11-5155-pr

Rivera v. United States 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

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

Docket No. 11-5155-pr

_____________________

JOHN RIVERA AKA HUBERT COLEMAN,

Petitioner-Appellant,

V.

UNITED STATES OF AMERICA,

Respondent-Appellee.

_____________________

Before:

SACK, CHIN, and LOHIER, 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. 

AFFIRMED.
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_____________________

KEVIN J. KEATING, (Matthew W. Brissenden, 

on the brief), Law Offices of Kevin 

J. Keating, Garden City, New York, 

for Petitioner-Appellant.

UNA A. DEAN, 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.

_____________________

CHIN, 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.
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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. 
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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 
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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 drugrelated 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.
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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 timebarred 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 
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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 penalties 

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. 
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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. 
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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 drugrelated 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 nonincarcerated 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). 
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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 previous 

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) 
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(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 
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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 
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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 
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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. 
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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 
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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.