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A PAIR OF ‘CRIME OF VIOLENCE’ DECISIONS
Two decisions handed down last week show that the battle over what violent crimes might be considered “crimes of violence” for purposes of sentence enhancements continues to rage. And, for that matter, illustrate the absurdity that surrounds federal courts’ attempts to determine what might be a “crime of violence” sufficient to trigger an enhanced Guidelines sentence or the application of a mandatory consecutive sentence for carrying a gun.
In United States v. Pimental, Richard Pimental was classified as a Guidelines “career offender” due to two prior crimes of violence. One was Massachusetts carjacking, which outlaws stealing a car by assaulting, confining, maiming, or putting any person in fear.
The 1st Circuit has held that Massachusetts carjacking by assault can be committed by a “mere touching,” without use of physical force. The Circuit noted that while the Massachusetts courts had “occasionally suggested in dictum” that assault “might require a threat or attempt to cause physical harm,” they had “never repudiated either the principle that assault is attempted or threatened battery or the principle that battery does not require violent force.”
Because a Massachusetts carjacking could be committed through mere “offensive touching,” it did not require force or threat of force. Thus, the level of force needed “was broader than the ‘violent force’ required by the guidelines’ force clause… Massachusetts simple assault [is] not a categorical match with a crime of violence under the guidelines.”
Richard’s sentence was vacated.
A different outcome resulted for Defendant Monte Straite. He was convicted of attempted armed bank robbery under 18 USC § 2113(d) after returning to rob the same bank (for a second time) with a gun, but being thwarted when the manager locked the door to keep him out. He was also convicted of possessing a gun during a crime of violence under 18 USC § 924(c).
Monte argued that attempted armed bank robbery under 18 USC § 2113(d) could be committed without using or threatening force. In his case, force was neither used nor threatened because he was locked out of the bank he wanted to rob.
Last week, the 4th disagreed. While the Supreme Court has ruled that an attempted Hobbs Act robbery under 18 USC § 1951 is not a crime of violence because the attempt does not require force to commit, bank robbery under 18 USC § 2113 is different. The statute says, “Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent” to rob the bank is guilty. The grammar rules, the Circuit said:
The plain language of this is quite clear… Because committing and attempting to commit the offense both require either assault or putting in jeopardy, Section 2113(d), and because the assault and the putting in jeopardy both require use of a dangerous weapon or device, this offense categorically requires the use, attempted use, or threatened use of physical force.
United States v. Pimental, Case No. 24-1910, 2026 U.S.App. LEXIS 14457 (1st Cir. May 20, 2026)
United States v. Straite, Case No. 23-6872, 2026 U.S.App. LEXIS 14149 (4th Cir. May 18, 2026)
~ Thomas L. Root