James Troiano v. United States of America

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J AMES TROIANO ,
Petitioner-Appellant,
v.
UNITED S TATES OF
AMERICA,
Respondent-Appellee.
No. 18-15183
D.C. Nos.
1:16-cv-00512-HG-KSC
1:05-cr-00261-HG-1
OPINION
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted February 11, 2019
Honolulu, Hawaii
Filed March 22, 2019
Before: Richard C. Tallman, Jay S. Bybee,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman

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SUMMARY*
28 U.S.C. § 2255
The panel affirmed the district court’s order correcting
the defendant’s sentence as to only one of his four counts of
conviction following his partially successful motion for
relief under 28 U.S.C. § 2255, and denied his motion to
expand the certificate of appealability.
The panel held that the abuse-of-discretion standard
applies for reviewing a district court’s choice of remedial
action in response to a successful or partially successful
28 U.S.C. § 2255 motion.
The defendant contended that the district court was
required to conduct a full resentencing proceeding on all
counts because removing the Armed Career Criminal Act
sentencing enhancement from one count necessarily
impacted the court’s consideration of his full sentencing
package. The panel held that the district court did not abuse
its discretion when it corrected the defendant’s sentence only
as to the count of conviction affected by Johnson v. United
States, 135 S. Ct. 2551 (2015). The panel wrote that even if
the counts were grouped for sentencing—something the
record does not reflect—the decision to restructure a
defendant’s sentence when only one of the counts of
conviction is found to be invalid is not mandatory. The panel
wrote that, in any event, it is evident from the record that the
defendant’s counts of conviction were not actually grouped
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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TROIANO V . UNITED S TATES 3
for sentencing in any material way that might have led the
district court, in its discretion, to unbundle them for
sentencing.
The panel declined to certify two additional issues for
appeal.
COUNSEL
Peter C. Wolff, Jr. (argued), Assistant Federal Defender,
Office of the Federal Public Defender, Honolulu, Hawaii, for
Petitioner-Appellant.
Marion Percell (argued) and Jill Otake, Assistant United
States Attorneys; Kenji M. Price, United States Attorney;
United States Attorney’s Office, Honolulu, Hawaii; for
Respondent-Appellee.
OPINION
TALLMAN, Circuit Judge:
Federal prisoner James Troiano appeals the district
court’s order correcting his sentence only as to one of his
four counts of conviction following his partially successful
motion for relief under 28 U.S.C. § 2255. Troiano contends
the court was required to conduct a full resentencing
proceeding on all counts because removing the Armed
Career Criminal Act (“ACCA”) sentencing enhancement
from one count necessarily impacted the court’s
consideration of his full sentencing package. We conclude
that the district court did not abuse its discretion in correcting
only one count of Troiano’s sentence. We decline to certify

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the two additional issues Troiano seeks to appeal, and we do
not reach them.
I
In 2006, Troiano was convicted by a federal jury on four
counts—Count 1: Conspiracy to obstruct commerce by
robbery, in violation of 18 U.S.C. §§ 1951 and 1952 (“Hobbs
Act conspiracy”); Count 2: Obstructing commerce by
robbery, in violation of 18 U.S.C. §§ 1951 and 1952 (“Hobbs
Act robbery”); Count 3: Use of a firearm in obstructing
commerce by robbery, in violation of 18 U.S.C. § 924(c);
and Count 4: Felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(e). These charges
stemmed from the robbery of a convenience store in
Waialua, Hawaii, carried out by Troiano and others. During
the robbery Troiano brandished a Colt .45 semi-automatic
pistol, took $12,000 from an ATM, and injured the store
clerk.
At sentencing, the government introduced certified
copies of Troiano’s prior Hawaii state convictions,
including, as relevant here, two 1991 and two 1998
convictions for burglary in the first degree. The Presentence
Investigation Report (“PSR”) noted that Troiano was subject
to the career offender sentencing enhancement under
U.S.S.G. § 4B1.1,1 because he was over 18 at the time of the
instant offense, the offense was a crime of violence, and he
had at least two predicate felony convictions for crimes of
violence (the 1991 and 1998 Hawaii first-degree burglaries).
The PSR also explained that Troiano faced a mandatory
1 All references herein are to the 2005 version of the United States
Sentencing Guidelines, under which Troiano was sentenced, and to then-
current versions of relevant statutes.

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TROIANO V . UNITED S TATES 5
7-year consecutive sentence on Count 3 under 18 U.S.C.
§ 924(c)(1)(A)(ii), for brandishing a firearm during and in
relation to a crime of violence. Further, the PSR noted that
Troiano faced a mandatory minimum term of 15 years on
Count 4 under 18 U.S.C. § 924(e)(1), because, under the
ACCA, Troiano had three previous convictions “for a
violent felony . . . committed on occasions different from
one another[.]”
For the purpose of calculating Troiano’s Sentencing
Guidelines range, the PSR explained that Counts 1 and 2
were grouped under U.S.S.G. § 3D1.2(b), because Count 2
charged a substantive offense that was the subject of the
conspiracy charged in Count 1. Count 3 was not grouped
with any other count because of the mandatory 7-year
consecutive sentence it carried. Count 4 also was not
grouped because the mandatory consecutive sentence for
Count 3 already accounted for the firearm possessed in
connection with the robbery counts.2 Ultimately, due to his
career offender status, Troiano’s Guidelines range on Counts
1 and 2, as well as on Count 4, was 360 months to life. The
PSR referenced U.S.S.G. § 5G1.2(e), stating that in cases
involving career offenders, “to the extent possible, the total
punishment is to be apportioned among the counts of
conviction, except that . . . the [84-month] sentence to be
imposed on the 18 U.S.C. § 924(c) . . . count shall be
imposed to run consecutively to any other count.”
At sentencing, the district court adopted the PSR,
including the calculation of Troiano’s Guidelines range. The
2 The PSR made clear, however, that Troiano was an Armed Career
Criminal because he was subject to an enhanced sentence on Count 4
under the provisions of 18 U.S.C. § 924(e).

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court then varied below the range and imposed a total
sentence of 24 years, stating:
I believe that an appropriate sentence as to
counts 1, 2, and 4 is 17 years. As to count 3,
I am giving you seven years. And so that is a
total of 24 years. And the sentence of
17 years on counts 1, 2, and 4 run
concurrently. The sentence as to count 3 runs
consecutively, and that is how, when you
total it up, it becomes 24 years, which is
vastly different than 360 months to life. And
it is my hope that you will look at that as an
opportunity to pay for your crimes but still
have some life left at the end of that.
Troiano’s conviction and sentence were affirmed on
direct appeal, and his first motion under 28 U.S.C. § 2255,
alleging ineffective assistance of counsel, was denied. See
United States v. Troiano, 258 F. App’x 983 (9th Cir. 2007).
In 2016, following the Supreme Court’s decision in Johnson
v. United States, 135 S. Ct. 2551 (2015), which struck down
as unconstitutionally vague the ACCA’s residual clause
definition of “crime of violence,” Troiano was permitted to
file a second section 2255 motion. In that motion, Troiano
argued: first, that post-Johnson, he was no longer subject to
a 15-year mandatory minimum sentence under the ACCA
for Count 4; second, that because of the Guidelines’
identically worded residual clause definition of “crime of
violence” he was not properly designated a career offender
under U.S.S.G. § 4B1.1; and third, that Hobbs Act robbery
was not a crime of violence for purposes of 18 U.S.C.
§ 924(c).

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TROIANO V . UNITED S TATES 7
Acknowledging Johnson, the district court granted relief
on Troiano’s claim that the ACCA enhancement was
incorrectly applied to Count 4, but it denied his Guidelines
challenge in light of Beckles v. United States, 137 S. Ct. 886,
895 (2017) (holding that the Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process
Clause). It also denied relief on Troiano’s section 924(c)
claim. The court then ordered the parties to file memoranda
“addressing their positions as to the procedure for post-2255
proceedings in this case,” including “the need for a revised
Presentence Investigation Report, the need for a
resentencing hearing, and the need for [Troiano] to be
present at a resentencing hearing.”
After full briefing, the court issued its order correcting
Troiano’s sentence. Noting its “wide discretion in choosing
the proper scope of post-2255 proceedings,” the court opted
not to conduct a full resentencing as to all four counts of
conviction, and instead corrected Troiano’s sentence on
Count 4 to 10 years—the maximum sentence permitted
without the ACCA enhancement. Because Troiano’s
17-year sentences on Counts 1 and 2 and his 7-year
consecutive sentence on Count 3 were not altered, his overall
sentence of 24 years remained unchanged.
The district court issued Troiano a Certificate of
Appealability (“COA”) to challenge the procedure by which
it corrected his sentence, but denied COAs to challenge his
career offender designation and whether Hobbs Act robbery
constitutes a crime of violence for purposes of 18 U.S.C.
§ 924(c). We also declined to certify the latter two issues,
but did so without prejudice to Troiano raising them in his
opening brief.

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II
We have not explicitly stated in a published opinion
which standard of review applies to a district court’s
determination of the appropriate remedy in a 28 U.S.C.
§ 2255 proceeding. We take the occasion to do so here, and
hold that the standard is abuse of discretion.
Citing our cases discussing the standard of review for
decisions to grant or deny section 2255 motions, Troiano
urges us to apply de novo review. See, e.g., United States v.
Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en banc) (“We
review de novo a district court’s denial of relief to a federal
prisoner under 28 U.S.C. § 2255.”); United States v.
Navarro, 160 F.3d 1254, 1255 (9th Cir. 1998) (“We review
the grant of a § 2255 motion de novo.”). Those cases,
however, do not discuss which standard we are to apply
when reviewing the district court’s choice of remedial action
in response to a successful—or, as here, a partially
successful—section 2255 motion.
We have already declared in Loher v. Thomas, 825 F.3d
1103, 1111 (9th Cir. 2016), a case brought under 28 U.S.C.
§ 2254, that “review [of] the district court’s determination of
the appropriate remedy for a constitutional violation on a
habeas petition [is] for abuse of discretion.” Section 2255 is
“intended to mirror § 2254 in operative effect,” United
States v. Winkles, 795 F.3d 1134, 1141 (9th Cir. 2015), and
we see no reason to distinguish between those sections when
it comes to reviewing the district court’s choice of remedy
after it grants habeas relief.
Moreover, the deferential abuse of discretion standard
accords with the “broad and flexible power” conferred upon
district courts under section 2255. United States v. Handa,
122 F.3d 690, 691 (9th Cir. 1997). See also United States v.

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TROIANO V . UNITED S TATES 9
Jones, 114 F.3d 896, 897 (9th Cir. 1997) (noting that the
statute “gives district judges wide berth in choosing the
proper scope of post-2255 proceedings”). Additionally, at
least four of our sister circuits have explicitly applied the
abuse of discretion standard to remedial decisions under
section 2255. See United States v. Brown, 879 F.3d 1231,
1235 (11th Cir. 2018) (adopting abuse of discretion standard
when reviewing a district court’s “choice of § 2255 remedy”
and citing to section 2255 cases from the First, Second, and
Fourth Circuits applying that standard). Accordingly, we
follow our precedent from the section 2254 context and
adopt the approach of our sister circuits in reviewing the
district court’s decision to correct Troiano’s sentence for
abuse of discretion.
III
The district court did not abuse its discretion when it
declined to conduct a full resentencing and instead corrected
Troiano’s sentence only as to the count of conviction
affected by Johnson. Troiano argues that the district court
grouped his counts of conviction to fashion a sentencing
package and that the so-called “sentencing package
doctrine” requires that he be resentenced on all four counts.
Even were we to conclude that the counts were grouped for
sentencing—something the record does not reflect here—the
decision to restructure a defendant’s entire sentence when
only one of the counts of conviction is found to be invalid is
discretionary and not, as Troiano suggests, mandatory.
Troiano relies primarily on our decision in Handa, which
discussed a “likelihood that the sentencing judge will have
attempted to impose an overall punishment [in a multi-count
conviction] taking into account the nature of the crimes and
certain characteristics of the criminal.” 122 F.3d at 692. We
there stated that under such circumstances, if one count of

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conviction is undone “the district court is free to put together
a new package reflecting its considered judgment as to the
punishment the defendant deserves for the crimes of which
he is still convicted.” Id. (emphasis added). But we did not
state that the district court must do so.3 To the extent it was
not made clear in Handa, we now clarify that the decision to
unbundle a sentencing package—that is, to conduct a full
resentencing on all remaining counts of conviction when one
or more counts of a multi-count conviction are undone—
rests within the sound discretion of the district court. Cf.
United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir.
2010) (in the direct appeal context, where counts are grouped
for sentencing, “a district court may resentence a defendant
on each count remanded by the appellate court, even if the
district court made no error with respect to a particular
count,” but that “this rule is phrased in the permissive; it is
not a requirement”).
In any event, it is evident from the record in this case that
Troiano’s counts of conviction were not actually grouped for
sentencing in any material way that might have led the
district court, in its discretion, to unbundle them for
resentencing. As the district court itself explained, Troiano’s
“sentence as to Count 4 was not grouped with either
Counts 1, 2, or 3, for sentencing guideline calculations . . .
[and] the sentencing guidelines for Counts 1, 2, and 3, were
unaffected by [his] conviction for Count 4.” In other words,
3 Neither did the Seventh Circuit in either of the two cases upon
which we primarily relied in Handa. See United States v. Binford,
108 F.3d 723, 728 (7th Cir. 1997) (explaining that “when part of a
sentence is vacated . . . the district court may ‘rebundle’ the package by
resentencing the defendant” (emphasis added)); United States v. Smith,
103 F.3d 531, 535 (7th Cir. 1996) (concluding that “the entire sentence
can be revisited”).

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TROIANO V . UNITED S TATES 11
Troiano’s Guidelines range would have remained
360 months to life even if he had never been convicted of
Count 4.4 There is simply no reason to conclude on this
record that removing the sentencing enhancement on
Count 4 had any impact on the sentences for the unaffected
counts, let alone that the district court abused its discretion
by not “unbundling” and conducting a full resentencing
proceeding on all counts.
IV
Troiano is entitled to a COA on his two remaining issues
only if he can demonstrate “that jurists of reason could
disagree with the district court’s resolution of his
4 Troiano nevertheless insists that Count 4 informed the district
court’s sentencing decision because it carried the highest mandatory
minimum and therefore set the sentencing floor as to the total sentence
the court could select. While it is true that with the ACCA enhancement
the district court could not impose a sentence less than 15 years for
Count 4, it does not follow that without that floor the district court would
have chosen a sentence lower than 17 years for Counts 1 and 2, because
the Guidelines range on those counts, independent from Count 4, was
30 years on the low end. See Gall v. United States, 552 U.S. 38, 49
(2007) (declaring that “the Guidelines should be the starting point and
the initial benchmark” for a sentence); see also Evans-Martinez,
611 F.3d at 637 (explaining that although “a mandatory minimum
sentence becomes the starting point for any count that carries a
mandatory minimum sentence higher than what would otherwise be the
Guidelines sentencing range[, a]ll other counts . . . are sentenced based
on the Guidelines sentencing range, regardless [of] the mandatory
minimum sentences that apply to other counts”). Given the Guidelines
range for Counts 1 and 2, the violence involved in the instant offenses,
and Troiano’s extensive criminal history, we do not think it likely that
the district court would have varied even lower than its already-
significant 156-month downward variance if the ACCA enhancement to
Count 4 had been eliminated. The district court hinted as much at a status
conference it held before correcting Troiano’s sentence.

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constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citation
and internal quotations omitted). See also 28 U.S.C.
§ 2253(c)(2) (“A certificate of appealability may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.”). Troiano has not made that
showing here.
Jurists of reason would not disagree with the district
court’s conclusion that Beckles forecloses Troiano’s due
process challenge to his career offender designation under
the Sentencing Guidelines. In Beckles, the Supreme Court
held that “the advisory Sentencing Guidelines are not subject
to a vagueness challenge under the Due Process Clause and
that § 4B1.2(a)’s residual clause is not void for vagueness.”
137 S. Ct. at 895. Accordingly, we do not reach Troiano’s
challenge to his career offender designation.
We likewise do not reach Troiano’s claim that Hobbs
Act robbery is not a crime of violence as defined under
18 U.S.C. § 924(c)(3)(A), otherwise known as the “force
clause.”
V
We hold that we review for abuse of discretion a district
court’s determination of the appropriate remedy in a
28 U.S.C. § 2255 proceeding. The district court did not
abuse its discretion by correcting Troiano’s sentence only as
to the affected count of his multi-count conviction.
Troiano’s arguments concerning his two uncertified issues
are treated as a motion to expand the certificate of
appealability, which is denied. See 9th Cir. R. 22-1(e).
AFFIRMED in part; DENIED in part.

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