United States Court of Appeals 

For the First Circuit 

No. 18-1018 

GERARD BOULANGER, 

Petitioner, Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Thompson, Selya, and Barron, 

Circuit Judges. 

 Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & 

Teitelbaum LLP were on brief, for appellant. 

 Seth R. Aframe, Assistant United States Attorney, with whom 

Scott W. Murray, United States Attorney, was on brief, for 

appellee. 

October 21, 2020 
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THOMPSON, Circuit Judge. In 2003, the petitioner, 

Gerard Boulanger robbed a New Hampshire drug store and used a gun 

to do it. Because this is illegal, he was prosecuted and, relevant 

here, a jury convicted him of using a firearm during a crime of 

violence (specifically, pharmacy robbery) in violation of 18 

U.S.C. § 924(c). Then, at sentencing, the district court 

determined that Boulanger qualified for a sentencing enhancement 

under the Armed Career Criminal Act ("ACCA") because his criminal 

record included at least three violent felonies, chief among them: 

New Hampshire state court convictions for robbery and armed 

robbery. None of this was at issue when we affirmed Boulanger's 

convictions in 2006. See United States v. Boulanger, 444 F.3d 76 

(1st Cir. 2006). In the intervening years, the law about what 

qualifies as a violent felony under ACCA and what counts as a crime 

of violence for § 924(c) has changed. Relying on these changes, 

Boulanger is back before us now, complaining that the district 

court mistakenly denied his second § 2255 petition because his New 

Hampshire robbery convictions are not violent felonies (and 

therefore his sentence should not be longer because of ACCA) and 

pharmacy robbery is not a crime of violence under § 924(c) (so 

he's not guilty of that at all). After carefully unravelling the 

relevant law and facts, we affirm. 
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BACKGROUND 

Boulanger's Relevant State Court Convictions 

In the 1980s, Boulanger had a spate of trouble throughout 

New Hampshire. In July 1980, he stole $600 from a grocery store 

in Portsmouth by pointing a gun at the store's clerk. That same 

month, he again used a gun to rob a gas station in Lee, this time 

getting $780. In August 1980, Boulanger similarly robbed a 

convenience store in Manchester and, later that month, a gas 

station in Epping. At some point during this spree, Boulanger 

gained possession of a Dover gas station's stolen bank deposit bag 

(with $2,057 cash inside) and hung onto it, despite knowing it was 

stolen. He was arrested soon after the Epping robbery and pleaded 

guilty to charges related to all of this activity. In 

chronological order of offense, Boulanger pleaded guilty to armed 

robbery for the Portsmouth grocery store, robbery for the Lee gas 

station, armed robbery for the Manchester convenience store, 

robbery for the Epping gas station, and receiving stolen property 

for keeping the Dover gas station's bank bag. Boulanger was 

sentenced to four to eight years in state prison on each count, 

with his sentences to run concurrently. 

Boulanger served some time and was paroled in May 1983.

In October 1983, while still on parole, Boulanger used a gun to 

rob a convenience store in Portsmouth and steal one store clerk's 
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wallet and another's purse. He was charged with three counts of 

armed robbery stemming from this incident and pleaded guilty. 

Boulanger's Conviction and Post-Conviction Litigation 

Fast forward to 2003, when Boulanger used a gun to rob 

an East Rochester, New Hampshire, pharmacy of Oxycontin and 

methadone. Boulanger, 444 F.3d at 78-79. A jury convicted him of 

robberies involving controlled substances, in violation of 18 

U.S.C. §§ 2118(a) and (c)(1) ("pharmacy robbery") (Count I); use 

of a firearm in a crime of violence, in violation of 18 U.S.C. 

§ 924(c) (Count II); possession of a firearm by a prohibited 

person, in violation of 18 U.S.C. § 922(g)(1) (Count III); and 

possession with intent to distribute a controlled substance, in 

violation of 21 U.S.C. § 841(a)(1) (Count V). Boulanger, 444 F.3d 

at 80-81. The "crime of violence" in Count II referred to Count 

I, pharmacy robbery. At sentencing, the district court found that 

Boulanger had previously been convicted of at least three violent 

felonies and was therefore subject to a mandatory minimum sentence 

of fifteen years under ACCA, 18 U.S.C. § 924(e)(1).1 The district 

court sentenced Boulanger to a total of 460 months' imprisonment.2

1 The district court relied upon Boulanger's convictions for 

robbery and armed robbery in New Hampshire, as well as many other 

convictions that, at the time, qualified as predicate felonies 

under the residual clause of ACCA. 

2 Specifically, the district court sentenced Boulanger to 376 

months for Count III, 84 months for Count II to be served 

consecutively, 300 months for Count I, to be served concurrently 
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Boulanger appealed his convictions to us and we 

affirmed. Boulanger, 444 F.3d at 78. He then filed his first 

§ 2255 petition in 2007, which the district court denied. 

In the decade that followed, the Supreme Court issued 

decisions that Boulanger came to see as relevant to his 

convictions, including the 2015 decision in Johnson v. United 

States ("Johnson II"), 576 U.S. 591, 606 (2015), where the Court 

held that part of ACCA's structure for defining predicate violent 

felonies, called the "residual clause," was void for vagueness. 

Generally (with exceptions we need not detail here) if a person 

was sentenced under ACCA because of past crimes that only qualified 

as violent felonies under the "residual clause," that sentence was 

newly understood to be unconstitutional and that defendant could 

petition a court for relief. 

In 2016, we granted Boulanger permission to file such a 

petition. He filed his second § 2255 motion arguing that his 

sentence was improperly enhanced under ACCA (because, to him, 

without ACCA's residual clause, his record did not contain three 

violent felonies) and his conviction for Count II, using a firearm 

during a crime of violence, was invalid (because, he told us, 

Johnson II also meant that § 924(c)'s residual clause was 

unconstitutional and, without that clause, pharmacy robbery was 

with Count III, and 240 months for Count V, to be served 

concurrently with Counts I and III. 
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not a crime of violence). The district court found Boulanger's 

petition to be untimely as to the § 924(c) argument and to 

otherwise have no merit.3 Kucinski v. United States, 2016 WL 

4926157, at *4 (D.N.H. Sept. 15, 2016) (finding § 924(c) argument 

untimely); Boulanger v. United States, 2017 WL 6542156, at *6 

(D.N.H. Dec. 21, 2017) (denying relief as to remaining claims). 

After some procedural steps not relevant here, Boulanger appealed. 

OUR TAKE

Boulanger raises the same two challenges to his 

convictions before us that he did in his underlying § 2255 

petition: that his record does not contain three ACCA predicate 

offenses and that pharmacy robbery is not a crime of violence. 

Each challenge is a question of law, so we review the district 

court's denial of the petition de novo. United States v. CruzRivera, 904 F.3d 63, 65 (1st Cir. 2018) (reviewing de novo district 

3 The district court found Boulanger's petition to be untimely 

because it was not filed within one year of his conviction becoming 

final, 28 U.S.C. § 2255(f)(1), or "the date on which the right 

asserted was initially recognized by the Supreme Court," 28 U.S.C. 

§ 2255(f)(3), because, according to the district court, the right 

Boulanger was asserting (that the residual clause of § 924(c) was 

unconstitutional) did not exist yet. Kucinski v. United States, 

2016 WL 4926157, at *4 (D.N.H. Sept. 15, 2016). In 2019, the 

Supreme Court explicitly held § 924(c)'s residual clause to be 

unconstitutional. United States v. Davis, 139 S. Ct. 2319, 2336 

(2019). In light of Davis, the government elected to waive any 

timeliness objections about that argument so that we could smoothly 

proceed to the merits. See Wood v. Milyard, 566 U.S. 463, 474 

(2012) (government may waive timeliness objections to habeas 

claims). 
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court's determination that offense was a crime of violence under 

§ 924(c)); United States v. Mulkern, 854 F.3d 87, 90 (1st Cir. 

2017) (reviewing de novo whether a crime was an ACCA predicate). 

We begin by explaining the shared framework for 

evaluating whether at least three of Boulanger's prior convictions 

are violent felonies under ACCA and whether pharmacy robbery is a 

crime of violence under § 924(c). 

Under the Armed Career Criminal Act, a defendant 

convicted of felony possession of a firearm pursuant to 18 U.S.C. 

§ 922(g) who has three or more prior convictions for a "violent 

felony" or serious drug offense is subject to a fifteen-year 

mandatory-minimum prison sentence. 18 U.S.C. § 924(e)(1). The 

statute defines "violent felony" in a few ways, as a crime 

(punishable by a prison term exceeding one year) that "has as an 

element the use, attempted use, or threatened use of physical force 

against the person of another" (often called the "elements clause" 

or the "force clause"); "is burglary, arson, [] extortion, [or] 

involves use of explosives" (the "enumerated clause"); or 

"otherwise involves conduct that presents a serious potential risk 

of physical injury to another" (the "residual clause"). Id. 

§ 924(e)(2)(B). The residual clause, we now know, is 

unconstitutionally vague. Johnson II, 576 U.S. at 606. Therefore, 

a prior conviction qualifies as a "violent felony" only if it 

satisfies the elements clause or the enumerated clause. There is 
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no question that the enumerated clause is not a factor here and 

that Boulanger's prior record did not contain serious drug 

offenses, so we are left to wrestle only with whether Boulanger's 

criminal history contains three convictions that qualify as 

"violent felonies" under the elements clause. 

Similarly, Boulanger was properly convicted under 18 

U.S.C. § 924(c)(1)(A) if he "use[d] or carrie[d] a firearm" during 

a "crime of violence" or a "drug trafficking crime." Drug 

trafficking is not at issue here, so we turn to the question of 

whether pharmacy robbery, 18 U.S.C. § 2118(a), is a "crime of 

violence." Congress defined "crime of violence" in § 924(c) to be 

a felony that "has as an element the use, attempted use, or 

threatened use of physical force against the person or property of 

another" (the "elements clause"), or one "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). Since 

Boulanger's conviction, the Supreme Court has held that § 924(c)'s 

residual clause is unconstitutional. Davis, 139 S. Ct. at 2336. 

We therefore must solve whether Boulanger's New 

Hampshire armed robberies fall within ACCA's elements clause and 

whether pharmacy robbery is covered by § 924(c)'s elements clause. 

To resolve each of these questions, we employ a "categorical 

approach" in which we ask whether the least culpable conduct 
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covered by the violated statute (here, armed robbery and pharmacy 

robbery) fits within the relevant elements clause. See Taylor v. 

United States, 495 U.S. 575, 588-89, 602 (1990); United States v. 

García-Ortiz, 904 F.3d 102, 106-07 (1st Cir. 2018) (applying 

categorical approach to § 924(c) crime of violence analysis). We 

do not look at the facts of Boulanger's actual crimes but presume 

that he engaged in "the least culpable conduct for which there is 

a realistic probability of a conviction under the statute." United 

States v. Baez-Martinez, 950 F.3d 119, 124 (1st Cir. 2020) (quoting 

United States v. Starks, 861 F.3d 306, 315 (1st Cir. 2017)). Such 

an approach "means that a prior conviction will either count or 

not based solely on the fact of conviction rather than on facts 

particular to the individual defendant's case." United States v. 

Faust, 853 F.3d 39, 50 (1st Cir. 2017); accord García-Ortiz, 904 

F.3d at 106-07. If that "least culpable conduct," Baez-Martinez, 

950 F.3d at 124, "has as an element the use, attempted use, or 

threatened use of physical force against the person . . . of 

another," it qualifies as a violent felony under ACCA or a crime 

of violence under § 924(c).4 "[T]he phrase 'physical force' means 

violent force—that is, force capable of causing physical pain or 

injury to another person." Johnson v. United States, 559 U.S. 

4 Though it does not alter our analysis, note that § 924(c)'s 

elements clause also incorporates physical force "against the 

. . . property of another." 18 U.S.C. § 924(c)(3). 
- 10 - 

133, 140 (2010) (Johnson I). With those ground rules established, 

we turn to Boulanger's distinct claims. 

Boulanger's Sentencing Under the Armed Career Criminal Act 

We begin our analysis of whether New Hampshire robbery 

and armed robbery each categorically qualify as crimes of violence 

under ACCA by sorting out the level of force required to commit 

each crime.5 In New Hampshire, 

[a] person commits the offense of robbery if, 

in the course of committing a theft, he: 

(a) Uses physical force on the person of 

another and such person is aware of such 

force; or 

5 As Boulanger tells it, he has only two convictions for armed 

robbery and does not cross ACCA's three-violent-felony threshold 

because the balance of his convictions (for robbery in New 

Hampshire) do not qualify as violent felonies. The government and 

the district court's order track Boulanger's framing of the 

argument; each says that Boulanger does indeed have only two armed 

robbery convictions. Both parties therefore agree that the 

determinative question before us is then whether a conviction under 

New Hampshire's robbery statute qualifies as an ACCA predicate. 

However, our review of the record tells a slightly different 

story. As we detailed above, per the presentence report (which 

was adopted by the district court at sentencing, with no relevant 

objections from Boulanger) Boulanger pleaded guilty to three armed 

robberies: the July 1980 armed robbery of a Portsmouth grocery 

store, the August 1980 armed robbery of a Manchester convenience 

store, and the October 1983 armed robbery of a Portsmouth 

convenience store. 

Given this record, it would not alter the outcome of 

Boulanger's case if we were to resolve solely the question of 

whether New Hampshire robbery qualifies as an ACCA predicate. This 

is no matter because, as we explain below, we conclude that the 

level of force for robbery and armed robbery is the same and 

categorically qualifies both crimes as violent felonies under 

ACCA. 
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(b) Threatens another with or purposely puts 

him in fear of immediate use of physical 

force. 

N.H. Rev. Stat. Ann. § 636:1(I). That conduct is considered armed 

robbery if, while committing robbery as defined in section (I), 

the perpetrator 

(a) Was actually armed with a deadly weapon; 

or 

(b) Reasonably appeared to the victim to be 

armed with a deadly weapon; or 

(c) Inflicted or attempted to inflict death or 

serious injury on the person of another[.] 

Id. § 636:1(III). The statute makes clear (and Boulanger agrees) 

that the same level of force is required for both robbery and armed 

robbery. So we have to sort out whether that force is at least 

the "violent force" that we know ACCA contemplates. See Johnson 

I, 559 U.S. at 140. 

 The Supreme Court has already done some of this work for 

us. In Stokeling v. United States, the Court considered whether 

Florida's robbery law, which "has as an element the use of force 

sufficient to overcome a victim's resistance[,] necessitates the 

use of 'physical force' within the meaning of [ACCA]." 139 S. Ct. 

544, 548 (2019). The Court concluded that a robbery conviction in 

Florida did qualify as an ACCA violent felony and, in the process, 

shed some light on evaluating other states' robbery statutes. 

Relevant to our assessment of Boulanger's case, the Court held 

that "'physical force' in ACCA encompasses the degree of force 
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necessary to commit common-law robbery." Id. at 555. Common law 

robbery, in turn, involved "an unlawful taking" that was committed 

with enough force "to physically over[come] a victim's resistance, 

'however slight' that resistance might be." Id. at 550. 

So, the operative question that, in this case, can 

resolve Boulanger's appeal (no matter how the parties count his 

prior convictions) is whether the New Hampshire robbery statute 

codifies common law robbery as Stokeling understood it. If it 

does, then Boulanger's robbery and armed robbery convictions 

qualify as ACCA violent felonies. If the statute criminalizes a 

larger swath of behavior, so that the "least culpable conduct for 

which there is a 'realistic probability' of a conviction," BaezMartinez, 950 F.3d at 124 (citation omitted), necessitates less 

than "violent force," Johnson I, 559 U.S. at 140, then robbery in 

New Hampshire does not categorically qualify as a violent felony. 

 Two years after Boulanger's 1981 convictions, the New 

Hampshire Supreme Court addressed the level of force to sustain a 

conviction for the offense of robbery under § 636:1(I). In Goodrum 

v. State, the New Hampshire Supreme Court affirmed the conviction 

of a man who "knocked [a paperboy] off the curb into the street" 

and made off with the pencil case in which the paperboy stored his 

money. 455 A.2d 1067, 1068 (N.H. 1983) (per curiam) (internal 
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quotations omitted).6 The defendant there argued that he did not 

use enough force to constitute robbery, but the New Hampshire 

Supreme Court disagreed. Id. The Court construed § 636:1(I) to 

exclude "a pickpocket who merely 'snatches' a wallet without using 

force of which the victim is aware," but to include cases where 

the perpetrator "grabbed [money] from [the victim's hand] while 

pushing her into a garage." Id. (citations omitted). 

 When it conducted its analysis, the New Hampshire Supreme Court 

relied on legislative history from the 1971 enactment of the statute. That 

history describes the statute as "essentially a description of common law 

robbery," and notes that the statute does not include a level of physical 

force that is so light, the victim is unaware of it. COMM'N TO RECOMMEND 

CODIFICATION OF CRIMINAL LAWS, Report of the Commission to Recommend Codification 

of Criminal Laws, comment at 58-59 (1969), 

https://www.courts.state.nh.us/lawlibrary/Codification_of_New_Hampshires_Cr

iminal_Laws/HB_904_Report.pdf (hereinafter "Commission Report"). 

6 Boulanger tells us that Goodrum has nothing to teach because 

it was decided in 1983 after his convictions for his spate of 1981 

robberies and armed robberies. We disagree. While Congress 

intended courts to use the "historical statute of conviction" when 

analyzing ACCA cases, not a modern, amended version, McNeill v. 

United States, 563 U.S. 816, 822 (2011), Goodrum does not create 

or discover anything new about the New Hampshire statute and it 

certainly does not change the amount of force required for 

conviction. Further, the New Hampshire Supreme Court supported 

its holding with references to legislative history from 

deliberations that took place before Boulanger's convictions. See 

Goodrum, 455 A.2d at 1068. Boulanger, for his part, has no issue 

relying on this legislative history for his own arguments. 
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According to the Commission Report, this distinction is "in 

recognition of the fact that robbery is essentially a threat to 

personal security." Id. at 58. The Commission Report also cites 

a prior decision from the New Hampshire Superior Court of 

Judicature, State v. Gorham, 55 N.H. 152 (1875), which reflects 

that common law robbery was understood in that state to require 

physical force sufficient to "creat[e] a reasonable apprehension 

of physical injury to a human being" or to inflict "actual injury." 

Id. at 152. Gorham indicated that such force would include the 

"taking of property from the possession of another by means which 

overcome resistance, however slight." Id. Considering this 

legislative history (which Boulanger agrees is relevant), the most 

informative interpretation by the New Hampshire Supreme Court, and 

the text of the state statute itself, we conclude that the 

"physical force" contemplated in the New Hampshire robbery and 

armed robbery statute is more than a "snatch," such as a 

"push[]. . . into a garage" or a "knock[]. . . off the curb." See 

Goodrum, 455 A.2d at 1068-69. Stokeling tells us that this is 

enough physical force to qualify as violent force for ACCA 

purposes. See 139 S. Ct. at 550-51. 

 But wait, there's more. Boulanger makes two points 

related to Stokeling that need addressing.7 

7 Boulanger also contends that the New Hampshire robbery 

statute is ambiguous, so we should apply the rule of lenity to 
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First, Boulanger pushes that Stokeling does not instruct 

that statutes codifying common law robbery necessarily qualify as 

violent felonies, so the government's (and now our) reliance on 

that case is altogether misplaced. Appellant Br. at 13-17; 

Appellant Reply Br. at 1-4. But, as discussed, New Hampshire 

common law robbery did require sufficient force to qualify as a 

violent felony, so to the extent the New Hampshire robbery statute 

codified that common law, Boulanger's argument cannot succeed. 

See United States v. Almonte-Núñez, 963 F.3d 58, 67 (1st Cir. 2020) 

("In Stokeling, the Supreme Court held that [ACCA's elements 

clause] encompassed common law robbery offenses"). All of this 

comes back to the core question of whether the minimal force 

criminalized by the New Hampshire robbery statute is the amount of 

force covered by ACCA's elements clause. 

On that front, Boulanger tells us that the force required 

for the New Hampshire statute is merely force that the victim is 

aware of and not necessarily enough to overcome resistance. That's 

not entirely accurate. By its own terms, theft becomes robbery 

under the New Hampshire robbery statute where the perpetrator 

"[u]ses physical force on the person of another and such person is 

grant him relief. Appellant Br. at 17-18; Appellant Reply Br. at 

6-8. We do not read the statute to be ambiguous and Boulanger 

doesn't give us anything to go on other than his confident claims 

that the ambiguity is there. Noting that, we see no need to say 

anything further on the issue. 
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aware of such force." N.H. Rev. Stat. Ann. § 636:1 (I) (a) 

(emphasis added). The victim's awareness does not define the 

"physical force" but is a separate requirement. Plus, the New 

Hampshire Supreme Court and the relevant legislative history tell 

a different story than Boulanger. The Commission Report cited in 

Goodrum reflects that the legislature's settling on the phrase 

"physical force" in the statute is significant. The report 

explained this phrase was selected as it was similar to the 

language deployed in the "Illinois Criminal Code of 1961, § 18-

1."8 Commission Report comment at 58-59. And, notably, the Seventh 

and Eighth Circuits have held that this same Illinois robbery 

statute establishes a "violent felony" under ACCA. See Klikno v. 

United States, 928 F.3d 539, 549 (7th Cir. 2019) ("Illinois robbery 

and armed robbery require 'force sufficient to overcome the 

victim's resistance . . . .'" (quoting Stokeling, 139 S. Ct. at 

548)); Dembry v. United States, 914 F.3d 1185, 1188 (8th Cir. 2019) 

("Illinois robbery convictions qualify as violent felonies under 

the force clause"). Further, Boulanger is unable to point to a 

single prosecution since the statute's 1971 enactment where the 

defendant engaged the low level of force he insists qualifies as 

8 That statute provides: "A person commits robbery when he 

takes property from the person or presence of another by the use 

of force or by threatening the imminent use of force." People v. 

White, 365 N.E.2d 337, 338 (Ill. 1977) (quoting Illinois Criminal 

Code of 1961, § 18-1). 
- 17 - 

robbery in New Hampshire. See, e.g., Stokeling, 139 S. Ct. at 

554-56 (discussing state court cases interpreting statute at 

issue). 

 Second, Boulanger tries to save his case by explaining 

that New Hampshire robbery criminalizes when force is first used 

by a perpetrator when fleeing the scene of the crime. Here, 

Boulanger leans hard into the idea that Stokeling qualifies common 

law robbery as a violent felony and argues that common law robbery 

did not criminalize force used in flight, so New Hampshire robbery 

cannot be common law robbery and is therefore not a violent felony. 

All of this misses the point of elements clause. The level of 

force is at issue, not whether it is used before, during, or after 

a theft. See N.H. Rev. Stat. Ann. § 636:1 (I) ("A person commits 

the offense of robbery if, in the course of committing a theft, he 

. . . uses physical force on the person of another." (emphasis 

added)). The taking of an object is not what could make a robbery 

a violent felony; rather, it is the use of force. Nothing about 

this timing changes the force analysis. 

 We tie up our last loose end by noting that Boulanger 

argues that because an armed robbery defendant need only to have 

been "actually armed" and not use the weapon while committing 

robbery "New Hampshire armed robbery is overbroad and does not 

qualify as a violent felony." Appellant Br. at 19. Boulanger's 

theory, he explains, is based on "robbery and armed robbery 
- 18 - 

requir[ing] the same level of force." Id. His argument therefore 

only has legs if we held that robbery is not a violent felony, 

which, as we've hammered home by now, is not our conclusion. 

 Seeing nothing else to assess, we hold Boulanger's 

robbery and armed robbery convictions are ACCA predicate crimes. 

Boulanger's Section 924(c) Conviction 

The analysis of Boulanger's § 924(c) argument begins 

with a similar approach. We evaluate the statute and compare the 

minimal level of force criminalized to the conduct contemplated by 

§ 924(c)'s elements clause. 

The pharmacy robbery statute prohibits taking a 

controlled substance (in specific circumstances not at issue here) 

"by force or violence or by intimidation." 18 U.S.C. § 2118(a). 

So, we must determine whether the least culpable conduct that would 

satisfy that element of pharmacy robbery (taking "by force or 

violence or by intimidation") requires "the use, attempted use, or 

threatened use of physical force against the person or property of 

another." 18 U.S.C. § 924(c)(3)(A). 

Boulanger says the statute's disjunctive phrasing means 

that pharmacy robbery is not a crime of violence. Pharmacy robbery 

could be accomplished with "force or violence," and according to 

Boulanger's reading, "violence" must mean "violent force" (which 

is criminalized by § 924(c)) which leaves "force" to mean something 
- 19 - 

less than violent force (and therefore not encompassed by 

§ 924(c)).

Boulanger points to no authority to support his point 

and for good reason—we have already rejected this argument in a 

parallel context.9 In García-Ortiz, we considered whether Hobbs 

Act robbery, in violation of 18 U.S.C. § 1951(a), constituted a 

crime of violence under § 924(c). 904 F.3d at 106-09. Relevant 

to our case, that statute criminalizes an unlawful taking "by means 

of actual or threatened force, or violence, or fear of injury." 

18 U.S.C. § 1951(b)(1). We held there that the "actual or 

threatened force, or violence, or fear of injury" satisfied 

§ 924(c)'s requirement of "use, attempted use, or threatened use 

of physical force" (and, accordingly, Hobbs Act robbery qualified 

as a crime of violence). García-Ortiz, 904 F.3d at 109. To 

complete our analysis, we worked backwards through the Hobbs Act 

robbery statute's text. We started with the phrase "fear of 

injury," which we explained "requires the threatened use of 

physical force." Id. at 107 (citing United States v. MelgarCabrera, 892 F.3d 1053, 1066 (10th Cir. 2018)). We noted that 

"the threatened use of force capable of causing physical injury . 

9 We additionally observe that in Stokeling, the Supreme Court 

explained Congress's employment of the phrase "force or violence" 

in the "original ACCA" was "a clear reference to the common law of 

robbery," which, as discussed earlier in the opinion, constitutes 

a violent felony under ACCA. 139 S. Ct. at 550. 
- 20 - 

. . does involve violent force." Id. To support this, we applied 

a tool of statutory construction (in Latin, noscitur a sociis) 

that teaches us that a word's precise meaning is better understood 

by looking to the words around it and likened the words "force" 

and "violence" to the phrase "fear of injury" (which we already 

understood required physical force). Id. (citing Yates v. United 

States, 574 U.S. 528, 543-44 (2015)). Seeing then that "force," 

"violence," and "fear of injury" each necessitated "threatened or 

actual" "violent force . . . capable of causing physical pain or 

injury," Johnson I, 559 U.S. at 140, we held that Hobbs Act robbery 

was a "crime of violence" under § 924(c)'s force clause, GarcíaOrtiz, 924 F.3d at 109. 

Our analysis in this case tracks García-Ortiz. We begin 

with the pharmacy robbery statute's prohibition on "intimidation" 

and note that we have previously held "intimidation" to mean 

putting the victim in "fear of bodily harm." United States v. 

Ellison, 866 F.3d 32, 37 (1st Cir. 2017). We remind the reader 

that putting one in "fear of bodily injury" qualifies as 

threatening "violent force." Garcia-Ortiz, 904 F.3d at 107-08. 

We once more use the meaning of part of the statute (this time, 

"intimidation") to contextualize the precise meaning of the words 

around it (here, "force or violence"). Recognizing that the 

entirety of the relevant phrase here ("by force or violence or by 

intimidation") encompasses "violent force," we conclude that the 
- 21 - 

minimal level of conduct criminalized by the pharmacy robbery 

statute necessarily qualifies as a "crime of violence" under 

§ 924(c). See United States v. Burke, 943 F.3d 1236, 1238-39 (9th 

Cir. 2019) (controlled substance robbery "constitute[s] a crime of 

violence" under § 924(c)'s force clause); Kidd v. United States, 

929 F.3d 578, 581 (8th Cir. 2019) ("[T]he offense of armed robbery 

involving controlled substances categorically qualifies as a crime 

of violence under the force clause of § 924(c)(3)(A)."). 

Boulanger claims his argument is bolstered by the 

legislative history, where Congress expressed concern about all 

types of pharmacy theft, not just thefts committed with violent 

force. While it is true that Congress sought to discourage any 

theft of controlled substances, the legislative history hurts 

Boulanger as much as it helps him. Congress also expressed concern 

about "serious or aggravated cases" and thefts that "terrorized 

the community of dispensing pharmacists." See H.R. REP. 98-644, 

H.R. Rep. No. 644, 98TH Cong., 2ND Sess. 1984, 1984 U.S.C.C.A.N. 

521, 1984 WL 37388 at 522, 524. 

Finally, Boulanger explains that the mental state for 

pharmacy robbery via intimidation is mere recklessness and 

therefore, it cannot be a § 924(c) predicate. Boulanger cites no 

relevant precedent to support this argument. The pharmacy robbery 

statute itself is silent as to mental state, but we have addressed 

the mental state for "intimidation" in the context of the federal 
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bank robbery statute and held that it required that the defendant 

"knew that his actions were objectively intimidating." Ellison, 

866 F.3d at 39 (quoting United States v. McNeal, 818 F. 3d 141, 

155 (4th Cir. 2016)). Boulanger tells us this merely means that 

a defendant could have knowledge he was being intimidating and 

negligently or recklessly disregard that knowledge. We reject as 

unsupported the view that the statute could be read to suggest 

that negligent intimidation is the mens rea, and, even if we were 

to assume that the statute could be read to permit a conviction 

for reckless intimidation, Boulanger still has not explained why 

that would keep the conviction from being a § 924(c) predicate 

given the nature of this offense which requires conduct involving 

a specific victim. See 18 U.S.C. § 2118(a) (requiring taking a 

controlled substance "from a person or in the presence of another 

by force or violence or by intimidation" (emphasis added)); United 

States v. Windley, 864 F.3d 36, 38-39 (1st Cir. 2017) (finding 

ACCA not to cover Massachusetts Assault and Battery with a Deadly 

Weapon because the statute encompasses "reckless driving that 

results in a non-trifling injury" and thus does not "fit with 

ACCA's requirement that force be used against the person of 

another"). 

Though the district court denied Boulanger's petition as 

untimely, we affirm on different grounds, holding that pharmacy 

robbery is a crime of violence under the § 924(c) elements clause. 
- 23 - 

CONCLUSION 

For the foregoing reasons, the district court's order 

denying Boulanger's § 2255 petition is affirmed.