                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2089




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"USA v. Georgacarakos" (2007). 2007 Decisions. Paper 764.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/764


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                                                             NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  _______________

                                    No. 06-2089
                                  _______________

                         UNITED STATES OF AMERICA,

                                          v.

                          PETER N. GEORGACARAKOS,

                                      Appellant.

                                  _______________

                   On Appeal From the United States District Court
                        for the Middle District of Pennsylvania
                                  (No. 02-cr-00034-2)
                   District Judge: Honorable James F. McClure, Jr.

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 22, 2007

            Before: BARRY, CHAGARES and TASHIMA,* Circuit Judges

                                (Filed: July 16, 2007)
                                __________________

                             OPINION OF THE COURT
                               __________________




      *
        The Honorable A. Wallace Tashima, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       Because we write for the benefit of the parties alone, we include only those facts

necessary for the disposition of this appeal.

       In February 2004, a jury returned a guilty verdict, convicting appellant Peter N.

Georgacarakos of second-degree murder for the stabbing death of a fellow prison inmate.

Prior to trial, Georgacarakos’s co-defendant, Marek Kowaalski, entered a plea of guilty to

voluntary manslaughter and testified against Georgacarakos at trial. Georgacarakos was

sentenced to life in prison and he appealed. On June 21, 2005, we affirmed the judgment

of conviction, but remanded to the District Court for re-sentencing due in part to the

intervening decision by the United States Supreme Court in United States v. Booker, 543

U.S. 220 (2005), as well as to address Georgacarakos’s argument that he should not have

been sentenced as a career offender pursuant to U.S.S.G. § 4A1.3. United States v.

Georgacarakos, 138 Fed. Appx. 407, 410-11 (3d Cir. 2005).

       On remand, the District Court reduced Georgacarakos’s sentence from life

imprisonment to 360 months, a sentence at the very minimum of the guideline range, after

taking into consideration the noted disparity between his sentence and that of Kowaalski.

Now, on appeal for the second time, Georgacarakos challenges rulings made by the

District Court with respect to certain motions filed by Georgacarakos in anticipation of

the re-sentencing, but Georgacarakos concedes that he does not challenge the 360-month

sentence imposed. Letter from Ronald C. Travis, Esq. to the United States Court of



                                                2
Appeals for the Third Circuit (August 22, 2006) (“Pursuant to a voicemail message I

received on August 21 st, an inquiry was made as to whether we were challenging the

sentence which was imposed by the court. The appeal taken challenges the rulings the

court made with respect to the motions filed in conjunction with the resentencing, not the

sentence imposed itself.”).

       Specifically, Georgacarakos argues that the Order of Judgment of June 21, 2005

remanding his case for re-sentencing placed no limitations on the District Court.1 Thus,

the District Court was free to consider and decide any motions impacting the advisory

guidelines sentencing range. In that regard, in November 2005, Georgacarakos filed a

pro se motion to reduce his crime of conviction from second-degree murder to voluntary

manslaughter. The District Court denied that motion on November 8, 2005.

Georgacarakos then filed a pro se motion to reconsider, which was denied on November

28, 2005. In January 2006, through counsel, Georgacarakos filed another motion, this

time seeking to vacate the second-degree murder conviction and to dismiss with prejudice

the indictment on the basis of discriminatory prosecution. Georgacarakos also filed a

motion seeking discovery vis à vis the selective prosecution motion. These motions were

denied by the District Court on February 28, 2006. Finally, Georgacarakos filed a motion



       1
        The Order of Judgment states in pertinent part: “On consideration whereof, it is
now here ordered and adjudged by this Court that the judgment of conviction be and
hereby is affirmed and the judgment of sentence be and hereby is vacated and this matter
is remanded for resentencing. All of the above in accordance with the Opinion of the
Court.” (App. 8a-9a.)

                                            3
seeking disclosure of investigative reports. The District Court likewise denied this

motion. Essentially, the District Court denied the various motions because they were

beyond the scope of the ordered remand.

       We wholeheartedly disagree with Georgacarakos’s characterization of the remand

order as unlimited in scope. It clearly was not. As stated in the Opinion of the Court that

accompanied the order, we expressly remanded for reconsideration of his sentence under

the sentencing guidelines made advisory pursuant to Booker and to consider whether §

4A1.3 was applicable to Georgacarakos. At the sentencing hearing, the Court and

counsel discussed the career offender objection. Given the opportunity to add to the

record, counsel admittedly had nothing more persuasive in terms of arguments to present

to the Court and the Court sustained its prior ruling, upholding Georgacarakos’s status as

a career offender. Georgacarakos does not challenge this ruling on appeal.

       The District Court then heard from the parties, including Georgacarakos, regarding

the imposition of a new sentence. Based on the now-advisory guidelines, taking into

consideration the 28 U.S.C. § 3553(a) factors, including the disparity between the

sentence Kowaalski received compared to Georgacarakos’s previous sentence, the

District Court reduced Georgacarakos’s sentence from life imprisonment to 360 months.

Georgacarakos does not challenge the reasonableness of this sentence on appeal.

       We find no error with any of the District Court’s rulings upon remand.

Accordingly, we will affirm.



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