United States Court of Appeals
For the First Circuit
No. 16-2483
JEFFREY SCOTT HUNTER,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
David R. Beneman, Federal Public Defender, on brief for
appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Richard W. Murphy, Acting United States Attorney, on brief for
appellee.
October 16, 2017
LYNCH, Circuit Judge. In 1994, Jeffrey Hunter was
convicted of federal armed bank robbery, conspiracy, and
possession of a firearm by a felon, for which he received a
210-month prison sentence, and was also convicted of use of a
firearm during a "crime of violence," for which he received a
consecutive five-year mandatory minimum sentence pursuant to
18 U.S.C. § 924(c)(1)(A)(i).
By an 18 U.S.C. § 2255 petition, Hunter later moved to
vacate his consecutive sentence. The district court denied the
motion. Hunter's challenge to the consecutive sentence is
foreclosed by our recent precedent in United States v. Ellison,
866 F.3d 32 (1st Cir. 2017). We affirm.
Hunter's challenge is based on the "crime of violence"
designation, but his argument is misplaced. Section 924(c)(3)
defines "crime of violence" as any felony that
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another [the "force
clause"], or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense. [the "residual
clause"]
18 U.S.C. § 924(c)(3)(emphasis added).
In 2015, the Supreme Court held that the residual clause
of a definition of "violent felony" under a different statute, the
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Armed Career Criminal Act, see § 924(e)(2)(B)(ii), was
unconstitutionally vague. Johnson v. United States, 135 S. Ct.
2551, 2563 (2015). In 2016, relying on Johnson, Hunter moved
under 18 U.S.C. § 2255 to vacate his consecutive five-year
sentence, arguing that the definition of "crime of violence" in
§ 924(c)(3)(B), similarly worded to the definition of "violent
felony" in § 924(e)(2)(B)(ii), is also unconstitutionally vague.
The district court rejected the challenge, holding that,
irrespective of Johnson, Hunter's mandatory minimum sentence
rested on firm ground because his offense of federal armed bank
robbery "unquestionably" still qualified as a crime of violence
under a different clause of the statute, § 924(c)(3)(A) -- the
force clause.
Hunter's present appeal from the district court's ruling
is foreclosed by this Court's recent decision in United States v.
Ellison, 866 F.3d 32 (1st Cir. 2017). In Ellison, we held that
federal bank robbery qualifies as a "crime of violence" under the
career-offender sentencing guideline's force clause because it
"has as an element the use, attempted use, or threatened use of
physical force against the person of another." Ellison, 866 F.3d
at 37; see U.S.S.G. § 4B1.2(a)(1). 1 The sole difference in
1 Under 18 U.S.C. § 2113(a), an individual commits federal
bank robbery if he, "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
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language between § 4B1.2(a)(1), at issue in Ellison, and
§ 924(c)(3)(A), at issue here, is the latter's reference to "use
of physical force against the person or property of another."
18 U.S.C. § 924(c)(3)(A) (emphasis added). The difference does
not help Hunter. The addition of "or property" renders
§ 924(c)(3)(A)'s scope greater than that of § 4B1.2(a)(1). Where
language in the Guidelines closely tracks a provision in a
sentencing statute, we have considered the Guidelines persuasive
authority in our interpretation of that sentencing statute. See
United States v. Glover, 558 F.3d 71, 80 n.3 (1st Cir. 2009). In
light of our decision in Ellison, we hold that federal bank
robbery, and a fortiori federal armed bank robbery, are crimes of
violence under the force clause of § 924(c)(3).
Hunter's sentence stands.2 Affirmed.
or any thing of value belonging to . . . any bank . . . ." In
Ellison, the parties agreed that § 2113(a) was divisible, setting
forth as separate offenses robbery by "force and violence, or by
intimidation," and robbery by "extortion." See 866 F.3d at 35.
The Ellison court addressed whether bank robbery "by intimidation"
was a "crime of violence." See id. at 35-36. Here, although the
parties dispute whether § 2113(a) is divisible, their disagreement
is immaterial because Hunter never argued that extortion was an
element of his crime of conviction. Instead, as in Ellison, Hunter
agreed with the government that the least serious means of
violating § 2113(a) is by "intimidation."
2 Because we find that Hunter's offense qualifies as a
crime of violence under § 924(c)(3)'s force clause, we need not
address Hunter's challenge to the constitutionality of the
residual clause.
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