11-5155-pr
Rivera v. United States




                    U NITED S TATES C OURT OF A PPEALS
                         F OR THE S ECOND C IRCUIT

                            August Term 2012

  (Argued:    November 27, 2012                Decided:     May 24, 2013)

                        Docket No. 11-5155-pr

                        _____________________

                   J OHN R IVERA AKA H UBERT C OLEMAN ,

                                                   Petitioner-Appellant,
                                     V.


                        U NITED S TATES   OF   A MERICA ,

                                                   Respondent-Appellee.

                        _____________________

Before:
             S ACK , C HIN , and L OHIER , Circuit Judges.

                        _____________________

          Appeal from a Memorandum and Order of the United

States District Court for the Eastern District of New York

(Glasser, J.) denying petitioner-appellant's motion

pursuant to 28 U.S.C. § 2255 to vacate, set aside, or

modify his sentence.

          A FFIRMED .
                         _____________________

                     K EVIN J. K EATING , (Matthew W. Brissenden,
                           on the brief), Law Offices of Kevin
                           J. Keating, Garden City, New York,
                           for Petitioner-Appellant.

                     U NA A. D EAN , Assistant United States
                           Attorney (Emily Berger, Assistant
                           United States Attorney, on the
                           brief), for Loretta E. Lynch, United
                           States Attorney for the Eastern
                           District of New York, Brooklyn, New
                           York, for Respondent-Appellee.
                       _____________________

C HIN , Circuit Judge:

          On June 14, 2005, after pleading guilty to

possession of a firearm after having been convicted of a

felony, petitioner-appellant John Rivera was sentenced

pursuant to the Armed Career Criminal Act of 1984 ("ACCA"),

18 U.S.C. § 924(e), to a mandatory minimum term of

imprisonment of fifteen years.          Rivera filed a motion

pursuant to 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence, arguing that changes in state law

that lowered the maximum sentence applicable to a prior

state court conviction rendered him no longer subject to

sentencing under ACCA.       The district court (Glasser, J.)

denied the motion.       We affirm.

                                  -2-
                           BACKGROUND

1.   The Felony Possession Offense

         On March 6, 2004, as New York City police officers

were investigating a matter in Brooklyn, New York , they saw

Rivera standing in front of a bodega.      As the officers

approached, Rivera fled.

         The officers gave chase.       They apprehended Rivera

and found on his person a .38-caliber revolver with its

serial number obliterated.    The gun had no cylinder -- the

chamber that holds the bullets -- and was therefore

inoperable.    Rivera claimed that he had found the gun in a

nearby park.   The officers detained him and eventually

transferred Rivera to federal custody.

         The government charged Rivera with possession of a

firearm after having been convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1). 1     He signed a plea

agreement, in which he waived his right to appeal a

sentence of 235 months' imprisonment or less.      The


     1
          The Indictment also charged Rivera with the knowing
and intentional possession of a firearm shipped and transported
in interstate commerce in violation of 18 U.S.C. §§ 922(k) and
924(a)(1)(B). This count was later dismissed.

                              -3-
Probation Department calculated a sentencing range of 151-

188 months' imprisonment under the United States Sentencing

Guidelines (the "Guidelines"), based on an adjusted offense

level of 30 and a criminal history category of V.

           Rivera, however, had three prior state court

convictions in 2000 and 2001:     (1) robbery, (2) attempted

criminal sale of a controlled substance, and (3) attempted

assault.   On the basis of these convictions, Rivera was

subject to a sentencing enhancement under ACCA as an "armed

career criminal."     ACCA imposed a mandatory minimum term of

imprisonment of fifteen years -- 180 months' imprisonment.

18 U.S.C. § 924(e).

           On June 14, 2005, Rivera was sentenced principally

to fifteen years' imprisonment -- for possession of an

inoperable gun.

2.   Rivera's Drug Conviction

           One of the state court convictions that resulted

in Rivera's sentencing enhancement pursuant to ACCA was an

October 2000 conviction for attempted criminal sale of a

controlled substance in the third degree, in violation of

New York State Penal Law §§ 110 and 220.39.     This was a

                                -4-
class C felony, subject at the time to a maximum term of

imprisonment of fifteen years.       Rivera received a one -year

term of imprisonment.

            In 2004, the New York State legislature enacted

sentencing reforms that, in part, reduced the maximum terms

of imprisonment applicable to non-violent drug-related

offenses.    See generally N.Y. State Assembly Mem. in Supp.

of Legislation, reprinted in Bill Jacket, 2004 A.B. 11895,

ch. 738 [hereinafter "NYS Assembly Memo"].       In 2009, the

state enacted additional laws, further reducing drug-

related sentences.    See 2009 N.Y. Laws ch. 56, pt. AAA. 2

3.   Procedural History

            Rivera did not directly appeal his sentence.     In

2011, however, Rivera filed this motion below pursuant to

28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence.    The district court denied the motion.     Rivera

appealed, and the district court granted a certificate of

appealability as to whether Rivera's drug conviction still


     2
          The New York State legislature also enacted additional
sentencing reforms in 2005. See 2005 N.Y. Laws ch. 642. None
of Rivera's arguments on appeal relate to the reforms
implemented by that legislation.

                               -5-
qualified as a predicate felony for the ACCA sentencing

enhancement in light of recent U.S. Supreme Court

precedent.

                          DISCUSSION

          Rivera argues that drug reform laws enacted by the

New York State legislature provide retroactive sentencing

relief and are therefore beyond the scope of the holding in

McNeill v. United States, 131 S. Ct. 2218 (2011).      We

disagree because, as the relevant New York laws apply

prospectively, the precedent established in McNeill governs

this appeal. 3


     3
          The government contends that Rivera is barred from
bringing this appeal because (1) he agreed not to collaterally
attack a sentence of less than 235 months, and (2)
notwithstanding his waiver, his 2255 motion was not filed within
the one-year limitations period. See 28 U.S.C. § 2255(f).
Rivera, on the other hand, asserts that he is actually innocent
of being a career criminal, and that we may therefore consider
this appeal. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995)
(actual innocence can serve as a "gateway" by which courts may
hear procedurally defaulted constitutional claims on the
merits); Rivas v. Fischer, 687 F.3d 514, 539, 552 (2d Cir. 2012)
(compelling showing of actual innocence can overcome a time-
barred motion). We acknowledge that whether Rivera could be
deemed "actually innocent" of the ACCA sentencing enhancement is
unclear. See Darby v. United States, No. 11-4828, 2013 WL
309986, at *2 (2d Cir. Jan. 28, 2013) (summary order) (noting in
the context of a career offender enhancement under the
Guidelines that "we by no means suggested that the actual
innocence exception applies where, as here, the defendant was
indisputably guilty of the predicate offenses that led to his
                              -6-
    1.   Applicable Law

         a.   Standard of Review

         We review de novo the legal conclusions underlying

a district court's denial of a motion for relief under 28

U.S.C. § 2255.   Harrington v. United States, 689 F.3d 124,

129 (2d Cir. 2012); Ventry v. United States, 539 F.3d 102,

110 (2d Cir. 2008).   We will defer, however, to a district

court's findings of fact unless they are clearly erroneous.

Sapia v. United States, 433 F.3d 212, 216 (2d Cir. 2005).

         b.   Drug Law Reform Acts

         Beginning in 2004, the New York State legislature

enacted a series of laws to curb the harsh penaltie s

imposed by what had become known as the Rockefeller drug

laws -- a sentencing scheme signed into law by Governor

Nelson Rockefeller in the 1970s.     Noting that those laws

"provide[d] inordinately harsh punishment for low level

non-violent drug offenders," the Rockefeller Drug Law

Reform Act ("2004 DLRA") sought to "reform the sentencing

structure of New York's drug laws to reduce prison terms


enhancement"). In light of our disposition below, however, we
assume without deciding that Rivera may bring this appeal.

                              -7-
for non-violent drug offenders, provide retroactive

sentencing relief and make related drug law sentencing

improvements."    NYS Assembly Memo at 3, 6; see also People

v. Acevedo, 14 N.Y.3d 828, 831 (2010).

            In relevant part, the 2004 DLRA reduced sentences

for non-violent drug offenders, including those who had

committed class C felonies.    See NYS Assembly Memo at 4.

Compare 2004 N.Y. Laws ch. 738, § 36 ("[F]or a class C

felony, the term shall be at least three and one-half years

and shall not exceed nine years.") (codified at N.Y. Penal

Law § 70.70(4)(b)(ii) (2005)), with N.Y. Penal Law

§ 70.00(2)(c) (2000) ("For a class C felony, the term shall

be fixed by the court and shall not exceed fifteen

years.").    The 2004 DLRA also provided resentencing

opportunities, but only to persons convicted of more

serious crimes.    See 2004 N.Y. Laws ch. 738, § 23 (not

codified but allowing resentencing of class A-1 felons);

see also NYS Assembly Memo at 4-6.    Finally, eligible

offenders could earn "merit time" for completing certain

programs, which would reduce the length of incarceration.




                               -8-
NYS Assembly Memo at 4, 6; see also 2004 N.Y. Laws ch. 738,

§ 30 (not codified).

          Subsequent legislation, the Drug Law Reform Act of

2009 (the "2009 DLRA"), further reduced penalties for drug -

related offenses by allowing resentencing for felons

convicted of class B felony drug offenses. 4    2009 N.Y. Laws

ch. 56, pt. AAA, § 9 (codified at N.Y. Crim. Proc.

§ 440.46); People v. Santiago, 17 N.Y.3d 246, 247-48

(2011).   Individuals convicted solely of class C felonies,

however, were ineligible for this relief.      See 2009 N.Y.

Laws ch. 56, pt. AAA, § 9.

          c.   ACCA Sentencing Enhancement

          Federal law criminalizes the possession of a

firearm by a felon.    18 U.S.C. § 922(g).   When a felon "has

three previous convictions . . . for a violent felony or a

serious drug offense, or both, committed on occasions

different from one other," felony possession is penalized

by at least fifteen years' imprisonment.     Id. § 924(e)(1).

    4
          It is unclear whether these reductions extend to non-
incarcerated class B felons. See 2011 N.Y. Laws ch. 62, pt. C,
subpart B, § 79. This remains an open issue in the New York
Court of Appeals. See, e.g., People v. Santiago, 17 N.Y.3d 246,
248 n.* (2011); People v. Paulin, 17 N.Y.3d 238, 243 n.* (2011).

                              -9-
As relevant here, a "serious drug offense" includes "an

offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or

distribute, a controlled substance . . . for which a

maximum term of imprisonment of ten years or more is

prescribed by law."     Id. § 924(e)(2)(A)(ii) (emphasis

added).

          Whether a prior conviction qualifies as a

predicate felony for the ACCA sentencing enhancement is

determined by looking to state law existing at the time of

that conviction.    See McNeill, 131 S. Ct. at 2224 (serious

drug offenses); James v. United States, 550 U.S. 192, 197

(2007) (violent felonies).     For example, a drug offense is

only a "serious drug offense" under ACCA if the "'maximum

term of imprisonment' applicable to a defendant's prev ious

drug offense" was ten years or more when he was convicted

for that offense.     McNeill, 131 S. Ct. at 2224; see also

United States v. Thurman, No. 12-3767, 2013 WL 1924789, *4

(6th Cir. May 9, 2013) (unpublished opinion); United States

v. Ellis, 473 F. App'x 490, 493 (6th Cir. 2012); United

States v. Conyers, 457 F. App'x 229, 230 (4th Cir. 2011)

                               -10-
(unpublished per curiam); cf. United States v. Turlington,

696 F.3d 425, 427-28 (3d Cir. 2012) (applying McNeill's

reasoning to hold that sentences for violating supervised

release should be determined by reference to applicable law

when convicted for underlying offense).

    2.   Application

         Rivera's appeal fails.     In McNeill, the Supreme

Court held that predicate drug-related felonies are

determined by reference to the "'maximum term of

imprisonment' applicable to a defendant's previous drug

offense at the time of the defendant's state conviction for

that offense."   131 S. Ct. at 2224, 2223 (emphasis added)

(rejecting premise that "subsequent changes in state law

can erase an earlier conviction for ACCA purposes").     The

state sentencing scheme considered by the Court in McNeill,

however, applied only prospectively, see N.C. Gen. Stat.

Ann. §§ 15A-1340.17(c) & (d), 90-95(a)(1) & (b)(1) (2009);

McNeill, 131 S. Ct. at 2221, and in a footnote, the Supreme

Court limited its holding to similarly non-retroactive

statutory schemes.   Specifically, the Supreme Court noted

that McNeill did "not concern a situation in which a State

                             -11-
subsequently lowers the maximum penalty applicable to an

offense and makes that reduction available to defendants

previously convicted and sentenced for that offense."

McNeill, 131 S. Ct. at 2224 n.1 (declining to "address

whether or under what circumstances a federal court could

consider the effect of that state action").

         With this appeal, based in part on that footnote

in McNeill, Rivera tries -- and fails -- to bring the 2004

and 2009 DLRAs outside the scope of McNeill.     Like the law

before the Supreme Court, these laws are non-retroactive --

and therefore governed by McNeill.

         First, although the 2004 DLRA reduced to nine

years the maximum sentence applicable to class C offenses,

see 2004 N.Y. Laws ch. 738, § 36 (codified at N.Y. Penal

Law § 70.70(4)(b)(ii) (2005)), the change applied only "to

crimes committed on or after the effective date [of the

2004 DLRA]."   2004 N.Y. Laws ch. 738, § 41(d-1); see also

People v. Utsey, 7 N.Y.3d 398, 404 (2006) ("Under the plain

language of the statute, the relevant provisions of the

[2004] DLRA are intended to apply only to crimes committed

after its effective date.").     Rivera was sentenced for the

                               -12-
underlying drug offense on October 5, 2000, long before the

2004 reforms became effective.     Hence, the nine-year

statutory maximum was simply not the "maximum sentence

applicable" to his 2000 drug conviction.     See Utsey, 7

N.Y.3d at 402-03.

          Second, to the extent the 2004 DLRA provided

resentencing opportunities, these were limited to

individuals who had committed class A-1 offenses.       2004

N.Y. Laws ch. 738, § 23 (not codified).     As Rivera

committed a class C offense, he was ineligible for this

relief.

          Third, although "merit time" allowances could

reduce a defendant's sentence under the 2004 amendments,

these allowances were by no means guaranteed.     See 2004

N.Y. Laws ch. 738, § 30(1)-(2).     With good behavior during

incarceration and by successfully completing certain

programs, an individual could procure "merit time " as a

credit against the sentence imposed by the court.       Id.

These allowances might reduce a defendant's sentence over

time, but could not possibly change the "maximum sentence

applicable" -- i.e., his sentencing exposure at the time of

                            -13-
his state law conviction -- which, under McNeill, is the

only relevant point of reference.     In any case, no

mechanism in the 2004 DLRA provided for altering the

sentence of individuals who, like Rivera, were not

incarcerated when the 2004 DLRA became effective.       Cf.

People v. Mills, 11 N.Y.3d 527, 537 (2008) (noting that

"[s]urely the Legislature did not intend fresh crimes to

trigger resentencing opportunities," when it rejected the

argument that a defendant who violated parole could be

resentenced for the underlying offense under similar

statutory reforms enacted in 2005).

          Turning to the 2009 DLRA, we reach a similar

conclusion.   While some provisions of the 2009 DLRA apply

retroactively, they do not apply where, as here, a

defendant has already been sentenced.     See 2009 N.Y. Laws

ch. 56, pt. AAA § 33(f) (uncodified) (effective April 7,

2009).   Likewise, as Rivera conceded, the "expanded

opportunities for resentencing" provided by the 2009 DLRA

did not apply to a person whose sole drug -related offense

was a class C felony.   2009 N.Y. Laws ch. 56, pt. AAA, § 9.




                             -14-
         Viewed collectively, the New York sentencing

schemes mirror those addressed in McNeill because their

provisions do not retroactively change the maximum sentence

applicable to Rivera's drug conviction.

         Rivera relies heavily on our decision in United

States v. Darden, 539 F.3d 116 (2d Cir. 2008), in which we

held that predicate felonies under ACCA are determined by

reference to the maximum state sentence in effect for the

prior state law conviction when the defendant is sentenced

for the federal offense.    539 F.3d at 127-28.    This

reliance, however, is misplaced.     As the district court

properly concluded, McNeill abrogated Darden.      See Rivera

v. United States, No. 11-cv-969, 2011 WL 5858089, at *2

(E.D.N.Y. Nov. 15, 2011) (acknowledging abrogation); see

also Abney v. Augustine, No. 5:12-cv-19, 2012 WL 5199602,

at *2 (N.D. Fla. June 11, 2012) (same).     We agree.

         Rivera argues that the "retroactive aspects" of

the 2004 and 2009 DLRAs "place New York outside the ambit

of the McNeill decision."    Appellant's Br. 13.    As those

retroactive aspects do not apply here and do not reduce the

"maximum sentence applicable" to Rivera's prior drug

                              -15-
conviction, we conclude that McNeill applies squarely to

this case.

          Applying McNeill, we hold that Rivera's prior drug

conviction counts as a predicate "serious drug offense"

under ACCA.     We refer, as we must, to the fifteen-year

maximum term of imprisonment applicable to Rivera's state

law drug offense in 2000, the time he was convicted for

that offense.     See McNeill, 131 S. Ct. at 2224.   Coupled

with the pair of violent felonies (robbery and attempted

assault), Rivera's criminal record included three ACCA

predicate felonies.     Thus, the district court did not err

by imposing the sentencing enhancement and, therefore,

properly denied Rivera's motion for relief under 28 U.S.C.

§ 2255.   See Rivera, 2011 WL 5858089, at *3.

                           CONCLUSION

          Accordingly, we AFFIRM the district court's denial

of Rivera's motion under 28 U.S.C. § 2255.




                               -16-
