                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-19-2002

USA v. Cap
Precedential or Non-Precedential:

Docket 1-1835




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Recommended Citation
"USA v. Cap" (2002). 2002 Decisions. Paper 133.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/133


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                                                    NOT PRECEDENTIAL
                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                            No. 01-1835
                            ___________

                     UNITED STATE OF AMERICA

                                v.

                           SEDRIC CAP,

Appellant
                            ___________

         On Appeal from the United States District Court
                  for the District of New Jersey
                (D.C. Criminal No. 99-cr-00056)
        District Judge: The Honorable Jerome B. Simandle
                           ___________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                     Thursday, January 17, 2002

       Before: RENDELL, FUENTES and MAGILL*, Circuit Judges

            (Opinion Filed:   February 15, 2002          )
                       ________________________

                          MEMORANDUM OPINION
                       ________________________

     * Honorable Frank J. Magill, United States Circuit Judge for the
Eight Circuit,
sitting by designation.
FUENTES, Circuit Judge:
     On November 21, 2000, Sedric Cap pled guilty to a one-count
information
charging him with conspiracy to distribute and to possess with the intent
to distribute
more than one kilogram of a mixture or substance containing
methamphetamine, in
violation of 21 U.S.C. 846. The guilty plea was pursuant to a negotiated
plea agreement
dated November 20, 2000, between Cap and the United States Attorney for
the District
of New Jersey.
     The plea agreement stated, in pertinent part, that if Cap pled guilty
to the one-
count indictment, and complied with the other terms of the agreement, the
government
would not bring any further indictment against Cap relating to the
methamphetamine
charge. In addition, the plea agreement provided that if Cap would
cooperate with the
United States Attorney's Office for the District of New Jersey, and if
such cooperation
would constitute substantial assistance in the investigation or
prosecution of one or more
persons who had committed offenses, the government would move the
sentencing judge
for a downward departure from the applicable guideline range pursuant to
U.S.S.G.
 5K1.1, and for a downward departure from the applicable statutory
mandatory minimum
term of imprisonment pursuant to 18 U.S.C. 3553(e).
      Cap , in fact, did comply with all of the terms of his plea
agreement and provided
cooperation sufficient to trigger the government's obligation under the
plea agreement to
file downward departure motions in connection with his sentencing. The
government
subsequently filed and the District Court granted the government's
motions.
     On March 28, 2001, the District Court sentenced Cap to a term of
imprisonment
of 100 months, departing downward from the otherwise applicable sentencing
guideline
range minimum by sixty-eight months, and departing downward from the
otherwise
applicable statutory mandatory minimum term of incarceration by twenty
months. The
District Court also imposed a fine of $500, which represented a
substantial downward
departure from the otherwise applicable fine range of $17,500 to
$4,000,000. Cap was
also sentenced to five years of supervised release, post-incarceration.
Cap's attorney has
indicated that, immediately following his sentencing, Cap stated that he
was dissatisfied
with the amount of the downward departure granted by the District Court.
     On April 6, 2001, Cap filed a timely notice of appeal with this
court. By letters
dated May 29, 2001 and June 6, 2001, Cap's counsel advised Cap that he had
been unable
to determine any non-frivolous issues for appeal, informed Cap that he
intended to file a
brief of this nature, and invited Cap to advise him of any issue which Cap
would like him
to investigate, in order to raise on appeal. On June 19, 2001, after
receiving no response
to his letters, Cap's attorney filed a brief with this Court pursuant to
Anders v. California,
386 U.S. 738 (1967), expressing his belief that Cap could not raise any
non-frivolous
issues for this Court's review, and requesting permission to withdraw his
representation.
Also pursuant to Anders, a copy of counsel's brief was furnished to Cap,
who was
informed of his right to file a supplemental pro se brief, raising any
issues that Cap
believed to be non-frivolous. See, Id. at 744; 3d Cri. LAR 109.2(a)
(2000). Cap has failed
to file any such brief.
     As required by Anders, Cap's attorney's brief has referred this court
to those issues
and portions of the record that might arguably support an appeal. See,
Anders 386 U.S. at
744. For instance, Cap's attorney notes, and the record substantiates,
that Cap was
expressly advised of his constitutional right to trial and the waiver
thereof in connection
with the entry of his guilty plea, and that he subsequently knowingly and
voluntarily
entered into his plea agreement. See, Appellant's Appendix at A20-26.
Furthermore,
Cap's guilty plea provided substantial benefit to Cap in exchange for his
cooperation, and
there is no indication or claim of bad faith or unconstitutional motive by
the government
in fulfilling the terms of the plea agreement. See, U.S. v. Swint, 223
F.3d 249 (3d Cir.
2000) ("District courts, as well as reviewing courts...retain the ability
to...determine
whether both parties have complied with the terms of a plea agreement
[examining the
record for] bad faith or unconstitutional motive on the part of the
government").
     With regard to Cap's only indication of dissatisfaction with the
proceedings below,
counsel correctly advised Cap that this court has no jurisdiction to
review the extent or
degree of a district court judge's discretionary downward departure from
the applicable
sentencing guideline range. See, U.S. v. Khalil, 132 F.3d 897, 898 (3d
Cir. 1997).
     Therefore, after a careful review of the briefs and the accompanying
materials of
record, we will affirm the District Court's acceptance of Cap's guilty
plea and its
imposition of sentence. We find that Cap's counsel has fulfilled his
responsibility under
our precedent to "thoroughly [and responsibly] scour the record in search
of appealable
issues." See, U.S. v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). We have
conducted an
independent examination of the record before us, and we agree with counsel
that there are
no non-frivolous issues that justify review. See, U.S. v. Youla 241 F.3d
296, 300
(indicating that the second prong of a reviewing court's Anders analysis
is an independent
review to determine whether appellant's case presents any non-frivolous
issues for
appeal). Because counsel has complied with all procedures specified in
Anders, we will
grant his motion for withdrawal.




_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.


/s/Julio M. Fuentes

___________________________
                                        Circuit Judge
