Godwin v. United States of America (INMATE 3)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JERALD DEAN GODWIN, )

)

Petitioner, )

) CIVIL ACTION NO.

v. ) 2:16cv509-MHT

) (WO)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION

Petitioner Jerald Dean Godwin, a federal inmate,

filed this lawsuit seeking habeas relief pursuant to 28

U.S.C. § 2255. He challenges his conviction and

84-month sentence for brandishing a firearm during and

in relation to a “crime of violence,” in violation of

18 U.S.C. § 924(c)(1)(A)(ii). The petition challenges

this conviction as unconstitutional in light of the

Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015).

This lawsuit is now before the court on the

recommendation of the United States Magistrate Judge

that Godwin’s petition be denied. Godwin objected to

the recommendation, and the parties have filed

additional briefing ordered by the court. After an

independent and de novo review of the record, the court

concludes that Godwin’s objections should be overruled

and the magistrate judge’s recommendation adopted,

albeit for somewhat different reasons.

I. BACKGROUND

In March 2010, Godwin pleaded guilty to both bank

robbery, in violation of 18 U.S.C. § 2113(a), and

brandishing a firearm during and in relation to a crime

of violence, in violation of § 924(c)(1)(A)(ii). The

predicate “crime of violence” underlying the

firearm-brandishing conviction was the bank robbery.

The district court sentenced him to 70 months in prison

for the bank robbery, plus a consecutive 84 months for

the firearm conviction.

In June 2016, Godwin filed a motion requesting that

his § 924(c) firearm conviction and sentence be vacated

2

based on the Supreme Court’s decision in Johnson. The

magistrate judge construed this motion as a motion to

alter, amend or vacate the judgment pursuant to 28

U.S.C. § 2255. The magistrate judge recommended

denying the petition and dismissing the case with

prejudice. Godwin timely objected to the

recommendation.

II. DISCUSSION

Godwin challenges his conviction for violating

§ 924(c), a statute that criminalizes the use,

carrying, possession, or brandishing of a firearm in

connection with a “crime of violence.”1

1. The statute provides for a mandatory-minimum

sentence of five years’ imprisonment consecutive to any

other sentence upon conviction of using, carrying, or

possessing a firearm “during and in relation to” or “in

furtherance of” a “crime of violence.” 18 U.S.C.

§ 924(c)(1)(A)(i) & (D)(ii). However, “if the firearm

is brandished,” the minimum sentence increases to seven

years’ imprisonment. 18 U.S.C. § 924(c)(1)(A)(ii) &

(D)(ii).

3

Section 924(c) defines a “crime of violence” as “an

offense that is a felony and--"

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

or threatened use of physical force against the

person 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 committing the offense.”

18 U.S.C. § 924(c)(3). Subpart A is frequently

referred to as the “elements clause” and subpart B the

“residual clause.” See, e.g., United States v. Davis,

139 S. Ct. 2319, 2324 (2019).2

Godwin argues that his § 924(c) firearm conviction

is invalid because the statute’s residual clause is

unconstitutionally vague in light of Johnson. Johnson

involved a challenge to a sentence under a different

statute, the Armed Career Criminal Act (ACCA), which

2. The Eleventh Circuit Court of Appeals also has

at times referred to the former clause as the

“use-of-force” clause. See, e.g., In re Saint Fleur,

824 F.3d 1337, 1339 (11th Cir. 2016).

4

establishes an enhanced mandatory-minimum sentence when

a defendant convicted of being a prohibited person in

possession of a firearm has three or more prior

convictions for a “serious drug offense” or a “violent

felony.” 18 U.S.C. § 924(e). The ACCA defines the

term “violent felony” in part as an offense that is

“burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis

added.) The Supreme Court held that the italicized

phrase, referred to as the “residual clause,” is

unconstitutionally vague under the due process clause

of the Fifth Amendment. Johnson, 135 S. Ct. at

2555-2560, 2563.

Godwin contends that the Court’s decision in

Johnson renders unconstitutional the similarly worded

residual clause in the definition of “crime of

violence” in § 924(c), the statute criminalizing the

5

use, carrying, possession, or brandishing of a firearm

during a crime of violence. Three years after Godwin

filed his habeas petition, the Supreme Court agreed: In

United States v. Davis, the Court extended its ruling

in Johnson and held that § 924(c)’s residual clause,

like the ACCA’s residual clause, is unconstitutionally

vague. 139 S. Ct. at 2325-2333, 2336.

Since Davis announced a new substantive rule, see

In re Hammoud, 931 F.3d 1032, 1038 (11th Cir. 2019), it

applies retroactively to cases on collateral review,

such as this one, see Schriro v. Summerlin, 542 U.S.

348, 351-52 (2004) (explaining that new substantive

rules apply retroactively on collateral review); see

also Welch v. United States, 136 S. Ct. 1257, 1268

(2016) (concluding “that Johnson announced a

substantive rule that has retroactive effect in cases

on collateral review.”). The upshot is that Godwin’s

bank-robbery conviction does not qualify as a crime of

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violence under § 924(c)’s residual clause, because

Davis voided that clause for vagueness.

A. § 924(c)’s Residual Clause

Still, the success of Godwin’s residual-clause

argument is not enough to invalidate his conviction for

brandishing a firearm during a crime of violence. To

succeed, he must show that “his § 924(c) conviction

resulted from application of solely the residual

clause.” Hammoud, 931 F.3d at 1041 (citations

omitted).

He may make this showing in two ways. First, he

“may rely on the relevant record,” Weeks v. United

States, 930 F.3d 1263, 1273 (11th Cir. 2019), to show

“that--more likely than not--it was use of the residual

clause that” was the basis for the firearm conviction.

Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir.

2017). Godwin concedes that the record of proceedings

in the trial court “is silent” as to whether his

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conviction was based on the residual clause.

Petitioner’s Second Supplemental Brief (doc. no. 43) at

7-8. Nothing in the indictment, plea agreement,

presentence investigation report, judgment, or

transcripts suggests reliance on either the residual

clause or the elements clause of § 924(c). Godwin’s

argument fails to this extent, for “[i]f it is just as

likely that the sentencing court relied on the elements

... clause, solely or as an alternative basis for the

[conviction]..., then the movant has failed to show

that his [conviction] ... was due to use of the

residual clause.” Beeman, 871 F.3d at 1222.

Alternatively, to prevail, Godwin may rely “on

legal precedent at the relevant time ‘holding, or

otherwise making obvious, that a violation [of the

relevant ... criminal statute] qualified as a violent

felony only under the residual clause.’” Weeks, 930

F.3d at 1273 (quoting Beeman, 871 F.3d at 1224). It

must be kept in mind that the holding of a case is

8

quite narrow and fact-specific. See United States v.

Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (“We have

pointed out many times that regardless of what [our]

court says in its opinion, the decision can hold

nothing beyond the facts of that case.” (citation and

internal quotations omitted.)). Also, and critically,

this inquiry is “a historical” one. Beeman, 871 F.3d

at 1224 n. 5. “[I]f the law was clear at the time of

sentencing that only the residual clause would

authorize a finding that the prior conviction was a

violent felony, that circumstance would strongly point

to a sentencing per the residual clause.”3 Id. A later

3. Had Godwin challenged his § 924(c) firearm

conviction on direct appeal, then the relevant time

period would run not only through the time of

sentencing, but also through the end of his appeal.

See Weeks, 930 F.3d at 1275 (“Because the basis for the

enhanced sentence did not become fixed until after the

direct appeal, it is necessary in such a case to look

to the record and binding precedent through the time of

direct appeal to determine whether the claimant has

shown ‘that--more likely than not--it was use of the

residual clause that led to the ... enhancement of his

sentence.’”). Godwin, however, did not appeal his

9

decision about the law as it stands currently would

“cast[] very little light” on the “question of

historical fact.” Id.

Godwin has failed to identify the required legal

precedent. He was convicted in June 2010, and he has

not identified any law, as of that date, “holding, or

otherwise making obvious, that a violation [of the bank

robbery statute under which he was convicted] qualified

as a violent felony only under the residual clause.”

Id. at 1224.

B. § 924(c)’s Elements Clause

Godwin nevertheless attempts to establish that his

firearm-brandishing conviction rested on the residual

clause by showing that his conviction could not rest on

the elements clause. His argument is essentially that,

because there are only two ways to establish a crime of

conviction or sentence, so the basis for his conviction

became fixed at the end of his sentencing.

10

violence under § 924(c)--the elements clause and the

residual clause--“disproving one is necessarily proof

of the other.” Beeman, 871 F.3d at 1230 (Williams, J.,

dissenting). Because Godwin’s argument, although

foreclosed by binding circuit law as shown later, has

some plausibility, the court will set it forth in some

detail.

To begin, it is helpful to understand the approach

that applies when determining whether an offense

constitutes a crime of violence under § 924(c) and

similar statutes. Whether a particular offense

constitutes a crime of violence under § 924(c)’s

elements clause is a question of law that a court “must

answer ‘categorically’--that is, by reference to the

elements of the offense, and not the actual facts of [a

defendant’s] conduct.” United States v. McGuire, 706

F.3d 1333, 1336-37 (11th Cir. 2013), overruled on other

grounds by Ovalles v. United States, 905 F.3d 1231,

1234 (11th Cir. 2018) (en banc), abrogated on other

11

grounds by Davis, 139 S. Ct. at 2325-33. Accordingly,

the question is whether a given statute of conviction

“has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another.” McGuire, 706 F.3d at 1336

(quoting 18 U.S.C. § 924(c)(3)(A)). “Only if the

plausible applications of the statute of conviction all

require the use or threatened use of force can [a

defendant] be held guilty of a crime of violence” under

the elements clause. Id. at 1337 (emphasis added).

Put differently, a conviction does not

categorically qualify as crime of violence under

§ 924(c)’s elements clause if there is a “realistic

probability” that the statute of conviction would apply

to conduct that does not involve the use, attempted

use, or threatened use of physical force. Moncrieffe

v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); accord

United States v. St. Hubert, 909 F.3d 335, 350 (11th

12

Cir. 2018) (applying the “realistic probability”

standard to the “crime of violence” determination under

18 U.S.C. § 924(c)(3)(A)), cert. denied, 139 S. Ct.

1394 (2019), abrogated in part on other grounds by

Davis, 139 S. Ct. at 2324, 2336. To show a realistic

probability, a defendant or petitioner generally “must

at least point to his own case or other cases in which

the ... courts in fact did apply the statute” without

requiring the use, attempted use, or threatened use of

physical force.4 St. Hubert, 909 F.3d at 350 (internal

quotation mark omitted) (quoting United States v. Hill,

832 F.3d 135, 140 (2d Cir. 2016) (quoting in part

Duenas-Alvarez, 549 U.S. at 193)).

As noted earlier, Godwin was convicted of bank

robbery under 18 U.S.C. § 2113(a), which establishes,

in relevant part, that a defendant who “by force and

4. However, such a showing is unnecessary in those

cases where the “statutory language itself” clearly

creates the realistic probability. Ramos v. U.S.

Attn’y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013).

13

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” is guilty of bank robbery.

Godwin makes two main arguments why there is a

“realistic probability” that § 2113(a) would apply to

conduct that does not, as required by the elements

clause, involve the use, attempted use, or threatened

use of physical force. First, he contends that such a

realistic probability exists because bank robbery under

§ 2113(a) can be committed by extortion, which need not

involve the use or threatened use of physical force.

Second, he argues that § 924(c)’s elements clause

requires a higher level of mens rea than that required

for a § 2113(a) conviction.

14

1. Physical Force Argument

Godwin contends that, when a categorical analysis

is applied, § 2113(a) does not have “as an element the

use, attempted use, or threatened use of physical

force,” 18 U.S.C. § 924(c)(3)(A) (emphasis added),

given that it can be committed by “by extortion,” 18

U.S.C. § 2113(a). To determine whether the phrase “by

extortion” renders § 2113(a) categorically overbroad,

the first step is to assess whether the statute is

divisible between “by extortion” on the one hand, and

“by force and violence, or intimidation” on the other.

i. Divisibility

Section 2113(a) is a disjunctively phrased statute,

in that it criminalizes bank robbery “by force and

violence, or by intimidation ... or ... by extortion.”

18 U.S.C. § 2113(a) (emphasis added). In Mathis v.

United States, the Supreme Court explained how to

conduct categorical analysis of criminal statutes with

“disjunctive phrasing.” 136 S. Ct. 2243, 2253 (2016).

15

Courts must start by determining whether the listed

terms in an “alternatively phrased statute ... are

elements or means.” Id. at 2256. “Elements are the

constituent parts of a crime’s legal definition--the

things the prosecution must prove to sustain a

conviction.” Id. at 2248 (internal quotation marks

omitted). Means, on the other hand, are different

factual methods of committing a single element of a

crime. See id. at 2249.

A disjunctively phrased statute that lists

alternative elements defines multiple crimes and is

considered “divisible.” See id. at 2248. When

confronted with a divisible statute, the court may

apply the “modified categorical approach” and examine

certain documents from the record of conviction to

determine the set of elements that applied in the

defendant’s conviction. United States v. Gundy, 842

F.3d 1156, 1162 (11th Cir. 2016) (citing Mathis, 136 S.

Ct. at 2249). These elements are then used to

16

determine whether the conviction constituted a crime of

violence under the elements clause of § 924(c).

By contrast, a statute listing “various factual

means of committing a single offense ... is considered

indivisible, and that indivisible set of elements will

be the basis of the defendant’s conviction.” Id.

(internal quotation marks omitted). If a statute’s

indivisible set of elements encompasses more criminal

conduct than the elements clause of § 924(c), then a

conviction under the statute does not qualify as a

crime of violence under that clause.

Mathis outlined three tools for determining whether

a statute’s listed terms are elements or means--that

is, whether the statute is divisible. First, “the

statute on its face may resolve the issue.” Mathis,

136 S. Ct. at 2256. For instance, if the “alternatives

carry different punishments, ... they must be

elements.” Id. Second, courts may look at court

decisions interpreting a disjunctively phrased statute.

17

See id. “If a precedential ... court decision makes

clear that a statute’s alternative phrasing simply

lists alternative methods of committing one offense,

such that a jury need not agree on which alternative

method the defendant committed in order to sustain a

conviction, then the statute is not divisible.” Gundy,

842 F.3d at 1163 (internal quotation marks omitted)

(quoting Mathis, 136 S. Ct. at 2256). If the first two

tools “fail[] to provide clear answers,” judges may

“peek” at the record of conviction itself “for the sole

and limited purpose of determining whether the listed

items are elements of the offense.” Mathis, 136 S. Ct.

at 2256-57 (internal quotation marks and alterations

omitted) (citation omitted).

As discussed below, while there is support for the

opposite conclusion as well, there is significant

support in caselaw, albeit from other circuits, for

Godwin’s position that § 2113(a) is not a crime of

violence under § 924(c)’s elements clause because the

18

bank-robbery statute is not divisible between “by force

and violence, or by intimidation” on the one hand, and

“by extortion” on the other.

ii. “By extortion”

Section 2113(a) provides, in relevant part:

“Whoever, 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 ...; or

Whoever enters or attempts to enter any bank,

..., or any building used in whole or in part

as a bank ..., with intent to commit in such

bank ..., or part thereof, so used, any felony

affecting such bank, ... and in violation of

any statute of the United States, or any

larceny—

Shall be fined under this title or imprisoned

not more than twenty years, or both.”

18 U.S.C. § 2113(a).

The First, Third, Fourth, Sixth, and Seventh

Circuit Courts of Appeals have all stated that

§ 2113(a) is comprised of two offenses: one is codified

19

in the first paragraph of § 2113(a)--which contains the

disjunctive phrasing at issue here--and the other is

codified in § 2113(a)’s second paragraph, which

criminalizes entering a bank with the intent to commit

a felony or any larceny therein. See, e.g., United

States v. Williams, 841 F.3d 656, 659 (4th Cir. 2016)

(“As its text makes clear, subsection 2113(a) can be

violated in two distinct ways: (1) bank robbery, which

involves taking or attempting to take from a bank by

force [and violence], intimidation, or extortion; and

(2) bank burglary, which simply involves entry or

attempted entry into a bank with the intent to commit a

crime therein.”) (quoting United States v. Almeida, 710

F.3d 437, 440 (1st Cir. 2013)); United States v.

Loniello, 610 F.3d 488, 496 (7th Cir. 2010) (explaining

that “§ 2113(a) creates two crimes,” one defined in the

first paragraph, and the other in the second

paragraph); see also United States v. Wilson, 880 F.3d

80, 84 n.3 (3rd Cir. 2018) (accepting district court’s

20

determination that Ҥ 2113(a) was a divisible statute

because it contained two paragraphs, each containing a

separate version of the crime”). By stating that

§ 2113(a) contains two offenses codified separately in

the first and second paragraphs, these opinions thus

suggest that § 2113(a) is divisible only between the

first and second paragraphs.

Several opinions indicate more expressly that

§ 2113(a) is not further divisible within its first

paragraph. For example, in United States v. McBride,

the Sixth Circuit explained that “Section 2113(a) seems

to contain a divisible set of elements, only some of

which constitute violent felonies--taking property from

a bank by force and violence, or intimidation, or

extortion on one hand and entering a bank intending to

commit any felony affecting it (e.g., such as mortgage

fraud) on the other.” 826 F.3d 293, 296 (6th Cir.

2016) (emphasis added). The “on one hand ... on the

other” structure of this sentence reflects the court’s

21

view that § 2113(a) contains only two alternative

offenses, each respectively codified in the first and

second paragraphs, instead of the first paragraph being

divisible into more offenses.

Even more explicitly, the Fourth Circuit in

Williams repeatedly referred to a single “robbery

element of force and violence, intimidation, or

extortion,” reinforcing the conclusion that the court

interpreted those disjunctively listed terms to be

different means of satisfying one element, rather than

as alternative elements. 841 F.3d at 657-660, n.3.

Similarly, an unpublished Third Circuit opinion also

explicitly stated that the force and violence,

intimidation or extortion alternatives comprised one

single element: “The elements of the crime are: [1]

taking or attempting to take, [2] anything of value,

[3] by force and violence, by intimidation, or by

extortion from a financial institution ....” United

States v. Lewis, 720 Fed. App’x 111, 115 (3rd Cir.

22

2018) (unpublished) (internal quotation marks omitted)

(quoting United States v. Askari, 140 F.3d 536, 548 (3d

Cir. 1998) (en banc), vacated and superseded on other

grounds on reconsideration, 159 F.3d 774 (3d Cir.

1998); see also United States v. Ellison, 866 F.3d 32,

36 n.2 (1st Cir. 2017) (“[T]he statute includes both

‘by force and violence, or intimidation’ and ‘by

extortion’ as separate means of committing the

offense.” (emphasis added)).

The Ninth Circuit Court of Appeals stands alone as

the only circuit court to conclude, in United States v.

Watson, 881 F.3d 782, 786 (2018), that the first

paragraph of § 2113(a) is divisible. There, the court

rejected the contention that Ҥ 2113(a) prohibits one

indivisible offense of bank robbery with three

alternative means of committing it: (1) by force and

violence; (2) by intimidation; or (3) by extortion.”

Id. Instead, the court held, § 2113(a) is divisible

between “bank robbery and bank extortion.” Id.

23

The Ninth Circuit’s Watson decision does not

explain its reasoning, instead simply providing a

string citation to three authorities, none of which

clearly supports Watson’s holding. The first authority

cited is United States v. Jennings, 439 F.3d 604, 612

(9th Cir. 2006). Based on the pincite, the Watson

court appears to be referring to the assertion in

Jennings that § 2113(a) “covers not only individuals

who take property from a bank ‘by force and violence,

or by intimidation,’ ... but also those who obtain

property from a bank by extortion and those who enter a

bank with the intent to commit a felony therein.” Id.

(quoting 18 U.S.C. § 2113(a)). Yet the import of this

phrasing is far from clear. The second authority cited

in Watson also provides little support its holding.

United States v. Eaton, 934 F.2d 1077, 1079 (9th Cir.

1991), merely states that “[b]ank robbery under section

2113(a) is defined, in relevant part, as taking ‘by

force and violence, or by intimidation ... or ... by

24

extortion’ anything of value from the ‘care, custody,

control, management, or possession of, any bank ....’”

Id. (quoting 18 U.S.C. § 2113(a)). It is not clear how

this statement supports the conclusion that § 2113(a)

is divisible between bank robbery by force and violence

or intimidation on the one hand, and by extortion on

the other. Indeed, one could read this statement as

indicating that the single offense of “bank robbery”

can be committed by the alternative means of force and

violence, intimidation, or extortion.

The third cited source, Ninth Circuit jury

instructions--in particular, “9th Cir. Crim. Jury

Instr. 8.162”--do not support Watson’s holding that the

first paragraph of § 2113(a) is divisible between bank

robbery and bank extortion. Watson, 881 F.3d at 786.

The instructions for bank robbery under 18 U.S.C.

§ 2113(a) & (d) set forth the following the “first

element”: “[First, the defendant, through force and

violence or intimidation, [took] [obtained by

25

extortion] [[property] [money] [something of value]]

belonging to or in the care, custody, control,

management or possession of [specify financial

institution];]”. 9th Cir. Crim. Jury Instr. 8.162

(2010 Edition, updated Sept. 2018).5 It then sets forth

two more separate elements. See id. Far from

supporting Watson’s holding, the jury instructions, by

listing the disjunctive phrasing in the description of

the first “element,” suggest that the alternative terms

are separate means of satisfying a single element.

In contrast with Watson, the other circuit court

opinions cited here point out that the text of

§ 2113(a) indicates that it is divisible between the

first and second paragraphs. See, e.g., Williams, 841

F.3d at 659. The two separate paragraphs are most

naturally read to codify two separate offenses, with

the first paragraph setting forth alternative means of

5. Watson does not specify which edition of the

jury instructions it was referring to.

26

wrongfully acquiring property. As Judge Easterbrook

explained in Loniello, the first and second paragraphs

of § 2113(a) are “self-contained units,” and, like in

“many other criminal statutes,” the “or” between the

two paragraphs is meant to “group multiple offenses to

show that the same penalty applies.” 610 F.3d at 493;

see also id. (“The form in § 2113(a) is ‘Whoever does x

[comprising elements 1, 2, 3, and 4] or y [comprising

elements 4, 5, 6, and 6] shall be imprisoned not more

than z years,’ where each set of 4 elements describes a

complete offense.”).

Additionally, as Godwin argues, the history of

§ 2113(a) strongly suggests that Congress intended “by

extortion” to be an alternative means of committing the

single offense of bank robbery. Before 1986, § 2113(a)

criminalized only taking property “by force and

violence, or by intimidation,” and contained no express

reference to extortion. See United States v. Cataldo,

832 F.2d 869, 870 n.1 (5th Cir. 1987). Federal courts

27

interpreting this former version of § 2113(a) were

“divided over the question whether this provision

proscribed extortionate conduct--e.g., a perpetrator

who, from a place outside the bank, threatens the

family of a bank official in order to cause the bank

official to remove money from the bank and deliver it

to a specified location.” H.R. Rep. No. 99-797, 32,

1986 U.S.C.C.A.N. 6138, 6155. Some had held that it

could be prosecutd under § 2113(a), others held it

could be prosecuted under the Hobbs Act, 18 U.S.C.

§ 1951, while still others held that either would be

appropriate. Id. Explaining that “[e]xtortionate

conduct is prosecutable under” the then-existing

version of § 2113(a),6 Congress amended the statute to

add the extortion language simply for “clarification”

that § 2113(a) was the exclusive statute “for

6. See, e.g., United States v. Golay, 560 F.2d 866,

869 (8th Cir. 1977) (“Where the crime of bank robbery

is committed by extortionate means, as was the case

here, we feel it would be appropriate to convict” under

the Federal Bank Robbery Act).

28

prosecuting extortionate activity involving the

obtaining of bank monies,” and to overrule those courts

that had held that it was prosecutable only under the

Hobbs Act or under both statutes. Id. at 32-33, 6155-

56. According to the legislative history, Congress

added the “by extortion” language to § 2113(a), not to

create a new offense, but to make clear that the

§ 2113(a) is the appropriate statute under which to

prosecute bank robbery by extortion. As summarized by

the Fifth Circuit, “Congress amended § 2113(a) to

include a clause that expressly brings bank robbery by

extortionate means within the coverage of section

2113(a).” Cataldo, 832 F.2d at 870 n.1 (emphasis

added). For the foregoing reasons, there is a strong

argument that “by extortion” is a means of committing,

rather than an element of, bank robbery, and

accordingly, that the first paragraph of § 2113(a) is

not divisible.

29

Assuming the first paragraph of § 2113(a) is not

divisible, it would serve as “the basis of [Godwin’s]

conviction.” Gundy, 842 F.3d at 1162. Godwin’s

conviction would not qualify as a crime of violence

under § 924(c)’s elements clause if there were a

“realistic probability,” Duenas-Alvarez, 549 U.S. at

193, that a defendant could be convicted under

§ 2113(a) even though his crime did not involve “the

use, attempted use, or threatened use of physical force

against the person or property of another.” § 924(c).

If extortion were treated as a means rather than an

element in § 2113(a), it appears, there could be such a

realistic possibility.

Section 2113(a) does not define “extortion.” The

legislative history for the 1986 amendment to the

statute adding the extortion language offers the

following definition: “The term ‘extortion’ as used in

18 U.S.C. 2113(a) means obtaining property from another

person, without the other person's consent, induced by

30

the wrongful use of actual or threatened force,

violence, or fear.”). H.R. REP. 99-797, 33, 1986

U.S.C.C.A.N. 6138, 6156. This is almost identical to

the definition of “extortion” codified in the Hobbs

Act, 18 U.S.C. § 1951. See 18 U.S.C § 1951(b)(2) (“The

term ‘extortion’ means the obtaining of property from

another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under

color of official right.”). The Eleventh Circuit

Court of Appeals has held that “[f]ear of economic loss

is a type of fear within the purview” of extortion

under § 1951. United States v. Haimowitz, 725 F.2d

1561, 1572 (11th Cir. 1984) (citations omitted); see

also United States v. Gerald, 624 F.2d 1291, 1299 (5th

Cir. 1980) (affirming conviction for attempted

extortion under 18 U.S.C. § 1951 based on defendant’s

exploitation of victim’s “fear of economic loss”).

Because the term “extortion” as defined in the Hobbs

Act encompasses fear of economic loss, robbery by

31

extortion could be committed without the use, attempted

use, or threatened use of physical force. Thus, if the

first paragraph of § 2133(a) is not divisible into

robbery by force and violence or intimidation and

robbery by extortion, it would seem to be

categorically broader than § 924(c)’s physical-force

requirement.

If, in the alternative, the generic definition of

extortion were applied to § 2113(a), the result would

appear to be the same. In interpreting other federal

statutes that similarly leave the term undefined, the

Supreme Court has filled this gap by defining “generic”

extortion as “obtaining something of value from another

with his consent induced by the wrongful use of force,

fear or threats.” Scheidler v. Nat’l Org. for Women,

Inc., 537 U.S. 393, 409-410 (2003) (defining

“extortion” for RICO purposes) (citing United States v.

Nardello, 393 U.S. 286, 290, 296 (1969) (defining

“extortion” for the Travel Act)); see also United

32

States v. Montiel-Cortes, 849 F.3d 221, 228 (5th Cir.

2017) (“The generic, contemporary definition of

extortion is “obtaining something of value from another

with his consent induced by the wrongful use of force,

fear, or threats.”); Raney v. Allstate Ins. Co., 370

F.3d 1086, 1088 n.2 (11th Cir. 2004) (using the same

definition for conduct “capable of being generically

classified as extortionate”) (citing Scheidler, 537

U.S. at 409-410). Just as the Supreme Court has long

applied its generic definition of extortion to fill

gaps in other federal statutes, this same generic

definition could be applied to § 2113(a).

The Supreme Court’s definition of generic extortion

encompasses criminal conduct that does not involve “the

use, attempted use, or threatened use of physical force

against the person or property of another.” For

example, in Nardello, the Court squarely held that

extortion encompasses obtaining money through “threats

to expose alleged homosexual conduct.” 393 U.S. at

33

295-96 (defining generic extortion and holding that the

“indictment encompasses a type of activity generally

known as extortionate since money was to be obtained

from the victim by virtue of fear and threats of

exposure”). Thus, if the generic definition of

extortion applies to § 2113(a), and the first paragraph

of § 2113(a) is not divisible, a conviction under

§ 2113(a) arguably would not constitute a crime of

violence under § 924(c).

***

To summarize, whether a § 2113(a) bank-robbery

conviction categorically qualifies as a crime of

violence under § 924(c)’s elements clause depends on

whether § 2113(a) is divisible into separate offenses

of bank robbery by extortion and bank robbery by force

and violence or intimidation. There is a serious

argument that it is not divisible in this way, and,

accordingly, that the offense does not constitute a

crime of violence under § 924(c)’s elements clause.

34

2. Mens Rea Argument

Godwin also contends that his bank-robbery

conviction does not categorically meet the elements

clause’s definition of a crime of violence because the

mens rea requirement for the elements clause is higher

than the mens rea required for a bank-robbery

conviction by intimidation under § 2113(a).

Convictions for offenses satisfied by the negligent or

accidental use, attempted use, or threatened use of

force do not qualify as crimes of violence under

§ 924(c)’s elements clause. See Leocal v. Ashcroft,

543 U.S. 1, 9 (2004) (interpreting the identically

worded elements clause in 18 U.S.C. § 16(a), which

defines the term “crime of violence” for a variety of

criminal and noncriminal statutes). In Leocal, the

Supreme Court held that the “use” of force requires

“active employment” rather than “negligent or merely

accidental conduct.” Id. at 9, 10. The Eleventh

35

Circuit has applied Leocal’s mens rea requirement for

§ 16(a)’s elements clause to the identically worded

elements clause in § 924(c), which is at issue here.

See McGuire, 706 F.3d at 1337-38 (concluding that

offense of attempting to disable an aircraft with

people on board satisfied the elements clause of

§ 924(c) because it “involves an ‘active crime’ done

‘intentionally’ against the property of another, with

extreme and manifest indifference to the owner of that

property and the wellbeing of the passengers”) (citing

Leocal, 543 U.S. at 7, 9).

While Leocal and McGuire make clear that negligent

or accidental conduct does not satisfy § 924(c)’s

elements clause, it remains unsettled whether the

minimum required mens rea for an offense to qualify as

a crime of violence is either knowing or reckless.7 See

7. The key difference between reckless and knowing

is that the former requires that one “consciously

disregard a substantial risk that the conduct will

cause harm to another,” whereas the latter requires

36

United States v. Castleman, 572 U.S. 157, 169 n.8

(2014) (“Leocal reserved the question whether a

reckless application of force could constitute ‘use’ of

force.”). Existing caselaw points in both directions.8

In any case, Godwin argues that there is a

“realistic probability” that a defendant in the

Eleventh Circuit could be convicted of § 2113(a) bank

that one be “aware that harm is practically certain.”

Voisine v. United States, 136 S. Ct. 2272, 2278 (2016)

(internal quotation marks, alterations, and citations

omitted).

8. Compare Voisine, 136 S. Ct. at 2276 (holding

that a reckless mens rea satisfies the elements clause

of the definition of a “misdemeanor crime of domestic

violence,” which is similarly worded to § 924(c)’s

elements clause), with United States v. Palomino

Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010)

(concluding that “a conviction predicated on a mens rea

of recklessness does not satisfy the ‘use of physical

force’ requirement” of the elements clause in “crime of

violence” definition applicable to § 2L1.2 of the

United States Sentencing Guidelines, which is nearly

identical to § 924(c)’s). See also Castleman, 572 U.S.

at 169 n.8 (noting that the “Courts of Appeals have

almost uniformly held that” a reckless application of

force is not sufficient to constitute a “use” of force,

and citing cases).

37

robbery by intimidation for negligently using or

threatening to use force, which would fail to satisfy

either a reckless or a knowing mens rea requirement.

Section 2113(a) does not explicitly state the mens

rea that it requires for conviction. Nevertheless, in

2000, the Supreme Court interpreted § 2113(a) to

require “general intent—that is, that the defendant

possessed knowledge with respect to the actus reus of

the crime”--in that case, the “taking of property of

another by force and violence or intimidation.” Carter

v. United States, 530 U.S. 255, 268 (2000). Some

subsequent appellate court decisions--including United

States v. Horsting, an unpublished opinion by the

Eleventh Circuit--have interpreted Carter’s holding to

mean that the government must prove that the defendant

both “knowingly took ... property” and “knew his

actions were objectively intimidating.” 678 Fed. App’x

947, 950 (11th Cir. 2017) (unpublished); see also

United States v. McNeal, 818 F.3d 141, 155 (4th Cir.

38

2016). Yet, Godwin argues, in several other post-Carter

cases from within the Eleventh Circuit, courts did not

require evidence that the defendant knew his actions

were objectively intimidating; instead it required only

that his actions were objectively intimidating. See,

e.g., United States v. McCree, 2006 WL 3709611, at *4

(N.D. Ga. 2006) (Duffey, Jr., J.) (holding that the

defendant’s belief that his conduct was not

intimidating was legally “irrelevant” to resolving

whether he could be convicted for bank robbery by

intimidation under § 2113(a)), affirmed, 225 Fed. App’x

860, 862-63 (11th Cir. 2007) (unpublished) (“Whether a

particular act constitutes intimidation is viewed

objectively, and a defendant can be convicted under

section 2113(a) even if he did not intend for an act to

be intimidating.” (citation omitted)); United States v.

Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996)

(explaining that under § 2113(a), “intimidation occurs

when an ordinary person in the teller’s position

39

reasonably could infer a threat of bodily harm from the

defendant’s acts,” and accordingly rejecting

defendant’s contention that his lack of intent to

intimidate could have resulted in conviction for a

lesser offense than § 2113(a) (internal quotation marks

and citations omitted)); United States v. Kelley, 412

F.3d 1240, 1244-46 (11th Cir. 2005) (holding that there

was sufficient evidence to satisfy the intimidation

element of § 2113(a), because “an ordinary person in

the teller’s position reasonably could infer a threat

of bodily harm from the defendant’s acts.” (citation

omitted)).

Importantly, as the Supreme Court clarified in

Elonis v. United States, 575 U.S. 723, ___, 35 S. Ct.

2001, 2011-12 (2015), the type of reasonable-person

inquiry applied in these cases is equivalent to a

negligence standard.9 Elonis involved a federal statute

9. A person “acts negligently with respect to a

material element of an offense”--such as

40

criminalizing “any communication containing any

threat ... to injure the person of another.” Id. at

2004 (quoting 18 U.S.C. § 875(c)). The Court held that

liability under the statute could not “turn on whether

a ‘reasonable person’ regards the communication as a

threat--regardless of what the defendant thinks”

because that would unacceptably “reduce[] culpability

on the all-important element of the crime to

negligence.” Id. at 2011 (citations omitted). The

courts in § 2113(a) cases cited by Godwin arguably have

applied just such a negligence standard. Therefore,

Godwin has raised a serious question as to whether in

the Eleventh Circuit, there is a “realistic

intimidation--“when he should be aware of a substantial

and unjustifiable risk that the material

element”--here, intimidation--“exists or will result

from his conduct.” Model Penal Code § 2.02(2)(d)

(emphasis added). The basic distinction between

recklessness and negligence is that “[a]n actor is

criminally negligent when he should have been aware of

the risk but was not, while recklessness requires that

the defendant actually be aware of the risk but

disregard it.” People v. Hall, 999 P.2d 207, 219-20

(Col. 2000) (citation omitted).

41

probability” of being convicted under § 2113(a) for

negligent or accidental conduct. Pierre, 879 F.3d at

1252.

3. Sams and Beeson Decisions

As shown above, Godwin’s arguments on these issues

are far from frivolous, and deserve careful

consideration. However, such consideration is

foreclosed by the Eleventh Circuit’s opinion in In re

Sams, which held that “a bank robbery conviction under

§ 2113(a) by force and violence or by intimidation

qualifies as a crime of violence under the” elements

clause. 830 F.3d 1234, 1239 (11th Cir. 2016). Sams

does not at all address the extortion or mens rea issues

raised here by Godwin. The appeal was decided on an

application for leave to file a second or successive

habeas petition filed by a pro se prisoner on an

expedited, 30-day timeline, see 28 U.S.C.

§ 2244(b)(3)(D); In re Williams, 898 F.3d 1098, 1104

42

(11th Cir. 2018) (Wilson, J., specially concurring)

(raising concerns with treating decisions on such

applications as binding precedent due to “serious

limitations in the decision-making process”), and the

pro se petitioner likely was not sophisticated enough

to raise the complex issues Godwin’s counsel has raised

here.

In deciding that § 2113(a) bank robbery constitutes

a crime of violence, the Sams court relied on its prior

holdings that armed bank robbery and armed carjacking

constitute crimes of violence. See Sams, 830 F.3d at

1238-39 (citing In re Hines, 824 F.3d 1334, 1337 (11th

Cir. 2016) and United States v. Moore, 43 F.3d 568,

572–73 (11th Cir. 1994)). However, the determination

that bank robbery satisfies the elements clause does

not necessarily follow from the conclusion that armed

bank robbery does, given that armed bank robbery

requires proof of the additional element that the

defendant, “in committing, or attempting to commit” a

43

bank robbery under § 2113(a) “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). The

Hines court explicitly took into account this

additional requirement in § 2113(d) in holding that

armed bank robbery satisfies the elements clause. See

Hines, 824 F.3d at 1337. Thus, the Sams court’s

reliance on Hines to conclude that § 2113(a) is

categorically a crime of violence seems misplaced.

Moore, in which the Eleventh Circuit found that

armed carjacking is a crime of violence under § 924(c),

offers little more support for the court’s conclusion.

Sams cites Moore for its statement that, “‘Tak[ing] or

attempt[ing] to take by force and violence or by

intimidation,’ 18 U.S.C. § 2119, encompasses ‘the use,

attempted use, or threatened use of physical force....’

18 U.S.C. § 924(c)(3)(A).” Moore, 43 F.3d at 572-73.

However, the Moore court offered no explanation or

support for this critical conclusion. Instead, it

44

merely pointed to the now-defunct residual clause

definition of a crime of violence to back up its

position. See Moore, 43 F.3d at 573 (“Moreover, the

defendant need not have engaged in actual violence in

order for the predicate offense to be a crime of

violence under section 924(c)(1). The offense is a

crime of violence if it ‘by its nature, involves a

substantial risk that physical force ... may be used in

the course of committing the offense.’ 18 U.S.C.

§ 924(c)(3)(B).”) Sams goes on to note that other

circuits have concluded that § 2113(a) is crime of

violence under § 924(c)’s elements clause. However,

none of those decisions addressed the extortion and

mens rea issues raised by Godwin here.10

10. One of the cases, United States v. McNeal, did

address an argument that “bank robbery by

‘intimidation’ is not a crime of violence under the

force clause of § 924(c)(3) because ... bank robbery

can be committed by recklessly engaging in

intimidation.” 818 F.3d 141, 155 (4th Cir. 2016).

However, unlike here, the McNeal court was not

presented with, and accordingly did not address, the

45

Despite these misgivings, this court is bound to

follow Sams. See St. Hubert, 909 F.3d at 346. Thus,

the court must conclude that Godwin’s § 2113(a)

bank-robbery conviction qualifies as a crime of

violence under § 924(c)’s elements clause.

In any case, even if Sams had reached the opposite

conclusion, Godwin’s petition would be precluded by

Beeman. As discussed earlier, Beeman requires a

petitioner to show, by pointing to the record in his

case or to clear law in existence at the time he was

sentenced (of if he appealed, through the time of his

appeals), that he could not have been convicted under

the elements clause and that he must have been

convicted solely under the residual clause. Beeman,

Eleventh Circuit cases cited by Godwin as evidence of a

reasonable probability of being convicted under

§ 2113(a) with a mens rea of only negligence.

46

871 F.3d at 1222. Because the Sams decision postdates

Godwin’s sentencing, it could not have changed the

outcome here. Moreover, Godwin has not otherwise shown

the necessary clear law at the time of his sentencing.

Accordingly, the court will adopt the report and

recommendation that the petition be denied, but for the

reasons stated here. An appropriate judgment will be

entered.

DONE, this the 28th day of February, 2020.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

47