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United States v. Padayao

United States District Court, D. Hawaii

June 27, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JAY PADAYAO, Defendant. Civ. No. 16-cv-00223 HG-KSC

          ORDER DENYING DEFENDANT JAY PADAYAO’S MOTION FOR RELEASE ON BAIL (ECF NO. 96)

          Helen Gillmor United States District Judge.

         Defendant Jay Padayao has filed a Motion for Release on Bail (ECF No. 96) from his term of imprisonment for violating the terms of his supervised release. Defendant seeks release on bail pending the resolution of his claim under 28 U.S.C. § 2255 that his underlying term of imprisonment was unconstitutional.

         Defendant claims that his term of imprisonment for violating supervised release should be reduced by the United States Bureau of Prisons based on a theory that the time he served for his underlying sentence should be credited to his current term of imprisonment for violations of supervised release.

         Defendant’s Motion for Release on Bail (ECF No. 96) is DENIED.

         BACKGROUND

         On April 20, 2005, the grand jury returned an Indictment charging Defendant Jay Padayao of being a convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e). (ECF No. 4).

         The Indictment stated that Defendant Padayao was subject to a sentencing enhancement pursuant to 18 U.S.C. § 924(e) of the Armed Career Criminal Act of 1984, for having been previously convicted of at least three prior violent felonies as defined in 18 U.S.C. § 924(e)(2)(B).

         On February 16, 2006, Defendant pled guilty to the one count in the Indictment for being a felon in possession of a firearm. (ECF No. 44). Defendant did not agree that he was subject to the sentence enhancement pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e). (Transcript of Withdrawal of Not Guilty Plea at p. 16, ECF No. 76).

         On July 13, 2006, Defendant filed a Motion for Downward Departure. (ECF No. 53).

         Defendant’s Presentence Report

         Defendant’s Presentence Report determined that Defendant was not subject to sentence enhancement pursuant to the Armed Career Criminal Act. (Presentence Report at ¶ 78). The Government agreed that Defendant could not be convicted as an Armed Career Criminal because Defendant’s prior state convictions for Escape in the Second Degree no longer qualified as violent felonies pursuant to the Ninth Circuit Court of Appeals’ decision in United States v. Piccolo, 441 F.3d 1084 (9th Cir. 2006). (Amended Government’s Response to the Proposed Presentence Report, ECF No. 50; Addendum No. 2 to the Presentence Report, 1A).

         Defendant’s Sentencing Guidelines

         The Presentence Report calculated Defendant’s sentencing guidelines from a base offense of 24 pursuant to United States Sentencing Guideline § 2K2.1(a)(2). (Presentence Report at ¶ 24).

         United States Sentencing Guideline 2K2.1(a)(2) (2005) provided:

         §2K2.1. Unlawful Receipt, Possession or Transportation of Firearm or Ammunition: Prohibited Transactions Involving Firearms or Ammunition

         (a) Base Offense Level (Apply the Greatest):

(2) 24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.

         (U.S.S.G. § 2K2.1(a)(2) (2005)).

         Commentary to Section 2K2.1 stated that “crime of violence” has the meaning given to that term in §4B1.2(a).

         United States Sentencing Guideline 4B1.2(a) (2005) provided:

         §4B1.2. Definitions of Terms Used in 4B1.1

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a ...

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