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United States v. Troiano

United States District Court, D. Hawaii

December 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES TROIANO, Defendant.

          ORDER CORRECTING THE SENTENCE OF DEFENDANT JAMES TROIANO AS TO COUNT 4 IN THE SUPERSEDING INDICTMENT

          Helen Gillmor, United States District Judge.

         On August 25, 2017, the Court issued an ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY as to Defendant James Troiano. (ECF No. 340).

         The Court held that Defendant's sentence as to Count 4 for Felon in Possession of a Firearm was no longer subject to enhancement pursuant to the Armed Career Criminal Act following the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court denied Defendant's Section 2255 Motion on all other aspects.

         Both parties submitted briefs as to their positions regarding the procedure for post-2255 proceedings in this case. The Court declines to exercise its discretion to conduct a full resentencing of the Defendant.

         The Court CORRECTS Defendant's sentence as to Count 4 in the Superseding Indictment and will issue an Amended Judgment.

         PROCEDURAL HISTORY

         On October 5, 2005, the Government filed a four-count Superseding Indictment as to Defendant Troiano and another defendant for robbing a convenience store at gun point. (ECF No. 59). The Superseding Indictment charged Defendant, as follows:

Count 1: knowingly and willfully conspiring with others to obstruct and affect commerce and the movement of articles and commodities in such commerce, by robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Conspiracy to commit a Hobbs Act robbery);
Count 2: knowingly and willfully obstructing and affecting commerce and the movement of articles and commodities in such commerce, by robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Hobbs Act robbery);
Count 3: knowingly carrying and brandishing a firearm during and in relation to a crime of violence, to wit: conspiracy and Hobbs Act robbery as charged in Counts 1 and 2 of this Superseding Indictment in violation of 18 U.S.C. § 924(c); and,
Count 4: having been convicted of a crime punishable for a term exceeding one year, did knowingly possess in and affecting commerce a firearm in violation of 18 U.S.C. §§ 922(g)(1); 924(e).

         (ECF No. 59).

         On April 19, 2006, after 7 days of trial, the jury found Defendant guilty on all 4 counts in the Superseding Indictment. (ECF Nos. 181, 183).

         On August 24, 2006, the Court sentenced Defendant to a term of imprisonment of 17 years as to each of Counts 1, 2, and 4 to be served concurrently with each other, followed by a 7 year term as to Count 3, to be served consecutively to the terms imposed for Counts 1, 2, and 4, for a total of 24 years imprisonment. (Judgment, ECF No. 218).

         On December 12, 2007, the Ninth Circuit Court of Appeals affirmed Defendant's conviction and sentence. (ECF No. 273).

         On April 14, 2008, the United States Supreme Court denied Defendant's petition for certiorari. Troiano v. United States, 552 U.S. 1130 (2008).

         On April 14, 2009, Defendant filed a MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 283).

         On August 19, 2009, the Court issued an ORDER DENYING JAMES TROIANO'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255. (ECF No. 298).

         Six years later, on June 26, 2015, the United States Supreme Court issued its opinion in Johnson v. United States, 135 S.Ct. 2551 (2015).

         On September 16, 2016, the Ninth Circuit Court of Appeals granted Defendant's application to file a second or successive Section 2255 Motion, stating that the application makes a prima facie showing under Johnson. The appellate court ordered that Defendant's Second Section 2255 Motion be deemed filed in the District Court on May 26, 2016. (ECF No. 323).

         On September 19, 2016, the District Court stayed Defendant's Section 2255 Motion, pending the decision of the Supreme Court of the United States in Beckles v. United States. (ECF No. 327).

         On March 6, 2017, the Supreme Court of the United States issued its decision in Beckles v. United States, 137 S.Ct. 886 (2017).

         On July 5, 2017, the District Court held a hearing on Defendant's Section 2255 Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 324). (ECF No. 339).

         On August 25, 2017, the District Court issued its ORDER GRANTING, IN PART, AND DENYING, IN PART, PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 340).

         The Court found that Defendant's sentence as to Count 4 for Felon in Possession of a Firearm was no longer subject to enhancement pursuant to the Armed Career Criminal Act following the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court denied Defendant's Section 2255 Motion on all other aspects.

         The District Court ordered the Parties to file memoranda addressing their positions as to the procedure for the post-2255 proceedings. (Id.)

         On September 22, 2017, Defendant filed DEFENDANT-PETITIONER'S SUPPLEMENTAL MEMORANDUM. (ECF No. 341).

         On September 26, 2017, the District Court granted the Government's request for an extension of time to file its response. (ECF No. 342).

         On October 6, 2017, the Government filed THE GOVERNMENT'S MEMORANDUM IN RESPONSE TO THE COURT'S ORDER OF AUGUST 25, 2017. (ECF No. 343).

         ANALYSIS

         I. The Calculation of Defendant's ...


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