Sentencing; Second or successive 28 USC § 2255 motion to vacate, set aside, or correct a portion of a sentence; Whether the 60-month sentence for abetting using or carrying a firearm during & in relation to a crime of violence was imposed under 18 USC § 924(c)(3)(B)’s unconstitutionally vague “residual clause”; Whether the sentence could be saved under § 924(c)(3)(A)’s “elements clause”; Whether aiding & abetting attempted robbery (§ 2111) is a “crime of violence” for purposes of the elements clause; § 924(c)(1)(A)(i)

The court held that because aiding and abetting attempted robbery is a “crime of violence” for purposes of § 924(c)(3)(A)’s “elements clause,” defendant-Harris failed to establish prejudice arising from his § 924(c) sentence, and his second or successive § 2255 motion was properly denied. He pled guilty to aiding and abetting second-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence. He was sentenced to 420 months on the murder conviction, 180 months on the attempted robbery conviction, and a consecutive 60-month sentence on the firearm conviction. He challenged the 60-month sentence, arguing it was imposed under § 924(c)(3)(B)’s unconstitutionally vague “residual clause.” Although nothing in the record indicated the district court relied on the residual clause, Harris claimed that since “nothing in the record of his conviction and sentence indicates that the district court did not rely upon the unconstitutional residual clause . . . the residual clause actually must have been the basis for the district court’s finding.” The court rejected this reasoning, noting that the district court was not required to engage in a “categorical-approach analysis” where a conviction under “§ 2111 requires a taking or an attempted taking from a person ‘by force and violence, or by intimidation.’” Additionally, even if the district court had relied on the residual clause, Harris had to establish that “neither of his predicate offenses qualified for enhanced sentencing under § 924(c)(3)’s elements clause.” As to the attempted robbery conviction, the government did not have to show “that every element of a § 2111 violation is included in the definition of generic robbery.” Rather, § 924(c)(3)(A) only requires “that the predicate offense for which a defendant was convicted necessarily ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’” The court concluded that because “‘intimidation’ ‘involves the threat to use physical force,’ . . ., and because even attempts to take anything of value from a person ‘by force and violence, or by intimidation’ constitute § 2111 violations . . . § 2111 is a crime of violence for purposes of § 924(c)(3)(A).” Affirmed.