Aiding and Abetting Attempted Bank Robbery Resulting in Death as a Crime of Violence Under 18 U.S.C. § 924(c)(3)(A)

Introduction

This commentary examines Marcellus Henderson v. United States, No. 21-11740 (11th Cir. Apr. 10, 2025), in which the Eleventh Circuit addressed whether “aiding and abetting attempted bank robbery resulting in death” under 18 U.S.C. §§ 2113(a), (d) & (e) qualifies as a “crime of violence” under the elements clause of 18 U.S.C. § 924(c)(3)(A). Marcellus Henderson, a federal prisoner, challenged his consecutive sentence imposed for using a firearm in relation to that offense, invoking the Supreme Court’s decisions in United States v. Davis (2019) and Taylor (2022). The key issue was whether an attempt charge predicated on bank robbery statutes necessarily requires the use, attempted use or threatened use of physical force.

Parties:

Petitioner-Appellant: Marcellus Henderson, convicted of conspiracy, attempted bank robbery resulting in death (aiding and abetting), and use of firearms in relation to a crime of violence.
Respondent-Appellee: United States of America.

Summary of the Judgment

The Eleventh Circuit, sitting en banc by per curiam, affirmed the district court’s denial of Henderson’s second or successive 28 U.S.C. § 2255 motion. It held that:

Under the categorical approach, an offense is a “crime of violence” if its elements always include the use, attempted use or threatened use of physical force.
Section 2113(a) (bank robbery by “force and violence or intimidation”) is divisible between robbery and extortion, so courts apply the modified categorical approach to identify the specific crime of conviction.
Bank robbery attempts under § 2113(a), and by extension offenses under §§ 2113(d) and (e), require proof of force or intimidation and thus qualify as crimes of violence under § 924(c)(3)(A).
United States v. Taylor (2022) does not overrule prior Eleventh Circuit precedent (In re Sams, In re Hines) holding that § 2113(a) offenses are crimes of violence, because Taylor addressed Hobbs Act robbery, not federal bank robbery statutes.

Analysis

Precedents Cited

18 U.S.C. § 924(c): Defines “crime of violence” by an elements clause (3(A)) and a now-invalidated residual clause (3(B)).
United States v. Davis (2019): Invalidated the residual clause in § 924(c)(3)(B), restricting qualifying offenses to those that satisfy § 924(c)(3)(A).
United States v. Taylor (2022): Held attempted Hobbs Act robbery is not a § 924(c)(3)(A) crime of violence, because it can be committed without actual or threatened force.
In re Sams (11th Cir. 2016): Held § 2113(a) bank robbery (“force and violence” or “intimidation”) qualifies as a crime of violence under the elements clause.
In re Hines (11th Cir. 2016): Extended Sams to armed bank robbery under § 2113(d).
United States v. Armstrong (11th Cir. 2024): Reaffirmed that § 2113(a) robbery and aiding and abetting are crimes of violence, distinguishing Taylor’s Hobbs Act context and applying the modified categorical approach.
Mathis v. United States (2016): Established the concept of statutory divisibility for categorical analysis.

Legal Reasoning

The court applied a two-step framework:

Categorical Approach: Does the statute’s elements always require the use, attempted use, or threatened use of force? If yes, the offense is a crime of violence. If no, proceed to step two when the statute is divisible.
Modified Categorical Approach: When a statute lists alternative elements that define multiple crimes, examine the charging documents (indictment, plea agreement, jury instructions) to determine which statutory alternative formed the basis of conviction.

Applying this framework, the court found:

Section 2113(a) is divisible between “taking by force or violence” (robbery) and “obtaining by extortion” (intimidation without force). Under Mathis, it is therefore divisible.
Henderson’s indictment and conviction rested on bank robbery by intimidation and force, not extortion, meeting the elements clause’s force requirement.
Attempted bank robbery charges under § 2113(a) incorporate the same “force and violence or intimidation” element, so they cannot be satisfied by non-violent acts alone. In re Sams and Kelley hold that “intimidation” entails a threatened use of force.
Taylor’s reasoning about Hobbs Act robbery does not apply to §§ 2113(a)–(e) because Congress expressly criminalized attempts “by force and violence, or by intimidation”—language that Taylor did not interpret and that plainly demands force or its threat.

Impact

This decision reinforces a clear boundary between federal bank robbery and Hobbs Act robbery when determining predicate crimes for § 924(c). Key consequences include:

Certainty for sentencing: Federal court practitioners can rely on § 2113(a) and related subsections as valid predicates for § 924(c) enhancements.
Limitation of Taylor: The ruling clarifies that Taylor does not extend to statutes with express force-or-intimidation language.
Guidance on divisibility: Courts will uniformly apply the modified categorical approach to § 2113(a), sharpening the line between robbery and extortion.
Collateral review stability: Defendants challenging § 924(c) sentences on the ground that their predicate was not a crime of violence will face a steep burden if their conviction rests on § 2113(a) conduct.

Complex Concepts Simplified

Categorical vs. Modified Categorical Approach: Courts first look only at the statute’s elements (categorical). If the statute lists alternate ways to commit the crime, courts then consult a narrow set of documents to see which version the defendant was convicted under (modified categorical).
Statutory Divisibility: A statute is divisible if it sets out multiple, alternative elements—each defining a different offense—rather than mere means of committing a single element.
§ 924(c)(3)(A) Elements Clause: Defines “crime of violence” as an offense whose elements “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
Residual Clause vs. Elements Clause: The residual clause (§ 924(c)(3)(B)) was struck down for vagueness; only the elements clause remains available to identify predicate crimes of violence.
Aiding and Abetting Liability: Not a separate crime. It treats someone who helps or encourages another to commit an offense as if they themselves had committed it.
Successive § 2255 Motion & COA: A second or successive collateral attack requires certification from the appeals court (COA). Henderson obtained a COA on whether his predicate offense qualified under the elements clause.

Conclusion

Marcellus Henderson v. United States cements the principle that attempted bank robbery resulting in death under 18 U.S.C. § 2113(a), (d), and (e) is categorically a crime of violence for § 924(c) purposes. By distinguishing federal bank robbery statutes from Hobbs Act robbery, and by applying the modified categorical approach to a divisible statute, the Eleventh Circuit reaffirmed its earlier holdings in In re Sams and In re Hines. This decision offers clarity on the force requirement in § 924(c)(3)(A) and narrows the scope of Taylor, ensuring that defendants cannot use the invalidation of the residual clause to undermine predicate offenses that explicitly require force or intimidation.