United States District Court, D. Hawaii
ORDER DENYING PETITIONER BRONSON MCSHANE'S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE (ECF No. 125) AND DENYING A CERTIFICATE OF
Gillmor United States District Judge
Bronson McShane filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255.
Petitioner argues that his sentence for Using a Firearm
During And In Relation To A Crime Of Violence in violation of
18 U.S.C. §§ 2, 924(c)(1)(B)(i) is
Section 2255 Motion (ECF No. 125) is DENIED.
Certificate of Appealability is DENIED.
April 8, 2009, a grand jury returned a Superseding Indictment
charging Petitioner Bronson McShane as follows:
1 for conspiracy to commit a Hobbs Act Robbery and
commission of a Hobbs Act Robbery, in violation of 18 U.S.C.
§§ 2, 1951. As to Count 1, the Superseding
[T]he defendants did conspire to obtain and did
obtain property belonging to Leilani Lounge
consisting of United States currency and a cash register,
from the person and in the presence of T.Y., who was the
owner of Leilani Lounge, which was engaged in interstate
commerce, against T.Y.'s will by means of actual and
threatened force, violence, and fear of injury, immediate and
future, on T.Y.
(Superseding Indictment on p. 2, ECF No. 24) (emphasis
2 for use of a firearm during and in relation to a
crime of violence, a violation of 18 U.S.C. §§ 2,
924(c)(1)(B)(i). As to Count 2, the Superseding Indictment
On or about November 10, 2008, in the District of Hawaii, the
defendant, BRONSON MCSHANE and his unindicted co-defendant
knowingly used, carried, and brandished a firearm, to wit: a
short-barreled shotgun, during and in relation to a crime of
violence, to wit: a Hobbs Act Robbery as charged in Count 1
of this Indictment.
(Superseding Indictment on pp. 2-3, ECF No. 24).
18, 2009, Petitioner McShane pled guilty before a Magistrate
Judge to Counts 1 and 2 of the Superseding Indictment. (ECF
No. 46). There was no plea agreement.
Government recited the facts to the crime at the change of
plea hearing as follows:
AUSA CHING: Specifically, with regard to the facts, the
government would prove beyond a reasonable doubt that on or
about November 10th, 2008, at about 1:23 in the morning, the
defendant -- co-defendant Aaron Malama, an unindicted
co-defendant, robbed the Leilani Lounge, a commercial liquor
establishment within the District of Hawaii...Defendant
[McShane] wore a white mask and was armed with a knife. The
unindicted co-defendant was wearing a dark colored mask and
was armed with a short-barreled shotgun.
There was only one patron in the bar at the time and when Mr.
McShane and the unindicted --when, excuse me, Mr. McShane and
the unindicted co-defendant entered the bar, Mr. McShane
pushed the patron to the ground and the patron immediately
complied. Mr. McShane then directed his attention to a -- the
owner of the bar and he dragged the owner by the hair moving
her several feet to get her closer to the cash register.
When the keys were not produced, the unindicted co-defendant
ripped the cash register from the counter area and both Mr.
McShane and the unindicted co-defendant ran out of the bar
with the cash register which contained U.S. currency.
There was also a friend of the owner's who was in the bar
at the time -- or excuse me, in the lounge at the time
visiting the owner when Mr. McShane and the unindicted
co-defendant entered the bar. The unindicted co-defendant
pointed the short-barreled shotgun at the owner's friend
and demanded the keys for the cash register. When the
owner's friend told the unindicted co-defendant that she
didn't work there and didn't have the keys, the
unindicted co-defendant then struck her in the face with the
short-barreled shotgun, causing her pain and causing her to
bleed from the nose. This injury was later diagnosed as a
The owner, the owner's friend and the patron were all
scared at the time and threatened by both the defendant's
and the unindicted co-defendant's actions. The owner did
not give them permission to take the cash register or the
cash from Leilani Lounge...
Mr. McShane knew that the unindicted co-defendant was armed
with a sawed off or short-barreled shotgun and that would --
that it would be used as part of the robbery and that in fact
this firearm was used to hit the owner's friend.
(Hearing Transcript from Change of Plea Hearing at pp. 12-14,
ECF No. 130).
McShane testified at his change of plea hearing and agreed to
the Government's recitation of the facts. Defendant
stated the events in his own words, as follows:
THE COURT: Okay. Mr. McShane, as to your involvement in this
matter are these facts all true and correct in every respect?
PETITIONER MCSHANE: Yes.
THE COURT: Would you tell me briefly in your own words what
PETITIONER MCSHANE: We pulled up to Leilani Lounge late,
right before the bar closed. Hopped out of the car, walk in.
I did put one guy to the ground. He complied, stayed there.
Grabbed the other lady by her hair, held her down because she
was resisting. I didn't want to hurt her. Didn't mean
to hurt her. Just was on drugs and just high and we ended up
robbing the place, grabbing the cash register and running
THE COURT: And the gun that Mr. Ching described, that was
used in the course of this as well.
PETITIONER MCSHANE: Yes, it was used and it was exactly used
to hit the lady on top the nose to - by my unindicted
co-defendant...Prior to the robbery I knew the firearm - we
hop - I hopped out with a machete knife and he hopped out
with a firearm.
(Hearing Transcript from Change of Plea Hearing at pp. 15-16,
ECF No. 130).
11, 2010, the Court held a sentencing hearing as to
Petitioner McShane. (ECF No. 109).
was sentenced to 33 months imprisonment as to Count
1 and 120 months imprisonment as to Count
2 to be served consecutively. (Judgment, ECF No.
did not appeal his conviction or his sentence.
than five years later, on June 26, 2015, the United States
Supreme Court issued its opinion in Johnson v. United
States, 135 S.Ct. 2551 (2015). The holding in
Johnson invalidated the Residual Clause of
the Armed Career Criminal Act of 1984, 18 U.S.C.