Rivera v. United States of America

Filing 15

OPINION & ORDER: For the reasons set out above, Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (dkt. no. 322) is denied. The Clerk of the Court is directed to close the open motions (dkt. no. 322 in 08-cr-1327; dkt. no. 1 in 16-cv-4600) and close case number 16-cv-4600. The Clerk of the Court is further directed to mail a copy of this order to Mr. Rivera. SO ORDERED. (Signed by Judge Loretta A. Preska on 4/26/2022) (ks) Transmission to Docket Assistant Clerk for processing.

Case 1:16-cv-04600-LAP Document 15 Filed 04/26/22 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HECTOR RIVERA,
Petitioner,

16 Civ. 4600 (LAP)
08 Cr. 1327 (LAP)

-against-

OPINION & ORDER

UNITED STATES OF AMERICA,
Respondent.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Petitioner Hector Rivera’s (“Mr. Rivera”)
motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or
correct his sentence. 1

Petitioner argues that his “sentence

exceeds the maximum allowed by law” because Hobbs Act robbery is
not a “crime of violence” under 18 U.S.C. § 924(c).
Vacate at 5.)

The Government opposes the motion.

359, dated Feb. 7, 2022.)

(See Mot.

(See dkt. no.

For the reasons set forth below,

Petitioner’s § 2255 motion is denied.

(See Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“Mot. Vacate”),
dated June 15, 2016 [dkt. no. 322]; dkt. no. 1 in 16-cv-4600;
see also dkt. no. 357; dkt. no. 13 in 16-cv-4600.) Unless
otherwise specified, all citations to docket entries herein
refer to 8-cr-1327.
1

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I.

Background
Between 2002 and 2008, Petitioner and his co-defendants

committed a series of crimes, consisting primarily of robberies
in New York. 2

Petitioner was allegedly the leader of the crew

responsible for such crimes.

In furtherance of the robberies

relevant to Petitioner’s instant motion, Petitioner and his codefendants carried, possessed, and used firearms, as well as
brandished such firearms “during and in relation to” crimes of
violence.

(See Indictment at 5–7.)

a. The Indictment
On July 23, 2009, a grand jury charged Petitioner and his
co-defendants in a seven-count Superseding Indictment (the
“Indictment”).

(See id.)

The Indictment principally charged

Petitioner and his co-defendants with conspiracy to commit Hobbs
Act robbery, Hobbs Act robbery, and Hobbs Act extortion.
id.)

Petitioner was charged with six counts.

(See

(See id. at 1–7.)

The charges relevant to this motion are briefly summarized
below.
Counts Three and Five charged Petitioner and his codefendants with—during and in relation to crimes of violence—
use, carrying, and possession of firearms, which were
brandished, and aiding and abetting that use, carrying, and
(See Indictment, dated July 23, 2009 [dkt. no. 137]; see also
Summary Order, dated July 23, 2014 [dkt. no. 312] at 2.)
2

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possession, in connection with the robberies charged in Counts
Two and Four, 3 respectively, in violation of 18 U.S.C. §§ 924(c)
and 2.

(See id. at 5–7.)

b. Trial and Sentencing
On December 14, 2009, following a trial before Judge Harold
Baer, a jury found Petitioner guilty of all counts against him. 4
Subsequently, on May 20, 2010, Petitioner “was sentenced
principally to imprisonment of one day each on Counts One, Two,
Four, and Six, to run concurrently, followed by a mandatory
minimum sentence of seven years on Count Three and twenty-five
years on Count Five, to run consecutively, for a total term of
384 months and one day.”

(Summary Order at 3–4; Judgment at 3.)

In addition, Petitioner was sentenced to three years supervised
release following his term of imprisonment.

(Judgment at 4.)

c. The Defendant’s Appeal
On May 25, 2010, Petitioner appealed his conviction and
sentence to the Court of Appeals. 5

On direct appeal, Petitioner

principally challenged “(1) the sufficiency of the evidence used
to convict him on Counts Three and Five for aiding and abetting

Counts Two and Four charged Petitioner with robbery in
violation of 18 U.S.C. § 1951 (the “Hobbs Act”). (See
Indictment at 4–6.)
4 (See Judgment in a Criminal Case (“Judgment”), dated May 25,
2010 [dkt. no. 228] at 1; see also Summary Order at 3.)
5 (See Notice of Appeal (“Appeal”), dated May 25, 2010 [dkt. no.
231].)
3

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the use of a firearm in connection with two Hobbs Act robberies,
in violation of 18 U.S.C. § 924(c) and 2; (2) the decision of
the District Court to disqualify his chosen counsel, over his
objection, based on the existence of potential conflicts;
(3) the decision of the District Court to excuse a juror after
having an ex parte conversation with the juror at the request of
the parties, but without further discussing the issue with the
parties; and (4) the imposition of a seven-year mandatory
minimum sentence on Count Three for ‘brandishing’ a firearm,
where the jury did not make a specific finding that the firearm
was ‘brandished.’”

(Summary Order at 2.)

denied each of Petitioner’s arguments.

The Court of Appeals

(See id. at 4–8.)

d. The Instant Motion
Before the Court is Petitioner’s habeas claim, brought
pursuant to 28 U.S.C. § 2255 on June 15, 2016.
Vacate.)

(See Mot.

Petitioner challenges the Court’s holding that Hobbs

Act robbery is a “crime of violence” under 18 U.S.C. § 924(c) in
light of the Supreme Court’s decision in Johnson v. United

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States (see id. at 5). 6
(the “Hobbs Act”).

See 18 U.S.C. §§ 924(c), 1951(a)–(b)(1)

Pending clarification by the Court of

Appeals of Johnson’s application to particular issues, the Court
issued a Standing Order allowing “Federal Defenders of New York
and other counsel appointed for Johnson matters under the
Criminal Justice Act . . . to file initial petitions under 28
U.S.C. § 2255 on or before June 27, 2016, utilizing the Court’s
form petition as a ‘placeholder’ petition.” 7

Subsequently, “the

parties jointly propose[d] that the Court hold Mr. Rivera’s
motion in abeyance pending a decision from the Second Circuit in
United States v. Barrett, 14-2641 and a decision on a request

See Johnson, 576 U.S. 591 (2015) (invalidating the residual
clause of the Armed Career Criminal Act (“ACCA”) on the basis
that it is unconstitutionally vague); ACCA, 18 U.S.C.
§ 924(e)(2)(B) (defining “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year . . .
that—(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosive, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”(emphasis added)). The
“residual clause” refers to the underlined language. See
Johnson, 576 U.S. at 593–94.
7 (Standing Order, dated June 8, 2016 [dkt. no. 323].)
The
Standing Order was issued “to allow the Court of Appeals to
clarify the application of Johnson to particular issues so that
the District Court may render consistent rulings, and to avoid
the District Court and the parties from being overwhelmed by the
filing of hundreds of habeas petitions on this issue at one
time.” (Id.) As such, Petitioner’s § 2255 motion [dkt. no.
322] initially served only as a “placeholder.” (See Order,
dated July 19, 2016 [dkt. no. 325].)
6

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for certiorari or rehearing in United States v. Hill, 14-3872.” 8
The Court granted the parties’ request. 9

On August 30, 2019 and

January 7, 2019, the Court of Appeals decided each case,
respectively, 10 after which Petitioner filed the instant § 2255
motion.
II.

(See Mot. Vacate.)
Legal Standard

a. The Habeas Statute and the Mandate Rule
28 U.S.C. § 2255 provides that a federal prisoner “may move
the court which imposed the sentence to vacate, set aside, or
correct the sentence” on the grounds, inter alia, “that the
sentence was imposed in violation of the Constitution or laws of
the United States, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack.”

28 U.S.C. § 2255(a).

Generally, § 2255 motions are

subject to the mandate rule, which prohibits relitigating issues
already decided on direct appeal. 11

See Mui v. United States,

614 F.3d 50, 53 (2d Cir. 2010) (citing Burrell v. United States,
(Dkt. no. 329, dated Aug. 16, 2016); see United States v. Hill,
890 F.3d 51 (2d Cir. 2018), cert. denied sub nom. Hill v. United
States, 139 S. Ct. 844 (2019); United States v. Barrett, 937
F.3d 126 (2d Cir. 2019).
9 (Dkt. no. 331, dated Aug. 16, 2016.)
10 (Order, dated Sept. 8, 2021 [dkt. no. 348].)
The Second
Circuit’s holdings in Barrett and Hill are further explained
below.
11 Petitioner did not raise the present issue on direct appeal
because “[t]he legal basis of the claim was not available [at
the time] because Johnson had not yet been decided.” (Mot.
Vacate at 5.)
8

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467 F.3d 160, 165 (2d Cir. 2006); United States v. Minicone,
994 F.2d 86, 89 (2d Cir. 1993)).

Moreover, “[t]he mandate rule

“prevents re-litigation in the district court not only of
matters expressly decided by the appellate court, but also
precludes re-litigation of issues impliedly resolved by the
appellate court’s mandate.”

Mui, 614 F.3d at 53.

III. Discussion
On or about November 29, 2005, and December 20, 2007,
Petitioner and his co-defendants committed two robberies, the
former of a wholesale diamond business, (Indictment at 5–6), and
the latter of a Federal Express tractor-trailer truck (id. at 6–
7).

In doing so, Petitioner and his co-defendants used,

carried, and possessed firearms, which were brandished during
each robbery.

(See id. at 5–7.)

The primary question presented to this Court underlying
Petitioner’s § 2255 motion is whether the predicate crime—Hobbs
Act robbery—constitutes a “crime of violence” under 18 U.S.C.
§ 924(c).

(See Mot. Vacate at 5; see also dkt. no. 359.)

As

relevant to the instant motion, Petitioner specifically argues
that Hobbs Act robbery does not qualify as a crime of violence
under § 924(c)(3)(A) because it “does not necessarily require,
as an element, either (1) the presence of violent physical force
or (2) the intentional employment of such force.”
at 5.)

(Mot. Vacate

The Government opposes Petitioner’s motion, relying on
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the Court of Appeals’ holding that Hobbs Act robbery constitutes
a “crime of violence” under § 924(c)(3)(A), thus precluding
Petitioner’s claim.

(Dkt. no. 359); see Hill, 890 F.3d at 53.

The Court agrees with the Government.
a. Relevant Statutory Law
The Court will begin by reviewing the relevant statutory
texts.

18 U.S.C. § 924(c)(3) defines a “crime of violence” as a

felony offense that—
(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, 12 or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another
may be used in the course of committing the offense. 13
18 U.S.C. § 924(c)(3).

As pertinent here, § 924(c)(1) further

provides that—
(A) . . . any person who, during and in relation to
any crime
of
violence . . . (including
a crime
of
violence . . . that provides for an enhanced punishment
if committed by the use of a deadly or dangerous weapon
or device) . . . , uses or carries a firearm, or who, in
furtherance
of
any
such
crime,
possesses
a firearm, shall, in addition to the punishment provided
for such crime of violence . . . —
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years . . . .
Id. § 924(c)(1).

Finally, § 924(c)(1) requires that—

See Hill, 890 F.3d at 54 (referring to § 924(c)(3)(A) as the
“force clause”).
13
See id. (referring to § 924(c)(3)(B) as the “risk-of-force
clause”).
12

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(C) [i]n the case of a violation of [subsection (c)]
that occurs after a prior conviction under [subsection
(c)] has become final, the person shall—
(i) be sentenced to a term of imprisonment of not less
than 25 years . . . .
Id.
Here, Counts Three and Five of the Indictment are
predicated on Petitioner’s involvement in Hobbs Act robberies.
(See Indictment at 1–5); see 18 U.S.C. § 1951.

In relevant

part, the Hobbs Act penalizes any individual who—
(a) [] in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or
conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a
plan or purpose to do anything in violation of this
section . . . .
18 U.S.C. § 1951(a) (emphasis added).

Lastly, subsection (b)

defines “robbery” as—
(1) . . . the unlawful taking or obtaining of personal
property from the person or in the presence of another,
against his will, by means of actual or threatened
force, or violence, or fear of injury, immediate or
future, to his person or property, or property in his
custody or possession, or the person or property of a
relative or member of his family or of anyone in his
company at the time of the taking or obtaining.
Id. § 1951(b)(1).
b. Analysis
Petitioner argues that Hobbs Act robbery is not a “crime of
violence” under § 924(c), relying on Johnson, where the Supreme
Court invalidated the “residual clause” of § 924(e)(2) on the
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basis that it was “unconstitutionally vague.”
at 597; see 18 U.S.C. § 924(e).

Johnson, 576 U.S.

Notwithstanding Johnson, the

Court of Appeals compared § 924(c) with the Hobbs Act to
conclude that Hobbs Act robbery categorically constitutes a
predicate “crime of violence” under § 924(c)(3)(A) because it
“has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.”

See

Hill, 890 F.3d at 51, 60 (quoting § 924(c)(3)(A)).
Following Hill, the Supreme Court held that § 924(c)(3)(B),
i.e., the “residual clause,” is unconstitutionally vague.
United States v. Davis, 139 S. Ct. 2319, 2336 (2019).

See

Despite

Davis, however, two subsequent Court of Appeals’ decisions
explicitly upheld Hill. 14

While Petitioner “acknowledges that

the holding in Hill forecloses his claim, [he] contend[s] that
Hill was wrongly decided, thus preserving the issue for further
review.”

(Dkt. no. 357.)

See United States v. McCoy, 995 F.3d 32, 54 (2d Cir. 2021)
(“Hill’s conclusion that Hobbs Act robbery is a crime of
violence within the meaning of § 924(c)(3)(A) was not eroded by
the Supreme Court’s subsequent ruling in Davis that the
alternative crime-of-violence definition in § 924(c)(3)(B) was
unconstitutionally vague. Rather, after Davis, a § 924(c)
conviction based on a crime of violence is valid only under
§ 924(c)(3)(A).”); Barrett, 937 F.3d at 130 (“If there is
anything Davis makes clear, it is the Supreme Court’s conviction
that . . . § 924(c)(3)(B) [is] unconstitutionally
vague . . . .”) (affirming the Court of Appeals’ previous
decision that Hobbs Act robbery is a “crime of violence” under
§ 924(c)(3)(A)).
14

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To determine whether a predicate offense constitutes a
“crime of violence,” the Second Circuit employs a “categorial
approach.”

McCoy, 995 F.3d at 54–55; see Taylor v. United

States, 495 U.S. 575 (1990).

This approach “requires that where

Congress has defined a violent felony as a crime that has the
use or threat of force ‘as an element,’ the courts must . . .
focus[] categorically on the offense’s statutory definition,
i.e., the intrinsic elements of the offense, rather than on the
defendant’s particular underlying conduct.”
54.

McCoy, 995 F.3d at

In doing so, the court must “consider the minimum conduct

necessary for a conviction of the predicate offense . . ., and
then [] consider whether such conduct amounts to a crime of
violence under § 924(c)(3)(A).”

Hill, 890 F.3d at 56.

Turning to Petitioner’s claim, as a threshold matter,
Petitioner was not charged with violating § 924(c)(1)(B), which,
as explained above, was invalidated by Davis.
Ct. 2319.

See Davis, 139 S.

Rather, Petitioner was charged with violating

§§ 924(c)(1)(A) and (C).

(See Indictment at 5–7.)

Prior Court

of Appeals’ decisions make clear that the foregoing subsections
of § 924 are distinguishable from subsection (c)(1)(B) and that
the Supreme Court has only invalidated subsection (c)(1)(B). 15
Further, the Court of Appeals has more than once upheld the

15

See supra note 14; see also Davis, 139 S. Ct. at 2336.
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Supreme Court’s decision in Hill that Hobbs Act robbery “has as
an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 16

Moreover,

“all of the circuits to have addressed [this] issue” have held
“that Hobbs Act robbery satisfies [§ 924(c)(1)(A)].”
F.3d at 56, 60 n.7.

Hill, 890

As such, this Court finds no basis to

depart from the Court of Appeals’ previous decisions that Hobbs
Act robbery constitutes a predicate crime of violence under
§ 924(c)(1)(A).

See United States v. Barrett, 903 F.3d 166, 184–85 (2d Cir.
2018) (“Our decision in [Hill] compels the conclusion that the
predicate substantive Hobbs Act robberies supporting
[defendant’s] § 924(c)(1)(A) . . . conviction[] . . . [is a]
categorical crime[] of violence as defined in 18 U.S.C.
§ 924(c)(3)(A).”), aff’d in part, vacated in part, 937 F.3d 126;
McCoy, 995 F.3d at 54 (“Comparing [§§ 924(c)(3)(A) and 1951(a)
and (b)(1)], [the Second Circuit] concluded that Hobbs Act
robbery has as an element the use, attempted use, or threatened
use of physical force against the person or property of another,
and thus is a crime of violence within the meaning of that
provision.” (cleaned up)).
16

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IV.

Conclusion

For the reasons set out above, Petitioner’s motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 (dkt. no. 322)
is denied.
The Clerk of the Court is directed to close the open
motions (dkt. no. 322 in 08-cr-1327; dkt. no. 1 in 16-cv-4600)
and close case number 16-cv-4600.

The Clerk of the Court is

further directed to mail a copy of this order to Mr. Rivera.
SO ORDERED.
Dated:

New York, New York
April 26, 2022
____________________________
LORETTA A. PRESKA
Senior United States District Judge

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