FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES TROIANO,

Petitioner-Appellant,

v.

UNITED STATES 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
2 TROIANO V. UNITED STATES

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.
TROIANO V. UNITED STATES 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 
4 TROIANO V. UNITED STATES

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 thencurrent versions of relevant statutes.
TROIANO V. UNITED STATES 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).
6 TROIANO V. UNITED STATES

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).
TROIANO V. UNITED STATES 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.
8 TROIANO V. UNITED STATES

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. 
TROIANO V. UNITED STATES 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 
10 TROIANO V. UNITED STATES

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”).
TROIANO V. UNITED STATES 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 alreadysignificant 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.
12 TROIANO V. UNITED STATES

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.