                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3381




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"USA v. Mazzuca" (2005). 2005 Decisions. Paper 804.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3381


                           UNITED STATES OF AMERICA

                                           v.

                                 NANCY MAZZUCA,
                                                Appellant
                                   ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. Crim No. 03-cr-00661 )
                  District Judge: Honorable Harvey Bartle, III
                                 ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 15, 2005
               Before: SLOVITER, McKEE and WEIS, Circuit Judges.
                              (Filed: July 20, 2005)
                                   ____________

                                       OPINION


WEIS, Circuit Judge.

             Defendant was convicted on counts of perjury and obstruction of justice in

the District Court and a sentence of 15 months incarceration was imposed by the trial

judge. The sentence was calculated according to the Sentencing Guidelines.



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              Shortly before sentence was imposed, the United States Supreme Court

decided Blakely v. Washington, ___ U.S. ___ (2004), 124 S.Ct. 2531 (2004), in an

opinion which cast doubt on the validity of the Guidelines. Recognizing the uncertainty in

the sentencing area, the Assistant United States Attorney called the District Court’s

attention to the possibility that Blakely might be applicable. The trial judge responded:

              “My sentence, in this case, would be exactly the same. I’ve
              already stated that, should the obstruction of justice
              adjustment not be applicable, either because I am wrong about
              the law, or because Blakely would affect it, we would then be
              in offense level 12, and the range for offense level 12 is 10 to
              16 months for someone in Ms. Mazzuca’s situation, that has
              no criminal history points, and my sentence would still be 15
              months in prison.
              “[U.S. Attorney]: And then, likewise, Your Honor, just for
              the record, assuming that the Guidelines were found
              completely unconstitutional and Your Honor had complete
              discretion, would the sentence then be the same?
              “The Court: The sentence would be 15 months.” (App. 584a-
              85a).”


              The question whether we should remand a case like this for resentencing in

accordance with United States v. Booker, ____ U.S. ___, 125 S.Ct. 738 (2005), was

decided in United States v. Hill, No. 04-3904, 2005 WL 1389113 (3d Cir. June 15, 2005).

There, we said: “we now join several of our sister circuits and conclude that where, as


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here, a District Court clearly indicates that an alternative sentence would be identical to

the sentence imposed under the Guidelines, any error that may attach to a defendant’s

sentence under Booker is harmless.” Hill, No. 04-3904, 2005 WL 1389113, at *1.

              Accordingly, we will affirm the Judgment and Sentence.




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