United States v. Charlie Rivera ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-3044
___________
UNITED STATES OF AMERICA
v.
CHARLIE RIVERA,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-13-cr-00128-001)
District Judge: Christopher C. Conner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2022
Before: RESTREPO, PHIPPS and RENDELL, Circuit Judges
(Opinion filed: September 28, 2022 )
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OPINION *
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PER CURIAM
Pro se appellant Charlie Rivera appeals from an order of the District Court
denying his motion for a sentence modification pursuant to 18 U.S.C. § 3582(c). For the
reasons discussed below, we will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
I.
In 2015, Rivera pled guilty to a drug charge. In 2016, he was classified as a career
offender under the Sentencing Guidelines as a result of two prior state-court convictions,
and he was sentenced to a below-Guidelines sentence of 120 months in prison. He did
not appeal.
In January 2021, he filed a pro se motion for compassionate release in light of the
COVID-19 pandemic. See generally 18 U.S.C. § 3582(c)(1)(A)(i) (providing that a
sentence may be reduced if “extraordinary and compelling reasons warrant such a
reduction”). The District Court denied the motion, reasoning that even if the Court
assumed that the alleged circumstances related to COVID-19 were extraordinary and
compelling, the Court would nonetheless deny the motion because the sentencing factors
set forth in 18 U.S.C. § 3553(a) did not support a reduction to Rivera’s term of
imprisonment.
Seven months later, Rivera filed the motion which gave rise to this appeal, in
which he sought a sentence reduction based on an argument that one of his prior state-
court convictions that contributed to his classification as a career offender would no
longer qualify as a “controlled substance offense” under the Guidelines and, therefore, he
would not be considered a career offender for sentencing purposes if he were sentenced at
the time of his motion. This motion was also filed under the rubric of “compassionate
release.” He requested a resentencing proceeding. The District Court denied the motion,
constitute binding precedent. 2
concluding that regardless of the alleged post-sentencing change in law, Rivera was
correctly classified as a career offender when he was sentenced and, therefore, had failed
to establish extraordinary and compelling reasons to warrant the reduction. In any event,
the Court again held that the § 3553(a) factors did not support a sentence reduction, and
the Court incorporated the reasoning from its order denying Rivera’s earlier
compassionate-release motion.
Rivera appealed the denial of his second motion. The matter is fully briefed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review a district court’s
decision to deny a compassionate-release motion for abuse of discretion.” United States
v. Claude, 16 F.4th 422, 425 (3d Cir. 2021) (alteration, quotation marks omitted).
Specifically, we review for abuse of discretion the District Court’s determination that the
sentencing factors under Section 3553(a) do not weigh in favor of a sentence
modification under § 3582(c). See United States v. Pawlowski, 967 F.3d 327, 330 (3d
Cir. 2020). “[W]e will not disturb the District Court’s decision unless there is a definite
and firm conviction that it committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors.” Id. (quotation marks and citation
omitted).
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III.
A district court “may reduce [a federal inmate’s] term of imprisonment” and
“impose a term of probation or supervised release” if it finds that “extraordinary and
compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). In 2018,
the Controlled Substances Act was amended to exclude hemp from the definition of
marijuana. See Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (2018); compare 21
U.S.C. § 802(16) (2017), with 21 U.S.C. § 802(16)(B)(i) (2018).
Rivera, who was sentenced in 2016, argued in his motion for a sentence reduction
that his prior Pennsylvania conviction under 35 Pa. Cons. Stat. § 780-113(a)(30) for
possession with intent to distribute a controlled substance no longer categorically
qualifies as a predicate offense for a career-offender designation under the Sentencing
Guidelines because § 780-113(a)(30) does not exclude hemp from the definition of
marijuana. However, we agree with the District Court that, even assuming that the law
changed in Rivera’s favor, 1 this does not constitute an extraordinary and compelling
reason to warrant a sentence reduction. See United States v. Andrews, 12 F.4th 255, 260
(3d Cir. 2021) (noting that under Supreme Court precedent, the “ordinary practice” in
federal sentencing is to withhold new sentencing changes from defendants already
sentenced, and that a practice considered “ordinary” by the Supreme Court cannot
1
We express no opinion on the issue, currently before the Court in United States v.
Lewis, C.A. No. 21-2621, whether a state conviction counts as a predicate offense under
U.S.S.G. § 4B1.2(b) regardless of whether the state’s definition of the “controlled
substance” fits within the federal definition of that term under the Controlled Substances
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simultaneously be an “extraordinary and compelling” reason for deviating from the
standard practice) (citing Dorsey v. United States, 567 U.S. 260, 280 (2012), and United
States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021). 2
Furthermore, before modifying a sentence, a district court must consider the
factors set forth in 18 U.S.C. § 3553(a) “to the extent that they are applicable.” Id.§ 3582(c)(1)(A). Those factors include, among other things, “the nature and
circumstances of the offense and the history and characteristics of the defendant,”
§ 3553(a)(1), and the need for the sentence “to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense”; “to afford
adequate deterrence to criminal conduct”; and “to protect the public from further crimes
of the defendant,” § 3553(a)(2)(A)–(C).
We cannot say that the District Court committed a clear error of judgment in
concluding that a number of the § 3553(a) factors—including Rivera’s criminal history,
the need to reflect the seriousness of the offense and to protect the public, and the fact
that he was arrested for this offense while police officers were actively searching for him
for failing to report for a prison sentence related to other drug-trafficking offenses—
precluded granting compassionate release here. Moreover, the District Court reasonably
determined that the fact that Rivera had just under seven years remaining on his ten-year
Act.
2
Rivera argues also that § 780-113(a)(30) does not qualify as a predicate offense for a
career-offender designation because, he asserts, it is an inchoate crime. However, we
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sentence weighed against reducing the requested modification. See, e.g., Pawlowski, 967
F.3d at 330-31.
Accordingly, we will affirm the judgment of the District Court.
recently rejected this argument. See United States v. Dawson, 32 F.4th 254, 259-60 (3d
Cir. 2022).
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