United States v. Mazzuca , 139 F. App'x 471 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-20-2005
USA v. Mazzuca
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3381
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"USA v. Mazzuca" (2005). 2005 Decisions. Paper 804.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3381
UNITED STATES OF AMERICA
v.
NANCY MAZZUCA,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 03-cr-00661 )
District Judge: Honorable Harvey Bartle, III
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 15, 2005
Before: SLOVITER, McKEE and WEIS, Circuit Judges.
(Filed: July 20, 2005)
____________
OPINION
WEIS, Circuit Judge.
Defendant was convicted on counts of perjury and obstruction of justice in
the District Court and a sentence of 15 months incarceration was imposed by the trial
judge. The sentence was calculated according to the Sentencing Guidelines.
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Shortly before sentence was imposed, the United States Supreme Court
decided Blakely v. Washington, ___ U.S. ___ (2004), 124 S.Ct. 2531 (2004), in an
opinion which cast doubt on the validity of the Guidelines. Recognizing the uncertainty in
the sentencing area, the Assistant United States Attorney called the District Court’s
attention to the possibility that Blakely might be applicable. The trial judge responded:
“My sentence, in this case, would be exactly the same. I’ve
already stated that, should the obstruction of justice
adjustment not be applicable, either because I am wrong about
the law, or because Blakely would affect it, we would then be
in offense level 12, and the range for offense level 12 is 10 to
16 months for someone in Ms. Mazzuca’s situation, that has
no criminal history points, and my sentence would still be 15
months in prison.
“[U.S. Attorney]: And then, likewise, Your Honor, just for
the record, assuming that the Guidelines were found
completely unconstitutional and Your Honor had complete
discretion, would the sentence then be the same?
“The Court: The sentence would be 15 months.” (App. 584a-
85a).”
The question whether we should remand a case like this for resentencing in
accordance with United States v. Booker, ____ U.S. ___, 125 S.Ct. 738 (2005), was
decided in United States v. Hill, No. 04-3904, 2005 WL 1389113 (3d Cir. June 15, 2005).
There, we said: “we now join several of our sister circuits and conclude that where, as
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here, a District Court clearly indicates that an alternative sentence would be identical to
the sentence imposed under the Guidelines, any error that may attach to a defendant’s
sentence under Booker is harmless.” Hill, No. 04-3904, 2005 WL 1389113, at *1.
Accordingly, we will affirm the Judgment and Sentence.
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