Second Circuit Holds that Attempted Bank Robbery is Categorically a ‘Crime of Violence’
On March 1, 2021 the Second Circuit (Carney, Koetl) issued a decision in Collier v. United States, affirming the district court’s denial of Keith Collier’s habeas petition to vacate his conviction and sentence for an attempted robbery of a federal bank in the late 1990s and for using a firearm during the commission of a crime of violence, i.e., during the attempted robbery. The core issue presented was whether attempted federal bank robbery was categorically a “crime of violence” as that phrase is used in the relevant federal statute and Sentencing Guidelines. The application of the categorical approach in sorting out whether a myriad of state and federal crimes fall within the statutory definition of a “crime of violence” has been a major focus of federal criminal litigation over the past decade and a familiar focus of this blog.
In this appeal, Collier argued that attempted bank robbery is not a “crime of violence,” and he therefore should not have been convicted of possessing a firearm during the commission of a crime of violence. Furthermore, he argued, because his various federal and state bank robbery convictions were not “crimes of violence,” the court should not have treated him as a career offender under the Guidelines and substantially enhanced his sentence accordingly. In light of rapidly-developing law in this area—and since Collier had been released by the time the case reached the Second Circuit—the Court initially held the matter pending resolution of closely-related issues presented by other appeals. But ultimately, the Court sided with the district court in concluding that attempted federal bank robbery is categorically a “crime of violence” under the relevant statute and upheld his conviction. The Court declined to reach the merits of Collier’s challenge to the Guidelines enhancements, finding them untimely under § 2255’s one-year time limit.
In October 1997, a federal jury in the United States District Court for the Northern District of New York convicted Collier of attempted federal bank robbery, in violation of 18 U.S.C. §§ 2113, as well as several related counts. The jury also found Collier guilty of 18 U.S.C. § 924(c)(1), which prohibits using or carrying a firearm during the commission of a “crime of violence.” Collier had been carrying a firearm with an obliterated serial number at the time of his arrest, in violation of 18 U.S.C. § 922(k), which occurred while he was in his car on the way to the target bank.
In May 2018, the district court sentenced Collier to 270 months’ imprisonment, followed by three years’ supervised release. Collier’s conviction for the violation of § 924(c) (possession of a firearm during a crime of violence) required the court to impose a term of 60 months’ imprisonment consecutive to the 210 months for the other counts. Moreover, the court determined that Collier’s two prior convictions on state robbery charges made him a “career offender” under the Guidelines, and required the court to apply a Guidelines enhancement that significantly increased his sentence. Under the Guidelines (both at the time Collier was sentenced, which were mandatory pre-Booker, and today), a defendant is considered a “career offender” if, among other things, he was convicted of a felony “crime of violence,” and had at least two prior felony convictions for “crimes of violence.”
In his third habeas petition, Collier argued that the attempted federal bank robbery of which he was convicted was not a “crime of violence,” and therefore his § 924(c) conviction for possessing a firearm during a crime of violence was invalid. He also argued that because neither his federal attempted robbery conviction nor his prior state robbery convictions (for both attempted second-degree New York bank robbery and second-degree New York bank robbery) are “crimes of violence” under the Guidelines, he should not have been treated as a career offender. Collier also argued that the Guidelines’ definition of “crime of violence” on which the court relied to deem him a career offender was unconstitutionally vague. The government contested both the merits and the timeliness of Collier’s arguments, which came almost 20 years after his original sentencing. The district court denied Collier’s petition and Collier appealed.
Johnson v. United States and Its Progeny
Collier’s appeal reached the Second Circuit amid a backdrop of rapidly-evolving case law at the Supreme Court and among the various Circuit courts regarding the definition of a “crime of violence.” For the purposes of establishing a § 924(c) violation, a “crime of violence” is defined in the statute as a felony offense that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “elements clause” or “force clause”) 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” (the “residual clause”). The Career Offender Section (§ 4B1.2) of the Guidelines contained a similar “catch-all” definition of “crime of violence” that included “conduct that presents a serious potential risk of physical injury to another.” This was the definition referred to in determining whether a defendant would be considered a “career offender.”
In Johnson v. United States, 576 U.S. 591 (2015), the United States Supreme Court held that a similar “residual clause” in the Armed Career Criminal Act (ACCA)—§ 924(e)(2)(B)—was unconstitutionally vague. That clause defined a “violent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another.” When applied, the finding resulted in substantial sentencing enhancements. The Supreme Court concluded that the ACCA’s residual clause was so vague as to deny defendants fair notice and encourage arbitrary judicial enforcement.
Johnson has led to a wave of litigation challenging convictions and sentences based on the residual clause. In his § 2255 petition, Collier argued that his conviction and sentence should be vacated because they relied on the residual clauses in § 924(c) and in the Guidelines that are materially similar to the ACCA clause struck down by the Johnson court. Because there were several relevant cases pending before the Supreme Court and the Second Circuit—and because Collier’s release no longer depended on the outcome of his appeal—the Court held the case in abeyance pending resolution of those other cases (the Circuit has a tradition of generally allowing the first-argued case that raises a particular issue to be the one that resolves the issue).
During that time, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), in which it held that the residual clause in the Career Offender section of the Guidelines was not subject to a vagueness challenge, despite being virtually identical to the ACCA clause declared unconstitutionally vague in Johnson. The Supreme Court held this way because, post-Booker, the Guidelines are advisory, not mandatory, and are therefore not amenable to challenges on vagueness grounds. (Given that the Guidelines must be calculated and given weight by sentencing judges, and are still followed in roughly half of all federal sentencings, the Court’s decision in Beckles seems subject to criticism).
Also decided during the interim was United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court, relying on its decision in Johnson, struck down § 924(c)’s residual clause as unconstitutionally vague. As a result, only the elements clause of that statute can be relied upon to establish that the defendant committed a “crime of violence” sufficient to trigger the provision’s mandatory minimums.
Then, in United States v. Moore, 916 F.3d 231 (2d Cir. 2019), the Second Circuit held that federal bank robbery in violation of § 2113(a) (the same statute under which Collier was convicted) is a crime of violence under the elements clause of § 924(c). And in United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), the Court held that federal Hobbs Act robbery and New York robbery in the third degree (a statute which has elements that by definition must also be met for a second-degree robbery conviction) are both crimes of violence under the elements clause of the Career Offender Guidelines. With these cases decided, the Court turned back to Collier’s petition.
Second Circuit Affirms Denial of Habeas Petition
In light of the relevant legal developments, Collier focused his petition on the following arguments: (1) attempted federal bank robbery is not a “crime of violence” under § 924(c)’s elements clause and his conviction is therefore invalid; and (2) the district court’s application of the career offender enhancement applied to him was flawed because none of his three robbery convictions is a crime of violence under the Career Offender provision of the Guidelines and the residual clause of that provision, as applied pre-Booker (i.e., when the Guidelines were mandatory), was unconstitutionally vague under the reasoning set forth in Johnson.
The Court first considered the timeliness of Collier’s habeas petition, which is subject to § 2255’s one-year limitations period, which runs from the most recent of four possible dates. In this case, the clock would start running on “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
With respect to Collier’s vagueness challenge, the Court found it untimely. The Court relied on its decision in Nunez v. United States, 954 F.3d 465, 469 (2d Cir. 2020), which held that Johnson did not render the pre-Booker residual clause of the Career Offender Guidelines unconstitutionally vague. The Court therefore concluded that Johnson did not recognize the right that Collier now asserts and provides no basis to extend the deadline for the filing of his habeas petition. The Court thus also rejected Collier’s related Guidelines challenges.
The Court did, however, decide to reach the merits of Collier’s challenge to his conviction under § 924(c), concluding that the statute of limitations issue was “murky” in light of the Supreme Court’s decision in Davis. Collier’s primary argument was that attempted federal bank robbery was not a “crime of violence” under the elements clause of § 924(c).
To determine whether a particular conviction qualifies as a “crime of violence,” the Second Circuit generally applies the “categorical approach,” which requires the court to identify the “minimum criminal conduct necessary for conviction under a particular statute,” and determine whether that conduct is encompassed by the definition of “crime of violence” in the elements clause of § 924(c). The defendant’s actual conduct in committing the crime is irrelevant to this analysis.
The Court had previously concluded in Hendricks that federal bank robbery by intimidation in violation of § 2113(a) categorically constitutes a crime of violence for the purpose of § 924(c)’s elements clause. Nonetheless, Collier argued that attempted bank robbery is not a crime of violence under this analysis because to prove attempt the government need only show an intent to commit a crime and a substantial step toward doing so, neither of which necessarily involves the “use, attempted use, or threatened use” of physical force.
The Second Circuit disagreed. The Court noted that the crime of attempt requires that the defendant have intended to commit each of the elements of the substantive crime. Here, a conviction for attempted federal bank robbery under § 2113(a) requires that the defendant “by force and violence, or by intimidation. . . attempt[s] to take” the property at issue. Because bank robbery by intimidation was held by Hendricks to be a crime of violence, a conviction for attempted bank robbery is a categorical match for a crime of violence under § 924(c)’s elements clause, regardless of whether the substantial step taken involved the use of force.
The Court therefore denied Collier’s petition to vacate his § 924(c) conviction and the application of the Career Offender Guidelines enhancement.
Although the Second Circuit’s conclusion is in accord with the holdings of most other Circuit courts to have considered the issue, it is not without some controversy. Prior to the Court’s decision, several district courts in the Second Circuit had held that attempted Hobbs Act robbery is not a crime of violence under the elements clause of § 924(c). The Collier Court declined to reach the question of whether all “attempts” to commit other crimes of violence would necessarily be considered “crimes of violence” under § 924(c), limiting its holding to attempted federal bank robbery in violation of § 2113(a), which expressly requires that the attempt have been committed by force, violence, or intimidation. The Court acknowledged that this question might be thornier if the predicate statute on which the defendant was convicted did not so clearly state that the elements of the attempt must include an act of force, violence, or intimidation. In such a scenario, particularly if the defendant intended only to threaten force and the substantial step taken was nonviolent, the question may be a closer one, and perhaps one which the Supreme Court will step in to resolve.
All of this is of course significant because the consequences of a conviction under § 924(c) can have a tremendous impact on the length of a defendant’s sentence, as it triggers punitive mandatory minimums that must be served consecutive to the sentence imposed for the underlying offense. The severe consequences of a § 924(c) conviction have been the subject of much scrutiny and discussion over the last several years, as criminal justice reformers and legislators have worked to address what many consider to be disproportionately lengthy sentences. Sentencing reform has been one of the few issues to receive bipartisan support in the last few years. The First Step Act of 2018 took a significant step in addressing some of the harsher consequences of § 924(c), by eliminating the ability of prosecutors to “stack” multiple § 924(c) charges, which would often result in lengthy sentences because the second count carries a whopping 25-year successive sentence, even for first-time offenders. As advocates and defense attorneys continue to draw attention to particularly punitive sentencing regimes, we expect that both the case law and applicable statutes will continue to see reforms. The easiest way to bring this ongoing litigation to a close would be to change the law so that judges have discretion about whether this type of enhancement is necessary to achieve the goals of sentencing in a given case.
By Elena Steiger Reich and Harry Sandick
 Collier had previously filed unsuccessful habeas petitions in 2000 and 2003.
 In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court also struck down as unconstitutionally vague a similar provision in the Immigration and Nationality Act, 18 U.S.C. § 16(b).
 See United States v. Harvey, 791 F. App’x 171, 172 (11th Cir. 2020); United States v. Ingram, 947 F.3d 1021, 1025-26 (7th Cir. 2020); United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir.16 2018); United States v. Dominguez, 954 F.3d 1251, 1262 (9th Cir. 2020).
 Notably, the Fourth Circuit has taken the position that attempted Hobbs Act robbery is not a crime of violence under § 924(c). See United States v. Taylor, 979 F.3d 203 (4th Cir. Oct. 14, 2020).