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Daniel Passarella v. United States of America

March 30, 2011

DANIEL PASSARELLA,
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

This is an appeal from the sentence of a Magistrate Judge for Speeding (36 C.F.R. 4.21(c)) and Possession of a Controlled Substance (36 C.F.R. 2.35(b)(2)). The Defendant was sentenced to three (3) months imprisonment on the possession conviction, and one (1) year of probation on the speeding violation. The Defendant appeals contending that the three months imprisonment on the possession charge is not reasonable, and that considering Defendant's circumstances if he has to serve three months, he should do so either on weekends or by home confinement.

Jurisdiction over this appeal is based on 18 U.S.C. §§ 3402 and 3742(h). The scope of review "is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). In accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the standard of review of a sentence is reasonableness.

The Defendant contends the sentence of three months is not reasonable. I find that it is reasonable, and affirm the sentence of the Magistrate Judge.

The maximum sentence for Possession of a Controlled Substance under 36 C.F.R. 2.35(b)(2) is six (6) months and a $5000 fine. While the Sentencing Guidelines do not apply to this offense, 18 U.S.C. § 3553 does. The factors set forth in 18 U.S.C. § 3553(a) are well known and are as follows:

(a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(b) to afford adequate deterrence to criminal conduct;

(c) to protect the public from further crimes of the defendant; and

(d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

The court is further directed to impose a sentence that takes into account:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant (§ 3553(a)(1));

(2) the kinds of sentence available (§ 3553(a)(3));

(3) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of ...


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