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. 2 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. 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 u