United States v. Mark Jordan

                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                     No. 22-2153
                   _______________

           UNITED STATES OF AMERICA

                           v.

                   MARK JORDAN,
                            Appellant
                   _______________

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
               (D.C. No. 2:94-cr-00524-001)
     District Judge: Honorable Mitchell S. Goldberg
                    _______________

              Argued: September 13, 2023

  Before: JORDAN, BIBAS, and PORTER, Circuit Judges

              (Filed: December 12, 2023 )

Stacie M. Fahsel          [ARGUED]
Renee Pietropaolo
FEDERAL PUBLIC DEFENDER’S OFFICE
1001 Liberty Avenue
Pittsburgh, PA 15222
    Counsel for Appellant
Robert A. Zauzmer           [ARGUED]
U.S. ATTORNEY’S OFFICE
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
   Counsel for Appellee
                      _______________

                 OPINION OF THE COURT
                    _______________

BIBAS, Circuit Judge.
    Simple questions can be hard to answer. Is armed bank rob-
bery a crime of violence? That should be a no-brainer. But be-
cause the categorical approach applies, answering this question
is far from simple. Fortunately, here, the common-sense an-
swer is also the right one.
    Mark Jordan robbed banks, sometimes while carrying a
gun. Now he claims that federal armed bank robbery can be
committed recklessly, so it does not count as a crime of vio-
lence under a federal gun statute. But the federal armed-bank-
robbery statute is divisible into different crimes. And the spe-
cific crime that he pleaded guilty to requires purpose or
knowledge, not recklessness. So we can use the modified cat-
egorical approach to get a common-sense result: armed bank
robbery is a crime of violence.
   We will thus affirm the District Court’s denial of Jordan’s
motion to correct his sentence. And we hold that whenever a
federal crime is predicated on committing another crime (or




                               2
trying or planning to), the elements of the predicate crime
count as elements of the first crime too.
              I. THE ARMED BANK ROBBERIES
    Jordan robbed three banks. During two of the robberies, he
fired a gun to get the tellers to hand over the money. Luckily,
no one was hurt.
    Jordan was charged with three armed bank robberies under

(d) plus two gun charges under 

(c). The armed-bank-robbery statute punishes “use of a
dangerous weapon or device” while committing or attempting
to commit bank robbery or another crime under § 2113(a) (or
bank larceny under § 2113(b)). § 2113(d). The gun-crime
statute punishes “any person who, during and in relation to any
crime of violence … uses or carries a firearm.” § 924(c)(1)(A).
His armed bank robberies were the qualifying crimes of
violence.
    Jordan pleaded guilty to all five counts and was sentenced
to 318 months in prison. He later challenged this sentence by
filing a motion under 

, but the court denied it.
Then he filed a second § 2255 motion, arguing that § 2113(d) is
not a “crime of violence” under § 924(c). That is the motion we
now consider.
   Section 924(c)(3) defines a “crime of violence” as any fel-
ony that either:
   [The elements clause:] (A) has as an element the use,
   attempted use, or threatened use of physical force
   against the person or property of another, or




                               3
   [The residual clause:] (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 com-
   mitting the offense.
The Supreme Court invalidated the residual clause as uncon-
stitutionally vague, leaving only the elements clause standing.
United States v. Davis, 

 (2019).
    In the District Court, Jordan faced an uphill battle. We have
already held that, under the elements clause, § 2113(d) is a
crime of violence. United States v. Johnson, 

,
203–04 (3d Cir. 2018). But Jordan argues that the Supreme
Court abrogated that ruling in Borden v. United States, 

 (2021). Borden held that crimes are not “violent felo-
nies” under the Armed Career Criminal Act (ACCA) if they
can be committed recklessly. 

. Because ACCA and
§ 924(c) are worded almost identically, Borden’s holding ap-
plies equally to both laws. See id. at 1824 (noting that 

(a), which like § 2113(d) adds the phrase “or prop-
erty,” is “relevantly identical to ACCA’s elements clause”).
    Jordan claims that a bank robber can violate § 2113(d) reck-
lessly, so after Borden, it cannot be a § 924(c) crime of vio-
lence. Disagreeing, the District Court denied Jordan’s § 2255
motion. It reasoned that Borden “did not squarely overrule
Johnson,” so Johnson is still binding. App. 7 (brackets and in-
ternal quotation marks omitted).
   The District Court had jurisdiction to consider Jordan’s sec-
ond § 2255 motion. Because he has no new evidence, the court
could consider his second or successive motion only if his




                               4
claim relies on a new, retroactive rule of constitutional law. 

(b)(2)(A), (b)(4), 2255(h)(2).
    It does. After the Supreme Court in Davis invalidated the
residual clause, we gave Jordan and other similarly situated in-
mates permission to file second or successive § 2255 motions.
In re Matthews, 

, 298 n.2 (3d Cir. 2019). And Jor-
dan may have been sentenced under the residual clause. That
“is enough to demonstrate that his motion to correct his sen-
tence relies on” Davis’s qualifying rule of constitutional law.
United States v. Peppers, 

 (3d Cir. 2018).
Thus, the District Court had jurisdiction over his second
motion and could consider the merits. And we have jurisdiction
to review that court’s decision under 

(a).
II. SECTION 2113(d) IS DIVISIBLE INTO SEPARATE CRIMES
    We review de novo whether § 2113(d) is a § 924(c) crime
of violence. United States v. Wilson, 

 (3d Cir.
2018). To answer that question, we must apply the categorical
approach. 

 Under that approach, we look to whether the ele-
ments of § 2113(d) “match the elements of” § 924(c). Mathis v.
United States, 

 (2016). Section 2113(d) is a
crime of violence only if its elements are the same as, or nar-
rower than, those required by § 924(c)’s elements clause. Id.
When a statute is indivisible, defining a single crime, it fits
cleanly into this classic categorical approach. Id. at 504–05.
    But we do not always try to match all the elements in a stat-
ute. Some statutes are divisible, “list[ing] elements in the alter-
native, and thereby defin[ing] multiple crimes.” Id. at 505. To
figure out which of the alternative elements “was integral to
the defendant’s conviction,” we use the modified categorical




                                5
approach. Id. We look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 505–06. Then we use that
specific version of the crime to compare elements. See id. at
506.
   So first, we must figure out if § 2113(d) is divisible. It is.
    A criminal statute is indivisible if it “enumerates various
factual means of committing a single element.” Id. But it is
divisible if it “lists multiple elements disjunctively.” Id. Thus,
much rides on the difference between elements and factual
means: Elements are the “constituent parts of a crime’s legal
definition.” Id. at 504 (internal quotation marks omitted).
“[T]hey are what the jury must find beyond a reasonable doubt
to convict the defendant” and “what the defendant necessarily
admits when he pleads guilty.” Id. By contrast, factual means
are “real-world things—extraneous to the crime’s legal
requirements.” Id.
    It can be hard to tell whether a law lists alternative elements
or factual means. To make that call, we take three steps:
   • We first analyze if “the statute on its face … re-
     solve[s] the issue.” Id. at 518.
   • If not, we then “peek at the record documents … for
     the sole and limited purpose of determining whether
     the listed items are elements of the offense.” Id.
     (brackets and internal quotation marks omitted).
     This peek should “reveal what the prosecutor has to




                                6
       (and does not have to) demonstrate to prevail.” Id. at
       519.
   • Finally, we ask whether our precedents have held
     similar statutes divisible.
All three steps show that § 2113(d) is divisible.
   A. The text of § 2113(d) suggests that it is divisible
   We start with the statutory text:
   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 de-
   vice, shall be fined under this title or imprisoned not
   more than twenty-five years, or both.
This crime depends on 

(a) and (b) to define
the conduct that it bans. Ordinarily, we would begin by deter-
mining whether § 2113(d) itself is divisible before moving onto
the predicate crimes. But Jordan does not dispute that subsec-
tion (a) is divisible from (b). And it is. Not only are they in
different subsections, but they also carry different punish-
ments.
    Section 2113(a)’s first and second paragraphs are also
divisible. The first paragraph criminalizes taking money from
a bank “by force and violence, or by intimidation.” The second
criminalizes “enter[ing] … any bank …with intent to commit
… any felony … or any larceny.” These two paragraphs crim-
inalize different activities, list different elements, and have lit-
tle overlap. Plus, they are divided by a semicolon, an “or,” and
a paragraph break. And our sister circuits agree. See United




                                 7
States v. Butler, 

, 234–36 (5th Cir. 2020); United
States v. Moore, 

 (2d Cir. 2019); United
States v. Watson, 

, 785 n.1 (9th Cir. 2018). So not
only is § 2113(a) divisible from § 2113(b), but § 2113(a) is also
internally divisible.
   Section 2113(d) thus incorporates each subsection’s ele-
ments. It can be violated by committing one predicate crime
from a menu of options set forth in § 2113(a) and (b). In other
words, those subsections’ elements nest within § 2113(d). We
have not yet decided whether such nested crimes are generally
divisible. But § 2113(d)’s structure suggests that it is.
    A statute containing a list is indivisible when it merely “of-
fer[s] illustrative examples.” Mathis, 

 (internal
quotation marks omitted). For instance, a statute may require
the “use of a deadly weapon” as an element. 

 (internal
quotation marks omitted). If that statute lists a “knife, gun, bat,
or similar weapon,” those are alternative factual means of sat-
isfying the one deadly-weapon element. 

   But § 2113(d) is different. It requires the defendant to com-
mit “any offense defined in subsections (a) and (b).” And those
subsections are themselves federal crimes divisible from each
other. They are not “real-world things” or “illustrative exam-
ples” like knives, guns, or bats. Mathis, 

.
So § 2113(d) seems divisible into at least two crimes: § 2113(d)
predicated on § 2113(a) and § 2113(d) predicated on § 2113(b).
    In response, Jordan argues that § 2113(d) is not worded dis-
junctively. It says “(a) and (b)” rather than “(a) or (b).” But this
distinction makes no difference. “[A]ny offense defined in sub-
sections (a) and (b) of this section” means the same thing as




                                 8
“any one of the offenses defined in either subsection (a) or sub-
section (b).” The word “any” covers the full range of offenses,
any one of which suffices. So the meaning of the sentence is
disjunctive.
    Jordan also notes that whether a defendant violates subsec-
tion (a) or (b), § 2113(d) prescribes the same maximum punish-
ment. True, “[i]f statutory alternatives carry different punish-
ments, then … they must be elements.” Mathis, 

. But the converse is not true: even if statutory alternatives
carry the same punishments, they may still be elements. So the
text suggests that § 2113(d) is divisible. Even so, “the statute
on its face” does not plainly “resolve the issue.” Id.
   B. The record confirms that § 2113(d) is divisible
    Because the text strongly suggests that § 2113(d) is divisi-
ble into crimes predicated on subsection (a) and those predi-
cated on subsection (b), we turn to the record to confirm that.
“[A]n indictment and jury instructions c[an] indicate, by refer-
encing one alternative item to the exclusion of all others, that
the statute contains a list of elements, each one of which goes
toward a separate crime.” Mathis, 

.
    The record resolves any lingering doubt: we can divide
§ 2113(d) into multiple crimes, each based on a different pred-
icate crime. Jordan’s § 2113(d) counts specify that he “did
knowingly and unlawfully take, by force and violence, and by
intimidation, … property and money, … and in doing so, did
knowingly and unlawfully assault and put in jeopardy the lives
of … persons by the use of a dangerous weapon.” App. 18–20,
22. The first half of that charge borrows language from the first
paragraph of § 2113(a), and the second half borrows from




                               9
§ 2113(d). It recites nothing from subsection (a)’s second par-
agraph or subsection (b). In other words, by referring to only
the first paragraph of § 2113(a), the indictment here treats
§ 2113(d) as divisible.
    Jordan’s plea colloquy does the same. There, the district
judge explained to him that the government would have to
prove force, violence, or intimidation beyond a reasonable
doubt. So the judge, like the indictment, treated subsection
(a)’s first paragraph as setting out separate, alternative ele-
ments of § 2113(d).
    Plus, our circuit’s model jury instructions reinforce divisi-
bility. Though model instructions are not binding law, they are
probative of trial practice. They list, as a stand-alone element,
“[t]hat (name) used (force and violence) (intimidation).”
Model Crim. Jury Instructions § 6.18.2113D (3d Cir. 2022).
Like the indictment and plea colloquy, this model instruction
treats § 2113(d) as divisible.
    The Supreme Court has warned that we may not find a stat-
ute divisible based on record materials unless those materials
“speak plainly.” Mathis, 

. Here, they do. Every
relevant document confirms that § 2113(d) is divisible based on
the predicate offense committed and charged.
   C. Precedent also favors divisibility
    What is more, we have held a similar federal nested statute
divisible. The Racketeer Influenced and Corrupt Organizations
Act (RICO) criminalizes “conduct[ing] … [an] enterprise’s af-
fairs through a pattern of racketeering activity or collection of
unlawful debt.” 

(c). RICO then defines




                               10
“racketeering” by listing many independent federal crimes as
predicate acts. See § 1961(a). RICO, we have held, is divisible:
the elements of these predicate acts are “alternative ‘elements’
that need to be proven beyond a reasonable doubt to sustain a
conviction.” United States v. Williams, 

 (3d
Cir. 2018) (quoting Mathis, 

). In support, we
explained that under the relevant model jury instruction, the
prosecution must prove the predicate acts beyond a reasonable
doubt. 

 at 333 n.42 (citing Model Crim. Jury Instructions
§ 6.18.1962C-6 (3d Cir. 2018), now § 6.18.1962C-7 & cmt. (3d
Cir. 2021)).
    Most of that reasoning applies here. Like § 1962(c),
§ 2113(d) is a federal nested crime that depends on committing
or trying to commit predicate crimes. In both cases, the predi-
cate crimes are defined in separate statutory subsections listing
independent crimes. And for both, our model jury instructions
treat the predicate crimes as independent elements that the
prosecution must prove.
    The minor differences between the two subsections make
no difference here. It does not matter that § 1962(c), unlike
§ 2113(d), uses “or.” Though they use different words, both
subsections are disjunctive. Nor does it matter that RICO’s
punishments can vary based on the predicate crime. § 1963(a).
The other similarities between the nested crimes outweigh
these small discrepancies. So just as Williams held § 1962(c)
divisible, we too hold § 2113(d) divisible.
   In response to Williams, Jordan cites two cases, but neither
applies. First, he notes our decision in Hillocks v. Attorney
General, 

 (3d Cir. 2019). Hillocks held that the




                               11
Pennsylvania crime of using a phone to commit a drug felony
is not divisible. 

 at 336–37, 344. That decision postdates
Williams yet never cites it because the parties never raised it.
But if Hillocks conflicts with Williams, our prior precedent in
Williams controls. Pardini v. Allegheny Intermediate Unit, 

 (3d Cir. 2008).
    Plus, Hillocks addressed the divisibility of a Pennsylvania
state statute whose model jury instructions do not require the
jury to find a single underlying felony beyond a reasonable
doubt. 934 F.3d at 342. By contrast, the model jury instructions
for this federal crime require the jury to find that “one and only
one underlying felony has occurred.” Id. at 343. So here, unlike
in Hillocks, the record clearly reveals the underlying crime
charged.
    Jordan also mentions another case about a Pennsylvania
terroristic-threats crime. United States v. Brown, 

 (3d Cir. 2014). But Pennsylvania charging documents and
plea forms do not necessarily specify the predicate crime that
the defendant threatened to commit. See United States v. Ortiz-
Gomez, 

, 684–85 (5th Cir. 2009). So in Brown,
neither the statute’s text nor a “peek at the record documents”
could reveal divisible elements of the state offense. Mathis,

 (brackets omitted). But here, both the statute
and the supporting documents do.
    Plus, looking at the record in such cases does not undermine
the default categorical approach. Because nested statutes like
§ 2113(d) are divisible into their predicates, we can look to the
record just to figure out which version of the crime the defend-
ant committed. By doing so, we do not invade the jury’s




                               12
province or weaken a defendant’s rights to fair notice in his
indictment and proof beyond a reasonable doubt for his con-
viction. See Mathis, 579 U.S. at 511–12. So this peek at the
facts does not trigger the fairness and constitutional concerns
that motivate the categorical approach. See Descamps v.
United States, 

, 267–71 (2013).
    Based on our analysis here and in Williams, we hold that,
as a rule, federal nested crimes that depend on alternative pred-
icate crimes are divisible. As counsel explained at argument,
the federal government’s standard practice is to charge the el-
ements of the specific predicate offense and require a unani-
mous jury verdict beyond a reasonable doubt on those ele-
ments. That is true for conspiracies, RICO charges, continuing
criminal enterprises, and the like. In each case, the government
must stick with proving the particular predicate crime charged;
it cannot vary from the indictment. So in such cases, the ele-
ments of the predicate crime charged become core elements of
the nested crime.
                               *****
     In short, the federal statutory text, record, and precedent all
tell us that § 2113(d) is divisible. So we apply the modified cat-
egorical approach, looking at the record to figure out “what
crime, with what elements,” Jordan committed. Mathis, 

. The record here speaks clearly: Jordan took money
from banks “by force and violence, and by intimidation” and
“in doing so,” he “assault[ed] and put in jeopardy the lives” of
bank employees. App. 18–20, 22. So his § 2113(d) crimes were
predicated only on the first paragraph of § 2113(a). And be-
cause the elements of that predicate crime are elements of his




                                13
crimes too, we must consider § 2113(a) in determining whether
Jordan’s armed bank robberies are crimes of violence.
       III. JORDAN’S ARMED BANK ROBBERIES ARE
                  CRIMES OF VIOLENCE
   A. Our precedent resolves the final step of the
      categorical approach
    Now that we have homed in on the version of § 2113(d) that
Jordan violated, our final step is to compare the elements of
that crime with those required for § 924(c). But our precedent
has already done so. Five years ago, we considered whether a
violation of § 2113(a)’s first paragraph—Jordan’s predicate
crime—is a crime of violence under the Sentencing Guidelines.
Applying the categorical approach, we held that it is. Wilson,

.
    In Wilson, we reasoned that “the least culpable conduct
covered by that statute is unarmed bank robbery by intimida-
tion.” 

. That conduct “clearly does involve the ‘threat-
ened use of physical force against the person of another.’” 

at 84–85 (quoting U.S.S.G. § 4B1.2(a)(1)). We also empha-
sized that “[b]y definition, [the first paragraph of] § 2113(a)
requires proof that a defendant knowingly engaged in an act
that would cause an ordinary bank teller to be intimidated and
turn over money that the defendant knew he had no right to
have.” Id. at 87. So it does not “criminalize[ ] negligent or reck-
less behavior.” Id.
   Wilson applies equally here. The definition of a crime of
violence in the Sentencing Guidelines is nearly identical to the
one in § 924(c)(3). Even though § 924(c)(3) adds the phrase “or




                                14
property,” that addition makes no difference. See Borden, 

. And because § 2113(a)’s first paragraph always
requires purposely or knowingly threatening to use force, this
version of § 2113(d) predicated on it does too. So Jordan’s
armed bank robberies are crimes of violence.
    Jordan claims that the Supreme Court in Borden abrogated
Wilson. Not so. Wilson’s holding (that unarmed bank robbery
requires purpose or knowledge) fits with Borden’s holding that
reckless crimes cannot be crimes of violence. Jordan overreads
Borden as creating a new understanding of mens rea. But it
does not. It just lists four criminal states of mind and explains
that a defendant “acts knowingly when he is aware that a result
is practically certain to follow from his conduct.” 141 S. Ct. at
1823–24 (brackets and internal quotation marks omitted; em-
phasis added). That fits with Wilson, where we explained that
a robber had to act “with the knowledge that those actions
would result in the taking of property by the use of force and
violence or by intimidation.” 

 (emphasis added).
So Wilson is still good law.
    As noted, we have already held that § 2113(d) is a crime of
violence under § 924(c)’s elements clause. Johnson, 

. Wilson buttresses that holding by requiring purpose or
knowledge for § 2113(d) violations predicated on § 2113(a)’s
first paragraph, as Borden requires. So Johnson’s holding sur-
vives Borden. The version of § 2113(d) that Jordan violated re-
mains a § 924(c) crime of violence.
   B. Our precedent forecloses Jordan’s final argument
   Jordan makes one last argument: He notes that § 2113(d)
criminalizes “put[ting] in jeopardy the life of any person,”




                               15
including the robber himself. So it does not require using force
“against the person or property of another,” as required by the
elements clause of § 924(c). In Johnson, we did not consider or
discuss this specific argument. So Jordan argues that we may
rule for him on that ground. But that is not how stare decisis
works.
    Johnson is a prior precedent of this Court. We must follow
it unless it can be distinguished, it is reversed en banc, or its
“holding [has been] undermined by a subsequent Supreme
Court case.” In re Cont’l Airlines, 

 (3d Cir.
1998) (internal quotation marks omitted).
     Yet none of those exceptions applies: Johnson answered
the precise question here. We have not reversed it en banc. And
Jordan’s argument could have been made in Johnson and does
not rest on an intervening Supreme Court case. So Johnson is
still good law, and the version of § 2113(d) predicated on
§ 2113(a)’s first paragraph is still a crime of violence.
                             *****
   Common sense wins this time: armed bank robbery is a
crime of violence. The statutory text, the record, and our prec-
edent show that § 2113(d) is a divisible statute. Whenever a
federal crime is predicated on committing, attempting to com-
mit, or conspiring to commit another crime, the elements of the
particular predicate crime at issue are elements of the nested
crime too. And an armed bank robbery (a § 2113(d) violation
predicated on § 2113(a)’s first paragraph) always involves pur-
posely or knowingly using, attempting to use, or threatening to
use force. So even after Borden, this version of § 2113(d) is a
crime of violence under § 924(c). We will thus affirm.




                               16