United States v. Rivera-Rivera
| Decision Date | 10 March 2020 |
| Docket Number | CASE No. 09-cr-165-53 (RAM) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANGEL LUIS RIVERA-RIVERA (53) Defendants |
| Court | U.S. District Court — District of Puerto Rico |
This matter comes before the Court on Defendant Angel Luis Rivera-Rivera's Motion for Release Pending Appeal (Docket No. 5249) and Motion for Release Pending Appeal Without Opposition (Docket No. 5289) (collectively, "Motions for Release"). The Motions for Release are DENIED because the Court finds that Defendant Angel Luis Rivera-Rivera ("Defendant or Rivera-Rivera") did not raise a substantial question of law or fact likely to result in reversal of the Sentence upon revocation of supervised release ("the Sentence") imposed by the prior District Judge. Defendant did not preserve his claim of procedural error for appeal and, in any event, any error was harmless because the Sentence imposed by another Judge in this District was not substantively unreasonable.
On October 22, 2012, Defendant Rivera-Rivera pled guilty to Count One of the Indictment, which charged a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846, and 860 (Conspiracy to Distribute Narcotic Controlled Substances). (Docket Nos. 2179 and 2180). On May 13, 2013, he was sentenced to sixty-three (63) months of imprisonment and, upon release from imprisonment, a supervised release term of eight (8) years. (Docket No. 2356). Defendant Rivera began his supervised release term of eight (8) years on October 20, 2014. (Docket No. 5061).
On September 10, 2018, the Probation Officer filed a Motion Notifying Violations to Conditions of Supervised Release and Requesting the Issuance of an Arrest Warrant. Id. The Motion stated that Defendant Rivera-Rivera had violated the following conditions of release: (a) "[t]he defendant shall not commit another federal, state or local crime;"(b)"[t]he defendant shall not unlawfully possess a controlled substance"; (c) "the defendant shall report to the probation officer"; and (d) "the defendant shall notify the [probation] officer within seventy-two hours of being [arrested] or [questioned] by a law enforcement officer." Id. The first two (2) conditions were mandatory, whereas the last two (2) were standard conditions.
A final revocation hearing was held before the Honorable Carmen C. Cerezo, U.S. District Judge, on March 29, 2019. (Docket No. 5196). Defendant was represented by an Assistant Federal Public Defender. Id. at 1. He did not contest any of the violations. Id. After hearing the parties, Judge Cerezo determined that he had committed a Grade "A" violation of the conditions of supervised release and imposed a term of imprisonment of twenty-one (21) months to be served consecutive to the sentence imposed by the Court of First Instance of the Commonwealth of Puerto Rico in Case No. KSC2018G0295. (Docket No. 5131 at 2). Judge Cerezo also imposed a supervised release term of two (2) years, imposed special conditions and advised Defendant of his right to appeal. Id. at 3. At no point during the final revocation hearing did Defendant's counsel specifically object to the District Court's finding of Grade "A" violations. (Docket No. 5196). Instead, Defendant's counsel merely made a general objection to the sentence on revocation which is quoted below. Id. at 18.
Defendant Rivera-Rivera filed a Notice of Appeal to the First Circuit on April 2, 2019. (Docket No. 5132). He filed his brief on the merits before the First Circuit on or about January 25, 2020. (Docket No. 5249-1). On January 27, 2020, Defendant filed his Motion for Release Pending Appeal arguing that his appeal raises a substantial question of law likely to result in reversal or a "reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." (Docket No. 5249 at 3) (quoting 18 U.S.C. § 3143(b)(1)). On March 2, 2020, he also filed a Motion for Release Pending Appeal Without Opposition (Docket No. 5289).
According to Defendant Rivera-Rivera:
Thus, Defendant contends that he committed Class "B" violations with a guideline range of six (6) to twelve (12) months of imprisonment rather than the fifteen (15) to twenty-one (21) months range for Class "A" violations. Id. at 7. He concludes that Judge Cerezo committed a serious procedural error that requires remand. Id.
Defendant's arguments are cogent and unopposed, but they do not carry the day. He did not preserve his claims of procedural error for appeal and the sentence imposed by Judge Cerezo on May 13, 2013 is not substantively unreasonable considering the provisions in 18 U.S.C. § 3583 and the evidence on record regarding the sentencing factors in 18 U.S.C. § 3553. Thus, as discussed below, any error was likely harmless.
II. STANDARD GOVERNING RELEASE PENDING APPEAL
There exists no federal constitutional right to be free pending an appeal. Instead, the standard of bail pending appeal is dictated by the Bail Reform Act of 1984. See 18 U.S.C. § 3143(b)(1). Under this standard, "there is no presumption in favor of release pending appeal." United States v. Vazquez-Botet, 2007 WL 316438, at *1 (D.P.R. 2007) (quoting United States v. Colon-Muñoz, 292 F.3d 18, 20 (1st Cir. 2002)). The Bail Reform Act further provides that a judicial officer shall detain a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari. See 18 U.S.C. § 3143(b)(1). This is required unless the officer encounters either of the following scenarios:
Defendants have the burden of proof in their requests for bail on appeal. United States v. Muñoz Franco, 356 F. Supp. 2d 20, 39 (D.P.R. 2005) (citation omitted).
Most notably, this "likely to result" standard does not mean that the District Court must "conclude that it is likely to be reversed by the Court of Appeals." United States v. Fournier-Olavarria, 796 F. Supp. 2d 285 (D.P.R. 2011) (quotation omitted). Instead, the standard is applied flexibly. See United States v. Colon-Muñoz, 292 F.3d 18, 20 (1st Cir. 2002). By presenting "a close question or one that very well could be decided the other way," defendants surpass the "likely to result" standard. United States v. Bravo-Fernández, 320 F. Supp. 3d 321, 324 (D.P.R. 2018) (quoting United States v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017)).
On a final note, a party may not raise in a bail request or on appeal arguments not raised below. See United States v. Bayko, 774 F.2d 516, 518 (citation omitted). A court may also not review objections which might have been raised below but were not properly preserved for appeal. See United States v. Soto-Soto, 855 F.3d 445, n.1 (1st Cir. 2017); United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994). In those scenarios, the Court would then only have discretion to review for plain error under Fed. R. Crim. P. 52(a). Under this benchmark, the Court will reverse only if a defendant shows: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Taylor, 845 F.3d 458, 460 (1st Cir. 2017) (quoting United States v. Figueroa, 404 F.3d 537, 540 (1st Cir. 2005)).
III. DISCUSSION
At the end of Final Revocation hearing, Defendant Rivera-Rivera's counsel lodged this solitary objection:
Just on behalf of Mr. Rivera, and for purposes of preserving his appeals rights, we just want the Court to note our objection to the sentence on revocation, Your honor. (Docket No. 5196 at 18).
Per First Circuit case law, "[a] general objection to the procedural reasonableness of a sentence is not sufficient to preserve a specific challenge to any of the sentencing court's particularized findings." Soto-Soto, 855 F.3d at 445, n.1. Moreover, "[t]o preserve a claim of error for appellate review, an objection must be sufficiently specific to call the district court's attention to the asserted error." Id. (emphasis added). For example, recently the First Circuit held in United States v. Colón-Maldonado, that defendant properly preserved his objections below, warranting review on appeal. See United States v. Colón-Maldonado, 2020 WL 1081661, at *4 (1st Cir. 2020). There, defendant had...
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