                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"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                                                                NOT PRECEDENTIAL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



                                             3
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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