United States v. Nicholas Rivera
Opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 15-3689
UNITED STATES OF AMERICA
v.
NICHOLAS RIVERA,
a/k/a Nike
Nicholas Rivera,
Appellant
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-14-cr-00175-001)
District Judge: Honorable Christopher C. Conner
Submitted under Third Circuit L.A.R. 34.1(a)
on March 19, 2019
Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges (Opinion filed: April 4, 2019)
OPINION*
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
KRAUSE, Circuit Judge.
Appellant Nicholas Rivera appeals his sentence on the grounds that the District Court erroneously applied the career-offender enhancement under § 4B1.1 of the United States Sentencing Guidelines and that it violated Federal Rule of Criminal Procedure 32(i)(1)(A) by failing to verify that he reviewed the Presentence Report (PSR) with his counsel. For the reasons that follow, we will affirm. I. Background Rivera pleaded guilty to a one-count superseding information charging him with distribution and possession with intent to distribute heroin and cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). At Rivera’s sentencing hearing, the District Court applied the career-offender enhancement based on his two prior state convictions for possession with intent to distribute narcotics in violation of 35 Pa. Stat. Ann. § 780- 113(a)(30). As a result, Rivera’s Guidelines range was 151-188 months’ imprisonment, and the District Court sentenced him to the bottom of the range. Rivera timely appealed.
On July 5, 2018, a motions panel of this Court granted Rivera’s counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967), but directed that new counsel be appointed to address, inter alia, “whether use of the word ‘delivery’ in [35 Pa. Stat. Ann.] § 780-113(a)(30) makes the statute potentially broader than the generic controlled substance offense defined by the U.S. Sentencing Guidelines, which does not contain that term.” Order, United State v. Rivera, No. 15-3689 (3d Cir. July 5, 2018). However, in the time between the issuance of that order and Rivera’s filing of his
opening brief, we issued our opinion in United States v. Glass, where we held that “because [35 Pa. Stat. Ann.] § 780-113(a)(30) does not sweep more broadly than [U.S.S.G.] § 4B1.2, it is a ‘controlled substance offense’ and may serve as a predicate offense to a career-offender enhancement under § 4B1.1.” 904 F.3d 319, 324 (3d Cir. 2018). II. Discussion1 Rivera makes two arguments on appeal, both of which are unavailing.
First,2 recognizing that his argument about the supposed differing scope of “delivery” under Pennsylvania law and federal law is now foreclosed by Glass, Rivera contends that Glass failed to consider the significance of Commonwealth v. Donahue, 630 A.2d 1238 (Pa. Super. Ct. 1993); that Donahue demonstrates that Pennsylvania’s definition of “delivery” reaches “a wider range of conduct” than its federal counterpart, “including, most notably, mere offers to buy or sell controlled substances”; and that we therefore should “reconsider and abrogate” Glass, Appellant’s Br. 11-12. We decline this invitation.
As a threshold matter, “the holding of a panel in a precedential opinion is binding on subsequent panels” absent intervening authority, which Donahue is not. 3d Cir. I.O.P. 9.1 (2018); see United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). And, in any
event, we recently rejected Rivera’s argument on the merits: In United States v. Daniels, we explained that Donahue does not undermine our conclusion in Glass that 35 Pa. Stat. Ann. § 780-113(a)(30) is no broader than the Guidelines’ definition of a “controlled substance offense” because the Guidelines definition, too, “applies not only to a statute that bars distribution of controlled substances, but also to ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’” Daniels, 915 F.3d 148, 152, 163-64 (3d Cir. 2019) (emphasis removed) (quoting Glass, 904 F.3d at 322, and U.S.S.G. § 4B1.2 cmt. n.1).3 Second, Rivera argues, concededly on plain error review, that the District Court erred by failing to comply with Rule 32(i)(1)(A), which provides, “[a]t sentencing, the court: (A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A). A party claiming plain error must prove that (1) the court erred; (2) the error was plain; and (3) it “affect[ed] substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993). For “substantial rights” to be affected, “‘the error must have been prejudicial,’ that is, ‘[i]t must have affected the outcome of the district court
proceedings.’” United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000) (alternation in original) (quoting Olano, 507 U.S. at 734). In addition, the error must “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
We “ha[ve] declined to interpret Rule 32[(i)(1)(A)] as creating ‘an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report and discuss it with counsel,’” and “[i]nstead, . . . have allowed for a more functional fulfillment of the rule, requiring only that the district court ‘somehow determine that the defendant has had this opportunity.’”4 Stevens, 223 F.3d at 241 (quoting United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986)). Here, the Government argues that “functional” fulfillment of Rule 32(i)(1)(A) was achieved because, in advance of sentencing, Rivera’s counsel submitted a letter to the U.S. Probation Office, which was attached as an addendum to the PSR, in which he raised certain objections to the PSR and asserted that “[he] and Mr. Rivera have reviewed your [PSR],” Gov’t Br. 21, thereby demonstrating that “prior to the sentencing hearing, the district court had been advised in writing that defense counsel had reviewed the PSR with Rivera.” Gov’t Br. 21-22.
We agree with the Government. While Rule 32(i)(1)(A) requires that the district court verify “[a]t sentencing” the defendant’s review and discussion of the PSR with counsel, we did not specify in Stevens that the court must fulfill the Rule’s requirements
at the sentencing hearing itself; rather, we stated that Rule 32(i)(1)(A) requires the court to do so “before imposing sentence.” 223 F.3d at 241. And the District Court complied with that obligation here: Based on Rivera’s counsel’s submission, the Court was able to verify in advance of sentencing that Rivera reviewed the PSR with his counsel. Moreover, at the sentencing hearing itself, the District Court implicitly acknowledged that fact by noting that Rivera had submitted objections to the PSR. We therefore perceive no error on the part of the District Court, much less “plain error.”5 Accordingly, we will affirm the sentence imposed by the District Court.
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