17‐2979‐cr
United States v. John 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 27th day of November, two thousand eighteen.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 17‐2979‐cr
JOHN RIVERA,
Defendant‐Appellant.
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FOR APPELLEE: RYAN C. HARRIS, Assistant United States
Attorney (Amy Busa, Assistant United States
Attorney, on the brief), for Richard P. Donoghue,
United States Attorney for the Eastern District
of New York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: DARRELL FIELDS, Federal Defenders of New
York, Inc., Appeals Bureau, New York, New
York.
Appeal from the United States District Court for the Eastern District of
New York (Vitaliano, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant John Rivera appeals the district courtʹs sentence
entered September 25, 2017. After pleading guilty to a three‐count indictment of Hobbs
Act robbery on January 20, 2017, Rivera was sentenced to 120 monthsʹ imprisonment.
Because Rivera had previously been convicted in New York of second‐degree robbery
and attempted second‐degree robbery, and in North Carolina of ʺRobbery with a
Dangerous Weapon,ʺ Rivera was given a ʺcareer offenderʺ designation pursuant to §
4B1.1(b)(3) of the November 1, 2016, edition of the sentencing guidelines (the
ʺGuidelinesʺ). Without the career offender designation, Riveraʹs total offense level
would have been 25 and his criminal history level would have been IV, for a Guideline
range of 84 to 105 months. With the designation, Riveraʹs total offense level was 29 and
his criminal history category was VI, for a Guideline range of 151 to 188 months. We
assume the partiesʹ familiarity with the underlying facts, procedural history, and issues
on appeal.
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Rivera initially argued that we should vacate his sentence because the
district court improperly applied a career offender designation under Guidelines
§ 4B1.1(b)(3), which led to a Guideline range of 151 to 188 monthsʹ imprisonment rather
than 84 to 105 monthsʹ imprisonment. Rivera argued that his New York second‐degree
robbery and attempted second‐degree robbery convictions could not properly be
considered ʺcrimes of violenceʺ for purposes of determining career offender status
under the Guidelines. Riveraʹs argument, however, is foreclosed by this Courtʹs recent
decision in United States v. Pereira‐Gomez, which held that all degrees of New York
robbery and attempted robbery qualify as crimes of violence under an identically
worded provision of the November 1, 2014, edition of the Guidelines. 903 F.3d 155, 166
(2d Cir. 2018); compare Application Note 1(B)(iii) of § 2L1.2 of the November 2014
Guidelines (defining a crime of violence to include any offense that ʺhas as an element
the use, attempted use, or threatened use of physical force against the person of
anotherʺ), with § 4B1.2(a) of the November 2016 Guidelines (defining a crime of violence
as a felony that ʺhas as an element the use, attempted use, or threatened use of physical
force against the person of anotherʺ).
We note that at the time of Riveraʹs appeal and oral argument, our
decision in Pereira‐Gomez had not yet been rendered. In a supplemental brief to this
Court following our decision in Pereira‐Gomez, Rivera concedes that ʺ[a]lthough Pereira‐
Gomez involved a different provision of the Guidelines than the one at issue here . . . ,
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the ʹforce clauseʹ language of both Guideline provisions is the sameʺ and that, therefore,
ʺ[t]here does not appear . . . to be a basis to argue that the analysis in Pereira‐Gomez is
inapplicable here.ʺ Dkt. No. 67, at 3.
We have considered Riveraʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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