                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1444




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"USA v. Iezzi" (2007). 2007 Decisions. Paper 1324.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1324


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1444


                           UNITED STATES OF AMERICA

                                            v.

                                   JOSEPH A. IEZZI,
                                                Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            D.C. Crim. No. 02-cr-00198
                District Judge: The Honorable Maurice B. Cohill, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 30, 2007


            Before: RENDELL, BARRY, and CHAGARES, Circuit Judges

                             (Opinion Filed April 11, 2007)


                                       OPINION



BARRY, Circuit Judge

      Appellant, Joseph A. Iezzi, argues that the District Court abused its discretion

when it sentenced him to a consecutive sentence for a violation of supervised release. We
disagree and will therefore affirm the order of the District Court.

                                             I.

       On March 4, 2003, following his plea of guilty to one count of bank robbery, Iezzi

was sentenced by U.S. District Judge Maurice B. Cohill, Jr., to, among other things,

thirty-seven months imprisonment and a three-year term of supervised release.

Subsequently, Iezzi provided substantial assistance to the government, and, the following

March, the Court granted the government’s Rule 35(b) motion and reduced Iezzi’s prison

sentence to time served. The term of supervised release was not reduced.

       Approximately seven months later, while he was still serving his term of

supervised release, Iezzi was arrested and charged with bank robbery. On August 23,

2005, he pleaded guilty and was subsequently sentenced by U.S. District Judge David

Cercone to one hundred months imprisonment and a three-year term of supervised

release. On January 19, 2006, Iezzi appeared before Judge Cohill for a supervised release

revocation hearing. Having determined that a concurrent sentence for the supervised

release violation would be “no penalty at all,” Supp. App. at 10, Judge Cohill sentenced

appellant to eighteen months imprisonment, which was at the bottom of the advisory

guidelines range, to run consecutive with the term of imprisonment imposed by Judge

Cercone.

       Iezzi timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(1).

                                             II.

                                              2
       Pursuant to 18 U.S.C. § 3584(a), “if a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of imprisonment, the terms may

run concurrently or consecutively.”1 We review a district court’s imposition of a

consecutive sentence for abuse of discretion. See United States v. Swan, 275 F.3d 272,

275 (3d Cir. 2002).

       Although post-United States v. Booker, 543 U.S. 220 (2005), the Federal

Sentencing Guidelines are wholly advisory, several policy statements, which were always

deemed to be of an advisory nature, see United States v. Blackston, 940 F.2d 877, 893 (3d

Cir. 1991), are instructive. Pursuant to section 5G1.3(c), the district court is instructed

that it has the power to impose a sentence “to run concurrently, partially concurrently, or

consecutively to [a] prior undischarged term of imprisonment.” Given that the “district

court’s primary consideration in handing down a revocation sentence is the defendant’s

breach of trust,” United States v. Dees, 467 F.3d 847, 853 (3d Cir. 2006), the Sentencing

Commission recommends that “[a]ny term of imprisonment imposed upon the revocation

of probation or supervised release shall be ordered to be served consecutively to any

sentence of imprisonment that the defendant is serving, whether or not the sentence of

imprisonment being served resulted from the conduct that is the basis of the revocation of

probation or supervised release,” U.S. Sentencing Guidelines Manual § 7B1.3(f); see also



   1
    Although not relevant here, § 3584(a) directs that sentences “may not run
consecutively for an attempt and for another offense that was the sole objective of the
attempt.”
                                              3
id. ch.7, pt. A, introductory cmt. (“[A]s a breach of trust inherent in the conditions of

supervision, the sanction for the violation of trust should be in addition, or consecutive, to

any sentence imposed for the new conduct.”).

       We conclude that there was no abuse of discretion here. The District Court clearly

understood that it could impose a concurrent sentence if it wished. Supp. App. at 5, 10.

The Court, however, determined that such an approach would be tantamount to imposing

“no penalty at all” even though “this is an offense which is really different from the one

that [Iezzi] originally committed, separate from the one that [he] got originally in here for,

and also separate from Judge Cercone’s case because this involves a violation of

supervision in the form of the bank robbery which came before Judge Cercone.” Supp.

App. at 10. In light of the leniency that had been shown to Iezzi in the original sentence

imposed by Judge Cohill, it is abundantly clear that the District Court’s decision to

impose punishment separate and distinct from Judge Cercone’s sentence was not an abuse

of discretion.2

                                             III.

       For the foregoing reasons, we will affirm the order of the District Court.




   2
    In fact, the one hundred month sentence imposed by Judge Cercone was itself a
significant departure, as the advisory guidelines range was 130 to 162 months. Supp.
App. at 22. Furthermore, the eighteen month sentence imposed by Judge Cohill was at the
bottom of the eighteen to twenty-four month guidelines range. U.S. Sentencing
Guidelines Manual § 7B1.4(a).
                                              4
