Taylor Does Not Reach § 2113 Attempted Bank Robbery; Vowell Controls Waiver Analysis Over Portis in § 2255 Cases

Introduction

In Melvin R. Hill v. United States, No. 23-3665 (6th Cir. Nov. 4, 2025) (not recommended for publication), a Sixth Circuit panel (Judges Moore, Clay, and White; opinion by Judge Clay) affirmed the denial of § 2255 relief to a defendant whose § 924(c) conviction was predicated on attempted armed bank robbery under 18 U.S.C. § 2113(a), (d), and (g). Hill argued that the Supreme Court’s decision in United States v. Taylor, 596 U.S. 845 (2022)—which held that attempted Hobbs Act robbery is not a “crime of violence” under § 924(c)’s elements clause—rendered his § 924(c) conviction invalid. The government sought dismissal based on Hill’s collateral-attack waiver.

The Sixth Circuit denied the government’s motion to dismiss and affirmed on the merits, articulating two key principles:

Vowell v. United States, 938 F.3d 260 (6th Cir. 2019), remains binding over Portis v. United States, 33 F.4th 331 (6th Cir. 2022), on whether a knowing and voluntary waiver bars a § 2255 challenge premised on a change in law rendering a sentence statutorily excessive.
Taylor does not constitute a change in law affecting § 924(c) convictions predicated on attempted bank robbery under § 2113; the Hobbs Act analysis in Taylor is inapposite given the materially different statutory elements of § 2113.

Summary of the Opinion

The court first denied the government’s motion to dismiss, explaining that enforcing the plea waiver could not be decided without also addressing the merits—i.e., whether Taylor effected a change in law that would trigger the Vowell exception to waiver enforcement. On the waiver question, the panel reaffirmed that Vowell is binding circuit precedent and that Portis cannot displace it absent en banc or Supreme Court intervention.

Turning to the merits necessary to resolve the waiver, the court concluded that Taylor addressed attempted Hobbs Act robbery under 18 U.S.C. § 1951 and did not change the law applicable to attempted armed bank robbery under § 2113(a) and (d). Because Taylor did not render Hill’s sentence statutorily excessive or otherwise undermine the § 924(c) predicate, the Vowell exception to waiver enforcement did not apply. The court also rejected a miscarriage-of-justice argument for the same reason and affirmed the district court’s denial of § 2255 relief.

Factual and Procedural Background

On October 11, 2017, Hill drove two men to a credit union to commit a robbery. One accomplice carried an assault-style rifle and announced a robbery; when a security guard drew his weapon, the assailants fled, dropping the gun. Hill and both men were arrested nearby.

Hill pleaded guilty to:

Attempted armed bank robbery, 18 U.S.C. § 2113(a), (d), and (g); and
Using or carrying, and brandishing a firearm during a crime of violence, in violation of § 924(c) (aiding and abetting).

The plea agreement included a waiver of the right to direct appeal and collateral attack, but expressly reserved the right to appeal any punishment in excess of the statutory maximum or a sentence exceeding the guideline range maximum.

The PSR calculated a guideline range of 30–37 months for the § 2113 count (statutory maximum 25 years) and recommended the mandatory-consecutive minimum of 84 months for the § 924(c) brandishing count. Without objection, the district court imposed 24 months on the § 2113 count and 84 months consecutive on the § 924(c) count (total 108 months).

In June 2020, Hill filed a § 2255 motion invoking United States v. Davis, 588 U.S. 445 (2019) (striking § 924(c)’s residual clause) and Dean v. United States, 581 U.S. 62 (2017) (district court discretion when imposing sentences alongside § 924(c) terms). The government opposed. After Taylor was decided in June 2022, Hill supplemented to argue that his § 924(c) conviction was invalid because attempted robbery is not a crime of violence under the elements clause. The district court denied relief in July 2023, holding that the waiver barred the Taylor claim but granting a limited certificate of appealability as to the Taylor issue.

On appeal, the government moved to dismiss based on the waiver. The panel denied the motion (intertwined with the merits) and affirmed the district court’s judgment.

Analysis

Precedents Cited and Their Influence

United States v. Taylor, 596 U.S. 845 (2022): Taylor held that attempted Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A) when analyzed under the categorical approach. The Sixth Circuit emphasized that Taylor’s holding concerned § 1951 (Hobbs Act) and did not alter the legal status of attempted bank robbery under § 2113. The panel used Taylor’s reliance on the categorical approach to underscore that the methodology predated Hill’s plea and did not represent a new legal development for § 2113 offenses.
Vowell v. United States, 938 F.3d 260 (6th Cir. 2019): Vowell stands for the rule that a defendant may bring a § 2255 challenge alleging a sentence became statutorily excessive due to a subsequent change in law, even if the defendant knowingly and voluntarily waived collateral review. The panel held that Vowell is binding circuit law and directly governs waiver enforceability when a defendant invokes a post-plea change in law.
Portis v. United States, 33 F.4th 331 (6th Cir. 2022): Portis suggested that collateral-attack waivers generally remain enforceable despite changes in law. The panel explained that to the extent Portis contradicts Vowell, Portis’s statements are non-binding dicta. The panel relied on the circuit’s internal stare decisis rule and on Wright v. Spaulding to classify Vowell’s waiver holding as binding.
Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019): Provided the framework distinguishing holdings from dicta. The court applied Wright to conclude that Vowell’s waiver exception was a holding: it contributed to the judgment, was actively applied, and was the product of deliberate analysis.
United States v. Moody, 206 F.3d 609 (6th Cir. 2000) and Salmi v. Secretary of HHS, 774 F.2d 685 (6th Cir. 1985): Articulated the panel rule that one panel cannot overrule another; only en banc or Supreme Court authority can do so. This cemented Vowell’s precedence over Portis.
United States v. Rafidi, 829 F.3d 437 (6th Cir. 2016): Cited to show the categorical approach for § 924(c) predicates has long been applied in this circuit, supporting the conclusion that Taylor did not represent a new methodology that would change the legal status of § 2113 attempted bank robbery.
United States v. Davis, 588 U.S. 445 (2019): Held § 924(c)’s residual clause unconstitutional. The district court (and, implicitly, the panel) recognized Davis did not aid Hill because Hill’s predicate remained subject to the elements clause, not the residual clause.
Dean v. United States, 581 U.S. 62 (2017): Recognized district court discretion in structuring sentences alongside § 924(c) terms. The district court denied relief because Hill showed no constitutional error or substantial prejudice; the panel did not disturb that ruling.
United States v. Rhodes, 27 F. App’x 265 (6th Cir. 2001) and United States v. Fleming, 239 F.3d 761 (6th Cir. 2001): Supported considering appeal-waiver issues via motion practice but also underscored the need to reach the merits when waiver enforceability is intertwined with them.
United States v. Mathews, 534 F. App’x 418 (6th Cir. 2013) and United States v. Johnson, No. 23-5327, 2024 U.S. App. LEXIS 10387 (6th Cir. Apr. 29, 2024): Unpublished authorities implying a miscarriage-of-justice exception to waiver enforcement. The panel acknowledged the concept but found no miscarriage because Taylor did not invalidate Hill’s predicate.
Davis v. United States, 417 U.S. 333 (1974): Established that a conviction for conduct later determined to be non-criminal may warrant § 2255 relief as a miscarriage of justice. The panel distinguished Hill’s case because Taylor did not decriminalize his conduct or negate the crime-of-violence status of § 2113 attempted bank robbery.

Legal Reasoning

The court’s logic proceeds in three steps: threshold disposition of the motion to dismiss; waiver enforceability; and the limited merits analysis necessary to resolve the waiver question.

Motion to dismiss: The panel denied the government’s motion because whether the appeal was barred by waiver depended on whether Taylor effected a change in law that would trigger the Vowell exception. That inquiry overlaps with the merits, so dismissal at the threshold was inappropriate.
Waiver and panel stare decisis: The court evaluated the plea waiver under de novo standards for both § 2255 denials and plea-agreement interpretation. It reaffirmed the panel rule that earlier panel decisions bind later panels. Applying Wright v. Spaulding, the court held Vowell’s waiver exception is a binding holding and that Portis’s contrary statements are non-binding dicta to the extent of conflict. Therefore, a waiver does not bar a § 2255 challenge that rests on a post-plea change in law rendering the sentence statutorily excessive.
Did Taylor constitute the requisite change in law? To trigger Vowell’s exception, Taylor must have changed the law in a way that makes Hill’s § 924(c) sentence unlawful. The court concluded it did not. Taylor addressed attempted Hobbs Act robbery (§ 1951) and its attempt elements under the categorical approach. Hill’s predicate is attempted federal bank robbery (§ 2113(a), (d)). Section 2113, unlike the Hobbs Act, contains elements such as taking or attempting to take property “by force and violence, or by intimidation,” and, in § 2113(d), assaulting a person or putting a life “in jeopardy” by using a dangerous weapon. The panel emphasized these material differences and noted that the categorical approach predated Taylor (and was regularly applied in § 924(c) cases in this circuit), meaning Taylor neither introduced a new method nor resolved the status of § 2113 attempts. Because Taylor did not undermine § 2113 attempted bank robbery as a crime of violence, Hill’s § 924(c) conviction remains valid, and his sentence is not rendered statutorily excessive. The waiver thus remains enforceable, and no miscarriage-of-justice exception applies.

Impact

Although unpublished and therefore non-precedential, this decision carries practical implications for district courts and litigants in the Sixth Circuit:

Taylor’s reach is limited: Defendants with § 924(c) convictions predicated on § 2113 attempted bank robbery cannot rely on Taylor to invalidate their convictions. The panel underscores the statutory differences between the Hobbs Act and federal bank robbery statutes and confirms that Taylor did not change the law applicable to § 2113 predicates.
Waiver doctrine clarity: Courts should treat Vowell as binding authority within the circuit. A knowing and voluntary waiver does not foreclose a § 2255 challenge premised on a post-plea change in law that renders a sentence unlawful. Portis cannot be read to overrule Vowell. Practitioners should draft plea agreements with awareness that a Vowell-style carve-out may exist as a matter of law when a true intervening legal change occurs.
Procedural posture of waiver-based dismissals: When waiver enforceability depends on resolving whether a post-plea legal development applies, district courts and panels may need to reach the merits rather than disposing of appeals via motions to dismiss.
Miscarriage-of-justice claims: The panel signaled that enforcing waivers despite retroactive changes in law could be a miscarriage of justice in some circumstances (e.g., decriminalization), but not where the asserted change (Taylor) does not actually affect the predicate offense at issue.

Complex Concepts Simplified

Categorical approach: Courts assess whether a predicate offense qualifies as a “crime of violence” by looking only to the legal elements of the offense, not the real-world facts. If the minimum conduct criminalized by the statute requires the “use, attempted use, or threatened use of physical force,” the offense qualifies. Taylor used this approach for the Hobbs Act and found the attempt offense could be satisfied without the use or attempted use of force.
Elements clause vs. residual clause: After Davis invalidated § 924(c)’s residual clause as vague, only the elements clause remains. That clause looks to whether the offense, by its elements, necessarily involves force or attempted/threatened force.
“Statutory maximum” vs. “Guidelines maximum”: A statute sets a hard ceiling (e.g., 25 years for § 2113(d)); the Sentencing Guidelines provide an advisory range based on offense level and criminal history (e.g., 30–37 months here). Hill’s plea reserved the right to challenge sentences exceeding either ceiling, which mattered only if Taylor invalidated the § 924(c) count and thereby transformed the 84-month consecutive term into an unlawful excess. Because Taylor did not invalidate the § 924(c) predicate, the reservation did not assist him.
Panel stare decisis: Within the Sixth Circuit, one panel cannot overrule another panel’s published holding. Only the en banc court or the Supreme Court can do that. When two panel decisions conflict, the earlier holding controls. The court used this rule to prioritize Vowell over any contrary language in Portis.
Miscarriage-of-justice exception to waivers: Some Sixth Circuit decisions (generally unpublished) suggest that enforcing a waiver can be excused to avoid a miscarriage of justice, such as where a retroactive change in law negates the criminality of conduct. The exception is narrow and inapplicable where no such change occurred.

Case Timeline at a Glance

2017: Attempted armed robbery of a credit union; Hill serves as getaway driver; arrests follow.
Plea: Hill pleads guilty to attempted armed bank robbery (§ 2113) and § 924(c) brandishing (aiding and abetting), with an appeal/collateral-attack waiver reserving certain excess-sentence claims.
2018: PSR calculates 30–37 months for § 2113 count; mandatory 84 months consecutive for § 924(c). Sentence: 24 + 84 = 108 months.
2020: § 2255 motion filed invoking Davis and Dean.
2022: Taylor decided (attempted Hobbs Act robbery not a § 924(c) crime of violence).
2023: Hill supplements with Taylor; district court denies § 2255, enforces waiver, but grants limited COA on Taylor/waiver issue.
2025: Sixth Circuit denies the government’s motion to dismiss and affirms, holding Vowell controls the waiver analysis but Taylor is inapplicable to § 2113 attempted bank robbery.

Conclusion

The Sixth Circuit’s decision delivers two salient takeaways. First, Taylor’s categorical-approach ruling for attempted Hobbs Act robbery does not extend to attempted federal bank robbery under § 2113; the statutes differ materially, and Taylor did not change the law applicable to § 2113 predicates. Consequently, § 924(c) convictions predicated on § 2113 attempted bank robbery remain intact notwithstanding Taylor. Second, within the Sixth Circuit, Vowell remains the governing authority on waiver enforceability: a knowing and voluntary waiver does not bar a § 2255 challenge if a post-plea change in law renders a sentence statutorily excessive. Portis cannot be read to displace Vowell’s holding.

Because Taylor did not render Hill’s sentence unlawful or negate the crime-of-violence status of his § 2113 predicate, neither the Vowell exception nor any miscarriage-of-justice principle applied. The court therefore denied the government’s motion to dismiss (given the merits overlap) and affirmed the district court’s denial of § 2255 relief. Even as an unpublished opinion, Hill offers clear guidance: Taylor is not a one-size-fits-all key to unlocking § 924(c) convictions, and Vowell continues to shape waiver analysis in the Sixth Circuit.