United States of America v. Bryan Burwell, Also Known As Bush

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2024 Decided December 9, 2024
No. 16-3009
UNITED STATES OF AMERICA,
APPELLEE
v.
BRYAN BURWELL, ALSO KNOWN AS BUSH,
APPELLANT
Consolidated with 16-3072, 21-3041, 23-3031, 24-3017
Appeals from the United States District Court
for the District of Columbia
(No. 1:04-cr-00355-5)
(No. 1:04-cr-00355-6)
Courtney Millian, Assistant Federal Public Defender,
argued the cause for appellant Aaron Perkins. With her on the
briefs was A. J. Kramer, Federal Public Defender. Sandra G.
Roland, Assistant Federal Public Defender, entered an
appearance.

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Gregory Stuart Smith, appointed by the court, argued the
cause and filed the briefs for appellant Bryan Burwell.
Timothy R. Cahill, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Matthew M.
Graves, U.S. Attorney, and Chrisellen R. Kolb and Elizabeth
H. Danello, Assistant U.S. Attorneys. Katherine M. Kelly,
Assistant U.S. Attorney, entered an appearance.
Before: SRINIVASAN, Chief Judge, PILLARD and WILKINS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: For nearly twenty years, Bryan
Burwell and Aaron Perkins have served prison sentences for
their involvement in a series of bank robberies. Much of that
time has been for firearms-related convictions that they now
argue are erroneous. We agree.
Congress mandates that people convicted of using a
firearm during and in relation to a crime of violence be
sentenced to a minimum period of incarceration. 18 U.S.C.
§ 924(c). Sometimes for decades. But “crime of violence” is
a term of art. It encompasses only offenses that, categorically
speaking, involve the use or threatened use of force. Put
differently, if the least culpable conduct that could sustain a
conviction for a given crime does not necessarily require the
use or threat of force, that offense is not a crime of violence
and § 924(c)’s firearm sentencing enhancement cannot apply.
That’s true even when a judge sentences an individual
convicted of using force or violence in the commission of that
crime in a particular case.

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This appeal concerns whether federal bank robbery, 18
U.S.C. § 2113(a), is a crime of violence under § 924(c). The
statute criminalizes bank robbery completed “by force and
violence, or by intimidation,” or “by extortion.” Id. Our
precedent holds that when done by force and violence, or by
intimidation, bank robbery satisfies § 924(c)’s requirements.
United States v. Carr, 946 F.3d 598, 599 (D.C. Cir. 2020). Yet
all parties here agree that when done by extortion, bank robbery
no longer is a crime of violence, because extortion need not
involve the use or threat of force. Thus, the answer to the
question turns on another: whether, in writing § 2113(a),
Congress created two separate criminal offenses, one violent
(done by force and violence, or by intimidation) and the other
not (done by extortion). If so, the statute is divisible, and
Burwell’s and Perkins’s sentences must stand. If not, the
statute is indivisible and merely sets forth three alternative
means—force and violence, intimidation, and extortion—of
completing the same crime.
We hold that 18 U.S.C. § 2113(a) is indivisible as to
extortion. Force and violence, intimidation, and extortion are
three ways a person might rob a bank. The text and structure
of the statute indicate that extortion is a factual means of bank
robbery, rather than an element of an entirely separate offense.
That conclusion is reinforced by the statutory history and
common law roots of robbery and extortion. As an indivisible
offense, bank robbery is not a § 924(c) crime of violence, and
Burwell’s and Perkins’s convictions under that provision are
unlawful. We therefore vacate Burwell’s and Perkins’s
§ 924(c) convictions, and because both have served their entire
sentences on their remaining counts of conviction, we remand
the case to the District Court with instructions to determine
expeditiously whether to release them immediately.

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I.
A.
In August 2004, Bryan Burwell and Aaron Perkins were
indicted, along with several other co-defendants, in the United
States District Court for the District of Columbia for their role
in a series of six local bank robberies. The government
concedes that neither Burwell nor Perkins were leaders in the
robbery scheme. Noureddine Chtaini, the group’s “nominal
leader,” and two others purchased machineguns to use in the
spree. United States v. Burwell, 690 F.3d 500, 502 (D.C. Cir.
2012) (en banc). Burwell later participated in two of the six
bank heists, performing “crowd control” in each. According to
a presentence investigation report, Perkins participated in just
the final robbery but stayed outside the bank the entire time.
Chtaini and another leader pleaded guilty before trial and
agreed to testify against Burwell, Perkins, and others in
exchange for lesser sentences and dismissal of certain
charges—including the 18 U.S.C. § 924(c) offense at issue
here. A jury convicted Burwell and Perkins of four counts
each. Relevant to this appeal are both of their convictions
under § 924(c) for using or carrying a machinegun during and
in relation to any crime of violence. The District Court had no
choice but to sentence Burwell and Perkins on these counts
alone to the statutory mandatory minimum of thirty years in
prison, to run consecutive to any sentence imposed on the
remaining counts. Burwell, 690 F.3d at 503; 18 U.S.C.
§ 924(c)(1)(B)(ii).
Following trial, our Court affirmed Burwell’s and
Perkins’s convictions. United States v. Burwell, 642 F.3d
1062, 1064 (D.C. Cir. 2011). After rehearing en banc, we
affirmed again. Burwell, 690 F.3d at 516. Now, these cases
come before us on post-conviction review, as both Burwell and

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Perkins lodge challenges that they did not make (and, indeed,
could not have made) at earlier junctures. Burwell raises two
issues and Perkins raises one. Both argue that in light of the
Supreme Court’s decision in United States v. Davis, 588 U.S.
445 (2019), bank robbery is not a crime of violence for § 924(c)
purposes, meaning that the thirty-year mandatory minimum
should never have applied. Burwell further argues that his
§ 924(c) conviction independently must be vacated because the
aiding and abetting jury instruction given at his trial on that
charge was erroneous under Rosemond v. United States, 572
U.S. 65 (2014). Because we vacate both Burwell’s and
Perkins’s § 924(c) convictions on the Davis issue, we need not
reach the Rosemond claim.
B.
This case implicates both § 924(c)’s firearm sentencing
enhancement and the federal bank robbery statute. The former
requires judges to impose a thirty-year mandatory minimum
whenever a “person who, during and in relation to any crime of
violence . . . uses or carries a firearm” that is “a machinegun.”
18 U.S.C. § 924(c)(1)(A), (B)(ii). When Burwell and Perkins
were convicted, § 924(c) contained both an “elements clause”
and a “residual clause.” Under the elements clause, an offense
is considered a crime of violence if it “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). The
residual clause applied whenever an offense “by its nature,
involve[d] a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.” Davis, 588 U.S. at 449 (quoting 18
U.S.C. § 924(c)(3)(B) (internal quotation marks omitted)). The
Davis Court held that the residual subsection was
unconstitutionally vague under the Due Process Clause. Id. at

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470. As a result, these § 924(c) convictions must stand, if at
all, based upon the “elements” clause.
We apply the categorical approach to determine whether
an offense in question satisfies § 924(c)’s elements clause.
United States v. Taylor, 596 U.S. 845, 850 (2022). If the least
culpable conduct under the statute involves the use or threat of
force, the offense counts as a crime of violence and the
mandatory minimum applies. If it doesn’t, the offense is not
§ 924(c)-eligible, “even if the defendant’s actual conduct (i.e.,
the facts of the crime)” involved the use or threat of physical
force. Mathis v. United States, 579 U.S. 500, 504 (2016)
(applying same approach for 18 U.S.C. § 924(e)(1)).
The second statute, which makes bank robbery a federal
crime, was amended in 1986. Before then, federal bank
robbery only reached those who took or attempted to take
anything of value from certain financial institutions “by force
and violence, or by intimidation.” 18 U.S.C. § 2113(a) (1982).
In 1986, Congress wrote the statute we interpret today. It now
defines bank robbery to cover:
[w]hoever, 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, custody, control, management, or
possession of, any bank, credit union, or any
savings and loan association.
18 U.S.C. § 2113(a) (emphasis added); see also Criminal Law
and Procedure Technical Amendments Act of 1986, Pub. L. 99-
646, § 68, 100 Stat. 3592, 3616.

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C.
Burwell and Perkins both raised Davis claims before the
District Court. Burwell timely filed his postconviction
challenge alleging that his sentence was “imposed in violation
of the Constitution or laws of the United States” because 18
U.S.C. § 2113(a) is indivisible. 28 U.S.C. § 2255(a). Perkins
raised the same argument in a second or successive § 2255
motion, which this Court in 2016 permitted him to file. The
District Court denied both motions.
We have jurisdiction under 28 U.S.C. § 2253(a) and
review de novo whether an offense qualifies as a crime of
violence. United States v. Sheffield, 832 F.3d 296, 311 (D.C.
Cir. 2016).
II.
Deciding whether federal bank robbery is a crime of
violence turns on the antecedent issue of whether the provision
is indivisible. Recall that 18 U.S.C. § 2113(a) prohibits anyone
who “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” anything of value
from certain banks or financial institutions. Our precedent
concludes that when bank robbery is completed “by force and
violence, or by intimidation,” id., it is a crime of violence.
Carr, 946 F.3d at 599, 602–04. But the parties here agree that
when completed by extortion, bank robbery does not
necessarily involve the use or threatened use of force. See
Appellee’s Br. 18 n.8. This is because extortion can be
accomplished using a threat of something other than violence,
such as a threat of economic loss or a threat to reveal
compromising information. Thus, the question becomes: Did
Congress intend § 2113(a)’s first paragraph to be split into two

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crimes, one violent and the other not? Or, as the doctrine calls
it: Is the statute divisible or indivisible? If the latter, Burwell’s
and Perkins’s firearms convictions and sentences cannot stand
and must be vacated.1
An “indivisible” statute sets out just one “set of elements
to define a single crime.” Mathis, 579 U.S. at 504–05. A
“more complicated” divisible statute “may list elements in the
alternative, and thereby define multiple crimes.” Id. at 505. In
§ 2113(a), the statute is indivisible if extortion—like force,
violence, and intimidation—is just one of several means of
committing one crime: bank robbery. Subsection 2113(a) is
divisible if bank robbery by extortion is an entirely separate
crime from committing bank robbery by force and violence or
by intimidation.
Mathis instructs us how to resolve divisibility questions.
To decide whether the listed items (here, force and violence,
intimidation, and extortion) are elements or means, we start
with the text at issue. In its divisibility analysis, the Supreme
Court directed federal courts to consult two further sources
when the statutory text alone does not provide a clear answer:
state court decisions interpreting the statute’s language and
1 Burwell and Perkins were convicted under 18 U.S.C. § 2113(a)
and (d). The Tenth Circuit has held that notwithstanding any
indivisibility within § 2113(a), a conviction that includes
subsection (d) is categorically a crime of violence. United States v.
Lucero, 860 F. App’x 589, 594 (10th Cir. 2021) (unpublished order
denying certificate of appealability). As the government concedes in
its brief, it did not defend the § 924(c) conviction based upon
§ 2113(d) in the District Court, and because that issue was not
included in the certificate of appealability, it is not before us.
Appellee’s Br. 17 n.6. However, the government “reserve[d] the
right to argue that § 2113(d) may affect the crime-of-violence
determination in an appropriate future case.” Id.

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record documents like indictments or jury instructions. Mathis,
579 U.S. at 517–18 & n.7. The Court in Mathis answered
whether the elements of a state law offense corresponded to the
generic federally enumerated offense as required to satisfy the
predicate requirement for a sentence enhancement under the
Armed Career Criminal Act (“ACCA”). See 18 U.S.C.
§ 924(e). Here, unlike an ACCA case, we interpret a federal
statute’s divisibility to determine whether a violation
necessarily qualifies as a “crime of violence” under § 924(c).
We take no position on the pertinence of resorting to those
additional sources to settle the divisibility of federal statutes, as
here the text and routine tools of statutory interpretation
provide a clear answer that is not contradicted by any well-
reasoned precedent or by record documents: § 2113(a) is
indivisible as to extortion and, therefore, not a crime of
violence under § 924(c). Reinforcing our conclusion are the
common law roots of robbery and extortion, as well as the
statutory history of the 1986 amendment. At bottom, there is
one indivisible bank robbery offense in § 2113(a), carried out
by means of force and violence, intimidation, or extortion.
A.
We interpret statutes by examining first the text and
statutory context. Noble v. Nat’l Ass’n of Letter Carriers, AFL-
CIO, 103 F.4th 45, 50 (D.C. Cir. 2024) (citing Sierra Club v.
Wheeler, 956 F.3d 612, 616 (D.C. Cir. 2020); Petit v. U.S.
Dep’t. of Educ., 675 F.3d 769, 781 (D.C. Cir. 2012)). Multiple
indicators support reading § 2113(a) as indivisible.
Start with the plain text. Subsection 2113(a) provides a
single maximum penalty regardless of how a bank robbery is
completed. Whether one is convicted for robbing a bank by
force and violence, intimidation, or extortion, their maximum
penalty may not exceed twenty years in prison. 18 U.S.C.

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§ 2113(a). Consistent with Mathis’s instruction that statutory
alternatives carrying different punishments must be elements
of a divisible statute, 579 U.S. at 518, we believe the inverse at
least points toward the opposite conclusion: when legislators
attach the same punishment for statutory alternatives, that
provides meaningful evidence that the provision may be
indivisible. See United States v. Redd, 85 F.4th 153, 165 (4th
Cir. 2023) (finding that statute spread out across two
subsections was indivisible in part because punishment was the
same); cf. United States v. Buck, 23 F.4th 919, 925 (9th Cir.
2022) (finding basic and aggravated offenses in 18 U.S.C.
§ 2114(a) divisible and collecting cases).
That inference alone is not dispositive. Both the first and
second paragraphs of § 2113(a) (bank robbery and bank
burglary) carry the same punishment, and Burwell and Perkins
concede the two are separate offenses. Perkins Br. 21; see also
United States v. Butler, 949 F.3d 230, 234 (5th Cir. 2020)
(holding § 2113(a) is divisible between its two paragraphs).
But here, reinforcing bank robbery’s indivisibility as to
extortion are the structural and syntactical choices Congress
made when redrafting the provision. Subsection 2113(a)
locates “obtains or attempts to obtain by extortion” in a list
inside a single paragraph. 18 U.S.C. § 2113(a). And,
Congress’s use of “by” before extortion mirrors “by force and
violence” and “by intimidation,” the other two means of
committing bank robbery. Id.
Congress had other options. Rather than create a separate
paragraph, as it did with the second paragraph for bank
burglary in § 2113(a), or a separate subsection, as it did for
bank larceny in § 2113(b) and receipt of stolen bank property
in § 2113(c), Congress chose to group extortion together with
force and violence and intimidation in the same paragraph of
the bank robbery statute. 18 U.S.C. § 2113(a)–(c). Indeed, the

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title of Section 2113 is “Bank robbery and incidental crimes.”
Congress opted to not penalize obtaining money from a bank
by extortion as an incidental (i.e., separate) crime from bank
robbery, like it did with bank larceny and receiving stolen bank
property. That choice further suggests the statute is indivisible
between bank robbery by force and violence, intimidation, and
extortion. Cf. Butler, 949 F.3d at 234 (reasoning that the
disjunctive “or” between § 2113(a)’s paragraphs is different
than the use of “or” within the paragraph, and “[t]he
paragraphs use ‘or’ internally to set out alternative means”
(emphasis added)).
Congress’s other syntactical choices confirm our reading.
For one, the amended § 2113(a) naturally places a comma
before extortion, as it does between force and violence and
intimidation, rather than more disjunctive punctuation like a
semicolon. See Buck, 23 F.4th at 925 (noting that divisible
clause is set off by semicolon); United States v. Enoch, 865
F.3d 575, 580 (7th Cir. 2017) (same). The lack of a comma
after the extortion clause also bears noting: If “or obtains or
attempts to obtain by extortion” was a distinct element of a
separate crime, then a comma would naturally follow the word
“extortion” to set off the clause. The absence of such a comma
instead denotes a third factual means in a list of ways to acquire
the property described in the rest of the paragraph. And, the
text does not set out separate mens rea requirements for what
the government claims are two purportedly distinct offenses,
which in other statutes can suggest divisibility. See Martin v.
Kline, No. 19-15605, 2021 WL 6102175, at *1 (9th Cir. Dec.
22, 2021) (unpublished mem. op.). Subsection 2113(a)’s first
paragraph thus lacks many of the characteristics that would
plainly suggest it is divisible.
Instead, the plain text of § 2113(a)’s first paragraph
criminalizes how someone unlawfully comes into possession

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of bank property—either by taking or attempting to take by
force, violence, or intimidation; or by obtaining, or attempting
to obtain bank property by extortion. 18 U.S.C. § 2113(a). The
fact that “intimidation” and “extortion” are synonyms is strong
evidence that Congress viewed extortion and intimidation as
alternative means to commit bank robbery. See, e.g.,
Intimidation, BLACK’S LAW DICTIONARY (5th ed. 1979)
(“Intimidation. Unlawful coercion; extortion; duress; putting
in fear.”); Extort, OXFORD ENGLISH DICTIONARY (2d ed. 1989)
(defining “extort” as “[t]o obtain from a reluctant person by
violence, torture, intimidation”). The statute therefore is best
read to contain two distinct elements: coming into possession
of bank property and the unlawful means by which that occurs.
Cf. United States v. Al-Muwwakkil, 983 F.3d 748, 756–57 (4th
Cir. 2020) (finding Virginia’s attempted rape statute indivisible
because it was “best read” to boil down to “(1) carnal
knowledge (a sexual act)[] and (2) unwillingness,” even though
the act itself could be done different ways). Indeed, the 1986
amendment was titled “Addition of Extortion to Bank Robbery
Offense,” § 68, 100 Stat. at 3616, which suggests that Congress
intended to “add” extortion to the extant offense of bank
robbery, rather than to create a new separate and distinct bank
extortion offense. See Almendarez-Torres v. United States,
523 U.S. 224, 234 (1998) (“[T]he title of a statute and the
heading of a section are tools available for the resolution of a
doubt about the meaning of a statute.” (internal quotation
marks omitted)).
The text, structure, and statutory history make clear that
§ 2113(a) is indivisible. That clarity resolves this case.2 We
2 Burwell separately invokes the rule of lenity. Lenity does not apply
here because “to invoke [it], a court must conclude that ‘there is a
grievous ambiguity or uncertainty in the statute.’” Burwell, 690 F.3d

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note, however, that the 1986 amendment’s legislative history
supports our reading of the statute. Noble, 103 F.4th at 50. The
House Report accompanying the 1986 revision noted that, prior
to the amendment, federal courts were “divided over the
question whether [§ 2113(a)] proscribe[d] extortionate
conduct.” H.R. REP. NO. 99-797, at 32 (1986). Some courts
held bank robbery by extortion could be prosecuted only under
§ 2113(a), whereas others held the Hobbs Act (18 U.S.C.
§ 1951(a)) was more appropriate, and still others found that
either statute could apply. Id. The report concluded that
“[t]here is no gap in federal law. Extortionate conduct is
prosecutable [under] either.” Id. In other words, the report
explains that bank robbery by extortion was covered by the pre-
existing statutory language—meaning even before the 1986
amendment, extortion, just like “force and violence” and
“intimidation,” was simply another means of committing the
same crime. Congress merely “clarifi[ed]” that § 2113(a)
would be the only statute covering bank robbery and inserted
“obtain by extortion” to “expressly” cover what the statute
always did. Id. at 33. In that way, the 1986 amendment was
not creating an altogether separate offense.
The legal context that Congress considered in its 1986
amendment confirms the legislature’s conviction that extortion
is a third means of committing the single offense of bank
robbery. As explained above, Congress amended § 2113(a) to
resolve a disagreement among the courts of appeals regarding
the proper statute for prosecuting “extortionate activity
involving the obtaining of bank monies.” Id. The cases cited
in the House Report, to which Congress’s revision responded,
all involved a defendant threatening to harm a bank executive’s
at 515 (quoting Muscarello v. United States, 524 U.S. 125, 138–39
(1998)) (emphasis in Burwell). For the reasons discussed above,
§ 2113(a) is not “grievously” ambiguous and the rule is inapplicable.

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home, wife, or children unless the executive delivered bank
cash to a specified location. Id. at 32 nn.13–16. The fact that
those cases only concerned extortion as it was used to extract
money from federally insured banks underscores Congress’s
intent to clarify that § 2113(a) treats all coercive conduct
aiming to “get money from the bank” the same, whether
technically classified as robbery or as extortion. United States
v. Golay, 560 F.2d 866, 869 n.3 (8th Cir. 1977). Put differently,
those cases show that Congress viewed bank robberies effected
by extortion as equivalent to bank robberies effected by force
and violence or by intimidation: all are unlawfully coercive
means to “obtain[]. . . bank monies.” H.R. REP. NO. 99-797, at
33.
B.
The government’s primary argument is that § 2113(a) is
divisible because robbery and extortion were distinct crimes at
common law, and Congress imported this “old soil” first into
the Hobbs Act and then later into the bank robbery provision.
Appellee’s Br. 14–16, 20–24. This argument rests on two
propositions. First is the strength of the common law
difference between robbery and extortion, and second is the
assumption that Congress wanted any such differences carried
into the federal criminal law’s understanding of the Hobbs Act
and § 2113(a).
The government falters at both steps. Upon inspection,
neither argument it raises is persuasive, and instead, the
common law and statutory history confirm § 2113(a) is
indivisible. As for the historical differences between robbery
and extortion, the government sees common law robbery as a
“taking of property ‘from the person or in the presence of
another, against his will,’” Appellee’s Br. 15 (quoting Ocasio
v. United States, 578 U.S. 282, 297 (2016)), that is precipitated

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by the “use of force or threatened force,” id. (quoting United
States v. Harris, 916 F.3d 948, 955 (11th Cir. 2019)). The latter
requirement, in the government’s view, means that common
law robbery “embraced only threats of immediate bodily harm
to the victim.” Id. (quoting Harris, 916 F.3d at 955).
But the government’s premise that common law robbery
“embraced only threats of immediate bodily harm to the
victim” is flat wrong. As Blackstone explained, robbery is the
“felonious and forcible taking from the person of another of
goods or money to any value, by violence or putting him in
fear.” 4 WILLIAM BLACKSTONE, COMMENTARIES *241
(emphasis added).
And multiple treatises, including Blackstone’s, make clear
that the fear element of common law robbery could be induced
by threats of something other than violence. As Blackstone
explained, “extorting money or [any] other thing of value by
means of a charge of sodomy may be robbery.” Id. at *244
n.14; see also, e.g., WILLIAM L. CLARK & WILLIAM L.
MARSHALL, TREATISE ON THE LAW OF CRIMES 791 (Melvin F.
Wingersky ed., 6th ed. 1958) (“If a man threatens to accuse
another of . . . sodomy, and thereby obtains property from him,
the law regards it as a robbery . . . .”); 2 FRANCIS WHARTON,
TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 352
(7th ed. 1874) (noting robbery charges involving threats of a
sodomy accusation “and similar means”); 2 WILLIAM
OLDNALL RUSSELL & CHARLES SPRENGEL GREAVES, A
TREATISE ON CRIMES AND MISDEMEANORS 133 (9th Am. ed.
1877) (noting robbery by extortionate “threats to accuse”
another). Robbery came to encompass these threats because
they would “so injure a person that fear of [them] would
naturally cause [a victim] to give up his property.” WILLIAM
L. CLARK, JR., HANDBOOK OF CRIMINAL LAW 377 (3d ed.

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1915); see also White v. United States, 863 S.E.2d 483, 484–
492 (Va. 2021) (surveying the common law).
While common law robbery by extortionate threats was
limited to accusations of sodomy or an infamous crime, some
statutes evolved to include robbery by “extort[ing] money or
other things [through] threat[s] [of] a prosecution for any other
crime.” ROBERT DESTY, COMPENDIUM OF AMERICAN
CRIMINAL LAW 502 (1882). Indeed, the Supreme Court has
noted that using an accusation of sodomy to extort money from
the victim has been classified as extortion in some state statutes
and as robbery in others. United States v. Nardello, 393 U.S.
286, 294 (1969) (citing Kansas statute of robbery in the third
degree).
In sum, as LaFave’s treatise states,
“[t]he scope of robbery grew gradually:
formerly the offense seems to have been
confined to cases of actual violence to the
person; but in later times it has been extended to
constructive violence by putting in fear, and not
only to cases where property has been taken or
delivered under a threat of bodily violence to the
party robbed, or some other person, but also
where the fear has resulted from apprehension
of violence to the habitation and property, or
has been occasioned by threats of preferring a
charge of an infamous crime [i.e., sodomy or
attempted sodomy].”
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 (3d
ed. 2024) (emphasis added) (internal quotations and citations
omitted). The upshot of the common law is that some non-
violent extortionate threats rose to the level of robbery.

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Accordingly, the bright line between robbery and extortion that
the government seeks to draw is not so clear. And, as a result,
the government’s “old soil” argument has far less force.
The same is true with the government’s insistence that
Congress incorporated the common law into the bank robbery
statute. One clue suggesting that Congress rejected old soil in
the world of federal bank robberies is that it maintained the
same maximum penalty for bank robbery committed by force
and violence, intimidation, or extortion, which departs from the
common law’s application of greater punishment for robbery
than extortion. See 18 U.S.C. § 2113(a); Harris, 916 F.3d at
955 (quoting Commonwealth v. Froelich, 326 A.2d 364, 368
(Pa. 1974)). The Supreme Court’s interpretation of § 2113
further suggests Congress rejected old soil in drafting the bank
robbery statute. The Court has read other subsections in § 2113
as departing from their various common law roots. Bell v.
United States, 462 U.S. 356, 360 (1983) (finding bank larceny
in § 2113(b) “[went] beyond the common-law definition of
larceny”); Carter v. United States, 530 U.S. 255, 256, 264–67
(2000) (noting § 2113(a) and § 2113(b) “bear a close
resemblance to the common-law crimes of robbery and
larceny,” but “neither term appears in the text” and “the canon
on imputing common-law meaning [thus] ha[d] no bearing on
[the] case”).
What’s more, the text of § 2113(a) and its legislative
history further show that common law principles Congress may
have brought into the Hobbs Act disappear in the bank robbery
statute. Take the focus on consent as an element of extortion
and a historical difference between extortion and robbery. J.W.
EHRLICH, EHRLICH’S CRIMINAL LAW 260 (Matthew Bender &
Co. 1960) (“The element of extortion that the taking of the
property must be with the consent of the person from whom it
is obtained distinguishes extortion from robbery.” (citation

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omitted)); ROLLIN M. PERKINS, CRIMINAL LAW 327 (The
Foundation Press 1957) (noting the “distinction” between
“statutory extortion and robbery by intimidation” is whether
the victim “consents” to giving up property); see also CLARK
& MARSHALL, supra, at 794 (“Extortion is the obtaining of the
property of another, with his consent induced by the wrongful
use of force or fear or under color of official right.”). The
government notes this distinction in its brief and highlighted it
at argument.
Whatever work “consent” does in the common law and in
early statutory definitions of extortion, it appears Congress
imported that into the Hobbs Act. See 18 U.S.C. § 1951(b)(2)
(defining Hobbs Act extortion as “obtaining . . . property from
another, with [the victim’s] consent, induced by wrongful use
of actual or threatened force, violence, or fear, or under color
of official right” (emphasis added)); see also Ocasio, 578 U.S.
at 297 (Hobbs Act extortion involves obtaining property with
consent while robbery involves obtaining property against the
victim’s will). But in the bank robbery statute, Congress
neglected to give extortion any definition. See 18 U.S.C.
§ 2113(a). This omission is significant. In Nardello, the Court
refused to define “extortion” in the Travel Act solely by
reference to the common law because Congress declined to
define the term and the context and history strongly suggested
that Congress intended a broader meaning for the term than
common law extortion. 393 U.S. at 292–96. Likewise here,
the legislative history suggests that Congress may have viewed
extortion in the bank robbery context differently: the House
Report accompanying the 1986 amendment specified “[t]he
term ‘extortion’ as used in 18 U.S.C. § 2113(a) means
obtaining property from another person, without the other
person’s consent, induced by the wrongful use of actual or
threatened force, violence, or fear.” H.R. REP. NO. 99-797, at
33 (1986) (emphasis added).

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The government insists that the language in the House
Report contrary to the common law meaning of extortion must
have been a typo, and that the report actually meant to say that
bank robbery by extortion is a taking completed with the other
person’s consent. See Appellee Br. 18 n.7; Oral Arg. Tr. 65.
That is one possible interpretation, and we do not need to
definitively interpret the House Report to resolve this case.
Nevertheless, we observe that the government cites no
evidence to support its contention that Congress imported
extortion’s common law tradition wholesale into the bank
robbery statute. Further, we do not ordinarily presume that a
Congressional report does not mean what it says. Cf. Niz-
Chavez v. Garland, 593 U.S. 155, 161 n.1 (2021) (courts may
apply “scrivener’s error” doctrine when construing statutes
only in those “unusual” and “exceptional circumstances”
where the “obvious” intent of Congress is contrary to the plain
text (citations omitted)). Instead, it seems equally likely that
the House Report reflects a rejection of the legal fiction that
money taken due to an extortionate threat during a bank
robbery should be considered as taken “with the consent” of
the bank. As stated by one court, “the use of the concept of
consent in this context is not necessarily the most informative
method of distinguishing between the crimes” of robbery and
extortion. Froelich, 326 A.2d at 368. Yet another court has
said the use of “consent” to distinguish extortion from robbery
“is at best a distinction without a difference.” People v. Krist,
296 N.W.2d 139, 141 (Mich. App. 1980); see also LAFAVE,
supra, § 20.4(b) (noting that “in spite of the different
expressions” of “against the will of the victim” and “with the
consent of the victim” used to distinguish robbery from
extortion, “there is no difference here, for both crimes equally
require that the defendant's threats induce the victim to give up
his property, something which he would not otherwise have
done” (cleaned up)).

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C.
We next consider whether any binding precedent compels
us to disregard § 2113(a)’s text, structure, and common law and
statutory history. The Court in Richardson v. United States,
526 U.S. 813, 817 (1999), noted in dictum that “force” and the
“threat of force” are two “means” to commit the same element
in § 2113(a)—and there is little daylight between that
characterization of means and the proposition that violence,
intimidation, and extortion are different means to commit bank
robbery. Still, neither this Court nor the Supreme Court has
explicitly addressed the bank robbery statute’s divisibility as to
extortion. The government concedes that our recent decision
in Carr, 946 F.3d at 599, “is not directly controlling here
because it did not address [A]ppellants’ claim.” Appellee’s Br.
18.
According to the government, “[e]very federal court of
appeals that has addressed this issue has similarly concluded
that § 2113(a) is divisible between robbery and extortion.” Id.
19. We are not persuaded. We start with the decisions from
the Second, Ninth, and Eleventh Circuits. The last of those, In
re Jones, No. 16-14106-J, 2016 U.S. App. LEXIS 23578 (11th
Cir. July 27, 2016), does not help the government. Jones
assumed that “in every § 924(c) armed bank robbery case, the
federal indictment will make clear that the companion
conviction is an armed bank robbery, rather than some other
offense criminalized by § 2113(a).” 2016 U.S. App. LEXIS
23578, at *12. The factual presumption of the Jones court is
fatally undermined by the list of indictments Perkins cites, each
of which charged bank robbery by force, violence,
intimidation, and extortion in a single count. Perkins Reply Br.
14–15.

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The government fares no better with United States v.
Watson, 881 F.3d 782, 786 (9th Cir. 2016) (per curiam), and
United States v. Evans, 924 F.3d 21, 28 (2d Cir. 2019). See
Appellee’s Br. 19. The Watson Court stated, in cursory
fashion, that § 2113(a) “contains at least two separate offenses,
bank robbery and bank extortion.” 881 F.3d at 786 (citing
United States v. Jennings, 439 F.3d 604, 612 (9th Cir. 2006);
United States v. Eaton, 934 F.2d 1077, 1079 (9th Cir. 1991)).
Jennings and Eaton, the cases cited in Watson, do not support
the government’s divisibility argument here; they neither
conducted a divisibility analysis nor addressed in any way
whether force and violence, intimidation, and extortion are
alternative means or elements. The same is true with the
government’s cite to Evans, which simply relied on Watson to
summarily reject an indivisibility argument. 924 F.3d at 28.
The Second Circuit stated in passing that it “need not address
Evans’s argument regarding bank robbery ‘by extortion,’” id.,
because it “agree[d] with [Watson] that § 2113(a) ‘contains at
least two separate offenses, bank robbery and bank extortion.’”
Id. (quoting Watson, 881 F.3d at 786); see also Collier v.
United States, 989 F.3d 212, 219 n.9 (2d Cir. 2021) (citing
Evans to again say the Second Circuit follows the Ninth
Circuit’s Watson decision).
Last in line for the government’s out-of-circuit authority is
King v. United States, 965 F.3d 60 (1st Cir. 2020). There, the
Court found the bank robbery statute divisible as to extortion.
Id. at 67–71. King is also not persuasive, primarily because it
rests on the same argument as the government does here—that
§ 2113(a) “tracks the common law differences between the
offenses of robbery (a taking against the victims’ will) and
extortion (obtaining with the victim’s consent).” Id. at 68
(citations omitted). But, as discussed, the common law
differences between robbery and extortion are far more facile
than the government (and King) represents, and we are

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convinced that Congress took a different tack in § 2113(a). See
supra Section II.B.
At bottom, the government’s reliance on purported
unanimity among our sister circuits lacks force. We opt to
follow Mathis and exercise our judgment in determining
§ 2113(a)’s “single, best meaning.” Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244, 2266 (2024). Subsection 2113(a)
is indivisible.
D.
The parties also address what a “peek” at the record
documents tells us about the divisibility of § 2113(a). Mathis
instructed that courts need only look at record documents if the
plain text and caselaw are unilluminating. 579 U.S. at 518–19.
And, as we have explained, it remains an open question in this
circuit whether or how Mathis’s instructions to consider state
court decisions and record documents such as indictments
might translate to the non-ACCA context. We do not answer
that question in this case, where the text clearly supports
indivisibility and the reasoning in non-binding out-of-circuit
caselaw does not point us to the opposite answer.
We note only, as the belt to accompany our suspenders,
that Burwell’s and Perkins’s citations to charging documents
further suggest § 2113(a) is indivisible. Charging documents
cannot charge “separate offenses in a single count.” 5 WAYNE
F. LAFAVE ET AL., CRIMINAL PROCEDURE § 19.3(d) (4th ed.
2024) (citations omitted); see also United States v. Klat, 156
F.3d 1258, 1266 (D.C. Cir. 1998). Yet, the government has
indicted defendants in a single count using the trio of bank
robbery methods (force and violence, intimidation, and
extortion) on multiple occasions, Perkins Reply Br. 14–15,
which shows that each is a means to commit the single offense

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of bank robbery. We do not credit the government’s response
that these examples constitute mere “sloppy drafting” that
should not “‘override’ other ‘clear indications’” that the statute
is divisible. Appellee’s Br. 26 (quoting United States v.
Furlow, 928 F.3d 311, 322 (4th Cir. 2019)). For one, there are
no “clear indications” that § 2113(a) is divisible, as we have
previously explained. See supra Sections II.A, II.B. Second,
the government has not offered any evidence to suggest that the
indictments reflected sloppy drafting rather than a policy
decision to charge defendants for bank robbery by any of three
available means. Here, for example, where the facts indicated
that Burwell and Perkins committed bank robbery by force and
violence, the indictment did not include the alternative means
of intimidation or extortion.
Likewise, model jury instructions for the Seventh and
Ninth Circuits and at least one district court treat force and
violence, intimidation, and extortion as alternative means of
committing the single offense of bank robbery. The Seventh
Circuit model instructions define the third element of bank
robbery as “[t]he defendant acted to take such [money;
property; specific thing of value] by force and violence, or by
intimidation.” O’Malley et. al., Fed. Jury Prac. & Instr. § 57:03
(7th ed. 2024 Update). Further, the Seventh Circuit model
instruction specifies that “[t]he statute, at § 2113(a), ¶ 1,
includes a means of violation for whoever ‘obtains or attempts
to obtain by extortion.’ If a defendant is charged with this
means of violating the statute, the instruction should be adapted
accordingly.” Id. (emphasis added).
Similarly, the Ninth Circuit model instructions describe
the first element of bank robbery as “the defendant, through
force and violence or intimidation, [[took] [obtained by
extortion] [[property] [money] [something of value]]
belonging to or in the care, custody, control, management or

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possession of [specify financial institution].” MANUAL OF
MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT
COURTS OF THE NINTH CIRCUIT (2022 ed.) (emphasis omitted).
Likewise, this instruction describes obtaining money by
extortion as simply another means of committing the offense,
the same as by use of force and violence or by intimidation.
See also Ruschky & Shealy, Pattern Jury Instructions for
Federal Criminal Cases, District of South Carolina 375 (2024
ed.) (bank robbery’s second element is “that the taking was by
force and violence or by intimidation [or the obtaining was by
extortion]” (emphasis added)). In United States v. Goodridge,
392 F. Supp. 3d 159, 178 (D. Mass. 2019), the Court concluded
that because the First Circuit model instructions “do not
include ‘extortion’ as a means of committing bank robbery,”
the instructions “indicat[e] bank extortion is a separate
offense.” We do not find that using an omission in this manner
to prove the point is compelling—not only because there are
multiple model instructions to the contrary, but also because
the First Circuit model instructions do not elsewhere provide a
separate instruction for the purported “separate offense” of
bank extortion. See PATTERN CRIMINAL JURY INSTRUCTIONS
FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT 258–61 (D.
Me. Internet Site ed. Feb. 26, 2024). Accordingly, a look to
charging documents and model jury instructions would require
the same conclusion as the plain text does on the indivisibility
of § 2113(a).
III.
For these reasons, we hold that bank robbery under 18
U.S.C. § 2113(a) is indivisible as to extortion and therefore
does not qualify as a “crime of violence” under 18 U.S.C.
§ 924(c) in Burwell’s and Perkins’s cases. We vacate both
§ 924(c) convictions and remand to the District Court with

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instructions to determine expeditiously whether to release
Burwell and Perkins immediately.
So ordered.

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