Filed: Dec. 13, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2388 _ UNITED STATES OF AMERICA v. JENNIFER FILPO, Appellant _ On Appeal from the United States District Court For the District of New Jersey (Crim. No. 2:07-cr-00675) District Judge: Honorable Dennis M. Cavanaugh _ Submitted Under Third Circuit L.A.R. 34.1(a) November 16, 2011 BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International Trade Judge (Opinion Filed: December 13, 2011) _ OPINION OF THE COURT
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-2388 _ UNITED STATES OF AMERICA v. JENNIFER FILPO, Appellant _ On Appeal from the United States District Court For the District of New Jersey (Crim. No. 2:07-cr-00675) District Judge: Honorable Dennis M. Cavanaugh _ Submitted Under Third Circuit L.A.R. 34.1(a) November 16, 2011 BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International Trade Judge (Opinion Filed: December 13, 2011) _ OPINION OF THE COURT ..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 10-2388
________________
UNITED STATES OF AMERICA
v.
JENNIFER FILPO,
Appellant
________________
On Appeal from the United States District Court
For the District of New Jersey
(Crim. No. 2:07-cr-00675)
District Judge: Honorable Dennis M. Cavanaugh
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 16, 2011
BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International
Trade Judge
(Opinion Filed: December 13, 2011)
________________
OPINION OF THE COURT
________________
FUENTES, Circuit Judge.
Honorable Jane A. Restani, International Trade Judge of the United States Court of
International Trade, sitting by designation.
1
Jennifer Filpo pled guilty to a one-count Information of conspiracy to distribute
and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Filpo was
sentenced to 60 months of imprisonment, followed by three years of supervised release.
She now appeals her conviction and sentence. Counsel for Filpo has filed a brief
pursuant to Anders v. California,
386 U.S. 738 (1967), and requests leave to withdraw. A
copy of the Anders brief was sent to Filpo, but she has not filed a pro se response brief.
Since we are satisfied that counsel‟s brief was adequate, and because the record does not
present any non-frivolous issues, we will affirm the District Court‟s sentence and grant
Filpo‟s counsel leave to withdraw.
I.
Because we write only for the parties, we briefly discuss the facts necessary to our
conclusion. Filpo pled guilty in 2007 to a one-count Information of conspiracy to
distribute and possess with intent to distribute 100 grams or more of heroin, in violation
of 21 U.S.C. § 846. This provision carries a statutory minimum prison sentence of five
years and a maximum prison sentence of forty years. The plea agreement included an
appellate waiver by which Filpo relinquished her right to appeal, though the parties
reserved the ability to appeal the sentencing court‟s determination of Filpo‟s criminal
history category pursuant to 18 U.S.C. § 3742.
In April 2010, the District Court held a sentencing hearing at which it sentenced
Filpo to the statutory minimum of 60 months, pursuant to 21 U.S.C. § 841(b)(1)(B)(i),
followed by three years of supervised release.
2
II.
In Anders, the Supreme Court provided that, although a defendant‟s counsel is
required to “support his client‟s appeal to the best of his ability,” counsel may request
permission to withdraw from a case if he finds it to be “wholly
frivolous.” 386 U.S.
at 744. We have established that, where, upon review of the district court record, counsel
is persuaded that the appeal presents no issue of even arguable merit, he or she may file a
motion to withdraw and a supporting brief pursuant to Anders, which shall be served
upon the appellant and the United States. See 3d Cir. L.A.R. 109.2(a). Counsel‟s brief
must: (1) “„satisfy the court that he or she has thoroughly scoured the record in search of
appealable issues,‟” and (2) “„explain why the issues are frivolous.‟” United States v.
Coleman,
575 F.3d 316, 319 (3d Cir. 2009) (quoting United States v. Marvin,
211 F.3d
778, 780 (3d Cir. 2000)). Upon receipt of the brief, we ask “„(1) whether counsel
adequately fulfilled [Third Circuit Local Appellate Rule 109.2‟s] requirements; and (2)
whether an independent review of the record presents any nonfrivolous issues.‟”
Id.
(quoting United States v. Youla,
241 F.3d 296, 300 (3d Cir. 2001)). Appellant may also
file a brief in response pro se. See 3d Cir. L.A.R. 109.2(a). When an Anders brief is
adequate, we review only the portions of the record identified in the brief and any issues
raised by the appellant in his pro se brief. If we find that there are no non-frivolous
issues, we “will grant [the] Anders motion, and dispose of the appeal without appointing
new counsel.”
Marvin, 211 F.3d at 780 (quoting 3d Cir. L.A.R. 109.2(a)).
3
Here, counsel‟s Anders brief appears adequate. Counsel has identified the
following possible issues: whether Filpo knowingly and voluntarily pled guilty; the
reasonableness of her sentence; and the enforceability of her appellate waiver. The
Anders brief and our independent review of the record lead us to agree with counsel that
each issue is frivolous. The District Court conducted an adequate colloquy to ensure that
Filpo understood the nature and consequences of her plea. It is clear from the record that
she knowing and voluntary pled guilty. The District Court also properly considered the
factors specified in 18 U.S.C. § 3553(a), as well as the applicable statutory and
Guidelines provisions, before sentencing Filpo to a term of imprisonment that comports
with the statutory minimum and is within the Guidelines range. Finally, Filpo freely
entered into a waiver of her right to appeal her conviction and sentence, and there would
be no miscarriage of justice in enforcing it. See United States v. Goodson,
544 F.3d 529,
533 (3d Cir. 2008).
III.
For the foregoing reasons, we will affirm the District Court‟s conviction and
sentence. We accept the defense counsel‟s Anders brief, and counsel‟s motion for leave
to withdraw will be granted.
4