17‐2979‐cr United States v. John 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 27th day of November, two thousand eighteen.

PRESENT: ROBERT D. SACK, REENA RAGGI, DENNY CHIN, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 17‐2979‐cr

JOHN RIVERA, Defendant‐Appellant.

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FOR APPELLEE: RYAN C. HARRIS, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: DARRELL FIELDS, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York.

Appeal from the United States District Court for the Eastern District of

New York (Vitaliano, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant John Rivera appeals the district courtʹs sentence

entered September 25, 2017. After pleading guilty to a three‐count indictment of Hobbs

Act robbery on January 20, 2017, Rivera was sentenced to 120 monthsʹ imprisonment.

Because Rivera had previously been convicted in New York of second‐degree robbery

and attempted second‐degree robbery, and in North Carolina of ʺRobbery with a

Dangerous Weapon,ʺ Rivera was given a ʺcareer offenderʺ designation pursuant to §

4B1.1(b)(3) of the November 1, 2016, edition of the sentencing guidelines (the

ʺGuidelinesʺ). Without the career offender designation, Riveraʹs total offense level

would have been 25 and his criminal history level would have been IV, for a Guideline

range of 84 to 105 months. With the designation, Riveraʹs total offense level was 29 and

his criminal history category was VI, for a Guideline range of 151 to 188 months. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

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Rivera initially argued that we should vacate his sentence because the

district court improperly applied a career offender designation under Guidelines

§ 4B1.1(b)(3), which led to a Guideline range of 151 to 188 monthsʹ imprisonment rather

than 84 to 105 monthsʹ imprisonment. Rivera argued that his New York second‐degree

robbery and attempted second‐degree robbery convictions could not properly be

considered ʺcrimes of violenceʺ for purposes of determining career offender status

under the Guidelines. Riveraʹs argument, however, is foreclosed by this Courtʹs recent

decision in United States v. Pereira‐Gomez, which held that all degrees of New York

robbery and attempted robbery qualify as crimes of violence under an identically

worded provision of the November 1, 2014, edition of the Guidelines.

(2d Cir. 2018); compare Application Note 1(B)(iii) of § 2L1.2 of the November 2014

Guidelines (defining a crime of violence to include any offense that ʺhas as an element

the use, attempted use, or threatened use of physical force against the person of

anotherʺ), with § 4B1.2(a) of the November 2016 Guidelines (defining a crime of violence

as a felony that ʺhas as an element the use, attempted use, or threatened use of physical

force against the person of anotherʺ).

We note that at the time of Riveraʹs appeal and oral argument, our

decision in Pereira‐Gomez had not yet been rendered. In a supplemental brief to this

Court following our decision in Pereira‐Gomez, Rivera concedes that ʺ[a]lthough Pereira‐

Gomez involved a different provision of the Guidelines than the one at issue here . . . ,

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the ʹforce clauseʹ language of both Guideline provisions is the sameʺ and that, therefore,

ʺ[t]here does not appear . . . to be a basis to argue that the analysis in Pereira‐Gomez is

inapplicable here.ʺ Dkt. No. 67, at 3.

We have considered Riveraʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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