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.
Marc Shiroma is serving a 132-month prison sentence, having
pled guilty to what is now his fourth bank robbery in
violation of 18 U.S.C. § 2113(a). Given Shiroma's
prior convictions, the court sentenced him as a career
offender under § 4B1.2(a) of the United States
Sentencing Guidelines ("USSG" or "the
Guidelines") . Relying on 28 U.S.C. § 2255, Shiroma
argues that, in deeming him a career offender, this court
unconstitutionally relied on the Guidelines' residual
clause. The court denies Shiroma's petition, concluding
that Shiroma procedurally defaulted his argument by not
raising it on direct appeal, and that, under controlling
Ninth Circuit authorities, Shiroma was appropriately
classified as a career offender.
Relevant Sentencing Guidelines.
was sentenced under the 2014 Guidelines. See ECF 15,
PageID # 33. The provision governing career offender status,
USSG § 4B1.1, provides:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance
Id. (emphases added).
of violence, " in turn, are defined by USSG §
4B1.2(a), which has what are often called force, enumerated
offenses, and residual clauses:
The term "crime of violence" means any offense
under federal or state law, punishable by imprisonment for a
term exceeding one year, that--
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another [the
force clause], or
(2) is burglary of a dwelling, arson, or extortion, involves
the use of explosives [the enumerated offenses
clause], or otherwise involves conduct that presents a
serious potential risk of physical injury to another [the
December 16, 2014, Shiroma entered the Chinatown Branch of
First Hawaiian Bank in Honolulu, Hawaii, and handed the
teller a note that said, "Give me the money." ECF
15, PageID # 31. The teller read the note and looked back at
Shiroma, who appeared to be unarmed. Id. Shiroma
nodded and said, "The top drawer is fine."
Id. The teller, feeling "fearful, " handed
over bills totaling $200. Id. Shiroma took the
money, fled the bank, and spent the night and the cash
partying in Waikiki. Id. at PageID #s 31-32. The
next morning, Shiroma walked into the Chinatown police
station and told an officer, "I'm the one that did
the robbery yesterday." Id. at PageID # 31.
Shiroma said he "felt bad for committing the
robbery" and "wanted to return to prison."
Id. at PageID # 32. The officer arrested him.
February 11, 2015, Shiroma pled guilty without a plea
agreement to one count of federal bank robbery in violation
of 18 U.S.C. § 2113(a). See ECF 6, PageID #s
6-7. This was Shiroma's fourth federal bank robbery
conviction. See ECF 15, PageID #s 34-37. The three
prior robberies involved nearly identical conduct: Shiroma
had walked into a bank, handed the teller a demand note,
grabbed the cash (never more than a few hundred dollars),
left, and turned himself in a day or two later. See
Id. at PageID #s 31-32, 34-37.
prior convictions made him a career offender under the
Guidelines. See Id. at PageID # 33. His resulting
offense level was 29, his criminal history category was VI,
and his Guideline range was 151 to 188 months. Id.
at PageID #s 34, 38, 51. Neither party objected to this
Guideline calculation. Id. at PageID #s 49, 50.
court sentenced Shiroma on June 29, 2015, to 132 months for
the bank robbery. ECF 12. The court varied downward from the
Guideline range on the ground that Shiroma's mental
health issues had contributed to the offense. ECF 14, PageID
# 27. The court also sentenced Shiroma to a consecutive
one-year term for having violated the terms of his supervised
release (imposed for an earlier bank robbery). See
Id. Shiroma does not challenge the latter sentence. The
court advised Shiroma of his right to appeal. Id.
Judgment was entered on June 15, 2015. See ECF 13,
PageID # 19.
weeks later, on June 26, 2015, the Supreme Court decided
Johnson v. United States, 135 S.Ct. 2551, which held
unconstitutionally vague the residual clause of the Armed
Career Criminal Act ("ACCA"). Id. at 2563.
The ACCA's residual clause is identical to the residual
clause in the Guidelines. See 18 U.S.C. §
924(e)(2)(B) (defining "violent felony" to include
any felony that "involves conduct that presents a
serious potential risk of physical injury to another").
Ten months later, on April 18, 2016, the Court held that
Johnson applied retroactively to ACCA cases on
collateral review. Welch v. United States, 136 S.Ct.
17, 2016, Shiroma filed a § 2255 motion, arguing that
his classification as a career offender under the Guidelines
"violates due process in light of" Johnson
and Welch. ECF 18, PageID # 83. Shiroma said:
The petitioner was sentenced as a career offender. Necessary
to doing so was this Court's finding that his present and
prior federal bank robbery convictions were for crimes of
violence. The PSR does not indicate which of USSG 4B1.2's
clauses this Court relied upon to find that those convictions
were for crimes of violence. The only lawful basis for doing
so was, up until Johnson was decided, the residual
clause. But the residual clause is void ab initio under
Johnson and Welch . . ., and the record in
the petitioner's case does not provide an adequately
compelling justification for imposing a sentence anchored to
a career ...