govinfo:USCOURTS-tnmd-3_03-cr-00078-0

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES OF AMERICA )
)
v. ) NO. 3:03-00078
) JUDGE CAMPBELL
JESSIE RIVERA )
ORDER
Pending before the Court is the Defendant’s Motion For Nunc Pro Tunc Judgment And
Sentence (Docket No. 158), and the Government’s Response (Docket No. 162) thereto. Through
the Motion, the Defendant requests that the Court reduce his sentence because one of his prior
convictions should not have been counted as a predicate offense for Career Offender purposes. 
On July 13, 2004, the Defendant pled guilty to charges alleging drug trafficking and
firearms violations. (Docket Nos. 102, 141). The Court subsequently sentenced the Defendant as
a Career Offender to a total term of 420 months of imprisonment. (Docket No. 133, 137). The
Sixth Circuit affirmed. (Docket Nos. 135, 144). 
On January 22, 2007, the Defendant filed a Motion to Vacate (Docket Nos. 1, 2 in Case
No. 3:07-00086). The Defendant argued, among other things, that the Court erred in
determining that he should be sentenced as a Career Offender. The Court ruled on the
sentencing issue as follows: 
Petitioner next argues that the Court erred in determining that he should be
sentenced as a career offender because his prior conviction was actually for
possession and not distribution, and involved cocaine powder rather than cocaine
base. 
At the sentencing hearing, the Court found that the following convictions PageID #: <pageID>
counted toward Petitioner’s career offender status: (1) an April 13, 1992
California conviction (offense date of February 13, 1992) of possession of
cocaine base for resale; (2) an August 11, 1993 California conviction (offense
date of June 27, 1993) of possession or purchase of a controlled substance for
resale; and (3) a January 7, 2000 Tennessee conviction (offense date of April 8,
1999) for facilitation. (Id.
, at 41; Presentence Investigation Report at ¶¶ 57, 59, 61
(Docket No. 136); Sentencing Hearing Exhibits 1- 4 (attached to Docket No.
132)). 
During the sentencing hearing, Petitioner’s counsel argued that
Petitioner’s prior April 13, 1992 conviction was a misdemeanor and not a felony
because the actual sentence imposed was less than one year. (Transcript of
Sentencing Hearing, at 29-34 (Docket No. 137 in Case No. 3:03-00078)). The
Government argued that the statutory penalty for the crime charged exceeded one
year, and that the actual sentence imposed did not convert the offense from a
felony to a misdemeanor under the Sentencing Guidelines. (Id.
, at 29-35). The
Court found that the prior conviction was a felony. (Id., at 35-36, 43). 
Petitioner does not offer any proof to support his claim that the first
conviction involved powder cocaine, rather than cocaine base, nor does he
explain why it would have made any difference in the Court’s determination that
the conviction was a felony and was appropriately counted toward career offender
status. As for Petitioner’s argument that the prior convictions were actually for
“possession,” he again offers no proof that the convictions were actually for
simple possession or were otherwise misdemeanors, nor has he explained why
they should not have been counted toward career offender status. 
Petitioner simply offers no new arguments as to why the Court’s
sentencing determination was in error. The Court notes that the Sixth Circuit, on
appeal, held that Petitioner was properly sentenced as a career offender, and that
his other claims regarding his sentence were without merit. (Order, at 2-3 (Docket
No. 144 in Case No. 3:03-00078)). 
Accordingly, the Court concludes that Petitioner’s sentencing claims are
without merit and are dismissed. 
(Docket No. 8, at 7-8, in Case No. 3:07-00086). 
On March 26, 2013, the Defendant filed a Motion For Relief From Judgment (Docket
No. 14 in Case No. 3:07-00086) based on Rule 60 of the Federal Rules of Civil Procedure. 
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Through the Motion, the Defendant again argued that his April 13, 1992 California conviction
should not have been counted as a predicate offence for Career Offender purposes. The Court
construed the Motion as a second or successive habeas petition and transferred it to the Sixth
Circuit for authorization to proceed. (Docket No. 23 in Case No. 3:07-00086). The Sixth Circuit
denied authorization. (Docket No. 35 in Case No. 3:07-00086). 
Through the pending Motion, the Defendant again argues that he should not have been 
sentenced as a Career Offender, and has filed numerous documents regarding his prior California
convictions.
A district court has the authority to alter a sentence only in certain narrow circumstances:
(1) to correct a “clear error” within fourteen days after imposition of sentence, Fed.R.Crim.P.
35(a); (2) to correct a clerical error at any time, Fed.R.Crim.P. 36; (3) to grant a motion made by
the Government for a reduced sentence, Fed.R.Crim.P. 35(b); (4) to correct a sentence upon
remand from a higher court, 18 U.S.C. § 3742; (5) to apply a Sentencing Guideline made
retroactive, or to the extent otherwise expressly permitted by statute, 18 U.S.C. § 3582(c)(1)(B),
(c)(2); and (6) upon a motion by the Director of the Bureau of Prisons, 18 U.S.C. § 3582(c)(1).
United States v. Penson
, 526 F.3d 331(6th Cir. 2008); United States v. Robinson, 368 F.3d 653,
656-57 (6th Cir. 2004). This case does not fall within any of these categories. 
To the extent the Defendant requests relief under Rule 60(b) of the Federal Rules of Civil
Procedure, he has failed to cite any authority indicating that the rule provides a basis for
amending a judgment in a criminal case. In any event, the Defendant was found to have three
qualifying convictions supporting his Career Offender status, which requires only two qualifying
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convictions. U.S.S.G. § 4B1.1. The Defendant’s submissions do not indicate that the August 11,
1993 California conviction or the January 7, 2000 Tennessee conviction were improperly
considered as predicate offenses. Accordingly, the Defendant’s Motion is DENIED. 
It is so ORDERED.
______________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE
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