United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S HOLLOWAY
E. KOBAYASHI UNITED STATES DISTRICT JUDGE
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.
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) . ]
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.]
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].
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
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).
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 ...