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`CERTIFICATE OF PARTIES,
`RULINGS, AND RELATED CASES
`Pursuant to D.C. Circuit Rule 28(a)(1), appellee states as follows:
`
`Parties and Amici
`The parties to these appeals are appellant Bryan Burwell (16-3009,
`
`
`
`
`
`16-3072, 21-3041, 24-3017), appellant Aaron Perkins (23-3031), and
`
`appellee, the United States of America. There are no amici.
`
`Rulings Under Review
`Burwell appealed from orders issued by the Honorable Colleen
`
`
`
`Kollar-Kotelly on January 15, 2015 (Burwell Appendix (BA.) 169-70),
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`February 16, 2016 (BA.230-31), June 10, 2021 (BA.325), and February 7,
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`2024 (BA.415), denying his claims pursuant to 28 U.S.C. § 2255. Perkins
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`appealed from Judge Kollar-Kotelly’s order issued on February 7, 2023
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`(Perkins Appendix (PA.) 341), denying his § 2255 claim. On December 9,
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`2024, a panel of this Court issued a decision unanimously reversing the
`
`district court’s rulings on both appellants’ § 2255 claims pursuant to
`
`Johnson v. United States, 576 U.S. 591 (2015) (attached as Addendum).
`
`

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`ADDENDUM
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`
`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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`2
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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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`3
`
`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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`4
`
`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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`5
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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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`6
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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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`7
`
`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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`8
`
`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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`9
`
`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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`10
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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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`11
`
`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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`12
`
`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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`13
`
`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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`14
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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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`15
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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 th