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


4-5-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1316




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Recommended Citation
"USA v. Iacono" (2004). 2004 Decisions. Paper 877.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/877


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                                     NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 03-1316


                 UNITED STATES


                         v.


            LEONARD KIM IACONO

                               Appellant



   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
             (D.C. No. 1:CR-01-361-001)
       District Judge: Honorable Yvette Kane



     Submitted Under Third Circuit LAR 34.1(a)
                 March 25, 2004

Before: ROTH, AMBRO and CHERTOFF, Circuit Judges

               (Filed: April 5, 2004 )


                     OPINION




                         1
CHERTOFF, Circuit Judge.

       This is an appeal by defendant Leonard Iacono from the judgment in a criminal

case imposing a term of sixty months imprisonment. Iacono’s counsel has filed a motion

to withdraw and a brief in support of that motion pursuant to the decision in Anders v.

California, 386 U.S. 738 (1967). For the following reasons, we will affirm and grant

counsel’s motion to withdraw.

                                             I.

       On March 11, 2002, Leonard Iacono pled guilty to (1) being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (2) possessing a firearm as an

unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(3). Iacono’s

presentence report calculated a total offense level of 21 and a criminal history category of

V, which corresponded to a sentencing range of 70-87 months.

       In accordance with a plea agreement between Iacono and the government, the

government recommended to the District Court that it impose a sentence at the bottom

end of the guideline range. The government also filed a U.S.S.G. § 5K1.1 motion, based

on Iacono’s substantial assistance, asking the District Court to depart downward thirty

percent from the low end of the guideline range.

       The District Court granted the government’s motion for a downward departure, but

the Court did not “necessarily accept[] the figures” the government recommended. The

Court decided that a downward departure of 24 months was appropriate and that the 24



                                             2
months should be deducted from the sentence that it would have imposed absent the

departure, which the Court decided was 84 months (“the middle to the higher end of the

guideline range”). Tr. 8, 10. The Court therefore sentenced Iacono to 60 months

imprisonment. Iacono’s judgment of sentence was entered in the docket on December 17,

2002.

        On January 21, 2003, Iacono filed a pro se motion, which he denominated a

“Motion and Brief to File Notice of Appeal Nunc Pro Tunc.” The motion requested “an

order investing Defendant with his appellate rights,” presumably because the ten day

time for appeal under Federal Rule of Appellate Procedure 4(b)(1) had expired. Supplem.

App. 45. The District Court granted Iacono’s motion on January 27, 2003, and Iacono

filed a notice of appeal that same day. Supplem. App. 48-50. We will treat the District

Court’s order as an order extending the time to file a notice of appeal under Federal Rule

of Appellate Procedure 4(b)(4). Iacono’s appeal is therefore timely.1

                                           II.

        Our role here is twofold—we must (1) determine whether counsel complied with




        1
        Despite his pending appeal, Iacono filed a motion with the District Court on
March 24, 2003 seeking what he styled (1) a “correction or reduction of sentence
pursuant to” Federal Rule of Criminal Procedure 35(b); and (2) a “reduction of sentence”
pursuant to 18 U.S.C. § 3742. Supplem. App. 51. On May 6, 2003, the District Court
denied Iacono’s motion. Even if the District Court had jurisdiction to consider Iacono’s
motion despite his pending appeal, Iacono never filed an appeal from the District Court’s
May 6, 2003 order. Thus only Iacono’s appeal from the judgment of sentence is properly
before us.

                                            3
Local Appellate Rule 109.2(a) and submitted an adequate brief; and (2) independently

review the record for any nonfrivolous issues. See United States v. Youla, 241 F.3d 296,

300 (3d Cir. 2001). Upon considering counsel’s submission, we are satisfied that he has

thoroughly scoured the record in search of appealable issues and explained why the issues

are frivolous. See United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000).

Consequently, counsel’s brief guides our independent review of the record. See Youla,

241 F.3d at 301. Since appellant has also submitted a brief pro se, appellant’s brief will

also guide our review. Cf. id. at 301 (where counsel’s Anders brief is inadequate the

Court is informed by issues raised in defendant’s pro se brief).

       Counsel’s brief notes that Iacono can only feasibly appeal from the District

Court’s discretionary decisions to (1) calculate his downward departure from the top end

of the applicable guideline range, instead of the bottom end recommended by the

government; and (2) only downwardly depart 24 months. Counsel is correct that both of

these arguments are frivolous. We lack jurisdiction to review either determination. See

United States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001) (no jurisdiction to review the

extent of a District Court’s discretionary downward departure for substantial assistance);

United States v. Richmond, 120 F.3d 434, 436 (3d Cir. 1997) (no jurisdiction to review

for abuse of discretion in imposing a sentence within the guideline range).

       In his pro se brief, Iacono contends that his trial counsel never went over his

presentence report with him and he was therefore unable to correct mistakes contained in



                                             4
the report. He also contends that his trial counsel misled him into pleading guilty to a

crime that he was not guilty of. The record is insufficient for us to determine these claims

of ineffective assistance of counsel, however, and they are therefore inappropriate for

review on direct appeal. See United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998).

                                            III.

       For the reasons stated above, we will affirm the District Court’s judgment and

grant counsel’s motion to withdraw.




                                              5
