                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1863




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Recommended Citation
"USA v. Ricciotti" (2006). 2006 Decisions. Paper 1449.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1449


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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT



                                   No. 05-1863



                         UNITED STATES OF AMERICA


                                        v.


                            VINCENT J. RICCIOTTI
                                           Appellant



                  On Appeal from the United States District Court
                           for the District of New Jersey
                              (D.C. No. 03-cr-00553-8)
                     District Judge: Honorable Jose L. Linares



                    Submitted Under Third Circuit LAR 34.1(a)
                               February 27, 2006

           Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.

                              (Filed March 13, 2006)



                                    OPINION



BECKER, Circuit Judge.
       This appeal by Vincent J. Ricciotti from a judgment in a criminal case entered

pursuant to a guilty plea arises from the events of September 17, 2000, when Ricciotti

smuggled approximately 10,000 pills of ecstasy into the United States from Italy.

Ricciotti was traveling with two other couriers, and the total amount of ecstasy smuggled

into the United States by Ricciotti and his two co-conspirators was approximately 35,000

pills. Ricciotti was not arrested for about three years from the date of the offense, during

which he was gainfully employed. He had lived an essentially law abiding life but for

this incident.

       Ricciotti’s challenge on appeal relates solely to his sentence of 23 months

imprisonment, which was seven months below the minimum of his advisory guideline

range. One of his co-defendants Raymond Raiani, made three times the number of

smuggling trips as Ricciotti, stayed involved in the operation over the course of a year,

and was held accountable for more than three times the number of ecstasy tablets as

Ricciotti, but his 30 month sentence is only seven months longer than the sentence

Ricciotti received. Ricciotti submits that this is grossly disparate.

       The government first argues that we lack jurisdiction to review any aspect of

Ricciotti’s sentence because the sentence falls below the guidelines range. This

argument, however, is foreclosed by the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), and our recent decision in United States v. Cooper, __ F.3d

__, 2006 U.S. App. LEXIS 3453 (3d Cir. Feb. 14, 2006). See Booker, 543 U.S. at 260

(stating that the Sentencing Reform Act “continues to provide for appeals from

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sentencing decisions[,] irrespective of whether the trial judge sentences within or outside

the Guidelines range in the exercise of his discretionary power . . .”) (citations omitted);

Cooper, 2006 U.S. App. LEXIS 3453, at *7 (“[A] post-Booker appeal based on the

‘unreasonableness’ of a sentence, whether within or outside the advisory guidelines

range, is an appeal asserting that the sentence was imposed in violation of law pursuant to

[18 U.S.C.] § 3742(a)(1).”) (citing United States v. Martinez, 434 F.3d 1318, 1320 (11th

Cir. 2006)).

       While Ricciotti’s position is not unsympathetic, his challenges all fail on appeal.

First, Ricciotti submits that the District Court should have considered only his actual

conduct in determining his sentence. We find no error. Booker, 543 U.S. at 258-260,

does not alter the notion that a defendant’s sentence may be based on relevant conduct

(i.e., conduct other than his own). See United States v. Lister, 432 F.3d 754, 761 (7th Cir.

2005); United States v. Bryant, 420 F.3d 652, 656 (7th Cir. 2005).

       Finally, Ricciotti contends that the District Court should not have permitted a

sentencing disparity between co-defendants. We review for reasonableness. See Booker,

543 U.S. at 262. This is a post-Booker sentence. The District Court was well aware of its

new responsibilities to consider the 18 U.S.C. § 3553(a) factors in addition to the

guidelines, and did so. The Court considered all of defense counsel’s

arguments—essentially the same ones advanced here —and did everything required by

Cooper. Our review is deferential. While we admire the zeal with which able counsel

has advanced Ricciotti’s arguments, we are constrained to find the sentence reasonable.

                                              3
The judgment of the District Court will be affirmed.




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