11-44-cr
United States v. Rivas

                         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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5th day of June, two thousand twelve.


PRESENT:
             RALPH K. WINTER,
             DENNY CHIN,
             CHRISTOPHER F. DRONEY,
                       Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                   -v.-                                          11-44-cr

FERNANDO RIVAS,
                          Defendant-Appellant,
KENDY MATOS, MANAURI RODRIGUEZ,
                    Defendants.

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FOR APPELLEE:                 KATHERINE POLK FAILLA, Assistant
                              United States Attorney (Michael D.
                              Maimin, Assistant United States
                              Attorney, on the brief), for Preet
                              Bharara, United States Attorney for
                              the Southern District of New York,
                              New York, New York.

FOR DEFENDANT-APPELLANT:               STEVEN Y. YUROWITZ, ESQ., Newman &
                                       Greenberg, New York, New York.


             Appeal from a judgment of the United States District

Court for the Southern District of New York (Gardephe, J.).
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED in part and MODIFIED in

part.

           Defendant-Appellant Fernando Rivas appeals from the

district court's judgment of December 22, 2010, convicting him,

following a guilty plea, of violating the terms of his supervised

release.   Rivas was sentenced to concurrent terms of imprisonment

of 37 months on each of the two specifications for violating the

terms of his supervised release in Case Nos. 03 Cr. 1033 and 04

Cr. 1102, to run consecutively to a 46-month term of imprisonment

imposed in case No. 09 Cr. 457.

           We assume the parties' familiarity with the facts and

procedural history of the case and the issues presented for

review, which we summarize below.

           On December 22, 2003, Rivas pled guilty to a Hobbs Act

robbery conspiracy and the use of a firearm during the

conspiracy.    On September 30, 2004, pursuant to a cooperation

agreement, Rivas pled guilty to two new charges contained in an

information:    Hobbs Act conspiracy and narcotics conspiracy.
           On February 21, 2008, the district court (Wood, J.)
sentenced Rivas to time served, taking into account his

cooperation.    In doing so, the district court relied on a pre-

sentence investigation report (the "PSR") that erroneously

calculated Rivas's offense level based only on his 2003 crimes

without including the conduct charged in the 2004 information.

Hence, the offense level was understated.   The PSR also


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determined that Rivas was in Criminal History Category ("CHC")

III, in part based on a 2000 conviction for promoting

prostitution.

           Rivas asked the district court to "adopt the

recommendation of the probation department, their calculation."

The district court adopted "what everyone ha[d] agreed is

appropriate" -- the probation department's calculation set forth

in the PSR.   The district court found a total offense level of 22

and a CHC of III.   Although the district court did not state the
resulting guidelines range on the record, the PSR had concluded

(again, without taking into account the additional criminal

conduct) the advisory guidelines range was 135 to 147 months'

imprisonment.    In recognition of Rivas's cooperation, the

district court sentenced him to time served, or effectively 54

months' imprisonment, and a term of supervised release of three

years on each of the two counts in the information,

concurrently.1

           In March 2009, Rivas committed another Hobbs Act

robbery.   He was indicted.   He was also charged, based on the
same conduct, with violations of his supervised release imposed

in February 2008.   On January 12, 2010, Rivas pled guilty to the

2009 indictment.    On December 21, 2010, as he was to be sentenced

for the 2009 charge, he also pled guilty to the two violations.


     1
          Although Rivas had pled guilty to a total of four
counts, two on December 22, 2003, and two on September 30, 2004,
the judgment, which bears both docket numbers, refers only to the
two counts of the information. The charges in the initial
indictment were dismissed at sentencing on motion of the
government.
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          As for the 2009 case, the district court (Gardephe, J.)

sentenced Rivas to 46 months' imprisonment, finding a total

offense level of 19, a CHC of III, and an advisory guidelines

range of 37 to 46 months' imprisonment.   In calculating the CHC

to be III, the district court rejected the government's argument

that Rivas should receive one CHC point for the 2000 conviction

for promoting prostitution, which the district court had included

in sentencing Rivas in 2008.   The CHC remained at III even

without the one point because of unrelated amendments to the

guidelines.   On the violations, the district court found that

Rivas had committed a Grade A violation and that because Judge

Wood had found in 2008 that Rivas was in CHC III, it would use

CHC III as well.   See U.S.S.G. § 7B1.4(a).   The government noted

that without the one point for the 2000 conviction for promoting

prostitution, Rivas's CHC in 2008 would have been II and not III.

The district court applied a CHC III nonetheless, noting that the

probation department, the government, and the defense all agreed

that CHC III applied.   The district court imposed concurrent

terms of 37 months' imprisonment on each of the two
specifications, to run consecutively to the 46 months on the 2009

case.

          Rivas's appeal is confined to the district court's

sentence for the supervised release violations.    We review

sentences imposed for violations of supervised release for

reasonableness, both substantive and procedural.    See United

States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008); United


                                -4-
States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005).    Rivas failed

to object at sentencing to the calculation of his criminal

history category, and thus the Court reviews for plain error.

See United States v. Caban, 173 F.3d 89, 92 (2d Cir. 1999).

          Rivas first argues that the district court incorrectly

calculated his criminal history category by adopting the CHC of

III applied at his 2008 sentencing.   Rivas contends that because

the district court did not include his 2000 conviction for

promoting prostitution in its CHC calculation for the 2009 case,

it was error for the court to include it in calculating the

advisory guidelines range for the supervised release violations.
          The government argues that Rivas waived this claim by

explicitly agreeing in the district court that CHC III applied.

We need not decide the waiver issue, for we conclude that the

district court did not err, much less plainly err.

          The guidelines provide that the CHC to be used at

sentencing for a supervised release violation is "the category

applicable at the time the defendant originally was sentenced to

a term of supervision."   U.S.S.G. § 7B1.4.   Here, Judge Wood
applied a CHC of III at the original sentencing in 2008, without

objection from Rivas.   At the sentencing in 2010, Judge Gardephe

ruled that he would apply the same CHC used by Judge Wood, as

prescribed by § 7B1.4, again without objection from Rivas.    See

U.S.S.G. § 7B1.4; id. cmt. n.1 ("The criminal history category to

be used in determining the applicable range of imprisonment [for

a supervised release violation] is the category determined at the


                                -5-
time the defendant originally was sentenced to the term of

supervision.").   Judge Gardephe thus did not err in his

calculation, even if he would have calculated Rivas's CHC as

category II instead of III had he been making the original

calculation in 2008.

          Rivas also argues that the district court's sentence

for the supervised release violations exceeded the statutory

maximum set forth in 18 U.S.C. § 3583(e)(3), which provides that

a defendant serving a term of supervised release for a class C or

D felony may be sentenced to no more than twenty-four months in

prison if his supervised release is revoked due to a violation.

The district court imposed two terms of thirty-seven months of

imprisonment, to run concurrently, for the violations.2    Here,

the judgment entered on February 28, 2008, listed two counts:

Hobbs Act robbery conspiracy, a class C felony, and cocaine

distribution conspiracy, a class A felony.   As the government

acknowledges, a class C felony could only carry up to twenty-four

months' imprisonment.   Because the district court ordered the
sentences to run concurrently, however, the error is merely

technical.   The district court could have imposed one thirty-

seven month sentence for the violation of supervised release

imposed pursuant to the class A felony, and one twenty-four month

sentence for the violation related to the class C felony, and


     2
          The district court's reference to "each violation" and
its imposition of two thirty-seven month terms of imprisonment
refers to the fact that two specifications gave rise to the term
of supervised release.

                                -6-
Rivas's sentence would stay the same.   Nevertheless, the error

should be corrected, and this Court has the authority to correct

errors in the judgment that do not "change the aggregate sentence

that has been imposed."   United States v. McLeod, 251 F.3d 78,

83-84 (2d Cir. 2001).   We therefore order the correction of the

2010 judgment and conviction so that it reads as follows:

"Thirty-seven (37) months' imprisonment on Count Two of 04 Cr.

1102 (PGG), to run concurrently with twenty-four (24) months'

imprisonment on Count One of 04 Cr. 1102 (PGG)."
          We have considered all of Rivas's remaining arguments

and conclude that they are without merit.   Accordingly, the

judgment of the district court is hereby AFFIRMED in part and

MODIFIED in part as set forth above.

                               FOR THE COURT:
                               CATHERINE O'HAGAN WOLFE, CLERK




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