United States v. Olfano , 161 F. App'x 224 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-12-2006
USA v. Olfano
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4611
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"USA v. Olfano" (2006). 2006 Decisions. Paper 1757.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4611
UNITED STATES OF AMERICA
v.
JOHN OLFANO,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 04-00255)
Honorable James M. Munley, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 9, 2005
BEFORE: RENDELL, FISHER and GREENBERG, Circuit Judges
(Filed: January 12, 2006)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Defendant-appellant John Olfano pleaded guilty to a one-count superseding
information charging him with receipt of child pornography in violation of 18 U.S.C. §
2252(a)(2). As part of his pre-Booker plea agreement, see United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), he agreed to waive any right to have a jury determine
whether there were facts that might enhance his offense level and agreed that a judge
could make that determination by a preponderance of the evidence. The presentence
report included a determination that he had engaged in a “pattern of activity involving the
sexual abuse or exploitation of a minor” as set forth in U.S.S.G. § 2G2.2(b)(4).1 Olfano
objected to that determination, but the district court adopted it, resulting in a 5-level
enhancement of his offense level. The court ultimately calculated that Olfano’s offense
level was 36 and his criminal history category was I, yielding a sentencing level of 188 to
235 months. In the absence of the 5-level offense level increase under section
2G2.2(b)(4) his sentencing range would have been 108 to 135 months. The court
sentenced Olfano to a 188-month custodial term to be followed by three years of
supervised release. Olfano appeals. The district court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
exercise plenary review over questions of law, including the district court’s interpretation
of the Sentencing Guidelines. See United States v. Moorer, 383 F.3d 164, 167 (3d Cir.
2004).
On this appeal Olfano contends that the court erred in imposing the 5-level pattern
of activity enhancement because the conduct on which it based the enhancement was both
too remote in time and too different in kind from the offense here to justify the
1
The guideline has been redesignated as 2G2.2(b)(5).
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enhancement. He also contends that the court erred as it did not treat the guidelines as
advisory. The government answers that the 5-level enhancement was justified and that by
waiving his right to have a jury decide the sentence-enhancing facts Olfano rendered it
unnecessary for him to be resentenced.
We will reverse and remand for resentencing in accordance with United States v.
Davis, 407 F.3d 162, 165 (3d Cir. 2005) (en banc), because the court did not treat the
guidelines as advisory. In reaching our result we have not overlooked our opinion in
United States v. Lockett, 406 F.3d 207 (3d Cir. 2005), in which, as the government notes,
we “recently upheld and enforced a defendant’s appellate waiver contained in a pre-
Booker plea agreement, and held that the waiver precluded resentencing under Booker.”
Appellee’s br. at 16. Rather, we find that Lockett involved a different issue than that here
as there is no suggestion that Olfano waived his right to appeal or that he waived the right
to have the court treat the guidelines as advisory.
For the foregoing reasons the judgment of conviction and sentence entered
December 14, 2004, will be reversed but only with respect to the sentence. We will
remand the case to the district court for resentencing.
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