U.S. v. Rivera, 03-1401.

• Decision Date: 22 July 2004
• Docket Number: No. 03-1401.,03-1401.
• Citation: 376 F.3d 86
• Parties: UNITED STATES of America, Appellee, v. George RIVERA, also known as Boy George, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 86

376 F.3d 86

UNITED STATES of America, Appellee, v. George RIVERA, also known as Boy George, Defendant-Appellant.

No. 03-1401.

United States Court of Appeals, Second Circuit.

Argued: February 20, 2004.

Decided: July 22, 2004.

Appeal from the United States District Court for the Southern District of New York, Shirley Wohl Kram, J Helen V. Cantwell, Assistant United States Attorney, New York, NY (James B. Comey, United States Attorney for the Southern District of New York, Marc L. Mukasey, Assistant United States Attorney, New York, NY, on the brief), for Appellee.

Cheryl J. Sturm, Chadds Ford, PA, for Defendant-Appellant.

Before: OAKES, KEARSE, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge.

Defendant George Rivera, sentenced in 1991 to, inter alia, life imprisonment, to be followed by a five-year term of supervised release, for his convictions of conspiracy to distribute heroin and attempted income tax evasion, appeals from an order of the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, denying his motion pursuant to Fed.R.Crim.P. 35 (1985) for a correction of his sentence on the ground that the sentence was illegal in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied his motion on the grounds (a) that the version of Rule 35 that became effective on November 1, 1987 ("1988 version"), and remained in effect when Rivera was sentenced in April 1991, did not permit a district court to correct a sentence except on a remand by the court of appeals following a finding of error, which had not occurred in this case; and (b) that Rivera's motion was in effect a collateral attack on his conviction, and because it was his second or successive such attack it could not be filed without permission from the court of appeals, which had not been obtained. On this appeal, Rivera contends principally that the 1988 version of Rule 35 could not properly be applied to him in light of Apprendi, and hence the court could correct his sentence "at any time," Fed.R.Crim.P. 35 (1985); that the sentence imposed on him was illegal in light of Apprendi; and that his motion was timely because a Rule 35 motion is not a collateral attack but rather is a continuation of the process of direct appeal from the conviction. For the reasons that follow, we affirm the order of the district court.

I. BACKGROUND

Rivera was arrested in May 1989 following an investigation into a narcotics trafficking operation. The factual background of the prosecution and the evidence presented at trial are detailed in United States v. Rivera, 971 F.2d 876, 880-82 (2d Cir.1992) ("Rivera I").

A. Rivera's Conviction and Sentence

Rivera was charged in a June 1990 superseding indictment ("indictment") in a total of 14 counts relating to his alleged leadership of the narcotics distribution organization. Count One alleged that, in violation of 21 U.S.C. § 846, Rivera had participated in a conspiracy to distribute more than one kilogram of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A), and that the conspiracy had begun in or about April 1987 and had continued to the date of the indictment. Count Fourteen alleged that Rivera had attempted to evade income tax on substantial income received in 1988, in violation of 26 U.S.C. § 7201. At trial, the jury, although unable to reach verdicts on the other counts, returned verdicts of guilty on Count One, finding that the conspiracy involved one kilogram or more of heroin, and Count Fourteen.

The United States Sentencing Guidelines ("Guidelines") had become effective on November 1, 1987. The district court found that a preponderance of the evidence presented at Rivera's trial, including his organization's own records, established that the conspiracy had been in existence from September 1987 until Rivera's arrest in May 1989. "Straddle crimes," i.e., continuing offenses that began before the effective date of the Guidelines and continued after that date, are subject to the Guidelines. See, e.g., United States v. Story, 891 F.2d 988, 993-96 (2d Cir.1989). Accordingly, the presentence report on Rivera ("PSR") calculated his recommended narcotics conspiracy sentence, as well as his recommended tax evasion sentence, under the Guidelines. The PSR calculated that more than 100 kilograms of heroin were involved in the conspiracy and that that quantity, along with other Guidelines adjustments, made Rivera's total offense level 44. Given Rivera's criminal history category of I, the Guidelines-recommended sentence was life imprisonment. Rivera did not contend that the Guidelines were inapplicable to his offenses but only that, for various reasons, a lower Guidelines range than that recommended by the PSR was appropriate.

The district court, in calculating Rivera's offense level under the Guidelines, found by a preponderance of the trial evidence that, from September 1987 to May 1989, the total quantity of heroin involved in the conspiracy exceeded 100 kilograms. Accepting the PSR recommendations, the court sentenced Rivera on April 24, 1991, principally to life imprisonment (without possibility of parole), to be followed by a five-year term of supervised release.

On his direct appeal, Rivera made various challenges to his conviction, complaining of the prosecutor's summation and several evidentiary and procedural rulings by the trial court. See Rivera I, 971 F.2d at 882. He did not challenge his sentence or contend that he should not have been sentenced under the Guidelines.

B. Rivera's Ensuing Motions

Following Rivera I and prior to the present motion, Rivera made several motions seeking various forms of relief, all of which were denied. They included a motion in the district court in 1994 pursuant to 28 U.S.C. § 2255 to vacate his conviction on grounds relating to jury selection; a motion in the district court in 2001 seeking reduction of his sentence via the application to him of a then-recent amendment to the Guidelines; and an application in this Court in 2001 for permission to file a second or successive § 2255 motion in which he alleged that his conviction violated the principle announced in Apprendi. Rivera's motion for leave to file a second or successive § 2255 motion was denied on the ground that, whether viewed as a first or second § 2255 motion, Apprendi would not apply retroactively to his case. See Rivera v. United States, No. 01-3559 (2d Cir. June 5, 2003) (citing Coleman v. United States, 329 F.3d 77 (2d Cir.2003), and Forbes v. United States, 262 F.3d 143, 146 (2d Cir.2001) (per curiam)). It does not appear that any of Rivera's motions suggested that the Guidelines were in any way inapplicable to him.

C. The Present Rule 35 Motion

In January 2003, Rivera, invoking the version of Fed.R.Crim.P. 35 that was in effect until November 1, 1987, which provided that the district court "may correct an illegal sentence at any time," Fed.R.Crim.P. 35 (1985) ("1985 version") (emphasis added), moved for a correction of his sentence for the heroin conspiracy offense, arguing that the sentence imposed on him in 1991 was illegal in light of Apprendi because the jury had not made a finding that the conspiracy continued to exist on or after November 1, 1987. He contended that, in at least two respects, the punishment prescribed for a conspiracy that ended before November 1987 was less severe than for one that continued thereafter. First, a federal prisoner serving a sentence of life imprisonment for a pre-November-1987 offense was eligible for parole after 10 years, see 18 U.S.C. § 4205(a), repealed by Sentencing Reform Act of 1984 ("1984 Act"), Pub.L. No. 98-473, tit. II, ch. 2, § 218(a), 98 Stat.1987, 2027; Rivera argued that the 1984 Act, which generally abolished parole for federal offenses, does not apply to "crimes committed" before November 1, 1987 (Rivera brief on appeal at 20). But see 1984 Act, Pub.L. No. 98-473, § 235(b)(1)(A), 98 Stat.2032 (delaying effectiveness of the abolition of parole not for an individual who, before the effective date of the statute (i.e., November 1, 1987), merely committed an offense, but rather for an individual who, before that date, was "convicted" of an offense). Second, he argued that the sentence for a § 846 conspiracy committed prior to November 18, 1988, could not require supervised release or any comparable supervision because supervised release, which was applicable to substantive narcotics offenses, was not made applicable to § 846 conspiracy offenses until November 18, 1988, see Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, 102 Stat. 4377; United States v. Melendez, 996 F.2d 605, 606 (2d Cir.1993), and the imposition of "special parole," the predecessor of supervised release, see 21 U.S.C. §§ 841(b) and (c) (1982), amended by Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1004, 100 Stat. 3207, 3207-6, was not authorized for a § 846 conspiracy, see Bifulco v. United States, 447 U.S. 381, 400-01, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).

Rivera contended that because these penalty increases would not be applicable to a conspiracy that had ceased to exist prior to November 1, 1987 (or prior to November 18, 1988, insofar as supervised release is concerned), the date of termination of the conspiracy was an element of that offense. He argued that under Apprendi, therefore, the date of the conspiracy's termination was a fact required to be found by the jury. Instead, the jury had been instructed that

[w]hile the indictment charges that the conspiracy began in or around April 1987, up to and including the date of the filing of the indictment which took place in June of 1990, it is not essential that the government prove that the conspiracy started and ended on those or any other specific date or dates.

It is sufficient if you find that in fact a conspiracy was formed and existed for some time within the period set forth in the indictment....