Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-28-2007

USA v. Rivera
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3372




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Recommended Citation
"USA v. Rivera" (2007). 2007 Decisions. Paper 360.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/360


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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 06-3372


                            UNITED STATES OF AMERICA

                                             v.

                                     JAIME RIVERA,
                                           Appellant


                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 91-cr-00394-1)
                        District Judge: Honorable Stewart Dalzell


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 10, 2007

      Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.

                                (Filed September 28, 2007)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Before the Court is an appeal from an order by the District Court denying a motion

for a reduction of sentence. We will affirm the order. As we write for the benefit of the

parties alone, we include only those facts necessary for the disposition of this appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Rivera began serving a 292
month sentence in 1992 after being convicted by a jury of various drug charges. Two of

the counts of conviction stated that Rivera had distributed cocaine within 1,000 feet of a

middle school in Allentown, Pennsylvania. As provided by U.S.S.G. § 2D1.2, Rivera’s

sentence was enhanced two levels due to the proximity to those schools.

       Rivera’s claim is brought under 18 U.S.C. § 3582(c)(2), which allows for the ex

post reduction of a sentence if it was based on a sentence range that is later lowered by

the Sentencing Commission. Rivera argues that Amendment 591 to the Sentencing

Guidelines—which clarifies that the school-proximity enhancement (U.S.S.G. § 2D1.2)

should not be imposed based on uncharged relevant conduct, but only based on the crime

of conviction—would lower his applicable sentence range.

       Here, the proximity to the two schools was clearly charged in two of the counts.

As the District Court found, it is “undisputed that Rivera was convicted of selling drugs in

a school zone.” The motion was properly denied and we will affirm the order of the

District Court.




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