United States District Court, D. Hawaii
ORDER DENYING MOTION FOR RELEASE ON BAIL PENDING THE
ADJUDICATION OF PETITIONER'S § 2255 MOTION
Oki Mollway United States District Judge.
on Johnson v. United States, 135 S.Ct. 2551 (2015),
and Welch v. United States, 136 S.Ct. 1257 (2016),
Defendant David Verden Williams has filed with this court a
motion seeking relief under 28 U.S.C. § 2255. Williams
says his sentence should be shortened under the reasoning in
Johnson that invalidated as unconstitutionally vague
language in 18 U.S.C. § 924(e)(2)(B), which is part of
the Armed Career Criminal Act (“ACCA”). While not
sentenced pursuant to the ACCA, Williams was sentenced as a
career offender under the United States Sentencing
Guidelines, which include, at U.S.S.G. § 4B1.2(a),
language identical to the language in 18 U.S.C. §
924(e)(2)(B) that was invalidated in Johnson.
that he may be overincarcerated if he prevails on his
Johnson argument, Williams asks this court to
release him on bail immediately. His motion for release is
denied. Even if Williams may have exceptional circumstances
given the possibility that he will be overincarcerated, that
possibility is low, given his failure to show a likelihood of
success on the merits. He therefore is not entitled to be
released on bail pending the adjudication of his § 2255
to a Memorandum of Plea Agreement, Williams pled guilty to
having committed a bank robbery in violation of 18 U.S.C.
§ 2113(a), which states:
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or
obtains or attempts to obtain by extortion any property or
money or any other thing of value belonging to, or in the
care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association . . .
Shall be fined under this title or imprisoned not more than
twenty years, or both.
See ECF Nos. 68, 69.
was sentenced on October 7, 2013, to 151 months in custody,
and judgment was entered on October 11, 2013. See
ECF Nos. 77, 79. His sentence reflected a career offender
enhancement under the Sentencing Guidelines, given
Williams's prior convictions. Under U.S.S.G. §
(a) A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
issue raised by Williams is whether the offense of
conviction, bank robbery in violation of 18 U.S.C. §
2113(a), is a crime of violence that, given his prior
convictions, triggers the guideline enhancement for being a
career offender under U.S.S.G. §
of violence” is defined in U.S.S.G. § 4B1.2(a):
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the ...