Troiano v. USA

Filing 6

ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 324) re 1 - Signed by JUDGE HELEN GILLMOR on 8/25/2017. (CR 05-00261 HG; CV 16-00512 HG-KSC) "Petitioner's Section 2255 Motion is GRANTED, IN PART, AND DENIED, IN PART. Petitioner's challenge to his ACCA sentencing enhancement applied to his Fel on in Possession of a Firearm charge in Count 4 is GRANTED. Petitioner's challenge to the Career Offender designation as to Counts 1 and 2 of his conviction is DENIED. Petitioner's challenge to the use of his Hobb s Act Robbery as a basis for a Career Offender Designation is DENIED. The Parties shall file memoranda addressing their positions as to the procedure for post-2255 proceedings in this case. The memoranda shall be filed on or b efore Friday, September 29, 2017. The memoranda shall address the need for a revised Presentence Investigation Report, the need for a resentencing hearing, and the need for Petitioner to be present at a resentencing hearing." (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). 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
JAMES TROIANO,

)
)
)
Petitioner,
)
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
)
)
Respondent.
_______________________________ )

Crim. No. 05-00261 HG-01
Civ. No. 16-00512 HG-KSC

ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 324)
On May 26, 2016, Petitioner James Troiano filed a Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
(ECF No. 324).

Petitioner advances three theories for relief:

One:

He was incorrectly sentenced as an Armed Career
Criminal;

Two:

His was incorrectly sentenced as a Career
Offender; and,

Three:

His Hobbs Act robbery crimes are not crimes of
violence and should not have been used as a basis
for a Career Offender designation.
PROCEDURAL HISTORY

On October 5, 2005, the Government filed a four-count
Superseding Indictment as to Petitioner and another defendant for
robbing a convenience store at gun point.
1

(ECF No. 59).

The

Superseding Indictment charged the Petitioner, as follows:
Count 1:

knowingly and willfully conspiring with others to
obstruct and affect commerce and the movement of
articles and commodities in such commerce, by
robbery, in violation of 18 U.S.C. §§ 1951 and 2
(Conspiracy to commit a Hobbs Act robbery).

Count 2:

knowingly and willfully obstructing and affecting
commerce and the movement of articles and
commodities in such commerce, by robbery, in
violation of 18 U.S.C. §§ 1951 and 2 (Hobbs Act
robbery).

Count 3:

knowingly carrying and brandishing a firearm
during and in relation to a crime of violence, to
wit: conspiracy and Hobbs Act robbery as charged
in Counts 1 and 2 of this Superseding Indictment
in violation of 18 U.S.C. § 924(c).

Count 4:

having been convicted of a crime punishable for a
term exceeding one year, did knowingly possess in
and affecting commerce a firearm in violation of
18 U.S.C. §§ 922(g)(1); 924(e).

.

(ECF No. 59).
On April 19, 2006, after seven days of trial, the jury found
Petitioner guilty on all four counts in the Superseding
Indictment. (ECF Nos. 181, 183).
The United States Probation Office prepared a Presentence
Investigation Report (“PSR”) concerning Petitioner.

The PSR

provided that Petitioner was subject to a sentencing enhancement
as a Career Offender.

(PSR at pp. 10-11, ¶ 42).

The PSR relied on Petitioner’s three convictions for
Burglary in the First Degree in Hawaii as the predicate crimes of
violence for the Career Offender designation.
64).
2

(Id. at p. 17, ¶

The PSR also concluded that Petitioner’s sentence was
subject to enhancement through the Armed Career Criminal Act, 18
U.S.C. § 924(e).

(Id. at p. 11, ¶ 43).

On August 24, 2006, the Court sentenced Petitioner to a term
of imprisonment of 17 years as to each of Counts 1, 2, and 4 to
be served concurrently with each other, followed by a seven year
term as to Count 3, to be served consecutively to the terms
imposed for Counts 1, 2, and 4, for a total of 24 years
imprisonment.

(ECF No. 218).

The Court sentenced Petitioner to

a term of supervised release of 5 years for each of Counts 3 and
4, and 3 years for each of Counts 1 and 2, all terms to run
concurrently.

(Id.)

On December 12, 2007, the Ninth Circuit Court of Appeals
affirmed Petitioner’s conviction and sentence.

(ECF No. 273).

On April 14, 2008, the United States Supreme Court denied
Petitioner’s petition for certiorari.

Troiano v. United States,

552 U.S. 1130 (2008).
On April 14, 2009, Petitioner filed a MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN
FEDERAL CUSTODY.

(ECF No. 283).

On August 19, 2009, the Court issued an ORDER DENYING JAMES
TROIANO’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255.

(ECF No. 298).

Six years later, on June 26, 2015, the United States Supreme

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Court issued its opinion in Johnson v. United States, 135 S.Ct.
2551 (2015).
On May 26, 2016, Petitioner filed DEFENDANT-PETITIONER’S
APPLICATION FOR LEAVE TO FILE SECOND OR SUCCESSIVE PETITION UNDER
28 U.S.C. § 2255 with the Ninth Circuit Court of Appeals.

(ECF

No. 323-1).
On September 16, 2016, the Ninth Circuit Court of Appeals
granted Petitioner’s application to file a second or successive
Section 2255 Motion, stating that the application makes a prima
facie showing under Johnson.

The appellate court ordered that

Petitioner’s Second Section 2255 Motion be deemed filed in the
district court on May 26, 2016.

(ECF No. 323).

On September 16, 2016, Petitioner filed his second MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY.

(ECF No. 324).

The second

Motion was deemed filed on May 26, 2016, pursuant to the order
from the Ninth Circuit Court of Appeals.

(See id., ECF 323).

On September 19, 2016, the Court stayed Petitioner’s Section
2255 Motion, pending the decision of the Supreme Court of the
United States in Beckles v. United States.

(ECF No. 327).

On March 6, 2017, the Supreme Court of the United States
issued its decision in Beckles v. United States, 137 S.Ct. 886
(2017).
On March 30, 2017, Petitioner filed a SUPPLEMENTAL

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MEMORANDUM.

(ECF No. 328).

On April 28, 2017, Petitioner filed DEFENDANT-PETITIONER’S
MOTION FOR A RULING ON HIS § 2255 MOTION.

(ECF No. 332).

On May 1, 2017, the Government filed a RESPONSE TO THE
DEFENDANT’S SUPPLEMENTAL MEMORANDUM (ECF NO. 328) AND HIS MOTION
FOR A RULING ON HIS § 2255 MOTION (ECF NO. 332) and a MEMORANDUM
IN RESPONSE TO THE DEFENDANT’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE.

(ECF Nos. 333, 334).

On May 22, 2017, Petitioner filed his Reply.

(ECF No. 335).

On July 5, 2017, the Court held a hearing on Petitioner’s
Section 2255 Motion to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody (ECF No. 324).

(ECF No. 339).

ANALYSIS
I.

Sentencing as to Count 4
First, Petitioner challenges his sentencing on Count 4 of

the Superceding Indictment.

Count 4 charged Petitioner with

being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(e).

Section 924(e) establishes a

mandatory minimum sentence of fifteen years in cases where an
individual with three prior convictions for violent felonies
posses a firearm in violation of Section 922(g).

The Sentencing

Guidelines state, “[a] defendant who is subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal.”

United States Sentencing Guidelines
5

(“U.S.S.G.”) § 4B1.4(a).
The Presentence Investigation Report (“PSR”) stated that
Petitioner violated 18 U.S.C. § 922(g).

The PSR treated his

three Hawaii first-degree burglary convictions as violent
felonies, which allowed for application of the Armed Career
Criminal enhancement of § 924(e).

(PSR at ¶¶ 42-43, 81).

Once Petitioner was classified as an armed career criminal,
his offense level was increased to the same level as a Career
Offender pursuant to § 4B1.1(c)(3).

(PSR at ¶ 81).

The Court

sentenced Petitioner to a term of imprisonment of 17 years as to
Count 4 to be served concurrently with Counts 1 and 2, followed
by a seven year term as to Count 3, for a total of 24 years
imprisonment.

(ECF Nos. 218, 219).

Petitioner argues that his sentence as to Count 4 of the
Superceding Indictment was calculated incorrectly.

Petitioner

asserts that Hawaii burglary offenses are not “violent felonies”
because Hawaii burglary offenses do not meet the requirements of
a violent felony pursuant to 18 U.S.C. § 924(e).
The Supreme Court of the United States’ holding in Johnson
v. United States, 135 S.Ct. 2551 (2015) invalidates the Armed
Career Criminal Act enhancement of Petitioner’s sentence on Count
4.
A violent felony is defined in 18 U.S.C. § 924(e)(2)(B) as
follows:

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(B)

the term “violent felony” means any crime
punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife,
or destructive device that would be punishable by
imprisonment for such term if committed by an
adult, that:

(i)

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

(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
18 U.S.C. § 924(e)(2)(B).
The Enumerated Offense Clause:
The first clause in Section 924(e)(2)(B)(ii) covers
“burglary, arson, or extortion, or involves use of explosives.”
It is called the Enumerated Offense Clause.

18 U.S.C. §

924(e)(2)(B)(ii).
Hawaii burglary convictions do not fit in the Enumerated
Offense Clause of the ACCA.

See United States v. Lee, CR No. 12-

00133 JMS (02), 2016 WL 1039046, at *1 (D. Haw. Mar. 15, 2016);
United States v. Josiah, No. 16-cv-00080 HG-KSC, 2016 WL 1328101,
at *2 (D. Haw. Apr. 5, 2016).
The Residual Clause:
The second clause in Section 924(e)(2)(B)(ii) covers a prior
unenumerated crime that “otherwise involves conduct that presents
a serious potential risk of physical injury to another.”

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Such a

crime falls under what is called the Residual Clause.

18 U.S.C.

§ 924(e)(2)(B)(ii).
The Supreme Court of the United States held in Johnson that
the Residual Clause of 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutionally vague. Johnson, 135 S.Ct. at 2557.
Petitioner’s ACCA enhancement for his felon in possession of
a firearm charge (Count 4) cannot stand after Johnson.
Petitioner’s convictions for Hawaii burglary offenses are not
“violent felonies” pursuant to the Enumerated Offense Clause or
Residual Clause of the ACCA.

Petitioner’s three convictions for

Hawaii first-degree burglary cannot be used as a basis to enhance
his sentence.
The Government agrees that after Johnson, the armed career
criminal enhancement was incorrectly applied to Count 4 of the
Petitioner’s sentence.

(United States of America’s Memorandum in

Response at p. 4, ECF No. 333).
The possible maximum sentence without the enhancement is ten
years, with a three-year term of supervised release.
924(a)(2).

18 U.S.C. §

The Petitioner’s sentence on Count 4 was for

seventeen years incarceration with a five-year term of supervised
release.

The period of incarceration is seven years longer than

the maximum sentence authorized by law.

The period of supervised

release is two years longer than the maximum allowed by law.
Petitioner’s Section 2255 Motion is GRANTED as to Count 4.
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II.

Sentencing as a Career Offender
Petitioner contends that he was incorrectly sentenced as a

Career Offender as to Counts 1 and 2.
to commit a Hobbs Act Robbery.
Robbery.

Count 1 charged conspiracy

Count 2 charged a Hobbs Act

The PSR enhanced Petitioner’s sentence pursuant to the

Career Offender designation found in § 4B1.1 of the Sentencing
Guidelines.
The Career Offender designation applies when:
(1)

a defendant was over the age of eighteen years at
the time of the charged offense,

(2)

the charged offense 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 for a crime of violence or a
controlled substance offense.

U.S.S.G § 4B1.1(a).
Petitioner was designated as a Career Offender because of
his three prior Hawaii first degree burglary convictions.
at ¶¶ 42, 64, 81).

His sentence was enhanced accordingly.

(PSR
(PSR

at ¶ 42).
Petitioner argues that the holding in Johnson should extend
to the Sentencing Guidelines. (Motion Under § 2255 at p. 6, ECF
No. 324).
Beckles v. United States, 137 S.Ct. 886 (2017), ruled on a
challenge to the residual clause of the Career Offender

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enhancement in the Sentencing Guidelines.

The Supreme Court of

the United States distinguished the Sentencing Guidelines from
the United States Code.

The Court held that the Sentencing

Guidelines “are not subject to a vagueness challenge under the
Due Process Clause.”

Id. at 890.

The Sentencing Guidelines do

not fix the sentences for criminal offenses, but are designed to
guide the exercise of a court’s discretion in choosing an
appropriate sentence.

Id.

The holding in Beckles requires that Petitioner’s challenge
to his Career Offender designation must fail.

Petitioner’s §

2255 Motion is DENIED as to the Career Offender Designation.

III. A Hobbs Act Robbery is a Crime of Violence
A Career Offender enhancement requires the instant offense
of conviction be for a crime of violence or a controlled
substance offense.

U.S.S.G § 4B1.1(a).

Petitioner contends that

a Hobbs Act Robbery is not a crime of violence pursuant to 18
U.S.C. § 924(c).
The Ninth Circuit Court of Appeals has found a Hobbs Act
Robbery is a crime of violence.

See, e.g., United States v.

Howard, 650 Fed. Appx. 466, 468 (9th Cir. 2016), as amended (June
24, 2016) (“Because bank robbery by ‘intimidation’— which is
defined as instilling fear of injury — qualifies as a crime of
violence, Hobbs Act Robbery by means of ‘fear of injury’ also

10

qualifies as crime of violence.”); United States v. Mendez, 992
F.2d 1488, 1492 (9th Cir. 1993) (“[C]onspiracy to interfere with
interstate commerce by robbery in violation of § 1951
categorically creates a substantial risk that physical force may
be used.”).
agree.

The Second, Eighth, and Eleventh Circuit courts

See In re Saint Fleur, 824 F.3d 1337, 1340 (11th Cir.

2016) (holding that Hobbs Act robbery “clearly qualifies as a
‘crime of violence’ under” the elements clause in Section
924(c)(3)(A)); United States v. House, No. 14-3011, 2016 WL
3144735 (8th Cir. June 6, 2016); United States v. Hill, 832 F.3d
135, 142–44 (2d Cir. 2016).
A Hobbs Act Robbery is a crime of violence for the purposes
of 18 U.S.C. § 924(c).

Petitioner’s Section 2255 Motion is

DENIED as to Counts 1 and 2.

CONCLUSION
Petitioner’s Section 2255 Motion is GRANTED, IN PART, AND
DENIED, IN PART.
Petitioner’s challenge to his ACCA sentencing enhancement
applied to his Felon in Possession of a Firearm charge in Count 4
is GRANTED.
Petitioner’s challenge to the Career Offender designation as
to Counts 1 and 2 of his conviction is DENIED.
Petitioner’s challenge to the use of his Hobbs Act Robbery

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as a basis for a Career Offender Designation is DENIED.
The Parties shall file memoranda addressing their positions
as to the procedure for post-2255 proceedings in this case.
The memoranda shall be filed on or before Friday, September
29, 2017.
The memoranda shall address the need for a revised
Presentence Investigation Report, the need for a resentencing
hearing, and the need for Petitioner to be present at a
resentencing hearing.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 25, 2017

___________________________________
Helen Gillmor
United States District Judge

James Troiano vs. United States of America, Criminal No. 05-00261
HG-01, Civil No. 16-00512 HG-KSC; ORDER GRANTING IN PART, AND
DENYING IN PART PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (ECF No. 324)
12