*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 8 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD PAUL GIROLAMO,

Defendant-Appellant.

No. 98-2101

(District of New Mexico)

(D.C. No. CR-97-178-JC)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The court

therefore orders the case submitted without oral argument.

In March of 1997, a federal grand jury indicted Richard Paul Girolamo on

four counts of being a felon in possession of a firearm in violation of 18 U.S.C.
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§§ 922(g)(1) and 924(a)(2). In December of that same year, Girolamo entered

into a plea agreement with the government wherein he agreed to plead guilty to

Count IV of the indictment. In exchange for Girolamo’s guilty plea to Count IV,

the United States agreed to dismiss the remaining three counts of the indictment. 

The United States further stipulated that Girolamo had clearly demonstrated

acceptance of personal responsibility for his criminal conduct and was, thus,

entitled to a three-point downward adjustment in his base offense level pursuant

to U.S.S.G. § 3E1.1.

Prior to sentencing, Girolamo moved for a downward departure on the

following two grounds: (1) the conduct of the “victim” contributed significantly

to provoking the offense behavior; and (2) he possessed the weapons in order to

avoid a perceived greater harm. At the sentencing hearing, the district court

refused to depart downward, noting as follows:

I don’t think that this case is one for a downward departure. 

Frankly, based on his criminal activity, this one where his criminal

activity understates what his sentence should b, so it would be just

the opposite, if I were going to – I would depart upward rather than

downward.

So I find I have the authority and jurisdiction to depart

downward. I choose not to do so, and I adopt the findings of the

probation department, as to all of his contested findings.

Accordingly, the district court sentenced Girolamo to a term of 105 months

imprisonment to be followed by three years supervised release. The term

imposed was within the range prescribed by the Sentencing Guidelines.
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On March 31, 1998, Girolamo filed a timely pro se notice of appeal. On

May 5th , Girolamo’s counsel sent Girolamo a letter indicating that counsel had

reviewed the record, believed the appeal was frivolous, and would file a brief

pursuant to Anders v. California , 386 U.S. 738 (1967), seeking to withdraw. The

letter also briefly apprized Girolamo of Girolamo’s obligation to file a

supplemental brief setting forth those issues he believed deserving of appellate

review. On May 29th , counsel sent Girolamo a second letter, reiterating his

intention to file an Anders brief and providing Girolamo with detailed

instructions regarding the filing of a pro se supplemental brief.

After Girolamo’s counsel filed his Anders brief in July of 1998, the Clerk

of this court sent Girolamo a letter specifically informing him that he should file

a supplemental pro se brief within thirty days indicating why Girolamo’s

conviction should be set aside. The letter further indicated as follows: “You do

not have a right to another attorney unless this court finds, based upon your

objections and the reasons for them, that your case requires further briefing or

argument. If the court finds that your case requires further briefing or argument,

an attorney will be appointed to handle your appeal.” On September 18th , well

after the deadline set forth in the Clerk’s letter, Girolamo filed a Motion for

Appointment of Counsel on Appeal and for Extension of Time. In his motion,

Girolamo failed to address the merits of his appeal or to discuss whether the
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appeal was frivolous. Instead, Girolamo simply stated in the most conclusory

terms that his present counsel was biased and ineffective and that he needed new

counsel to file a brief on his behalf. On September 21st , the Clerk of this court

issued an Order providing that Girolamo’s motion would be referred to the merits

panel. The Order again informed Girolamo of his right to file a supplemental pro

se brief and specifically noted that the court did not have before it any materials

addressing the merits of Girolamo’s appeal. The order indicated that Girolamo

should file such a brief within fourteen days. Girolamo again failed to file a

supplemental brief.

With this lengthy procedural history in mind, this appeal is before the court

on counsel’s Anders brief and motion to withdraw and Girolamo’s belated motion

for extension and appointment of counsel. Based on a rigorous review of the

record, this court agrees with counsel that Girolamo’s guilty plea was freely and

voluntarily entered, his sentence of imprisonment was accurately calculated, and

this appeal is frivolous. Accordingly, this court DENIES Girolamo’s motion for

extension and for appointment of counsel, GRANTS counsel’s motion to

withdraw, and AFFIRMS the judgment of conviction and sentence entered by

the district court. 

ENTERED FOR THE COURT:
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Michael R. Murphy

Circuit Judge