Judge Used the Wrong Mandatory Minimum: Amendment 782 Reduction Sent Back

If a judge reduces your sentence using the wrong mandatory minimum, an appeals court may send the case back so the judge can decide again. That is what happened to Reinaldo Rivera in 2017.

Rivera asked for a reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782. Amendment 782, known as "drugs minus two," lowered the base offense level for most drug amounts by 2 levels. The Sentencing Commission made it retroactive. USSG §1B1.10(d).

The district court granted the motion and cut his sentence from life to 420 months. But the judge thought the mandatory minimum for his continuing criminal enterprise (CCE) conviction was 30 years. That was wrong. The 30-year minimum applies only if you have a prior CCE conviction, and Rivera did not. His correct minimum was 20 years. 21 U.S.C. § 848(a).

Why the Second Circuit sent it back

Rivera had not objected in the district court, so the Second Circuit reviewed for "plain error." That is a hard standard: the error must be clear and must have affected the result.

The government admitted the minimum was wrong, but argued the judge would have given the same sentence anyway. The court disagreed. It said the fact that the sentence was above the correct minimum would not, "without more," show the judge would have reached the same result. The court was "not convinced" that the error had no effect on Rivera's sentence.

The court remanded, so the district judge could decide whether to impose a different sentence. United States v. Rivera, No. 15-4141-cr (2d Cir. Jan. 18, 2017).

What this means for you

If your sentence reduction was based on a wrong number, such as the wrong mandatory minimum or guideline range, you may be able to get the judge to look at it again. Two lessons from Rivera:

• Check the numbers in the order. Compare the minimum and the range the judge used against the statute of conviction and the presentence report. Rivera's error was in a single number, and it mattered.
• Move quickly. Appeal deadlines are short. Courts generally treat an appeal from a § 3582(c)(2) ruling like a criminal appeal, with a notice of appeal due within 14 days of the order. Fed. R. App. P. 4(b)(1)(A). If you are unsure whether the deadline applies, assume it does.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.