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Higa v. United States

United States District Court, D. Hawaii

August 30, 2019

BRYAN T. HIGA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT 28 U.S.C. §2255

          Derrick K. Watson, United States District Judge

         On May 2, 2016, Higa filed a Motion to Vacate pursuant to 28 U.S.C §2255 (Petition), relying principally on United States v. Johnson, 135 S.Ct. 2551 (2015). Dkt. Nos. 118, 119. The Petition was stayed pending decisions in various Supreme Court and Ninth Circuit cases. See e.g. Dkt. Nos. 131, 134, 144. On June 24, 2019, Higa moved to lift the stay in light of the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019). Dkt. No. 147. The Court granted the motion, lifted the stay and ordered supplemental briefing that was completed on August 8, 2019 with both sides waiving oral argument. Dkt. Nos. 152, 154, 155. In his supplemental brief, Higa argues that Davis, rather than Johnson, mandates vacating his 18 U.S.C. §924(c) conviction. Dkt. No. 152. For the reasons set forth below, the Court does not agree, and Higa's Petition is therefore DENIED.

         BACKGROUND

         On July 27, 2006, the Grand Jury returned an Indictment charging Higa and a co-defendant with (1) conspiracy to commit Hobbs Act Robbery in violation of 18 U.S.C. §1951, (2) Hobbs Act Robbery in violation of 18 U.S.C. §1951, and (3) carrying a firearm in relation to a crime of violence in violation of 18 U.S.C §924(c)(1)(A). Dkt. No. 19. Count 3 of the Indictment specifically alleged that:

On or about June 1, 2006, in the District of Hawaii, the defendant[], Bryan T. Higa…knowingly and intentionally used, carried, and discharged a firearm…during and in relation to a crime of violence, to wit: Conspiracy to Commit a Hobbs Act Robbery as charged in Count 1 of this Indictment and Hobbs Act Robbery as charged in Count 2 of this Indictment.

         On March 20, 2007, Higa pleaded guilty to Counts 1 and 3 pursuant to a written plea agreement. Dkt. Nos. 48-51, 56. The plea agreement contained a statement of facts describing Higa's conduct during the commission of his crimes. See Dkt. No. 50, ¶8. It also stated that, in signing the plea agreement, Higa waived his right to challenge his sentence, including through a Section 2255 petition, except in limited circumstances. Id. ¶13(a).

         On December 3, 2007, the Court granted the Government's Section 5K1.1 Motion for Downward Departure (Dkt. No. 90) and sentenced Higa to 100 months' imprisonment on Count 1 and 120 months on Count 3, terms to run consecutively. Dkt. No. 97.[1] Higa has accordingly served his sentence for Hobbs Act Conspiracy and continues to serve his sentence for violation of Section 924(c)(1)(A). Dkt. No. 147 at 2. Higa's projected release date is June 14, 2022. Id.

         On May 2, 2016, Higa brought his first Motion to Vacate under Section 2255. Higa's Petition relied on the reasoning in the then-recently-decided Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act. Higa asserted that his conviction on Count 3 was unconstitutional because it was predicated on the similarly-worded residual clause of Section 924(c), entitling him, most plausibly, to immediate assignment to a reduced term of supervised release. Dkt. No. 119. After briefing, the Petition was held in abeyance pending resolution of related questions before the Supreme Court in Beckles v. United States, 136 S.Ct. 2510 (2016) and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31 (2016). Dkt. Nos. 131, 134. The Petition was further stayed pending resolution of other cases before the Ninth Circuit addressing questions of the applicability and retroactivity of those decisions. Dkt. No. 144.

         On June 24, 2019, Higa moved to lift the stay on his Section 2255 Petition, arguing that United States v. Davis, 139 S.Ct. 2319 (2019), which held that Section 924(c)'s residual clause is unconstitutionally vague, required granting his Petition.[2] Dkt. No. 147. The Court agreed to lift the stay without opposition and ordered supplemental briefing from both parties. Dkt. No. 151. Those supplemental briefs having now been filed (see Dkt. Nos. 152, 154, 155), and both sides having waived hearing, the Court elects to decide the Petition without a hearing pursuant to Local Rule 7.2(d).

         LEGAL STANDARD

         Section 2255 authorizes this Court to “vacate, set aside, or correct the sentence” of a federal prisoner on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §2255(a). To warrant relief under Section 2255, a prisoner must allege a constitutional or jurisdictional error, or a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         Section 924(c) generally prohibits the possession, carrying or use of a firearm in relation to a crime of violence and carries a mandatory sentence. At the time of Higa's December 2007 sentencing, the predicate "crimes of violence" for a Section 924(c) conviction were defined by the “elements” or "force" clause, 18 U.S.C. §924(c)(3)(A), and by the (now-unconstitutional) residual clause, 18 U.S.C. §924(c)(3)(B).

         Davis found Section 924(c)(3)(B)'s “residual clause” to be unconstitutional. In doing so, the Supreme Court invalidated a conviction under Section 924(c) that was predicated on conspiracy to commit Hobbs Act Robbery because it relied on the residual clause's definition of a “crime of violence.” Davis follows a line of cases that began with Johnson finding convictions and sentences under “residual clauses”-clauses ...


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