                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2622




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"USA v. Yednak" (2003). 2003 Decisions. Paper 491.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      NO. 02-2622
                                      __________

                           UNITED STATES OF AMERICA

                                            v.

                                 PATRICK YEDNAK,
                                             Appellant

                                      __________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           (D.C. Criminal No. 01-cr-00141)
                     District Judge: Honorable Gary L. Lancaster
                                     __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 13, 2003

             Before: RENDELL, SMITH and ALDISERT, Circuit Judges.

                                 (Filed: May 29, 2003)
                                       __________

                              OPINION OF THE COURT
                                    __________

RENDELL, Circuit Judge.

      Patrick Yednak was charged in a sixteen-count indictment with violations of

federal conspiracy, bank robbery, and firearms laws. Pursuant to a plea agreement with

the government, he pled guilty to six counts. The District Court sentenced him to a term
of imprisonment of 224 months and supervised release for five years, and ordered him to

pay restitution. Yednak appeals the Judgment and Commitment Order.

       Yednak describes three points of error in his sentencing. First, he alleges that two

previous cases for which Yednak received separate criminal history points were

consolidated and therefore should have been deemed related; second, that the District

Court erred in attributing one point for a retail theft conviction that was a summary

offense; and third, that the District Court should have granted a downward departure for

Yednak’s voluntary disclosure of an offense or alternatively for his extraordinary

acceptance of responsibility. We reject all three arguments and will affirm.

       The District Court had jurisdiction by virtue of 18 U.S.C. § 3231, and we exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). We exercise

plenary review over the District Court’s interpretation and application of the Sentencing

Guidelines, however where the District Court’s application is based on factual analysis,

we will reverse only if the Court’s conclusion is clearly erroneous. United States v.

Hallman, 23 F.3d 821, 823 (3d Cir. 1994).

       Yednak and his brother and another individual conspired to commit a number of

armed bank robberies in the Pittsburgh area. We need not detail all of the facts and

circumstances surrounding the robberies; suffice it to say that they were a three-person

crime wave responsible for numerous bank robberies, some charged and some uncharged,

in May of 2001.



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       In calculating his criminal history score, the District Court included three points

each for two previous offenses that had been consolidated before one court. Yednak

contends that because the offenses were consolidated, they are related and should be

grouped under U.S.S.G. § 4A1.1, and that he should therefore receive only three points,

not six. However, Yednack fails to note that under section 4A1.2(a)(2), and Application

Note 3, such prior offenses, even if consolidated, are to be counted separately under the

guidelines if they are separated by an intervening arrest. Here, Yednak was arrested for

the first offense, released, and then arrested again five days later for the second offense.

Because the sentence imposed for each prior conviction was in excess of one year and

one month, the District Court properly assigned three criminal history points to each

offense, as required under U.S.S.G. § 4A1.1.

       With respect to the retail theft conviction, Yednak argues that we should follow

the lead of the United States Court of Appeals for the Ninth Circuit, which has held that

shoplifting is similar to the minor offenses, listed in U.S.S.G. § 4A1.2(c), that do not

count in the calculation of criminal history points. See United States v. Lopez-Pastrana,

244 F.3d 1025, 1027-28 (9th Cir. 2001). In that case, the court held that shoplifting was

similar to passing an insufficient funds check, which is one of the crimes listed in section

4A1.2(c). Here, Yednack stole $419 worth of clothing from a department store; we do

not find it error for the District Court to have considered this fact pattern to be more

egregious than passing an insufficient funds check. We have previously affirmed a



                                              3
district court’s ruling to this effect, see United States v. Dershem, 818 F. Supp. 785, 791

(M.D. Pa. 1993), aff’d 16 F. 3d 406 (3d Cir. 1993), and we are not alone in reaching this

conclusion, as the Courts of Appeals for the Eighth and Tenth Circuits have affirmed

similar rulings. See United States v. Waller, 218 F.3d 856, 857-58 (8th Cir. 2000);

United States v. Hooks, 65 F.3d 850, 855-56 (10th Cir. 1995).

       Finally, we note that the District Court’s refusal to depart downward under section

5K2.16 for the voluntary disclosure of an offense or under section 5K2.0 for

extraordinary acceptance of responsibility were determinations made entirely within the

discretion of the District Court, which understood that it had the ability to depart but

refused to do so. We are therefore without jurisdiction to review those aspects of the

District Court’s ruling. United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996).

       Accordingly, the Judgment and Commitment Order of the District Court will be

AFFIRMED.

________________________________




                                              4
___________________________

TO THE CLERK OF COURT:

     Please file the foregoing Not Precedential Opinion.


                                                /s/ Marjorie O. Rendell
                                                     Circuit Judge




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