United States District Court, D. Hawaii
ORDER DENYING DEFENDANT DERRICK COSTA’S MOTION FOR RELEASE ON BAIL (ECF NO. 29)
Helen Gillmor United States District Judge
Defendant Derrick Costa has filed a Motion for Release on Bail (ECF No. 29) pending the resolution of his claim under 28 U.S.C. § 2255 that his sentence is unconstitutional pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Descamps v. United States, 133 S.Ct. 2276 (2013).
Defendant’s Motion for Release on Bail (ECF No. 29) is DENIED.
On April 29, 2004, Defendant pled guilty, pursuant to a plea agreement, to the one count in the Indictment of being a convicted felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). (ECF Nos. 9, 15, 19).
Defendant’s conviction for being a felon in possession of ammunition was subject to a statutory mandatory maximum of ten years imprisonment. 18 U.S.C. § 924(a)(2). Defendant was subject to sentence enhancement based on the Armed Career Criminal Act.
Pursuant to the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), a defendant convicted of possession of ammunition who has three or more prior convictions for “a violent felony or a serious drug offense or both” is subject to a statutory mandatory minimum sentence of fifteen years imprisonment. 18 U.S.C. § 924(e)(1).
A violent felony is defined in 18 U.S.C. § 924(e)(2)(B) as follows:
(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).
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.” Such a crime falls under what is called the Residual Clause. 18 U.S.C. § 924(e)(2)(B)(ii).
DEFENDANT’S PLEA AGREEMENT
In his Memorandum of Plea Agreement, Defendant stipulated that he was an Armed Career Criminal, stating he had three prior convictions for Burglary in the First Degree in violation of Section 708-810 of the Hawaii Revised Statutes. (Memo. of Plea Agreement at ¶¶ 8(a)-(c), 10(b)(i), ECF No. 17).
In exchange for Defendant’s guilty plea to the one-count Indictment, the Government agreed not to charge the Defendant with an additional charge for possession of an object that is designed or intended to be used as a weapon in violation of 18 U.S.C. § 1791. (Memo. of Plea Agreement at ¶ 4, ECF No. 17).
Defendant’s possession of object charge was alleged to have occurred while Defendant was being held as an inmate at the Federal Detention Center. (Id.)
Defendant agreed to the following in his Memorandum of Plea Agreement:
The Defendant understands that he will likely be considered an Armed Career Criminal and will be subject to the mandatory minimum sentence of 15 years for pleading guilty to the single-count Indictment pursuant to Title 18, United States Code of 924(e). The Defendant further understands that the United States’ agreement not to prosecute him for the possession of the prohibited object means that he will not be subject to a consecutive sentence, pursuant to Title 18, United States Code, Section 1791(c), had he been charged and found guilty of such offense.
(Memo. of Plea Agreement at ¶ 4, ECF No. 17).
DRAFT PRESENTENCE REPORT AND GOVERNMENT’S RESPONSE
The Probation Office prepared a Draft Presentence Report that was submitted to the Parties following the Court’s acceptance of Defendant’s guilty plea.
After receiving the Draft Presentence Report, the Government learned that the stipulation in Defendant’s Memorandum of Plea Agreement stating that he had three prior convictions for Burglary in the First Degree was incorrect. (Gov’t Opp. at p. 4, ECF No. 32).
Defendant’s conviction record revealed that he was previously convicted of:
(1) Two counts for Burglary in the First Degree in violation of Haw. Rev. Stat. ...