general intent” requirement of
bank robbery, even if defendant might not intend to deprive
bank permanently of possession of money). However, the
cases cited by Campbell fail to support his argument that gen‐
eral intent crimes cannot satisfy the definition of crime of vi‐
olence in the Guidelines. He relies on Rutherford for the asser‐
tion that § 4B1.2(a)(1) addresses only intentional acts. United
States v. Rutherford, 54 F.3d 370, 373 (7th Cir. 1995). In Ruther‐
ford, we reasoned that a “drunk driving accident is not the re‐
sult of plan, direction, or purpose” and held that reckless or
negligent conduct—in that case an assault conviction for driv‐
ing under the influence and causing bodily injury—did not
satisfy the intentional use of force requirement in the guide‐
line definition. Id. at 372.
Rutherford does not stand, however, for the proposition
that only specific intent crimes qualify as crimes of violence.
Rutherford and similar cases address crimes based on negli‐
gent or reckless conduct, not general intent crimes like bank
robbery. 54 F.3d at 373–74 (addressing negligent and reckless
criminal acts as falling outside of the elements clause of
§ 4B1.2(1) (1995)); United States v. Smith, 544 F.3d 781, 786 (7th
Cir. 2008) (holding that “the residual clause of the ACCA” ex‐
cludes “those crimes with a mens rea of negligence or reckless‐
ness”). Moreover, in United States v. Castleman, the Supreme
Court found only that the use of force requirement in 18
U.S.C. § 922(g) requires “a higher degree of intent than negli‐
gent or merely accidental conduct,” and never stated that gen‐
eral intent crimes could not constitute crimes of violence. 572
U.S. —, —, 134 S. Ct. 1405, 1415 (2014), citing Leocal v. Ashcroft,
543 U.S. 1, 9–10 (2004) (holding that conviction for driving un‐
der influence of alcohol and causing serious bodily injury was
not crime of violence warranting deportation under definition
in § 16(a)).
In Woods, we observed: “In separating out purposeful, vi‐
olent, and aggressive crimes as the bases for enhancement of
a later, unrelated criminal sentence, Congress was attempting
to focus on those offenders whose criminal history evidenced
a high risk for recidivism and future violence.” 576 F.3d at 411
(citations omitted). Not only is bank robbery by intimidation
a “purposeful, violent, and aggressive” crime, Campbell’s
long record of robberies is not inconsistent with the type of
criminal history signaling “a high risk for recidivism and fu‐
ture violence.” Id.; see also, e.g., Armour, 840 F.3d. at 909 (bank
robbery by intimidation “inherently contains a threat of vio‐
lent physical force”).
Campbell argues that “Armour does not address the issue
presented in this appeal.” For the foregoing reasons, we disa‐
gree. We addressed nearly the same argument in Williams and
are not persuaded that we should interpret the elements
clause of U.S.S.G. § 4B1.2(a)(1) any differently than we inter‐
preted § 924(c)(3) as applied to bank robbery in Williams and
Armour. Bank robbery by intimidation is a crime of violence
under the elements clause of the definition in § 4B1.2(a)(1).
The decision of the district court is AFFIRMED.
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