    15-4141-cr
    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 ASUMMARY 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 18th day of January, two thousand seventeen.

    PRESENT:
                    PETER W. HALL,
                    CHRISTOPHER F. DRONEY,
                               Circuit Judges,
                    VICTOR A. BOLDEN,*
                               District Judge.

    _____________________________________

    UNITED STATES OF AMERICA,

                              Appellee,

                    v.                                                            15-4141-cr

    REINALDO ENRIQUE RIVERA,

                              Defendant-Appellant,

    SAMUEL APONTE-VEGA, AKA Sammy, FRANK RIVERA, AKA Frankie, ROBERTO COTTO, AKA
    Chino, GLADYS RODRIGUEZ, AKA Tatita, WILLIAM R. AYALA, AKA Compy, HECTOR VILLANUEVA,
    MARTIN ROSARIO, GEORGE L. HADDOCK, RIGOBERTO LA MADRID, AKA Rico, JESUS M. CRUZ,

                              Defendants.

    *
     Judge Victor A. Bolden, of the United States District Court for the District of Connecticut, sitting
    by designation.
_____________________________________

For Appellee:                                         BENET J. KEARNEY AND BRIAN R. BLAIS,
                                                      Assistant United States Attorneys, for Preet
                                                      Bharara, United States Attorney for the
                                                      Southern District of New York.

For Defendant-Appellant:                              YUANCHUNG LEE, Assistant Federal Public
                                                      Defender, Federal Defenders of New York,
                                                      Inc.

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

New York (Duffy, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the case is REMANDED.

          Defendant-Appellant Reinaldo Rivera appeals from an order of the United States District

Court for the Southern District of New York (Duffy, J.), granting, in part, his motion for a sentence

reduction. Rivera was originally sentenced to a term of life imprisonment for various drug related

offenses, including engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. §

848(a).    Following the amendment of § 2D1.1(c) to the United States Sentencing Guidelines

(“U.S.S.G.”) on November 1, 2014, reducing the base offense level for offenses involving controlled

substances, see U.S.S.G. § 2D1.1(c); U.S.S.G. Supp. App. C, Amend. 782, Rivera moved pursuant to

18 U.S.C. § 3582(c)(2) for a reduction in his sentence. Because the amendment to § 2D1.1(c)

functioned to reduce his total offense level by two levels, Rivera sought to be resentenced to a term

of 360 months based on the new, reduced Guidelines range of 360 months to life. On December

22, 2015, the district court granted the motion, reducing Rivera’s sentence from life, but only to 420

months’ imprisonment. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.



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        On appeal, Rivera’s principal contention is that that the district court erred in sentencing him

to 420 months’ imprisonment because it mistakenly concluded that he was subject to a 30-year—

rather than 20-year— mandatory minimum for the CCE conviction. The Government concedes

that the district court erred in calculating the mandatory minimum but nonetheless argues that such

error did not affect Rivera’s substantial rights in that the court would have imposed the same

sentence regardless. We disagree because we cannot conclude from this record, however, that the

district court would have imposed the same sentence absent the error.

        This Court reviews de novo whether a defendant is eligible for a sentence reduction. United

States v. Main, 579 F.3d 200, 202–03 (2d Cir. 2009). We review a denial of a motion to reduce a

defendant’s sentence under § 3582(c)(2) for abuse of discretion, United States v. Borden, 564 F.3d 100,

104 (2d Cir. 2009), noting that the Government does not dispute Rivera’s eligibility for a reduction.

When, as here, a defendant fails to object to an alleged sentencing error before the district court, we

review for plain error. United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). An appellate

court may, in its discretion, correct a plain error where “the appellant demonstrates that (1) there is

an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error

‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome

of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Marcus, 560 U.S. 258, 262 (2010) (alteration in

original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). The dispositive issue is thus

whether the application of an incorrect mandatory minimum in determining Rivera’s new sentence

constitutes plain error warranting remand. We conclude that it does.

        Under 21 U.S.C. § 848(a) a defendant who engages in a continuing criminal enterprise “shall

be sentenced to a term of imprisonment which may not be less than 20 years and which may be up

to life imprisonment.” Section 848(a) further provides that if a defendant “engages in such activity
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after one or more prior convictions of him under this section have become final, he shall be

sentenced to a term of imprisonment which may not be less than 30 years and which may be up to

life imprisonment . . . .” Here, it is undisputed that the mandatory minimum applicable to Rivera’s

CCE conviction is only 20 years—not 30—because he has no prior convictions under § 848(a). The

district court, therefore, erred in concluding that Rivera faced a mandatory minimum of 30 years for

the CCE conviction.

        In order to affect a defendant’s substantial rights, as required for a finding of plain error, “an

error in calculating the mandatory minimum must have made a difference in the defendant’s

sentence.” United States v. Sanchez, 773 F.3d 389, 392 (2d Cir. 2014). The application of the wrong

mandatory minimum when sentencing a defendant may be deemed plain error where the record

does not clearly demonstrate that the district court would have arrived at the same sentence absent

the miscalculation. Cf. Williams v. United States, 503 U.S. 193, 203 (1992) (“[I]n determining whether

a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court

would have imposed the same sentence had it not relied upon the invalid factor or factors.”); Molina-

Martinez v. United States, 136 S.Ct. 1338, 1347–48 (2016) (recognizing that “there [was] at least a

reasonable probability that the District Court would have imposed a different sentence” absent the

miscalculated Guidelines range when the court “said nothing to suggest that it would have imposed

[the same] sentence regardless of the Guidelines range”). To determine whether the district court’s

erroneously-calculated mandatory minimum affected Rivera’s sentence, we look to the “record as a

whole.” Sanchez, 773 F.3d at 392.

        Relying primarily on United States v. Deandrade, the Government contends that because the

district court merely noted the mandatory minimum for Rivera’s CCE conviction—albeit

incorrectly—and otherwise imposed a sentence of 420 months (60 months greater than the correct

minimum), application of the mandatory minimum did not influence the sentenced imposed. United
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States v. Deandrade, 600 F.3d 115, 120 (2d. Cir. 2010) (concluding that the district court’s erroneously-

calculated mandatory minimum did not make a difference to the sentence because the defendant’s

Guidelines’ range was well above the mandatory minimum and the district court specifically stated

that it was imposing a sentence that was “greater than 20 years without regard to the mandatory

minimum”). Unlike Deandrade, in which the mandatory minimum was specifically noted by the district

court as irrelevant to the sentence imposed, here the district court did not explicitly disclaim reliance

on the mandatory minimum. Rather, the record indicates that the court operated on the flawed

conclusion that the mandatory minimum was 30 years. The court stated that the mandatory

minimum for Rivera’s CCE conviction was 30 years and explained that in light of Rivera’s criminal

history and the large amount of heroin involved in the underlying conspiracy, 420 months’

incarceration was appropriate. The mere fact that Rivera’s sentence was greater than the correct

mandatory minimum will not, without more, suffice to show that the district court would have

reached the same conclusion regardless of the error. Based on the record before us, we are not

convinced that that the error did not influence Rivera’s sentence. Cf. Sanchez, 773 F.3d at 392–93

(holding that where sentencing court did not mention the mandatory minimum but considered both

parties’ arguments which relied on a miscalculated mandatory minimum, the “error in calculating the

mandatory minimum did affect Sanchez’s sentence”). The district court’s application of an

erroneous mandatory minimum accordingly affected Rivera’s substantial rights, and remand is

appropriate so that this error can be corrected.

        The district court, now cognizant of the correct mandatory minimum sentence to which

Rivera was subject, may determine whether it would have imposed a different sentence had it been

aware of the correct information. If it determines it would have imposed a different sentence, it

should vacate the present sentence and resentence Rivera to the sentence it would have imposed.

Cf. United States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005) (“[W]ithout requiring alteration of
                                                     5
Crosby's sentence, we will remand the case to the District Court so that [it] may consider, based on

the circumstances at the time of the original sentence, whether to resentence, after considering the

currently applicable statutory requirements as explicated in Booker/Fanfan and this opinion.”).

        We decline to address Rivera’s remaining arguments for vacatur because we conclude that

remand is warranted for the reasons previously explained. We therefore REMAND the case for

further proceedings consistent with this order.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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