Rivera v. United States

Background

A jury convicted Raul Rivera in 2000 of conspiracy to murder in aid of racketeering, murder in aid of racketeering, using and carrying a firearm during and in relation to a crime of violence, and distributing crack cocaine. The firearm conviction was under 18 U.S.C. § 924(c). The jury was told that both the murder conspiracy and the completed murder could serve as the required predicate crime of violence. Rivera received a life sentence on the murder count and a consecutive five-year sentence on the firearm count. The Second Circuit affirmed his conviction and sentence.

Rivera later filed a second or successive motion under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence in certain circumstances. The Second Circuit allowed him to file the motion after he made the required initial showing. Rivera relied on Johnson v. United States and United States v. Davis, Supreme Court decisions holding that a statutory provision defining certain crimes of violence through the risk of force was unconstitutionally vague. The government opposed the petition.

Arguments to Avoid Reaching the Merits

The government argued that the court should dismiss the petition without deciding whether Rivera’s firearm conviction was valid because Rivera was already serving a life sentence on another count, because his claim did not qualify for relief in a successive motion, and because he had not raised the claim on direct appeal.

Judge McMahon declined to apply the concurrent-sentence doctrine, a discretionary rule that can allow a court to avoid deciding a challenge when a favorable ruling would not reduce the prisoner’s time in custody. The court reasoned that the Second Circuit had directed it to determine whether Rivera’s firearm conviction was supported by a valid predicate, and that future changes in sentencing law could make the conviction legally significant even if Rivera remained imprisoned for life.

The court also rejected the procedural-default argument. A claim that could have been raised on direct appeal generally cannot be raised later unless the prisoner shows a legally sufficient reason for the omission and actual harm, or shows actual innocence. Judge McMahon found that Rivera had cause because the legal basis for his challenge was not reasonably available before Johnson and Davis, and that he had shown prejudice by asserting that his conviction rested on an unconstitutional provision. The court concluded that the remaining preliminary issues required review of the record and factual findings, so it proceeded to the merits.

Merits of the Firearm Conviction

Section 924(c) requires a firearm conviction to be based on a crime of violence. The statute contains an elements clause, covering an offense that has as an element the use, attempted use, or threatened use of physical force, and a residual clause addressing offenses involving a substantial risk that physical force may be used. Davis held the residual clause unconstitutional; it did not invalidate the elements clause.

Rivera argued that neither conspiracy to commit murder in aid of racketeering nor murder in aid of racketeering could support his firearm conviction. Judge McMahon rejected the argument as to intentional murder. Relying on controlling Second Circuit precedent, she held that murder in aid of racketeering based on intentional murder under New York Penal Law § 125.25(1) remains a crime of violence under the elements clause. The court also explained that aiding and abetting a valid crime of violence can support a § 924(c) conviction.

The court agreed that conspiracy to commit murder can no longer serve as a § 924(c) predicate after Johnson and Davis. But the jury had also been instructed that the completed murder was a predicate, and Rivera was separately convicted of that murder. The trial evidence showed that he organized the group assigned to kill Efraim Torres, helped locate Torres, provided the pistol used by the shooter, and aided the murder. Based on that record, the court found that the jury could not have convicted Rivera on the firearm count based only on the invalid conspiracy predicate. A properly instructed jury would have convicted him based on the still-valid completed-murder predicate.

Disposition

The court denied Rivera’s motion to vacate his firearm conviction and dismissed the petition. The opinion states that the dismissal rested on the merits because the conviction was supported by a valid predicate, as well as on the alternative ground that Rivera had not established a basis for relief in a successive § 2255 motion. The court declined to issue a certificate of appealability because Rivera had not made a substantial showing that a constitutional right was denied. It also found under 28 U.S.C. § 1915(a)(3) that an appeal from the order denying the motion would not be taken in good faith.