Submitted: May 13, 2019
from United States District Court for the Western District of
Arkansas - Hot Springs
BENTON, WOLLMAN, and GRASZ, Circuit Judges.
Kidd pleaded guilty in 2011 to using a firearm in furtherance
of a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A), which provides consecutive mandatory minimum
sentences for "any person who, during and in relation to
any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm." The crime of violence underlying
Kidd's conviction was aiding and abetting armed robbery
of controlled substances in violation of 18 U.S.C.
§§ 2, 2118(a), and 2118(c)(1). The district
courtdenied Kidd's 2016 motion to vacate his
firearm conviction, see 28 U.S.C. § 2255, but
granted a certificate of appealability on the question
whether the residual clause definition of "crime of
violence" set forth in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague. Because the residual clause
definition does not apply in this case, we affirm the
district court's judgment denying relief.
argues that aiding and abetting armed robbery involving
controlled substances does not qualify as a crime of violence
under the force clause definition of 18 U.S.C. §
924(c)(3)(A). The relevant portion of the robbery statute
proscribes taking or attempting to take controlled substances
from the person or presence of another "by force or
violence or by intimidation." 18 U.S.C. § 2118(a).
Kidd contends that because the offense can be committed by
means of intimidation, it does not have "as an element
the use, attempted use, or threatened use of physical force
against the person or property of another" that is
required under § 924(c)(3)(A).
defined intimidation as "the threat of force."
United States v. Wright, 957 F.2d 520, 521 (8th Cir.
1992). Accordingly, we have held that the federal offenses of
bank robbery and carjacking-both of which are committed
either "by force and violence" or "by
intimidation"-categorically qualify as crimes of
violence under the force clause of § 924(c)(3)(A).
Estell v. United States, 924 F.3d 1291, 1293 (8th
Cir. 2019) (holding that bank robbery under 18 U.S.C. §
2113(a) and carjacking under 18 U.S.C. § 2119 qualify as
crimes of violence under § 924(c)(3)(A)). Applying the
same definition of "intimidation" in this case, we
hold that the offense of armed robbery involving controlled
substances categorically qualifies as a crime of violence
under the force clause of § 924(c)(3)(A).
maintains that intimidation does not require the intentional
threat of physical force. See Allen v. United
States, 836 F.3d 894, 895-96 (8th Cir. 2016) (Melloy,
J., dissenting). We recently considered and rejected this
argument in Estell, in which we held that the
petitioner's arguments were foreclosed by the court's
reasoning in United States v. Harper, 869 F.3d 624
(8th Cir. 2017):
[In Harper, ] we explained that even though bank
robbery by intimidation does not require a specific intent to
intimidate, it still constitutes a threat of physical force
because "threat," as commonly defined, speaks to
what the statement conveys-not to the mental state of the
author. Thus, if the government establishes that a defendant
committed bank robbery by intimidation, it follows that the
defendant threatened a use of force causing bodily harm. And
a threat of bodily harm requires a threat to use violent
force because it is impossible to cause bodily injury without
using force capable of producing that result.
Estell, 924 F.3d at 1293 (internal quotation marks
and citations omitted). For the same reasons, we conclude
that the offense of armed robbery involving controlled
substances satisfies the force clause even when the offense
is committed by means of intimidation. Because we treat an
aider and abettor no differently than a principal,
see 18 U.S.C. § 2, we hold that Kidd's
underlying offense categorically qualifies as a crime of
violence under § 924(c)(3)(A). We thus conclude that his
conviction and sentence under § 924(c)(1)(A) are not
§ 924(c)(3)(A) applies in this case, the Supreme
Court's recent decision in United States v.
Davis does not afford Kidd the relief he seeks. See
United States v. Davis, No. 18-431, ___ S.Ct. ___, 2019
WL 2570623 (June 24, 2019) (striking down the residual clause
of § 924(c)(3)(B) as unconstitutionally vague).
judgment is affirmed.