                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1525




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"USA v. Veshio" (2006). 2006 Decisions. Paper 1423.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1423


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-1525


                          UNITED STATES OF AMERICA,

                                             v.

                               ALBERT VESHIO, JR.,
                                                                Appellant


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. Crim. No. 04-155)
                    District Judge: Honorable Thomas M. Hardiman


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 7, 2006

               BEFORE: ROTH and GREENBERG, Circuit Judges, and
                        BUCKWALTER, District Judge*

                           (Opinion filed:    March 15, 2006)



*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT


BUCKWALTER, Senior District Judge.

       Albert Veshio, Jr. plead guilty to a one count indictment charging him with bank

robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced Veshio to a 170

month term of imprisonment to be followed by a three year term of supervised release.

       He raises two issues in his appeal from that sentence: (1) did the district court

unreasonably sentence Mr. Veshio as a career offender, when it refused to consider

mitigating factors such as his severe addiction, the role of his addiction in both the current

crime and his past criminal history, and the fact that his criminal history overstated past

criminal conduct; and (2) by finding that under United States v. Booker, the guidelines

were no longer mandatory, and thus increasing Mr. Veshio’s maximum sentence beyond

the maximum sentence available when the crime occurred, did the district court violate

the ex post facto clause of the constitution?

       Initially, we note that the district court correctly determined that the guideline

range was 151 to 188 months based upon an offense level of 29 and a criminal history

category of VI. While the court stated that it intended to impose a sentence within that

range, it also acknowledged that the guidelines were no longer mandatory (Appendix 65

and 66). Moreover, the court went on to state the reasons for its sentence.

       The record is clear that the court was aware of the requirements of 18 U.S.C. §


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3553(a). Regarding the first issue raised in this appeal, the record sets forth the

substantial consideration the court took of Veshio’s addiction both as to past and present

crimes (App. 68, 69). The court also acknowledged that the criminal history was a

driving factor (App. 53), apparently not agreeing with the argument that it overstated

Veshio’s past criminal conduct.

       The bottom line, however, is that the court was not only aware of the requirements

of 18 U.S.C. § 3553(a), but also sentenced Veshio in accordance with those requirements

(See App. 68-70).

       With regard to Veshio’s second issue, the following facts should be noted:

       (1)    The maximum sentence, by statute, Veshio was subject to when he

committed the crime was twenty years. Booker, of course, did not change the statutory

maximum sentence to which Veshio could have been sentenced, which was, at all

pertinent times in this case, twenty years.

       (2)    The sentencing guideline calculation when Veshio committed the crime

would have been the same as it was on the date he was sentenced.

       (3)    Veshio was not disadvantaged by the holding in Booker, a prerequisite to an

ex post facto determination. Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 966 Ed.2d

351 (1987).

       Moreover, as set forth in Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149

L.Ed.2d 697, (2001), the ex post facto clause is “a limitation upon the powers of the

legislature and does not of its own force apply to the Judicial Branch of government.”

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Rogers at 1697.

       As explained in Rogers, supra, however, limitations of ex post facto judicial

decision making are inherent in the notion of due process. No such due process argument

has been made here which (if it had been) would have had to posit that Booker was “an

exercise of the sort of unfair and arbitrary judicial action against which the due process

clause aims to protect.” Rogers, at 1703.

       Based upon the above analysis, both of Veshio’s issues are without merit. Thus,

the judgment of sentence entered on January 31, 2005 is affirmed.




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