United States District Court, D. Hawaii
BRYAN T. HIGA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE PURSUANT 28 U.S.C.
Derrick K. Watson, United States District Judge
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.
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
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.
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.
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.
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.
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. 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).
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)).
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).
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