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United States v. Diaz

United States District Court, D. Hawaii

August 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GUILLERMO DIAZ, Defendant.

          ORDER DENYING DEFENDANT'S HOLLOWAY MOTION

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE

         Before the Court is pro se Defendant Guillermo Diaz's ("Diaz") Holloway Motion ("Motion"), filed on April 19, 2018. [Dkt. no. 87.] Plaintiff the United States of America ("the Government") filed its response on May 24, 2018. [Dkt. no. 92.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai"i ("Local Rules"). Defendant's Motion is hereby denied for the reasons set forth below.

         BACKGROUND

         On July 30, 2009, a grand jury indicted Diaz for: one count of conspiracy to distribute and to possess with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 ("Count 1"); and two counts of possession with intent to distribute fifty grams or more of methamphetamine, in violation of § 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 ("Counts 2 and 3"). [Dkt. no. 13.] On November 12, 2009, Diaz withdrew his not guilty plea and pled guilty to Count 1, pursuant to a plea agreement. The Government agreed to dismiss Counts 2 and 3 at sentencing. [Minutes, filed 11/12/09 (dkt. no. 36); Mem. of Plea Agreement, filed 11/12/09 (dkt. no. 38).] This Court sentenced Diaz to 240 months of imprisonment, five years of supervised release, and a $100.00 special assessment. [Judgment in a Criminal Case, filed 3/8/10 (dkt. no. 55) . ]

         In the instant Motion, Diaz seeks relief pursuant to United States v. Hollowav, 68 F.Supp.3d 310 (E.D.N.Y. 2014). Specifically, Diaz asks for the Government not to oppose, and for this Court to grant, a reduction in his sentence from 240 months to 192 months. [Motion at 10-11.]

         DISCUSSION

         Diaz argues that, under the so-called Hollowav Doctrine, "if the Government and the Court agree" that his sentence should be reduced, this Court is authorized to grant him such relief. [Id. at 3.] Diaz argues the Government should be persuaded to agree that his sentence should be reduced because, inter alia: his sentence exceeds the median sentence received by defendants convicted of murder, which Diaz says is 170 months; [id. at 4;] during the nine years he has been incarcerated, he has exhibited good behavior, as evidenced by remaining free of disciplinary incident reports and industriously pursuing available rehabilitation opportunities; [id. at 4-5;] after having "earned over 2, 000 hours of educational and psychological programming", he has "achiev[ed], for the first time, some positive momentum in his life" and "is on an upward trajectory," which, according to Diaz, shows his sentence is longer than necessary to comply with the purpose of incarceration set forth in 18 U.S.C. § 3553(a), rid, at 6-7].

         This district court has stated:

A district court has only limited authority to modify a sentence once it has been imposed. See 18 U.S.C. § 3582(c). Section 3582(c) provides that a judgment of a conviction including a sentence to imprisonment is final and may only be modified in three instances: 1) upon motion of the Director of the Bureau of Prisons; 2) pursuant to a motion by the Government under Rule 35 (b) of the Federal Rules of Criminal Procedure; and 3) pursuant to a sentencing range lowered by United States Sentencing Commission pursuant to 28 U.S.C. § 994(o). Under Rule 35(a) of the Federal Rules of Criminal Procedure, a court may correct a sentence that resulted from arithmetical, technical, or other clear error only within 14 days after sentencing.
Holloway attempts to get around these limitations so as to permit a reduction of sentence in the "interest of fairness." 68 F.Supp.3d at 311. Francois Holloway was convicted of three counts of carjacking and sentenced to 151 months in prison for those counts under the then-mandatory sentencing guidelines. Id. at 312. He was also convicted of three crimes of violence under 18 U.S.C. § 924(c), having committed the carjacking at gunpoint. Id. The first § 924(c) conviction carried a mandatory 5-year sentence, and each of the other § 924(c) convictions carried a mandatory sentence that, at the time, was 20 years for a second or subsequent § 924(c) conviction. Id. The § 924(c) sentences were required by statute to run consecutively to each other and to the carjacking sentence. Id. Holloway's total prison term was 57 years and 7 months. Id. Both the Second Circuit and the Supreme Court affirmed the convictions and sentence. Id. at 313. The district court then denied Holloway's § 2255 collateral attack, and the Second Circuit in 2010 declined to issue a certificate of appealability. Id. The Second Circuit further denied Holloway's request that he be permitted to file a successive petition. Id.
In late 2012, Holloway filed a motion to reopen his § 2255 proceeding under Rule 60(b) of the Federal Rules of Civil Procedure. Id. at 314. This motion triggered a review by Judge John Gleeson, the sentencing judge, who was troubled by the harshness of mandatory sentences. See id. He considered Holloway's sentence of more than 57 years excessive and onerous. See id. at 312. Judge Gleeson asked the Government to consider exercising its discretion by agreeing to an order vacating two or more of Holloway's § 924(c) convictions so he "could face a more just resentencing." See id. at 314. After initially declining Judge Gleeson's request, the Government ultimately did not oppose Holloway's Rule 60(b) motion to revisit the denial of § 2255 relief, agreed to the vacating of some of Holloway's convictions, and agreed that Judge Gleeson could resentence Holloway to 20 years based on the remaining conviction. See id. at 315-16.
The Government's agreement was based on its view that Holloway's case was "unique" and that Holloway was "a unique defendant in many ways." See id. at 315. A significant factor supporting this view was Holloway's exemplary behavior while in custody. See id. In prison, Holloway had a mild disciplinary record with only a few minor infractions, and he had taken advantage of educational and other opportunities to better himself. Id. The Government also cited the victims' support of Holloway's release as a factor that made Holloway's case unique. See id.

Acuna v. United States, CRIM. NO. 07-00615 SOM, 2016 WL 3747531, at *2-3 (D. Hawai"i July 8, 2016).

         Moreover, this Court lacks authority to grant a sentence reduction, like was granted in Holloway, over the Government's objection. See id. This district court has recognized that "relief of the type granted in Holloway is contingent on the Government's acquiescence." Id. at *3 (citing 68 F.Supp.3d at 316 (clarifying that decision "poses no threat to the rule of finality" and that "the authority exercised in this case will be used only as often as the Department of Justice itself chooses to exercise it, which will no doubt be sparingly")); accord United States v. Tran, CR NO. 95-00151-5 DKW, 2018 WL 2750222, at *3 (D. Hawai"i June 7, 2018) (citing United States v. Burton, No. 1:85-CR-00205-LJO, 2018 WL 1637955, at *2 (E.D. Cal. Apr. 5, 2018) ("No circuit court has directly addressed the Holloway Doctrine, however, from a survey of district court cases, 'the one consistent theme for the Courts that have addressed the Hollow ...


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