From Casetext: Smarter Legal Research

U.S. v. Wright

United States Court of Appeals, Eighth Circuit
Feb 18, 1992
957 F.2d 520 (8th Cir. 1992)

Summary

holding federal bank robbery is a "crime of violence" under § 4B1.2 because it involves the threat of force

Summary of this case from United States v. Brewer

Opinion

No. 91-2780.

Submitted February 11, 1992.

Decided February 18, 1992. Rehearing and Rehearing En Banc Denied March 26, 1992.

Mark J. Cero, St. Louis, Mo., argued, for appellant.

Richard Lee Poehling, St. Louis, Mo., argued, for appellee.

Appeal from the United States District Court for the Eastern District of Missouri.

Before FAGG, BOWMAN and WOLLMAN, Circuit Judges.


William Hurd Wright pleaded guilty to robbery of a federally insured savings and loan association in violation of 18 U.S.C. § 2113(a). At sentencing Wright stipulated he took money from the savings and loan by using intimidation. Wright carried no weapon and did not use force or violence. Wright simply approached the bank teller and softly said, "This is a robbery, give me your money." Finding this statement was at least an implied threat to use force, the district court held the robbery was a crime of violence under U.S.S.G. § 4B1.2. Accordingly, the district court sentenced Wright as a career offender under U.S.S.G. § 4B1.1. Wright appeals his sentence, contending the robbery was not a crime of violence. We affirm.

Although Wright stipulated he committed robbery by intimidation, Wright asserts we should examine the facts underlying the robbery to determine whether it is a crime of violence. We believe the guidelines require a legal approach rather than a factual approach in Wright's case. The Sentencing Commission defines "crime of violence" in two ways:

The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that —

(i) has as an element the use, attempted use, or threatened use of physical force against [another person], or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1) (Nov. 1990).

We conclude Wright's robbery is a crime of violence under subsection (i). To obtain a conviction for robbery under 18 U.S.C. § 2113(a), the Government must show the defendant took property "by force and violence, or by intimidation." "Intimidation means the threat of force." United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991); see United States v. Selfa, 918 F.2d 749, 751 (9th Cir.), cert. denied. ___ U.S. ___, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990). Because use or threatened use of force is an element of robbery, a person convicted of robbery has been convicted of a crime of violence. United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991); Jones, 932 F.2d at 625; United States v. McAllister, 927 F.2d 136, 138 (3d Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 111, 116 L.Ed.2d 80 (1991); Selfa, 918 F.2d at 751; United States v. Gonzalez-Lopez, 911 F.2d 542, 548 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). The guideline note's statement that "`[c]rime of violence' includes . . . robbery" supports our view. U.S.S.G. § 4B1.2 n. 2. We thus join the circuits that have held robbery is a crime of violence under U.S.S.G. § 4B1.2(1)(i). Wilson, 951 F.2d at 588; Jones, 932 F.2d at 625; McAllister, 927 F.2d at 139; Gonzalez-Lopez, 911 F.2d at 547-48.

When deciding whether an offense is a crime of violence under subsection (i), courts must focus their inquiry on the elements of the offense rather than the facts underlying the offense. Wilson, 951 F.2d at 588; Gonzalez-Lopez, 911 F.2d at 547. Courts can examine an offense's underlying facts only when "that offense can be committed without violence within the meaning of section 4B1.1" Jones, 932 F.2d at 625. Because robbery cannot be committed without violence within the meaning of section 4B1.1, courts cannot examine the facts underlying each robbery. Wilson, 951 F.2d at 588; United States v. John, 936 F.2d 764, 767 (3d Cir. 1991); Jones, 932 F.2d at 625; Selfa, 918 F.2d at 751; Gonzalez-Lopez, 911 F.2d at 547; see also Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 2158-60, 109 L.Ed.2d 607 (1990). In contrast, when deciding whether an offense "involves conduct that presents a serious potential risk of physical injury to another" under subsection (ii), courts may examine the facts underlying the defendant's conviction to determine whether the offense is a crime of violence. John, 936 F.2d at 770. Thus, our decision today is consistent with United States v. Cornelius, 931 F.2d 490, 493 (8th Cir. 1991) (using factual approach to determine whether possession of firearm by felon is crime of violence under U.S.S.G. § 4B1.2(1)(ii)). See also United States v. Chapple, 942 F.2d 439, 442 (7th Cir. 1991) (same); Taylor, 110 S.Ct. at 2159 n. 9.

We conclude the district court properly found Wright is a career offender under section 4B1.1. Thus, we affirm Wright's sentence.


Summaries of

U.S. v. Wright

United States Court of Appeals, Eighth Circuit
Feb 18, 1992
957 F.2d 520 (8th Cir. 1992)

holding federal bank robbery is a "crime of violence" under § 4B1.2 because it involves the threat of force

Summary of this case from United States v. Brewer

In United States v. Wright, 957 F.2d 520 (8th Cir. 1992), however, this court held that robbery by intimidation under § 2113(a) categorically involves the threatened use of force: "Intimidation means the threat of force."

Summary of this case from United States v. Harper

construing United States Sentencing Guidelines (U.S.S.G.) § 4B1.2, which defines "crime of violence" as an offense that "has as an element, the use, attempted use, or threatened use of physical force"

Summary of this case from U.S. v. Smith

In Wright this court concluded that "[b]ecause robbery cannot be committed without violence within the meaning of section 4B1.1, courts cannot examine the facts underlying each robbery."

Summary of this case from U.S. v. Leeper

In United States v. Wright, 957 F.2d 520 (8th Cir. 1992), however, this court held that robbery by intimidation under § 2113(a) categorically involves the threatened use of force: "Intimidation means the threat of force."

Summary of this case from Quarles v. United States

noting that "[c]ourts must focus their inquiry on the elements of the offense rather than the facts underlying the offense . . . [unless] `that offense can be committed without violence within the meaning of section 4B1.1.'"

Summary of this case from U.S. v. Flores
Case details for

U.S. v. Wright

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. WILLIAM HURD WRIGHT, APPELLANT

Court:United States Court of Appeals, Eighth Circuit

Date published: Feb 18, 1992

Citations

957 F.2d 520 (8th Cir. 1992)

Citing Cases

U.S. v. Smith

In cases where the state statute allows the predicate offense to be committed in either a violent or a…

U.S. v. Leeper

Thus, whether we focus on the elements of the crime or the offense's underlying facts, manslaughter qualifies…