                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

USA v. Guido
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4156




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"USA v. Guido" (2008). 2008 Decisions. Paper 924.
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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                  No. 04-4156/07-4331
                                    _____________

                           UNITED STATES OF AMERICA

                                             v.

                                 GREGORY P. GUIDO,

                                           Appellant
                                    _______________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 03-cr-00460)
                   District Judge: Honorable Dickinson R. Debevoise
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 6, 2008

         Before: FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges

                                   (Filed: July 2, 2008)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

I.    Introduction

      Gregory P. Guido was charged with conspiracy to possess stolen goods, in

violation of 18 U.S.C. §§ 659 and 371, and theft of an interstate and foreign shipment of
freight, in violation of 18 U.S.C. §§ 659 and 2. The charges arose from a scheme in

which Guido bought cases of stolen shrimp from a co-defendant and then re-sold them for

profit. He pled guilty to the conspiracy count, pursuant to a plea agreement. On

September 30, 2004, the United States District Court for the District of New Jersey

sentenced him to a term of eight months’ imprisonment and three years’ supervised

release (the “initial sentence”). Guido was charged in a Petition with violating the terms

of his supervised release by, among other things, failing to report to his probation officer

and failing to make child support and restitution payments. Guido admitted only to

failing to report, and the remaining allegations were dismissed. As a result, on November

13, 2007 the District Court sentenced him to eleven months’ imprisonment and two years’

supervised release (the “revocation sentence”). Guido appeals the reasonableness of both

the initial sentence and the revocation sentence. We will affirm.1

II.    Discussion

       A.     Guido’s appeal of the initial sentence imposed by the District Court

       Guido argues that the initial sentence imposed by the District Court was

unreasonable. Defense counsel filed a brief, pursuant to Anders v. California, 386 U.S.




  1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “[A]n appellate court
reviews a sentence for reasonableness with regard to the factors set forth in 18 U.S.C. §
3553(a).” United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007). We “must review
the sentence under an abuse-of-discretion standard.” Gall v. United States, 128 S. Ct.
586, 597 (2007).
                                              2
738 (1967), with respect to the initial sentence, acknowledging that there are no non-

frivolous issues for appeal. Following our independent review of the record, we agree.

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Guido pled guilty and

voluntarily waived his right to appeal. Nothing about his initial sentence can rightly be

called an abuse of the District Court’s discretion. Because Guido’s appeal lacks legal

merit,2 the judgment of conviction and sentence entered on September 30, 2004 will be

affirmed and defense counsel’s motion to withdraw will be granted.3

         B.     Guido’s appeal of the revocation sentence imposed by the District Court

         Guido also argues that the revocation sentence imposed by the District Court was

unreasonable. He says that the District Court abused its discretion by focusing “solely on

[his] past conduct while ignoring the minor nature of his violation and dismissing other §

3553(a) factors as irrelevant.” 4 (Appellant’s Br. at 20.)

         Guido’s arguments are unpersuasive. During sentencing, the District Court said:

                In considering the 3553(a) factors, one goes back to the original
         offense. And with respect to that, Mr. Guido’s role was relatively minor. ...
         So insofar as the previous offense is concerned, it doesn’t have a degree of
         seriousness that bears on the sentencing for the violation of supervised
         release which is at issue in this case. ...


  2
      We have considered Guido’s pro se arguments and conclude that they too lack merit.
  3
   Defense counsel filed a motion to withdraw on May 11, 2007 and supplemented it on
February 19, 2008.
  4
   Guido properly recognizes that the policy statements set forth in Chapter 7 of the
Sentencing Guidelines apply when determining a sentencing range based on violations of
supervised release. (Appellant’s Br. at 19.)

                                               3
               The thing that matters, that concerns me, is the record and past
       conduct of Mr. Guido. He was never married ... he has fathered three
       children, two from a 13-year relationship with Jackie [], and one from a
       more recent relationship with Margaret []. He’s been violent towards both
       these women ... [.] [S]entenc[ing] was delayed from 2004 because of his
       confinement ... for failure to pay support ... . The criminal record reflected
       in the presentence report is extensive, and at the time of his original
       sentence, there were pending against him an extraordinary number of
       charges ... .
               I’m not inclined to think that a lengthy prison term would contribute
       to Mr. Guido’s education, training or rehabilitation. But one can always
       hope for that result. But it would serve the purpose of protecting the public
       for at least a period of time.
               Therefore, I think it’s appropriate to sentence Mr. Guido at the top of
       the guideline range. That will serve the ... goal of uniformity of sentencing
       under the guidelines, and I think will have a deterrent effect on Mr. Guido
       ... and would serve to protect the public for a period of time while he is
       away. Further, there will be a term of supervised release which would give
       the opportunity to continue to monitor his conduct and take further action if
       the prison term does not have the desired effect.

(Appendix in No. 07-4311 at 34-36.)

       The revocation sentence imposed by the District Court was at the top of the

advisory Guidelines range and, as we have noted, “[a] sentence that falls within the

guidelines range is more likely to be reasonable than one outside the guidelines range.”

United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Further, the record reflects

that the District Court carefully considered and weighed the relevant sentencing factors.

That the Court chose to give more weight to Guido’s past criminal history than to the

nature of his violation does not constitute an abuse of discretion. We conclude that the

revocation sentence is reasonable, and we will therefore affirm it.




                                             4
III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction and sentence

entered on September 30, 2004 and the judgment of conviction for violation of supervised

release and sentence entered on November 13, 2007. Defense counsel’s May 11, 2007

motion to withdraw will be granted.




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