873 F.3d 388 (1st Cir. 2017), 16-2483, Hunter v. United States

Docket Nº:16-2483
Citation:873 F.3d 388
Opinion Judge:LYNCH, Circuit Judge.
Party Name:JEFFREY SCOTT HUNTER, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee
Attorney: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.
Judge Panel:Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
Case Date:October 16, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

The First Circuit affirmed the district court’s denial of Appellant’s motion to vacate his consecutive sentence, holding that Appellant’s appeal from the district court’s ruling was foreclosed by the First Circuit’s recent decision in United States v. Ellison, 866 F.3d 32 (1st Cir. 2017). Appellant was convicted of federal armed bank robbery, conspiracy, and possession of a firearm by a felon,... (see full summary)

 
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Page 388

873 F.3d 388 (1st Cir. 2017)

JEFFREY SCOTT HUNTER, Petitioner, Appellant,

v.

UNITED STATES OF AMERICA, Respondent, Appellee

No. 16-2483

United States Court of Appeals, First Circuit

October 16, 2017

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge.

United States v. Hunter, (D. Me., Dec. 6, 2016)

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.

Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

OPINION

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 Armed Career Criminal Act, see § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563, 192...

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