                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 13-4375
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                                JAMES F. SODANO, SR.,
                                            Appellant
                                     __________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal No. 3-12-cr-00784-001)
                      District Judge: Honorable Peter G. Sheridan

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 21, 2014

           BEFORE: AMBRO, FUENTES, and NYGAARD, Circuit Judges


                               (Filed: November 12, 2014)
                                       __________

                                        OPINION*
                                       __________

NYGAARD, Circuit Judge.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       In this appeal, James F. Sodano, Sr., challenges his conviction and sentence before

the District Court. For the reasons that follow, we will affirm the District Court’s

judgment of conviction and sentence.

                                              I.

       Because the facts are well known to the parties, we will discuss them only briefly.

Sodano planned and carried out a robbery of an armed money carrier in Newark, New

Jersey. Still wearing gloves and a bullet-proof vest, he passed out a few blocks from the

robbery where he was discovered by police with a gunshot wound in his leg, numerous

firearms about his person and, quite tellingly, a blood-stained bag of money. A jury

convicted Sodano of robbery, conspiracy to commit robbery, and discharging a firearm

during a crime of violence. At sentencing, the District Court upwardly departed, based

on the particularly heinous nature of the crime, and sentenced Sodano to 486 months’

imprisonment.

                                             II.

                                   A. Speedy Trial Claim

       We will begin with Sodano’s challenge to his conviction. Twenty months elapsed

between Sodano’s arrest and the start of his trial. He argues that this delay amounted to a

violation of his constitutional rights to a speedy trial. We disagree.1


1
  “We exercise plenary review over the district court’s construction and interpretation of
the Speedy Trial Act and its provisions regarding excludable time.” United States v.
Hamilton, 46 F.3d 271, 273 (3d Cir. 1995) (citation omitted). The findings of fact to
which the District Court applied the speedy trial act analysis are reviewed for clear error.
Id.

                                              2
       In assessing whether there has been a violation of Sodano’s Sixth Amendment

right to a speedy trial, we consider the four factors set out in Barker v. Wingo, 407 U.S.

514, 530 (1972), together with other relevant circumstances in weighing the

prosecution’s conduct against that of the defense. The four Barker factors are: (1) the

length of the delay; (2) the reason for the delay; (3) the extent to which the defendant

asserted his speedy trial right; and (4) the prejudice suffered by the defendant. Id. No

one factor is controlling, and any violation depends on the peculiar circumstances of the

case. Id. at 530-31. If a defendant’s right to a speedy trial has been violated, the

indictment must be dismissed. Id. at 536.

       We start with the length of the delay. For Sixth Amendment purposes, the speedy

trial clock begins to run from either the date of arrest or indictment, whichever is earlier,

and ends with the commencement of trial. Sodano was arrested in June of 2011, and

arraigned on July 13, 2011. His trial on the charges against him did not commence until

March 15, 2014. This was a delay of twenty months. Although this is not—as Sodano

contends—presumptively prejudicial, “[w]e have previously held that a delay of even

fourteen months is sufficient to trigger review of the remaining Barker factors.” United

States v. Velazquez, 749 F.3d, 161, 174 (3d Cir. 2014) (citation omitted). The period of

time between Sodano’s arraignment and trial sufficiently exceeds this fourteen-month

threshold. Therefore, this factor will weigh in Sodano’s favor.

       The reason for the delay—the next Barker factor—weighs against Sodano as he,

himself, was the sole reason for the delay he now challenges as unconstitutional. From

the date of his arrest until the beginning of his trial, the District Court granted no less than

                                               3
four continuances for purposes of plea negotiating. These continuances amounted to six

and a half months and were “joint applications” with the Government. We also note that

he changed legal counsel a total of four times before trial. Such changes typically have

delays built into them. His third lawyer, for example, requested and received four

continuances (amounting to a further six-month delay). When he requested a fourth

lawyer, the District Court warned Sodano that his trial would be delayed yet again.

Sodano realized this, but wanted new counsel anyway.

       The third factor in the Barker analysis is the degree to which the defendant asserts

his speedy trial right, encompassing the frequency and force of such assertions. Although

Sodano did raise the issue two months before trial, we do not see any great frequency or

fortitude in his assertions. While Sodano argues that he also raised this issue in three pro

se submissions to the District Court, we have held that informal correspondence by a

represented defendant to a court is only a weak assertion of the speedy-trial right,

particularly when his attorney has asked for a continuance to prepare for trial. See United

States v. Bettis, 589 F.3d 673, 681 (3d Cir. 2008). And, any such assertions are further

diluted by Sodano’s approval of and acquiescence to even more delays.

       Lastly, Sodano argues that he has suffered prejudice because of the lengthy

pretrial delay. He says that the oppressive conditions of his pretrial confinement, taken

together with his age and medical conditions (including the recuperation from the

aforementioned gunshot wound), amounted to some type of prejudice to his defense.

Yet, Sodano offers no specifics. He has not, for example, argued that the delay

jeopardized the testimony of any defense witness, nor can he argue that his pretrial

                                             4
detention was oppressive, or responsible for undue anxiety or concern. He argues that the

delay here exacted a physical and psychological toll. That may be true. However,

anxiety and other forms of personal prejudice to the accused are inevitable consequences

in a criminal case. These conditions did not prevent Sodano from changing lawyers time

and again, all the while recognizing that such actions bring about further delay in the

proceeding. And, even were we to find some prejudice here, Sodano’s claim is further

frustrated by the fact that the District Court awarded him credit against his ultimate

sentence for the twenty months he was incarcerated prior to trial.

       In sum, Sodano has not been deprived of his Sixth Amendment right to a speedy

trial. Responsibility for the delay in bringing his case to trial rests solely with Sodano’s

actions and has not caused him any prejudice.

                       B. Admission of Inconsistent Prior Statement

       Next, Sodano argues that the District Court mistakenly excluded the statement of a

witness. He argues that this witness’s statement satisfied the requirements for admission

as a prior inconsistent statement under Fed.R.Evid. 801(d)(1)(A). We do not agree.

Evidentiary rulings, such as those challenged by Sodano here, are reviewed for abuse of

discretion. United States v. Green, 617 F.3d 233, 251-52 (3d Cir. 2010).

       Federal Rule of Evidence 801(d)(1)(A) provides that a statement is not hearsay if

“[t]he declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is . . . inconsistent with the declarant's

testimony, and was given under oath subject to the penalty of perjury at a trial, hearing,

or other proceeding, or in a deposition... .” The statement Sodano sought to admit against

                                              5
a witness was made on June 9, 2011 to detectives while the witness was recovering from

gun shots in the hospital. Accordingly, it cannot be admitted as a prior inconsistent

statement pursuant to Rule 801(d)(1)(A) because it was made neither under oath nor at a

formal proceeding. The District Court allowed Sodano to use the statement to impeach

the witness and Sodano referenced it in his closing remarks. We see no abuse of

discretion on the part of the District Court.

                                 C. The Upward Departure

       Sodano also challenges his sentence. He claims the District Court failed to justify

its upward departure, and failed to adequately discuss Sodano’s proffered mitigation.

Sodano also argues that his sentence was unreasonable. These arguments lack merit.

       The District Court did not abuse its discretion when departing upward from the

Sentencing Guideline range pursuant to § 5K2. The District Court identified the

“execution type of shooting,” the numerous gun shots Sodano fired, his “malicious”

intent to “maim and injure” one of the victims, the victim’s inability to defend himself

and the lasting effect Sodano’s violence had on this victim. The record contains ample

evidence detailing the nature and effects of this victim’s injuries, while also bringing to

light Sodano’s meticulous planning, his arsenal, and the near point-blank range from

which Sodano shot his victim and the victim’s pain and mental anguish. The upward

departure was in no way an abuse of discretion.

       Further, the District Court committed no procedural errors in calculating Sodano’s

guideline range. It properly discussed Sodano’s mitigation evidence and correctly

rejected it. The District Court thoroughly discussed and explained its reasoning for

                                                6
Sodano’s sentence and for its upward departure. Therefore, finding no errors, we will

affirm Sodano’s sentence.




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