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United States v. McShane

United States District Court, D. Hawaii

June 27, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BRONSON MCSHANE, Defendant. Civ. No. 16-cv-00206 HG-RLP

          ORDER DENYING DEFENDANT BRONSON MCSHANE’S MOTION FOR RELEASE ON BAIL (ECF NO. 126)

          Helen Gillmor United States District Judge.

         Defendant Bronson McShane has filed a Motion for Release on Bail (ECF No. 126) 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. 126) is DENIED.

         BACKGROUND

         On April 8, 2009, a grand jury returned a Superseding Indictment charging Defendant Bronson McShane as follows:

         Count 1 for conspiracy to commit a Hobbs Act Robbery and commission of a Hobbs Act Robbery, in violation of 18 U.S.C. §§ 2, 1951. As to Count 1, the Superseding Indictment stated:

[T]he defendants did conspire to obtain and did obtain property belonging to Leilani Lounge consisting of United States currency and a cash register, from the person and in the presence of T.Y., who was the owner of Leilani Lounge, which was engaged in interstate commerce, against T.Y.’s will by means of actual and threatened force, violence, and fear of injury, immediate and future, on T.Y.

         (Superseding Indictment on p. 2, ECF No. 24) (emphasis added).

         Count 2 for use of a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. §§ 2, 924(c)(1)(B)(i). As to Count 2, the Superseding Indictment stated:

On or about November 10, 2008, in the District of Hawaii, the defendant, BRONSON MCSHANE and his unindicted co-defendant knowingly used, carried, and brandished a firearm, to wit: a short-barreled shotgun, during and in relation to a crime of violence, to wit: a Hobbs Act Robbery as charged in Count 1 of this Indictment.
(Superseding Indictment on pp. 2-3, ECF No. 24).

         On June 18, 2009, Defendant McShane pled guilty before a Magistrate Judge to Counts 1 and 2 of the Superseding Indictment. (ECF No. 46). There was no plea agreement.

         The Government recited the facts to the crime at the change of plea hearing as follows:

AUSA CHING: Specifically, with regard to the facts, the government would prove beyond a reasonable doubt that on or about November 10th, 2008, at about 1:23 in the morning, the defendant -- co-defendant Aaron Malama, an unindicted co-defendant, robbed the Leilani Lounge, a commercial liquor establishment within the District of Hawaii...Defendant [McShane] wore a white mask and was armed with a knife. The unindicted co-defendant was wearing a dark colored mask and was armed with a short-barreled shotgun.
There was only one patron in the bar at the time and when Mr. McShane and the unindicted --when, excuse me, Mr. McShane and the unindicted co-defendant entered the bar, Mr. McShane pushed the patron to the ground and the patron immediately complied. Mr. McShane then directed his attention to a -- the owner of the bar and he dragged the owner by the hair moving her several feet to get her closer to the cash register.
When the keys were not produced, the unindicted co-defendant ripped the cash register from the counter area and both Mr. McShane and the unindicted co-defendant ran out of the bar with the cash register which contained U.S. currency.
There was also a friend of the owner's who was in the bar at the time -- or excuse me, in the lounge at the time visiting the owner when Mr. McShane and the unindicted co-defendant entered the bar. The unindicted co-defendant pointed the short-barreled shotgun at the owner's friend and demanded the keys for the cash register. When the owner's friend told the unindicted co-defendant that she didn't work there and didn't have the keys, the unindicted co-defendant then struck her in the face with the short-barreled shotgun, causing her pain and causing her to bleed from the nose. This injury was later diagnosed as a fracture.
The owner, the owner's friend and the patron were all scared at the time and threatened by both the defendant's and the unindicted co-defendant's actions. The owner did not give them permission to take the cash register or the cash from Leilani Lounge...
Mr. McShane knew that the unindicted co-defendant was armed with a sawed off or short-barreled shotgun and that would -- that it would be used as part of the robbery and that in fact this firearm was used to hit the owner's friend.
(Hearing Transcript from Change of Plea Hearing at pp. 12-14, ECF No. 130).

         Defendant McShane testified at his change of plea hearing and agreed to the Government’s recitation of the facts. Defendant stated the events in his own words, as follows:

THE COURT: Okay. Mr. McShane, as to your involvement in this matter are these facts all true and correct in every respect?
THE DEFENDANT: Yes.
THE COURT: Would you tell me briefly in your own words what you did?
THE DEFENDANT: We pulled up to Leilani Lounge late, right before the bar closed. Hopped out of the car, walk in. I did put one guy to the ground. He complied, stayed there. Grabbed the other lady by her hair, held her down because she was resisting. I didn't want to hurt her. Didn't mean to hurt her. Just was on drugs and just high and we ended up robbing the place, grabbing the cash register and running out...
THE COURT: And the gun that Mr. Ching described, that was used in the course of this as well.
THE DEFENDANT: Yes, it was used and it was exactly used to hit the lady on top the nose to - by my unindicted co-defendant...Prior to the robbery I knew the firearm - we hop - I hopped out with a machete knife and he hopped out with a firearm.
(Hearing Transcript from Change of Plea Hearing at pp. 15-16, ECF No. 130).

         On April 21, 2010, the Government filed the UNITED STATES’ MOTION FOR §5K1.1 DOWNWARD DEPARTURE IN SENTENCING. (ECF No.105).

         On May 11, 2010, the Court held a sentencing hearing as to Defendant McShane. (ECF No. 109). The Government’s Motion for a Section 5K1.1 Downward Departure was granted. (ECF. No. 109).

         Defendant was sentenced to 33 months imprisonment as to Count 1 and 120 months imprisonment as to Count 2 to be served consecutively. (Judgment, ECF No. 110).

         Defendant did not appeal his conviction or his sentence.

         More than five years later, on June 26, 2015, the United States Supreme Court issued its opinion in Johnson v. United States. The holding in Johnson invalidated the Residual Clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), finding it unconstitutionally vague. 135 S.Ct. at 2557-58.

         On April 29, 2016, Defendant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody. (ECF No. 125).

         Defendant also filed a Motion for Release on Bail pending the resolution of his ...


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