United States of America v. Frank Ginesi

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1577
UNITED STATES OF AMERICA
v.
FRANK GINESI
APPELLANT
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 99-CR-661)
District Judge: Honorable Dennis M. Cavanaugh
Submitted November 3, 2004
Before: ALITO, BARRY, and FUENTES, Circuit Judges.
(Filed: May 10, 2005)
OPINION OF THE COURT
FUENTES, Circuit Judge.
Frank Ginesi pled guilty to a two count indictment charging him in Count One
with mail fraud, and in Count Two with filing false tax returns. The District Court

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sentenced Ginesi, pursuant to the United States Sentencing Guidelines, to a 27 month
term of imprisonment after denying Ginesi’s motion for a downward departure based
upon his age and deteriorating mental condition. Ginesi later moved for
reconsideration of his sentence, which was also denied by the District Court. On
appeal, he challenges his sentence under United States v. Booker, 543 U.S. __, 125
S. Ct. 738 (2005).
Having determined that the sentencing issues appellant raises are best
determined by the District Court in the first instance, we will vacate the sentence and
remand for resentencing in accordance with Booker. Ginesi raises no challenge as to
his conviction and accordingly has waived any argument in this regard. We will
affirm the judgment of conviction.

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