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United States v. Hunter

United States District Court, D. Maine

December 6, 2016

UNITED STATES OF AMERICA
v.
JEFFREY SCOTT HUNTER, Defendant/Petitioner

          ORDER ON PETITIONER'S MOTION TO VACATE SENTENCE

          D. Brock Hornby United States District Judge

         Is federal armed bank robbery a crime of violence within the meaning of 18 U.S.C. § 924(c)(3), given the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), declaring the residual clause of the Armed Career Criminal Act unconstitutionally vague? I follow the recent decisions of the Fourth and Seventh Circuits and the District of New Hampshire concluding that, even after Johnson, federal armed bank robbery is a crime of violence because, independent of any residual clause language, it qualifies under the so-called force clause of the statute.

         Facts and Procedural Background

         In 1994, a federal jury convicted the defendant of federal armed bank robbery and conspiracy, and of using and carrying a firearm during a crime of violence, as well as being a felon in possession of a firearm. I imposed a mandatory five-year consecutive sentence for the use-and-carry conviction (consecutive to a sentence of 210 months on the other convictions), as section 924(c)(1)(A)(i) & (D)(ii) demanded. After Johnson, Hunter filed a motion under 28 U.S.C. § 2255 attacking the five-year consecutive sentence.

         Statutes

         Title 18 U.S.C. § 924(c)(1)(A) requires an additional five-year prison term for anyone who uses or carries a firearm “during and in relation to any crime of violence.”[1] For purposes of that provision,

[T]he term “crime of violence” means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, 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.

Id. § 924(c)(3). Subsection (A) is called the force clause of the definition; subsection (B), the residual clause. The “crime of violence” in this defendant's case was the federal armed bank robbery. A conviction of federal armed bank robbery applies to:

(d) [w]hoever, in committing, or in attempting to commit, any offense defined in subsection[ ] (a) . . . assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device . . . .

18 U.S.C. § 2113(d). The offense “defined in subsection (a)” extends to anyone, armed or unarmed, who:

(a) . . . 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 or any other thing of value belonging to, or in the care, custody, control, management, or possession of, ...

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