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Troiano v. United States

United States District Court, D. Hawaii

August 25, 2017

JAMES TROIANO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 05-00261 HG-01

          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)

          Helen Gillmor United States District Judge

         On May 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.

         PROCEDURAL HISTORY

         On 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 follows:

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).

         On 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).

         The 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).

         The PSR 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).

         The PSR 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).

         On 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.)

         On December 12, 2007, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. (ECF No. 273).

         On April 14, 2008, the United States Supreme Court denied Petitioner's petition for certiorari. Troiano v. United States, 552 U.S. 1130 (2008).

         On 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).

         On 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).

         Six years later, on June 26, 2015, the United States Supreme Court issued its opinion in Johnson v. ...


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