Opinion
Civil 2:15-cv-506-TC Criminal Case 2:08-cr-758-TC
08-16-2023
ERIC KAMAHELE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND MEMORANDUM DECISION GRANTING PETITION
Tena Campbell Judge
Petitioner Eric Kamahele has submitted a Second Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 93) after the Tenth Circuit remanded his case to allow the court to consider the impact of the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015 (2022), on Mr. Kamahele's convictions. United States v. Kamahele, No. 17-4154, 2023 WL 3243228 (10th Cir. May 4, 2023). The United States has stipulated to the filing of this amended motion and the parties jointly ask the court to vacate Mr. Kamahele's two convictions under 18 U.S.C. § 924(c).
The court agrees that Mr. Kamahele's first § 924(c) conviction, based on a violation of the Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a)(3), must be vacated under the Tenth Circuit's ruling in United States v. Toki, 23 F.4th 1277, 1280 (10th Cir. 2022) (holding that VICAR is not categorically a crime of violence under § 924(c)'s force clause); see also United States v. Davis, 139 S.Ct. 2319 (2019) (holding that § 924(c)'s residual clause is unconstitutionally vague). The court further agrees that Mr. Kamahele's second § 924(c) conviction, based on his conviction for attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), must be vacated under the Supreme Court's ruling in Taylor, 142 S.Ct. 2015.
Therefore, based on the rulings from the Supreme Court and the Tenth Circuit, the stipulation of the parties, and for good cause appearing, the court grants Mr. Kamahele's Second Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 93). The court will file an amended judgment vacating Mr. Kamahele's two § 924(c) convictions based on his convictions under VICAR and for attempted Hobbs Act robbery.The court resentences Mr. Kamahele to time served with no period of supervised release to follow.
Counts 20 and 29 (for trial purposes renumbered to counts 9 and 18) of the Second Superseding Indictment.
SO ORDERED.