Hirano v. United States

• Decision Date: 20 June 2017
• Docket Number: Civ. No. 16-00686 ACK-KJM,Cr. No. 99-00465 ACK
• Parties: DOUGLAS AKIRA HIRANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of Hawaii

DOUGLAS AKIRA HIRANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civ. No. 16-00686 ACK-KJM

Cr. No. 99-00465 ACK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

June 20, 2017

ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE

For the reasons set forth below, the Court hereby DENIES Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody, ECF No. 88.

PROCEDURAL BACKGROUND

On April 26, 2001, Douglas Akira Hirano ("Petitioner") pled guilty, without a plea agreement, to all six counts of an Indictment returned by a federal grand jury on September 23, 1999. ECF Nos. 9, 49. The six counts in the Indictment were:

(1) knowingly and intentionally manufacturing 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A);

(2) knowingly and intentionally possessing with the intent to distribute 50 or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A);

(3) knowingly and intentionally possessing with the intent to distribute 5 or more grams of a mixture or substance containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B);

(4) knowingly and intentionally possessing with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);

(5) knowingly and intentionally possessing methamphetamine in violation of 21 U.S.C. § 844(a); and

(6) knowingly possessing ammunition, having been previously convicted of crimes punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g) and 924(e)(1).

See Indictment, ECF No. 9. On February 24, 2003, this Court sentenced Petitioner to 262 months as to each of Counts 1, 2, 3, 4, and 6; and 24 months as to Count 5, with all terms to run concurrently. Judgment in a Criminal Case, ECF No. 69.

On January 10, 2006, Petitioner filed a petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 73. The Court denied his petition on May 15, 2006. ECF No. 76. Petitioner appealed, and the Ninth Circuit affirmed this Court's denial on September 23, 2008. ECF No. 82.

On June 6, 2016, Petitioner filed an application for leave to file a second or successive petition under 28 U.S.C. § 2255. ECF No. 88. The Ninth Circuit granted Petitioner's application on January 25, 2017 and ordered that the instant motion be deemed filed on June 6, 2016. ECF No. 87. On February 7, 2017, this Court stayed Petitioner's motion pending the Supreme Court's decision in Beckles v. United States, No.15-8544. ECF No. 92. The Supreme Court decided Beckles on March 6, 2017. 137 S. Ct. 886 (2017). Pursuant to this Court's order, ECF No. 94, Petitioner filed a supplemental memorandum in support of his motion on March 29, 2017. ECF No. 95 ("Supp. Mem."). The government filed its Response on May 9, 2017. ECF No. 100 ("Response"). Petitioner filed his Reply on May 12, 2017. ECF No. 101 ("Reply").

FACTUAL BACKGROUND

The Court incorporates the factual background of its previous order denying Petitioner's first motion under 28 U.S.C. § 2255. See Hirano v. United States, Civ. No. 06-00010 ACK/BMK, Cr. No. 99-00465 ACK, 2006 WL 1343658, at *1-2 (D. Haw. May 15, 2006), aff'd, 294 F. App'x 313 (9th Cir. 2008).

SENTENCING

The Court sentenced Petitioner in accordance with the Presentence Investigation Report and United States Sentencing Guidelines ("U.S.S.G."). Hirano, 2006 WL 1343658, at *1-2.¹ Pursuant to U.S.S.G. § 1B1.11(b)(1), the Court sentenced him in compliance with the Sentencing Guidelines in effect at the time the offenses occurred in 1999, which guidelines were mandatory. See id. at *2; United States v. Booker, 543 U.S. 220, 245 (2005) (rendering previously mandatory sentencing guidelines advisory).

For purposes of calculating the base offense levels for each of Petitioner's counts, the Court grouped Count 1 with Count 2, and then grouped Count 2 with Counts 3 and 4. Hirano, 2006 WL 1343658, at *2. The base offense level for these counts was 34. Id. The Court then determined the base offense level for Count 5 to be 6. Id. at *3. Finally, the Court determined that the base offense level for Count 6 was 24 as Petitioner had prior felony convictions for crimes of violence. Id.

The Court then calculated Petitioner's multiple count adjusted offense level pursuant to U.S.S.G. § 3D1.4. The highest base offense level was 34, for the group containing Counts 1-4. As the base offense levels for Count 5 and Count 6 were nine or more levels less serious, each was disregarded. As such, Petitioner's adjusted offense level remained at 34, based on Counts 1-4. See id.

The Court then turned to whether there were any applicable enhancements. First, the Court determined that Petitioner was a career offender within the meaning of U.S.S.G. § 4B1.1 as he had at least two prior felony convictions for crimes of violence. As such, the Court increased his offense level to 37. Id.

Next, the Court separately determined that Petitioner was also an armed career criminal within the meaning of U.S.S.G. § 4B1.4(a), as Count 6 involved a violation of 18 U.S.C. §922(g) and Petitioner had been previously convicted of at least three violent felonies committed on separate occasions. See 18 U.S.C. § 924(e). The offense level for an armed career criminal is the greatest of:

(1) the offense level applicable from Chapters Two and Three;

(2) the offense level from U.S.S.G. § 4B1.1 (career offender); or

(3) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or a controlled substance offense, or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a), or 33 otherwise.

U.S.S.G. § 4B1.4(b). As the greatest offense level was provided by U.S.S.G. § 4B1.1, the Court did not make any additional enhancement based on its conclusion that Petitioner was an armed career criminal. See Hirano, 2006 WL 1343658, at *3.

Finally, the Court adjusted Petitioner's offense level downward 3 points based on his acceptance of responsibility and for assisting authorities, resulting in a final offense level of 34. See id. The Court then calculated Petitioner's criminal history category. Id. Although Petitioner's total criminal history points of 11 established a criminal history category of V, the criminal history category for a career offender in every case is category VI pursuant to U.S.S.G. § 4B1.1. Id. According to the Sentencing Table, the appropriate sentence foran offender at an offense level of 34 with a category VI criminal history was 262-327 months. The Court sentenced Petitioner to 262 months, which this Court has previously noted was "the minimum sentence permissible under the Guidelines that were in effect in September 1999." Id.

STANDARD

Pursuant to § 2255, a court must vacate and set aside a judgment and discharge the prisoner, or resentence the prisoner, or grant a new trial, or correct the sentence, if the court finds any one of the following: the judgment was rendered without jurisdiction; the sentence imposed was not authorized by law or otherwise open to collateral attack; or there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255.

A court shall hold an evidentiary hearing on a motion under § 2255 "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "A court may entertain and determine such [a] motion without requiring the production of the prisoner at the hearing." Id. § 2255(c). In short,

[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. A hearing must be granted unless the movant's allegations, when viewedagainst the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.

United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citations omitted); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir. 1989) (similar).

The Ninth Circuit recognizes that even when credibility is at issue, no evidentiary hearing is required if it can be "conclusively decided on the basis of documentary testimony and evidence in the record." Shah, 878 F.2d at 1159 (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1989)). In addition, judges may use discovery, documentary evidence, and their own notes and recollections of the plea hearing and sentencing process to supplement the record. Id. "Judges may also use common sense." Id. The choice of method for handling a § 2255 motion is left to the discretion of the district court. See id. (citing Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988)).

As discussed below, the Court finds that Petitioner's arguments lack merit. Because the record conclusively shows that Petitioner is not entitled to relief, a hearing is not warranted in this case.

DISCUSSION

Although the Ninth Circuit granted Petitioner leave to file the instant petition, this Court is required to make its own determination regarding whether he has satisfied the statutory requirements. See Cooper v. Brown, 510 F.3d 870, 917-18 (9th Cir. 2007) (a petitioner is only required to make a prima facie case to obtain authorization from the Ninth Circuit, which does not satisfy his burden to actually show his petition satisfies the statutory requirements); United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000) (per curiam) (concluding that "a district court must conduct a thorough review of all allegations and evidence presented by the prisoner to determine whether the motion meets the statutory requirements for the filing of a second or successive motion.").

In order to satisfy the requirements of a second or successive petition here, Petitioner must show...