Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-6-2008
USA v. Castore
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1943
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"USA v. Castore" (2008). 2008 Decisions. Paper 409.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1943
UNITED STATES OF AMERICA
v.
ANTHONY CASTORE,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 06-cr-00441)
District Judge: Hon. Jerome B. Simandle
Submitted under Third Circuit LAR 34.1(a)
on June 26, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Opinion filed: October 6, 2008)
OPINION
ROTH, Circuit Judge:
Counsel for Anthony Castore has filed a motion to withdraw from the case and has
submitted a brief to support this appeal pursuant to Anders v. California, 386 U.S. 738
(1967). Counsel argues that there are no non-frivolous issues that can be raised on appeal
by Castore. Castore was given a copy of the motion and the brief with the notice that he
could file a pro se brief. He elected not to do so.
Because we write primarily for the parties, we will only briefly discuss the facts
and proceedings below. On June 13, 2006, Anthony Castore pleaded guilty to two counts
of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371 (and 15 U.S.C.
§§ 78j(b) and 78ff(a)). At the sentencing hearing, Castore objected to the inclusion of a
two point enhancement, based on his use of sophisticated means, and asked the District
Court to consider the directives of 18 U.S.C. § 3553(a) and grant a variance based upon
his extraordinary acceptance of responsibility. The District Court rejected Castore’s
arguments and imposed a sentence at the very low end of the range suggested by the
sentencing guidelines of 46 months. A timely Notice of Appeal was filed on March 29,
2007.
After reviewing counsel's Anders brief, we conclude that this case does not raise
any non-frivolous issues. Therefore, we will affirm the judgment of sentence of the
District Court and we will grant counsel's motion to withdraw.
We adhere to a twofold inquiry when analyzing Anders briefs. United States v.
Youla, 241 F.3d 296, 300 (3d Cir.2001). This inquiry consists of the following: "(1)
whether counsel adequately fulfilled the rule's requirements; and (2) whether an
independent review of the record presents any nonfrivolous issues." Id. Regarding the
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first issue, we find that counsel's brief is adequate. When an attorney submits an Anders
brief, his duties are (1) to demonstrate to the court that he has thoroughly examined the
record for appealable issues, and (2) to demonstrate that the issues are frivolous. Id. In
attending to his duties "[c]ounsel need not raise and reject every possible claim." Id.
Counsel needs only to satisfy the "conscientious examination" standard set forth in
Anders. Id. We are satisfied that counsel has met this standard. He diligently searched
the record for any potential appealable issues arising from the sentencing proceeding and
supported his claims of frivolousness with citations to relevant case law. Thus, the
Anders inquiry proceeds to our independent search of the record. Id.
When an Anders brief appears adequate on its face, our independent examination
of the record is to be guided by the Anders brief itself. Youla, 241 F.3d at 301. Counsel
raises two possible issues for review in his Anders brief: (1) whether the District Court
erred in imposing a two point increase in offense level for the use of "sophisticated
means"; and (2) whether the District Court erred in declining to grant a variance and
impose a sentence beneath the level recommended by the Sentencing Guidelines. On the
basis of our review, we agree that both issues are without merit.
The District Court’s decision to impose a two point enhancement for the use of
sophisticated means was clearly correct. Castore used foreign shell corporations to hide
his assets and accessed funds utilizing international wire transfers and an ATM card that
was issued under another person’s name. His behavior implicated several of the
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quintessential examples of sophisticated means used to hide financial crimes discussed in
Application Note 8 of § 2B1.1 of the Sentencing Guidelines.
We “lack jurisdiction to review a refusal to depart downward when the district
court, knowing it may do so, nonetheless determines that departure is not warranted.”
United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996). The District Court noted at
the sentencing hearing that it knew that it was permitted to depart downward but declined
to do so. Accordingly, the District Court’s decision not to grant a variance is not
appealable.
After our independent examination of the record, we find that there are no
non-frivolous issues that could be raised on appeal. Thus, we will affirm the District
Court's judgement of sentence and we will grant counsel's motion to withdraw.
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