In Pannell v. United States, No. 21–2849 (2d Cir. Aug. 28, 2024) (Menashi, joined by Raggi and Wesley), the Second Circuit held that postal robbery and aggravated postal robbery, 18 U.S.C. § 2114(a), even pursuant to a Pinkerton theory of liability, are 18 U.S.C. § 924(c) crimes of violence.
A jury convicted Pannell of conspiracy to commit postal robbery, aggravated postal robbery, and brandishing a firearm during and in relation to a crime of violence, namely, the aggravated postal robbery. After Johnson v. United States, 576 U.S. 591 (2015), and United States v. Davis, 588 U.S. 445 (2019), Pannell filed a successive 28 U.S.C. § 2255 motion challenging his § 924(c) conviction on the ground that aggravated postal robbery on a Pinkerton theory of liability was not a valid predicate crime of violence. The district court (Gershon, EDNY) denied the motion and the Second Circuit affirmed.
First, relying on Gomez v. United States, 87 F.4th 100 (2d Cir. 2023), the Circuit rejected Pannell’s Pinkerton argument, explaining: “Under a Pinkerton theory the defendant is convicted of the substantive offense―not of conspiring to commit the offense―so he has committed a crime of violence if the substantive offense is a crime of violence. For that reason, a Pinkerton instruction does not affect the status of a predicate offense as a crime of violence.” (slip op., at 3).
Second, the Circuit held that postal robbery (and thus a fortiori aggravated postal robbery) categorically involves the use of violent force under § 924(c)(3)(A). The Circuit determined that § 2114(a) is divisible and applied the modified categorical approach to identify the elements of Pannell’s offense of conviction: “rob[bing] … any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States” (postal robbery), plus “in effecting … such robbery, put[ting] [such] person[’s] life in jeopardy by the use of a dangerous weapon” (aggravated postal robbery). Relying on dictum in Carter v. United States, 530 U.S. 255, 267 n.5 (2005), the Circuit interpreted the undefined term “rob[]” in § 2114(a) to incorporate the common-law definition of robbery, then held that common-law robbery satisfies the § 924(c)(3)(A) elements clause under Stokeling v. United States, 586 U.S. 73 (2019). (slip op., at 12–13). Finally, because postal robbery simpliciter categorically involves the use of violent force, the Circuit concluded that aggravated postal robbery, which includes all of the base offense’s elements, meets § 924(c)(3)(A)’s elements clause, too. (slip op., at 13–14).
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