United States v. Inoshita

• Decision Date: 20 May 2016
• Docket Number: Cr. No. 15-00159 JMS,Civ. No. 16-00032 JMS-KSC
• Parties: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. GREGG INOSHITA, Defendant-Petitioner.
• Court: U.S. District Court — District of Hawaii

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. GREGG INOSHITA, Defendant-Petitioner.

Cr. No. 15-00159 JMS

Civ. No. 16-00032 JMS-KSC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

May 20, 2016

ORDER: (1) DISMISSING DEFENDANT-PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN A FEDERAL CUSTODY; AND (2) GRANTING A CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Defendant-Petitioner Gregg Inoshita ("Inoshita") pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a). In his Plea Agreement, he stipulated that he was a career offender under the United States Sentencing Guidelines ("USSG" or "guideline(s)") based on his three prior § 2113(a) convictions. He now moves, pursuant to 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") on the grounds that he is "innocent" of being a career offender.

Specifically, Inoshita argues that a § 2113(a) bank robbery conviction no longer counts as a crime of violence under the guidelines in light of Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"), Descamps v. United States, 133 S. Ct. 2276 (2013), and Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"). Consequently, Inoshita contends that he is "actually innocent of being a career offender under the Guidelines," and the court's use of an "unconstitutionally and illegally determined starting point for the determination of his sentence . . . skewed his resulting sentence." Id.

The court decides the § 2255 Motion under Local Rule ("LR") 7.2(d) without a hearing. Because Inoshita waived his right to bring this motion, and because bank robbery under § 2113(a) remains a crime of violence, the court DENIES Inoshita's § 2255 Motion, but GRANTS a certificate of appealability.

II. BACKGROUND

A. Guilty Plea

In April 1, 2015, Inoshita pled guilty to a one-count Information charging him with bank robbery in violation of 18 U.S.C. § 2113(a).¹ Doc. Nos. 8,9. Prior to the instant offense, Inoshita had been convicted of three other § 2113(a) bank robberies. Doc. No. 17, Presentence Report ("PSR") at 7-9. In his Plea Agreement -- which was accepted by the court at sentencing on July 20, 2015, Doc. No. 14 -- Inoshita stipulated that he "is a Career Offender pursuant to USSG § 4B1.1[.]" Doc. No. 9, Plea Agreement ¶ 10(b). Under USSG § 4B1.1(a), a defendant is a career offender if: (1) he "was at least eighteen years old" when the instant offense occurred; (2) "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense;" and (3) he has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSG § 4B1.1(a).

In turn, USSG § 4B1.2(a) defines a crime of violence as a crime that either (a) "has as an element the use, attempted use, or threatened use of physical force against the person of another," or (b) is "burglary of a dwelling, arson, or extortion, involves use of explosives," or (c) "otherwise involves conduct that presents a serious potential risk of physical injury to another." These three clauses are referred to as the "elements clause," the "enumerated offenses clause," and the "residual clause," respectively.²

In addition, Inoshita expressly waived his right to appeal or otherwise challenge his sentence except (1) if it exceeded the statutory maximum or guideline range, as determined by the court, or (2) on the basis of ineffective assistance of counsel:

13. Defendant is aware that he has the right to appeal his conviction and the sentence imposed under Title 18, United States Code, Section 3742(a). Defendant knowingly waives, except as indicated in subparagraph "b" below, the right to appeal his conviction, the right to appeal any sentence imposed within the maximum provided in the statute(s) of conviction, and the right to appeal the manner in which that sentence was determined on any of the grounds set forth in Section 3742, or on any ground whatever, in exchange for the concessions made by the prosecution in this plea agreement.

a. The Defendant also waives his right to challenge his conviction, the right to challenge the sentence imposed, and the right to challenge the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255, except that Defendant may make such a challenge (1) as indicated in subparagraph "b" below, or (2) based on a claim of ineffective assistance of counsel.

b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to the Defendant, Defendant retains theright to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack.

Plea Agreement ¶ 13(a) & (b). The Assistant United States Attorney and the court explained these waivers to Inoshita during the change of plea proceeding. Doc. No. 26 at 15-17. The court also found that Inoshita was competent to understand the proceedings and that his guilty plea was voluntary. Id. at 28.

After the change of plea hearing, but prior to sentencing, the United States Supreme Court ruled that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), of the Armed Career Criminal Act ("ACCA")³ is void for vagueness. Johnson II, 135 S. Ct. at 2557.

B. Sentencing

In light of Johnson II, at the outset of Inoshita's sentencing hearing on July 20, 2015, this court raised the issue of whether the instant offense and Inoshita's prior offenses still qualify as crimes of violence. Doc. No. 18, Sentencing Tr. at 2-3. Specifically, the court inquired whether Inoshita's bank robbery convictions fell under the residual clause or the elements clause of the guidelines. The parties responded as follows:

[DEFENSE COUNSEL]: Well, I did do the research and our office -- our analysis is that unfortunately, Johnson does not seem to apply to Mr. Inoshita's either current offense or the priors.

[GOVERNMENT COUNSEL]: I would agree with that, Your Honor. This isn't a residual clause type case.

[DEFENSE COUNSEL]: Correct.

Id. at 3. This court then discussed United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990), which addressed whether a bank robbery under § 2113(a) qualified as a crime of violence under the elements clause, not the residual clause. See Sentencing Tr. at 4. Selfa noted that bank robbery must be committed "by force and violence or intimidation," and that "intimidation" under § 2113(a) means "wilfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm." 918 F.2d at 751 (citing United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) (other citation omitted). Thus, Selfa held that "persons convicted of robbing a bank 'by force and violence' or 'intimidation' under 18 U.S.C. § 2113(a) have been convicted of a crime of violence within the meaning of Guideline Section 4B1.1." 918 F.2d at 751 (quoting § 2113(a)).

After noting that Selfa did "not apply[] the residual clause," but instead determined that § 2113(a) "has an element" the "use, attempted use orthreatened use of physical force against the person of another," this court stated that Selfa appears to "foreclose any argument that [Inoshita is] not a career offender." Sentencing Tr. at 4-5. The parties responded:

[DEFENSE COUNSEL]: I agree with that.

[GOVERNMENT COUNSEL]: Same here, Your Honor.

Id. at 5.

This court granted Inoshita's request for a variance from the career offender guideline range of 151 to 188 months, and sentenced him, in part, to a term of imprisonment of 120 months. Id. at 5-6, 13-14.

C. The § 2255 Motion

Inoshita did not appeal his conviction or sentence. Instead, he filed the instant § 2255 Motion arguing that the parties and the court were all wrong in determining that a § 2113(a) bank robbery qualified as a crime of violence. More specifically, Inoshita claims that (1) he was "unconstitutionally and illegally deemed a career offender" because the guideline's "residual clause is unconstitutionally vague and may not be used to classify [him] as a career offender,"⁴ and (2) "[r]ecent Supreme Court cases also make clear that federalbank robbery . . . does not count as a crime of violence" under either § 4B1.2's elements clause or residual clause. Doc. No. 19, § 2255 Motion at 4. The Government filed a Response on April 1, 2016, Doc. No. 23, and Inoshita filed a Reply on April 5, 2016. Doc. No. 24.

III. STANDARD OF REVIEW

"A prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Section 2255 authorizes the court to grant relief if it concludes "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[.]" Id.

A court may dismiss a § 2255 motion if "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. And a court need not hold an evidentiary hearing if the issues can be conclusively decided on the basis of the evidence in the record. See United States v. Mejia Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a "district court has discretion to deny an evidentiaryhearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief").

IV. DISCUSSION

A. Inoshita Waived His Right to Collaterally Attack His Sentence

A defendant may waive his...