United States District Court, D. Hawaii
ORDER DENYING DEFENDANT JAY PADAYAO'S MOTION FOR
RELEASE ON BAIL (ECF NO. 96)
GILLMOR, District Judge.
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. Â§ 2255
that his underlying term of imprisonment was
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.
Motion for Release on Bail (ECF No. 96) is DENIED.
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. Â§Â§
922(g)(1), 924(e). (ECF No. 4).
Indictment stated that Defendant Padayao was subject to a
sentencing enhancement pursuant to 18 U.S.C. Â§ 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. Â§ 924(e)(2)(B).
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. Â§ 924(e). (Transcript of Withdrawal
of Not Guilty Plea at p. 16, ECF No. 76).
13, 2006, Defendant filed a Motion for Downward Departure.
(ECF No. 53).
Presentence Report determined that Defendant was not subject
to sentence enhancement pursuant to the Armed Career Criminal
Act. (Presentence Report at Â¶ 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).
Presentence Report calculated Defendant's sentencing
guidelines from a base offense of 24 pursuant to United
States Sentencing Guideline Â§ 2K2.1(a)(2). (Presentence
Report at Â¶ 24).
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
(U.S.S.G. Â§ 2K2.1(a)(2) (2005)).
to Section 2K2.1 stated that "crime of violence"
has the meaning given to that term in Â§4B1.2(a).
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