United States v. Silvestre M. Rivera

OVERVIEW

The defendant in this case, Silvestre May-orquin Rivera (“Rivera”), entered into a plea agreement in which he pled guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113 (a). The district court sentenced Rivera to 168 months in prison followed by thirty-six months of Supervised release. Rivera timely appeals that sentence on three separate grounds, arguing that the district court erred in: (1) sentencing him as a career offender; (2) failing to make a downward departure from the Sentencing Guidelines; and (3) sentencing him to fourteen years in prison when 18 U.S.C. § 3581 only authorizes a maximum of twelve years for a Class C felony.

The district court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm.

BACKGROUND

Rivera committed several bank robberies in Arizona and California between September, 1990, and March, 1991, when he was finally apprehended with the aid of a tracking device. In April, 1991, he was indicted by a federal grand jury in Arizona for one count of bank, robbery. In August, 1991, a federal grand jury in the Central District of…

996 F.2d 993 UNITED STATES of America, Plaintiff-Appellee, v. Silvestre M. RIVERA, Defendant-Appellant. No. 92-10063. United States Court of Appeals, Ninth Circuit. Submitted Oct. 8, 1992. * Decided June 24, 1993. John R. Hannah, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. W. Allen Stooks, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: POOLE, FERNANDEZ, and T.G. NELSON, Circuit Judges. T.G. NELSON, Circuit Judge: OVERVIEW 1 The defendant in this case, Silvestre Mayorquin Rivera ("Rivera"), entered into a plea agreement in which he pled guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113 (a). The district court sentenced Rivera to 168 months in prison followed by thirty-six months of supervised release. Rivera timely appeals that sentence on three separate grounds, arguing that the district court erred in: (1) sentencing him as a career offender; (2) failing to make a downward departure from the Sentencing Guidelines; and (3) sentencing him to fourteen years in prison when 18 U.S.C. § 3581 only authorizes a maximum of twelve years for a…

dissenting:

I.

While Congress left the United States Sentencing Commission largely on its own to devise the Sentencing Guidelines, in certain areas it gave the Commission specific directives. One such directive deals with “career criminal offenders.” It states:

28 U.S.C. § 994 (h).

The language of subsection (2)(B) is quite specific. It classifies as predicate offenses prior violations of five enumerated federal narcotics statutes: “section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a).” State narcotics offenses are not specified. Nor are some federal narcotics offenses.

Despite the specificity of this directive, the Sentencing Commission adopted the following career offender provisions:

U.S.S.G: §§ 4B1.1, 4B1.2(2) (emphasis added).

The Sentencing Guidelines thus make virtually all prior felony drug convictions, whether state or federal, count toward career offender sentencing. Because in so doing the Guidelines exceeded their statutory mandate, and because the appellant in this case…