Third Circuit disposition — 012076mo-pdf

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2076
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UNITED STATES OF AMERICA
vs.
GINO BARBATI,
Appellant
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 00-cr-00500-1)
District Judge: The Honorable Clarence C. Newcomer
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Submitted Under Third Circuit LAR 34.1(a)
January 22, 2002
BEFORE: NYGAARD and STAPLETON, Circuit Judges,
and CAPUTO, District Judge.
(Filed: January 30, 2002)
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MEMORANDUM OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant, Gino Barbati, was convicted of violating 18 U.S.C. 2313 (sale
or receipt of stolen vehicle Count One) and 18 U.S.C. 2 (aiding and abetting Count
Two). He was sentenced to a term of 21 months of imprisonment. Barbati appeals
raising the two issues listed below, taken verbatim from appellant’s brief. Because we
conclude that the District Court did not err, we will affirm.
I.
1. Did the trial court err in not instructing the jury as to how they should
consider certain testimony?
2. Did the sentencing court err in enhancing appellant’s sentence by two
points under the specific offense characteristic section of U.S.S.G. 1B.1.3.
II.
The evidence of record establishes that appellant either purchased or

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received a total of three stolen motor vehicles from individuals who were participating in
a multi-state car theft ring. Barbati purchased two vehicles and set up the purchase of a
third, for prices which were substantially below fair market value.
With respect to the first issue raised by the appellant, we conclude that the
District Court did not abuse its discretion when it declined to instruct the jury that it coul
not impute knowledge to Barbati that one of the automobiles was stolen from the fact that
Barbati’s girlfriend lied on the vehicle registration form. We conclude that the District
Court had a rational basis for declining to give the instruction. Moreover, the court’s
instructions taken as a whole, fairly and accurately presented the issues of this case to the
jury.
With respect to the second issue, we likewise conclude that the District
Court did not err when it adjusted the appellant’s offense level upward by two levels for
the specific offense characteristic of more than minimal planning. The appellant received
three stolen cars and engaged in repeated acts over a period of time. This would support a
finding of more than minimal planning. We conclude that the District Court did not
commit clear error by so finding.
III.
In sum, for the foregoing reasons, we will affirm the judgment of the
District Court entered April 27, 2001.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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