FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
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
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
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.
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.
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
18 U.S.C. § 924(c)(3)(emphasis added).
2015, the Supreme Court held that the residual clause of a
definition of "violent felony" under a different
statute, the 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.
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.
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). The sole difference in 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