Third Circuit Deems Armed Bank Robbery a "Crime of Violence" Under 18 U.S.C. § 924(c)

In United States v. Jordan, ---F. 4th---, 2023 WL 8590446 (3d Cir. Dec. 12, 2023), the Third Circuit deemed armed bank robbery, in violation of 18 U.S.C. § 2113(d), a "crime of violence" for purposes of 18 U.S.C. § 924(c).  Section 2113(d) states: "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 twenty-five years, or both."

The Jordan Court first found that the bank robbery statute is divisible and creates several federal bank robbery offenses.  Section 2113(a) and (b) are divisible into separate offenses.  Section 2113(a) is also internally divisible into bank robbery by (1) "force and violence, or by intimidation" and (2) by "entering . . . any bank . . . with intent to commit . . . any felony . . . or any larceny."  Finally, Section 2113(d), the armed bank robbery provision, is divisible into "crimes predicated on subsection (a) and those predicated on subsection (b)."  

Because Section 2113(d) is divisible, the Court applied the modified categorical approach and determined the defendant was convicted of the version of armed bank robbery predicated on bank robbery by force, violence, or intimidation.  The Court then reaffirmed its earlier holding in United States v. Johnson, 899 F.3d 191 (3d Cir. 2018), that this version of bank robbery is a categorical "crime of violence" under the elements clause of § 924(c).  In so doing, the Court rejected the defendant's argument that Borden v. United States, 141 S. Ct. 1817 (2021), overruled Johnson.  It also rejected a new argument about the elements of the bank robbery statute because the argument was not made in Johnson and Johnson is the law of the Circuit.

A copy of the opinion is available at: https://www2.ca3.uscourts.gov/opinarch/222153p.pdf.