United States v. Olmedo , 86 F. App'x 522 ( 2004 )


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  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-30-2004
    USA v. Olmedo
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 02-4105
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
    Recommended Citation
    "USA v. Olmedo" (2004). 2004 Decisions. Paper 1059.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1059
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-4105
    UNITED STATES OF AMERICA
    v.
    THOMAS J. OLMEDO a/k/a WHITE BOY TOMMY
    THOMAS OLMEDO
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Crim. No. 01-cr-00449)
    District Judge: Honorable Petrese B. Tucker
    Submitted Under Third Circuit LAR 34.1(a)
    January 15, 2004
    Before: Sloviter, Rendell and Aldisert, Circuit Judges.
    (Filed January 30, 2004      )
    OPINION OF THE COURT
    1
    ALDISERT, Circuit Judge.
    Counsel has submitted for our consideration a brief filed under the teachings of
    Anders v. California, 
    386 U.S. 738
     (1967) – an appointed appellate counsel who “finds
    [a] case to be wholly frivolous, after a conscientious examination of” the case must so
    advise this court and request permission to withdraw. 
    386 U.S. at 744
    . The request must
    be accompanied by “a brief referring to anything in the record that might arguably
    support the appeal.” 
    Id.
     A copy of counsel’s brief was furnished to Appellant, who was
    given time to raise any non-frivolous arguments in a pro se brief. 
    Id. at 744
    ; 3rd Cir. R.
    109.2(a). Appellant has not filed such a brief.
    The Anders brief has referred us to portions of the record that arguably present
    non-frivolous issues and has identified the following sole issue: the court may have erred
    in denying Olmedo’s motion for a downward departure based on his diminished capacity
    for the claim that his criminal history overstates the seriousness of his prior criminal
    conduct.
    The policy statement for diminished capacity set forth in the Sentencing
    Guidelines provides in part:
    [T]he court may not depart below the applicable guideline
    range if 1) the significantly reduced mental capacity was
    caused by the voluntary use of drugs or other intoxicants; 2)
    the facts and circumstances of the defendant’s offense
    indicate a need to protect the public because the offense
    involved actual violence or serious threat of violence; or 3)
    the defendant’s criminal history indicates a need to
    2
    incarcerate the defendant to protect the public.
    U.S.S.G. § 5K2.13. The district court considered the departure motion and determined
    that even though Olmedo may have suffered from diminished capacity, he did not meet
    any of the three conditions necessary for application of downward departure under §
    5K2.13.
    We are satisfied that the district court knew that it had the authority to impose a
    downward departure and exercised its discretion not to do so. Accordingly, this court
    does not have jurisdiction. United States v. Torres, 
    209 F.3d 308
    , 309 n.1 (3d Cir.
    2000), cert. denied, 
    531 U.S. 864
     (2000).
    We are satisfied that no non frivolous argument could be presented in the case at
    bar. Because counsel has complied with all of the procedures specified in Anders, we
    will grant his motion for withdrawal.
    For the reasons set forth, we will dismiss Olmedo’s appeal.
    TO THE CLERK:
    Please file the foregoing opinion.
    s/Ruggero J. Aldisert
    Circuit Judge
    3
    O:\UNPUBLIS\2002\024105np.wpd   4
    

Document Info

Docket Number: 02-4105

Citation Numbers: 86 F. App'x 522

Filed Date: 1/30/2004

Precedential Status: Non-Precedential

Modified Date: 1/12/2023