Tran v. USA
ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; AND (2) DENYING MOTION TO HOLD IN ABEYANCE AND FOR LEAVE TO SUPPLEMENT re 7 as to Khang Kien Tran - Signed by JUDGE DERRICK K. WATSON on 8/3/2017. (CR 95-00151 DKW-05; CV 16-00346 DKW-KJM) "For the foregoing reasons, the Court DENIES Tran's Section 2255 Motion and DENIES his request to hold the matter in abeyance. The Court likewise DENIES his r equest for a sentencing reduction under Amendment 794. Finally, the Court DENIES a certificate of appealability. The Clerk of the Court is directed to enter judgment in favor of the United States and close the case file." (emt, )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). Khang Kien Tran served by first class mail to the address of record on August 3, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
KHANG KIEN TRAN,
CR. NO. 95-00151-5 DKW
CV. NO. 16-00346 DKW-KJM
UNITED STATES OF AMERICA,
ORDER (1) DENYING MOTION
UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE; AND
(2) DENYING MOTION TO HOLD
IN ABEYANCE AND FOR LEAVE
On September 8, 2000, Petitioner Khang Kien Tran was sentenced to a
360-month term of imprisonment for methamphetamine distribution and firearms
violations. On June 24, 2016, Tran, proceeding pro se, filed his third Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255
Motion”), challenging his sentence based on Johnson v. United States, 135 S. Ct.
2551 (2015). Dkt. Nos. 707, 709, 710. Tran also asks the Court to reduce his
sentence based on Amendment 794, which amends U.S.S.G. § 3B1.2, and to hold his
Section 2255 Motion in abeyance pending the Supreme Court’s decision in Sessions
v. Dimaya.1 Dkt. No. 735. After careful consideration of the record and relevant
legal authority, the Court denies Tran’s Section 2255 Motion and all other pending
requests, and declines to issue a certificate of appealability.
Tran filed his Section 2255 Motion and an Application for Leave of Court to
File a Second or Successive Motion to Vacate, Set Aside, or Correct a Sentence
pursuant to 28 U.S.C. § 2255(F)(3) (“Application”) on June 24, 2016. The Court
recounts the factual and procedural matters relevant to Tran’s current requests for
Plea, Sentencing, and Direct Appeal
In 1998, Tran was charged in the Third Superseding Indictment with:
(1) conspiring to possess with the intent to distribute more than 100 grams of crystal
methamphetamine between 1994 and 1996, in violation of 18 U.S.C. §§ 841(a)(1)
and 846 (Count 1); (2) distributing more than 100 grams of crystal
methamphetamine on January 27, 1995, in violation of Section 841(a)(1) (Count 2);
(3) possession with the intent to distribute more than 100 grams of crystal
Sessions v. Dimaya, No. 15-1498, cert. granted sub nom. Lynch v. Dimaya, 137 S. Ct. 31 (Sept.
This case, Crim. No. 95-00151, was re-assigned to this Court on June 24, 2016. Dkt. No. 708.
Since that time, Tran has also filed a 28 U.S.C. § 2241 Petition (see Dkt. No. 714), and a Motion to
Reduce Sentence Pursuant to 18 U.S.C. § 3582(c) and California Proposition 47 (see Dkt. No.
717), which the Court ruled upon separately.
methamphetamine on January 27, 1995, in violation of Section 841(a)(1) and 18
U.S.C. § 2 (Count 3); (4) carrying a firearm during and in relation to a drug
trafficking crime on January 27, 1995, in violation of 18 U.S.C. § 924(c)(1) (Count
4); and (5) being a felon in possession of a firearm on January 27, 1995, in violation
of 18 U.S.C. § 922(g)(1) (Count 5). See Dkt. No. 434 (7/8/98 Third Superseding
On December 10, 1998, Tran entered a plea of guilty to Counts 2 and 5
pursuant to a plea agreement. The government dismissed Counts 1, 3, and 4
pursuant to the agreement. See Dkt. Nos. 503 (12/10/98 Minutes) and 511
(12/28/98 Order). On September 8, 2000, Tran was sentenced to 360 months
imprisonment as to Count 2 and 120 months as to Count 5, terms to run
concurrently. The sentencing court also imposed a five-year term of supervised
release on Count 2, and three years for Count 5, also to run concurrently. See Dkt.
Nos. 592 (9/8/2000 Minutes) and 600 (10/2/2000 Presentence Investigation Report
Tran appealed on April 16, 2001, challenging the effectiveness of counsel,
alleging that the government breached its obligations under the plea agreement and
that the court erred in calculating his guideline range. The Ninth Circuit affirmed
his conviction and sentence on January 31, 2002. See Dkt. No 624.
First and Second Section 2255 Motions
In his first Section 2255 Motion, filed on October 6, 2003, Tran challenged his
sentence based on allegations of ineffective assistance of counsel and prosecutorial
misconduct. The sentencing court denied the first Section 2255 Motion on
February 3, 2004 and denied Tran’s application for a certificate of appealability on
May 7, 2004. See Dkt. Nos. 636 and 643. Tran then sought reconsideration,
which the sentencing court construed as a “second or successive” habeas petition
because it challenged his sentence based on a new theory of law. See Dkt. No. 659
(1/4/05 Order). The sentencing court transferred Tran’s second 2255 Motion to the
Ninth Circuit Court of Appeals. 3 See Dkt. No. 659.
Third Section 2255 Motion
On July 7, 2016, the Court concluded that Tran’s current Section 2255 Motion
seeking relief pursuant to Johnson was a “second or successive” petition that
required certification from the Ninth Circuit Court of Appeals. The Court therefore
denied the Section 2255 Motion without prejudice and referred Tran’s third Section
Neither the district court docket in Crim. No. 95-00151 nor the Ninth Circuit docket in No.
00-10430 conclusively indicate whether the Ninth Circuit considered or certified Tran’s second
Section 2255 motion pursuant to Section 2255(h), or whether he pursued the matter further. The
Court has reviewed the district court and Ninth Circuit dockets in Tran’s various criminal and civil
cases, and has been unable to determine the ultimate resolution of his second Section 2255 motion.
See Civ. No. 03-00546 DAE-BMK; Ninth Cir. Nos. 98-10278, 00-10430, 04-16040, 14-30238,
2255 Motion and Application to the Ninth Circuit, pursuant to Ninth Circuit Court of
Appeals Rule 22-3(a). Dkt. No. 712. On May 10, 2017, the Ninth Circuit granted
Tran’s Application and instructed the district court to process it as a Section 2255
motion. Dkt. No. 726.
On June 26, 2017, Tran filed his response to the government’s June 6, 2017
opposition to his Section 2255 Motion, and additionally filed a Motion Requesting
That This Case Be Held In Abeyance Pending A Decision In The Supreme Court,
And For Leave Of Court To Supplement His Existing Motion. Dkt. No. 735. The
Court considers each of Tran’s requests below.
STANDARD OF REVIEW
Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a court
established by Act of Congress . . . may move the court which imposed the sentence
to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The statute
authorizes the sentencing court to grant relief if it concludes “that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack[.]”
In addition, the Court shall hold an evidentiary hearing on a petitioner’s
motion “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). The standard for
holding an evidentiary hearing is whether the petitioner has made specific factual
allegations that, if true, state a claim on which relief could be granted. United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). In other words, “[a]
hearing must be granted unless the movant’s allegations, when viewed against the
record, do not state a claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal.” Id.
Tran Is Not Entitled To Relief Under Johnson Or Its Progeny
The Johnson Line of Cases
On June 26, 2015, the Supreme Court decided Johnson, holding that the
residual clause definition of “violent felony” in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. 135 S. Ct.
at 2557–58. The Supreme Court later determined that Johnson is retroactively
applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1268 (2016). Most recently, the Supreme Court held in Beckles v. United States,
137 S. Ct. 886, 890–92 (2017), that the residual clause in the Sentencing Guidelines,
which is textually identical to the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii),
“[is] not subject to a challenge under the void-for-vagueness doctrine.” Id. at 896.
As discussed below, because Tran was neither subject to a sentencing
enhancement under the ACCA nor classified as a career offender under the
Sentencing Guidelines, these cases offer him no relief.4
Tran’s Sentence Was Not Enhanced Under The ACCA
As Tran concedes in his Reply, “none of his priors nor instant offenses qualify
as serious drug offenses nor crimes of violence under the [S]upreme [C]ourt[’]s
decision in Johnson.” Reply at 2, Dkt. No. 735; see also id. (“[D]efendant was not
sentenced under any provisions referring to a crime of violence or serious drug
offense that presents a serious potential risk of injury to another.” (citation
Indeed, Tran’s maximum possible sentence for Count 2 was life
imprisonment with a mandatory minimum term of ten years for distribution of more
than 100 grams of crystal methamphetamine in violation of 21 U.S.C
Tran was sentenced to the minimum number of months permissible under the then-mandatory
Guidelines in effect. See PSR ¶¶ 78–81 (Total offense level: 41; criminal history category VI;
guideline range for imprisonment: 360 months to life). Tran, however, was not classified as a
career offender under the Guidelines. Therefore, Beckles is not relevant to his sentence, nor,
given its holding, would it have helped him even if relevant.
In other portions of his Reply, however, Tran states that his “motion established a prima facie
showing for relief under Johnson . . . the definition and standard use[d] to calculate Tran[’]s
conviction and sentence are unconstitutionally vague in light of Johnson.” Reply at 3 (citations
§ 841(b)(1)(A). See PSR ¶ 78. His sentence for Count 5 was 120 months under 18
U.S.C. § 924(a)(2) for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). See PSR ¶ 79. Tran was not classified as a career offender
under the Guidelines—he had a total criminal history score of 13, with a criminal
history category of VI. 6 See PSR ¶ 60.
To be clear, Tran—unlike the defendant in Johnson—was not sentenced
under the ACCA for a “violent felony” that increased the punishment under 18
U.S.C. § 924(e) for crimes “involv[ing] conduct that presents a serious potential risk
of physical injury to another.” Johnson is thus inapplicable. See Chavez–Ramirez
v. United States, 2016 WL 6634866, at *2 (D. Haw. Nov. 8, 2016) (denying Section
2255 motion brought by petitioner sentenced for violations of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846, and holding that “Johnson is simply
inapplicable when a sentence did not rely on any definition of ‘violence’ or
‘violent.’”); Phillips v. United States, 2016 WL 5928806, at *2 (E.D. Va. Oct. 11,
2016) (denying Section 2255 motion brought under Johnson where defendant was
Tran’s offense level was based on 223.3 grams of “ice” and 32.43 kilograms of generic
methamphetamine, equivalent to 67,093 kilograms of marijuana, for a base offense level of 38.
PSR ¶¶ 37-40. He received a two-level increase for possession of a firearm during the offense
under U.S.S.G. § 2D1.1(b)(1). PSR ¶ 41. Additionally, he received adjustments for his role in
the offense (+4), acceptance or responsibility (-2), and assisting the government (-1). PSR ¶¶ 44,
47–48. The four felony convictions responsible for his criminal history score were (1) burglary in
the second degree, (2) assault with a deadly weapon, (3) extortion, and (4) being a felon in
possession of a firearm. See PSR ¶¶ 53–59.
convicted under 18 U.S.C. § 922(o) and sentenced under 18 U.S.C. § 924(a)(2),
noting that “none of the [U.S.S.G.] under which the Court calculated Petitioner’s
imprisonment range references § 924(e) or any language similar to the language
rendered void in Johnson.”).
In sum, neither Johnson nor its progeny has any discernible effect on Tran’s
conviction or sentence. His Section 2255 Motion is therefore DENIED.
No Stay Pending Dimaya Is Warranted
Tran asks the Court hold his Section 2255 Motion in abeyance pending the
Supreme Court’s decision in Sessions v. Dimaya.7 Tran, however, does not explain
the basis for this request.
On October 19, 2015, the Ninth Circuit decided Dimaya v. Lynch, 803 F.3d
1110 (9th Cir. 2015), holding that the reasoning of Johnson applied to the residual
clause definition of “crime of violence” in 18 U.S.C. § 16(b) so as to render it void
for vagueness. The Ninth Circuit reasoned that Section 16(b) suffered from the
same constitutional infirmities as the ACCA’s residual clause, because use of the
categorical approach to determine which offenses are “crimes of violence” within
the meaning of Section 16(b) involves similar double indeterminacy with regard to
On September 29, 2016, the Supreme Court granted certiorari. Dimaya, No. 15-1498, 137 S. Ct.
31 (Sept. 29, 2016). It held oral argument on January 17, 2017, and on June 26, 2017, restored
Dimaya to the calendar for reargument in October 2017.
the amount of risk required, extending the reasoning of Johnson to Section 16(b).
Dimaya, 803 F.3d at 1116–17.
Because Tran was convicted and sentenced for distribution of crystal
methamphetamine in violation of 21 U.S.C § 841(b)(1)(A) (Count 2) and under 18
U.S.C. § 924(a)(2) for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) (Count 5), his sentences will be untouched by the Supreme
Court’s decision in Dimaya for the reasons discussed above. His offenses are not
“crimes of violence” and will not be impacted by the holding in Dimaya. Tran’s
request to hold this case in abeyance pending the Supreme Court’s decision in
Dimaya is DENIED.
No Evidentiary Hearing Is Required
The Court is required to hold an evidentiary hearing on a Section 2255 motion
“[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). As the analysis above
demonstrates, Tran’s claims lack merit. The issues raised here can be conclusively
decided on the basis of the evidence in the record, and there is no reason to conduct
an evidentiary hearing on his request for relief based on Johnson or Dimaya. See,
e.g., United States v. Mejia–Mesa, 153 F.3d 925, 929 (9th Cir. 1998).
Tran Is Not Entitled To A Reduction Of Sentence
In his Reply, Tran moves to supplement his Section 2255 Motion “with
Amendment 794, for minor role reduction, amending section 3B.1.2.” Reply at 1.
Amendment 794 changed the language of the Commentary to U.S.S.G § 3B1.2 to
allow for more uniform application of the mitigating role sentencing factor. The
Commentary now states, “a defendant who does not have a proprietary interest in the
criminal activity and who is simply being paid to perform certain tasks should be
considered for an adjustment under this guideline.” Tran also asks, without
elaboration, that “some points be deducted from his calculations in light of the
government[’]s findings, because petitioner[’s] sentence was enhanced for some of
his priors and instant offenses that were used illegally to calculate his criminal
history and base offense level.” Reply at 2. Tran’s request is procedurally barred
and substantively lacking.
First, even construed as a motion seeking a modification based on the
amendments to U.S.S.G § 3B1.2, Tran’s claim would fail because this sort of
clarifying amendment does not apply retroactively on post-appellate review.
United States v. Stokes, 300 Fed. Appx. 507, 508 (9th Cir. 2008). Indeed, relying
principally on United States v. Quintero–Leyva, 823 F.3d 519 (9th Cir. 2016),
numerous courts have declined to retroactively apply the very guideline amendment
cited by Tran in the context of a collateral attack. See, e.g., United States v. Long,
2017 WL 2259676, at *1 (D. Nev. May 23, 2017) (Quintero–Leyva only made
Amendment 794 retroactive to direct appeals, not to motions under § 2255); United
States v. Burlingame, 2016 WL 6777834, at *2 (E.D. Mich. Nov. 16, 2016); Vanleer
v. United States, 2016 WL 6768919, at *1 (C.D. Ill. Nov. 15, 2016); United States v.
Camacho–Maldonado, 2016 WL 6681520, at *2 (M.D. Fla. Nov. 14, 2016); United
States v. Lewis, 2016 WL 6601644, at *3 (D. Minn. Nov. 7, 2016): United States v.
Song, 2016 WL 6537979, at *2 (S.D. Miss. Nov. 3, 2016); Rosa–Lara v. United
States, 2016 WL 4916796, at *2 (D. Utah Sept. 14, 2016).
Second, even if procedurally proper, Tran has not established how he plausibly
could have qualified for a downward adjustment for being a minor participant under
U.S.S.G. § 3B1.2. Instead, he received a four-level increase for his role in the
offense pursuant to U.S.S.G § 3B1.1(a) because he “was the leader/organizer of a drug
distribution organization involving at least ten individuals.” PSR ¶ 44; see also id.
(“[T]he evidence establishes by a preponderance that the defendant was the leader of a
crystal methamphetamine distribution conspiracy which was comprised of at least ten
individuals.”). Tran, in other words, could not possibly qualify for a mitigating role
adjustment under U.S.S.G. § 3B1.2, pre- or post-Amendment 794.
Certificate of Appealability
In denying his Section 2255 Motion, the Court must address whether Tran
should be granted a certificate of appealability. See R. 11(a), Rules Governing
Section 2255 Proceedings. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This standard is met only when the applicant shows that
“reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. MacDaniel, 529 U.S. 473, 483–84
(2000) (internal quotation marks omitted).
Based on the foregoing analysis, the Court finds no reasonable jurist would
find debatable the conclusion that Tran has shown no prejudice arising from the
inapplicable Amendment 794. Nor would any reasonable jurist debate this Court’s
assessment of the merits of Tran’s remaining constitutional claims—Johnson and its
progeny are inapplicable to his case. Accordingly, the Court declines to issue a
certificate of appealability.
For the foregoing reasons, the Court DENIES Tran’s Section 2255 Motion
and DENIES his request to hold the matter in abeyance. The Court likewise
DENIES his request for a sentencing reduction under Amendment 794. Finally, the
Court DENIES a certificate of appealability. The Clerk of the Court is directed to
enter judgment in favor of the United States and close the case file.
IT IS SO ORDERED.
DATED: August 3, 2017 at Honolulu, Hawai‘i.
Tran v. United States; CR NO. 95-00151 (05) DKW; CV NO. 16-00346 DKW-KJM; ORDER
(1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR
CORRECT SENTENCE; AND (2) DENYING MOTION TO HOLD IN ABEYANCE AND
FOR LEAVE TO SUPPLEMENT
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