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United States v. Shiroma

United States District Court, D. Hawaii

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MARC SHIROMA, 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 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.

         II. BACKGROUND.

         A. Relevant Sentencing Guidelines.

         Shiroma was sentenced under the 2014 Guidelines. See ECF 15, PageID # 33. The provision governing career offender status, U.S.S.G. § 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 offense.

Id. (emphases added).

         "Crimes of violence, " in turn, are defined by U.S.S.G. § 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 residual clause].

Id.

         B. Factual Background.

         On 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. Id.

         On 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.

         Shiroma's 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.

         This 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.

         Two 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. 1257, 1268.

         On June 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 U.S.S.G. 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 offender ...

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