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United States v. Campbell

United States Court of Appeals, Seventh Circuit

July 31, 2017

United States of America, Plaintiff-Appellee,
v.
Jerry Campbell, Defendant-Appellant.

          Argued May 16, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-cr-00398 - Edmond E. Chang, Judge.

          Before Easterbrook, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         The issue in this appeal is whether federal bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) is a crime of violence for purposes of the pre-2016 federal Sentencing Guideline provision for career offenders in U.S.S.G. § 4B1.2(a). We have held that federal bank robbery by intimidation satisfies the elements clause of the statutory definition of a crime of violence under 18 U.S.C. § 924(c). United States v. Williams, __F.3d__, No. 16-3373 (7th Cir. July 27, 2017); United States v. Armour, 840 F.3d 904 (7th Cir. 2016). In this appeal, we hold that federal bank robbery by intimidation is also a crime of violence for the purposes of applying the pre-2016 versions of the career offender Guideline and affirm the decision of the district court.[1]

         Today, plaintiff Jerry Campbell is 69 years old. He has been diagnosed with schizoaffective and post-traumatic stress disorders and has a long history of mental health treatment. Unfortunately, Campbell also has a long and rather unsuccessful history of committing robberies.

         In May 2012, Campbell was 64 years old and residing in the Salvation Army Residential Reentry Center in Chicago, having been released to the halfway house to complete his sentence for a 2005 conviction for entering a bank with intent to commit bank robbery. He was given a pass to Cook County Hospital for a psychological examination on May 24, 2012, and he left the hospital without a doctor's authorization on May 27, 2012. Later that day, he entered a grocery store that had a branch bank inside. He withdrew $35, which was the balance of his checking account. He then walked through the grocery portion of the store, gathering a pair of sunglasses, a turquoise and purple squirt gun with an orange tip, and a bottle of tequila. He entered the restroom, turned his shirt inside out, put on the sunglasses, and drank the liquor. He then left the restroom and approached the bank tellers at the bank. Pointing the squirt gun, he said, "Let's make this easy, " and "Hey big boy, I want both drawers from you." The tellers filled his shopping bag with $1495 in currency.

         Campbell left the store but was promptly arrested in the parking lot. He had some of the money on his person. The Chicago police officers who caught him found more cash under a car in the parking lot. He was indicted on a single count of bank robbery by intimidation in violation of 18 U.S.C. § 2113(a).

         Soon after the indictment, Campbell was found mentally incompetent by the district court and hospitalized for two years to restore competency. Then, in July 2015, with competency restored, Campbell entered a plea agreement in which he agreed to plead guilty to bank robbery by intimidation and agreed that he would be a career offender under U.S.S.G. § 4Bl.l(a) because bank robbery by intimidation is a crime of violence. In anticipation of sentencing, however, his lawyer filed a sentencing memorandum arguing that the career offender Guideline should not apply because the crime of violence definition in U.S.S.G. § 4B1.2(a)(1) requires specific intent and bank robbery by intimidation is a general intent offense. The district court disagreed, finding that bank robbery by intimidation is a crime of violence under the elements clause of § 4B1.2(a) even though it is also a crime of general intent. The judge calculated the guideline range to be 151-188 months. Without the career offender designation, the sentencing range would have been 57-71 months. Judge Chang carefully considered the mental health and age of Campbell and imposed a below-guideline sentence of 100 months in prison.

         Campbell now appeals the district court decision to treat him as a career offender under the Sentencing Guidelines. He argues that bank robbery by intimidation does not require the intentional mens rea necessary for a crime of violence to count under the elements clause toward application of the career offender Guideline. We review de novo the district court's decision as to whether bank robbery qualifies as a crime of violence under § 4B1.2(a)(1). United States v. Edwards, 836 F.3d 831, 834 (7th Cir. 2016). For the following reasons, we reaffirm our prior holdings that bank robbery by intimidation is a crime of violence, so we affirm the district court's application of the career offender Guideline.

         The elements clause of § 4B1.2(a)(1) reads:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another ... .[2]

         To determine if an offense is a crime of violence under the elements clause, we apply the categorical approach. Edwards, 836 F.3d at 833; United States v. Woods,576 F.3d 400, 403-04 (7th Cir. 2009); see generally Descamps v. United States, 570 U.S.__, __, 133 S.Ct. 2276, 2283 (2013) (describing categorical approach). Courts look only to the statutory elements of the crime, without paying attention to the specific facts of the case, such as Campbell's mental health or his use of a colorful plastic squirt gun (however relevant those circumstances were for sentencing). Descamps, 570 U.S. at__, 133 S.Ct. at 2283, citing Taylor v. United ...


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