          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


                                        - 3 -
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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