Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RIVERA v. UNITED STATES

June 18, 1996

WILLIAM NELSON RIVERA,1 Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge:

 Petitioner William Nelson Rivera ("petitioner" or "Rivera"), pro se, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (§ 2255). *fn2" Petitioner's motion is denied because it is both procedurally barred and meritless.

 BACKGROUND

 On May 9, 1988, petitioner pleaded guilty to a one-count Superseding Information charging him with conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. At sentencing, this Court ruled that petitioner's offense level be increased by two levels for possession of a gun during the commission of his offense, pursuant to United States Sentencing Guidelines ("USSG") § 2D1.1(b)(1) (Oct. 1987), and by an additional two levels because of petitioner's role as a supervisor in his offense, pursuant to USSG § 3B1.1(c). This Court sentenced petitioner to a one-hundred-and-thirty-five-month term of incarceration and imposed a fine of $ 182,335. See Sentencing Hearing Transcript, United States v. Rivera, S 88 Cr. 204 (DNE) (S.D.N.Y. July 29, 1988), at 15-16.

 Petitioner's trial counsel filed a notice of appeal. On October 27, 1988, the Court of Appeals for the Second Circuit dismissed the appeal on the ground that petitioner had defaulted by failing timely to submit any papers in support of his appeal. See United States v. Rivera, No. 88-1339 (2d Cir. Oct. 27, 1988).

 Thereafter petitioner moved this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Petitioner challenged, among other things, the two-level increase in his offense level for possession of a gun during the commission of his offense.

 In an Opinion and Order dated July 24, 1995, ("the July 1995 Opinion") this Court denied petitioner's motion. See Rivera v. United States, 893 F. Supp. 1238 (S.D.N.Y. 1995). This Court found that petitioner's claim regarding the upward adjustment for possession of a gun was both procedurally barred and meritless.

 On April 11, 1996, petitioner filed the instant § 2255 motion. In this petition, Rivera once again challenges the upward adjustment that this Court imposed for possession of a firearm. Petitioner contends that this upward adjustment was an error because:

 
(1) The weapon was not present at the time of Riverias [sic] arrest in New York, and the weapon was at his apartment in New Jersey. (2) The firearm in question was located at Riverias apartment during the two telephone conversations that took place between him and another individual in North Carolina, which is clearly improbable that the weapon was connected to the two conversations that took place between parties that were several hundred miles apart. (3) The firearm was at all times unloaded in the bedroom closet. (4) There is and was never any showing by the government that Riveria [sic] ever had any intent to use the weapon for the purpose of a drug transaction.

 Id. at 1.

 DISCUSSION

 
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.