USA v. Bennie C. Rivera

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14186
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNIE C. RIVERA,
a.k.a. Mario Quinones,
a.k.a. Carlos Alberto Quinones,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 22-14186
D.C. Docket No. 6:04-cr-00104-JA-LHP-2
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Before ROSENBAUM, G RANT, and T JOFLAT, Circuit Judges.
PER CURIAM:
Bennie C. Rivera, proceeding pro se, appeals the District
Court’s order denying his motion for relief under the First Step
Act. In response, the Government moves for summary affir-
mance and to stay the briefing schedule.
I. Background
In 2009, Rivera was convicted of two offenses: conspiracy
to possess with intent to distribute heroin and possession with in-
tent to distribute heroin. And because of a previous drug convic-
tion, Rivera faced mandatory minimum sentences.1 Thus, the
District Court imposed concurrent twenty-year sentences. Rivera
appealed that sentence, but we affirmed. See United States v. Rive-
ra, 365 F. App’x 200, 201 (11th Cir. 2010) (per curiam).
In 2019, Rivera sought a reduction of his sentence under
the First Step Act. But the District Court denied it, explaining
that Rivera didn’t qualify for relief under the Act because he was
not sentenced for a “covered offense”—his offense involved hero-
in, not cocaine. Rivera moved for reconsideration but that was
also denied.
1 In 1994, Rivera pleaded guilty to one count of conspiracy to possess with
intent to distribute five grams or more of cocaine.
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22-14186 Opinion of the Court 3
We saw Rivera’s appeal, which was met with the Govern-
ment’s motion for summary affirmance. We granted the Gov-
ernment’s motion, citing the untimeliness of Rivera’s appeal and
his ineligibility for First Step Act relief. See United States v. Rivera,
824 F. App’x 598, 600 (11th Cir. 2020).
In 2022, Rivera once again moved for a sentence reduction
under the First Step Act. But the District Court denied it, citing
its prior 2019 denial. That led to the current appeal.
II. Legal Argument
Rivera’s argument is twofold. First, the District Court
erred by denying his motion without a hearing on the merits.
And second, the District Court abused its discretion by not adher-
ing to a Supreme Court mandate.
The Government responds by moving for summary affir-
mance. It argues that the law-of-the-case doctrine bars Rivera
from relitigating this matter. It also argues he was not entitled to
a hearing and is still not eligible for relief under the First Step Act.
III. Discussion
Summary disposition is proper where “the position of one
of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case.” Groen-
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4 Opinion of the Court 22-14186
dyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).2
Summary affirmance is proper here.
To begin, the law-of-the-case doctrine makes our decisions
“bind[ing] [on] all subsequent proceedings in the same case.”
United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 2014) (quota-
tions omitted). So, our ruling in Rivera, 824 F. App’x at 600, binds
Rivera in challenging his eligibility under the First Step Act again
because he appeals the same issue this Court already summarily
affirmed.
Rivera is also not entitled to a hearing on this issue. This
Court has explained that “the First Step Act does not require dis-
trict courts to hold a hearing with the defendant present before
ruling on a defendant’s motion for a reduced sentence.” See Unit-
ed States v. Denson, 963 F.3d 1080, 1082 (11th Cir. 2020), abrogated in
part on other grounds by Concepcion v. United States, 142 S. Ct. 2389,
2404 (2022); see also United States v. Files, 63 F.4th 920, 925 (11th
Cir. 2023) (recognizing Denson’s non-abrogated holding that a de-
fendant has no due process right to a hearing on a First Step Act
motion).
And as for Rivera’s claim that the District Court didn’t fol-
low a Supreme Court mandate, we disagree. Rivera cites Concep-
cion v. United States, which holds that sentencing courts may con-
sider intervening changes of law or fact in adjudicating a First
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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22-14186 Opinion of the Court 5
Step Act motion—so this must be the mandate to which Rivera
refers. 142 S. Ct. at 2396. But no changes of law or fact have
made Rivera eligible for relief under the Act. That is true because
the First Step Act and the Fair Sentencing Act still only address the
sentencing disparity between offenses involving cocaine base and
powder cocaine, not heroin.3
Indeed, there is no substantial question as to this case’s
outcome, and the Government is correct as a matter of law.
Thus, the summary affirmance motion is GRANTED and the
motion to stay the briefing schedule is DENIED as moot.
3 See First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222.
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