Opinion

Marcellus Henderson v. United States

Court
Court of Appeals for the Eleventh Circuit
Filed
Apr 10, 2025
Status
Unpublished
Nature of suit
NEW
Cited by
0 cases
Authority
More cited than 34.8%

“[A] prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this [C]ourt sitting en banc.”

How later courts described this case

  • “[A] prior panel’s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this [C]ourt sitting en banc.”
  • “Under section 2113(a), ‘intimidation occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts.’” (quoting United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996))

Written by the judges who cited it.

The opinion

USCA11 Case: 21-11740 Document: 37-1 Date Filed: 04/10/2025 Page: 1 of 14

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11740

Non-Argument Calendar

____________________

MARCELLUS HENDERSON,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket Nos. 1:20-cv-01695-LMM,

1:03-cr-00648-LMM-GGB-1

____________________

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2 Opinion of the Court 21-11740

Before LUCK, LAGOA, and WILSON, Circuit Judges.

PER CURIAM:

This appeal originally came before us when Marcellus Hen-

derson, a federal prisoner represented by counsel, appealed the dis-

trict court’s denial of his authorized, successive 28 U.S.C. § 2255

motion to vacate. The district court, after denying the motion,

granted a certificate of appealability (“COA”) on whether Hender-

son’s conviction for aiding and abetting attempted bank robbery

resulting in death, in violation of 18 U.S.C. §§ 2113(a), (d), and (e),

is a crime of violence under 18 U.S.C. § 924(c)(3)(A).

On appeal, Henderson argued that his motion should have

been granted because attempted bank robbery resulting in death is

not a crime of violence under § 924(c)’s elements clause, particu-

larly in light of United States v. Taylor, 596 U.S. 845 (2022). Hender-

son also argued that aiding and abetting attempted bank robbery

resulting in death is not a crime of violence because an aider and

abettor need not participate in every element a principal partici-

pates in.

On February 9, 2023, we affirmed (in an unpublished deci-

sion) the district court’s order denying Henderson’s motion to va-

cate, reiterating that bank robbery convictions under § 2113(a) and

armed bank robbery convictions under § 2113(a) and (d) qualify as

“crimes of violence” under § 924(c)’s elements clause. Henderson

subsequently filed petitions for panel rehearing and for rehearing

en banc. In light of United States v. Armstrong, No. 21-11252, which

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21-11740 Opinion of the Court 3

was pending before this Court at that time, we vacated the panel

opinion, denied the petitions for rehearing as moot, and held this

case in abeyance pending resolution of Armstrong.

This Court has now issued its published decision in United

States v. Armstrong, 122 F.4th 1278 (11th Cir. 2024), and the mandate

issue on March 11, 2025. Having vacated our earlier panel opinion,

we now substitute this opinion in its place.

I. LEGAL BACKGROUND

Section 924(c) of Title 18 of the U.S. Code provides for a

mandatory consecutive sentence for any defendant who uses or

carries a firearm during a crime of violence or a drug-trafficking

crime. 18 U.S.C. § 924(c)(1). Section 924(c) defines a “crime of vi-

olence” as a felony offense that:

(A) has as an element the use, attempted use, or

threatened use of physical force against the per-

son or property of another, or

(B) 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 commit-

ting the offense.

Id. § 924(c)(3)(A), (B). Section 924(c)(3)(A) is known as the “ele-

ments clause,” while § 924(c)(3)(B) is known as the “residual

clause.” See, e.g., Thompson v. United States, 924 F.3d 1153, 1155

(11th Cir. 2019).

In United States v. Davis, the Supreme Court invalidated the

residual clause in § 924(c)(3)(B) as unconstitutionally vague. 588

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4 Opinion of the Court 21-11740

U.S. 445, 470 (2019). Therefore, post-Davis, an offense can only

qualify as a crime of violence if it “has as an element the use, at-

tempted use, or threatened use of physical force against the person

or property of another.” Id.

Section 2113 of Title 18 of the U.S. Code, known as the fed-

eral bank robbery statute, states, in relevant part:

(a) Whoever, by force and violence, or by intimi-

dation, takes, or attempts to take, from the per-

son or presence of another, or obtains or at-

tempts to obtain by extortion any property or

money or any other thing of value belonging

to, or in the care, custody, control, manage-

ment, 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 associa-

tion, 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 or such

savings and loan association and in violation of

any statute of the United States, or any lar-

ceny–

Shall be fined under this title or imprisoned not

more than twenty years, or both.

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21-11740 Opinion of the Court 5

(d) Whoever, in committing, or in attempting to

commit, any offense defined in subsections (a)

and (b) of this section, assaults any person, or

puts in jeopardy the life of any person by the

use of a dangerous weapon or device, shall be

fined under this title or imprisoned not more

than twenty-five years, or both.

(e) Whoever, in committing any offense defined in

this section, or in avoiding or attempting to

avoid apprehension for the commission of

such offense, or in freeing himself or attempt-

ing to free himself from arrest or confinement

for such offense, kills any person, or forces any

person to accompany him without the consent

of such person, shall be imprisoned not less

than ten years, or if death results shall be pun-

ished by death or life imprisonment.

18 U.S.C. § 2113(a), (d), and (e). We have referred to § 2113(a) as a

“lesser-included offense” of § 2113(d). See, e.g., United States v. Meth-

vin, 441 F.2d 584, 585 (5th Cir. 1971); United States v. Mitchell, 146

F.3d 1338, 1344 (11th Cir. 1998).

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2003, Marcellus Henderson and Terron

Vernon (and possibly others) forcibly entered a Bank of America in

Roswell, Georgia and attempted to rob the bank. The robbers tried

to get an employee, Angela Towle, to open the bank’s vault, but

Towle was unable to do so. The robbers then shot Towle to death,

fleeing with her purse, credit cards, and identification. A

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6 Opinion of the Court 21-11740

representative from Bank of America later reported that no funds

were taken from the bank.

On October 5, 2004, a federal grand jury returned a super-

seding indictment charging Henderson and Vernon with three

counts. Count One charged Henderson and Vernon with conspir-

acy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951.

Count Two charged Henderson and Vernon with aiding and abet-

ting attempted bank robbery resulting in death, in violation of 18

U.S.C. § 2113(a), (d), and (e). 1 Count Three charged Henderson and

Vernon with using and carrying firearms during and in relation to

a “crime of violence”—namely, “the attempted bank robbery de-

scribed in Count Two”—causing the death of a person through the

use of firearms, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii), and

924(j)(1). 2 On February 17, 2006, a jury found Henderson guilty of

all three counts. The district court sentenced Henderson to a term

of twenty years on Count One, life on Count Two, and ten years

on Count Three, with the terms of imprisonment for Counts One

1 Count Two alleged that Henderson and Vernon, “aided and abetted by each

other, . . . did by intimidation and by force and violence, knowingly and will-

fully attempt to” commit bank robbery, “and in committing said offense did

assault and put in jeopardy the life of [an] employee by use of a . . . handgun,

and did kill the employee.”

2 Count Three alleged that Henderson and Vernon, “aided and abetted by each

other, . . . during and in relation to a crime of violence for which they may be

prosecuted in a court of the United States, that is, the attempted bank robbery

described in Count Two above, did knowingly use and carry firearms, and

during the course of said attempted bank robbery did cause the death of a per-

son through the use of firearms.”

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21-11740 Opinion of the Court 7

and Two running concurrently, and the term of imprisonment for

Count Three running consecutively, for a total sentence of “Life

plus 10 years imprisonment.”

Henderson filed a direct appeal of his convictions and sen-

tences, which we denied. He then filed several § 2255 motions,

which were all either dismissed or denied. On January 6, 2020,

Henderson filed an application for leave to file a second or succes-

sive motion to vacate under 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h),

arguing that his § 924(c) conviction was unconstitutional in light of

the Supreme Court’s recent decision in Davis, since “aiding [and]

abetting can be accomplished in ways that do not require the use,

attempted use, or threatened use of physical force of violence

against a person or property.” He also argued that there was a

“chance” that his § 924(c) conviction “rested on the now-void resid-

ual clause of [§] 924(c).” Because Henderson had “made a prima

facie showing of the existence of at least one of the grounds set

forth” in § 2255(h), 3 we granted his application for leave to file a

second or successive motion to vacate.

3 A second or successive motion to vacate, set aside, or correct a federal sen-

tence can only be granted if a “panel of the appropriate court of appeals” cer-

tifies that the second or successive motion contains “(1) newly discovered ev-

idence that, if proven and viewed in light of the evidence as a whole, would

be sufficient to establish by clear and convincing evidence that no reasonable

factfinder would have found the movant guilty of the offense; or (2) a new rule

of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” § 2255(h).

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8 Opinion of the Court 21-11740

Henderson returned to the district court and filed a pro se §

2255 motion, which the district court summarily denied. About a

month later, however, the district court sua sponte vacated its previ-

ous order denying Henderson’s motion to vacate. The district

court noted, on second thought, that it had been “unable to locate

any precedent that addresses the precise question of whether aid-

ing and abetting an attempt crime would satisfy § 924(c)’s definition

of a ‘crime of violence’ as found in the elements clause” of § 924(c).

Given the “novelty and complexity” of the issues presented, the dis-

trict court appointed the Federal Public Defender’s Office to repre-

sent Henderson. Henderson then filed a counseled § 2255 motion,

arguing once again that the predicate “crime of aiding and abetting

attempted robbery resulting in death is no longer a crime of vio-

lence in light of Davis,” such that Henderson’s conviction and sen-

tence under § 924(c) “must evaporate.” On March 16, 2021, the

district court denied that motion. The district court granted a COA

on the issue of whether Henderson’s conviction for aiding and

abetting attempted bank robbery resulting in death qualifies as a

crime of violence under § 924(c), and this appeal followed.

III. STANDARD OF REVIEW

When reviewing a district court’s denial of a § 2255 motion,

we review questions of law de novo and factual findings for clear

error. Steiner v. United States, 940 F.3d 1282, 1288 (11th Cir. 2019).

Whether a particular conviction is a crime of violence under

§ 924(c) is a question of law and is reviewed de novo. Id. The scope

of our review of an unsuccessful § 2255 motion is limited to the

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21-11740 Opinion of the Court 9

issues enumerated in the COA. McKay v. United States, 657 F.3d

1190, 1195 (11th Cir. 2011).

IV. ANALYSIS

The question presented in this appeal is whether the predi-

cate crime of aiding and abetting an attempted bank robbery re-

sulting in a shooting death, in violation of § 2113(a), (d), and (e), is

a crime of violence under the elements clause, § 924(c)(3)(A).

Based on our decision in Armstrong, the answer is yes.

The Supreme Court has established a “categorial approach”

to determine whether a predicate offense is a “crime of violence”

under the elements clause. Alvarado-Linares v. United States, 44 F.4th

1334, 1342 (11th Cir. 2022). “Under that approach, we do not ex-

amine the defendant’s actual conduct. Instead, we ask whether the

offense in question ‘always’ involves the use, attempted use, or

threatened use of force. If the offense can be committed without

the use, attempted use, or threatened use of force, it is not a crime

of violence under the elements clause.” Delligatti v. United States,

604 U.S. ----, 145 S.Ct. 797, 803 (2025). However, when a statute is

divisible—meaning that it defines multiple potential crimes—we

instead apply a “modified categorical approach.” Alvarado-Linares,

44 F.4th at 1342. Under the modified categorical approach, “we

may look beyond the elements of the predicate offense to a limited

class of documents—including the indictment, jury instructions,

plea agreement, and plea colloquy—to determine which specific

crime, with which elements, a defendant was convicted of.” Id.

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10 Opinion of the Court 21-11740

In 2016, this Court held that a bank robbery conviction un-

der § 2113(a) qualified as a “crime of violence” under § 924(c)’s el-

ements clause because a “taking ‘by force and violence’ entails the

use of physical force,” and “a taking ‘by intimidation’ involves the

threat to use such force.” In re Sams, 830 F.3d 1234, 1239 (11th Cir.

2016) (quoting United States v. McNeal, 818 F.3d 141, 153 (4th Cir.

2016)). That same year, we also held that a conviction for armed

bank robbery under § 2113(a) and (d) qualified as a crime of vio-

lence under the elements clause. In re Hines, 824 F.3d 1334, 1336–

37 (11th Cir. 2016).

In 2022, the Supreme Court issued its opinion in Taylor, re-

solving a circuit split and holding that attempted Hobbs Act rob-

bery does not qualify as a predicate crime of violence under

§ 924(c)’s elements clause. 122 F.4th at 850–52. At the outset, the

Court noted that, under the categorical approach, the facts of a

particular defendant’s case are immaterial because the “only rele-

vant question is whether the federal felony at issue always requires

the government to prove—beyond a reasonable doubt, as an ele-

ment of its case—the use, attempted use, or threatened use of

force.” Id. at 850. The Court explained that, to prove attempted

Hobbs Act robbery, the government must show that the defendant

intended to unlawfully take or obtain personal property by means

of actual or threatened force, and that the defendant completed a

“substantial step” toward that end. Id. at 851. But, while the gov-

ernment has to show that the defendant took an “unequivocal” and

“significant” step towards committing robbery, the government

need not show that the defendant actually used, attempted to use,

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21-11740 Opinion of the Court 11

or even threatened to use force, as required by § 924(c). Id. The

Court stressed that “an intention to take property by force or threat,

along with a substantial step toward achieving that object, . . . is

just that, no more.” Id (emphasis added). Therefore, the Court

concluded that attempted Hobbs Act robbery was not a crime of

violence under the text of § 924(c)(3)(A). Id. at 852.

After the Supreme Court handed down its decision in Taylor,

we reissued our opinion in Armstrong. In that case, the defendant

appealed his convictions for three counts of brandishing a firearm

during and in relation to a crime of violence, in violation of §

924(c)(1)(A)(ii). Armstrong, 122 F.4th at 1281. Armstrong argued

that his convictions and sentences under § 924(c) were invalid be-

cause the predicate offenses underlying all three of those charges—

violations of § 2113(a)—could be committed without violence,

thereby rendering the “crime of violence” definition unconstitu-

tionally vague. Id. at 1282. Armstrong posited that, if Hobbs Act

robbery cannot be a predicate offense for a § 924(c) conviction, the

same must be true with respect to the federal bank robbery statute.

Id. at 1282. Because Davis rejected a categorical approach to as-

sessing crimes under the residual clause, Armstrong reasoned, we

should likewise reject the same categorical approach to the ele-

ments clause. Armstrong also argued that Davis abrogated this

Court’s decision in Sams. Id.

We disagreed. Based on the text, structure, and statutory

history of the bank robbery statute, we held that bank robbery un-

der § 2113(a) was distinguishable from Hobbs Act robbery because

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12 Opinion of the Court 21-11740

§ 2113(a) is divisible as to bank robbery and bank extortion. Id. at

1284–88. That is, the statute “list[s] elements in the alternative, and

thereby define[s] multiple crimes.” Id. at 1285 (quoting Mathis v.

United States, 579 U.S. 500, 505 (2016)). Armstrong was convicted

of bank robbery, not bank extortion. Id. at 1288. After reviewing

the terms of Armstrong’s indictment, plea agreement, and plea col-

loquy under the modified categorical approach, we held that bank

robbery in violation of § 2113(a) is a crime of violence. Id.

As relevant here, we also held that Taylor did not abrogate

our prior cases holding that both attempted bank robbery and aid-

ing and abetting attempted bank robbery are crimes of violence—

even when committed through intimidation.4 Id. at 1288–91. Un-

der the Taylor framework, aiding and abetting an attempted bank

robbery is a crime of violence because it requires proof that the

defendant used, attempted to use, or threatened to use force. Id. at

1288–89 (citing Taylor, 596 U.S. at 852).

As an initial matter, we set aside the “aiding and abetting”

qualifier, id. at 1288, because aiding and abetting “is not a separate

federal crime, but rather an alternative charge that permits one to

be found guilty as a principal for aiding or procuring someone else

to commit the offense,” Alvarado-Linares, 44 F.4th at 1348. We then

concluded that an attempt charge under § 2113(a)—unlike under §

1951—requires force, violence, or intimidation. Armstrong, 122

F.4th at 1290. Because Congress chose to criminalize only attempts

4 Judge Jordan dissented from this aspect of the opinion. See Armstrong, 122

F.4th at 1291–96 (Jordan, J., concurring in part and dissenting in part).

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21-11740 Opinion of the Court 13

that occur “by force and violence, or by intimidation,” see § 2113(a),

a criminal cannot commit an attempted § 2113(a) robbery without

actually using force or violence, see Armstrong, 122 F.4th at 1290; cf.

In re Sams, 830 F.3d at 1239 (agreeing with the Fourth Circuit that

“[b]ank robbery under § 2113(a), ‘by intimidation,’ requires the

threatened use of physical force”); United States v. Kelley, 412 F.3d

1240, 1244 (11th Cir. 2005) (“Under section 2113(a), ‘intimidation

occurs when an ordinary person in the teller’s position reasonably

could infer a threat of bodily harm from the defendant’s acts.’”

(quoting United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir.

1996))). In sum, aiding and abetting an attempted bank robbery

under § 2113(a) is a crime of violence because it requires that the

government prove, as an element of the offense, the use, attempted

use, or threatened use of force.

Because Henderson’s offense under § 2113(a) satisfies the el-

ements clause, we conclude that his § 924(c) conviction was based

on a valid predicate offense. Therefore, we need not determine

whether § 2113(d) and (e) independently qualify as crimes of vio-

lence.5

5 That said, this Court has held that the “statutory elements” of “§ 2113 (a) and

(d) . . . . clearly meet § 924(c)(3)(A)’s requirement that the underlying felony

offense must have ‘as an element the use, attempted use, or threatened use of

physical force against the person or property of another.’” In re Hines,

824 F.3d at 1337 (emphasis added); see also id. (“[A] conviction for armed bank

robbery clearly meets the requirement for an underlying felony offense, as set

out in § 924(c)(3)(A).”). In Armstrong, we clarified that “Taylor did not abrogate

our prior cases holding that both bank robbery and aiding and abetting bank

robbery are ‘crimes of violence.’” 122 F.4th at 1288. Likewise here, there is

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14 Opinion of the Court 21-11740

For these reasons, we conclude that the district court did not

err in denying Henderson’s motion to vacate.

AFFIRMED.

nothing in Taylor suggesting the abrogation of our reasoning and conclusion

in Hines. Thus, Hines still controls. See United States v. Archer, 531 F.3d 1347,

1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation

by the Supreme Court or by this [C]ourt sitting en banc.”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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