United States v. George Sepero

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4440
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UNITED STATES OF AMERICA
v.
GEORGE SEPERO,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-12-cr-00450-001)
District Judge: Hon. Jerome B. Simandle
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 19, 2015
Before: SMITH, JORDAN, and SLOVITER, Circuit Judges.
(Filed: March 24, 2015)
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OPINION
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JORDAN, Circuit Judge.
George Sepero appeals the judgment of conviction and sentence imposed by the
United States District Court for the District of New Jersey, and his attorney moves to

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). For the
reasons that follow, we will grant the motion to withdraw and affirm the District Court’s
judgment and sentence.
I. Background
Sepero pled guilty to a three-count Superseding Information charging him with
conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count I), wire fraud in
violation of 18 U.S.C. § 1343 (Count II), and tax evasion in violation of 26 U.S.C. § 7201(Count III). As part of the plea agreement, the parties stipulated to a total offense level of
24. The District Court conducted a comprehensive plea hearing, during which it assessed
whether Sepero’s plea was knowing and voluntary, whether there was a factual basis for
the plea, and whether Sepero understood the procedures by which he would be sentenced.
Thereafter, the District Court accepted Sepero’s guilty plea.
The U.S. Probation Office prepared a pre-sentence investigation report (“PSR”) in
which it calculated a total offense level of 30 – six levels higher than the offense level
stipulated in the plea agreement. The six-level difference was the result of three different
calculations in the PSR. First, the PSR reflected a loss calculation on Count I that
exceeded $4 million, which correlated to an 18-level increase from the base offense level.
The parties had stipulated in the plea agreement to a loss of between $1 million and $2.5
million, which carried a corresponding 16-level increase over the base offense level
under U.S.S.G. § 2B1.1(b)(1)(J). Second, the PSR recommended a two-level
enhancement based on the number of victims identified for Count I, under U.S.S.G.
§ 2B1.1(b)(2)(A). And third, the PSR recommended a two-level enhancement under
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U.S.S.G. § 2B1.1(b)(10)(C)1 due to the use of sophisticated means in the crime alleged in
Count I. Given a total offense level of 30 and a criminal history category of I, the
recommendations in the PSR led to a guidelines range of 97 to 121 months
imprisonment. 2
The District Court conducted a sentencing hearing at which Sepero initially
challenged the three PSR recommendations noted above. He later withdrew his
objections to the latter two enhancements and conceded the facts set forth in the PSR
relating to the loss amount calculations. The Court considered the sentencing factors set
forth in 18 U.S.C. § 3553(a), as well as Sepero’s request for a downward variance.
Ultimately, the Court imposed a sentence of 100 months imprisonment, to be followed by
three years of supervised release. Sepero timely filed a pro se notice of appeal.
II. Discussion3
Anders v. California provides that a criminal defendant’s counsel may seek to
withdraw from representing the defendant on appeal if there are no nonfrivolous issues to
1
The PSR incorrectly cited to U.S.S.G. § 2B1.1(b)(9)(C).
2
In addition to the enhancements noted above, the PSR also recommended a 4-
level enhancement for a violation of commodities law, under U.S.S.G
§ 2B1.1(b)(18)(B)(I), and a 3-level reduction for acceptance of responsibility, under
U.S.S.G. §§ 3E1.1(a) and (b), thus resulting in a total offense level of 30, calculated from
a base offense level of 7.
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
challenge. 386 U.S. at 744; United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000).
We apply a two-step review when Anders is invoked: first, we determine whether counsel
has “adequately fulfilled” the requirements of Local Appellate Rule 109.2(a), and,
second, we examine “whether an independent review of the record presents any
nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
When deciding whether the first prong has been satisfied, we analyze the
adequacy of counsel’s supporting brief. To be adequate, the brief must satisfactorily
establish that counsel has thoroughly examined the record in search of appealable issues
and has explained why those issues are frivolous. Id. Although “[c]ounsel need not raise
and reject every possible claim[,] ... at a minimum, he or she must meet the
‘conscientious examination’ standard set forth in Anders.” Id. If the Anders brief
appears adequate on its face, in the second step of our analysis we will “confine our
scrutiny to those portions of the record identified by ... [the] Anders brief,” as well as
“those issues raised in Appellant’s pro se brief.” Id. at 301. Regardless of the adequacy
of the brief, we may affirm the conviction and sentence without appointing new counsel
if we find that the “frivolousness [of the appeal] is patent.” United States v. Coleman,
575 F.3d 316, 321 (3d Cir. 2009) (internal quotation marks omitted).
A. Adequacy of the Anders Brief
The Anders brief here contains an adequate examination of the potential issues for
appeal. Because Sepero entered a guilty plea, counsel focuses on three general issues in
his brief: (1) whether the District Court had jurisdiction to enter the judgment and impose
the sentence; (2) whether the guilty plea was procedurally valid and voluntary; and
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(3) whether the District Court imposed an unreasonable sentence and abused its
sentencing discretion. We are satisfied that counsel’s Anders brief is adequate, and our
examination of the record relating to the issues raised by counsel reveals no non-frivolous
arguments. We therefore limit further inquiry to the issues raised by Sepero in his pro se
brief.
B. Sepero’s Additional Pro Se Arguments
Although Sepero raises four additional arguments, none of them has merit and
therefore did not need to be presented by counsel in the Anders brief. Sepero first argues
that his conviction and sentence should be vacated because the government breached the
plea agreement. Because he did not raise this issue below, we review for plain error. See
Puckett v. United States, 556 U.S. 129, 133-34 (2009) (stating that the plain-error test
applies to an unpreserved claim that the government “failed to meet its obligations under
a plea agreement”). In the plea agreement, the parties stipulated to a total loss amount
between $1 million and $2.5 million. Sepero contends that the government breached the
agreement in three ways: by confirming the probation officer’s calculated loss amount of
over $4 million in the PSR; by confirming the Court’s understanding that the facts
relating to the calculated loss amount in the PSR were accurate; and by failing to disclose
financial records to the probation officer showing that a portion of the supposed loss
amounts were actually legitimately invested.
Those arguments are meritless. The government’s statements to the probation
officer and the Court relating to the accuracy of the facts contained in the PSR do not
amount to a breach of its agreement. In fact, despite the difference in loss amount, in all
5
communications with the probation office, the government expressly stated that it would
abide by the stipulations in the plea agreement. Further, in its communications with the
Court, the government stressed repeatedly its recommendation that the Court impose a
sentence within the stipulated guidelines range, reflecting the lower loss amount, as
opposed to the higher range recommended in the PSR. Furthermore, Sepero himself
eventually agreed at the sentencing hearing that the facts relating to the loss amount
calculations were correct. Thus, the government did not breach the plea agreement by
also confirming the Court’s understanding of the pertinent facts, nor by failing to provide
records that supposedly showed a reduction in the loss amount due to legitimate
investments.
Sepero’s remaining arguments are similarly frivolous. He argues that the Court
erred in imposing a four-level enhancement under U.S.S.G. § 2B1.1(b)(18)(B). That
argument fails because, in the plea agreement, Sepero stipulated that section
2B1.1(b)(18)(B) applied and that it resulted in a four-level increase to his offense level.
United States v. Cianci, 154 F.3d 106, 110 (3d Cir. 1998) (holding that a defendant
cannot challenge an enhancement on appeal to which he stipulated in the plea
agreement).
He also contends that the District Court erred in imposing a term of supervised
release consecutive to his term of imprisonment. He claims that 18 U.S.C. § 3583(a)
requires that any supervised release be part of the total sentence and cannot be imposed in
addition to a term of imprisonment. That is simply incorrect. Courts may impose a term
of supervised release in addition to a maximum term of imprisonment. See, e.g., United
6
States v. Jenkins, 42 F.3d 1370, 1371 (11th Cir. 1995) (upholding a sentence ordering
supervised release in addition to the maximum term of imprisonment); United States v.
Jamison, 934 F.2d 371, 373 (D.C. Cir. 1991) (interpreting the supervised release statute,
18 U.S.C. § 3583(a), as authorizing imposition of supervised release “in addition to any
authorized term of imprisonment, not by conversion of a portion thereof”).
Sepero’s final argument is that his constitutional rights were violated when he was
arraigned before a magistrate judge without his express consent. The common practice of
having a magistrate judge preside over an arraignment is, however, authorized by both
statute and local rule. 28 U.S.C. § 636(b)(1)(A); Local Crim. R. 5.1(g). There is no
requirement that the defendant expressly consent, where, as here, the defendant simply
enters a plea of not guilty.4 See Local Crim. R. 51(g) (authorizing a magistrate judge to
conduct arraignments “to the extent of taking a not guilty plea …”). A magistrate judge
may hear “any pretrial matter” other than eight exceptions listed in 28 U.S.C.
§ 636(b)(1)(A), and Congress considered post-indictment arraignments to be a “pretrial
matter” within this definition. See Gomez v. United States, 490 U.S. 858, 869 n.16
(1989) (citing H.R. Rep. No. 94-1609, 1976 U.S.C.C.A.N. 6162); see also Peretz v.
United States, 501 U.S. 923, 931 (1991) (distinguishing “subsidiary matters” not
requiring consent); In re Artis, 955 F.2d 40 (4th Cir. 1992) (per curiam) (noting that
“magistrate judges may act on preliminary, nondispositive matters without the consent of
the parties pursuant to 28 U.S.C. § 636(b)(1)” and that such “delegation of preliminary
4
Sepero later changed his plea to guilty before the District Court, which the Court
accepted after conducting a detailed plea hearing pursuant to Federal Rule of Criminal
Procedure 11.
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matters to the magistrate judge does not violate Article III”). Thus, Sepero’s argument
fails.
III. Conclusion
We will therefore grant Counsel’s motion to withdraw and affirm the District
Court’s judgment of conviction and sentence.
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