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 
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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.