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 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

(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,

(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.

- 2 - 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

- 3 - 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,

. A jury convicted him of

robberies involving controlled substances, in violation of

(a) and (c)(1) ("pharmacy robbery") (Count I); use

of a firearm in a crime of violence, in violation of

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

person, in violation of

(g)(1) (Count III); and

possession with intent to distribute a controlled substance, in

violation of

(a)(1) (Count V). Boulanger,

. 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,

(e)(1).1 The district

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

1The 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. 2Specifically, 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

- 4 - Boulanger appealed his convictions to us and we

affirmed. Boulanger,

. 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"),

(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.

- 5 - 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,

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

untimely); Boulanger v. United States,

, 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. Cruz-

Rivera,

(1st Cir. 2018) (reviewing de novo district

3The district court found Boulanger's petition to be untimely because it was not filed within one year of his conviction becoming final,

(f)(1), or "the date on which the right asserted was initially recognized by the Supreme Court,"

(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,

, 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,

(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,

(2012) (government may waive timeliness objections to habeas claims).

- 6 - court's determination that offense was a crime of violence under

§ 924(c)); United States v. Mulkern,

(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

(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.

(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").

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

unconstitutionally vague. Johnson II,

. Therefore,

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

satisfies the elements clause or the enumerated clause. There is

- 7 - 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

(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,

(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").

(c)(3). Since

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

residual clause is unconstitutional. Davis,

.

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

- 8 - covered by the violated statute (here, armed robbery and pharmacy

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

United States,

(1990); United States v.

García-Ortiz,

(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,

(1st Cir. 2020) (quoting

United States v. Starks,

(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,

(1st Cir. 2017); accord García-Ortiz,

. If that "least culpable conduct," Baez-Martinez,

, "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,

Though it does not alter our analysis, note that § 924(c)'s elements clause also incorporates physical force "against the . . . property of another."

(c)(3).

- 9 - 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.

- 10 - (b) Threatens another with or purposely puts him in fear of immediate use of physical force.

(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[.]

§ 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]."

(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

- 11 - necessary to commit common-law robbery."

. 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."

.

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," Baez-

Martinez,

(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.

(N.H. 1983) (per curiam) (internal

- 12 - quotations omitted).6 The defendant there argued that he did not

use enough force to constitute robbery, but the New Hampshire

Supreme Court disagreed.

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,

(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,

. Boulanger, for his part, has no issue relying on this legislative history for his own arguments.

- 13 - 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,

(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."

. Gorham indicated that such force would include the

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

overcome resistance, however slight."

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,

. 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

- 14 - 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,

(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.

- 15 - aware of such force."

(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,

(7th Cir. 2019) ("Illinois robbery

and armed robbery require 'force sufficient to overcome the

victim's resistance . . . .'" (quoting Stokeling,

)); Dembry v. United States,

(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

8That 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,

(Ill. 1977) (quoting Illinois Criminal Code of 1961, § 18-1).

- 16 - robbery in New Hampshire. See, e.g., Stokeling,

(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

(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

- 17 - requir[ing] the same level of force."

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."

(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."

(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

- 18 - 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

(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."

(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,

. 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."

at 107 (citing United States v. Melgar-

Cabrera,

(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.

- 19 - . . 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,

, 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, García-

Ortiz, 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,

(1st Cir. 2017). We remind the reader

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

threatening "violent force." Garcia-Ortiz,

.

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

- 20 - 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,

(9th

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

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

(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,

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

- 21 - bank robbery statute and held that it required that the defendant

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

(quoting United States v. McNeal,

(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

(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,

(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.

- 22 - CONCLUSION

For the foregoing reasons, the district court's order

denying Boulanger's § 2255 petition is affirmed.

- 23 -