                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1258




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                            Nos. 07-1258, 07-1365, 07-1366
                                 _________________

                           UNITED STATES OF AMERICA

                                           v.

                             CHARLES BRACCIODIETA,
                                                Appellant
                                _________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (D.C. Criminal No. 1-06-cr-00716-001)
                      District Judge: Honorable Joseph E. Irenas
                        (D.C. Criminal No. 1-97-cr-00033-001)
                    District Judge: Honorable Joseph H. Rodriguez
                        (D.C. Criminal No. 1-97-cr-00096-001)
                    District Judge: Honorable Joseph H. Rodriguez
                                 ___________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   June 24, 2009
                               ____________________

          Before: BARRY and SMITH, Circuit Judges, and RESTANI,* Judge

                             (Opinion Filed: June 25, 2009)
                                 _________________

                                      OPINION
                                  _________________


      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.

       Charles Bracciodieta appeals his sentence of 127 months of imprisonment imposed

after a plea of guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). On

appeal, Bracciodieta claims that: (1) his sentence was unreasonable; (2) he was entitled to

a downward departure for diminished mental capacity and cooperation with authorities and

he was not a career offender; (3) he did not receive effective assistance of counsel; (4) his

right to a speedy trial was violated; and (5) he should have received a concurrent sentence

for violation of supervised release. We will affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In September 2005, Bracciodieta committed two bank robberies. In September 2006,

Bracciodieta pled guilty to two counts of bank robbery in violation of 18 U.S.C. § 2113(a).

As part of the plea agreement, Bracciodieta stipulated that certain Guidelines provisions

applied, resulting in an adjusted offense level of 29 if the District Court concluded he was

a career offender. The parties also reserved the right to seek a departure from the applicable

guidelines under U.S.S.G. §§ 5K2.0 (Grounds for Departure) and 5K2.13 (Diminished

Capacity).

       The District Court concluded that Bracciodieta was a career offender with a base

offense level of 32, but applied a three-level downward adjustment for acceptance of

responsibility, resulting in an offense level of 29 and a Guidelines imprisonment range of 151

to 188 months. Bracciodieta was sentenced to 127 months of incarceration for the bank



                                              2
robberies, which was twenty-four months below the Guidelines range.              He was also

sentenced to a consecutive sentence of 24 months imprisonment for violation of his

supervised release.

                   JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the

sentencing court’s factual findings for clear error. United States v. Grier, 475 F.3d 556, 570

(3d Cir. 2007) (en banc). We review sentencing determinations for abuse of discretion. Gall

v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007).

                                       DISCUSSION

I.     The District Court imposed a reasonable sentence.

       Bracciodieta argues his sentence was procedurally unreasonable because the District

Court failed to consider properly the factors enumerated in 18 U.S.C. § 3553(a), as the

sentence did not account for his diminished mental capacity or the nature and circumstances

of the offense. Bracciodieta also claims the sentence was substantively unreasonable, as the

court should have only imposed “a sentence sufficient, but not greater than necessary.” 18

U.S.C. § 3553(a). We disagree.

       A district court need not “discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account in sentencing.”

United States v. Sevilla, 541 F.3d 226, 232 (3d Cir. 2008) (citation omitted). Here, the

District Court considered the severity of the offense, the need to provide just punishment, the



                                              3
need for general and specific deterrence, and the defendant’s potential for rehabilitation in

weighing the § 3553(a) factors. The District Court acknowledged that the robberies were not

significantly violent, but noted that between ages twenty-two and thirty-seven Bracciodieta

had spent at most one year out of prison “because of the quickness of his recidivism.” (App.

216a.) The District Court also considered Bracciodieta’s diminished mental capacity, as it

was provided a pre-sentence investigation report detailing Bracciodieta’s mental illness, a

letter from Bracciodieta providing his own account of his illness, and a psychiatric evaluation

of Bracciodieta. The District Court did not find a causal link between Bracciodieta’s mental

condition and his criminal conduct, and noted that even while imprisoned, Bracciodieta had

to be transferred seven times for disciplinary problems. Under these facts, defendant has not

shown that the District Court’s sentence of 127 months, which was 24 months below the

bottom of the Guidelines range, was not greater than necessary.

       The District Court clearly considered the statutory factors and evidence of potential

mitigation, and the sentence was not unreasonable simply because the District Court failed

“to give mitigating factors the weight [the] defendant contends they deserve.” United States

v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). We hold that the District Court imposed a

reasonable sentence upon Bracciodieta.

II.    Bracciodieta was not entitled to a downward departure based on diminished
       mental capacity or cooperation with authorities.

       Bracciodieta contends that he was entitled to a downward departure based on his

diminished mental capacity under U.S.S.G. § 5K2.13, and his substantial assistance to


                                              4
authorities under U.S.S.G. § 5K1.1. We lack jurisdiction to review a District Court’s

discretionary decision to grant a downward departure, unless the District Court mistakenly

believed it had no discretion to deny the departure. United States v. Vargas, 477 F.3d 94,

103 (3d Cir. 2007).     Here, the District Court recognized its discretion and properly

considered the downward departure motion, including the physician expert witness’

diagnosis of Bracciodieta as suffering from “bipolar disorder with recurrent manic episodes.”

(App. 49a (emphasis removed).) The District Court concluded that Bracciodieta “probably

has bipolar disorder” (id. at 170a), but determined that there was no causal connection

between the diminished mental capacity and the crime committed. See U.S.S.G. § 5K2.13

(requiring that the “reduced mental capacity contributed substantially to the commission of

the offense”). Accordingly, we may not review the denial of the downward departure, and

regardless, the District Court did not abuse its discretion in finding that the requirements of

U.S.S.G. § 5K2.13 had not been met.

       Further, because the prosecutor’s refusal to file a substantial assistance motion was

based on Bracciodieta’s inconsistent cooperation, not an unconstitutional or illegitimate

motive, the District Court was not required to depart downward for substantial assistance sua

sponte. See Wade v. United States, 504 U.S. 181, 185–86 (1992).1


       1
        Bracciodieta also challenges his career offender sentencing enhancement.
Because defense counsel did not contest the application of the career offender
enhancement at sentencing, we review only for plain error. See United States v. Cianci,
154 F.3d 106, 111 (3d Cir. 1998). Bracciodieta met all of the criteria for career offender
enhancement, as he was over eighteen, the instant offenses were felony crimes of
                                                                              (continued...)

                                              5
III.   Bracciodieta’s claim of ineffective assistance of counsel fails.

       This Court generally does not review ineffective assistance of counsel claims on direct

appeal, because collateral review “allows for adequate factual development of the claim.”

United States v. Morena, 547 F.3d 191, 198 (3d Cir. 2008). Nonetheless, here there is no

reason to delay review. “[T]o establish ineffective representation, the defendant must prove

both incompetence and prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

Bracciodieta’s claim is based on defense counsel’s decision not to call the defendant’s

psychiatric expert during the sentencing hearing; however, we will not second-guess

counsel’s discretionary decisions that are “well within the range of professionally reasonable

judgments.” Strickland v. Washington, 466 U.S. 668, 699 (1984). The expert’s testimony

would not likely have created a different outcome, as the government did not contest his

diagnosis, the District Court accepted the report’s conclusion, and the psychiatric report did

not unequivocally state that Bracciodieta’s bipolar disorder caused his unlawful behavior.

Accordingly, we will deny Bracciodieta’s appeal on the grounds of ineffective counsel.

IV.    Bracciodieta cannot make a claim for violation of 18 U.S.C. § 3161 (The Speedy
       Trial Act).

       Bracciodieta’s knowing, unconditional guilty plea waived all non-jurisdictional issues,

including his Speedy Trial Act claim. See Washington v. Sobina, 475 F.3d 162, 165 (3d Cir.



       1
        (...continued)
violence, and he had two prior felony convictions for crimes of violence within the
relevant statutory period. Accordingly, we will affirm Bracciodieta’s career offender
designation. See U.S.S.G. §§ 4A1.2(e), 4B1.1.

                                              6
2007). Additionally, the continuance orders signed by defendant’s counsel tolled the speedy

trial clock and only twenty-two days counted against the seventy allowed under the Speedy

Trial Act. 18 U.S.C. § 3161(h)(7)(A). Accordingly, we will dismiss Bracciodieta’s Speedy

Trial Act claim.2

V.     The supervised release judge did not abuse his discretion by ordering that
       Bracciodieta’s sentence for violation of supervised release be served
       consecutively.

       The sentencing judge for Bracciodieta’s violation of supervised release had

discretion to impose a sentence to be served consecutively, partially consecutively, or

concurrently, based upon consideration of the factors set forth in § 3553(a). 18 U.S.C.

§ 3584(a)–(b). The sentencing judge imposed a sentence of 24 months, to run consecutively

to the sentence for bank robbery, finding “a serious problem” with Bracciodieta’s

commission of new bank robberies approximately one month following release from prison.

The judge also noted that bank robberies are potentially violent offenses that cause victims

to fear for their safety. It is clear from the record that the judge was aware of all the facts

which related to the sentencing factors, and that the judge arrived at a reasonable sentence.

Accordingly, we will affirm.

                                      CONCLUSION

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


       2
         Bracciodieta does not develop the argument that his constitutional right to a
speedy trial was violated, and we decline to address it. United States v. Irizarry, 341 F.3d
273, 305 (3d Cir. 2003) (finding that an appellant’s brief must contain all arguments and
citations to authorities in order to preserve the arguments on appeal).

                                              7
