United States v. Casilla , 146 F. App'x 590 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-21-2005
USA v. Casilla
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2694
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2694
UNITED STATES OF AMERICA
v.
LIBORIO CASILLA
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 03-cr-0166)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 20, 2005
Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALDISERT, Circuit Judges
(Filed: October 21, 2005)
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
On June 27, 2003, Appellant Liborio Casilla pled guilty to a one-count indictment
charging him with conspiracy to distribute or to possess with intent to distribute a
controlled substance, 21 U.S.C. § 846. He was sentenced on November 17, 2003,
pursuant to the Sentencing Guidelines to a term of imprisonment of thirty-seven months,
followed by four years of supervised release. The District Court did not depart from the
applicable Guidelines range.
Casilla’s attorney has filed a motion to withdraw from this case and has submitted
a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), stating that no non-frivolous issues exist for appeal. Casilla was given a copy of
both the motion and the brief and given the opportunity to respond pro se, but chose not
to.
When analyzing Anders briefs, we ask two questions: “(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of the
record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001). When an attorney submits an Anders brief, his or her duties are (1) to
demonstrate to the court that he or she has thoroughly examined the record for appealable
issues, and (2) to demonstrate that the issues are frivolous. Id. In attending to his or her
duties “[c]ounsel need not raise and reject every possible claim.” Id. Counsel needs only
to satisfy the “conscientious examination” standard set forth by the Supreme Court in
Anders. Id.2
Counsel could identify only one point on which Casilla could challenge on appeal:
the adequacy of the plea colloquy. Counsel concluded, and the Government agrees, that
the plea colloquy was constitutionally adequate. We concur.
The only remaining nonfrivolous issue that we note in our independent review
regards Casilla’s sentence. The District Court sentenced him prior to the Supreme
Court’s holding in United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), and stated that it was bound by the applicable Sentencing Guidelines range. We
noted in United States v. Davis, 407 F.3d 162 (3d Cir. 2005), that “[w]e would be
usurping the discretionary power granted to the district courts by Booker if we were to
assume that the district court would have given [defendant] the same sentence
post-Booker.” Id. at 165 (citing United States v. Oliver, 397 F.3d 369, 380 n.3 (6th Cir.
2005)) (modifications in original). However, in this case, the Appellant has indicated that
he does not want a remand for resentencing.1
1
The Government suggests that because “a Booker remand ‘could very well result in a
longer sentence,’ United States v. Smith, 401F.3d 497, 499 (D.C. Cir. 2005), this Court
should ‘not force on [defendant] an argument that he has not made which could produce a
result that he does not want.’ United States v. Camacho-Ibarquen, 404 F.3d 1283, 1290
n.4 (11th Cir. 2005).” We are unable to determine if counsel’s silence on this matter was
purposeful because original counsel, Dennis M. Mautone, is deceased. Accordingly, we
have granted Attorney Mautone’s motion for leave to withdraw and appointed new
counsel, Jeffrey Lindy, Esq., to represent Mr. Casilla. New counsel indicates that he has
conferred with his client and his client does not wish to have a remand pursuant to Booker
for resentencing.
3