United States v. Rivera

15-4141-cr
United States v. Rivera
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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of January, two thousand seventeen.
PRESENT:
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges,
VICTOR A. BOLDEN,*
District Judge.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15-4141-cr
REINALDO ENRIQUE RIVERA,
Defendant-Appellant,
SAMUEL APONTE-VEGA, AKA Sammy, FRANK RIVERA, AKA Frankie, ROBERTO COTTO, AKA
Chino, GLADYS RODRIGUEZ, AKA Tatita, WILLIAM R. AYALA, AKA Compy, HECTOR VILLANUEVA,
MARTIN ROSARIO, GEORGE L. HADDOCK, RIGOBERTO LA MADRID, AKA Rico, JESUS M. CRUZ,
Defendants.
*
Judge Victor A. Bolden, of the United States District Court for the District of Connecticut, sitting
by designation.
_____________________________________
For Appellee: BENET J. KEARNEY AND BRIAN R. BLAIS,
Assistant United States Attorneys, for Preet
Bharara, United States Attorney for the
Southern District of New York.
For Defendant-Appellant: YUANCHUNG LEE, Assistant Federal Public
Defender, Federal Defenders of New York,
Inc.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Duffy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the case is REMANDED.
Defendant-Appellant Reinaldo Rivera appeals from an order of the United States District
Court for the Southern District of New York (Duffy, J.), granting, in part, his motion for a sentence
reduction. Rivera was originally sentenced to a term of life imprisonment for various drug related
offenses, including engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. §
848(a). Following the amendment of § 2D1.1(c) to the United States Sentencing Guidelines
(“U.S.S.G.”) on November 1, 2014, reducing the base offense level for offenses involving controlled
substances, see U.S.S.G. § 2D1.1(c); U.S.S.G. Supp. App. C, Amend. 782, Rivera moved pursuant to
18 U.S.C. § 3582(c)(2) for a reduction in his sentence. Because the amendment to § 2D1.1(c)
functioned to reduce his total offense level by two levels, Rivera sought to be resentenced to a term
of 360 months based on the new, reduced Guidelines range of 360 months to life. On December
22, 2015, the district court granted the motion, reducing Rivera’s sentence from life, but only to 420
months’ imprisonment. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
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On appeal, Rivera’s principal contention is that that the district court erred in sentencing him
to 420 months’ imprisonment because it mistakenly concluded that he was subject to a 30-year—
rather than 20-year— mandatory minimum for the CCE conviction. The Government concedes
that the district court erred in calculating the mandatory minimum but nonetheless argues that such
error did not affect Rivera’s substantial rights in that the court would have imposed the same
sentence regardless. We disagree because we cannot conclude from this record, however, that the
district court would have imposed the same sentence absent the error.
This Court reviews de novo whether a defendant is eligible for a sentence reduction. United
States v. Main, 579 F.3d 200, 202–03 (2d Cir. 2009). We review a denial of a motion to reduce a
defendant’s sentence under § 3582(c)(2) for abuse of discretion, United States v. Borden, 564 F.3d 100,
104 (2d Cir. 2009), noting that the Government does not dispute Rivera’s eligibility for a reduction.
When, as here, a defendant fails to object to an alleged sentencing error before the district court, we
review for plain error. United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). An appellate
court may, in its discretion, correct a plain error where “the appellant demonstrates that (1) there is
an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error
‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome
of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in
original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). The dispositive issue is thus
whether the application of an incorrect mandatory minimum in determining Rivera’s new sentence
constitutes plain error warranting remand. We conclude that it does.
Under 21 U.S.C. § 848(a) a defendant who engages in a continuing criminal enterprise “shall
be sentenced to a term of imprisonment which may not be less than 20 years and which may be up
to life imprisonment.” Section 848(a) further provides that if a defendant “engages in such activity
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after one or more prior convictions of him under this section have become final, he shall be
sentenced to a term of imprisonment which may not be less than 30 years and which may be up to
life imprisonment . . . .” Here, it is undisputed that the mandatory minimum applicable to Rivera’s
CCE conviction is only 20 years—not 30—because he has no prior convictions under § 848(a). The
district court, therefore, erred in concluding that Rivera faced a mandatory minimum of 30 years for
the CCE conviction.
In order to affect a defendant’s substantial rights, as required for a finding of plain error, “an
error in calculating the mandatory minimum must have made a difference in the defendant’s
sentence.” United States v. Sanchez, 773 F.3d 389, 392 (2d Cir. 2014). The application of the wrong
mandatory minimum when sentencing a defendant may be deemed plain error where the record
does not clearly demonstrate that the district court would have arrived at the same sentence absent
the miscalculation. Cf. Williams v. United States, 503 U.S. 193, 203 (1992) (“[I]n determining whether
a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court
would have imposed the same sentence had it not relied upon the invalid factor or factors.”); Molina-
Martinez v. United States, 136 S. Ct. 1338, 1347–48 (2016) (recognizing that “there [was] at least a
reasonable probability that the District Court would have imposed a different sentence” absent the
miscalculated Guidelines range when the court “said nothing to suggest that it would have imposed
[the same] sentence regardless of the Guidelines range”). To determine whether the district court’s
erroneously-calculated mandatory minimum affected Rivera’s sentence, we look to the “record as a
whole.” Sanchez, 773 F.3d at 392.
Relying primarily on United States v. Deandrade, the Government contends that because the
district court merely noted the mandatory minimum for Rivera’s CCE conviction—albeit
incorrectly—and otherwise imposed a sentence of 420 months (60 months greater than the correct
minimum), application of the mandatory minimum did not influence the sentenced imposed. United
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States v. Deandrade, 600 F.3d 115, 120 (2d. Cir. 2010) (concluding that the district court’s erroneously-
calculated mandatory minimum did not make a difference to the sentence because the defendant’s
Guidelines’ range was well above the mandatory minimum and the district court specifically stated
that it was imposing a sentence that was “greater than 20 years without regard to the mandatory
minimum”). Unlike Deandrade, in which the mandatory minimum was specifically noted by the district
court as irrelevant to the sentence imposed, here the district court did not explicitly disclaim reliance
on the mandatory minimum. Rather, the record indicates that the court operated on the flawed
conclusion that the mandatory minimum was 30 years. The court stated that the mandatory
minimum for Rivera’s CCE conviction was 30 years and explained that in light of Rivera’s criminal
history and the large amount of heroin involved in the underlying conspiracy, 420 months’
incarceration was appropriate. The mere fact that Rivera’s sentence was greater than the correct
mandatory minimum will not, without more, suffice to show that the district court would have
reached the same conclusion regardless of the error. Based on the record before us, we are not
convinced that that the error did not influence Rivera’s sentence. Cf. Sanchez, 773 F.3d at 392–93
(holding that where sentencing court did not mention the mandatory minimum but considered both
parties’ arguments which relied on a miscalculated mandatory minimum, the “error in calculating the
mandatory minimum did affect Sanchez’s sentence”). The district court’s application of an
erroneous mandatory minimum accordingly affected Rivera’s substantial rights, and remand is
appropriate so that this error can be corrected.
The district court, now cognizant of the correct mandatory minimum sentence to which
Rivera was subject, may determine whether it would have imposed a different sentence had it been
aware of the correct information. If it determines it would have imposed a different sentence, it
should vacate the present sentence and resentence Rivera to the sentence it would have imposed.
Cf. United States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005) (“[W]ithout requiring alteration of
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Crosby's sentence, we will remand the case to the District Court so that [it] may consider, based on
the circumstances at the time of the original sentence, whether to resentence, after considering the
currently applicable statutory requirements as explicated in Booker/Fanfan and this opinion.”).
We decline to address Rivera’s remaining arguments for vacatur because we conclude that
remand is warranted for the reasons previously explained. We therefore REMAND the case for
further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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