                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2009

USA v. Capozzi
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3263




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"USA v. Capozzi" (2009). 2009 Decisions. Paper 1650.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 07-3263
                                     _____________

                           UNITED STATES OF AMERICA

                                              v.

                                  KEVIN L. CAPOZZI,

                                            Appellant
                                      ___________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. Cr. No. 07-00089)
                       District Judge: Honorable Jose L. Linares
                                     ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 10, 2009

           Before: FUENTES, CHAGARES, and ALDISERT, Circuit Judges.

                            (Opinion Filed: March 30, 2009)


                              OPINION OF THE COURT


FUENTES, Circuit Judge:

      Appellant Kevin Capozzi pled guilty, pursuant to a plea agreement, to one count of

wire fraud based on his participation in a scheme to manipulate prices of foreign currency

                                           -1-
trades by FX Solutions, LCC, a trading firm of which he was a client. Capozzi was

sentenced to 19 months’ imprisonment and a fine of $5,000. He timely filed this appeal.1

Capozzi’s attorney, John Fahy, subsequently filed a motion to withdraw under Anders v.

California, 386 U.S. 738 (1967). We will allow the motion to withdraw and will affirm

Capozzi’s plea and sentence.

        Anders held that a criminal defendant’s appeal may be dismissed on the merits and

his counsel permitted to withdraw if, after a thorough exploration of possible issues on

appeal, his attorney “conscientiously concludes, and so advises the appellate court, that

there are no meritorious grounds of appeal; and provided that the appellate court is

satisfied from its own review of the record, in light of any points personally raised by the

defendant, that appointed counsel’s conclusion is correct.” 386 U.S. at 741 n.2; see also

Third Circuit Rule 109.2(a).

        Our first step is therefore to determine whether the brief filed by Capozzi’s

attorney is adequate. See United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Here,

counsel’s Anders brief identifies only the question of whether Capozzi’s sentence was

excessive, and explains that it is frivolous because the sentence was reasonable and

within the applicable Guidelines range. This discussion is not extensive, citing no relevant

case law and providing only a brief review of the factual and procedural history of the

case.


        1
            We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                             -2-
       However, even where an Anders brief is not adequate, we may still dismiss a case

where it presents only patently frivolous issues for appeal. See United States v. Marvin,

211 F.3d 778, 781 (3d Cir. 2000). Here, Capozzi did not choose to file a pro se brief

identifying any issues besides the substantive reasonableness of his sentence, and our own

independent review of the record reveals no other appealable issues. The District Court

conducted a thorough plea colloquy pursuant to Federal Rule of Criminal Procedure 11,

leaving no suggestion that Capozzi’s plea was not “knowing, voluntary, and intelligent.”

See United States v. Tidwell, 521 F.3d 236, 251-52 (3d Cir. 2008).

       The sentencing proceeding was also both procedurally and substantively adequate.

Capozzi’s sentencing took place on July 17, 2007. The parties stipulated that his base

offense level was 6 and the amount of loss was $135,311.76. The judge granted a

downward departure after finding the fraud did not involve sophisticated means and

denied the government’s requested enhancement for Capozzi’s purportedly significant

role in the fraud scheme. The result was a Guidelines range of 15 to 21 months’

imprisonment. The District Court ultimately sentenced Capozzi to an imprisonment term

of 19 months and a fine of $5000, rejecting his argument for a lower sentence to allow

him to rejoin his wife and recently born child. The judge based the sentence on the large

amount of loss caused by Capozzi’s fraud, the importance of preserving confidence in

the international currency market, and Capozzi’s active participation in the offense.

Capozzi’s within-Guidelines sentence was therefore based on meaningful consideration


                                            -3-
and reasonable application of the factors set forth in U.S.S.G. § 3553(a). See United

States v. Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006).

       For the foregoing reasons, we will grant defense counsel’s Anders motion and

affirm the sentence imposed by the District Court.2




       2
         We also conclude that this appeal lacks legal merit for purposes of the filing of a
petition for writ of certiorari in the United States Supreme Court. See Third Circuit Rule
109.2(b).

                                            -4-
