United States v. Ronald Vines

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-2843

_______________

UNITED STATES OF AMERICA

v.

RONALD DEWITT VINES,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:18-cr-00013-001)

District Judge: Honorable Paul S. Diamond

_______________

Argued: December 11, 2024

Before: BIBAS, CHUNG, and ROTH, Circuit Judges

(Filed: April 21, 2025)

Robert A. Zauzmer [ARGUED]

UNITED STATES ATTORNEY’S OFFICE

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Justin Aimonetti [ARGUED, WITHDREW APPEARANCE]

DECHERT

1900 K Street NW

Washington, DC 20006

Michael H. McGinley

Shane Sanderson

DECHERT

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Julia Shea

DECHERT

1095 Avenue of the Americas

3 Bryant Park

New York, NY 10036

Counsel for Appellant

2

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

Once in a blue moon, the categorical approach ends up in

the right place. Ronald Vines and his sons tried to rob a bank

at gunpoint. He pleaded guilty to both attempted armed bank

robbery and brandishing a gun while committing a crime of

violence. Now he challenges his second conviction, insisting

that attempted armed bank robbery is not a crime of violence

because someone can attempt an armed bank robbery without

using force, violence, or intimidation.

He is wrong. Even without a weapon, attempted bank rob-

bery under 18 U.S.C. § 2113(a)’s first paragraph is a crime of

violence because it requires making the attempt “by force and

violence, or by intimidation.” And adding a gun makes the rob-

bery no less violent. § 2113(d). Common sense tells us that, but

so does the categorical approach. This is the rare night when

the blue moon has risen. So the District Court rightly upheld

Vines’s conviction and sentence.

I. VINES TRIED TO ROB A BANK AT GUNPOINT

One morning, Vines and his two adult sons left the house

on a mission. They got a loaded rifle, a loaded revolver, a face

mask, body armor, zip ties, a police scanner, handheld radios,

and a tarp and hit the road. The road led to the bank, where they

hung up the tarp outside, hid behind it, and watched the bank

tellers arrive. While Vines and one of his sons waited behind

3

the tarp, the other son put on the face mask, grabbed the re-

volver, and snuck up on a teller. He forced her inside at gun-

point but was spotted by another employee who screamed and

fled, drawing attention. Vines signaled for his son to flee, so

they hopped back into the car and hit the road again. This time,

their trip was cut short by police.

Vines pleaded guilty to two federal crimes. The first was

attempted armed bank robbery under 18 U.S.C. §§ 2113(d) &

2 (aiding and abetting). That violation was based on attempting

to violate § 2113(a), specifically the first clause of the first par-

agraph, which criminalizes bank robbery. The second crime

piggybacked on the first: brandishing a gun while committing

a crime of violence (the attempted armed bank robbery), in viola-

tion of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2 (aiding and abetting).

Because Vines’s lawyer neither objected to his § 924(c)

charge nor appealed, Vines had to challenge his conviction and

sentence collaterally. See 28 U.S.C. § 2255. He claimed that his

conviction for attempted armed bank robbery was not a crime

of violence under § 924(c). The District Court denied that motion

but granted a certificate of appealability. On appeal, Vines got

permission also to argue that his plea lawyer was ineffective

for not asserting that attempted armed bank robbery is not a

crime of violence. Both claims turn on pure legal issues, so we

review them de novo. United States v. Jenkins, 68 F.4th 148,

151 (3d Cir. 2023).

4

II. WE APPLY THE CATEGORICAL APPROACH

TO § 2113(d) AND THE ROBBERY CLAUSE

OF THE FIRST PARAGRAPH OF § 2113(a)

To figure out if Vines’s § 2113(d) conviction was a predi-

cate crime of violence under § 924(c), we use the much-maligned

categorical approach. United States v. Jordan, 96 F.4th 584,

589 (3d Cir. 2024). That approach forbids us to consider what

Vines actually did. Instead, it forces us to imagine the least vio-

lent conduct that a hypothetical defendant might have done to

be convicted of this crime. Moncrieffe v. Holder, 569 U.S. 184,

191 (2013); Mathis v. United States, 579 U.S. 500, 504 (2016).

Here, that means concocting the least culpable violation of

§ 2113(d) and asking whether it “match[es] the elements of” a

crime of violence as defined in § 924(c)(3)(A). Mathis, 579

U.S. at 504.

Before we get to that matching, we must first figure out the

elements of § 2113(d). Statutes often are divisible: They “list

elements in the alternative, and thereby define multiple

crimes.” Mathis, 579 U.S. at 505. But we can separate out these

crimes and focus on only the elements that were “integral to

the defendant’s conviction.” Id.

We start with Vines’s conviction for attempted armed bank

robbery. Section 2113(d) applies to:

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 de-

vice.

5

So a conviction under § 2113(d) can be based on either (a)

or (b) and “incorporates each subsection’s elements.” Jordan,

96 F.4th at 591. Subsections (a) and (b) apply to different kinds

of bank theft: (a) covers robbery, extortion, and burglary, while

(b) covers larceny. We have already held that these subsections

are divisible from each other. Id. at 590. And Vines pleaded

guilty to violating subsection (a), so we can focus just on that

subsection. The subsection has two paragraphs: the first cover-

ing robbery and extortion; the second, burglary. We have al-

ready held that the first paragraph is divisible from the second,

and Vines pleaded guilty to violating the first. Id. So we can

focus on that paragraph alone.

But now we must dive a level deeper. Subsection (a)’s first

paragraph contains two separate clauses: one criminalizes tak-

ing a bank’s property (or attempting to take it) “by force and

violence, or by intimidation”; the other bars “obtain[ing] or

attempt[ing] to obtain” a bank’s property “by extortion.”

§ 2113(a). We ask whether these clauses are divisible or must

be analyzed together. We hold that they are divisible.

A person violates the first paragraph of § 2113(a) if he:

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, cus-

tody, control, management, or possession of, any bank,

credit union, or any savings and loan association.

18 U.S.C. § 2113(a) (first paragraph).

6

Here is that paragraph with each clause split out:

[First clause: bank robbery] by force and violence, or

by intimidation, takes, or attempts to take, from the per-

son or presence of another,

or

[Second clause: bank extortion] obtains or attempts to

obtain by extortion [various types of bank property, like

its money].

Id. (line breaks added).

Almost all our sister circuits that have addressed the ques-

tion agree that these two clauses set out two separate, divisible

crimes: bank robbery and bank extortion. King v. United

States, 965 F.3d 60, 69 (1st Cir. 2020); United States v. Evans,

924 F.3d 21, 28 (2d Cir. 2019); United States v. Watson, 881

F.3d 782, 786 (9th Cir. 2018); United States v. Armstrong, 122

F.4th 1278, 1286 (11th Cir. 2024). Contra United States v. Bur-

well, 122 F.4th 984, 986 (D.C. Cir. 2024).

That near-consensus is sound. The first clause applies to

someone who uses force, violence, or intimidation to take

something: in other words, robbery. 18 U.S.C. § 2113(a); see 4

William Blackstone, Commentaries *241–42. And the second

clause explicitly requires extortion. Those distinct concepts

have distinct requirements. Robbery traditionally meant taking

something from someone against her will. See id.; 1 Matthew

Hale, The History of the Pleas of the Crown *532. By contrast,

extortion traditionally meant taking someone else’s property

with the victim’s consent but inducing that consent wrongfully.

See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403

7

(2003); United States v. Harris, 916 F.3d 948, 954–55 (11th

Cir. 2019). That explains why the first clause requires

“tak[ing], or attempt[ing] to take” something, while the second

clause requires only “obtain[ing], or attempt[ing] to obtain” it.

§ 2113(a).

Now turn back to the crime that Vines was charged with. A

conviction for attempted armed bank robbery under § 2113(d)

requires proof of both (1) the elements of attempted bank rob-

bery under § 2113(a)’s paragraph one, clause one, and (2) the

elements of attempted armed bank robbery under § 2113(d). If

either provision requires force or threatened force, then Vines’s

conviction was for a crime of violence and satisfies § 924(c).

United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018); Jordan,

96 F.4th at 594. As we will explain, both are crimes of violence.

That is where we part ways with the dissent. Although our

dissenting colleague would find that § 2113(a) controls the def-

inition of completed armed bank robbery, the dissent would by-

pass § 2113(a) when defining attempts. The dissent would in-

stead find that there is a separate standalone crime of attempted

armed bank robbery under § 2113(d) where the meaning of at-

tempt is given content by the common law, rather than

§ 2113(a). But the dissent does not explain why we would ap-

ply § 2113(a) only in part (that is, only to completed crimes)

when analyzing crimes set forth in § 2113(d). There is no such

thing as a freestanding conviction for attempted bank robbery

under § 2113(d); it must also satisfy the elements of § 2113(a)

that we already have held are “incorporate[d]” into it. Id. at

591. If a conviction under § 2113(d) must incorporate elements

that make it a crime of violence, it defies common sense not to

call it one.

8

III. ATTEMPTED ARMED BANK ROBBERY

IS A CRIME OF VIOLENCE

A. Attempted bank robbery under § 2113(a) is a crime

of violence

1. Attempted bank robbery requires force, violence, or

intimidation. Like almost all our sister circuits, we have held

that completed bank robbery under § 2113(a) is a crime of vio-

lence. Wilson, 880 F.3d at 88. But see Burwell, 122 F.4th at

987. But we have never addressed whether attempted bank rob-

bery is, and our sister circuits are divided. Compare Collier v.

United States, 989 F.3d 212, 221 (2d Cir. 2021) (holding that

attempted bank robbery requires force or intimidation), United

States v. Bellew, 369 F.3d 450, 454 (5th Cir. 2004) (same), and

United States v. Thornton, 539 F.3d 741, 747 (7th Cir. 2008)

(same), with United States v. McFadden, 739 F.2d 149, 151–

52 (4th Cir. 1984) (holding that attempted bank robbery does

not require force or intimidation), United States v. Wesley, 417

F.3d 612, 618 (6th Cir. 2005) (same), and United States v.

Moore, 921 F.2d 207, 209 (9th Cir. 1990) (same).

This disagreement stems from a seeming ambiguity in

§ 2113(a). Recall that the first clause of the first paragraph

applies to:

Whoever, by force and violence, or by intimidation,

takes, or attempts to take, from the person or presence

of another [property of a bank].

18 U.S.C. § 2113(a).

All courts agree that the verb “takes” is qualified by the

adverbial phrase “by force and violence, or by intimidation”

9

that comes right before it. The supposed ambiguity is whether

that same adverbial phrase also modifies “attempts to take.” If

it does, then the attempt must be carried out “by force and vio-

lence, or by intimidation.” We hold that this adverbial phrase

does modify both verbs. So even for an attempt, the govern-

ment must prove force, violence, or intimidation.

On close inspection, the ambiguity evaporates. We start and

end with the text, proceeding left to right. Section 2113(a)

kicks off with a subject immediately followed by an adverbial

phrase:

The adverbial phrase comprises two parts. First comes “by

force and violence,” followed with “or by intimidation.” The

latter is offset by commas. It is not the most elegant wordsmith-

ing, to be sure, but it gets the point across: Whatever follows

will be modified by the adverbial phrase. Sure enough, right

after the second comma comes the first item of a short list: a

main verb (“takes”). The preceding adverbial phrase qualifies

how the actor must do that taking: “by force or violence, or

by intimidation.” So far, so good.

10

Right after the first verb, “takes,” comes another comma

introducing the second verb in the list: the phrase “or attempts

to take.” The adverbial phrase modifies both verbs. When a

qualifier precedes a list, we read it most naturally as traveling

all the way down the list unless some punctuation, grammar,

or syntax signals otherwise. Flores-Figueroa v. United States,

556 U.S. 646, 650 (2009). This inference is especially strong

where, as here, the items have a “parallel construction.” Anto-

nin Scalia & Bryan A. Garner, Reading Law: The Interpreta-

tion of Legal Texts 147–48 (2012) (collecting examples).

This reading fits with the structure of the rest of the sen-

tence. Right after the two verbs comes the prepositional phrase

“from the person or presence of another.” The sentence is a

sandwich. The two main verbs sit between two modifying

phrases that operate on both. First, the adverbial phrase before

the verbs clarifies that either a taking or an attempt must be

done by force, violence, or intimidation. Then, the preposi-

tional phrase after the verbs clarifies that a taking or attempt

11

must involve taking from someone else, as our Court has al-

ready hinted. See Wilson, 880 F.3d at 84–85. The most natural

reading of the sentence is that both phrases modify both verbs,

as shown below.

Any other reading of the sentence would mangle it. To read

the preceding adverbial phrase to apply only to a successful

taking, but the following prepositional phrase to apply to both,

would require the asymmetric contortion below that Vines’s

reading implies.

Thus, any conduct that violates the robbery clause of

§ 2113(a), whether by attempt or not, is a crime of violence

under § 924(c)(3)(A).

2. Vines’s counterarguments fall flat. Resisting our common-

sense reading, Vines offers two responses. Neither works.

12

First, Vines invokes the Supreme Court’s ruling in United

States v. Taylor, 596 U.S. 845 (2022). But that case is inapt.

True, Taylor held that attempted Hobbs Act robbery is not a

crime of violence. Id. at 851. But that was because the verb

“attempt” works differently in the Hobbs Act. That Act applies

to:

Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity

in commerce, by robbery or extortion or attempts or

conspires so to do ….

18 U.S.C. § 1951(a).

In § 2113(a) both sets of verbs are the sandwich’s filling.

By contrast, in the Hobbs Act, the main verbs are the bread.

Between those slices of bread is the adverbial phrase that intro-

duces a force element: “by robbery.” That phrase most naturally

applies only to what precedes it, not to what precedes and fol-

lows it: “[A] limiting clause or phrase … should ordinarily be

read as modifying only the noun or phrase that it immediately

follows.” Jama v. ICE, 543 U.S. 335, 343 (2005) (ellipsis in

original) (internal quotation marks omitted). This makes sense

because the crime is one unit with two parts: (1) obstructing,

delaying, or affecting commerce (2) by robbery.

13

The “so to do” in the “attempts” clause refers to the under-

lying crime: obstructing, delaying, or affecting commerce by

robbery. The verb “attempt” is unmodified. With no statutory

language requiring the attempt to be made by force, Taylor

applied the Model Penal Code and common law definitions of

attempt, which do not require force. See 596 U.S. at 851–52;

McFadden, 739 F.2d at 152. Thus, there is no force or violence

element in attempted Hobbs Act robbery: It just requires show-

ing that “[t]he defendant intended to unlawfully take personal

property by means of actual or threatened force” and com-

pleted a substantial step toward doing so. Taylor, 596 U.S. at

851. By contrast, § 2113(a) is more specific: The adverbial

phrase requiring force, violence, or intimidation limits the verb

“attempt.” Not every attempt counts—only those done by

force, violence, or intimidation do. Because the Hobbs Act is

built differently from § 2113(a), we read it differently. So Tay-

lor does not apply, and we do not import the common law of

attempt into § 2113(a).

Vines’s second rejoinder is just as unpersuasive. He insists

that the Third Circuit already read the common law of attempt

into § 2113(a) in United States v. Garner, 915 F.3d 167, 170

(3d Cir. 2019). We did not. To be sure, we recited § 2113(a)’s

elements as requiring only a substantial step toward commit-

ting bank robbery. Id. Yet that case did not ask, let alone turn

on, whether § 2113(a) was a crime of violence. And “[q]ues-

tions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not considered as hav-

ing been so decided as to constitute precedents.” Grant v.

Shalala, 989 F.2d 1332, 1341 (3d Cir. 1993) (Alito, J.) (quot-

ing Webster v. Fall, 266 U.S. 507, 511 (1925)).

14

In short, one cannot be convicted under the robbery clause

of § 2113(a)’s first paragraph without committing a crime of

violence. We could stop there, as both sides agree that Vines’s

conviction rested on that clause. But even if we were only to

consider only § 2113(d), he would fare no better.

B. Attempted armed bank robbery under § 2113(d) is

also a crime of violence

Adding a dangerous weapon to attempted bank robbery

does not make the crime less violent. Recall that § 2113(d) is

the armed bank robbery statute. It applies to:

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 ….

18 U.S.C. § 2113(d).

When paired with § 2113(a)’s first paragraph, that is a crime

of violence. Thanks to the categorical approach, though, this

conclusion is not obvious. Although § 2113(d) requires force,

the wrinkle is that a defendant need jeopardize only “the life of

any person.” Id. (emphasis added). Yet a crime of violence

requires using force “against the person or property of another.”

18 U.S.C. § 924(c)(3)(A) (emphasis added). Vines argues that

an armed bank robber could jeopardize his own life, stopping

the two statutes from lining up.

But that wrinkle has been ironed out by our precedent. First,

Wilson held that bank robbery under § 2113(a) “clearly does

involve the threatened use of physical force against the person

of another.” 880 F.3d at 84–85 (internal quotation marks

15

omitted; emphasis added). Then Jordan relied on that hold-

ing. Because § 2113(a) requires force “against the person of an-

other,” we reasoned, a conviction for completed armed bank

robbery under § 2113(d) based on § 2113(a) could only have

involved force against someone else. 96 F.4th at 594. That

logic applies equally to an attempt; in either case, § 2113(a)’s

robbery clause requires force against someone else. Our dis-

senting colleague misses that point.

In short, § 2113(d) requires force or intimidation, and

§ 2113(a) clarifies that the defendant must have used the force

or intimidation against someone else. Even if § 2113(a)’s first

paragraph were not independently a crime of violence, together

these provisions would add up to one.

*****

No matter how you slice it, attempted armed bank robbery

under § 2113(d) predicated on § 2113(a)’s robbery clause is a

crime of violence under § 924(c)(3)(A). Because the statute’s

language is unambiguous, we do not reach the rule of lenity.

IV. VINES’S COUNSEL WAS EFFECTIVE

Finally, Vines claims that his lawyer was ineffective because

he did not argue that attempted armed bank robbery is not a

crime of violence at the plea hearing or sentencing. To claim

ineffective assistance of counsel, Vines must show not only

that his lawyer performed deficiently, but that the deficient per-

formance prejudiced him. Strickland v. Washington, 466 U.S.

668, 687 (1984).

Yet any purported deficiency did not prejudice Vines. If his

lawyer had objected, that objection would have failed because,

16

as we hold, his arguments would have been meritless. The only

alleged prejudice is that Vines says he would not have pleaded

guilty to the § 924(c) charge. Although a higher prison sentence

counts as prejudice, “the likelihood of a different result must

be substantial, not just conceivable.” Harrington v. Richter,

562 U.S. 86, 112 (2011). When a defendant alleges that he

pleaded guilty only because his counsel was ineffective, he

must ordinarily show that he “likely would have succeeded at

trial” in winning a better outcome. Hill v. Lockhart, 474 U.S.

52, 59 (1985). He has not shown that. He can only speculate

that a properly instructed jury would have rejected either

charge at trial. “Mere speculation” is not enough to show prej-

udice. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).

We will not treat counsel’s failure to raise a meritless argument

as prejudicial. See Sperry v. McKune, 445 F.3d 1268, 1275

(10th Cir. 2006) (“[I]f the issue is meritless, its omission will

not constitute deficient performance.” (internal quotation

marks omitted)).

*****

Although the categorical approach often leads to unusual

places, today we arrive at a recognizable stop. Attempted bank

robbery under § 2113(a)’s first paragraph is a crime of vio-

lence. And doing it while armed, under § 2113(d), does not

make it any less violent. Thus, we will affirm the District

Court’s order denying Vines’s collateral attack.

17

ROTH, Circuit Judge, dissenting in part.

The majority focuses nearly all its analysis on a crime

for which Ronald Vines was not convicted. And the crime for

which he was convicted does not categorically require the

actual, attempted, or threatened use of force against another.

Thus, while I concur with much of the majority’s reasoning, I

respectfully dissent from its ultimate disposition.

I.

I agree with the majority that, under 18 U.S.C. §

2113(a), robbery and extortion constitute divisible offenses.1 I

further agree that, under § 2113(a), attempted robbery requires

the actual use of force, violence, or intimidation. And, like the

majority, I do not believe that United States v. Garner ties our

hands (although I view this as a closer question than does the

1

I see no sound basis for distinguishing § 2113(a) from 18

U.S.C. § 1951(a), whose robbery and extortion provisions, we

have already established, are divisible. See United States v.

Robinson, 844 F.3d 137, 149–50 (3d Cir. 2016) (Fuentes J.,

concurring) (concluding that § 1951(a)’s proscription of

“affect[ing] commerce . . . by robbery or extortion” was

divisible, and that its “robbery” clause constituted a crime of

violence); United States v. Walker, 990 F.3d 316, 325–26 (3d

Cir. 2021) (adopting the Robinson concurrence’s reasoning as

“thoroughly persuasive”), cert. granted and vacated on other

grounds, 142 S. Ct. 2858 (2022); United States v. Stoney, 62

F.4th 108, 113–14 (3d Cir. 2023) (confirming that Walker

remains good law as to completed robbery).

1

majority).2 Had Ronald Vines been convicted of generic

2

The majority writes that Garner “did not ask, let alone turn

on, whether § 2113(a) was a crime of violence.” That is

technically true—but only technically. James Garner was

arrested long before he had the chance to use violence. See

United States v. Garner, 915 F.3d 167, 170 (3d Cir. 2019). As

such, our holding that sufficient evidence supported his

conviction turned entirely on our expressed understanding that

§ 2113(a) could be violated without force—the very approach

our Court now rejects. Indeed, the government’s briefing in

Garner relied on the precise caselaw we now repudiate. If

Garner fails to bind us, it is instead because neither party

contested the interpretation of § 2113, or informed us another

interpretation was possible. Whether that is enough to free our

hands remains unfortunately murky.

On the one hand, the Supreme Court has long held that

it is not bound by its prior resolution of antecedent legal issues

where that resolution received little or no analysis. See, e.g.,

Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993); Cross v.

Burke, 146 U.S. 82, 87 (1892); United States v. More, 3 Cranch

159, 172 (1805). And while our fealty to prior panels is more

inexorable, at least some version of that rule applies at our level

as well. See Grant v. Shalala, 989 F.2d 1332, 1341 (3d Cir.

1993). On the other hand, our sister-circuits have widely

agreed that, if stare decisis is to have any force, there cannot

be an “overlooked reason or argument exception to the prior-

panel-precedent rule.” In re Lambrix, 776 F.3d 789, 794 (11th

Cir. 2015); see also, e.g., Brumbach v. United States, 929 F.3d

791, 795 (6th Cir. 2019); Silva v. Garland, 993 F.2d 705, 717

(9th Cir. 2021); Cohen v. Office Depot, 204 F.3d 1069, 1076

(11th Cir. 2000); Phonometrics, Inc. v. Choice Hotels Intern.,

Inc., 21 Fed.App’x. 910, 912 (Fed. Cir. 2001). Where the line

2

attempted robbery under § 2113(a), I would concur with the

majority that he was guilty of a crime of violence under 18

U.S.C. 924(c). But Ronald Vines was convicted under 18

U.S.C. § 2113(d). And for all the persuasiveness of the

majority’s textual analysis, none of it focuses on the provision

that is actually in front of us.

That matters. Unlike its counterpart, § 2113(d)’s

attempt provision does not contain any language even arguably

suggesting the defendant must commit the underlying attempt

forcibly. Instead, it merely requires an offender to “attempt[]

to commit, any offense defined in subsections (a) and (b).”3

In grafting § 2113(a)’s forcible attempt standard onto §

falls between an unanalyzed issue and an overlooked argument

will often (I suspect usually) be unclear. And, given the

profound implications for our judicial system, further en banc

guidance in this area is sorely needed. But, pending such

guidance, I am persuaded that Garner’s cursory and under-

briefed discussion of § 2113(a) (which had no bearing on the

issues which prompted us to label that decision precedential)

falls within the Grant exception. I caution, however, that

whatever latitude this Court affords itself in departing from

I.O.P. 9.1 (which, at bottom, is a doctrine of court

administration) should not be read reflexively to authorize the

same latitude for district courts (whose constitutional duty to

obey our rulings does not hinge on their confidence in our

issue-spotting). See Royal Canin U.S.A., Inc. v. Wullschleger,

604 U.S. 22, 43 n.10 (2025).

3

18 U.S.C. § 2113(d). That Congress may have wished to

permit conviction under § 2113(d) for attempts that did not

progress far enough to violate § 2113(a) is unsurprising, given

the increased risk to the public posed by § 2113(d) violations.

3

2113(d), the majority implicitly rewrites the text of § 2113(d)

so that, rather than read “whoever, in committing or attempting

to commit, any offense,” it reads “whoever, in committing any

offense or in committing the attempt provision of any

offense.” That contortion, which has no basis in the statute, is

no less textually questionable than the inside-out sandwiches

the majority decries.

The majority’s approach is also demonstratively

untenable in the context of § 2113(d).4 By its express terms,

an attempted violation of § 2113(d) can be predicated on

violating either § 2113(a) (bank robbery) or § 2113(b) (bank

larceny), and at least one of our sister circuits has upheld §

2113(d) charges based solely on an attempted violation of §

2113(b).5 This is true even though § 2113(b) does not contain

an attempt provision, and it is well-recognized that a defendant

cannot be prosecuted for attempting to violate § 2113(b)

alone.6 Yet the single instance of the word “attempting” in §

2113(d) can obviously only have one meaning.7 It follows

4

United States v. Loniello, 610 F.3d 488, 496 (7th Cir. 2010)

(noting that each subsection of § 2113 constitutes a separate,

independent offense).

5

See United States v. Willis, 102 F.3d 1078, 1082 (10th Cir.

1996). See generally Reno v. Bossier Parish School Bd., 528

U.S. 320 (2000) (“[W]e refuse to adopt a construction that

would attribute different meanings to the same phrase in the

same sentence

6

See generally United States v. Hopkins, 703 F.2d, 1102, 1104

(9th Cir. 1983) (noting that § 2113(b) does not criminalize

attempt); Willis, 102 F.3d at 1082 (noting that § 2113(b) cannot

support a freestanding attempt conviction).

7

See Reno v. Bossier Parish School Bd., 528 U.S. 320, 329

(2000) (“[W]e refuse to adopt a construction that would

4

that—regardless of which predicate offense it is based on—§

2113(d) creates a substantive attempt crime, rather than simply

incorporating some other attempt provision by reference.8

Without interpolating § 2113(a)’s forcible attempt

requirement, there is nothing to distinguish § 2113(d) from any

other generic attempt crime—which requires only “an act

amounting to a ‘substantial step’ toward the commission of that

crime” (in this case, completed bank robbery under §

2113(a)).9 And because Taylor makes clear that merely taking

a substantial step towards committing a robbery (even a

robbery in which force is planned) does not constitute using,

attempting to use, or threatening to use force, it follows that the

“attempt” language in § 2113(d) does not render that statute a

crime of violence under § 924(c).10

II.

That is, of course, not the end of the story, because §

2113(d) also requires a defendant to “assault[] any person, or

attribute different meanings to the same phrase in the same

sentence, depending on which object it is modifying.”)

8

The government did not dispute at oral argument that (in

keeping with the plain reading of his indictment) Vines’

conviction was predicated on the “attempt” prong of § 2113(d).

I therefore need not address whether the government could

theoretically charge a defendant with armed attempted bank

robbery, basing itself entirely on the completed prong of

§ 2113(d) but using the attempt prong of § 2113(a) as the

predicate offense.

9

Garner, 915 F.3d at 170 (quoting United States v. Hsu, 155

F.3d 189, 202 (3d Cir. 1998)).

10

See United States v. Taylor, 596 U.S. 845, 860 (2022).

5

put[] in jeopardy the life of any person by the use of a

dangerous weapon or device.”11 It is tempting to read this

provision as an alternative ground for deeming § 2113(d) a

crime of violence, regardless of its relationship to § 2113(a).

But, like most temptations, this one leads astray. While §

2113(d)’s aggravating factors certainly entail the “use,

threatened use, or attempted use of force,” they do not require

that force to be exerted against a third party, do not require that

force to be knowing, and, accordingly, do not provide an

independent basis for deeming § 2113(d) a crime of violence.

A.

As the majority acknowledges, a crime whose force

element could theoretically be self-directed is not a crime of

violence for the purpose of § 924.12 Yet, as the majority

recognizes, § 2113(d) can be facially violated by a defendant

who “assaults any person, or puts in jeopardy the life of any

person.”13 And while it is questionable if someone can assault

himself, it is certainly possible for a defendant to put his own

life in jeopardy while trying to rob a bank. Consider a robber

who holds a gun to his own head and threatens self-harm unless

a teller (or potential co-conspirator) cooperates, or one who

starts driving to the robbery site with a loaded weapon he does

not subjectively intend to use.14 Or consider a robber who

11

18 U.S.C. § 2113(d).

12

See United States v. Davis, 53 F.4th 168, 171 (4th Cir. 2022);

see also Torres v. Lynch, 578 U.S. 452, 465–66 (2016)

(interpreting a nearly identical crime-of-violence provision).

13

18 U.S.C. § 2113(d) (emphasis added).

14

See Portee v. United States, 941 F.3d 263, 271–73 (7th Cir.

2019) (collecting examples of defendants prosecuted for

violent offenses based on a self-endangerment theory).

6

arrives at a bank with an unloaded weapon, placing his own

life in serious jeopardy from responding police.15

Recognizing that the plain text of § 2113(d) would

allow for conviction under these scenarios, the majority seeks

refuge under our holding in Jordan. But it misapplies that

precedent. In Jordan, we noted that to commit completed bank

robbery under § 2113(a) a defendant must use force against

“another.”16 We further noted that aggravated bank robbery

under § 2113(d) requires a defendant to both (1) commit

completed generic robbery under § 2113(a) and (2) satisfy an

aggravating factor.17 We therefore held that, regardless of

whether § 2113(d)’s aggravating factor required force, the

crime as a whole was a crime of violence. But in committing

completed robbery under subsection (a) the defendant had

15

See McLaughlin v. United States, 476 U.S. 16, 17–18 (1986)

(holding that the use of an unloaded firearm can justify

conviction under § 2113(d) because of the “immediate danger

that a violent response will ensue”); United States v. Dixon,

982 F.2d 116, 123 (3d Cir. 1992) (noting that the “increased

chance of an armed response creates a greater risk to the

physical security of victims, bystanders, and even the

perpetrators[.]” (internal quotation omitted)); see also United

States v. Benson, 918 F.2d 1, 4 (1st Cir. 1990) (affirming §

2113(d) conviction where defendant’s mock gun “put in

jeopardy the lives of the teller and other persons at the robbery

scene, even including appellant”); United States v. Martinez-

Jimenez, 864 F.2d 664, 666–67 (9th Cir. 1989) (holding that

the use of a toy gun “creates a greater risk to the physical

security of victims, bystanders, and even the perpetrators”).

16

96 F.4th at 593–94 (quoting United States v. Wilson, 880

F.3d 80, 84–85 (3d Cir. 2018)).

17

Id.

7

already done everything he needed to do to satisfy § 924(c).

Such a completed bank robbery has no bearing on Ronald

Vines’ conviction under the attempt prong of § 2113(d).

Unlike completed robbery, the minimum conduct

needed to satisfy the attempted robbery prong of § 2113(d), for

which Vines was convicted, is (1) attempting to violate §

2113(a) and (2) satisfying an aggravating factor. As discussed

above, the first element does not qualify as using, threatening

to use, or attempting to use force at all.18 We know that from

Taylor. And because the aggravating factor itself does not

require the use of force against another, it follows that neither

prong of attempted robbery under § 2113(d) necessarily

satisfies § 924(c).

B.

It is well-settled that, to qualify as a crime of violence

under 924(c), an offense must involve the purposeful or

knowing (not just reckless) use of force.19 In addition to not

necessarily involving the use of force against another, the

second prong of § 2113(d) further fails to meet § 924(c)’s force

18

While I reach this conclusion because the attempt prong in §

2113(d) does not incorporate by reference the “by force and

violence, or by intimidation” clause in § 2113(a), I note that

the same would hold if the attempt prong of § 2113(a) were

itself not a crime of violence—as the majority assumes

arguendo in its discussion of § 2113(d).

19

See Borden v. United States, 593 U.S. 420, 445 (2021); see

also Delligatti v. United States, 145 S.Ct. 797, 808 n.5 (2025);

Tran v. Gonzales, 414 F.3d 464, 470–72 (3d Cir. 2005)

(holding that conspiracy to commit reckless burning was not a

crime of violence because it could be violated recklessly).

8

requirement because it does not require the knowing use of

force.

Section 2113(d)’s reference to “us[ing] a dangerous

weapon or device” to put “in jeopardy the life of any person”

does not on its face contain any requirement that the defendant

knowingly place some life in danger—and courts have long

interpreted such language as subsuming reckless conduct as

well.20 Further, it is not hard to think of plausible examples

20

See Voisine v. United States, 579 U.S. 686, 692–93 (2016)

(holding that the phrase “use or attempted use of physical

force” without further qualification criminalizes even reckless

conduct); United States v. Mills, 1 F.3d 414, 420–21 (6th Cir.

1993), abrogated in part on other grounds by Montejo v.

Louisiana, 556 U.S. 778, 797 (2009) (affirming conviction

under an identically worded statute based purely on reckless

conduct). It is true that the Court of Appeals for the Ninth

Circuit appears to have held that § 2113(d) requires the

knowing use of force. See United States v. Buck, 23 F.4th 919,

929 (9th Cir. 2022) (asserting without analysis that Ҥ 2113(d)

requires that the robber knowingly made one or more victims

at the scene of the robbery aware that he had a gun” (cleaned

up)). But Buck based this assertion on United States v. Henry,

984 F.3d 1343, 1358 (9th Cir. 2021), which in turn cited United

States v. McDuffy, 890 F.3d 796, 799 (9th Cir. 2018), which in

turn relied on United States v. Odom, 329 F.3d 1032, 1035 (9th

Cir. 2003), which based itself on the Supreme Court’s

conclusion in Bailey v. United States that “using” a firearm

under a parallel statute required “active employment.” 516

U.S. 137, 143 (1995). The Supreme Court has since clarified

that, as used in Bailey, this phrase included reckless (as well as

knowing) conduct. Voisine, 579 U.S. at 695–96.

9

where an attempted armed bank robber could place others’

lives at risk recklessly, such as by accidentally discharging a

firearm,21 or crashing a car while speeding to the robbery site.22

All such scenarios would be covered by § 2113(d), but they

would lack the requisite mens rea for a crime of violence.23

And because any mismatch is enough to render a crime non-

violent, it follows that § 2113(d) is categorically not a crime of

violence under § 924(c).

***

21

See Dean v. U.S., 556 U.S. 558, 576 (2009) (noting that an

“individual who brings a loaded weapon to commit a crime

runs the risk that the gun will discharge accidentally”); United

States v. Jackson, 534 Fed.App’x. 917, 920 (11th Cir. 2013)

(noting that “an accidental discharge of a firearm is a

reasonably foreseeable result of bringing a gun to an attempted

bank robbery”).

22

See Mills, 1 F.3d at 420–21 (treating a speeding car as a

“dangerous device”). That the defendant may have intended to

commit the § 2113(a) predicate offense is irrelevant. Borden

does not just require that a defendant commit some knowing

crime and, simultaneously, commit a crime involving force—

it requires the force itself (or threatened or attempted force) be

used knowingly. See 593 U.S. at 432 (holding that a defendant

who “has not used force ‘against’ another person in the targeted

way that clause requires” has not committed a crime of

violence).

23

In Jordan, we noted that a completed violation of § 2113(a)

requires the knowing use of force, and therefore concluded that

a completed violation of § 2113(d) does as well. 96 F.4th at

594. As already discussed, supra n.18, that syllogism has no

relevance when it comes to attempted violations of § 2113(d).

10

The categorical approach has as many critics as there

are judges. The conclusions it yields are often counterintuitive,

counter-logical, and contrary to what Congress likely intended.

But it is the law, and fairly applying it compels the conclusion

that 18 U.S.C. § 2113(d) is not a crime of violence. Because

the majority concludes otherwise, I respectfully dissent.

11