United States v. Giacomini , 93 F. App'x 477 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-7-2004
USA v. Giacomini
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2362
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"USA v. Giacomini" (2004). 2004 Decisions. Paper 854.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2362
___________
UNITED STATES OF AMERICA
v.
HAROLD GIACOMINI,
a/k/a Hal
Harold Giacomini,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Judge: The Honorable Jan E. DuBois
(D.C. Criminal. No. 01-cr-00100-2)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 22, 2004
Before: FUENTES, SMITH and GIBSON*, Circuit Judges.
(Opinion Filed: April 7, 2004)
_______________
* The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
_______________________
OPINION OF THE COURT
_______________________
FUENTES, Circuit Judge:
On February 22, 2001, Harold Giacomini was indicted in the Eastern District of
Pennsylvania for violations of 18 USC §371, conspiracy, §2322, operating and conducting
a chop shop, and §511, alteration of vehicle identification numbers and aiding and abetting.
The charges were in connection with his employment at Borners Auto Body, a salvage yard
which dealt in stolen vehicle parts and “chopped” vehicles. On September 12, 2001,
Giacomini pled guilty to these offenses. A sentencing hearing was held on April 29, 2003
and the guideline level agreed upon by the government and the defense was accepted by the
District Court Judge. Giacomini was sentenced to five months imprisonment, a five month
period of in-home detention, three years of supervised release, a $6000 fine and $200
assessment. On May 8, 2003, Giacomini filed a timely notice of appeal. Thereafter, on
August 1, 2003, William Lawson III, counsel for Giacomini, filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), expressing his belief that Giacomini cannot raise any non-
frivolous issues for our review, and directing us, as is required under Anders, to the issues
that he thought Giacomini might raise on appeal. Giacomini has not filed a pro se brief on
his own behalf.
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First, counsel notes that Giacomini might challenge the plea agreement he entered into
with the government. An examination of the colloquy during which Giacomini entered his
guilty plea, however, demonstrates that there is no meritorious appellate issue with respect
to that plea. During the colloquy, the District Court made certain that Giacomini understood
the charges and wanted to enter a plea of guilty to each charge. The District Court ensured
that Giacomini was, in fact, guilty of the crimes charged and reviewed the maximum
penalties that could be imposed and the rights that Giacomini was waiving by pleading guilty.
At the end of the colloquy, having determined that Giacomini’s plea of guilty was knowing
and voluntary, the District Court accepted the plea.
Next, counsel notes that Giacomini might challenge the sentencing determination
made by the District Court. The pre-sentence report indicated a total adjusted offense level
of 19 and a criminal history of category I, resulting in a guideline range of imprisonment
from 30 to 37 months. Because Giacomini cooperated in the investigation of his
codefendants, the government filed a motion for downward departure under section 5K1.1
which was granted by the District Court. The sentence handed down, while a substantial
departure from the agreed upon guideline range, was therefore in conformity with the
sentencing guidelines.
After carefully reviewing the briefs and accompanying materials of record, we will
affirm the conviction and sentence. Counsel conducted a conscientious review of the record
and concluded that there were no non-frivolous issues that could be raised on appeal, as
required by Anders. 386 U.S. at 744. We have conducted an independent examination of the
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record before us, and we agree with counsel that there are no non-frivolous issues that justify
review. Because counsel has complied with all of the procedures specified in Anders, we
will grant his motion for withdrawal.
For the foregoing reasons, we will AFFIRM the Judgment of the District Court and
GRANT counsel’s request to withdraw.
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