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United Statesn v. Esteban

United States District Court, D. Hawaii

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
TED S. ESTEBAN, Defendant-Petitioner.

          ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         Petitioner Ted Esteban pled guilty to multiple counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), as well as to carrying a firearm during the commission of a violent crime in violation of 18 U.S.C. § 924(c). For the robbery charges, Esteban was sentenced to 120 months in custody, which was a Guideline sentence. The firearm charge carried a mandatory minimum sentence of ten years, which was statutorily required to run consecutively to the sentence on the other charges. Pursuant to 28 U.S.C. § 2255, Esteban now argues that his conviction under § 924(c) must be vacated given what he says is the unconstitutionality of § 924(c)'s residual clause. The court denies Esteban's petition, concluding that, under controlling Ninth Circuit authorities, Esteban's conviction is sustainable under § 924(c)'s force/elements clause.

         II. BACKGROUND.

         A. Relevant Statutory Provisions.

         Esteban challenges his conviction under 18 U.S.C. § 924(c)(1), which provides:

[Generally, ] any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . [i]f the firearm possessed . . . [is a] short-barreled shotgun ... be sentenced to a term of imprisonment of not less than 10 years.

Id. (emphasis added).

         "Crime of violence, " in turn, is defined at 18 U.S.C. § 924(c)(3), a provision that contains two clauses (a force/elements clause and a residual clause):

[T]he term "crime of violence" means an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another [the force/elements clause], or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense [the residual clause] .

Id.

         B. Factual Background.

         Esteban went on a crime spree in late 2002.

         On November 30, 2002, Esteban, holding what seemed to be a silver-colored handgun (but what in reality was a high-quality replica), went to Reynolds Recycling in Waipahu, Hawaii and told the store clerk, "I need your money, " which caused the clerk to fear for his life. ECF 49-1, PageID #s 240, 242; ECF 49-2, PageID # 272. Esteban got about $200 from the cash register. ECF 49-1, PageID # 240; ECF 49-2, PageID # 272. Esteban then fled the store in a gray car. ECF 49-1, PageID # 240; ECF 49-2, PageID # 272.

         A few days later, on December 4, 2002, Esteban went to Baskin Robbins in Waipahu, Hawaii, again brandishing the silver replica handgun. ECF 49-1, PageID # 240; ECF 49-2, PageID # 272. Esteban pointed the gun at a sales clerk and stated, "I don't want to hurt you, just give me the money." ECF 49-1, PageID # 240; ECF 49-2, PageID # 272. The clerk complied, giving Esteban about $200 from the register. ECF 49-1, PageID # 240; ECF 49-2, PageID # 272.

         The next day, on December 5, 2002, Esteban and a coconspirator went to Video Warehouse in Aiea, Hawaii. ECF 49-1, PageID # 240; ECF 49-2, PageID #s 272-73. Esteban had the replica handgun, and his coconspirator carried a (genuine) sawed-off shotgun. ECF 49-1, PageID # 240; ECF 49-2, PageID #s 272-73. Both individuals had their faces covered. ECF 49-1, PageID # 240; ECF 49-2, PageID # 272-73. The coconspirator pointed the shotgun at a store employee while Esteban instructed, "Give me all your money." ECF 49-2, PageID # 273; see also ECF 49-1, PageID # 240. The employee complied, handing over a few hundred dollars from the register. ECF 49-1, PageID # 241; ECF 49-2, ...


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