Shiroma v. USA

Filing 7

ORDER Denying Petitioner's Motion Under 28 U.S.C. 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody And Granting A Certificate of Appealability. " The court DENIES the motion for 2255 relief and GRANTS a certificate of appealability." Signed by JUDGE SUSAN OKI MOLLWAY on 10/31/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff-Respondent, )
)
vs.
)
)
MARC SHIROMA,
)
Defendant-Petitioner. )
_____________________________ )

Cr. No. 15-00060 SOM
Civ. No. 16-00320 SOM-KJM
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY AND
GRANTING A CERTIFICATE OF
APPEALABILITY

ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
Petitioner Marc Shiroma is serving a 132-month prison

sentence, having pled guilty to what is now his fourth bank
robbery in violation of 18 U.S.C. § 2113(a).

Given Shiroma’s

prior convictions, the court sentenced him as a career offender
under § 4B1.2(a) of the United States Sentencing Guidelines
(“USSG” or “the Guidelines”).

Relying on 28 U.S.C. § 2255,

Shiroma argues that, in deeming him a career offender, this
court unconstitutionally relied on the Guidelines’ residual
clause.

The court denies Shiroma’s petition, concluding that

Shiroma procedurally defaulted his argument by not raising it on
direct appeal, and that, under controlling Ninth Circuit
authorities, Shiroma was appropriately classified as a career
offender.

II.

BACKGROUND.
A. Relevant Sentencing Guidelines.
Shiroma was sentenced under the 2014 Guidelines.

ECF 15, PageID # 33.

See

The provision governing career offender

status, USSG § 4B1.1, provides:
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant
offense of conviction is a felony that is
either a crime of violence or a controlled
substance offense; and (3) the defendant has
at least two prior felony convictions of
either a crime of violence or a controlled
substance offense.
Id. (emphases added).
“Crimes of violence,” in turn, are defined by USSG
§ 4B1.2(a), which has what are often called force, enumerated
offenses, and residual clauses:
The term “crime of violence” means any
offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that-(1)

has as an element the use, attempted
use, or threatened use of physical
force against the person of another
[the force clause], or

(2)

is burglary of a dwelling, arson, or
extortion, involves the use of
explosives [the enumerated offenses
clause], or otherwise involves conduct
that presents a serious potential risk
of physical injury to another [the
residual clause].

2

Id.
B.

Factual Background.

On December 16, 2014, Shiroma entered the Chinatown
Branch of First Hawaiian Bank in Honolulu, Hawaii, and handed
the teller a note that said, “Give me the money.”
PageID # 31.

ECF 15,

The teller read the note and looked back at

Shiroma, who appeared to be unarmed.

Id.

said, “The top drawer is fine.”

The teller, feeling

Id.

Shiroma nodded and

“fearful,” handed over bills totaling $200.

Id.

Shiroma took

the money, fled the bank, and spent the night and the cash
partying in Waikiki.

Id. at PageID #s 31-32.

The next morning,

Shiroma walked into the Chinatown police station and told an
officer, “I’m the one that did the robbery yesterday.”
PageID # 31.

Id. at

Shiroma said he “felt bad for committing the

robbery” and “wanted to return to prison.”
The officer arrested him.

Id. at PageID # 32.

Id.

On February 11, 2015, Shiroma pled guilty without a
plea agreement to one count of federal bank robbery in violation
of 18 U.S.C. § 2113(a).

See ECF 6, PageID #s 6-7.

Shiroma’s fourth federal bank robbery conviction.
PageID #s 34-37.

This was
See ECF 15,

identical conduct:

The three prior robberies involved nearly
Shiroma had walked into a bank, handed the

teller a demand note, grabbed the cash (never more than a few

3

hundred dollars), left, and turned himself in a day or two
later.

See id. at PageID #s 31-32, 34-37.
Shiroma’s prior convictions made him a career offender

under the Guidelines.

See id. at PageID # 33.

His resulting

offense level was 29, his criminal history category was VI, and
his Guideline range was 151 to 188 months.
38, 51.

Id. at PageID #s 34,

Neither party objected to this Guideline calculation.

Id. at PageID #s 49, 50.
This court sentenced Shiroma on June 29, 2015, to 132
months for the bank robbery.

ECF 12.

The court varied downward

from the Guideline range on the ground that Shiroma’s mental
health issues had contributed to the offense.
# 27.

ECF 14, PageID

The court also sentenced Shiroma to a consecutive one-

year term for having violated the terms of his supervised
release (imposed for an earlier bank robbery).
does not challenge the latter sentence.
Shiroma of his right to appeal.
June 15, 2015.

Id.

See id.

Shiroma

The court advised

Judgment was entered on

See ECF 13, PageID # 19.

Two weeks later, on June 26, 2015, the Supreme Court
decided Johnson v. United States, 135 S. Ct. 2551, which held
unconstitutionally vague the residual clause of the Armed Career
Criminal Act (“ACCA”).

Id. at 2563.

The ACCA’s residual clause

is identical to the residual clause in the Guidelines.

See 18

U.S.C. § 924(e)(2)(B) (defining “violent felony” to include any
4

felony that “involves conduct that presents a serious potential
risk of physical injury to another”).

Ten months later, on

April 18, 2016, the Court held that Johnson applied
retroactively to ACCA cases on collateral review.

Welch v.

United States, 136 S. Ct. 1257, 1268.
On June 17, 2016, Shiroma filed a § 2255 motion,
arguing that his classification as a career offender under the
Guidelines “violates due process in light of” Johnson and Welch.
ECF 18, PageID # 83.

Shiroma said:

The petitioner was sentenced as a career
offender. Necessary to doing so was this
Court’s finding that his present and prior
federal bank robbery convictions were for
crimes of violence. The PSR does not
indicate which of USSG 4B1.2’s clauses this
Court relied upon to find that those
convictions were for crimes of violence.
The only lawful basis for doing so was, up
until Johnson was decided, the residual
clause. But the residual clause is void ab
initio under Johnson and Welch . . . , and
the record in the petitioner’s case does not
provide an adequately compelling
justification for imposing a sentence
anchored to a career offender guideline
range when, absent the career offender
determination, the lodestar starting point
to which his sentence must be anchored drops
to a much lower range.
Id. (emphases added).

Shiroma stated that he was timely moving

under 28 U.S.C. § 2255(f)(3), relying “on a right initially
recognized in Johnson v. United States, 135 S.[]Ct. 2551 (2015),
which Welch v. United States, 136 S.[]Ct. 1257 (2016),

5

recognized is retroactive[ly] applicable in collateral
proceedings.”

Id. at PageID # 91 (emphases added).

The Supreme Court subsequently decided Beckles v.
United States, 137 S. Ct. 886 (2017), holding that Guideline
clauses, unlike the criminal statute in Johnson, “are not
subject to vagueness challenges under the Due Process Clause.”
Id. at 890.

The Court explained:

[T]he advisory Guidelines do not fix the
permissible range of sentences. To the
contrary, they merely guide the exercise of
a court’s discretion in choosing an
appropriate sentence within the statutory
range. . . . The advisory Guidelines
[therefore] do not implicate the vagueness
doctrine’s concern with arbitrary
enforcement. Laws that “regulate persons or
entities,” we have explained, must be
sufficiently clear “that those enforcing the
law do not act in an arbitrary or
discriminatory way.” . . . The Guidelines,
however, do not regulate the public by
prohibiting any conduct or by “establishing
minimum and maximum penalties for [any]
crime.”
Id. at 892, 894-95 (quoting FCC v. Fox Television Stations,
Inc., 567 U.S. 239, 253 (2012), and Mistretta v. United States,
488 U.S. 361, 363 (1989)).

The Court noted, however, that its

holding in Beckles did “not render the advisory Guidelines
immune from constitutional scrutiny,” and specifically
distinguished (and so explicitly preserved) ex post facto
challenges, certain sentencing procedure challenges, and Eighth
Amendment challenges in capital cases.
6

Id. at 895-96.

In a supplemental memorandum, the United States
contended that Beckles rendered Shiroma’s motion meritless.
24, PageID # 105.

ECF

Shiroma initially submitted a memorandum

indicating that “[c]ounsel for petitioner is in the process of
obtaining the petitioner’s consent to voluntarily withdraw his
petition,” ECF 25, PageID # 109, but then filed a statement
saying that “petitioner d[id] not consent” and that the court
therefore “need[ed] to adjudicate this matter on the merits,”
ECF 26, PageID # 113.

Because Shiroma had not taken a position

on Beckles, the court gave him another opportunity to either
explain how Beckles affected the merits of his motion or to
indicate that he did not contest the United States’ position.
See ECF 27.

Shiroma responded by filing a Memorandum in Support

of His § 2255 Motion (“Shiroma’s Memorandum” or “the
Memorandum”).

ECF 28.

The Memorandum said that Shiroma’s request for relief
was not dependent on Johnson’s void-for-vagueness holding.
Shiroma said he was instead focusing on the decision’s language,
which “makes plain that [the Guidelines’] residual clause cannot
be reliably applied in a non-arbitrary way.”
# 115.

ECF 28, PageID

The Memorandum also claimed that, even if Shiroma was

making new arguments, his § 2255 motion was timely under 28
U.S.C. § 2255(f)(1).

Id. at PageID #s 117-18.

Shiroma is now

arguing that that Beckles does not require dismissal, because
7

Shiroma’s sentence violates due process in three ways that
allegedly do not flow from a “void for vagueness” argument: 1)
the sentence “derive[s] from an arbitrary and unreliable
starting point”; 2) it “is substantively unreasonable”; and 3)
“imposing his sentence did not follow the rules.”

ECF 31,

PageID # 165 (summarizing the Memorandum’s argument); see also
ECF 28, PageID #s 127, 133, 135.
The United States objects that Shiroma’s Memorandum,
rather than merely elucidating the impact of Beckles on the
§ 2255 motion (as the court had ordered), is instead amending
that motion after the statute of limitations has expired.
30, PageID # 148.

ECF

The United States also argues that Shiroma

procedurally defaulted his claims; that Shiroma was properly
classified as a career offender under the Guidelines’ force and
enumerated offense clauses; and that, in any event, there was no
constitutional violation.

See id. at PageID #s 149, 151, 153,

155.
III.

STANDARD OF REVIEW.
Under 28 U.S.C. § 2255, a court may grant relief to a

federal prisoner who challenges the length of his or her
incarceration on any of the following four grounds: (1) the
sentence was imposed in violation of the Constitution or laws of
the United States; (2) the court was without jurisdiction to
impose the sentence; (3) the sentence was in excess of the
8

maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack.

28 U.S.C. § 2255(a).

A § 2255 motion must be filed one year from the latest
of four dates: (1) when the judgment of conviction becomes
final; (2) when the impediment to making a motion created by
governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action; (3) when the right
asserted is initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; and (4)
when the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.

28

U.S.C. § 2255(f).
A § 2255 petition cannot be based on a claim that has
already been disposed of by the underlying criminal judgment and
ensuing appeal.

See Olney v. United States, 433 F.2d 161, 162

(9th Cir. 1970) (“Having raised this point unsuccessfully on
direct appeal, appellant cannot now seek to relitigate it as
part of a petition under § 2255.”).
When a § 2255 petitioner has not raised an alleged
error at trial or on direct appeal, the petitioner is
procedurally barred from raising the issue in a § 2255 petition
if the issue could have been raised earlier, unless the
9

petitioner can demonstrate both “cause” for the delay and
“prejudice” resulting from the alleged error.

See United States

v. Frady, 456 U.S. 152, 167-68 (1982) (“[T]o obtain collateral
relief based on trial errors to which no contemporaneous
objection was made, a convicted defendant must show both (1)
‘cause’ excusing his double procedural default, and (2) ‘actual
prejudice’ resulting from the errors of which he complains.”);
accord Davis v. United States, 411 U.S. 233, 242 (1973).

A

showing of cause and prejudice, however, only excuses default of
constitutional claims, not nonconstitutional sentencing errors,
which are forever lost if not raised on direct appeal.

See

United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).
IV.

ANALYSIS.
A.

There Is No Timeliness Issue.

Shiroma’s original § 2255 motion was timely.

Judgment

was entered on June 15, 2015, and he filed his § 2255 motion on
June 17, 2016.

See ECF 13, PageID # 19; ECF 18.

The one-year

limitation on § 2255 motions started to run on June 29, 2015,
fourteen days after the court entered judgment in the underlying
criminal case. 28 U.S.C. § 2255 (f); United States v. Schwartz,
274 F.3d 1220, 1223 (9th Cir. 2001) (explaining that the § 2255
clock “beg[ins] to run upon the expiration of the time during
which [the defendant] could have sought review by direct

10

appeal”); Fed. R. App. P. 4(b)(1)(A) (giving criminal defendants
14 days to file a notice of appeal).
Shiroma filed his “Memorandum in Support of His § 2255
Motion” on June 8, 2017.

ECF 28, PageID # 137.

The Government

claims that the Memorandum “amended” Shiroma’s § 2255 motion
after the limitations period had expired, making his current
claims untimely.

ECF 30, PageID # 148.

Shiroma retorts that no

“amendment” took place; he says that the Memorandum only makes
new arguments in favor of his original due process claim, and
that new arguments are not “amendments.”
# 119.

See ECF 28, PageID

Shiroma argues in the alternative that, if the

Memorandum amended the § 2255 motion, that amendment “relates
back” to the timely filed motion under Mayle v. Felix, 545 U.S.
644 (2005).

Id. at PageID #s 119-20.

And if that argument

fails, Shiroma asks the court to grant him leave to amend
pursuant to Rule 15(a)(2) of the Federal Rules of Civil
Procedure.

Id. at PageID # 120.
The timeliness of the Memorandum is a high-stakes

issue for Shiroma.

The § 2255 motion states its “ground for

relief” succinctly: Shiroma’s “[s]entence violates due process
in light of Johnson v. United States, 135 S.[]Ct. 2551 (2015).”
ECF 18, PageID # 83 (emphasis added).

The motion’s “Supporting

facts” clarify that Shiroma is relying on Johnson’s void-forvagueness holding as grounds to invalidate the Guidelines’
11

residual clause.

See id. (insisting that “the residual clause

is void ab initio under Johnson and Welch” (emphases added));
see also id. at PageID # 91 (explaining that the § 2255 motion
“relies on a right initially recognized in Johnson . . . which
Welch . . . recognized is retroactively applicable in collateral
proceedings” (emphases added)).

This void-for-vagueness

position was rejected by Beckles v. United States, 137 S. Ct.
886 (2017).

The Memorandum therefore “shift[s]” away from

“relying on the void-for vagueness doctrine.”

ECF 28, PageID

# 118.
Shiroma now argues that his “sentence violates due
process” because 1) it “derive[s] from an arbitrary and
unreliable starting point”; 2) it “is substantively
unreasonable”; and 3) “imposing the sentence did not follow the
rules.”

ECF 31, PageID # 165 (summarizing the argument); see

also ECF 28, PageID #s 127, 133, 135.

Shiroma says Beckles did

not nullify these arguments.
If Shiroma’s Memorandum does not introduce new claims,
it is timely.

The limitations period in 28 U.S.C. § 2255(f)

only covers “a motion under this section,” id. (emphasis added),
not any filing related to a § 2255 motion.

The Memorandum does

not purport to be a new § 2255 motion, and the United States
does not characterize it as such.

See O'Donnell v. Vencor Inc.,

466 F.3d 1104, 1111 (9th Cir. 2006) (finding a new complaint
12

untimely because it could not be an “amendment” for relatingback purposes and, as a new complaint, was independently
governed by the statute of limitations).
On the other hand, if Shiroma’s Memorandum is an
amendment, it is untimely unless the court grants him leave to
amend.

Amendments to § 2255 Motions are governed by Rule 15 of

the Federal Rules of Civil Procedure.

See Mayle v. Felix, 545

U.S. 644, 663 (2005); United States v. Lenox, 670 F. App’x 483,
484 (9th Cir. 2016).

An amendment may escape a time bar if it

“relates back” to the original (timely) pleading.
545 U.S. at 650; Fed. R. Civ. P. 15(c).

See Mayle,

As long as the

amendment relates back, § 2255 petitioners retain the “right to
amend without leave of court . . . [any time] before [the
government’s] responsive pleading is served.”
at 663; Fed. R. Civ. P. 15(a).

Mayle, 545 U.S.

By the time Shiroma filed his

Memorandum on June 8, 2017, the United States had responded to
his original § 2255 motion and more than twenty-one days had
passed since service of that response.

See ECF 24.

Under these

circumstances, Shiroma could not amend absent either “the
opposing party’s written consent or the court’s leave.”

Fed. R.

Civ. P. 15(a)(2).
Despite the importance of the issue, neither party has
identified legal authority bearing on the question of when a
filing is an amendment under Rule 15.
13

The United States simply

proclaims that Shiroma “amended his § 2255 Motion after the one
year statute of limitation had expired, thereby making his
current claim untimely.”

ECF 30, PageID #s 148-49.

Shiroma

proposes that filings making new claims are amendments, but
filings asserting new arguments are not.
#s 118-19.

See ECF 28, PageID

Shiroma cites just one case for this proposition,

United States v. Williams, 846 F.3d 303 (9th Cir. 2017), which
discusses when claims are forfeited on appeal.

See id. at 311.

This court need not decide whether to adopt Shiroma’s
argument/claim distinction, or even whether the Memorandum
introduces new claims or only new arguments.

The court grants

Shiroma leave to amend his original § 2255 motion.

See ECF 28,

PageID # 120 (requesting leave to amend as an alternative basis
supporting timeliness).
Under Rule 15 of the Federal Rules of Civil Procedure,
“a party may amend its pleading . . . [with] the court’s leave,”
and the court “should freely give leave . . . when justice so
requires.”

Fed. R. Civ. P. 15(a)(2).

“Unless undue prejudice

to the opposing party will result, a trial judge should
ordinarily permit a party to amend its complaint.”
United States, 481 F.2d 1187, 1190 (9th Cir. 1973).

Howey v.
“The key to

denying amendment is prejudice to the non-moving party.

Other

justification would be bad faith of the moving party or undue
delay.”

Donovan v. Royal Logging Co., 645 F.2d 822, 827 (9th
14

Cir. 1981) (citations omitted).

This is consistent with the

Ninth Circuit’s “longstanding policy in favor of deciding cases
on the merits.”

Jones v. Las Vegas Metro. Police Dep’t, 2017 WL

4700317, at *3 (9th Cir. 2017).
The United States would not suffer “undue prejudice”
if the court gives leave to amend.

The parties have fully

briefed the Memorandum’s positions.

See ECF 28 (Shiroma’s

Memorandum); ECF 30 (United States’ response); ECF 31 (Shiroma’s
reply).

In its response, the United States spent only one

sentence on the amendment issue and nowhere indicated that it
would be prejudiced by leave to amend. See ECF 30, PageID # 148.
Shiroma did not act in “bad faith” or cause “undue
delay.”

Shiroma filed his Memorandum in June 2017 because 1)

the court had issued a stay while waiting for the Supreme Court
to decide Beckles; and 2) once Beckles came out, counsel tried
to “obtain[] the petitioner’s consent to voluntarily withdraw
the petition.”

ECF 25, PageID # 109; ECF 21.

The June filing,

moreover, came before the expiration date in the court’s order
requesting a memorandum discussing Beckles.
Shiroma until June 9, 2017).

See ECF 27 (giving

Finally, Shiroma filed the

Memorandum just two months after he could have amended the
§ 2255 Motion without leave of court.

See Mayle v. Felix, 545

U.S. 644, 663 (2005) (explaining that a “petitioner may amend
his pleading ‘as a matter of course’” “any time before a
15

responsive pleading is served” (quoting Fed. R. Civ. P. 15(a)).
None of this suggests bad faith or undue delay.

Consequently,

the court grants Shiroma leave to amend.
Under Rule 15(c), even if, as the United States
contends, the Memorandum introduces new claims, those new claims
can “relate[] back to the date of the original” § 2255 motion as
long as they “ar[i]se out of the conduct, transaction, or
occurrence set out . . . in the original pleading.”
Civ. P 15(c)(1)(B).

Fed. R.

Relation back under Rule 15(c) “is

ordinarily allowed ‘when the new claim is based on the same
facts as the original pleading and only changes the legal
theory.’”

Mayle, 545 U.S. at 664 n.7 (quoting 3 J. Moore et

al., Moore’s Federal Practice § 15.19[2], p. 15–82 (3d ed.
2004)).

An amendment “does not relate back (and thereby escape

AEDPA’s one-year time limit) when it asserts a new ground for
relief supported by facts that differ in both time and type from
those the original pleading set forth.”

Mayle, 545 U.S. at 650;

United States v. Edlund, 251 F. App’x 452, 454 (9th Cir. 2007).
Shiroma’s Memorandum relies on the same facts as his timely
§ 2255 motion.

Therefore, it “relates back” and is timely under

Rule 15(c).
Having addressed the threshold timeliness issue raised
by the United States, this court turns to the other arguments
raised by the United States.
16

B.

Shiroma Lacks “Cause” Excusing His Procedural
Default.

Shiroma did not object to his career offender status
during sentencing or on direct appeal.

In such circumstances,

“review of the [defaulted] claim should be barred . . . absent a
showing of cause for the noncompliance and some showing of
actual prejudice resulting from the alleged constitutional
violation.”

Wainwright v. Sykes, 433 U.S. 72, 84 (1977); see

also United States v. Frady, 456 U.S. 152, 167 (1982).
If,

as

he

claims,

Shiroma

was

misclassified

as

a

career offender, that classification substantially disadvantaged
him

by

increasing

his

Guideline

range

by

many

months.

See

United States v. Kinman, No. 16CV1360 JM, 2016 WL 6124456, at *3
(S.D. Cal. Oct. 20, 2016) (quoting United States v. Braswell,
501 F.3d 1147, 1150 (9th Cir. 2007)); ECF 28, PageID # 117.

But

even if he was prejudiced, he fails to show “cause” for having
failed to object earlier to his career offender classification.
Shiroma relies on Johnson v. United States, 135 S. Ct.
2551 (2016), as “cause.”

See ECF 28, PageID # 120 (stating that

“Johnson . . . provide[s] the cause”).

Shiroma is apparently

saying that Johnson recognized a new constitutional right after
Shiroma’s

sentence

had

become

final,

and

that

the

timing

of

Johnson excuses Shiroma’s failure to raise his claims earlier.
While this court recognizes that, under Murray v. Carrier, 477

17

U.S. 478, 488 (1986), “a showing that the factual or legal basis
for a claim was not reasonably available to counsel” establishes
cause for a procedural default, Shiroma’s reliance on Johnson in
this regard directly contradicts his assertion that, following
Beckles, he is no longer relying on Johnson.

That is, Shiroma

is no longer arguing that the Guidelines’ residual clause is
unconstitutionally vague.

See United States v. Branch, No. 04-

CR-40022-PJH-4, 2016 WL 8729922, at *5 (N.D. Cal. Oct. 21, 2016)
(finding cause in light of Johnson for default on the claim that
the

Guidelines’

Shiroma

has

residual

now

clause

abandoned

is

his

unconstitutionally
earlier

vague).

void-for-vagueness

argument, see ECF 28, PageID #s 118-19; he can hardly claim that
Johnson justifies his default while simultaneously denying that
he is relying on the holding in Johnson.
Shiroma now insists that his “sentence violates due
process”

because

1)

it

“derive[s]

from

an

arbitrary

and

unreliable starting point”; 2) “is substantively unreasonable”;
and 3) “imposing his sentence did not follow the rules.”
31, PageID # 165.

ECF

Shiroma’s own Memorandum shows that the bases

for these claims were available to him when he was sentenced.
First,

in

arguing

that

due

process

precludes

the

imposition of an arbitrary sentence, Shiroma cites Richmond v.
Lewis, 506 U.S. 40 (1992), Chapman v. United States, 500 U.S.
453 (1991), and Kennick v. Sup. Ct., 736 F.2d 1277 (9th Cir.
18

1984).

ECF 28, PageID # 134.

Second, in arguing that his

sentence is substantively unreasonable, Shiroma discusses Gall
v.

United

States,

552

U.S.

38

States, 135 S. Ct. 8 (2014).

(2007),

and

Jones

ECF 28, PageID # 133.

v.

United

Finally, in

arguing a failure to “follow the rules,” Shiroma cites Hicks v.
Oklahoma, 447 U.S. 343 (1980), and Ballard v. Estelle, 937 F.2d
453 (9th Cir. 1991).

ECF 28, PageID # 135.

All of these

authorities were available to Shiroma at the time of sentencing.
See Murray, 477 U.S. at 488.
While Shiroma implies that it was not until Johnson
that the language in the residual clause was recognized as being
“a

black-hole

earlier

of

opinions

confusion,”
recognized

ECF
this

28,

PageID

“black

#

hole.”

119,

several

See,

e.g.,

United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011) (Agee,
J., concurring) (calling the residual clause “a black hole of
confusion and uncertainty”) (quoted in Johnson, 135 S. Ct. at
2562); United States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009)
(Kozinski,

C.J.,

dissental)

(asking

rhetorically

how

best

to

discern the “ordinary case” of a crime under ACCA’s residual
clause: “A statistical analysis of the state reporter? A survey?
Expert evidence? Google? Gut instinct?”) (quoted in Johnson, 135
S. Ct. at 2557).

These observations were not made in majority

opinions, but they were public and easily findable.

Shiroma

offers no explanation as to why he ignored their reasoning.
19

An

explanation

is

particularly

appropriate

professed nonreliance on Johnson.

given

Shiroma’s

See Engle v. Isaac, 456 U.S.

107, 130 (1982) (explaining why perceived “futility” does not
excuse default).
It is not enough for Shiroma to say, “Johnson provides
the

cause.”

ECF

28,

PageID

#

120.

This

court

certainly

recognizes that Johnson changed the law, but it did not change
all law.

If Shiroma has ceased relying on Johnson, then this

court looks to what arguments he was on notice of even absent
Johnson.

Shiroma has not established cause for failing to raise

his new due process claims or arguments earlier.

Wainwright,

433 U.S. at 91.
Shiroma argues in the alternative that the Wainwright
cause and prejudice requirements do not apply to him, because
his

claim

that

innocence claim.
claim

can

prejudice.

he

is

not

a

career

offender

ECF 28, PageID # 120.

overcome

procedural

default

is

an

actual

An actual innocence
without

cause

or

See Schlup v. Delo, 513 U.S. 298, 321 (1995); Powell

v. Walker, 685 F. App’x 594, 595 (9th Cir. 2017), cert. denied,
No. 17-5011, 2017 WL 2854630 (U.S. Oct. 2, 2017).

But Shiroma’s

claim that he was improperly characterized as a career offender
does not go to innocence.

See Vosgien v. Persson, 742 F.3d

1131, 1134–35 (9th Cir. 2014) (“A petitioner can demonstrate
actual innocence [by showing] in light of subsequent case law
20

that he cannot, as a legal matter, have committed the alleged
crime.” (emphasis added)).

Far from establishing that he did

not commit the bank robbery that he was charged with, Shiroma is
arguing that his sentence was too high.
innocence claim.

That is not an actual

See Wildman v. Johnson, 261 F.3d 832, 842-43

(9th Cir. 2001) (holding that a petitioner could not show actual
innocence

by

contending

that

his

consecutive

sentences

were

illegal when he “failed to challenge the facts underlying his
convictions”); see also Unthank v. Jett, 549 F.3d 534, 536 (7th
Cir. 2008) (“[Petitioner] says only that his sentence is too
high, and . . . this differs from a claim that he is innocent of
the crime of which he was convicted.”); Kinder v. Purdy, 222
F.3d 209, 213-14 (5th Cir. 2000) (holding insufficient a claim
that prior convictions did not constitute controlled substance
offenses for career offender purposes, as the petitioner did not
assert that he was “innocent of the crime for which he was
convicted”).

Shiroma has procedurally defaulted with respect to

his new claims or arguments.
C.

Shiroma’s Claims Go to Nonconstitutional
Sentencing Errors.

Even if it could be said that Shiroma does not run
afoul of the cause and prejudice requirements for overcoming a
procedural default, he could advance only defaulted
constitutional claims, not nonconstitutional sentencing errors.

21

See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.
1994); United States v. Mazzeo, No. 2:12-CR-337 JCM(CWH), 2017
WL 1363308, at *2 (D. Nev. Apr. 4, 2017).

The Ninth Circuit has

“consistently held that a § 2255 petitioner cannot challenge
nonconstitutional sentencing errors if such errors were not
challenged in an earlier proceeding.”

United States v.

McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996).

“We have also

made clear that computational errors in a petitioner’s
presentence report do not give rise to a constitutional issue.”
Id. at 1157; see also United States v. Acosta-Chavez, 727 F.3d
903, 909 (9th Cir. 2013) (”[A] district court commits procedural
error by miscalculating the applicable Guidelines range.”
(emphasis added)); United States v. Donn, 661 F.2d 820, 824 (9th
Cir. 1982) (“A defendant waives his right to attack the
presentence report through a § 2255 motion when he fails to
avail himself of an opportunity to do so contemporaneously or on
direct appeal.”).
Shiroma argues that his claims are constitutional
because “due process forbids . . . sentencing him as a career
offender when he is not a career offender.”
# 121.

ECF 28, PageID

This argument is nothing more than a mere assertion that

a Guideline calculation error is a constitutional error.

The

Ninth Circuit has foreclosed this argument, noting that
Guideline computational errors are not constitutional issues.
22

McMullen, 98 F.3d at 1157.

An allegedly erroneous

characterization of a defendant as a career offender similarly
fails to rise to the level of a constitutional matter.

See

United States v. Crause, No. 2:10-CR-00040-JLQ, 2017 WL 1159100,
at *4 (E.D. Wash. Mar. 28, 2017) (finding Johnson arguments that
a defendant was not a career offender “procedurally defaulted
because they are not constitutionally based”).

Designation as a

career criminal can clearly have a serious, even devastating,
impact on a sentence, but an alleged error in that regard is,
under governing Ninth Circuit law, a nonconstitutional error.

A

challenge to that designation is waived by a procedural default,
“without any opportunity to be saved by a showing of cause and
prejudice.”

United States v. Schlesinger, 49 F.3d 483, 485 (9th

Cir. 1994).
D.

Federal Bank Robbery Is a Crime of Violence Under
the Force Clause.

Quite apart from any procedural default, Shiroma
cannot succeed under § 2255 because, at least in the Ninth
Circuit, the robberies he pled guilty to qualify as crimes of
violence even without reliance on the Guidelines’ residual
clause.

Shiroma argues that this court wrongly applied the

Guidelines’ residual clause in deeming him a career offender.
See ECF 28, PageID # 127 (arguing that because the Guidelines’
“residual clause cannot be reliably applied in a non-arbitrary

23

way, using it . . . violates due process”); id. at PageID # 133
(insisting that “[using] the career offender guideline’s
residual clause [makes the resulting sentence] . . .
substantively unreasonable”); id. at PageID # 135 (maintaining
that “[w]hen the career offender guideline is applied to someone
who is not a career offender, the resulting sentence has not
conformed to the rules the government has imposed upon itself”).
The United States retorts that Shiroma’s federal bank robbery
convictions qualify as “crimes of violence” under the
Guidelines’ force clause, making Shiroma’s attacks on the
residual clause unavailing.

ECF 30, PageID #s 152-57.

In sentencing Shiroma as a career offender, this court
did not articulate which clause in the definition of “crimes of
violence” it was relying on.
#s 33, 38.

See ECF 12; ECF 14; ECF 15, PageID

Shiroma assumes that the only conceivable clause he

could have fallen under was the residual clause.

Ninth Circuit

law indicates otherwise.
In United States v. Selfa, 918 F.2d 749 (9th Cir.
1990), the Ninth Circuit ruled that all “persons convicted of
robbing a bank ‘by force and violence’ or ‘intimidation’ under
18 U.S.C. § 2113(a) [the federal bank robbery statute] have been
convicted of a ‘crime of violence’ within the meaning of
Guideline Section 4B1.1.”

Id. at 751.

Although the defendant

in Selfa insisted that he had “neither harmed nor threatened to
24

harm anyone in any way during [his] robberies,” the Ninth
Circuit observed that § 2113(a) “requires, at the very least,
either ‘force and violence’ or ‘intimidation.’ This court has
defined ‘intimidation’ under section 2113(a) to mean ‘willfully
to take, or attempt to take, in such a way that would put an
ordinary, reasonable person in fear of bodily harm.’”

Id. at

751 (quoting United States v. Hopkins, 703 F.2d 1102, 1103 (9th
Cir. 1983)).

Because this “intimidation” definition “is

sufficient to meet the section 4B1.2(1) requirement of a
‘threatened use of physical force,’” federal bank robbery under
§ 2113(a) qualifies as a crime of violence.

Id.

In other

words, even without the residual clause, a bank robbery
qualifies as a crime of violence given the force clause.
The Ninth Circuit has stood by Selfa following
Johnson.

See United States v. Cross, 691 F. App’x 312, 312–13

(9th Cir. 2017) (reiterating that “unarmed bank ‘intimidation’
under § 2113(a) requires the necessary level of violent physical
force” to constitute a crime of violence (citing Selfa, 918 F.2d
at 751)); United States v. Pritchard, 692 F. App’x 349, 351-52
(9th Cir. 2017) (same, for armed bank robbery); United States v.
Howard, 650 F. App’x 466, 468 (9th Cir. 2016), as amended (June
24, 2016) (same, for Hobbs Act robbery).
Shiroma does not contend that this court is misreading
Ninth Circuit decisions on this issue.
25

Instead, he insists that

Selfa “just got it wrong,” and that subsequent Supreme Court
decisions--the most recent being Torres v. Lynch, 136 S. Ct.
1619 (2016)--have undermined the precedential authority of
Selfa.

ECF 28, PageID #s 122-24.

Whether this argument has

analytical merit or not, this court cannot adopt it.

This court

is bound by circuit precedent unless intervening higher
authority “is clearly irreconcilable with [the] prior circuit
authority.”
2003).

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

The Ninth Circuit has itself examined Selfa under the

Miller standard and has declined to reject Selfa.

See Cross,

691 F. App’x at 313 (concluding that “no ‘intervening higher
authority’ is ‘clearly irreconcilable’ with Selfa” (quoting
Miller, 335 F.3d at 893)); Pritchard, 692 F. App’x at 351
(same).

The Ninth Circuit has decided Cross and Pritchard this

year, and Shiroma identifies no “intervening higher authority”
subsequent to and “irreconcilable” with Cross and Pritchard.
See Miller, 335 F.3d at 893.

In the face of these decisions,

this court concludes that Selfa remains good law.
Relying not on the residual or enumerated offenses
clauses, but instead on circuit precedent applying the force
clause, this court rules that federal bank robbery is a crime of
violence under the force clause.

Shiroma’s bank robbery

convictions were crimes of violence that rendered him a career
offender.
26

E.

The Court Issues a Certificate of Appealability.

“The standard for granting a certificate of
appealability is low. All that’s required is that ‘reasonable
jurists could debate’ whether the petition states a ‘valid claim
of the denial of a constitutional right’ and whether the
district court ‘was correct in its procedural ruling.’”

Frost

v. Gilbert, 835 F.3d 883, 888 (9th Cir. 2016) (en banc) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Given the “low”

standard, this court issues Shiroma a certificate of
appealability as to the issue of whether his career offender
designation denied him a constitutional right.
V.

CONCLUSION.
For the foregoing reasons, the court DENIES the motion

for § 2255 relief and GRANTS a certificate of appealability.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 31, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

United States v. Marc Shiroma, Civ. No. 16-00320 SOM-KJM; ORDER
DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
AND GRANTING A CERTIFICATE OF APPEALABILITY.
27