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


6-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1363




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Recommended Citation
"USA v. Giardina" (2008). 2008 Decisions. Paper 996.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/996


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-1363


                           UNITED STATES OF AMERICA

                                             v.

                              RUSSELL T. GIARDINA,

                                                  Appellant




                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00029-1)
                        District Judge: Honorable Kim R. Gibson


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 9, 2008

           Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

                            (Opinion filed    June 20, 2008 )




                                       OPINION


AMBRO, Circuit Judge

      Russell Giardina appeals his 151-month sentence for distributing fewer than 100

grams of heroin, arguing that the sentence is unreasonable. We disagree, and accordingly
affirm.

          Giardina has a history of drug offenses. In 2000 he pled guilty to delivering

cocaine, receiving a sentence of approximately 12–24 months. In 2002 he pled guilty to

possessing heroin with intent to deliver it, and received a similar sentence.

          After his release, in March 2003 (at the age of 23), Giardina committed the offense

now before us: he sold .24 grams of heroin in the presence of an undercover police

officer. He was indicted and pled guilty. At the sentencing hearing, the District Court

determined that because Giardina was a career offender, the advisory Sentencing

Guidelines range was 151–188 months. Giardina argued for a sentence below the

Guidelines range because of his young age, the absence of parental role models in his life,

his status as an addict, and his devotion to his friends, family and community. The Court

noted Giardina’s significant history of involvement with drugs, however, and, relying in

part on this history, sentenced him to 151 months’ imprisonment, at the bottom of the

Guidelines range, as well as 3 years’ supervised release.

          On appeal, Giardina accepts that the District Court accurately calculated the

Guidelines range and considered the pertinent 18 U.S.C. § 3553(a) factors, but argues that

the 151-month sentence is substantively unreasonable.1 We disagree. Giardina’s age,

lack of a role model, status as an addict, and devotion to family and friends, though



   1
     The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291. We review a District Court’s sentence for
reasonableness. United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007).

                                                2
relevant, must be considered along with the need to afford adequate deterrence of

criminal conduct and protect the public from further drug dealing by Giardina. See

§ 3553(a)(2)(B), (C). He has twice received short sentences for drug crimes, and these

did not prevent him from continuing to offend. The District Court concluded that a

longer sentence was therefore necessary, and the mitigating circumstances are insufficient

to render that conclusion unreasonable. See Bungar, 478 F.3d at 546 (refusing to “find

that a district court’s failure to give mitigating factors the weight a defendant contends

they deserve renders the sentence unreasonable”).

       For the foregoing reasons, we affirm.




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