United States District Court, D. Hawaii
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
Oki Mollway United States District Judge.
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.
Relevant Statutory Provisions.
challenges his conviction under 18 U.S.C. § 924(c)(1),
[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).
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] .
went on a crime spree in late 2002.
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.
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.
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, ...