Argued: November 27, 2012.
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.
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.
Before: Sack, Chin, and Lohier, Circuit Judges.
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.
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). He signed a plea agreement, in which he waived his right to appeal a sentence of 235 months' imprisonment or less. The 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 ...