United States District Court, D. Hawaii
ORDER GRANTING, IN PART, AND DENYING, IN PART,
PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY (ECF No. 324)
Gillmor United States District Judge
26, 2016, Petitioner James Troiano filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
(ECF No. 324). Petitioner advances three theories for relief:
One: He was incorrectly sentenced as an
Armed Career Criminal;
Two: His was incorrectly sentenced as a
Career Offender; and,
Three: His Hobbs Act robbery crimes are not
crimes of violence and should not have been used as a basis
for a Career Offender designation.
October 5, 2005, the Government filed a four-count
Superseding Indictment as to Petitioner and another defendant
for robbing a convenience store at gun point. (ECF No. 59).
The Superseding Indictment charged the Petitioner, as
Count 1: knowingly and willfully conspiring
with others to obstruct and affect commerce and the movement
of articles and commodities in such commerce, by robbery, in
violation of 18 U.S.C. §§ 1951 and 2 (Conspiracy to
commit a Hobbs Act robbery).
Count 2: knowingly and willfully obstructing
and affecting commerce and the movement of articles and
commodities in such commerce, by robbery, in violation of 18
U.S.C. §§ 1951 and 2 (Hobbs Act robbery). .
Count 3: knowingly carrying and brandishing
a firearm during and in relation to a crime of violence, to
wit: conspiracy and Hobbs Act robbery as charged in Counts 1
and 2 of this Superseding Indictment in violation of 18
U.S.C. § 924(c).
Count 4: having been convicted of a crime
punishable for a term exceeding one year, did knowingly
possess in and affecting commerce a firearm in violation of
18 U.S.C. §§ 922(g)(1); 924(e).
(ECF No. 59).
April 19, 2006, after seven days of trial, the jury found
Petitioner guilty on all four counts in the Superseding
Indictment. (ECF Nos. 181, 183).
United States Probation Office prepared a Presentence
Investigation Report (“PSR”) concerning
Petitioner. The PSR provided that Petitioner was subject to a
sentencing enhancement as a Career Offender. (PSR at pp.
10-11, ¶ 42).
relied on Petitioner's three convictions for Burglary in
the First Degree in Hawaii as the predicate crimes of
violence for the Career Offender designation. (Id.
at p. 17, ¶ 64).
also concluded that Petitioner's sentence was subject to
enhancement through the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). (Id. at p. 11, ¶ 43).
August 24, 2006, the Court sentenced Petitioner to a term of
imprisonment of 17 years as to each of Counts 1, 2, and 4 to
be served concurrently with each other, followed by a seven
year term as to Count 3, to be served consecutively to the
terms imposed for Counts 1, 2, and 4, for a total of 24 years
imprisonment. (ECF No. 218). The Court sentenced Petitioner
to a term of supervised release of 5 years for each of Counts
3 and 4, and 3 years for each of Counts 1 and 2, all terms to
run concurrently. (Id.)
December 12, 2007, the Ninth Circuit Court of Appeals
affirmed Petitioner's conviction and sentence. (ECF No.
April 14, 2008, the United States Supreme Court denied
Petitioner's petition for certiorari. Troiano v.
United States, 552 U.S. 1130 (2008).
April 14, 2009, Petitioner filed a MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A
PERSON IN FEDERAL CUSTODY. (ECF No. 283).
August 19, 2009, the Court issued an ORDER DENYING JAMES
TROIANO'S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255. (ECF No. 298).
years later, on June 26, 2015, the United States Supreme
Court issued its opinion in Johnson v. ...