United States of America v. THOMAS J. OLMEDO a/k/a WHITE BOY TOMMY THOMAS OLMEDO

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NOT PRECEDENTIAL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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