United States v. Capozzi , 322 F. App'x 191 ( 2009 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "USA v. Capozzi" (2009). 2009 Decisions. Paper 1650.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1650
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    NOT PRECEDENTIAL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-
    

Document Info

Docket Number: 07-3263

Citation Numbers: 322 F. App'x 191

Judges: Fuentes, Chagares, Aldisert

Filed Date: 3/30/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024