United States District Court, D. Hawaii
ORDER: (1) DISMISSING DEFENDANT-PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN A FEDERAL CUSTODY; AND (2)
GRANTING A CERTIFICATE OF APPEALABILITY
Gregg Inoshita (“Inoshita”) pled guilty to bank
robbery in violation of 18 U.S.C. § 2113(a). In his Plea
Agreement, he stipulated that he was a career offender under
the United States Sentencing Guidelines (“USSG”
or “guideline(s)”) based on his three prior
§ 2113(a) convictions. He now moves, pursuant to 28
U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (“§ 2255
Motion”) on the grounds that he is
“innocent” of being a career offender.
Inoshita argues that a § 2113(a) bank robbery conviction
no longer counts as a crime of violence under the guidelines
in light of Johnson v. United States, 559 U.S. 133
(2010) (“Johnson I”), Descamps v.
United States, 133 S.Ct. 2276 (2013), and Johnson v.
United States, 135 S.Ct. 2551 (2015) (“Johnson
II”). Consequently, Inoshita contends that he is
“actually innocent of being a career offender under the
Guidelines, ” and the court’s use of an
“unconstitutionally and illegally determined starting
point for the determination of his sentence . . . skewed his
resulting sentence.” Id.
court decides the § 2255 Motion under Local Rule
(“LR”) 7.2(d) without a hearing. Because Inoshita
waived his right to bring this motion, and because bank
robbery under § 2113(a) remains a crime of violence, the
court DENIES Inoshita’s § 2255 Motion, but GRANTS
a certificate of appealability.
April 1, 2015, Inoshita pled guilty to a one-count
Information charging him with bank robbery in violation of 18
U.S.C. § 2113(a). Doc. Nos. 8, 9. Prior to the instant
offense, Inoshita had been convicted of three other §
2113(a) bank robberies. Doc. No. 17, Presentence Report
(“PSR”) at 7-9. In his Plea Agreement -- which
was accepted by the court at sentencing on July 20, 2015,
Doc. No. 14 -- Inoshita stipulated that he “is a Career
Offender pursuant to USSG § 4B1.1[.]” Doc. No. 9,
Plea Agreement ¶ 10(b). Under USSG § 4B1.1(a), a
defendant is a career offender if: (1) he “was at least
eighteen years old” when the instant offense occurred;
(2) “the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance
offense;” and (3) he has “at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” USSG § 4B1.1(a).
turn, USSG § 4B1.2(a) defines a crime of violence as a
crime that either (a) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another, ” or (b) is “burglary of a
dwelling, arson, or extortion, involves use of explosives,
” or (c) “otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” These three clauses are referred to as the
“elements clause, ” the “enumerated
offenses clause, ” and the “residual clause,
addition, Inoshita expressly waived his right to appeal or
otherwise challenge his sentence except (1) if it exceeded
the statutory maximum or guideline range, as determined by
the court, or (2) on the basis of ineffective assistance of
13. Defendant is aware that he has the right to appeal his
conviction and the sentence imposed under Title 18, United
States Code, Section 3742(a). Defendant knowingly waives,
except as indicated in subparagraph “b” below,
the right to appeal his conviction, the right to appeal any
sentence imposed within the maximum provided in the
statute(s) of conviction, and the right to appeal the manner
in which that sentence was determined on any of the grounds
set forth in Section 3742, or on any ground whatever, in
exchange for the concessions made by the prosecution in this
a. The Defendant also waives his right to challenge his
conviction, the right to challenge the sentence imposed, and
the right to challenge the manner in which it was determined
in any collateral attack, including, but not limited to, a
motion brought under Title 28, United States Code, Section
2255, except that Defendant may make such a challenge (1) as
indicated in subparagraph “b” below, or (2) based
on a claim of ineffective assistance of counsel.
b. If the Court imposes a sentence greater than specified in
the guideline range determined by the Court to be applicable
to the Defendant, Defendant retains the right to appeal the
portion of his sentence greater than specified in that
guideline range and the manner in which that portion was
determined under Section 3742 and to challenge that portion
of his sentence in a collateral attack.
Agreement ¶ 13(a) & (b). The Assistant United States
Attorney and the court explained these waivers to Inoshita
during the change of plea proceeding. Doc. No. 26 at 15-17.
The court also found that Inoshita was competent to
understand the proceedings and that his guilty plea was
voluntary. Id. at 28.
the change of plea hearing, but prior to sentencing, the
United States Supreme Court ruled that the residual clause of
18 U.S.C. § 924(e)(2)(B)(ii), of the Armed Career
Criminal Act (“ACCA”) is void for vagueness.
Johnson II, 135 S.Ct. at 2557.
light of Johnson II, at the outset of
Inoshita’s sentencing hearing on July 20, 2015, this
court raised the issue of whether the instant offense and
Inoshita’s prior offenses still qualify as crimes of
violence. Doc. No. 18, Sentencing Tr. at 2-3. Specifically,
the court inquired whether Inoshita’s bank robbery
convictions fell under the residual clause or the elements
clause of the guidelines. The parties responded as follows:
[DEFENSE COUNSEL]: Well, I did do the research and our office
-- our analysis is that unfortunately, Johnson does
not seem to apply to Mr. Inoshita’s either current
offense or the priors.
[GOVERNMENT COUNSEL]: I would agree with that, Your Honor.
This isn’t a ...