Petition for Writ of Certiorari — Mark Jordan, Petitioner v. United States
Supreme Court briefJun 24, 2024
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No. _____
In the Supreme Court of the United States
__________________________________________________________________
MARK JORDAN, PETITIONER
V.
UNITED STATES OF AMERICA
__________________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
__________________________________________________________________
LISA B. FREELAND
Federal Public Defender
RENEE PIETROPAOLO
Assistant Federal Public Defender
STACIE FAHSEL
Assistant Federal Public Defender
Counsel of Record
FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
(412) 644-6565
Stacie_Fahsel@fd.org
QUESTIONS PRESENTED
1.
Whether, in applying the categorical approach, a federal offense that
incorporates by reference the commission of an underlying offense is divisible
between underlying offenses.
2. Whether a criminal offense that can be committed with a mens rea of general
intent can qualify as a “crime of violence” under 18 U.S.C. 924(c)(3)(A).
i
RELATED PROCEEDINGS
United States District Court (E.D. Pa.):
United States v. Jordan, Crim. No. 94-524 (May 19, 2022) (amended order
denying motion under 28 U.S.C. 2255)
United States v. Jordan, Crim. No. 94-524 (Oct. 30, 1995) (final judgment)
United States Court of Appeals (3d Cir.):
Jordan v. United States, No. 22-2153 (March 25, 2024)
In re: Mark Jordan, No. 16-2563 (Aug. 27, 2019)
In re: Mark Jordan, No. 16-2720 (Aug. 27, 2019)
ii
TABLE OF CONTENTS
Opinions below ............................................................................................................... 1
Jurisdiction .................................................................................................................... 1
Statutory provisions involved ....................................................................................... 2
Statement ....................................................................................................................... 4
Reasons for granting the petition ................................................................................. 8
A.
The decision below is incorrect ................................................................ 8
B.
The decision below is in substantial tension with decisions
of other courts of appeals ....................................................................... 13
C.
The questions presented are important and warrant review
in this case .............................................................................................. 18
Conclusion .................................................................................................................... 20
Appendix A ................................................................................................................... 1a
Appendix B ................................................................................................................. 17a
Appendix C ................................................................................................................. 19a
iii
TABLE OF AUTHORITIES
CASES:
Babb v. Wilkie, 589 U.S. 399 (2020) .............................................................................. 9
Borden v. United States, 593 U.S. 420 (2021).............6, 7, 10, 11,12, 13, 15, 16, 17, 18
Carter v. United States, 530 U.S. 255 (2000) .................................................. 11, 12, 13
Counterman v. Colorado, 600 U.S. 66 (2023) ....................................................... 12, 13
Descamps v. United States, 570 U.S. 254 (2013) .......................................................... 9
Mathis v. United States, 579 U.S. 500 (2016) ............................................................... 9
United States v. Bailey, 444 U.S. 394 (1980) ........................................................ 11, 12
United States v. Carter, 7 F.4th 1039 (11th Cir. 2021) .............................................. 17
United States v. Davis, 588 U.S. 445 (2019) ....................................................... 5, 6, 19
United States v. Frazier, 48 F.4th 884 (8th Cir. 2022) ............................................... 16
United States v. Garner, 28 F.4th 678 (5th Cir. 2022) ............................................... 15
United States v. Gonzales, 2021 WL 4185952 (10th Cir. 2021) ........................... 11, 17
United States v. Johnson, 899 F.3d 191 (3d Cir. 2018) ................................................ 8
United States v. Simmons, 11 F.4th 239 (4th Cir. 2021) ........................................... 14
United States v. Williams, 898 F.3d 323 (3d Cir. 2018) ............................................. 14
United States v. Wilson, 880 F.3d 80 (3d Cir. 2018)................................................... 18
United States v. Zunie, 444 F.3d 1230 (10th Cir. 2006) ............................................. 12
Voisine v. United States, 579 U.S. 686 (2016) ...................................................... 10, 11
STATUTES AND REGULATIONS:
18 U.S.C. 924(c) ................................................................4, 5, 6, 7, 8, 10, 14, 15, 19, 20
iv
18 U.S.C. 924(c)(1)(A) .................................................................................................... 4
18 U.S.C. 924(c)(3)(A) ........................................................................................ 4, 5, 6, 8
18 U.S.C. 924(c)(3)(B) .................................................................................................... 5
18 U.S.C. 1961(1) ......................................................................................................... 14
18 U.S.C. 1962(c).......................................................................................................... 14
18 U.S.C. 2113 ..................................................................................................... 2, 5, 19
18 U.S.C. 2113(a) ....................................................................5, 7, 10, 11, 13, 15, 18, 19
18 U.S.C. 2113(b) ........................................................................................................... 5
18 U.S.C. 2113(d) ........................................................................... 4, 5, 6, 7, 8, 9, 10, 13
28 U.S.C. 1254(1) ........................................................................................................... 2
28 U.S.C. 2255 ........................................................................................................... 5, 6
28 U.S.C. 2255(h) ........................................................................................................... 5
U.S.S.G. § 4B1.2(a) ................................................................................................ 15, 16
Iowa Code § 708.6(2) .................................................................................................... 16
MISCELLANEOUS:
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012)................................................................ 9
Model Penal Code § 2.02(2)(a) (1985).......................................................................... 11
Model Penal Code § 2.02(2)(b)(ii) ................................................................................ 12
Model Penal Code § 2.02(3) ................................................................................... 10, 12
v
No. _____
In the Supreme Court of the United States
__________________________________________________________________
MARK JORDAN, PETITIONER
V.
UNITED STATES OF AMERICA
__________________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
__________________________________________________________________
Mark Jordan respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Third Circuit in this case.
OPINIONS BELOW
The revised opinion of the court of appeals (App., infra, 1a-16a) is reported at
96 F.4th 584. The order of the court of appeals granting panel rehearing and denying
rehearing en banc (App., infra, 17a-18a) is reported at 96 F.4th 628. The earlier
opinion of the court of appeals (App., infra, 19a-34a) is reported at 88 F.4th 435. The
district court’s order (C.A. App. 4-8) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 12, 2023.
Panel rehearing was granted, a revised opinion was issued, and rehearing en banc
1
was denied on March 25, 2024 (App., infra, 17a-18a). The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Section 924 of Title 18 of the United States Code provides in pertinent part:
*****
(c)(1)(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person
who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries
a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime—
(i)
be sentenced to a term of imprisonment of not
less than 5 years;
(ii)
if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years;
and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10
years.
*****
(3)
For purposes of this subsection the term “crime of
violence” means 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.
Section 2113 of Title 18 of the United States Code provides in pertinent part:
2
(a) 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, credit union, or any savings and loan
association; or
Whoever enters or attempts to enter any bank, credit
union, or any savings and loan association, 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, credit union, or such savings and loan
association 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.
(b) Whoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of value
exceeding $1,000 belonging to, or in the care, custody,
control, management, or possession of any bank, credit
union, or any savings and loan association, shall be fined
under this title or imprisoned not more than ten years, or
both; or
Whoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of value
not exceeding $1,000 belonging to, or in the care, custody,
control, management, or possession of any bank, credit
union, or any savings and loan association, shall be fined
under this title or imprisoned not more than one year, or
both.
*****
(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 twentyfive years, or both.
3
STATEMENT
This case presents two significant and recurring questions of federal criminal
law that require the Court’s review: (1) whether, in applying the categorical approach,
a federal offense that incorporates by reference the commission of an underlying
offense is divisible between underlying offenses, and (2) whether a criminal offense
that can be committed with a mental state of general intent qualifies as a “crime of
violence” under 18 U.S.C. 924(c). There is profound confusion among the courts of
appeals over both questions, and this Court’s intervention is necessary.
1. In 1995, by plea of guilty, petitioner Mark Jordan was convicted in the
Eastern District of Pennsylvania of two counts of violating 18 U.S.C. 924(c) and three
counts of violating 18 U.S.C. 2113(d). The district court sentenced Mr. Jordan to a
total of 318 months of imprisonment. App., infra, 3a; C.A. App. 4-5, 98-100. 1
2. Section 924(c) makes it a crime to “use[] or carr[y]” a firearm “during and
in relation to,” or to “possess[]” a firearm “in furtherance of,” any federal “crime of
violence or drug trafficking crime.” 18 U.S.C. 924(c)(1)(A). The statute defines the
term “crime of violence” with two alternative definitions. Section 924(c)(3)(A)—which
courts often refer to as containing the “force” or “elements” clause—states that the
term “crime of violence” includes any “offense that is a felony” and “has as an element
the use, attempted use, or threatened use of physical force against the person or
1 In a subsequent federal case involving unrelated charges, Mr. Jordan was
sentenced to a term of imprisonment of 420 months, to be served consecutively to
the sentence imposed in this case. See United States v. Jordan, No. 04-cr-00229,
Doc. 311 (D. Colo. April 11, 2006). He is currently in custody serving that sentence.
4
property of another.” 18 U.S.C. 924(c)(3)(A). Section 924(c)(3)(B)—which courts often
refer to as containing the “residual” clause—states that the term “crime of violence”
also includes any “offense that is a felony and * * * 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)(B).
Mr. Jordan’s Section 924(c) counts were predicated on the charged violations
of 18 U.S.C. 2113(d). Section 2113(d) provides:
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 twentyfive years, or both.
18 U.S.C. 2113(d). Subsections (a) and (b) of 2113 set forth various offenses involving
entry into and taking money from banks and similar institutions.
3. In 2016, Mr. Jordan sought authorization from the court of appeals to file a
second or successive Section 2255 motion seeking vacatur of his Section 924(c)
convictions. 2 See C.A. App. 104-112; 28 U.S.C. 2255(h). While Mr. Jordan’s motion
was pending, the Supreme Court decided United States v. Davis, 588 U.S. 445 (2019),
which held that Section 924(c)’s residual clause is unconstitutionally vague. Shortly
thereafter, the court of appeals granted Mr. Jordan leave to file a second or successive
2 Mr. Jordan had previously filed a pro se motion for a reduction of the
amount of restitution imposed, which the district court treated as a motion under 28
U.S.C. 2255. See D. Ct. Dkt. No. 47.
5
habeas petition in light of Davis. See Order, Nos. 16-2563 & 16-2720 (3d Cir. Aug.
27, 2019).
Mr. Jordan’s Section 2255 motion explained that, because the residual clause
is unconstitutional, his Section 2113(d) offenses must satisfy the alternative
definition of “crime of violence” in the force clause of Section 924(c). Relevant here,
Mr. Jordan argued that 18 U.S.C. 2113(d) can be committed by reckless conduct, and
thus cannot qualify as a predicate under Section 924(c)’s force clause after the
Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021).
In
addition, Mr. Jordan argued that 18 U.S.C. 2113(d) criminalizes putting in jeopardy
the life of “any person,” and is therefore broader than the force clause of Section
924(c), which requires the use or threatened use of force that is targeted “against the
person or property of another.” 18 U.S.C. 924(c)(3)(A) (emphasis added). See C.A.
App. 127-134, 138-143, 155-165.
4. The district court denied Mr. Jordan’s Section 2255 motion, relying on preBorden precedent of the court of appeals holding that Section 2113(d) is a “crime of
violence” under Section 924(c). See C.A. App. 4-8. Nonetheless, the district court
recognized that “reasonable jurists could debate the application of Borden” to 2113(d),
and therefore “recommend[ed] that a certificate of appealability should be issued.”
Id. at 8.
5. Mr. Jordan appealed, and the court of appeals affirmed.
a. As an initial matter, the court of appeals held that Section 2113(d) is
divisible into crimes predicated on subsection (a) and those predicated on subsection
6
(b). See App., infra, 25a-31a. The court of appeals rejected Mr. Jordan’s argument
that the plain conjunctive language of Section 2113(d)—“any” of the offenses in
subsections (a) “and” (b)—defines a single indivisible crime In the court’s view, the
text of the statute suggested divisibility but did not “plainly” resolve the issue, and
therefore the court of appeals looked to Mr. Jordan’s indictment and plea colloquy to
confirm its conclusion.
Id. at 25a-28a.
The court of appeals also relied on its
precedent holding that the Racketeer Influenced and Corrupt Organizations Act
(RICO) statute is divisible between underlying crimes, and the court distinguished a
recent decision by another panel concluding that a Pennsylvania statute was
indivisible as between underlying crimes. Id. at 28a-31a. Based on its analysis, the
court of appeals broadly opined that, “as a rule, federal nested crimes that depend on
alternative predicate crimes are divisible.” Id. at 31a.
b.
After determining that Mr. Jordan’s Section 2113(d) offenses were
predicated on subsection (a), the court of appeals addressed Mr. Jordan’s two
arguments that his Section 2113(d) offenses did not satisfy Section 924(c)’s force
clause. First, the court of appeals held that a Section 2113(d) offense, predicated on
subsection (a), requires a sufficient mens rea to satisfy the force clause. App., infra,
32a-33a. In so holding, the court of appeals rejected Mr. Jordan’s argument that
Section 2113(a) is a general intent crime, and general intent encompasses a mens rea
of recklessness as defined by Borden. See C.A. Br. 17-27, 35-42; C.A. Reply Br. 3-15,
22-25. Relying on its pre-Borden precedent, the court of appeals concluded that
Section 2113(a) does not criminalize reckless conduct. App., infra, 32a-33a.
7
Second, the court of appeals rejected Mr. Jordan’s argument that because
Section 2113(d) criminalizes putting in jeopardy the life of “any person,” it is facially
broader than the force clause of Section 924(c), which requires the use or threatened
use of force “against the person or property of another.” 18 U.S.C. 924(c)(3)(A)
(emphasis added). The court of appeals held that “precedent forecloses” this
argument, relying on its previous conclusion in United States v. Johnson, 899 F.3d
191 (3d Cir. 2018), that Section 2113(d) is a crime of violence. App., infra, 33a-34a.
6. Mr. Jordan filed a petition for panel rehearing and rehearing en banc,
arguing that the court of appeals incorrectly applied the doctrine of stare decisis and
that its divisibility analysis was erroneous. The court of appeals granted panel
rehearing and issued a revised opinion. App., infra, 1a-16a. The revisions eliminated
the discussion of stare decisis but did not change the court of appeals’ conclusion, and
the judgment affirming the district court remained in place. See id. at 17a-18a. The
court of appeals denied rehearing en banc. Ibid.
REASONS FOR GRANTING THE PETITION
A.
The Decision Below Is Incorrect
In holding that Section 2113(d) qualifies as a “crime of violence” under Section
924(c), the court of appeals made two fundamental errors that warrant this Court’s
attention.
1. First, the court of appeals’ conclusion that Section 2113(d) is indivisible as
between underlying crimes flouts the divisibility precedents of this Court. Critically,
the court of appeals erred adopting a broad, generally applicable “rule” that “federal
8
nested crimes that depend on alternative predicate crimes are divisible.” App., infra,
13a. The question whether a statute is divisible turns on the text of the particular
statute at issue, and whether that statutory text sets out alternative elements or
means. See Mathis v. United States, 579 U.S. 500, 514 (2016); Descamps v. United
States, 570 U.S. 254, 275, 133 (2013). There can be no general rule for federal “nested
crimes”; each statute must be subject to individualized statutory interpretation.
Further, the court of appeals’ interpretation of the text is flawed. As this Court
has explained, a divisibility analysis is only required insofar as a statute is
“alternatively phrased.” Mathis, 579 U.S. at 517. Section 2113(d) is not alternatively
phrased: it refers generally to “any offense defined in subsections (a) and (b).” 18
U.S.C. § 2113(d). Accordingly, and contrary to the court of appeals’ interpretation,
Section 2113(d) is not “disjunctive.” App., infra, 9a. Rather, “any” expansively refers
to an offense in those subsections “of whatever kind,” Babb v. Wilkie, 589 U.S. 399,
405 n.2 (2020), and the ordinary meaning of “and” is conjunctive, see Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012)
(Reading Law). By its plain language, Section 2113(d) is a single indivisible offense;
it does not provide for alternative offenses based on the particular underlying offense
within subsections (a) or (b). The divisibility analysis for Section 2113(d) begins and
ends with the text, and the court of appeals erred by concluding otherwise. See
Mathis, 579 U.S. at 517. Once again, a lower court has disregarded what this Court
has “earlier said (and said and said)” about how to apply the categorical approach.
Id. at 515-16.
9
2.
The court of appeals likewise erred in holding that Section 2113(d),
predicated on subsection (a), contains a sufficient mens rea to satisfy the force clause
of Section 924(c).
Section 2113(d) makes it a crime to “assault[]” any person or “put[] in jeopardy
the life of” any person by the use of a dangerous weapon while committing any of the
bank-related offenses in subsections (a) or (b). Section 2113(d) is silent as to mens
rea, and the best reading of that statute is that it requires a mens rea of
recklessness—the common default mens rea for an offense that does not expressly
contain one. See Voisine v. United States, 579 U.S. 686, 695 (2016) (citing Model
Penal Code § 2.02(3), Comments 4-5, at 243-244 (1962)). That understanding of
Section 2113(d) comports with the text of the statute. The phrase “puts in jeopardy
the life of any person by the use of a dangerous weapon or device” fits comfortably
with a mens rea of recklessness, which involves conscious disregard of a “substantial
and unjustifiable risk.” Borden, 593 U.S. at 427. A perpetrator can put a person’s
life in jeopardy without intending to hurt that person and without knowing that harm
is practically certain to occur; the perpetrator need only “consciously disregard[] a
real risk, thus endangering others.” Id. at 432.
Perhaps due to the strength of the foregoing arguments, the court of appeals
focused on the mens rea required for Section 2113(a) instead of subsection (d). But,
even if the court’s divisibility analysis were correct, subsection (a) likewise can be
committed by reckless conduct. The first paragraph of Section 2113(a) penalizes
someone who “by force and violence, or by intimidation, takes, or attempts to take,
10
from the person or presence of another” property or money belonging to, or in the
custody of, any bank or similar named institutions. 18 U.S.C. 2113(a). In Carter v.
United States, 530 U.S. 255 (2000), this Court considered the mens rea required by
2113(a) and held that it does not require proof of specific intent to steal. The Court
“read subsection (a) as requiring proof of general intent—that is, that the defendant
possessed knowledge with respect to the actus reus of the crime (here, the taking of
property of another by force and violence or intimidation).” Id. As the government
itself has recognized in other litigation, “general intent” encompasses recklessness
and therefore cannot satisfy the force clause under Borden. See U.S. Br., United
States v. Gonzales, No. 21-2022, 2021 WL 3236540, at *3-*4 (10th Cir. 2021)
(conceding that general intent is insufficient under Borden); U.S. Br., Voisine v.
United States, 2016 WL 1238840, at *18 (2016) (explaining that “‘general intent’
traditionally encompassed not only purposeful, but also knowing and reckless
conduct”).
In Borden, the Court did not use the traditional terms “general intent” and
“specific intent.” Instead, the plurality opinion employed the four mental states of
negligence, recklessness, purpose, and knowledge “as described in modern statutes
and cases.”
593 U.S. at 425-426.
Critically, the opinion defined purpose and
knowledge—the mental states that satisfy the force clause—by reference to a
particular result. As the plurality explained, a “person acts purposefully when he
‘consciously desires’ a particular result.” Id. at 426 (quoting United States v. Bailey,
444 U.S. 394, 404 (1980) and citing Model Penal Code § 2.02(2)(a) (1985)). A person
11
acts “knowingly when ‘he is aware that [a] result is practically certain to follow from
his conduct,’ whatever his affirmative desire.” Id. (quoting Bailey, 444 U.S. at 404
and citing Model Penal Code § 2.02(2)(b)(ii)).
There is a key distinction between the traditional concept of “general intent”—
as used in Carter—and the more modern mental states of purpose and knowledge
defined in Borden. While “general intent” refers to having knowledge or intent with
respect to the actus reus, Carter, 530 U.S. at 268, purpose and knowledge as used in
Borden refer to a mental state with respect to the result, see Borden, 593 U.S. at 426.
A person can knowingly or intentionally engage in an act (and thus have general
intent) without “consciously desir[ing] a particular result” or being aware that such a
“result is practically certain to follow” (and thus lack modern purpose or knowledge).
Ibid. (emphases added and internal quotation marks omitted). For that reason, the
traditional concept of “general intent”—though requiring knowledge or intent with
respect to the actus reus—encompasses the modern concepts of purpose, knowledge,
and recklessness. See United States v. Zunie, 444 F.3d 1230, 1234-1235 (“What the
common law would traditionally consider a ‘general intent’ crime . . . encompasses
crimes committed with purpose, knowledge, or recklessness.”); Model Penal Code
§ 2.02(3), Explanatory Note (discussing “correspondence” between a requirement of
purpose, knowledge, or recklessness and “the common law requirement of ‘general
intent’”); cf. Counterman v. Colorado, 600 U.S. 66, 81 (2023) (“specific intent” is
“presumably equivalent to purpose or knowledge”). Consequently, under Borden,
general intent is insufficient.
12
Because Section 2113(a) requires only “general intent,” Carter, 530 U.S. at 268,
an individual can violate the statute merely by knowingly or intentionally engaging
in an act of “intimidation.” That means that “intimidation” can occur without an
individual’s “conscious[] desire” to threaten force (purpose) or “aware[ness]” that a
threat of force “is practically certain to follow from his conduct” (knowledge). Borden,
593 U.S. at 426. Indeed, this Court’s recent discussion of knowing and reckless
threats in Counterman is instructive. As the Court explained in Counterman, “[a]
person acts knowingly” in the threats context “when he knows to a practical certainty
that others will take his words as threats.” 600 U.S. at 79. By contrast, “[a] person
acts recklessly” when he “is aware that others could regard his statements as
threatening violence and delivers them anyway.” Ibid. (internal quotation marks
omitted). Counterman’s recklessness standard maps onto Section 2113(a): it does
not require that the speaker know to a practical certainty that others will take his
words as threats, but instead requires only that the speaker disregards a substantial
risk that his communications would be perceived as a threat.
The court of appeals erred in holding that a Section 2113(d) offense predicated
on subsection (a), a general intent crime, satisfies the force clause.
B.
The Decision Below Is In Substantial Tension With Decisions Of
Other Courts Of Appeals
The court of appeals’ decision implicates two independent questions on which
the lower courts are in significant tension. Both questions are ripe for this Court’s
intervention.
13
1. The court of appeals’ holding that, as a rule, a federal nested crime is
divisible between underlying crimes is at odds with the reasoning of the Fourth
Circuit in United States v. Simmons, 11 F.4th 239 (4th Cir. 2021). There, the Fourth
Circuit held that a RICO conspiracy does not qualify as a “crime of violence” under
924(c).
The RICO statute proscribes “conduct[ing] . . . [an] enterprise’s affairs
through a pattern of racketeering activity or a collection of unlawful debt.” 18 U.S.C.
1962(c).
“[R]acketeering activity,” in turn, is defined by reference to myriad
alternative predicate acts and offenses. See 18 U.S.C. 1961(1). Among other analysis,
the Fourth Circuit explained in Simmons that Section 1961(1) “lists a number of
crimes which can serve as the means for satisfying” the element of “a pattern of
racketeering activity.” 11 F.4th at 259. Because the underlying acts in 1961(1) are
means and not elements, under the Fourth Circuit’s reasoning, the RICO statute is
necessarily indivisible as between those underlying acts.
The Fourth Circuit’s reasoning in Simmons is incompatible with the decision
of the court of appeals below. The court of appeals’ broad holding that, as a rule,
federal nested crimes are divisible necessarily applies to a statute like RICO. Indeed,
in the decision below, the court of appeals relied on its prior decision in United States
v. Williams, which held that RICO is divisible as between predicate acts of
“racketeering activity.” 898 F.3d 323, 333 (3d Cir. 2018); see App., infra, 10a-11a. The
decision in Williams, and the broader rule adopted in the decision below, cannot be
squared with the Fourth Circuit’s reasoning in Simmons.
14
2. Separately and independently, the court of appeals’ holding that a general
intent crime (like Section 2113(a)) can satisfy the force clause conflicts with decisions
of several other circuits. Although courts of appeals have uniformly held that Section
2113(a) qualifies as a “crime of violence,” those decisions have failed to grapple with
the distinction between general intent—which requires only knowledge as to the
actus reus (and encompasses recklessness)—and knowledge as used in Borden—
which requires knowledge as to the result. This Court’s intervention is needed to
resolve the confusion among the courts of appeals.
a. In United States v. Garner, 28 F.4th 678 (2022), the Fifth Circuit held that
Louisiana’s aggravated assault with a firearm statute does not satisfy the force clause
of U.S.S.G. § 4B1.2(a), which is nearly identical to the force clause of Section 924(c).
See 28 F.4th at 682-84.
As the court explained, Louisiana aggravated assault
requires “general intent,” which exists when “the prohibited result may reasonably
be expected to follow from the offender’s voluntary act, irrespective of any subjective
desire on his part to have accomplished such result.” Id. at 683 (internal quotation
marks omitted).
For example, a Louisiana court upheld a conviction under the
aggravated assault statute where a defendant “intentionally placed the victim in
reasonable apprehension of receiving a battery involving a firearm” and the
defendant’s “behavior would very reasonably result in the victim’s apprehension of
harm.” Id. (citation omitted). Thus, the Fifth Circuit concluded that because “reckless
or even negligent states of mind can satisfy Louisiana’s general intent standard, so
long as a reasonable person would know that the criminal consequences would result
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from the defendant’s actions,” the Louisiana aggravated assault offense does not
satisfy the force clause. Id. at 683-84.
b.
Similarly, in United States v. Frazier, 48 F.4th 884 (2022), the Eighth
Circuit held that Iowa’s offense of Intimidation with a Dangerous Weapon does not
qualify as a crime of violence under U.S.S.G. § 4B1.2(a). The Iowa statute penalizes
a person who “shoots, throws, launches, or discharges a dangerous weapon at, into,
or in” a building or other enumerated locations, or “threatens to commit such an act
under circumstances raising a reasonable expectation that the threat will be carried
out.” Iowa Code § 708.6(2). The Eighth Circuit concluded that “examining § 708.6(2)
in light of Borden shows that a violation of the Iowa statute does not satisfy the force
clause.” 48 F.4th at 887. As the Court explained, the Iowa offense at issue “is a
general intent crime.” Ibid. “As such, there is no requirement that the defendant
subjectively desire the prohibited result; he need only intend to commit the prohibited
act.” Ibid. “In other words,” the court explained, “a defendant may violate § 708.6(2)
without knowingly or intentionally placing an occupant in reasonable apprehension
of serious bodily injury.” Ibid. “It is sufficient, for example, if the defendant
intentionally fires a gun inside a building, but only recklessly causes an occupant to
fear serious injury.” Ibid. Accordingly, abrogating pre-Borden precedent, the court
held that a violation of Iowa Code § 708.6(2) does not satisfy the force clause. See ibid.
c. Employing similar reasoning, the government recently conceded in the
Tenth Circuit that, after Borden, a conviction under New Mexico’s aggravated assault
with a deadly weapon statute is not a qualifying offense under the force clause. See
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U.S. Br., United States v. Gonzales, No. 21-2022, 2021 WL 3236540, at *3-*4 (10th
Cir. 2021). As the government explained, “[o]ne of the ways in which aggravated
assault with a deadly weapon can be committed in New Mexico is through ‘any
unlawful act, threat or menacing conduct which causes another person to reasonably
believe that he is in danger of receiving an immediate battery.’” Id. at *3 (quoting
N.M. Stat. § 30-3-1). Although the offense requires “general criminal intent” to
engage in the act that puts the victim in fear of injury, the government reasoned,
“Borden reveals that this type of conduct, though intentional in one sense, is
insufficient to bring the statute within the [force clause] because ‘like recklessness,
[it] is not directed or targeted at another.’” Id. at *4 (quoting Borden, 593 U.S. at
443). Accepting the government’s concession, the Tenth Circuit vacated the
defendant’s sentence and remanded for resentencing. See United States v. Gonzales,
2021 WL 4185952 (10th Cir. 2021).
d. Likewise, in United States v. Carter, 7 F.4th 1039 (2021), the Eleventh
Circuit applied Borden and held that Georgia’s aggravated assault with a deadly
weapon statute does not satisfy the ACCA’s force clause. See id. at 1045. The court
explained that Georgia assault “does not require proof of specific intent” to harm;
rather, the “State need only prove that the defendant intended to do the act that
placed another in reasonable apprehension of immediate violent injury.” Ibid. That
general intent requirement can be satisfied by a mens rea of recklessness, and thus
the statute does not satisfy the force clause under Borden. See ibid.
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e. In contrast to the foregoing decisions, the court of appeals in the decision
below failed to wrestle with the relationship between general intent and recklessness.
Instead, the court of appeals simply relied on its pre-Borden precedent, United States
v. Wilson, 880 F.3d 80 (3d Cir. 2018), to conclude that Section 2113(a) “requires
purpose or knowledge.” App., infra, 14a-15a. But Wilson reflects a misunderstanding
of general intent, that cannot survive Borden. Indeed, Wilson acknowledged that
Section 2113(a) is general intent crime, explaining that because the statute requires
“only general intent, it is enough for the government to prove that the defendant took
knowing action to rob a bank.” 880 F.3d at 87. Contrary to the reasoning of the courts
of appeals discussed above, and contrary to Borden, the Wilson court concluded that
a general intent crime satisfies the force clause. In the decision below, the court of
appeals reiterated Wilson’s holding and opined that Mr. Jordan’s argument
“overreads” Borden. App., infra, 14a-15a. That decision conflicts with the decisions
of other circuits that have correctly applied Borden to hold that general intent crimes
do not satisfy the force clause.
C.
The Questions Presented Are Important And Warrant Review In
This Case
This Court should grant review to address (1) whether, as a rule, federal crimes
that incorporate underlying offenses are divisible between the underlying offenses,
and (2) whether an offense with a mens rea of general intent satisfies the force clause.
As shown above, both questions are the source of widespread confusion among the
courts of appeals, and this Court’s intervention is needed.
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The questions presented are of substantial importance.
The government
frequently prosecutes Section 924(c) offenses connected to federal bank robberies and
similar crimes. See U.S. Pet. 21, United States v. Taylor, No. 20-1495 (discussing
data from the U.S. Sentencing Commission indicate that in Fiscal Year 2019 alone,
813 federal defendants were convicted under both Section 924(c) and a federal
robbery statute, including 18 U.S.C. 2113). Section 924(c) imposes harsh additional
penalties for using or carrying a firearm during a crime. As this Court has explained,
“[v]iolators of § 924(c) face a mandatory minimum sentence of five years in prison,
over and above any sentence they receive for the underlying crime of violence or drug
trafficking crime.” Davis, 588 U.S. at 449-450. The minimum sentence rises to seven
years if the defendant brandishes the firearm and ten years if he discharges it. Ibid.
Certain types of weapons also trigger enhanced penalties. Ibid.
Further, the questions presented impact cases beyond those involving Section
924(c). The Sentencing Guidelines and other statutory provisions contain clauses
that require the categorical approach, and the court of appeals’ divisibility rule will
presumably apply whenever a federal predicate is at issue. See Davis, 588 U.S. at
458. Moreover, in addition to Section 2113(a), other federal crimes and numerous
state crimes can be committed with a mens rea of general intent, but the lower courts
are in disarray as to whether a general intent crime satisfies the force clause. See pp.
14-18, supra.
Because of the large number of Section 924(c) convictions—to say nothing
about the other statutory and sentencing provisions that contain language similar to
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Section 924(c)’s force clause—it is imperative that the lower courts have clarity on
how to apply the categorical approach and on the mens rea that is required to satisfy
the force clause. There can be no doubt that the questions presented will continue to
recur frequently until this Court intervenes. And, without this Court’s review, the
ongoing confusion among the courts of appeals will continue to impact scores of
criminal defendants across the country. This case presents an optimal vehicle in
which to resolve the tension among the courts of appeals on both questions. The
Court should grant the petition for certiorari and address these important questions
of federal criminal law.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
/s/ Stacie M. Fahsel
LISA B. FREELAND
RENEE PIETROPAOLO
STACIE FAHSEL
Counsel of Record
FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
1001 Liberty Avenue
Suite 1500
Pittsburgh, PA 15222
(412) 644-6565
Stacie_Fahsel@fd.org
JUNE 24, 2024
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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.