Patricia A. Sciulli v. UNITED STATES OF AMERICA On Appeal From the United States District Court For the…

APS-295 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4292
________________
PATRICIA A. SCIULLI,
Appellant,
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-03932)
District Judge: Honorable Robert B. Kugler
__________________________
Submitted Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 30, 2005
Before: SLOVITER, FUENTES and NYGAARD*, Circuit Judges
(Filed: July 28, 2005)
_________________
OPINION
_________________
PER CURIAM
Appellant Patricia Sciulli pleaded guilty to bank fraud in violation of 18 U.S.C. §
_____
*Judge Richard L. Nygaard assumed senior status on July 9, 2005.

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Blakely held that the State of Washington’s determinate sentencing scheme, a1
scheme similar to the federal sentencing guidelines, violated the Sixth Amendment right
2
No. 04-4292
Page 2
1344 and failure to report income in violation of 18 U.S.C. § 7206(1) in United States
District Court for the District of New Jersey. In pertinent part, the plea agreement
provided for a waiver of appeal so long as the total offense level determined by the
sentencing court was equal to or less than 19. In August 2003, the District Court imposed
a term of imprisonment of 37 months. The sentence was based on a total offense level of
21, which included a 2-level enhancement for abuse of trust and a 2-level multi-count
adjustment. Sciulli contested these adjustments at sentencing, particularly the abuse of
trust adjustment. She did not, however, appeal the sentence.
On August 17, 2004, Sciulli, through counsel, filed a motion to vacate sentence
under 28 U.S.C. § 2255, in which she contended that her sentence was the result of
judicial fact-finding, she did not consent to judicial fact-finding, and she did not admit to,
and vigorously contested, those facts relied on by the sentencing court to justify the 2-
level enhancement for abuse of trust. The motion was grounded on the United States
Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (U.S. 2004), which1

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to a jury trial insofar as a judge may find facts upon the less stringent preponderance of
the evidence standard. Id. at 2538.
A conviction becomes final after the appeal period expires if no appeal is taken.2
Kapral v. United States, 166 F.3d 565, 572 (3d Cir. 1999).
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was decided after Sciulli’s conviction became final. In an order entered on November2
19, 2004, the District Court denied the section 2255 motion, concluding that Blakely was
not retroactive to cases on collateral review.
Sciulli appealed, and the District Court thereafter granted a certificate of
appealability as to the question whether Blakely is retroactive to cases on collateral
review. After Sciulli filed her brief and appendix on appeal, we decided Lloyd v. United
States, 407 F.3d 608 (3d Cir. 2005), and we then asked the parties to submit written
argument in support of, or in opposition to, summary affirmance. The parties have
responded.
We will summarily affirm the order of the District Court denying Sciulli’s section
2255 motion under Third Circuit LAR 27.4 and I.O.P. 10.6, because it clearly appears
that no substantial question is presented by this appeal. The United States Supreme Court
held in United States v. Booker, 125 S. Ct. 738 (U.S. 2005), that, because the federal
sentencing guidelines allowed judges to find facts that lead to a greater sentence than that
authorized by the facts established by a plea of guilty or a jury verdict, they were not
mandatory. Id. at 756. We held in Lloyd that the rule announced in Booker, which
applied the Blakely rule to the federal sentencing guidelines, is a new rule of

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constitutional procedure that is not retroactively applicable to cases on collateral review.
Lloyd, 407 F.3d 608. Sciulli concedes that Lloyd controls the outcome of this appeal
from a case on collateral review. He is thus not entitled to relief under Blakely and
Booker.
We will summarily affirm the order of the District Court denying the section 2255
motion.

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