United States v. Rivera
679 F. App'x 51
| 2d Cir. | 2017Background
- Jesus Rivera pleaded guilty to aiding and abetting murder under 18 U.S.C. § 924(j) for a murder that occurred during an armed robbery of narcotics/narcotics proceeds.
- The indictment charged Rivera with aiding and abetting the use, carrying, and possession of a firearm during and in relation to a crime of violence (the robbery), which caused the victim’s death.
- Rivera appealed, raising (through counsel) a challenge that § 924(j) is only a penalty provision for § 924(c) and (pro se) claims that his plea lacked a factual basis, Hobbs Act robbery is not a valid § 924(c)/(j) predicate after Johnson, and his sentence was substantively unreasonable.
- The government argued Rivera waived the indictment and sentencing challenges by pleading guilty and via an appeal waiver in the plea agreement; it also argued the claims fail on the merits.
- The Second Circuit reviewed waiver and merits, treating plea-factual-basis review for plain error because Rivera did not challenge the plea in district court, and ultimately affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Indictment sufficiency: Is § 924(j) a distinct offense or merely a penalty provision for § 924(c)? | Rivera: § 924(j) is only a penalty provision for § 924(c), so indictment citing § 924(j) alone is defective. | Government: Rivera waived this challenge by pleading guilty; indictment alleges all elements of § 924(c)/(j). | Waived by plea and meritless; indictment alleged all elements and § 924(j) incorporates § 924(c). |
| 2. Factual basis for guilty plea: Did the plea lack a sufficient factual basis for aiding and abetting a § 924 offense? | Rivera: Plea inadequate because he did not admit premeditation or specific planning of the killing. | Government: Rivera admitted involvement in narcotics conspiracy and robbery, knew associates had a gun, and continued participation. | No plain error; admissions provided adequate factual basis for aiding and abetting under Rosemond/Robinson standards. |
| 3. Predicate crime: Is the Hobbs Act robbery a valid "crime of violence" predicate for § 924(c)/(j) after Johnson? | Rivera: Hobbs Act robbery does not categorically qualify as a crime of violence and Johnson undermines the residual clause. | Government: Even if Hobbs Act challenge succeeds, conviction rests on a valid drug-trafficking predicate shown by Rivera’s allocution. | Rivera cannot show plain error; plea allocution established a drug-trafficking predicate for § 924(c). |
| 4. Substantive reasonableness of sentence: Was the 270-month sentence substantively unreasonable? | Rivera: Sentence unreasonable, points to rehabilitation and contends effective total exceeds plea-range expectations. | Government: Appeal waiver bars challenge; even on merits 270 months is within permissible range given offense severity. | Appeal waiver applies; alternatively, sentence not substantively unreasonable and within district court discretion. |
Key Cases Cited
- Yousef, 750 F.3d 254 (2d Cir.) (guilty plea generally waives non-jurisdictional challenges)
- Robinson, 799 F.3d 196 (2d Cir.) (standards for aiding-and-abetting liability under § 924(c))
- Rosemond v. United States, 134 S. Ct. 1240 (Sup. Ct.) (knowledge requirement for accomplice in § 924(c) context)
- Johnson v. United States, 135 S. Ct. 2551 (Sup. Ct.) (invalidating residual clause in ACCA; discussed re: § 924(c) residual clause)
- Thomas, 34 F.3d 44 (2d Cir.) (malice for murder satisfied by malice of underlying robbery)
- Cavera, 550 F.3d 180 (2d Cir.) (standard for reviewing substantive reasonableness of sentence)