United States of America v. Ronald Dewitt Vines

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2843
_______________
UNITED STATES OF AMERICA
v.
RONALD DEWITT VINES,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:18-cr-00013-001)
District Judge: Honorable Paul S. Diamond
_______________
Argued: December 11, 2024
Before: BIBAS, CHUNG, and ROTH, Circuit Judges
(Filed: April 21, 2025)
Robert A. Zauzmer [ARGUED]
U NITED STATES A TTORNEY ’ S O FFICE
615 Chestnut Street

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Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Justin Aimonetti [ARGUED, WITHDREW APPEARANCE]
D ECHERT
1900 K Street NW
Washington, DC 20006
Michael H. McGinley
Shane Sanderson
D ECHERT
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Julia Shea
D ECHERT
1095 Avenue of the Americas
3 Bryant Park
New York, NY 10036
Counsel for Appellant

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_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Once in a blue moon, the categorical approach ends up in
the right place. Ronald Vines and his sons tried to rob a bank
at gunpoint. He pleaded guilty to both attempted armed bank
robbery and brandishing a gun while committing a crime of
violence. Now he challenges his second conviction, insisting
that attempted armed bank robbery is not a crime of violence
because someone can attempt an armed bank robbery without
using force, violence, or intimidation.
He is wrong. Even without a weapon, attempted bank rob-
bery under 18 U.S.C. § 2113(a)’s first paragraph is a crime of
violence because it requires making the attempt “by force and
violence, or by intimidation.” And adding a gun makes the rob-
bery no less violent. § 2113(d). Common sense tells us that, but
so does the categorical approach. This is the rare night when
the blue moon has risen. So the District Court rightly upheld
Vines’s conviction and sentence.
I. VINES TRIED TO R OB A BANK AT GUNPOINT
One morning, Vines and his two adult sons left the house
on a mission. They got a loaded rifle, a loaded revolver, a face
mask, body armor, zip ties, a police scanner, handheld radios,
and a tarp and hit the road. The road led to the bank, where they
hung up the tarp outside, hid behind it, and watched the bank
tellers arrive. While Vines and one of his sons waited behind

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the tarp, the other son put on the face mask, grabbed the re-
volver, and snuck up on a teller. He forced her inside at gun-
point but was spotted by another employee who screamed and
fled, drawing attention. Vines signaled for his son to flee, so
they hopped back into the car and hit the road again. This time,
their trip was cut short by police.
Vines pleaded guilty to two federal crimes. The first was
attempted armed bank robbery under 18 U.S.C. §§ 2113(d) &
2 (aiding and abetting). That violation was based on attempting
to violate § 2113(a), specifically the first clause of the first par-
agraph, which criminalizes bank robbery. The second crime
piggybacked on the first: brandishing a gun while committing
a crime of violence (the attempted armed bank robbery), in viola-
tion of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2 (aiding and abetting).
Because Vines’s lawyer neither objected to his § 924(c)
charge nor appealed, Vines had to challenge his conviction and
sentence collaterally. See 28 U.S.C. § 2255. He claimed that his
conviction for attempted armed bank robbery was not a crime
of violence under § 924(c). The District Court denied that motion
but granted a certificate of appealability. On appeal, Vines got
permission also to argue that his plea lawyer was ineffective
for not asserting that attempted armed bank robbery is not a
crime of violence. Both claims turn on pure legal issues, so we
review them de novo. United States v. Jenkins, 68 F.4th 148,
151 (3d Cir. 2023).

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II. WE A PPLY THE CATEGORICAL A PPROACH
TO § 2113(d) AND THE R OBBERY CLAUSE
OF THE F IRST P ARAGRAPH OF § 2113(a)
To figure out if Vines’s § 2113(d) conviction was a predi-
cate crime of violence under § 924(c), we use the much-maligned
categorical approach. United States v. Jordan, 96 F.4th 584,
589 (3d Cir. 2024). That approach forbids us to consider what
Vines actually did. Instead, it forces us to imagine the least vio-
lent conduct that a hypothetical defendant might have done to
be convicted of this crime. Moncrieffe v. Holder, 569 U.S. 184,
191 (2013); Mathis v. United States, 579 U.S. 500, 504 (2016).
Here, that means concocting the least culpable violation of
§ 2113(d) and asking whether it “match[es] the elements of” a
crime of violence as defined in § 924(c)(3)(A). Mathis, 579
U.S. at 504.
Before we get to that matching, we must first figure out the
elements of § 2113(d). Statutes often are divisible: They “list
elements in the alternative, and thereby define multiple
crimes.” Mathis, 579 U.S. at 505. But we can separate out these
crimes and focus on only the elements that were “integral to
the defendant’s conviction.” Id.
We start with Vines’s conviction for attempted armed bank
robbery. Section 2113(d) applies to:
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.

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So a conviction under § 2113(d) can be based on either (a)
or (b) and “incorporates each subsection’s elements.” Jordan,
96 F.4th at 591. Subsections (a) and (b) apply to different kinds
of bank theft: (a) covers robbery, extortion, and burglary, while
(b) covers larceny. We have already held that these subsections
are divisible from each other. Id. at 590. And Vines pleaded
guilty to violating subsection (a), so we can focus just on that
subsection. The subsection has two paragraphs: the first cover-
ing robbery and extortion; the second, burglary. We have al-
ready held that the first paragraph is divisible from the second,
and Vines pleaded guilty to violating the first. Id. So we can
focus on that paragraph alone.
But now we must dive a level deeper. Subsection (a)’s first
paragraph contains two separate clauses: one criminalizes tak-
ing a bank’s property (or attempting to take it) “by force and
violence, or by intimidation”; the other bars “obtain[ing] or
attempt[ing] to obtain” a bank’s property “by extortion.”
§ 2113(a). We ask whether these clauses are divisible or must
be analyzed together. We hold that they are divisible.
A person violates the first paragraph of § 2113(a) if he:
by force and violence, or by intimidation, takes, or attempts
to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or
any other thing of value belonging to, or in the care, cus-
tody, control, management, or possession of, any bank,
credit union, or any savings and loan association.
18 U.S.C. § 2113(a) (first paragraph).

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Here is that paragraph with each clause split out:
[First clause: bank robbery] by force and violence, or
by intimidation, takes, or attempts to take, from the per-
son or presence of another,
or
[Second clause: bank extortion] obtains or attempts to
obtain by extortion [various types of bank property, like
its money].
Id. (line breaks added).
Almost all our sister circuits that have addressed the ques-
tion agree that these two clauses set out two separate, divisible
crimes: bank robbery and bank extortion. King v. United
States, 965 F.3d 60, 69 (1st Cir. 2020); United States v. Evans,
924 F.3d 21, 28 (2d Cir. 2019); United States v. Watson, 881
F.3d 782, 786 (9th Cir. 2018); United States v. Armstrong, 122
F.4th 1278, 1286 (11th Cir. 2024). Contra United States v. Bur-
well, 122 F.4th 984, 986 (D.C. Cir. 2024).
That near-consensus is sound. The first clause applies to
someone who uses force, violence, or intimidation to take
something: in other words, robbery. 18 U.S.C. § 2113(a); see 4
William Blackstone, Commentaries *241–42. And the second
clause explicitly requires extortion. Those distinct concepts
have distinct requirements. Robbery traditionally meant taking
something from someone against her will. See id.; 1 Matthew
Hale, The History of the Pleas of the Crown *532. By contrast,
extortion traditionally meant taking someone else’s property
with the victim’s consent but inducing that consent wrongfully.
See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403

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(2003); United States v. Harris, 916 F.3d 948, 954–55 (11th
Cir. 2019). That explains why the first clause requires
“tak[ing], or attempt[ing] to take” something, while the second
clause requires only “obtain[ing], or attempt[ing] to obtain” it.
§ 2113(a).
Now turn back to the crime that Vines was charged with. A
conviction for attempted armed bank robbery under § 2113(d)
requires proof of both (1) the elements of attempted bank rob-
bery under § 2113(a)’s paragraph one, clause one, and (2) the
elements of attempted armed bank robbery under § 2113(d). If
either provision requires force or threatened force, then Vines’s
conviction was for a crime of violence and satisfies § 924(c).
United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018); Jordan,
96 F.4th at 594. As we will explain, both are crimes of violence.
That is where we part ways with the dissent. Although our
dissenting colleague would find that § 2113(a) controls the def-
inition of completed armed bank robbery, the dissent would by-
pass § 2113(a) when defining attempts. The dissent would in-
stead find that there is a separate standalone crime of attempted
armed bank robbery under § 2113(d) where the meaning of at-
tempt is given content by the common law, rather than
§ 2113(a). But the dissent does not explain why we would ap-
ply § 2113(a) only in part (that is, only to completed crimes)
when analyzing crimes set forth in § 2113(d). There is no such
thing as a freestanding conviction for attempted bank robbery
under § 2113(d); it must also satisfy the elements of § 2113(a)
that we already have held are “incorporate[d]” into it. Id. at
591. If a conviction under § 2113(d) must incorporate elements
that make it a crime of violence, it defies common sense not to
call it one.

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III. A TTEMPTED A RMED BANK R OBBERY
I S A CRIME OF V IOLENCE
A. Attempted bank robbery under § 2113(a) is a crime
of violence
1. Attempted bank robbery requires force, violence, or
intimidation. Like almost all our sister circuits, we have held
that completed bank robbery under § 2113(a) is a crime of vio-
lence. Wilson, 880 F.3d at 88. But see Burwell, 122 F.4th at
987. But we have never addressed whether attempted bank rob-
bery is, and our sister circuits are divided. Compare Collier v.
United States, 989 F.3d 212, 221 (2d Cir. 2021) (holding that
attempted bank robbery requires force or intimidation), United
States v. Bellew, 369 F.3d 450, 454 (5th Cir. 2004) (same), and
United States v. Thornton, 539 F.3d 741, 747 (7th Cir. 2008)
(same), with United States v. McFadden, 739 F.2d 149, 151–
52 (4th Cir. 1984) (holding that attempted bank robbery does
not require force or intimidation), United States v. Wesley, 417
F.3d 612, 618 (6th Cir. 2005) (same), and United States v.
Moore, 921 F.2d 207, 209 (9th Cir. 1990) (same).
This disagreement stems from a seeming ambiguity in
§ 2113(a). Recall that the first clause of the first paragraph
applies to:
Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence
of another [property of a bank].
18 U.S.C. § 2113(a).
All courts agree that the verb “takes” is qualified by the
adverbial phrase “by force and violence, or by intimidation”

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that comes right before it. The supposed ambiguity is whether
that same adverbial phrase also modifies “attempts to take.” If
it does, then the attempt must be carried out “by force and vio-
lence, or by intimidation.” We hold that this adverbial phrase
does modify both verbs. So even for an attempt, the govern-
ment must prove force, violence, or intimidation.
On close inspection, the ambiguity evaporates. We start and
end with the text, proceeding left to right. Section 2113(a)
kicks off with a subject immediately followed by an adverbial
phrase:
The adverbial phrase comprises two parts. First comes “by
force and violence,” followed with “or by intimidation.” The
latter is offset by commas. It is not the most elegant wordsmith-
ing, to be sure, but it gets the point across: Whatever follows
will be modified by the adverbial phrase. Sure enough, right
after the second comma comes the first item of a short list: a
main verb (“takes”). The preceding adverbial phrase qualifies
how the actor must do that taking: “by force or violence, or
by intimidation.” So far, so good.

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Right after the first verb, “takes,” comes another comma
introducing the second verb in the list: the phrase “or attempts
to take.” The adverbial phrase modifies both verbs. When a
qualifier precedes a list, we read it most naturally as traveling
all the way down the list unless some punctuation, grammar,
or syntax signals otherwise. Flores-Figueroa v. United States,
556 U.S. 646, 650 (2009). This inference is especially strong
where, as here, the items have a “parallel construction.” Anto-
nin Scalia & Bryan A. Garner, Reading Law: The Interpreta-
tion of Legal Texts 147–48 (2012) (collecting examples).
This reading fits with the structure of the rest of the sen-
tence. Right after the two verbs comes the prepositional phrase
“from the person or presence of another.” The sentence is a
sandwich. The two main verbs sit between two modifying
phrases that operate on both. First, the adverbial phrase before
the verbs clarifies that either a taking or an attempt must be
done by force, violence, or intimidation. Then, the preposi-
tional phrase after the verbs clarifies that a taking or attempt

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must involve taking from someone else, as our Court has al-
ready hinted. See Wilson, 880 F.3d at 84–85. The most natural
reading of the sentence is that both phrases modify both verbs,
as shown below.
Any other reading of the sentence would mangle it. To read
the preceding adverbial phrase to apply only to a successful
taking, but the following prepositional phrase to apply to both,
would require the asymmetric contortion below that Vines’s
reading implies.
Thus, any conduct that violates the robbery clause of
§ 2113(a), whether by attempt or not, is a crime of violence
under § 924(c)(3)(A).
2. Vines’s counterarguments fall flat. Resisting our common-
sense reading, Vines offers two responses. Neither works.

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First, Vines invokes the Supreme Court’s ruling in United
States v. Taylor, 596 U.S. 845 (2022). But that case is inapt.
True, Taylor held that attempted Hobbs Act robbery is not a
crime of violence. Id. at 851. But that was because the verb
“attempt” works differently in the Hobbs Act. That Act applies
to:
Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity
in commerce, by robbery or extortion or attempts or
conspires so to do ….
18 U.S.C. § 1951(a).
In § 2113(a) both sets of verbs are the sandwich’s filling.
By contrast, in the Hobbs Act, the main verbs are the bread.
Between those slices of bread is the adverbial phrase that intro-
duces a force element: “by robbery.” That phrase most naturally
applies only to what precedes it, not to what precedes and fol-
lows it: “[A] limiting clause or phrase … should ordinarily be
read as modifying only the noun or phrase that it immediately
follows.” Jama v. ICE, 543 U.S. 335, 343 (2005) (ellipsis in
original) (internal quotation marks omitted). This makes sense
because the crime is one unit with two parts: (1) obstructing,
delaying, or affecting commerce (2) by robbery.

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The “so to do” in the “attempts” clause refers to the under-
lying crime: obstructing, delaying, or affecting commerce by
robbery. The verb “attempt” is unmodified. With no statutory
language requiring the attempt to be made by force, Taylor
applied the Model Penal Code and common law definitions of
attempt, which do not require force. See 596 U.S. at 851–52;
McFadden, 739 F.2d at 152. Thus, there is no force or violence
element in attempted Hobbs Act robbery: It just requires show-
ing that “[t]he defendant intended to unlawfully take personal
property by means of actual or threatened force” and com-
pleted a substantial step toward doing so. Taylor, 596 U.S. at
851. By contrast, § 2113(a) is more specific: The adverbial
phrase requiring force, violence, or intimidation limits the verb
“attempt.” Not every attempt counts—only those done by
force, violence, or intimidation do. Because the Hobbs Act is
built differently from § 2113(a), we read it differently. So Tay-
lor does not apply, and we do not import the common law of
attempt into § 2113(a).
Vines’s second rejoinder is just as unpersuasive. He insists
that the Third Circuit already read the common law of attempt
into § 2113(a) in United States v. Garner, 915 F.3d 167, 170
(3d Cir. 2019). We did not. To be sure, we recited § 2113(a)’s
elements as requiring only a substantial step toward commit-
ting bank robbery. Id. Yet that case did not ask, let alone turn
on, whether § 2113(a) was a crime of violence. And “[q]ues-
tions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not considered as hav-
ing been so decided as to constitute precedents.” Grant v.
Shalala, 989 F.2d 1332, 1341 (3d Cir. 1993) (Alito, J.) (quot-
ing Webster v. Fall, 266 U.S. 507, 511 (1925)).

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In short, one cannot be convicted under the robbery clause
of § 2113(a)’s first paragraph without committing a crime of
violence. We could stop there, as both sides agree that Vines’s
conviction rested on that clause. But even if we were only to
consider only § 2113(d), he would fare no better.
B. Attempted armed bank robbery under § 2113(d) is
also a crime of violence
Adding a dangerous weapon to attempted bank robbery
does not make the crime less violent. Recall that § 2113(d) is
the armed bank robbery statute. It applies to:
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 ….
18 U.S.C. § 2113(d).
When paired with § 2113(a)’s first paragraph, that is a crime
of violence. Thanks to the categorical approach, though, this
conclusion is not obvious. Although § 2113(d) requires force,
the wrinkle is that a defendant need jeopardize only “the life of
any person.” Id. (emphasis added). Yet a crime of violence
requires using force “against the person or property of another.”
18 U.S.C. § 924(c)(3)(A) (emphasis added). Vines argues that
an armed bank robber could jeopardize his own life, stopping
the two statutes from lining up.
But that wrinkle has been ironed out by our precedent. First,
Wilson held that bank robbery under § 2113(a) “clearly does
involve the threatened use of physical force against the person
of another.” 880 F.3d at 84–85 (internal quotation marks

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omitted; emphasis added). Then Jordan relied on that hold-
ing. Because § 2113(a) requires force “against the person of an-
other,” we reasoned, a conviction for completed armed bank
robbery under § 2113(d) based on § 2113(a) could only have
involved force against someone else. 96 F.4th at 594. That
logic applies equally to an attempt; in either case, § 2113(a)’s
robbery clause requires force against someone else. Our dis-
senting colleague misses that point.
In short, § 2113(d) requires force or intimidation, and
§ 2113(a) clarifies that the defendant must have used the force
or intimidation against someone else. Even if § 2113(a)’s first
paragraph were not independently a crime of violence, together
these provisions would add up to one.
* * * * *
No matter how you slice it, attempted armed bank robbery
under § 2113(d) predicated on § 2113(a)’s robbery clause is a
crime of violence under § 924(c)(3)(A). Because the statute’s
language is unambiguous, we do not reach the rule of lenity.
IV. VINES ’S C OUNSEL WAS EFFECTIVE
Finally, Vines claims that his lawyer was ineffective because
he did not argue that attempted armed bank robbery is not a
crime of violence at the plea hearing or sentencing. To claim
ineffective assistance of counsel, Vines must show not only
that his lawyer performed deficiently, but that the deficient per-
formance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687 (1984).
Yet any purported deficiency did not prejudice Vines. If his
lawyer had objected, that objection would have failed because,

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as we hold, his arguments would have been meritless. The only
alleged prejudice is that Vines says he would not have pleaded
guilty to the § 924(c) charge. Although a higher prison sentence
counts as prejudice, “the likelihood of a different result must
be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011). When a defendant alleges that he
pleaded guilty only because his counsel was ineffective, he
must ordinarily show that he “likely would have succeeded at
trial” in winning a better outcome. Hill v. Lockhart, 474 U.S.
52, 59 (1985). He has not shown that. He can only speculate
that a properly instructed jury would have rejected either
charge at trial. “Mere speculation” is not enough to show prej-
udice. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).
We will not treat counsel’s failure to raise a meritless argument
as prejudicial. See Sperry v. McKune, 445 F.3d 1268, 1275
(10th Cir. 2006) (“[I]f the issue is meritless, its omission will
not constitute deficient performance.” (internal quotation
marks omitted)).
* * * * *
Although the categorical approach often leads to unusual
places, today we arrive at a recognizable stop. Attempted bank
robbery under § 2113(a)’s first paragraph is a crime of vio-
lence. And doing it while armed, under § 2113(d), does not
make it any less violent. Thus, we will affirm the District
Court’s order denying Vines’s collateral attack.

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ROTH, Circuit Judge, dissenting in part.
The majority focuses nearly all its analysis on a crime
for which Ronald Vines was not convicted. And the crime for
which he was convicted does not categorically require the
actual, attempted, or threatened use of force against another.
Thus, while I concur with much of the majority’s reasoning, I
respectfully dissent from its ultimate disposition.
I.
I agree with the majority that, under 18 U.S.C. §
2113(a), robbery and extortion constitute divisible offenses.1 I
further agree that, under § 2113(a), attempted robbery requires
the actual use of force, violence, or intimidation. And, like the
majority, I do not believe that United States v. Garner ties our
hands (although I view this as a closer question than does the
1 I see no sound basis for distinguishing § 2113(a) from 18
U.S.C. § 1951(a), whose robbery and extortion provisions, we
have already established, are divisible. See United States v.
Robinson, 844 F.3d 137, 149–50 (3d Cir. 2016) (Fuentes J.,
concurring) (concluding that § 1951(a)’s proscription of
“affect[ing] commerce . . . by robbery or extortion” was
divisible, and that its “robbery” clause constituted a crime of
violence); United States v. Walker, 990 F.3d 316, 325–26 (3d
Cir. 2021) (adopting the Robinson concurrence’s reasoning as
“thoroughly persuasive”), cert. granted and vacated on other
grounds, 142 S. Ct. 2858 (2022); United States v. Stoney, 62
F.4th 108, 113–14 (3d Cir. 2023) (confirming that Walker
remains good law as to completed robbery).

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majority).2 Had Ronald Vines been convicted of generic
2 The majority writes that Garner “did not ask, let alone turn
on, whether § 2113(a) was a crime of violence.” That is
technically true—but only technically. James Garner was
arrested long before he had the chance to use violence. See
United States v. Garner, 915 F.3d 167, 170 (3d Cir. 2019). As
such, our holding that sufficient evidence supported his
conviction turned entirely on our expressed understanding that
§ 2113(a) could be violated without force—the very approach
our Court now rejects. Indeed, the government’s briefing in
Garner relied on the precise caselaw we now repudiate. If
Garner fails to bind us, it is instead because neither party
contested the interpretation of § 2113, or informed us another
interpretation was possible. Whether that is enough to free our
hands remains unfortunately murky.
On the one hand, the Supreme Court has long held that
it is not bound by its prior resolution of antecedent legal issues
where that resolution received little or no analysis. See, e.g.,
Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993); Cross v.
Burke, 146 U.S. 82, 87 (1892); United States v. More, 3 Cranch
159, 172 (1805). And while our fealty to prior panels is more
inexorable, at least some version of that rule applies at our level
as well. See Grant v. Shalala, 989 F.2d 1332, 1341 (3d Cir.
1993). On the other hand, our sister-circuits have widely
agreed that, if stare decisis is to have any force, there cannot
be an “overlooked reason or argument exception to the prior-
panel-precedent rule.” In re Lambrix, 776 F.3d 789, 794 (11th
Cir. 2015); see also, e.g., Brumbach v. United States, 929 F.3d
791, 795 (6th Cir. 2019); Silva v. Garland, 993 F.2d 705, 717
(9th Cir. 2021); Cohen v. Office Depot, 204 F.3d 1069, 1076
(11th Cir. 2000); Phonometrics, Inc. v. Choice Hotels Intern.,
Inc., 21 Fed.App’x. 910, 912 (Fed. Cir. 2001). Where the line

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attempted robbery under § 2113(a), I would concur with the
majority that he was guilty of a crime of violence under 18
U.S.C. 924(c). But Ronald Vines was convicted under 18
U.S.C. § 2113(d). And for all the persuasiveness of the
majority’s textual analysis, none of it focuses on the provision
that is actually in front of us.
That matters. Unlike its counterpart, § 2113(d)’s
attempt provision does not contain any language even arguably
suggesting the defendant must commit the underlying attempt
forcibly. Instead, it merely requires an offender to “attempt[]
to commit, any offense defined in subsections (a) and (b).”3
In grafting § 2113(a)’s forcible attempt standard onto §
falls between an unanalyzed issue and an overlooked argument
will often (I suspect usually) be unclear. And, given the
profound implications for our judicial system, further en banc
guidance in this area is sorely needed. But, pending such
guidance, I am persuaded that Garner’s cursory and under-
briefed discussion of § 2113(a) (which had no bearing on the
issues which prompted us to label that decision precedential)
falls within the Grant exception. I caution, however, that
whatever latitude this Court affords itself in departing from
I.O.P. 9.1 (which, at bottom, is a doctrine of court
administration) should not be read reflexively to authorize the
same latitude for district courts (whose constitutional duty to
obey our rulings does not hinge on their confidence in our
issue-spotting). See Royal Canin U.S.A., Inc. v. Wullschleger,
604 U.S. 22, 43 n.10 (2025).
3 18 U.S.C. § 2113(d). That Congress may have wished to
permit conviction under § 2113(d) for attempts that did not
progress far enough to violate § 2113(a) is unsurprising, given
the increased risk to the public posed by § 2113(d) violations.

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4
2113(d), the majority implicitly rewrites the text of § 2113(d)
so that, rather than read “whoever, in committing or attempting
to commit, any offense,” it reads “whoever, in committing any
offense or in committing the attempt provision of any
offense.” That contortion, which has no basis in the statute, is
no less textually questionable than the inside-out sandwiches
the majority decries.
The majority’s approach is also demonstratively
untenable in the context of § 2113(d).4 By its express terms,
an attempted violation of § 2113(d) can be predicated on
violating either § 2113(a) (bank robbery) or § 2113(b) (bank
larceny), and at least one of our sister circuits has upheld §
2113(d) charges based solely on an attempted violation of §
2113(b).5 This is true even though § 2113(b) does not contain
an attempt provision, and it is well-recognized that a defendant
cannot be prosecuted for attempting to violate § 2113(b)
alone.6 Yet the single instance of the word “attempting” in §
2113(d) can obviously only have one meaning.7 It follows
4 United States v. Loniello, 610 F.3d 488, 496 (7th Cir. 2010)
(noting that each subsection of § 2113 constitutes a separate,
independent offense).
5 See United States v. Willis, 102 F.3d 1078, 1082 (10th Cir.
1996). See generally Reno v. Bossier Parish School Bd., 528
U.S. 320 (2000) (“[W]e refuse to adopt a construction that
would attribute different meanings to the same phrase in the
same sentence
6 See generally United States v. Hopkins, 703 F.2d, 1102, 1104
(9th Cir. 1983) (noting that § 2113(b) does not criminalize
attempt); Willis, 102 F.3d at 1082 (noting that § 2113(b) cannot
support a freestanding attempt conviction).
7 See Reno v. Bossier Parish School Bd., 528 U.S. 320, 329
(2000) (“[W]e refuse to adopt a construction that would

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5
that—regardless of which predicate offense it is based on—§
2113(d) creates a substantive attempt crime, rather than simply
incorporating some other attempt provision by reference.8
Without interpolating § 2113(a)’s forcible attempt
requirement, there is nothing to distinguish § 2113(d) from any
other generic attempt crime—which requires only “an act
amounting to a ‘substantial step’ toward the commission of that
crime” (in this case, completed bank robbery under §
2113(a)).9 And because Taylor makes clear that merely taking
a substantial step towards committing a robbery (even a
robbery in which force is planned) does not constitute using,
attempting to use, or threatening to use force, it follows that the
“attempt” language in § 2113(d) does not render that statute a
crime of violence under § 924(c).10
II.
That is, of course, not the end of the story, because §
2113(d) also requires a defendant to “assault[] any person, or
attribute different meanings to the same phrase in the same
sentence, depending on which object it is modifying.”)
8 The government did not dispute at oral argument that (in
keeping with the plain reading of his indictment) Vines’
conviction was predicated on the “attempt” prong of § 2113(d).
I therefore need not address whether the government could
theoretically charge a defendant with armed attempted bank
robbery, basing itself entirely on the completed prong of
§ 2113(d) but using the attempt prong of § 2113(a) as the
predicate offense.
9 Garner, 915 F.3d at 170 (quoting United States v. Hsu, 155
F.3d 189, 202 (3d Cir. 1998)).
10 See United States v. Taylor, 596 U.S. 845, 860 (2022).

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6
put[] in jeopardy the life of any person by the use of a
dangerous weapon or device.”11 It is tempting to read this
provision as an alternative ground for deeming § 2113(d) a
crime of violence, regardless of its relationship to § 2113(a).
But, like most temptations, this one leads astray. While §
2113(d)’s aggravating factors certainly entail the “use,
threatened use, or attempted use of force,” they do not require
that force to be exerted against a third party, do not require that
force to be knowing, and, accordingly, do not provide an
independent basis for deeming § 2113(d) a crime of violence.
A.
As the majority acknowledges, a crime whose force
element could theoretically be self-directed is not a crime of
violence for the purpose of § 924.12 Yet, as the majority
recognizes, § 2113(d) can be facially violated by a defendant
who “assaults any person, or puts in jeopardy the life of any
person.”13 And while it is questionable if someone can assault
himself, it is certainly possible for a defendant to put his own
life in jeopardy while trying to rob a bank. Consider a robber
who holds a gun to his own head and threatens self-harm unless
a teller (or potential co-conspirator) cooperates, or one who
starts driving to the robbery site with a loaded weapon he does
not subjectively intend to use.14 Or consider a robber who
11 18 U.S.C. § 2113(d).
12 See United States v. Davis, 53 F.4th 168, 171 (4th Cir. 2022);
see also Torres v. Lynch, 578 U.S. 452, 465–66 (2016)
(interpreting a nearly identical crime-of-violence provision).
13 18 U.S.C. § 2113(d) (emphasis added).
14 See Portee v. United States, 941 F.3d 263, 271–73 (7th Cir.
2019) (collecting examples of defendants prosecuted for
violent offenses based on a self-endangerment theory).

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arrives at a bank with an unloaded weapon, placing his own
life in serious jeopardy from responding police.15
Recognizing that the plain text of § 2113(d) would
allow for conviction under these scenarios, the majority seeks
refuge under our holding in Jordan. But it misapplies that
precedent. In Jordan, we noted that to commit completed bank
robbery under § 2113(a) a defendant must use force against
“another.”16 We further noted that aggravated bank robbery
under § 2113(d) requires a defendant to both (1) commit
completed generic robbery under § 2113(a) and (2) satisfy an
aggravating factor.17 We therefore held that, regardless of
whether § 2113(d)’s aggravating factor required force, the
crime as a whole was a crime of violence. But in committing
completed robbery under subsection (a) the defendant had
15 See McLaughlin v. United States, 476 U.S. 16, 17–18 (1986)
(holding that the use of an unloaded firearm can justify
conviction under § 2113(d) because of the “immediate danger
that a violent response will ensue”); United States v. Dixon,
982 F.2d 116, 123 (3d Cir. 1992) (noting that the “increased
chance of an armed response creates a greater risk to the
physical security of victims, bystanders, and even the
perpetrators[.]” (internal quotation omitted)); see also United
States v. Benson, 918 F.2d 1, 4 (1st Cir. 1990) (affirming §
2113(d) conviction where defendant’s mock gun “put in
jeopardy the lives of the teller and other persons at the robbery
scene, even including appellant”); United States v. Martinez-
Jimenez, 864 F.2d 664, 666–67 (9th Cir. 1989) (holding that
the use of a toy gun “creates a greater risk to the physical
security of victims, bystanders, and even the perpetrators”).
16 96 F.4th at 593–94 (quoting United States v. Wilson, 880
F.3d 80, 84–85 (3d Cir. 2018)).
17 Id.

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already done everything he needed to do to satisfy § 924(c).
Such a completed bank robbery has no bearing on Ronald
Vines’ conviction under the attempt prong of § 2113(d).
Unlike completed robbery, the minimum conduct
needed to satisfy the attempted robbery prong of § 2113(d), for
which Vines was convicted, is (1) attempting to violate §
2113(a) and (2) satisfying an aggravating factor. As discussed
above, the first element does not qualify as using, threatening
to use, or attempting to use force at all.18 We know that from
Taylor. And because the aggravating factor itself does not
require the use of force against another, it follows that neither
prong of attempted robbery under § 2113(d) necessarily
satisfies § 924(c).
B.
It is well-settled that, to qualify as a crime of violence
under 924(c), an offense must involve the purposeful or
knowing (not just reckless) use of force.19 In addition to not
necessarily involving the use of force against another, the
second prong of § 2113(d) further fails to meet § 924(c)’s force
18 While I reach this conclusion because the attempt prong in §
2113(d) does not incorporate by reference the “by force and
violence, or by intimidation” clause in § 2113(a), I note that
the same would hold if the attempt prong of § 2113(a) were
itself not a crime of violence—as the majority assumes
arguendo in its discussion of § 2113(d).
19 See Borden v. United States, 593 U.S. 420, 445 (2021); see
also Delligatti v. United States, 145 S.Ct. 797, 808 n.5 (2025);
Tran v. Gonzales, 414 F.3d 464, 470–72 (3d Cir. 2005)
(holding that conspiracy to commit reckless burning was not a
crime of violence because it could be violated recklessly).

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9
requirement because it does not require the knowing use of
force.
Section 2113(d)’s reference to “us[ing] a dangerous
weapon or device” to put “in jeopardy the life of any person”
does not on its face contain any requirement that the defendant
knowingly place some life in danger—and courts have long
interpreted such language as subsuming reckless conduct as
well.20 Further, it is not hard to think of plausible examples
20 See Voisine v. United States, 579 U.S. 686, 692–93 (2016)
(holding that the phrase “use or attempted use of physical
force” without further qualification criminalizes even reckless
conduct); United States v. Mills, 1 F.3d 414, 420–21 (6th Cir.
1993), abrogated in part on other grounds by Montejo v.
Louisiana, 556 U.S. 778, 797 (2009) (affirming conviction
under an identically worded statute based purely on reckless
conduct). It is true that the Court of Appeals for the Ninth
Circuit appears to have held that § 2113(d) requires the
knowing use of force. See United States v. Buck, 23 F.4th 919,
929 (9th Cir. 2022) (asserting without analysis that Ҥ 2113(d)
requires that the robber knowingly made one or more victims
at the scene of the robbery aware that he had a gun” (cleaned
up)). But Buck based this assertion on United States v. Henry,
984 F.3d 1343, 1358 (9th Cir. 2021), which in turn cited United
States v. McDuffy, 890 F.3d 796, 799 (9th Cir. 2018), which in
turn relied on United States v. Odom, 329 F.3d 1032, 1035 (9th
Cir. 2003), which based itself on the Supreme Court’s
conclusion in Bailey v. United States that “using” a firearm
under a parallel statute required “active employment.” 516
U.S. 137, 143 (1995). The Supreme Court has since clarified
that, as used in Bailey, this phrase included reckless (as well as
knowing) conduct. Voisine, 579 U.S. at 695–96.

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10
where an attempted armed bank robber could place others’
lives at risk recklessly, such as by accidentally discharging a
firearm,21 or crashing a car while speeding to the robbery site.22
All such scenarios would be covered by § 2113(d), but they
would lack the requisite mens rea for a crime of violence.23
And because any mismatch is enough to render a crime non-
violent, it follows that § 2113(d) is categorically not a crime of
violence under § 924(c).
***
21 See Dean v. U.S., 556 U.S. 558, 576 (2009) (noting that an
“individual who brings a loaded weapon to commit a crime
runs the risk that the gun will discharge accidentally”); United
States v. Jackson, 534 Fed.App’x. 917, 920 (11th Cir. 2013)
(noting that “an accidental discharge of a firearm is a
reasonably foreseeable result of bringing a gun to an attempted
bank robbery”).
22 See Mills, 1 F.3d at 420–21 (treating a speeding car as a
“dangerous device”). That the defendant may have intended to
commit the § 2113(a) predicate offense is irrelevant. Borden
does not just require that a defendant commit some knowing
crime and, simultaneously, commit a crime involving force—
it requires the force itself (or threatened or attempted force) be
used knowingly. See 593 U.S. at 432 (holding that a defendant
who “has not used force ‘against’ another person in the targeted
way that clause requires” has not committed a crime of
violence).
23 In Jordan, we noted that a completed violation of § 2113(a)
requires the knowing use of force, and therefore concluded that
a completed violation of § 2113(d) does as well. 96 F.4th at
594. As already discussed, supra n.18, that syllogism has no
relevance when it comes to attempted violations of § 2113(d).

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11
The categorical approach has as many critics as there
are judges. The conclusions it yields are often counterintuitive,
counter-logical, and contrary to what Congress likely intended.
But it is the law, and fairly applying it compels the conclusion
that 18 U.S.C. § 2113(d) is not a crime of violence. Because
the majority concludes otherwise, I respectfully dissent.

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