United States v. Rivas ( 2012 )

11-44-cr
United States v. Rivas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-44-cr
FERNANDO RIVAS,
Defendant-Appellant,
KENDY MATOS, MANAURI RODRIGUEZ,
Defendants.
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FOR APPELLEE: KATHERINE POLK FAILLA, Assistant
United States Attorney (Michael D.
Maimin, Assistant United States
Attorney, on the brief), for Preet
Bharara, United States Attorney for
the Southern District of New York,
New York, New York.
FOR DEFENDANT-APPELLANT: STEVEN Y. YUROWITZ, ESQ., Newman &
Greenberg, New York, New York.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED in part and MODIFIED in
part.
Defendant-Appellant Fernando Rivas appeals from the
district court's judgment of December 22, 2010, convicting him,
following a guilty plea, of violating the terms of his supervised
release. Rivas was sentenced to concurrent terms of imprisonment
of 37 months on each of the two specifications for violating the
terms of his supervised release in Case Nos. 03 Cr. 1033 and 04
Cr. 1102, to run consecutively to a 46-month term of imprisonment
imposed in case No. 09 Cr. 457.
We assume the parties' familiarity with the facts and
procedural history of the case and the issues presented for
review, which we summarize below.
On December 22, 2003, Rivas pled guilty to a Hobbs Act
robbery conspiracy and the use of a firearm during the
conspiracy. On September 30, 2004, pursuant to a cooperation
agreement, Rivas pled guilty to two new charges contained in an
information: Hobbs Act conspiracy and narcotics conspiracy.
On February 21, 2008, the district court (Wood, J.)
sentenced Rivas to time served, taking into account his
cooperation. In doing so, the district court relied on a pre-
sentence investigation report (the "PSR") that erroneously
calculated Rivas's offense level based only on his 2003 crimes
without including the conduct charged in the 2004 information.
Hence, the offense level was understated. The PSR also
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determined that Rivas was in Criminal History Category ("CHC")
III, in part based on a 2000 conviction for promoting
prostitution.
Rivas asked the district court to "adopt the
recommendation of the probation department, their calculation."
The district court adopted "what everyone ha[d] agreed is
appropriate" -- the probation department's calculation set forth
in the PSR. The district court found a total offense level of 22
and a CHC of III. Although the district court did not state the
resulting guidelines range on the record, the PSR had concluded
(again, without taking into account the additional criminal
conduct) the advisory guidelines range was 135 to 147 months'
imprisonment. In recognition of Rivas's cooperation, the
district court sentenced him to time served, or effectively 54
months' imprisonment, and a term of supervised release of three
years on each of the two counts in the information,
concurrently.1
In March 2009, Rivas committed another Hobbs Act
robbery. He was indicted. He was also charged, based on the
same conduct, with violations of his supervised release imposed
in February 2008. On January 12, 2010, Rivas pled guilty to the
2009 indictment. On December 21, 2010, as he was to be sentenced
for the 2009 charge, he also pled guilty to the two violations.
1
Although Rivas had pled guilty to a total of four
counts, two on December 22, 2003, and two on September 30, 2004,
the judgment, which bears both docket numbers, refers only to the
two counts of the information. The charges in the initial
indictment were dismissed at sentencing on motion of the
government.
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As for the 2009 case, the district court (Gardephe, J.)
sentenced Rivas to 46 months' imprisonment, finding a total
offense level of 19, a CHC of III, and an advisory guidelines
range of 37 to 46 months' imprisonment. In calculating the CHC
to be III, the district court rejected the government's argument
that Rivas should receive one CHC point for the 2000 conviction
for promoting prostitution, which the district court had included
in sentencing Rivas in 2008. The CHC remained at III even
without the one point because of unrelated amendments to the
guidelines. On the violations, the district court found that
Rivas had committed a Grade A violation and that because Judge
Wood had found in 2008 that Rivas was in CHC III, it would use
CHC III as well. See U.S.S.G. § 7B1.4(a). The government noted
that without the one point for the 2000 conviction for promoting
prostitution, Rivas's CHC in 2008 would have been II and not III.
The district court applied a CHC III nonetheless, noting that the
probation department, the government, and the defense all agreed
that CHC III applied. The district court imposed concurrent
terms of 37 months' imprisonment on each of the two
specifications, to run consecutively to the 46 months on the 2009
case.
Rivas's appeal is confined to the district court's
sentence for the supervised release violations. We review
sentences imposed for violations of supervised release for
reasonableness, both substantive and procedural. See United
States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008); United
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States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005). Rivas failed
to object at sentencing to the calculation of his criminal
history category, and thus the Court reviews for plain error.
See United States v. Caban, 173 F.3d 89, 92 (2d Cir. 1999).
Rivas first argues that the district court incorrectly
calculated his criminal history category by adopting the CHC of
III applied at his 2008 sentencing. Rivas contends that because
the district court did not include his 2000 conviction for
promoting prostitution in its CHC calculation for the 2009 case,
it was error for the court to include it in calculating the
advisory guidelines range for the supervised release violations.
The government argues that Rivas waived this claim by
explicitly agreeing in the district court that CHC III applied.
We need not decide the waiver issue, for we conclude that the
district court did not err, much less plainly err.
The guidelines provide that the CHC to be used at
sentencing for a supervised release violation is "the category
applicable at the time the defendant originally was sentenced to
a term of supervision." U.S.S.G. § 7B1.4. Here, Judge Wood
applied a CHC of III at the original sentencing in 2008, without
objection from Rivas. At the sentencing in 2010, Judge Gardephe
ruled that he would apply the same CHC used by Judge Wood, as
prescribed by § 7B1.4, again without objection from Rivas. See
U.S.S.G. § 7B1.4; id. cmt. n.1 ("The criminal history category to
be used in determining the applicable range of imprisonment [for
a supervised release violation] is the category determined at the
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time the defendant originally was sentenced to the term of
supervision."). Judge Gardephe thus did not err in his
calculation, even if he would have calculated Rivas's CHC as
category II instead of III had he been making the original
calculation in 2008.
Rivas also argues that the district court's sentence
for the supervised release violations exceeded the statutory
maximum set forth in 18 U.S.C. § 3583(e)(3), which provides that
a defendant serving a term of supervised release for a class C or
D felony may be sentenced to no more than twenty-four months in
prison if his supervised release is revoked due to a violation.
The district court imposed two terms of thirty-seven months of
imprisonment, to run concurrently, for the violations.2 Here,
the judgment entered on February 28, 2008, listed two counts:
Hobbs Act robbery conspiracy, a class C felony, and cocaine
distribution conspiracy, a class A felony. As the government
acknowledges, a class C felony could only carry up to twenty-four
months' imprisonment. Because the district court ordered the
sentences to run concurrently, however, the error is merely
technical. The district court could have imposed one thirty-
seven month sentence for the violation of supervised release
imposed pursuant to the class A felony, and one twenty-four month
sentence for the violation related to the class C felony, and
2
The district court's reference to "each violation" and
its imposition of two thirty-seven month terms of imprisonment
refers to the fact that two specifications gave rise to the term
of supervised release.
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Rivas's sentence would stay the same. Nevertheless, the error
should be corrected, and this Court has the authority to correct
errors in the judgment that do not "change the aggregate sentence
that has been imposed." United States v. McLeod, 251 F.3d 78,
83-84 (2d Cir. 2001). We therefore order the correction of the
2010 judgment and conviction so that it reads as follows:
"Thirty-seven (37) months' imprisonment on Count Two of 04 Cr.
1102 (PGG), to run concurrently with twenty-four (24) months'
imprisonment on Count One of 04 Cr. 1102 (PGG)."
We have considered all of Rivas's remaining arguments
and conclude that they are without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED in part and
MODIFIED in part as set forth above.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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