United States District Court, D. Hawaii
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT A SENTENCE
C. Kay Sr. United States District Judge
reasons set forth below, the Court hereby DENIES
Petitioner's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody, ECF No. 88.
April 26, 2001, Douglas Akira Hirano
(“Petitioner”) pled guilty, without a plea
agreement, to all six counts of an Indictment returned by a
federal grand jury on September 23, 1999. ECF Nos. 9, 49. The
six counts in the Indictment were:
(1) knowingly and intentionally manufacturing 50 grams or
more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A);
(2) knowingly and intentionally possessing with the intent to
distribute 50 or more grams of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A);
(3) knowingly and intentionally possessing with the intent to
distribute 5 or more grams of a mixture or substance
containing cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B);
(4) knowingly and intentionally possessing with the intent to
distribute cocaine in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C);
(5) knowingly and intentionally possessing methamphetamine in
violation of 21 U.S.C. § 844(a); and
(6) knowingly possessing ammunition, having been previously
convicted of crimes punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§
922(g) and 924(e)(1).
See Indictment, ECF No. 9. On February 24, 2003,
this Court sentenced Petitioner to 262 months as to each of
Counts 1, 2, 3, 4, and 6; and 24 months as to Count 5, with
all terms to run concurrently. Judgment in a Criminal Case,
ECF No. 69.
January 10, 2006, Petitioner filed a petition to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
ECF No. 73. The Court denied his petition on May 15, 2006.
ECF No. 76. Petitioner appealed, and the Ninth Circuit
affirmed this Court's denial on September 23, 2008. ECF
6, 2016, Petitioner filed an application for leave to file a
second or successive petition under 28 U.S.C. § 2255.
ECF No. 88. The Ninth Circuit granted Petitioner's
application on January 25, 2017 and ordered that the instant
motion be deemed filed on June 6, 2016. ECF No. 87. On
February 7, 2017, this Court stayed Petitioner's motion
pending the Supreme Court's decision in Beckles v.
United States, No. 15-8544. ECF No. 92. The Supreme
Court decided Beckles on March 6, 2017. 137 S.Ct.
886 (2017). Pursuant to this Court's order, ECF No. 94,
Petitioner filed a supplemental memorandum in support of his
motion on March 29, 2017. ECF No. 95 (“Supp.
Mem.”). The government filed its Response on May 9,
2017. ECF No. 100 (“Response”). Petitioner filed
his Reply on May 12, 2017. ECF No. 101 (“Reply”).
Court incorporates the factual background of its previous
order denying Petitioner's first motion under 28 U.S.C.
§ 2255. See Hirano v. United States, Civ. No.
06-00010 ACK/BMK, Cr. No. 99-00465 ACK, 2006 WL 1343658, at
*1-2 (D. Haw. May 15, 2006), aff'd, 294 F.
App'x 313 (9th Cir. 2008).
Court sentenced Petitioner in accordance with the Presentence
Investigation Report and United States Sentencing Guidelines
(“U.S.S.G.”). Hirano, 2006 WL 1343658,
at *1-2.Pursuant to U.S.S.G. § 1B1.11(b)(1),
the Court sentenced him in compliance with the Sentencing
Guidelines in effect at the time the offenses occurred in
1999, which guidelines were mandatory. See id. at
*2; United States v. Booker, 543 U.S. 220, 245
(2005) (rendering previously mandatory sentencing guidelines
purposes of calculating the base offense levels for each of
Petitioner's counts, the Court grouped Count 1 with Count
2, and then grouped Count 2 with Counts 3 and 4.
Hirano, 2006 WL 1343658, at *2. The base offense
level for these counts was 34. Id. The Court then
determined the base offense level for Count 5 to be 6.
Id. at *3. Finally, the Court determined that the
base offense level for Count 6 was 24 as Petitioner had prior
felony convictions for crimes of violence. Id.
Court then calculated Petitioner's multiple count
adjusted offense level pursuant to U.S.S.G. § 3D1.4. The
highest base offense level was 34, for the group containing
Counts 1-4. As the base offense levels for Count 5 and Count
6 were nine or more levels less serious, each was
disregarded. As such, Petitioner's adjusted offense level
remained at 34, based on Counts 1-4. See id.
Court then turned to whether there were any applicable
enhancements. First, the Court determined that Petitioner was
a career offender within the meaning of U.S.S.G. § 4B1.1
as he had at least two prior felony convictions for crimes of
violence. As such, the Court increased his offense level to
the Court separately determined that Petitioner was also an
armed career criminal within the meaning of U.S.S.G. §
4B1.4(a), as Count 6 involved a violation of 18 U.S.C. §
922(g) and Petitioner had been previously convicted of at
least three violent felonies committed on separate occasions.