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


3-23-2006

USA v. Giaquinto
Precedential or Non-Precedential: Precedential

Docket No. 05-2212




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Recommended Citation
"USA v. Giaquinto" (2006). 2006 Decisions. Paper 1337.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1337


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                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 05-2212


         UNITED STATES OF AMERICA



                         v.

          CATHERINE A. GIAQUINTO,
                              Appellant



   On Appeal from the United States District Court
            for the District of New Jersey
               (D.C. No. 03-cr-00553-3)
      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 23, 2006)

GEORGE S. LEONE, ESQUIRE
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

GLENN J. MORAMARCO, ESQUIRE
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
                 Attorneys for Appellee

MICHAEL N. PEDICINI, ESQUIRE
60 Washington Street
Courthouse Plaza
Morristown, NJ 07960
                 Attorney for Appellant



                  OPINION OF THE COURT



BECKER, Circuit Judge.

        This appeal by Catherine A. Giaquinto from a judgment
in a criminal case entered pursuant to a guilty plea arises from

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the events of September 17, 2000, when Giaquinto smuggled
approximately 10,000 pills of ecstasy into the United States
from Italy. Giaquinto was traveling with two other couriers, and
the total amount of ecstasy smuggled into the United States by
Giaquinto and her two co-conspirators was approximately
35,000 pills. Giaquinto was not arrested for about three years
from the date of the offense, during which she was gainfully
employed. She has had an essentially law abiding life but for
this incident, which her counsel characterizes as aberrant
behavior.

        Giaquinto’s challenge on appeal relates solely to her
sentence of 23 months imprisonment, which was seven months
below the minimum of her advisory guideline range. One of her
co-defendants, Raymond Raiani, made three times the number
of smuggling trips as Giaquinto, 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
Giaquinto, but his 30 month sentence is only seven months
longer than the sentence Giaquinto received. Giaquinto submits
that this is grossly disparate.

        The government first argues that we lack jurisdiction to
review any aspect of Giaquinto’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 sentencing decisions[,] irrespective of whether the trial

                               3
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 Giaquinto’s position is not unsympathetic, her
challenges all fail on appeal. First, she contends that the District
Court should have granted a downward departure in sentence
based on her aberrant behavior. However, we have recently
held that we lack appellate jurisdiction on claims that the
District Court should have granted a departure. See Cooper,
2006 U.S. App. LEXIS 3453, at *25. Giaquinto also submits
that the District Court should have considered only her actual
conduct in determining her 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 her 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). Moreover, Giaquinto received a great
benefit from application of the 1998 guidelines range, which had
a lower guideline than the 2004 Manual, and the District Court
applied the aberrant behavior standard urged upon it by
Giaquinto.

      Finally, Giaquinto contends that the District Court should
not have permitted a sentencing disparity between co-
defendants. We review for reasonableness. See Booker, 543

                                 4
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 that Cooper required in terms of its analysis. Our
review is deferential. While we admire the zeal with which able
counsel has advanced Giaquinto’s arguments, we are
constrained to find the sentence reasonable.

      The judgment of the District Court will be affirmed.




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