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United States v. Severino

July 11, 2006

UNITED STATES OF AMERICA
v.
JAMES J. SEVERINO, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 04-cr-00237) (District Judge: Honorable Joy Flowers Conti).

The opinion of the court was delivered by: Ackerman, District Judge

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 19, 2006

Before: RENDELL and VAN ANTWERPEN, Circuit Judges, and ACKERMAN, District Judge.*fn1

OPINION OF THE COURT

Defendant James Severino appeals the reasonableness of his sentence on the grounds that the District Court failed to recognize its authority to consider extraordinary acceptance of responsibility as a factor in sentencing. After a careful review of the record, we conclude that the District Court properly understood its authority and the advisory nature of the Sentencing Guidelines, and that the sentence it imposed was reasonable. We will therefore AFFIRM the judgment of the District Court.

I.

To support his heroin addiction, Defendant James Severino robbed several Pittsburgh-area banks in June 2004. Upon his arrest, he immediately gave a written statement confessing to all three bank robberies. On September 15, 2004, a federal grand jury in the Western District of Pennsylvania returned a three-count indictment against Severino, charging three counts of bank robbery in violation of 18 U.S.C. § 2113(a).

At his arraignment before a Magistrate Judge on September 30, 2004, Severino wanted to plead guilty but his attorney apparently convinced him to plead not guilty. After the arraignment hearing, Severino wrote a letter to the District Court stating that he wanted to plead guilty and was upset with his attorney's efforts to prevent a guilty plea in the absence of a plea agreement, and requesting appointment of new counsel. At a hearing on this letter, defense counsel stated that after meeting with his client, Severino agreed to have him continue as counsel, that Severino would plead guilty, and that counsel was negotiating a plea agreement with the Government.

Prior to the plea hearing, Severino again wrote to the court. He informed the court that "all I wanted to do from day one is plead guilty, Go to jail, work in jail and start to pay my restitution (50% of my pay) and hopefully take advantage of a Drug or Educational program offered." (App. at 63-64.) He also stated that "I do not want to waste a single dime more of the government's money on this case than possible" and that "I am guilty and wish to plead guilty and go to jail and start paying my debt." (Id. at 64.) Severino pled guilty to all three counts of the indictment without a plea agreement.

Prior to sentencing, and apparently against the advice of counsel, Severino wrote personal letters to the banks and tellers he victimized. In these letters, he took full responsibility for his actions and apologized. At sentencing, the probation officer stated that "[t]his is the first case that I've seen where someone has actually written the tellers their apologies. It is certainly the first case that someone has wanted to plead guilty at the arraignment phase and has pursued pleading guilty as fervently as Mr. Severino has." (App. at 99.) Severino also wrote to the court prior to sentencing. He again expressed his guilt and shame, and discussed his desire to rehabilitate himself. He stated in this letter that "I want to go to the drug program. I want to work to pay back the money I took. I want to take advantage of schooling, any and all opportunities. I don't want to come out of jail not learning anything . . . . I want to learn and have a plan not to come back or be a part of recidivism." (App. at 73.)

The District Court sentenced Severino on June 24, 2005. Under the advisory provisions of the United States Sentencing Guidelines, the District Court found that Severino had a total offense level of 24 and a criminal history category of III, subjecting him to an advisory range of 63-78 months imprisonment. On the basis of "extraordinary acceptance of responsibility," Severino's counsel requested that the District Court impose a sentence below the suggested Guideline range. In his moving papers and at sentencing, counsel appeared to ask that the District Court issue a sentence only 12 months below the minimum suggested Guideline sentence of 63 months.

After hearing argument, the District Court imposed a sentence of 63 months imprisonment on each of the three counts, to run concurrently. In declining to issue a sentence below the minimum sentence under the suggested Guideline range, the District Court referenced this Court's opinion in United States v. Lieberman, 971 F.2d 989 (3d Cir. 1992), and recent amendments to the Guidelines regarding downward departures for acceptance of responsibility:

The problem that I have with that is that in the guidelines -- and the Lieberman case, I think, is helpful to you here; but I believe it predated the situation where they changed the guidelines and removed a basis for downward departure of anything that had to do with acceptance of responsibility. Looking at the person's use of drugs and all, there are a number of other factors -- I think I have the -- it's under 5K1.1. That was all removed from there; so when you look at the ...


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