Opinion
19-CR-6066L 20-CV-6307L
2020-07-27
UNITED STATES of America, Plaintiff, v. Christopher D. RIVERS, Jr., Defendant.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for Plaintiff. Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant.
Cassie M. Kocher, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
Wedade Wendy Abdallah, Federal Public Defender, Rochester, NY, for Defendant.
DECISION & ORDER
DAVID G. LARIMER, United States District Judge
Defendant Christopher D. Rivers, Jr. ("Rivers") filed a pro se motion to vacate his judgment and sentence pursuant to 28.S.C. § 2255. (Dkt. #29). Rivers later filed another motion (Dkt. #32) raising some additional claims, including allegations of ineffective assistance of his trial counsel. The Court has treated the later filing as an amendment to Rivers's initial motion.
The Government has filed a detailed Answer (Dkt. #38) to Rivers's motions with several attachments, including copies of the Plea Agreement (Dkt. #38, Ex. 1), a transcript of the plea proceeding and a transcript of the sentencing hearing. For several reasons, Rivers's motions are in all respects DENIED.
This appears to be nothing more than a classic case of buyer's remorse. Rivers waived Indictment and pleaded guilty on May 23, 2019 to a one-count Information, charging a violation of 18 U.S.C. § 922(g)(1), that is being a felon in possession of a firearm. The Plea Agreement set forth in detail a factual basis for the plea which included facts relating to Rivers's firing of the firearm multiple times out of his apartment window. The Plea Agreement provided for an enhancement under 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense. That four-level increase was agreed to by counsel, was contained in writing in the Plea Agreement and, during the plea colloquy, Rivers acknowledged that he was aware of that enhancement. This Court specifically questioned him about it. Rivers also received a three-point downward adjustment because of acceptance of responsibility.
This Plea Agreement was tendered to the Court pursuant to Fed. R. Crim. P. 11(c)(1)(C) where the parties agreed to a specific 30-month sentence. According to the Plea Agreement, Rivers had a Criminal History of IV and his Guideline range was 30-37 months. The Plea Agreement also contained a specific provision barring plaintiff from filing a direct appeal or bringing a collateral attack on the judgment and sentence.
After receiving and reviewing a Presentence Report, the Court advised the parties at the sentencing hearing on August 6, 2019 that it would accept the Rule 11(c)(1)(C) agreement and sentence Rivers to the agreed-upon 30-month term of imprisonment. Rivers raised no objection at that time to the four-level increase for possessing the firearm in connection with another felony offense, nor did he raise any of the other issues now raised in this 2255 motion. Judgment was duly filed in this case and Rivers did not appeal that judgment.
There are several reasons why the present motion must be denied. First of all, it is clear from the Plea Agreement and the plea colloquy that when Rivers pleaded guilty, he was fully advised of all the terms of the Plea Agreement, including the four-level enhancement. The agreed-upon sentence was at the low end of Guideline range – 30 months – which was a benefit to him. It also appears that there were no state charges pursued based on the Plea Agreement and sentence. Rivers received the benefit of the bargain and he should be held to the rest of the terms of the agreement, which includes precluding any direct appeal or collateral attack such as this motion under Section 2255.
The issues raised by Rivers in this motion are raised for the first time in the motion and the law is clear that Section 2255 is not a vehicle for raising issues that could have been raised on appeal. Rivers did not appeal and he is precluded from raising these issues for the first time in this Section 2255 motion. The Government is entitled to have the Plea Agreement enforced relative to the legal issues raised by Rivers now.
On the merits, Rivers fares no better. Rivers claims that his conviction should be vacated based on the Supreme Court decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which was decided after Rivers pleaded guilty. In Rehaif , the Supreme Court held that in a prosecution under Section 922(g), the Government must prove, in addition to the other elements, that the defendant knew that he was a person previously convicted of a felony.
In the Plea Agreement, the elements were discussed and the Information to which Rivers pleaded specifically stated that on the day in question, January 25, 2019, Rivers "knowing that he had previously been convicted" of a felony in Orleans County Court did knowingly possess the 12 gauge shotgun. Furthermore, as the Government points out in its Answer (Dkt. #38, pp.8-9), the factual basis recited defendant's knowledge that he had been convicted of a crime punishable by a term exceeding one year. Specifically, paragraph 4(c) of the Plea Agreement contained the following sentence: "The defendant admits that he knew of this previous felony conviction at the time he possessed the Winchester Defender 12 gauge shotgun." So on this record, there is no basis for relief based on the Rehaif decision.
Rivers also claims now, for the first time, that the four-level enhancement for possessing the shotgun in furtherance of another felony offense was not proper. Clearly, though when one pleads guilty evidentiary issues including sufficiency of the evidence are waived. Furthermore, Rivers admitted facts in the Plea Agreement that he "fired the firearm multiple times out of the apartment window in an apartment complex that includes multiple apartment buildings and parking lots." (Dkt. #38, Ex. 1, p.3). He also admitted that by firing the firearm, he "recklessly engaged in conduct that created a grave risk of death to others" and that he acted with "depraved indifference to human life." During the plea colloquy, the Court specifically asked Rivers if he agreed with the statement in the Plea Agreement that he "fired off the firearm" from the apartment window and Rivers admitted doing that. (Dkt. #38, Ex. 2, p.7). All of this clearly demonstrates that there was more than a sufficient factual basis to accept the plea and to also find that the four-level enhancement was entirely justified. Rivers was aware of the enhancement, agreed to it, and acknowledged conduct justifying its application.
Rivers also advances a claim that his trial counsel was ineffective. The record does not support that. Rivers has failed to carry his burden of demonstrating ineffective assistance of counsel. The United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established a two-part test for determining ineffective assistance of counsel. The defendant faces this difficult two-part test and must demonstrate (1) that his lawyer's performance was deficient as measured against an objective standard and, importantly (2) that this performance prejudiced him in some way. If a defendant fails to meet either prong, the Court must deny the claim.
In analyzing the first prong, the Court starts with the strong presumption that counsel's conduct fell within the range of reasonable professional assistance. In this case, Rivers had an experienced criminal defense lawyer who was able to arrange a rather favorable Plea Agreement including a sentence at the low end of the Guideline range, which plea resolved the Federal charge and any potential state charge. Rivers claims that the four-level enhancement was not proper but it clearly was and it certainly was supported by the facts set forth in the Plea Agreement as well as Rivers's admissions.
Furthermore, Rivers has failed to demonstrate that his lawyer's performance undermined the voluntary and intelligent nature of his decision to plead guilty. In fact, during the plea colloquy Rivers admitted that he was satisfied with the advice given him by his counsel. There is no suggestion now that Rivers would not have pleaded guilty but for counsel's alleged errors. In fact, Rivers makes no claim now that he is actually innocent and makes no specific requests that he wants to withdraw his guilty plea. There is no evidence here and in fact no reasonable probability that Rivers would not have pleaded guilty and instead gone to trial but for counsel's alleged error. Viewing the matter objectively, counsel's actions were entirely reasonable and, more to the point, Rivers was well aware of them and agreed to the enhancement which affected his sentence.
The plea colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure was thorough and demonstrated that Rivers was fully aware of the items set forth in the Plea Agreement, the Sentencing Guidelines, the facts and the agreed-upon sentence.
Rivers has failed to carry either prong of this Strickland test: he has failed to demonstrate that counsel's performance was deficient in any way and he has failed to demonstrate any prejudice whatsoever. Under such circumstances, the motion based on ineffective assistance of counsel is rejected and denied. Rivers also makes some reference, which is not entirely clear, to two Supreme Court decisions, Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), but neither case has anything to do with Rivers's case which does not involve a mandatory minimum. Rivers was sentence at 30-months, well below the statutory maximum.
I have considered all of the above and all of the other matters and claims raised by Rivers and find none of them warrant any relief.
CONCLUSION
The motion of Christopher D. Rivers, Jr. (Dkt. ##29, 32) pursuant to 28 U.S.C. § 2255 is in all respects DENIED and the petition is dismissed.
I also decline to issue a Certificate of Appealability because Rivers has failed to make a substantial showing of the denial of any constitutional right.
IT IS SO ORDERED.