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

874 F.3d 388

ing that the Hospital‘s conduct was not justified by any economic exigency. Hosp. San Cristobal, 358 N.L.R.B. at 781 n.28. Economic exigencies only justify unilateral action absent an impasse when “extraordinary events which are ‘an unforeseen occurrence, [have] a major economic effect [requiring] the company to take immediate action.‘” RBE Elecs. of S.D., Inc., 320 N.L.R.B. at 81 (second alteration in the original) (quoting Hankins Lumber Co., 316 N.L.R.B. 837, 838 (1995)). The record clearly demonstrates that the Hospital had known of its revenue decline since 2009, making the need for cost savings, including the possibility of subcontracting, foreseeable. The Hospital‘s decision to subcontract two years later in 2011 was therefore not in response to any immediate exigency. Absent an unforeseeable emergency requiring immediate action, the Hospital‘s unilateral implementation of subcontracting the Department and firing the respiratory therapy technicians was not excused or justified.

Without showing that the bargaining was at an impasse, that the Union did not engage in good-faith negotiations, or that the Hospital was facing an economic emergency, the Hospital has failed to show any reason to undermine the conclusion of the Board that the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act by terminating the respiratory therapy technicians on July 8, 2011.

C. The Hospital‘s Challenge to the Board‘s Remedy Is Not Properly Before the Court.

Finally, the Hospital asks us to vacate the Board‘s Order awarding reinstatement and back pay to the union employees terminated in violation of the Act, alleging that enforcement of the Order would require an investment that the Hospital cannot afford at this time due to its delicate financial situation. The Hospital, however, failed to raise this issue before the Board. Further, the Hospital did not allege, much less prove, that its failure to preserve its challenge to the remedy was due to extraordinary circumstances. Accordingly, under section 10(e) of the NLRA, we are precluded from reviewing this claim. See 29 U.S.C. § 160(e); Woelke & Romero Framing, Inc., 456 U.S. at 665, 102 S.Ct. 2071.

III. Conclusion

For the foregoing, we deny the Hospital‘s petition for review and we grant the Board‘s cross-petition for enforcement.

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.

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, --- U.S. ----, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (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 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.

Notes

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 or any thing of value belonging to ... any bank....” In , 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 . The court addressed whether bank robbery “by intimidation” was a “crime of violence.” See . 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 , Hunter agreed with the government that the least serious means of violating § 2113(a) is by “intimidation.”

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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