662 F.3d 166 (2nd Cir. 2011), 10-1199-cr, United States v. Rivera

Docket Nº:Docket 10-1199-cr.
Citation:662 F.3d 166
Opinion Judge:JOHN GLEESON, District Judge:
Party Name:UNITED STATES of America, Appellee, v. Gilberto RIVERA, a/k/a Junco, Defendant-Appellant.
Attorney:Gary D. Weinberger, Assistant Federal Defender (Thomas McCudden, Research and Writing Attorney, on the brief), for Thomas G. Dennis, Federal Defender, Hartford, CT, for Defendant-Appellant. Harold H. Chen, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on th...
Judge Panel:Before: KATZMANN, CHIN, Circuit Judges, and GLEESON, District Judge. [*] Judge KATZMANN concurs in a separate opinion. KATZMANN, Circuit Judge, concurring:
Case Date:October 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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662 F.3d 166 (2nd Cir. 2011)

UNITED STATES of America, Appellee,


Gilberto RIVERA, a/k/a Junco, Defendant-Appellant.

Docket No. 10-1199-cr.

United States Court of Appeals, Second Circuit.

October 21, 2011

Submitted: March 18, 2011.

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Gary D. Weinberger, Assistant Federal Defender (Thomas McCudden, Research and Writing Attorney, on the brief), for Thomas G. Dennis, Federal Defender, Hartford, CT, for Defendant-Appellant.

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Harold H. Chen, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, on the brief), for David B. Fein, United States Attorney, District of Connecticut, New Haven, CT, for Appellee.

Before: KATZMANN, CHIN, Circuit Judges, and GLEESON, District Judge. [*]

Judge KATZMANN concurs in a separate opinion.

JOHN GLEESON, District Judge:

Gilberto Rivera is a crack cocaine offender who was convicted after trial and sentenced in 1996 to a 292-month term of imprisonment. On January 14, 2008, Rivera filed a motion in the United States District Court for the District of Connecticut pursuant to 18 U.S.C. § 3582(c)(2) seeking a reduction of his sentence. Specifically, Rivera sought to benefit from the 2007 decisions by the United States Sentencing Commission (the " Commission" ) to (a) reduce the sentences for offenses involving crack and (b) make the reductions retroactive. The district court denied the motion on the ground that Rivera was not eligible for a sentence reduction. Rivera filed this appeal, and we now reverse. Rivera was indeed eligible for a reduction, and we remand the case to the district court for a determination of whether he should receive one.


A. Rivera's Sentence

1. The Calculation of the Guidelines Range

Rivera's offense involved approximately 3.3 kilograms of crack cocaine. The highest base offense level prescribed by the drug quantity table— Level 38— applied at the time of his sentencing to all crack offenses involving 1.5 kilograms or more of crack. U.S. Sentencing Guidelines Manual (" U.S.S.G." or the " Guidelines" ) § 2D1.1(c)(1) (1996). Thus, Rivera's base offense level was 38, to which there were no adjustments. As for criminal history, Rivera's prior convictions earned him sufficient points under U.S.S.G. § 4A1.1 to place him in Criminal History Category (" CHC" ) IV. The applicable range under the offense guideline was therefore 324-405 months.

However, the nature of Rivera's convictions subjected him to treatment as a career offender under § 4B1.1.1 Career offender

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status can affect both the offense level and the CHC. With respect to the former, the career offender guideline provides that the applicable offense level is the higher of the one provided by the offense guideline and the one provided by the chart in § 4B1.1(b), which sets forth a schedule of offense levels linked to the statutory maximum sentence for the offense of conviction. Since the highest of the levels on that chart is 37, in Rivera's case the career offender guideline borrowed the offense level of 38 from the offense guideline. As for the CHC, the career offender guideline gives all career offenders a CHC of VI. U.S.S.G. § 4B1.1(b).

Thus, Rivera's career offender status affected his Guidelines range by moving him from Level 38, CHC IV, with a corresponding range of 324-405 months, to Level 38, CHC VI, where the range is 360 months to life.

2. The Sentencing Proceeding

At the sentencing on September 10, 1996, the district court (Alan H. Nevas, J. ) departed downward from the applicable range of 360 months to life. The basis for the departure was Rivera's mental health. As the sentencing court noted, the presentence report included a history of head injuries. Rivera had undergone several psychological and neuropsychological assessments to determine his competency in connection with one of his prior prosecutions, and there were strong indications that Rivera suffered from a profound cognitive disability. As a result, the court invoked its power to depart based on Rivera's mental condition, stating as follows: " [T]he court is going to depart downward three levels pursuant to [U.S.S.G. §§ ] 5H1.3 and 5K2.0. 2 The offense level is 35, the criminal history category is six, and the guideline range from the sentencing table is 292 to 365 months." Having departed downward to that range, the court then imposed a prison sentence equal to its lower end, 292 months.

B. The Motion for a Reduction of Sentence

On January 14, 2008, Rivera filed a motion to reduce his sentence pursuant to the retroactive application of the amended crack guideline. The district court denied the motion and Rivera moved for reconsideration. 3 In an unpublished opinion granting the motion for reconsideration but adhering to the initial ruling, the court held that Rivera had failed to satisfy the threshold requirement for a sentence modification, i.e., that his applicable guideline range had subsequently been lowered by the Commission. Rivera argued that the applicable range was the post-departure range, that is, the range three offense levels below his career offender range. As discussed further below, the post-departure range had been lowered by the retroactive amendment. The district judge rejected that argument. Relying on, inter alia, United States v. Darton, 595 F.3d 1191 (10th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 3444, 177 L.Ed.2d 348 (2010), and

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United States v. Tolliver, 570 F.3d 1062 (8th Cir.2009), the court held that Rivera's applicable range was the pre-departure career offender range, which had not been lowered. United States v. Rivera, No. 94-CR-112 (EBB), 2010 WL 1169767, at *2-3 (D.Conn. Mar. 25, 2010). As a result, the court concluded that Rivera was ineligible for consideration for a sentence modification. See id.

On March 31, 2010, Rivera filed a notice of appeal.


A. The Sentencing Commission's Retroactive Sentence Reductions and the Sentencing Modifications They Authorize

The Sentencing Reform Act of 1984 (" SRA" ), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987, requires the Commission to periodically review the Guidelines and to revise them as appropriate. See 28 U.S.C. § 994( o ) (2006). When the Commission amends the Guidelines to lower the sentencing range for a particular offense, it is authorized by the SRA to decide whether and to what extent previously-sentenced offenders may benefit from the change: " If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." § 994(u). As the Supreme Court recently observed, these provisions allow for correction when a particular guideline becomes " a cause of inequality, not a bulwark against it." Freeman v. United States, __ U.S. __, 131 S.Ct. 2685, 2690, 180 L.Ed.2d 519 (2011) (plurality opinion).

The Commission's exercise of this statutory authority triggers an exception to the general rule that sentencing courts are not authorized to modify sentences after they are imposed. Specifically, 18 U.S.C. § 3582(c)(2) provides that

in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994( o ), upon motion of the defendant ... or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

One of the critical issues in this case is whether Rivera's sentence was " based on" a subsequently-lowered sentence range within the meaning of § 3582(c)(2).

A retroactive amendment merely authorizes a reduction in sentence; it does not require one. In determining whether to modify a sentence, a judge must consider not only the traditional sentencing factors set forth in 18 U.S.C. § 3553(a), but also the post-sentencing behavior of the defendant and any public safety concerns a reduction in sentence would raise. U.S.S.G. § 1B1.10 cmt. n.1(B). Though a ruling granting or denying an eligible offender's request for a reduction is reviewed for abuse of discretion, United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009), an order declaring an offender ineligible for one is reviewed de novo, see United States v. McGee, 553 F.3d 225, 226 (2d Cir.2009).

Section 3582(c)(2) grants courts the authority to reduce sentences only if doing so is consistent with the Commission's applicable policy statements. The relevant policy statement in this regard is U.S.S.G. § 1B1.10, entitled " Reduction in Term of Imprisonment as a Result of Amended

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Guideline Range," which lists the amendments that the Commission has made retroactive. U.S.S.G. § 1B1.10(c). In 2007, at the same time it made the reduced sentences for crack offenses retroactive, the Commission also amended § 1B1.10 to more fully exercise the authority conferred by 28 U.S.C. § 994(u) to dictate when and by what amount an amendment may reduce previously-imposed sentences. Of importance to Rivera's case are the provisions in § 1B1.10(a) italicized below, which restrict a court's authority to reduce a sentence to cases in which a retroactive amendment has the effect of lowering the defendant's " applicable" guideline range:

(1) In General. — In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently...

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