2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2004

USA v. Olmedo

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4105

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Recommended Citation

"USA v. Olmedo" (2004). 2004 Decisions. Paper 1059.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1059
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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 02-4105

 

UNITED STATES OF AMERICA

v.

THOMAS J. OLMEDO a/k/a WHITE BOY TOMMY

THOMAS OLMEDO

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 01-cr-00449)

District Judge: Honorable Petrese B. Tucker

 

Submitted Under Third Circuit LAR 34.1(a)

January 15, 2004

Before: Sloviter, Rendell and Aldisert, Circuit Judges.

(Filed January 30, 2004 )

 

OPINION OF THE COURT

 
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ALDISERT, Circuit Judge.

Counsel has submitted for our consideration a brief filed under the teachings of

Anders v. California, 386 U.S. 738 (1967) – an appointed appellate counsel who “finds

[a] case to be wholly frivolous, after a conscientious examination of” the case must so

advise this court and request permission to withdraw. 386 U.S. at 744. The request must

be accompanied by “a brief referring to anything in the record that might arguably

support the appeal.” Id. A copy of counsel’s brief was furnished to Appellant, who was

given time to raise any non-frivolous arguments in a pro se brief. Id. at 744; 3rd Cir. R.

109.2(a). Appellant has not filed such a brief. 

The Anders brief has referred us to portions of the record that arguably present

non-frivolous issues and has identified the following sole issue: the court may have erred

in denying Olmedo’s motion for a downward departure based on his diminished capacity

for the claim that his criminal history overstates the seriousness of his prior criminal

conduct. 

The policy statement for diminished capacity set forth in the Sentencing

Guidelines provides in part:

[T]he court may not depart below the applicable guideline

range if 1) the significantly reduced mental capacity was

caused by the voluntary use of drugs or other intoxicants; 2)

the facts and circumstances of the defendant’s offense

indicate a need to protect the public because the offense

involved actual violence or serious threat of violence; or 3)

the defendant’s criminal history indicates a need to
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incarcerate the defendant to protect the public.

U.S.S.G. § 5K2.13. The district court considered the departure motion and determined

that even though Olmedo may have suffered from diminished capacity, he did not meet

any of the three conditions necessary for application of downward departure under §

5K2.13. 

We are satisfied that the district court knew that it had the authority to impose a

downward departure and exercised its discretion not to do so. Accordingly, this court

does not have jurisdiction. United States v. Torres, 209 F.3d 308, 309 n.1 (3d Cir.

2000), cert. denied, 531 U.S. 864 (2000).

We are satisfied that no non frivolous argument could be presented in the case at

bar. Because counsel has complied with all of the procedures specified in Anders, we

will grant his motion for withdrawal.

For the reasons set forth, we will dismiss Olmedo’s appeal.

 

TO THE CLERK:

Please file the foregoing opinion.

s/Ruggero J. Aldisert 

 Circuit Judge
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