Pannell v. United States

21-2849
Pannell v. United States
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2022
No. 21-2849
DERREK PANNELL,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
On Appeal from the United States District Court
for the Eastern District of New York
A RGUED: MARCH 9, 2023
D ECIDED: A UGUST 28, 2024
Before: R AGGI, WESLEY , and MENASHI, Circuit Judges.
After Derrek Pannell robbed a United States Post Office in
November 2005, he was convicted on three counts: conspiracy to
commit a robbery of a United States Post Office in violation of
18 U.S.C. § 371; aggravated robbery of a United States Post Office in
violation of 18 U.S.C. § 2114(a); and brandishing a firearm in

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connection with a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Pannell sought habeas relief under 28 U.S.C. § 2255,
arguing that aggravated postal robbery does not qualify as a crime of
violence for the purposes of § 924(c). Because the base offense of
§ 2114(a) robbery in this case qualifies as a crime of violence,
aggravated § 2114(a) robbery necessarily does. We affirm the order of
the district court denying relief under § 2255.
K YLE S INGHAL (Shon Hopwood, on the brief), Hopwood
& Singhal PLLC, Washington, DC, for Petitioner-
Appellant.
G ABRIEL PARK, Assistant United States Attorney (Amy
Busa, Assistant United States Attorney, on the brief), for
Breon Peace, United States Attorney for the Eastern
District of New York, Brooklyn, NY, for Respondent-
Appellee.
MENASHI, Circuit Judge:
In November 2005, Derek Pannell and two accomplices robbed
a United States Post Office in Brooklyn, New York. Following a jury
trial in September 2007, Pannell was convicted on three counts:
conspiracy to commit a robbery of a United States Post Office in
violation of 18 U.S.C. § 371; aggravated robbery of a United States
Post Office in violation of 18 U.S.C. § 2114(a); and brandishing a
firearm in connection with a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii).
Following an unsuccessful direct appeal, Pannell sought habeas
relief in successive motions under 28 U.S.C. § 2255. In the third such

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motion, consolidated with the second, Pannell argued that his
conviction for aggravated postal robbery did not qualify as a
predicate crime of violence for the purposes of 18 U.S.C. § 924(c). In
May 2021, our court determined that Pannell had made a prima facie
showing that his proposed successive § 2255 motion satisfied the
requirements of 28 U.S.C. § 2255(h)(2). See Motion Order, Pannell v.
United States, No. 20-3034 (2d Cir. May 3, 2021), ECF No. 43. We
transferred the motion to the district court, instructing it to determine
“whether substantive § 2114 postal robbery is a ‘crime of violence’”
for the purposes of § 924(c). Id. at 2. In an opinion and order dated
August 26, 2021, the district court decided that it was and,
accordingly, denied the successive § 2255 motions. See Pannell v.
United States, No. 06-CR-578, 2021 WL 3782729, at *4 (E.D.N.Y. Aug.
26, 2021).
On appeal, Pannell argues that his § 924(c) conviction was
invalid for two reasons. First, he contends that aggravated postal
robbery under § 2114(a) is not a crime of violence when guilt is based
on a Pinkerton instruction, which permits a jury to convict a defendant
of substantive offenses committed by his co-conspirators. See
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). Second, he
contends that aggravated postal robbery is not otherwise a crime of
violence because it does not have as an element the use, attempted
use, or threatened use of physical force.
Neither argument is persuasive. First, we have explained that
“[u]nder a Pinkerton theory the defendant is convicted of the
substantive offense—not of conspiring to commit the offense—so he
has committed a crime of violence if the substantive offense is a crime
of violence.” Gomez v. United States, 87 F.4th 100, 104 (2d Cir. 2023).
For that reason, a Pinkerton instruction does not affect the status of a
predicate offense as a crime of violence. Second, we conclude that the

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base offense of § 2114(a) robbery is a crime of violence, so Pannell’s
conviction for the aggravated version of that offense is necessarily a
crime of violence as well. We affirm the order of the district court
denying § 2255 relief.
BACKGROUND
I
On November 15, 2005, Derek Pannell and others robbed at
gunpoint the James E. Davis Post Office in Brooklyn, New York. The
robbers entered the Post Office through the employee entrance on the
loading dock, which was secured by a mechanical keypad lock.
Pannell knew the code to the lock because he was an employee of the
Post Office at the time of the robbery.
Pannell and his accomplices encountered six employees inside
the Post Office, five of whom they rear-cuffed with plastic zip-ties and
ordered to lie face down on the floor. While Pannell and one
accomplice held those employees at gunpoint, a third accomplice
placed a gun at another employee’s head, demanding that he unlock
the safe that contained over $65,000. After obtaining the money from
the safe, the three robbers fled the building and assaulted a Post Office
supervisor whom they encountered outside.
II
On September 25, 2007, after a jury trial, Pannell was found
guilty on three counts: (1) conspiracy to commit robbery of a United
States Post Office in violation of 18 U.S.C. § 371 (“Count One”);
(2) aggravated robbery of a United States Post Office in violation of
18 U.S.C. § 2114(a) (“Count Two”); and (3) using a firearm in
connection with a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (“Count Three”). According to the verdict sheet, the

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jury determined that the aggravated robbery charged in Count Two
was the only underlying crime supporting the conviction on Count
Three.
The district court sentenced Pannell to concurrent prison terms
of five years on Count One and eighteen years on Count Two, and to
a mandatory consecutive prison term of seven years on Count Three.
This court affirmed the conviction and sentence on direct appeal. See
United States v. Pannell, 321 F. App’x 51, 55 (2d Cir. 2009).
Pannell later filed his first motion for habeas relief under
28 U.S.C. § 2255, claiming ineffective assistance of counsel. The
district court denied that motion, see Pannell v. United States, No.
10-CV-05166, 2014 WL 1478847, at *4 (E.D.N.Y. Apr. 15, 2014), and this
court denied a certificate of appealability and dismissed the appeal
because Pannell had not made a “substantial showing of the denial of
a constitutional right,” Motion Order, Pannell v. United States, No. 14-
4223 (2d Cir. Apr. 15, 2015), ECF No. 41 (quoting 28 U.S.C. § 2253(c)).
III
In June 2016, Pannell filed a successive motion under 28 U.S.C.
§ 2255, this time seeking relief following the Supreme Court’s
decision in Johnson v. United States, 576 U.S. 591 (2015), which held
that a portion of the definition of “violent felony” in the Armed
Career Criminal Act (“ACCA”) was unconstitutionally vague. The
Court invalidated the ACCA’s “residual clause,” which defines
“violent felony” to include a crime that “involves conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The Court left in place the ACCA’s
“elements clause,” which defines “violent felony” to include a crime
that “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. § 924(e)(2)(B)(i); see

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Johnson, 576 U.S. at 606. The two clauses defining “violent felony” in
the ACCA parallel the two clauses defining “crime of violence” in
§ 924(c). 1 Pannell claimed that his conviction under 18 U.S.C.
§ 924(c)(3) could no longer be considered valid because that statute’s
residual clause was indistinguishable from the ACCA’s residual
clause that was declared unconstitutional in Johnson, and neither
Count One nor Count Two qualified as a “crime of violence” under
the elements clause of § 924(c)(3). See App’x 66.
Following Johnson, our court held that robbery under 18 U.S.C.
§ 1951(b)(1)—that is, “Hobbs Act robbery”—and conspiracy to
commit Hobbs Act robbery each qualified as a “crime of violence”
under § 924(c). See United States v. Hill, 890 F.3d 51, 59 (2d Cir. 2018);
United States v. Barrett (Barrett I), 903 F.3d 166, 177 (2d Cir. 2018), rev’d
in relevant part by United States v. Barrett (Barrett II), 937 F.3d 126 (2d
Cir. 2019). The Supreme Court, however, subsequently decided
United States v. Davis, 588 U.S. 445 (2019), which invalidated the
residual clause of § 924(c) as unconstitutionally vague. After Davis,
we recognized that conspiracy to commit Hobbs Act robbery could
no longer qualify as a crime of violence under § 924(c). See Barrett II,
937 F.3d at 127.
In light of these decisions, Pannell filed supplemental briefing
on his pending § 2255 motion. Pannell then filed another § 2255
motion, pro se, dated June 18, 2020. He sought permission from our
court to file that successive motion because he believed that his
1 Under § 924(c), a “crime of violence” is an offense that is a felony and
either “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another” or “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 committing the offense.”
18 U.S.C. § 924(c)(3).

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counsel had not adequately argued the second motion; we forwarded
the third motion to the district court under Federal Rule of Appellate
Procedure 4(d). The district court consolidated both the counseled
second motion and the pro se third motion, determined that it lacked
jurisdiction to adjudicate the motions, and transferred the motions to
this court.
On May 3, 2021, we determined that Pannell had made a prima
facie showing under 28 U.S.C. § 2244 that his proposed consolidated
second and third § 2255 motions satisfied the requirements of 28
U.S.C. § 2255(h)(2). That is, both motions addressed a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable. We granted
leave to file and transferred both motions back to the district court
with instructions to “determine in the first instance, according to the
modified categorical approach, whether substantive § 2114 postal
robbery is a ‘crime of violence’” under § 924(c). Motion Order, Pannell
v. United States, No. 20-3034 (2d Cir. May 3, 2021), ECF No. 43 (citation
omitted).
On remand, the district court considered both motions, denied
relief, and denied a certificate of appealability. The district court
concluded that both the base offense of postal robbery and the
aggravated offense of “armed postal robbery which placed the
victim’s life in jeopardy by the use of a dangerous weapon” qualified
as crimes of violence. Pannell, 2021 WL 3782729, at *4. The district
court also rejected Pannell’s argument that the jury instruction on
Count Two, which allowed a conviction based on a Pinkerton theory,
meant that he was not convicted of a crime of violence. See id. at *6.

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DISCUSSION
Pannell advances two arguments on appeal. First, he argues
that aggravated § 2114(a) robbery cannot qualify as a categorical
crime of violence under the elements clause of § 924(c) when liability
might have been based on a Pinkerton theory. Second, he argues that,
even absent a Pinkerton theory, aggravated § 2114(a) robbery does not
qualify as a categorical crime of violence because committing the
offense does not require the actual, attempted, or threatened use of
force. We review de novo the legal conclusions underlying the denial
of Pannell’s § 2255 motions. See Rivera v. United States, 716 F.3d 685,
687 (2d Cir. 2013).
I
Our prior decision in Gomez resolves Pannell’s first argument.
In that case, we concluded that “a conviction for intentional murder
under New York law, even when the conviction is based on a
Pinkerton theory, is a categorical crime of violence that can support a
§ 924(c) conviction.” Gomez, 87 F.4th at 104. We explained that
“[u]nder a Pinkerton theory the defendant is convicted of the
substantive offense—not of conspiring to commit the offense—so he
has committed a crime of violence if the substantive offense is a crime
of violence.” Id. Thus, “[b]ecause Pinkerton does not transform a
substantive offense into a conspiracy offense, it does not implicate
Davis.” Id. That holding applies equally in this case, so we are bound
to reject Pannell’s first argument.
II
Pannell’s second argument also fails. Aggravated § 2114(a)
robbery qualifies as a categorical crime of violence that may serve as
a predicate for a § 924(c) conviction.

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A
Section 924(c) criminalizes the use or carrying of a firearm
“during and in relation to any crime of violence ... for which the
[defendant] may be prosecuted in a court of the United States.”
18 U.S.C. § 924(c)(1)(A). A “crime of violence” is a felony that “has as
an element the use, attempted use, or threatened use of physical force
against the person or property of another.” Id. § 924(c)(3)(A).
To determine whether a predicate offense qualifies as a crime
of violence, we “employ what has come to be known as the
‘categorical approach.’” Hill, 890 F.3d at 55 (quoting Taylor v. United
States, 495 U.S. 575, 600 (1990)). “[T]he categorical approach requires
us to consider the minimum conduct necessary for a conviction of the
predicate offense … and then to consider whether such conduct
amounts to a crime of violence under § 924(c)(3)(A).” Id. at 56. In other
words, we must “‘look only to the statutory definitions’—i.e., the
elements—of [the] defendant’s prior offenses, and not ‘to the
particular facts underlying those convictions.’” Descamps v. United
States, 570 U.S. 254, 261 (2013) (quoting Taylor, 495 U.S. at 600).
Some statutes “have a more complicated (sometimes called
‘divisible’) structure, making the comparison of elements harder.”
Mathis v. United States, 579 U.S. 500, 505 (2016) (quoting Descamps, 570
U.S. at 260). For example, “[a] single statute may list elements in the
alternative, and thereby define multiple crimes.” Id. A statute will be
considered divisible when it “lists multiple elements disjunctively”
but not when it simply “enumerates various factual means of a
committing a single element.” Id. at 506. “If the statute of offense is
‘divisible’” in that “it defines multiple separate crimes,” we will
“apply the ‘modified categorical’ approach and look at ‘a limited class
of documents’ from the record of conviction to ‘determine what

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crime, with what elements, a defendant was convicted of.’” Gray v.
United States, 980 F.3d 264, 266 (2d Cir. 2020) (quoting Mathis, 579 U.S.
at 505-06). Such documents include “the indictment, jury instructions,
or plea agreement and colloquy.” Mathis, 579 U.S. at 505.
B
The predicate statute in this case provides as follows:
A person who assaults any person having lawful charge,
control, or custody of any mail matter or of any money
or other property of the United States, with intent to rob,
steal, or purloin such mail matter, money, or other
property of the United States, or robs or attempts to rob
any such person of mail matter, or of any money, or other
property of the United States, shall, for the first offense,
be imprisoned not more than ten years; and if in effecting
or attempting to effect such robbery he wounds the
person having custody of such mail, money, or other
property of the United States, or puts his life in jeopardy
by the use of a dangerous weapon, or for a subsequent
offense, shall be imprisoned not more than twenty-five
years.
18 U.S.C. § 2114(a). As both parties recognize, § 2114(a) is divisible
into multiple distinct offenses. First, it is divisible between a base
offense, which carries a punishment of up to ten years of
imprisonment, and an aggravated offense, which carries a
punishment of up to twenty-five years of imprisonment. Second, the
base offense is itself divisible into three offenses: (1) assault with an
intent to rob, steal, or purloin; (2) attempted robbery; and
(3) completed robbery. Third, the aggravated offense requires the
government to prove one of the following additional elements: (1) the
defendant “wounds” the victim, (2) the defendant puts the victim’s
life in jeopardy by the use of a dangerous weapon, or (3) a second or

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subsequent conviction for a base § 2114(a) offense. These offenses are
distinct because the statute lists elements in the alternative and
thereby defines multiple crimes. See Mathis, 579 U.S. at 505.
To decide which § 2114(a) offense Pannell committed, we
consider the indictment and the jury instructions. See Mathis, 579 U.S.
at 505-06 (explaining that under “the ‘modified categorical approach’
… a sentencing court looks 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”). For Count Two, the indictment charged that
Pannell “did knowingly and intentionally assault and rob persons
having lawful charge, custody and control of property of the United
States … and put such persons’ lives in jeopardy by the use of a
dangerous weapon.” App’x 2-3 (emphasis added). The district court
instructed the jury as follows:
To find the defendant guilty of the crime charged in
Count Two, you must find that the government has
proven the following four elements beyond a reasonable
doubt:
First, that the defendant took money or other property of the
United States from the person or presence of another
having lawful charge, control and custody of the money
or property;
Second, that the taking was done by “robbery,” that is, by
force, violence, or intimidation;
Third, that in carrying out the robbery, the defendant put
the life of the person having control of the money in jeopardy
by use of a dangerous weapon; and
Fourth, that the defendant acted knowingly and
intentionally.

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Id. at 23 (emphasis added). The indictment and the jury instructions
indicate that Pannell was convicted of the aggravated § 2114(a)
offense that combines the third type of base offense—completed
robbery—with the aggravating element of putting “life in jeopardy
by the use of a dangerous weapon.” 18 U.S.C. § 2114(a).
We begin the analysis under the categorical approach by
examining the base offense of completed § 2114(a) robbery. We must
identify “the minimum criminal conduct necessary for conviction” of
that offense and decide whether that conduct qualifies as a “crime of
violence.” United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006).
Congress “simply punished ‘robbery’” in § 2114(a), “thereby leaving
the definition of the[] term[] to the common law.” Carter v. United
States, 530 U.S. 255, 267 n.5 (2000). In Stokeling v. United States, 586 U.S.
73 (2019), the Supreme Court held that common-law robbery qualifies
as a crime of violence under the ACCA’s elements clause. It does so
because the elements clause of the definition of “violent felony” under
the ACCA, 18 U.S.C. § 924(e), “encompasses robbery offenses that
require the criminal to overcome the victim’s resistance,” Stokeling,
586 U.S. at 77. The Court noted that “the elements of the common-law
crime of robbery” have “long required force or violence” because
“robbery that must overpower a victim’s will—even a feeble or weak-
willed victim—necessarily involves a physical confrontation and
struggle.” Id. at 77-84. Such a confrontation “need not cause pain or
injury or even be prolonged” to entail the use of physical force. Id. at
83.
As noted above, the elements clause defining “violent felony”
in the ACCA parallels the elements clause defining “crime of

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violence” in § 924(c).2 Given those “similarities,” we have “looked to
cases analyzing [the] ACCA’s elements clause to interpret the
similarly worded [elements] clause presented in [§ ]924(c)(3)(A).”
United States v. Evans, 924 F.3d 21, 29 n.4 (2d Cir. 2019) (internal
quotation marks and alteration omitted). Following Stokeling and
Carter, we conclude that the base offense of completed § 2114(a)
robbery qualifies as a crime of violence under § 924(c) because it
“mirror[s] the elements of the common-law crime of robbery,”
Stokeling, 586 U.S. at 77, and therefore “has as an element the use,
attempted use, or threatened use of physical force against the person
or property of another,” 18 U.S.C. § 924(c)(3)(A).3 Because the base
offense of completed § 2114(a) robbery qualifies as a categorical crime
of violence, an aggravated offense that incorporates the elements of
that base offense necessarily qualifies too.
C
In this appeal, Pannell focuses on the aggravated rather than
the base offense of § 2114(a) robbery. He argues that aggravated
§ 2114(a) robbery is not a crime of violence because the “life in
jeopardy by the use of a dangerous weapon” clause “requires the
government to prove only that in attempting an assault or robbery
upon a postal worker (i.e., in taking a substantial step towards that
crime), the defendant’s use of a dangerous weapon put the worker’s
2 Compare 18 U.S.C. § 924(e)(2)(B)(i) (“has as an element the use, attempted
use, or threatened use of physical force against the person of another”), with
18 U.S.C. § 924(c)(3)(A) (“has as an element the use, attempted use, or
threatened use of physical force against the person or property of another”).
3 The Ninth Circuit has similarly concluded that “[t]he term ‘rob’ in
§ 2114(a) means common-law robbery,” Gray v. United States, 830 F. App’x
210, 211 (9th Cir. 2020) (citing Carter, 530 U.S. at 267 n.5), “and common-law
robbery is a crime of violence,” id. (citing Stokeling, 586 U.S. at 86).

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life in jeopardy” and not that physical force was necessarily used,
attempted, or threatened. Appellant’s Br. 38-39. The defendant might
have had a dangerous weapon on his person that created perilous
conditions, Pannell suggests, without the defendant drawing the
weapon to threaten or to employ force. See id. at 39-40. Other circuits
have rejected the view that this aggravated variant of the offense does
not require at least the threatened use of physical force.4 But we need
not resolve the issue here. Because Pannell’s crime of aggravated
§ 2114(a) robbery incorporates the elements of the base offense of
completed § 2114(a) robbery—and the elements of that base offense
necessarily entail the use, attempted use, or threatened use of physical
force—he was convicted of a categorical crime of violence that may
serve as a predicate for his § 924(c) conviction.
CONCLUSION
Because the base offense of completed robbery under 18 U.S.C.
§ 2114(a)—regardless of whether the conviction was based on a
Pinkerton theory of liability—qualifies as a categorical crime of
violence, Pannell’s § 924(c) conviction was supported by a valid
predicate offense. We affirm the order of the district court denying
Pannell’s motions under § 2255.
4 See United States v. Buck, 23 F.4th 919, 927-28 (9th Cir. 2022); United States
v. Bryant, 949 F.3d 168, 180 (4th Cir. 2020); Knight v. United States, 936 F.3d
495, 500 (6th Cir. 2019); United States v. Enoch, 865 F.3d 575, 581 (7th Cir.
2017); see also In re Watt, 829 F.3d 1287, 1289 (11th Cir. 2016).

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