NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4327
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UNITED STATES OF AMERICA
v.
MICHAEL GIAMO,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 2-11-cr-00620-001)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit LAR 34.1(a)
September 11, 2013
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Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.
(Opinion Filed: September 12, 2013)
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OPINION
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GREENAWAY, JR., Circuit Judge.
Appellant Michael Giamo (“Giamo”) challenges the District Court’s sentence,
arguing that the District Court erred by denying his motion for a downward departure and
by failing to appropriately consider several of the factors set forth in 18 U.S.C. § 3553(a).
For the reasons set forth below, we will affirm the sentence.
I. Background
We write primarily for the benefit of the parties and recount only the essential
facts.
After a jury trial, Giamo was convicted of participating in an arson-for-hire
scheme, as well as mail fraud and obstruction of justice. The conviction arose from
Giamo’s participation in a conspiracy to burn down his automotive repair business and
file a false insurance claim. While Giamo traveled to Brazil to establish an alibi,
Giamo’s co-conspirator, Isael Kniestedt (“Kniestedt”), executed the arson plan, burning
down Giamo’s business in return for a share of the insurance money. Kniestedt, after
being confronted, began cooperating with investigators, which led to Giamo’s arrest.
At Giamo’s sentencing, the District Court calculated his Sentencing Guidelines
range to be 198 to 217 months. The Government requested a sentence of 217 months.
Defense counsel moved for a downward departure to the mandatory minimum of 180
months based on U.S.S.G. § 5H1.3, citing Giamo’s mental instability and the abuse he
suffered as a child. Relying on the same facts, defense counsel also sought a downward
variance. The District Court denied the motion for a downward departure, but granted, in
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part, the request for a downward variance. The District Court sentenced Giamo to 192
months, six months below the bottom of the Guidelines range.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction,
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), the Guidelines are advisory and “appellate review of sentencing decisions is
limited to determining whether they are ‘reasonable.’” Gall v. United States, 552 U.S.
38, 46 (2007). Generally, reasonableness consists of both procedural and substantive
reasonableness. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). Here,
Giamo only challenges the substantive reasonableness of his sentence. This Court has
held that it will affirm a district court’s sentence “unless no reasonable sentencing court
would have imposed the same sentence on that particular defendant for the reasons the
district court provided.” Id. at 568.
The standard of review for variances granted pursuant to 18 U.S.C. § 3553(a) is
abuse of discretion. Gall, 552 U.S. at 46; Tomko, 562 F.3d at 567.
III. Analysis
Although Giamo argues that the District Court erred in denying his motion seeking
a downward departure pursuant to U.S.S.G. §5H1.3, this Court cannot review this
decision. United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006) (“[C]ourts of
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appeals post-Booker[] have no authority to review discretionary denials of departure
motions in calculating sentencing ranges.”). The District Court exercised its discretion,
and we may not review its decision to deny Giamo’s downward departure motion.
Giamo next argues that the District Court should have downwardly varied by more
than six months. Giamo contends that the District Court, in considering the § 3553(a)
factors, did not properly “take into account” the continuing effects of the trauma that
Giamo experienced in his childhood (Appellant’s Br. 12), and “[relied] on improper
factors,” including the facts underlying another arson case being tried that day (id. at 12,
13).
For a sentence to be reasonable, the record only has to demonstrate that the
District Court considered both arguments presented by the parties and “‘has a reasoned
basis for exercising [its] own legal decisionmaking authority.’” United States v. Merced,
603 F.3d 203, 215-16 (3d Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)). Contrary to Giamo’s assertions, the District Court did meaningfully consider the
3553(a) factors, including Giamo’s troubled childhood, his extensive criminal planning,
and the substantial danger of arson. Additionally, there is no evidence in the record that
the District Court’s cursory mention of another arson case was a consideration in its
sentencing decision. The District Court appropriately weighed both Giamo’s and the
Government’s arguments in reaching its sentencing decision.
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The District Court did not abuse its discretion, and Giamo fails to demonstrate that
no reasonable district court would have imposed the same sentence for the reasons that
the District Court applied. Tomko, 562 F.3d at 568. We thus find that the District
Court’s sentence was not substantively unreasonable.
IV. Conclusion
This Court has no jurisdiction to review the denial of a downward departure
motion. Since we find the sentence substantively reasonable, we will affirm the District
Court’s sentence.
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