22-1098 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 “SUMMARY 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 21st day of December, two thousand twenty-three.

PRESENT:

JOHN M. WALKER, JR., REENA RAGGI, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1098

JAIME RIVERA,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: Matthew B. Larsen, Assistant Federal Defender, Federal Defenders of New York, Appeals Bureau, New York, NY.

For Appellee: Susan Corkery, Mark E. Misorek, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

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

District of New York (Denis R. Hurley, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the May 10, 2022 judgment of the district

court is AFFIRMED.

Jaime Rivera appeals from a judgment of the district court sentencing him

to 220 months in prison and 5 years of supervised release following his guilty plea

to firearm-related murder, in violation of

(j)(1). Rivera’s

section 924(j)(1) conviction was predicated on a state-law murder statute, New

York Penal Law § 125.25(1), and his sole argument on appeal is that murder under

New York law is not a “crime of violence” for purposes of section 924(j)(1) because

it can be committed by a culpable omission.

2 Because Rivera raises this issue for the first time on appeal, we review for

plain error. See United States v. Wernick,

(2d Cir. 2012). Under the

plain-error standard, we have the discretion to correct an error not raised before

the district court if there is “(1) [an] ‘error,’ (2) that is ‘plain,’ . . . (3) that ‘affects

substantial rights,’ [and] (4) [that] seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Johnson v. United States,

(1997) (alterations omitted) (quoting United States v. Olano,

(1993)). We find no such error in the district court’s judgment.

Under the law of this Circuit, first-degree manslaughter under New York

Penal Law § 125.20(1) is categorically a “crime of violence” under the Armed

Career Criminal Act,

(e)(2)(B)(i), and the Career Offender

Sentencing Guideline, U.S.S.G. § 4B1.2(a)(1). United States v. Scott,

, 99–

101 (2d Cir. 2021) (en banc), cert. denied,

(2022). That is because,

“whether a defendant acts by commission or omission, in every instance, it is his

intentional use of physical force against the person of another that causes death.”

. For that same reason, this Court has already held that murder in the

second degree under New York Penal Law § 125.25(1) – whether committed by an

affirmative act or omission – is categorically a “crime of violence” under

3 section 924(c). Stone v. United States,

, 832–33 (2d Cir. 2022), cert. denied,

(2022). That holding controls here so that we summarily reiterate

that New York second-degree murder necessarily involves the use of force and is

a “crime of violence” under the elements clause of section 924(c).

(c)(3)(A) (defining “crime of violence” as a felony that “has as an element the

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

property of another”).

Rivera does not dispute this conclusion and acknowledges that his

arguments on appeal are foreclosed by our precedents in Scott and Stone.

See Rivera Br. at 5. He brings this appeal only because “he intends to seek Supreme

Court review” given what he perceives as a circuit split on this issue.

That is

certainly his prerogative. Nevertheless, unless the Supreme Court or an en banc

panel of this Court overturns those precedents, we are – as Rivera himself

concedes – “bound by Scott and Stone to affirm Rivera’s conviction.”

.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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