2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2011

USA v. Jennifer Filpo

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2388

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Recommended Citation

"USA v. Jennifer Filpo" (2011). 2011 Decisions. Paper 78.

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1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 10-2388

________________

UNITED STATES OF AMERICA

 

v.

JENNIFER FILPO,

 Appellant

________________

On Appeal from the United States District Court

For the District of New Jersey

(Crim. No. 2:07-cr-00675)

District Judge: Honorable Dennis M. Cavanaugh

________________

Submitted Under Third Circuit L.A.R. 34.1(a)

November 16, 2011

BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International 

Trade Judge

(Opinion Filed: December 13, 2011)

________________

OPINION OF THE COURT

________________

FUENTES, Circuit Judge.

 

Honorable Jane A. Restani, International Trade Judge of the United States Court of 

International Trade, sitting by designation.
2

Jennifer Filpo pled guilty to a one-count Information of conspiracy to distribute 

and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Filpo was 

sentenced to 60 months of imprisonment, followed by three years of supervised release. 

She now appeals her conviction and sentence. Counsel for Filpo has filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), and requests leave to withdraw. A 

copy of the Anders brief was sent to Filpo, but she has not filed a pro se response brief. 

Since we are satisfied that counsel‟s brief was adequate, and because the record does not 

present any non-frivolous issues, we will affirm the District Court‟s sentence and grant 

Filpo‟s counsel leave to withdraw.

I.

Because we write only for the parties, we briefly discuss the facts necessary to our 

conclusion. Filpo pled guilty in 2007 to a one-count Information of conspiracy to 

distribute and possess with intent to distribute 100 grams or more of heroin, in violation 

of 21 U.S.C. § 846. This provision carries a statutory minimum prison sentence of five 

years and a maximum prison sentence of forty years. The plea agreement included an 

appellate waiver by which Filpo relinquished her right to appeal, though the parties 

reserved the ability to appeal the sentencing court‟s determination of Filpo‟s criminal 

history category pursuant to 18 U.S.C. § 3742.

In April 2010, the District Court held a sentencing hearing at which it sentenced 

Filpo to the statutory minimum of 60 months, pursuant to 21 U.S.C. § 841(b)(1)(B)(i), 

followed by three years of supervised release. 
3

II.

In Anders, the Supreme Court provided that, although a defendant‟s counsel is 

required to “support his client‟s appeal to the best of his ability,” counsel may request 

permission to withdraw from a case if he finds it to be “wholly frivolous.” 386 U.S. 

at 744. We have established that, where, upon review of the district court record, counsel 

is persuaded that the appeal presents no issue of even arguable merit, he or she may file a 

motion to withdraw and a supporting brief pursuant to Anders, which shall be served 

upon the appellant and the United States. See 3d Cir. L.A.R. 109.2(a). Counsel‟s brief 

must: (1) “„satisfy the court that he or she has thoroughly scoured the record in search of 

appealable issues,‟” and (2) “„explain why the issues are frivolous.‟” United States v. 

Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United States v. Marvin, 211 F.3d 

778, 780 (3d Cir. 2000)). Upon receipt of the brief, we ask “„(1) whether counsel 

adequately fulfilled [Third Circuit Local Appellate Rule 109.2‟s] requirements; and (2) 

whether an independent review of the record presents any nonfrivolous issues.‟” Id.

(quoting United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)). Appellant may also 

file a brief in response pro se. See 3d Cir. L.A.R. 109.2(a). When an Anders brief is 

adequate, we review only the portions of the record identified in the brief and any issues 

raised by the appellant in his pro se brief. If we find that there are no non-frivolous 

issues, we “will grant [the] Anders motion, and dispose of the appeal without appointing 

new counsel.” Marvin, 211 F.3d at 780 (quoting 3d Cir. L.A.R. 109.2(a)).
4

Here, counsel‟s Anders brief appears adequate. Counsel has identified the 

following possible issues: whether Filpo knowingly and voluntarily pled guilty; the 

reasonableness of her sentence; and the enforceability of her appellate waiver. The 

Anders brief and our independent review of the record lead us to agree with counsel that 

each issue is frivolous. The District Court conducted an adequate colloquy to ensure that 

Filpo understood the nature and consequences of her plea. It is clear from the record that 

she knowing and voluntary pled guilty. The District Court also properly considered the

factors specified in 18 U.S.C. § 3553(a), as well as the applicable statutory and 

Guidelines provisions, before sentencing Filpo to a term of imprisonment that comports 

with the statutory minimum and is within the Guidelines range. Finally, Filpo freely 

entered into a waiver of her right to appeal her conviction and sentence, and there would 

be no miscarriage of justice in enforcing it. See United States v. Goodson, 544 F.3d 529, 

533 (3d Cir. 2008).

III.

For the foregoing reasons, we will affirm the District Court‟s conviction and

sentence. We accept the defense counsel‟s Anders brief, and counsel‟s motion for leave 

to withdraw will be granted.