                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2362




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Recommended Citation
"USA v. Giacomini" (2004). 2004 Decisions. Paper 854.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/854


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 03-2362
                                     ___________

                          UNITED STATES OF AMERICA


                                           v.

                               HAROLD GIACOMINI,
                                    a/k/a Hal

                                  Harold Giacomini,

                                                    Appellant

                                     ___________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania

                  District Court Judge: The Honorable Jan E. DuBois
                           (D.C. Criminal. No. 01-cr-00100-2)
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 22, 2004

              Before: FUENTES, SMITH and GIBSON*, Circuit Judges.

                             (Opinion Filed: April 7, 2004)

_______________
* The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
                                _______________________

                                OPINION OF THE COURT

                                _______________________




FUENTES, Circuit Judge:

       On February 22, 2001, Harold Giacomini was indicted in the Eastern District of

Pennsylvania for violations of 18 USC §371, conspiracy, §2322, operating and conducting

a chop shop, and §511, alteration of vehicle identification numbers and aiding and abetting.

The charges were in connection with his employment at Borners Auto Body, a salvage yard

which dealt in stolen vehicle parts and “chopped” vehicles. On September 12, 2001,

Giacomini pled guilty to these offenses. A sentencing hearing was held on April 29, 2003

and the guideline level agreed upon by the government and the defense was accepted by the

District Court Judge. Giacomini was sentenced to five months imprisonment, a five month

period of in-home detention, three years of supervised release, a $6000 fine and $200

assessment. On May 8, 2003, Giacomini filed a timely notice of appeal. Thereafter, on

August 1, 2003, William Lawson III, counsel for Giacomini, filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), expressing his belief that Giacomini cannot raise any non-

frivolous issues for our review, and directing us, as is required under Anders, to the issues

that he thought Giacomini might raise on appeal. Giacomini has not filed a pro se brief on

his own behalf.




                                              2
       First, counsel notes that Giacomini might challenge the plea agreement he entered into

with the government. An examination of the colloquy during which Giacomini entered his

guilty plea, however, demonstrates that there is no meritorious appellate issue with respect

to that plea. During the colloquy, the District Court made certain that Giacomini understood

the charges and wanted to enter a plea of guilty to each charge. The District Court ensured

that Giacomini was, in fact, guilty of the crimes charged and reviewed the maximum

penalties that could be imposed and the rights that Giacomini was waiving by pleading guilty.

At the end of the colloquy, having determined that Giacomini’s plea of guilty was knowing

and voluntary, the District Court accepted the plea.

       Next, counsel notes that Giacomini might challenge the sentencing determination

made by the District Court. The pre-sentence report indicated a total adjusted offense level

of 19 and a criminal history of category I, resulting in a guideline range of imprisonment

from 30 to 37 months.       Because Giacomini cooperated in the investigation of his

codefendants, the government filed a motion for downward departure under section 5K1.1

which was granted by the District Court. The sentence handed down, while a substantial

departure from the agreed upon guideline range, was therefore in conformity with the

sentencing guidelines.

       After carefully reviewing the briefs and accompanying materials of record, we will

affirm the conviction and sentence. Counsel conducted a conscientious review of the record

and concluded that there were no non-frivolous issues that could be raised on appeal, as

required by Anders. 386 U.S. at 744. We have conducted an independent examination of the



                                             3
record before us, and we agree with counsel that there are no non-frivolous issues that justify

review. Because counsel has complied with all of the procedures specified in Anders, we

will grant his motion for withdrawal.

       For the foregoing reasons, we will AFFIRM the Judgment of the District Court and

GRANT counsel’s request to withdraw.




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