Rivera v. United States

11-5155-pr
Rivera v. United States
U NITED S TATES C OURT OF A PPEALS
F OR THE S ECOND C IRCUIT
August Term 2012
(Argued: November 27, 2012 Decided: May 24, 2013)
Docket No. 11-5155-pr
_____________________
J OHN R IVERA AKA H UBERT C OLEMAN ,
Petitioner-Appellant,
V.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
_____________________
Before:
S ACK , C HIN , and L OHIER , Circuit Judges.
_____________________
Appeal from a Memorandum and Order of the United
States District Court for the Eastern District of New York
(Glasser, J.) denying petitioner-appellant's motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
modify his sentence.
A FFIRMED .
_____________________
K EVIN J. K EATING , (Matthew W. Brissenden,
on the brief), Law Offices of Kevin
J. Keating, Garden City, New York,
for Petitioner-Appellant.
U NA A. D EAN , Assistant United States
Attorney (Emily Berger, Assistant
United States Attorney, on the
brief), for Loretta E. Lynch, United
States Attorney for the Eastern
District of New York, Brooklyn, New
York, for Respondent-Appellee.
_____________________
C HIN , Circuit Judge:
On June 14, 2005, after pleading guilty to
possession of a firearm after having been convicted of a
felony, petitioner-appellant John Rivera was sentenced
pursuant to the Armed Career Criminal Act of 1984 ("ACCA"),
18 U.S.C. § 924(e), to a mandatory minimum term of
imprisonment of fifteen years. Rivera filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence, arguing that changes in state law
that lowered the maximum sentence applicable to a prior
state court conviction rendered him no longer subject to
sentencing under ACCA. The district court (Glasser, J.)
denied the motion. We affirm.
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BACKGROUND
1. The Felony Possession Offense
On March 6, 2004, as New York City police officers
were investigating a matter in Brooklyn, New York , they saw
Rivera standing in front of a bodega. As the officers
approached, Rivera fled.
The officers gave chase. They apprehended Rivera
and found on his person a .38-caliber revolver with its
serial number obliterated. The gun had no cylinder -- the
chamber that holds the bullets -- and was therefore
inoperable. Rivera claimed that he had found the gun in a
nearby park. The officers detained him and eventually
transferred Rivera to federal custody.
The government charged Rivera with possession of a
firearm after having been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). 1 He signed a plea
agreement, in which he waived his right to appeal a
sentence of 235 months' imprisonment or less. The
1
The Indictment also charged Rivera with the knowing
and intentional possession of a firearm shipped and transported
in interstate commerce in violation of 18 U.S.C. §§ 922(k) and
924(a)(1)(B). This count was later dismissed.
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Probation Department calculated a sentencing range of 151-
188 months' imprisonment under the United States Sentencing
Guidelines (the "Guidelines"), based on an adjusted offense
level of 30 and a criminal history category of V.
Rivera, however, had three prior state court
convictions in 2000 and 2001: (1) robbery, (2) attempted
criminal sale of a controlled substance, and (3) attempted
assault. On the basis of these convictions, Rivera was
subject to a sentencing enhancement under ACCA as an "armed
career criminal." ACCA imposed a mandatory minimum term of
imprisonment of fifteen years -- 180 months' imprisonment.
18 U.S.C. § 924(e).
On June 14, 2005, Rivera was sentenced principally
to fifteen years' imprisonment -- for possession of an
inoperable gun.
2. Rivera's Drug Conviction
One of the state court convictions that resulted
in Rivera's sentencing enhancement pursuant to ACCA was an
October 2000 conviction for attempted criminal sale of a
controlled substance in the third degree, in violation of
New York State Penal Law §§ 110 and 220.39. This was a
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class C felony, subject at the time to a maximum term of
imprisonment of fifteen years. Rivera received a one -year
term of imprisonment.
In 2004, the New York State legislature enacted
sentencing reforms that, in part, reduced the maximum terms
of imprisonment applicable to non-violent drug-related
offenses. See generally N.Y. State Assembly Mem. in Supp.
of Legislation, reprinted in Bill Jacket, 2004 A.B. 11895,
ch. 738 [hereinafter "NYS Assembly Memo"]. In 2009, the
state enacted additional laws, further reducing drug-
related sentences. See 2009 N.Y. Laws ch. 56, pt. AAA. 2
3. Procedural History
Rivera did not directly appeal his sentence. In
2011, however, Rivera filed this motion below pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. The district court denied the motion. Rivera
appealed, and the district court granted a certificate of
appealability as to whether Rivera's drug conviction still
2
The New York State legislature also enacted additional
sentencing reforms in 2005. See 2005 N.Y. Laws ch. 642. None
of Rivera's arguments on appeal relate to the reforms
implemented by that legislation.
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qualified as a predicate felony for the ACCA sentencing
enhancement in light of recent U.S. Supreme Court
precedent.
DISCUSSION
Rivera argues that drug reform laws enacted by the
New York State legislature provide retroactive sentencing
relief and are therefore beyond the scope of the holding in
McNeill v. United States, 131 S. Ct. 2218 (2011). We
disagree because, as the relevant New York laws apply
prospectively, the precedent established in McNeill governs
this appeal. 3
3
The government contends that Rivera is barred from
bringing this appeal because (1) he agreed not to collaterally
attack a sentence of less than 235 months, and (2)
notwithstanding his waiver, his 2255 motion was not filed within
the one-year limitations period. See 28 U.S.C. § 2255(f).
Rivera, on the other hand, asserts that he is actually innocent
of being a career criminal, and that we may therefore consider
this appeal. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995)
(actual innocence can serve as a "gateway" by which courts may
hear procedurally defaulted constitutional claims on the
merits); Rivas v. Fischer, 687 F.3d 514, 539, 552 (2d Cir. 2012)
(compelling showing of actual innocence can overcome a time-
barred motion). We acknowledge that whether Rivera could be
deemed "actually innocent" of the ACCA sentencing enhancement is
unclear. See Darby v. United States, No. 11-4828, 2013 WL
309986, at *2 (2d Cir. Jan. 28, 2013) (summary order) (noting in
the context of a career offender enhancement under the
Guidelines that "we by no means suggested that the actual
innocence exception applies where, as here, the defendant was
indisputably guilty of the predicate offenses that led to his
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1. Applicable Law
a. Standard of Review
We review de novo the legal conclusions underlying
a district court's denial of a motion for relief under 28
U.S.C. § 2255. Harrington v. United States, 689 F.3d 124,
129 (2d Cir. 2012); Ventry v. United States, 539 F.3d 102,
110 (2d Cir. 2008). We will defer, however, to a district
court's findings of fact unless they are clearly erroneous.
Sapia v. United States, 433 F.3d 212, 216 (2d Cir. 2005).
b. Drug Law Reform Acts
Beginning in 2004, the New York State legislature
enacted a series of laws to curb the harsh penaltie s
imposed by what had become known as the Rockefeller drug
laws -- a sentencing scheme signed into law by Governor
Nelson Rockefeller in the 1970s. Noting that those laws
"provide[d] inordinately harsh punishment for low level
non-violent drug offenders," the Rockefeller Drug Law
Reform Act ("2004 DLRA") sought to "reform the sentencing
structure of New York's drug laws to reduce prison terms
enhancement"). In light of our disposition below, however, we
assume without deciding that Rivera may bring this appeal.
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for non-violent drug offenders, provide retroactive
sentencing relief and make related drug law sentencing
improvements." NYS Assembly Memo at 3, 6; see also People
v. Acevedo, 14 N.Y.3d 828, 831 (2010).
In relevant part, the 2004 DLRA reduced sentences
for non-violent drug offenders, including those who had
committed class C felonies. See NYS Assembly Memo at 4.
Compare 2004 N.Y. Laws ch. 738, § 36 ("[F]or a class C
felony, the term shall be at least three and one-half years
and shall not exceed nine years.") (codified at N.Y. Penal
Law § 70.70(4)(b)(ii) (2005)), with N.Y. Penal Law
§ 70.00(2)(c) (2000) ("For a class C felony, the term shall
be fixed by the court and shall not exceed fifteen
years."). The 2004 DLRA also provided resentencing
opportunities, but only to persons convicted of more
serious crimes. See 2004 N.Y. Laws ch. 738, § 23 (not
codified but allowing resentencing of class A-1 felons);
see also NYS Assembly Memo at 4-6. Finally, eligible
offenders could earn "merit time" for completing certain
programs, which would reduce the length of incarceration.
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NYS Assembly Memo at 4, 6; see also 2004 N.Y. Laws ch. 738,
§ 30 (not codified).
Subsequent legislation, the Drug Law Reform Act of
2009 (the "2009 DLRA"), further reduced penalties for drug -
related offenses by allowing resentencing for felons
convicted of class B felony drug offenses. 4 2009 N.Y. Laws
ch. 56, pt. AAA, § 9 (codified at N.Y. Crim. Proc.
§ 440.46); People v. Santiago, 17 N.Y.3d 246, 247-48
(2011). Individuals convicted solely of class C felonies,
however, were ineligible for this relief. See 2009 N.Y.
Laws ch. 56, pt. AAA, § 9.
c. ACCA Sentencing Enhancement
Federal law criminalizes the possession of a
firearm by a felon. 18 U.S.C. § 922(g). When a felon "has
three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions
different from one other," felony possession is penalized
by at least fifteen years' imprisonment. Id. § 924(e)(1).
4
It is unclear whether these reductions extend to non-
incarcerated class B felons. See 2011 N.Y. Laws ch. 62, pt. C,
subpart B, § 79. This remains an open issue in the New York
Court of Appeals. See, e.g., People v. Santiago, 17 N.Y.3d 246,
248 n.* (2011); People v. Paulin, 17 N.Y.3d 238, 243 n.* (2011).
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As relevant here, a "serious drug offense" includes "an
offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is
prescribed by law." Id. § 924(e)(2)(A)(ii) (emphasis
added).
Whether a prior conviction qualifies as a
predicate felony for the ACCA sentencing enhancement is
determined by looking to state law existing at the time of
that conviction. See McNeill, 131 S. Ct. at 2224 (serious
drug offenses); James v. United States, 550 U.S. 192, 197
(2007) (violent felonies). For example, a drug offense is
only a "serious drug offense" under ACCA if the "'maximum
term of imprisonment' applicable to a defendant's prev ious
drug offense" was ten years or more when he was convicted
for that offense. McNeill, 131 S. Ct. at 2224; see also
United States v. Thurman, No. 12-3767, 2013 WL 1924789, *4
(6th Cir. May 9, 2013) (unpublished opinion); United States
v. Ellis, 473 F. App'x 490, 493 (6th Cir. 2012); United
States v. Conyers, 457 F. App'x 229, 230 (4th Cir. 2011)
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(unpublished per curiam); cf. United States v. Turlington,
696 F.3d 425, 427-28 (3d Cir. 2012) (applying McNeill's
reasoning to hold that sentences for violating supervised
release should be determined by reference to applicable law
when convicted for underlying offense).
2. Application
Rivera's appeal fails. In McNeill, the Supreme
Court held that predicate drug-related felonies are
determined by reference to the "'maximum term of
imprisonment' applicable to a defendant's previous drug
offense at the time of the defendant's state conviction for
that offense." 131 S. Ct. at 2224, 2223 (emphasis added)
(rejecting premise that "subsequent changes in state law
can erase an earlier conviction for ACCA purposes"). The
state sentencing scheme considered by the Court in McNeill,
however, applied only prospectively, see N.C. Gen. Stat.
Ann. §§ 15A-1340.17(c) & (d), 90-95(a)(1) & (b)(1) (2009);
McNeill, 131 S. Ct. at 2221, and in a footnote, the Supreme
Court limited its holding to similarly non-retroactive
statutory schemes. Specifically, the Supreme Court noted
that McNeill did "not concern a situation in which a State
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subsequently lowers the maximum penalty applicable to an
offense and makes that reduction available to defendants
previously convicted and sentenced for that offense."
McNeill, 131 S. Ct. at 2224 n.1 (declining to "address
whether or under what circumstances a federal court could
consider the effect of that state action").
With this appeal, based in part on that footnote
in McNeill, Rivera tries -- and fails -- to bring the 2004
and 2009 DLRAs outside the scope of McNeill. Like the law
before the Supreme Court, these laws are non-retroactive --
and therefore governed by McNeill.
First, although the 2004 DLRA reduced to nine
years the maximum sentence applicable to class C offenses,
see 2004 N.Y. Laws ch. 738, § 36 (codified at N.Y. Penal
Law § 70.70(4)(b)(ii) (2005)), the change applied only "to
crimes committed on or after the effective date [of the
2004 DLRA]." 2004 N.Y. Laws ch. 738, § 41(d-1); see also
People v. Utsey, 7 N.Y.3d 398, 404 (2006) ("Under the plain
language of the statute, the relevant provisions of the
[2004] DLRA are intended to apply only to crimes committed
after its effective date."). Rivera was sentenced for the
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underlying drug offense on October 5, 2000, long before the
2004 reforms became effective. Hence, the nine-year
statutory maximum was simply not the "maximum sentence
applicable" to his 2000 drug conviction. See Utsey, 7
N.Y.3d at 402-03.
Second, to the extent the 2004 DLRA provided
resentencing opportunities, these were limited to
individuals who had committed class A-1 offenses. 2004
N.Y. Laws ch. 738, § 23 (not codified). As Rivera
committed a class C offense, he was ineligible for this
relief.
Third, although "merit time" allowances could
reduce a defendant's sentence under the 2004 amendments,
these allowances were by no means guaranteed. See 2004
N.Y. Laws ch. 738, § 30(1)-(2). With good behavior during
incarceration and by successfully completing certain
programs, an individual could procure "merit time " as a
credit against the sentence imposed by the court. Id.
These allowances might reduce a defendant's sentence over
time, but could not possibly change the "maximum sentence
applicable" -- i.e., his sentencing exposure at the time of
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his state law conviction -- which, under McNeill, is the
only relevant point of reference. In any case, no
mechanism in the 2004 DLRA provided for altering the
sentence of individuals who, like Rivera, were not
incarcerated when the 2004 DLRA became effective. Cf.
People v. Mills, 11 N.Y.3d 527, 537 (2008) (noting that
"[s]urely the Legislature did not intend fresh crimes to
trigger resentencing opportunities," when it rejected the
argument that a defendant who violated parole could be
resentenced for the underlying offense under similar
statutory reforms enacted in 2005).
Turning to the 2009 DLRA, we reach a similar
conclusion. While some provisions of the 2009 DLRA apply
retroactively, they do not apply where, as here, a
defendant has already been sentenced. See 2009 N.Y. Laws
ch. 56, pt. AAA § 33(f) (uncodified) (effective April 7,
2009). Likewise, as Rivera conceded, the "expanded
opportunities for resentencing" provided by the 2009 DLRA
did not apply to a person whose sole drug -related offense
was a class C felony. 2009 N.Y. Laws ch. 56, pt. AAA, § 9.
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Viewed collectively, the New York sentencing
schemes mirror those addressed in McNeill because their
provisions do not retroactively change the maximum sentence
applicable to Rivera's drug conviction.
Rivera relies heavily on our decision in United
States v. Darden, 539 F.3d 116 (2d Cir. 2008), in which we
held that predicate felonies under ACCA are determined by
reference to the maximum state sentence in effect for the
prior state law conviction when the defendant is sentenced
for the federal offense. 539 F.3d at 127-28. This
reliance, however, is misplaced. As the district court
properly concluded, McNeill abrogated Darden. See Rivera
v. United States, No. 11-cv-969, 2011 WL 5858089, at *2
(E.D.N.Y. Nov. 15, 2011) (acknowledging abrogation); see
also Abney v. Augustine, No. 5:12-cv-19, 2012 WL 5199602,
at *2 (N.D. Fla. June 11, 2012) (same). We agree.
Rivera argues that the "retroactive aspects" of
the 2004 and 2009 DLRAs "place New York outside the ambit
of the McNeill decision." Appellant's Br. 13. As those
retroactive aspects do not apply here and do not reduce the
"maximum sentence applicable" to Rivera's prior drug
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conviction, we conclude that McNeill applies squarely to
this case.
Applying McNeill, we hold that Rivera's prior drug
conviction counts as a predicate "serious drug offense"
under ACCA. We refer, as we must, to the fifteen-year
maximum term of imprisonment applicable to Rivera's state
law drug offense in 2000, the time he was convicted for
that offense. See McNeill, 131 S. Ct. at 2224. Coupled
with the pair of violent felonies (robbery and attempted
assault), Rivera's criminal record included three ACCA
predicate felonies. Thus, the district court did not err
by imposing the sentencing enhancement and, therefore,
properly denied Rivera's motion for relief under 28 U.S.C.
§ 2255. See Rivera, 2011 WL 5858089, at *3.
CONCLUSION
Accordingly, we AFFIRM the district court's denial
of Rivera's motion under 28 U.S.C. § 2255.
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