USA v. Michelle Cantatore
NOT PRECEDENTIAL OPINION Coram: CHAGARES, VANASKIE and FUENTES, Circuit Judges. Total Pages: 5. Judge: FUENTES Authoring. Counsel's motion to withdraw as counsel for Appellant is granted.
Date Filed: 08/25/2017
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA
MICHELLE C. CANTATORE,
On Appeal from the United States District Court
for the District of New Jersey
District Judge: The Honorable Esther Salas
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 9, 2017
Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges
(Opinion Filed: August 25, 2017)
FUENTES, Circuit Judge.
Michelle Cantatore challenges her 162-month sentence in a bank robbery and wire
fraud case. Her counsel has filed a motion to withdraw pursuant to Anders v. California,
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Date Filed: 08/25/2017
386 U.S. 738 (1967), arguing that Cantatore’s appeal raises no issues of arguable merit.
For the following reasons, we will grant counsel’s motion and affirm the order of the
On April 13, 2016, Cantatore entered a guilty plea to a two-count Information,
charging her with bank robbery in violation of 18 U.S.C. § 2113(a) and 2 and wire fraud
in violation of 18 U.S.C. § 1343 and 2. Cantatore admitted that she used a paintball gun
made to look like a real gun to rob three banks insured by the FDIC of almost $300,000
and engaged in a scheme to defraud a victim of almost $200,000.
A sentencing hearing was held on September 7, 2016. Based on a total offense
level of 28 and a criminal history category of V, Cantatore was subject to a Guidelines
range of 130-162 months.1 Although the District Court initially indicated it was
considering an upward variance, it imposed a sentence of 162 months, at the top of the
Cantatore timely filed a notice of appeal, and her counsel filed an Anders motion
to withdraw. Cantatore was given the opportunity to file a pro se brief, but did not do so.
The Government submitted a brief in support of counsel’s Anders motion.
Though the plea agreement did not stipulate to a Guidelines’ range, the Government and
Cantatore’s counsel both agreed to this Guidelines calculation. The Government did not
seek an upward variance, and Cantatore’s counsel did not seek a downward variance.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Date Filed: 08/25/2017
Our review3 is twofold—we will consider whether counsel’s brief fulfills the
Anders requirements and whether our own independent review of the record reveals any
nonfrivolous issues for appeal.4 “The duties of counsel when preparing an Anders brief
are (1) to satisfy the court that counsel has thoroughly examined the record in search of
appealable issues, and (2) to explain why the issues are frivolous.”5 Our review need not
be “a complete scouring of the record”— “[w]here the Anders brief initially appears
adequate on its face, the proper course is for the appellate court to be guided in reviewing
the record by the Anders brief itself.”6 “An appeal on a matter of law is frivolous where
none of the legal points is arguable on [its] merits.”7
The Anders brief identifies three potential issues for appeal:8 (1) whether the
District Court had jurisdiction; (2) whether Cantatore’s guilty plea hearing was properly
conducted; and (3) whether the sentence imposed was procedurally and substantively
reasonable.9 Cantatore’s counsel has fulfilled his Anders duties, and satisfies us that there
are no issues of arguable merit.
Our review is governed by Anders v. California, 386 U.S. 738 (1967) and 3d Cir.
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Id. at 301 (internal citations and quotations removed).
Simon v. Gov’t of V.I., 679 F.3d 109, 114 (3d Cir. 2012).
While Cantatore’s counsel mentions a waiver of appeal, the Government finds no
appellate waiver as to the ultimate sentence and does not assert such waiver. Gov’t Br. 3
Cantatore’s counsel hints at, and the Government addresses, a possible fourth issue for
appeal: ineffective assistance of counsel, because Cantatore’s counsel agreed to the
Guidelines range and did not seek a downward departure or variance. This basis is also
frivolous. Ineffective assistance of counsel claims are generally not cognizable on direct
appeal. Gov’t of V.I. v. Vanterpool, 767 F.3d 157, 163 (3d Cir. 2014); United States v.
Date Filed: 08/25/2017
First, the District Court had jurisdiction under 18 U.S.C § 3231, as Cantatore was
charged with “offenses against the laws of the United States.” Thus, the Anders brief
correctly notes that any jurisdictional challenge would be frivolous.
Second, Cantatores’s guilty plea hearing was properly conducted and complied
with Federal Rule of Criminal Procedure 11.10 The transcript of the plea hearing
demonstrates Cantatore’s plea was knowing and voluntary.11 The District Court
explained, and Cantatore acknowledged that she understood, (1) she was forfeiting her
rights to a jury trial and to challenge the evidence against her, (2) the nature of the
charges to which she pleaded, (3) the maximum penalties she was facing,12 (4) the
Court’s obligation to consider the sentencing Guidelines and its discretion to depart from
Givan, 320 F.3d 452, 464 (3d Cir. 2003). Furthermore, as the Government points out,
Cantatore’s counsel “successfully convinced the District Court to impose a withinGuidelines sentence, despite its ‘tremendous desire . . . to upwardly vary.’” Gov’t Br. 6
n.2 (quoting App. 114; App. 69 (explaining that sentencing counsel would be successful
if she could “manag[e] to convince me not to exercise my discretion and go upward in
this case”)). Thus, “[a] request for a downward variance would have been particularly
tone-deaf and would not have been successful.” Id. (citing United States v. Sanders, 165
F.3d 248, 253 (3d Cir. 1999) (counsel cannot be ineffective for not making a meritless
Rule 11 “outlines a series of admonitions and warnings to be provided to the
defendant,” United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006), and provides
steps a District Court must take to ensure a guilty plea is knowing and voluntary. United
States v. Vonn, 535 U.S. 55, 58 (2002). “The district court must ensure that the defendant
receives these caveats, understands them, and still wishes of his or her own volition to
plead guilty.” Schweitzer, 454 F.3d at 203.
See Anders Br. 10-12.
The Government acknowledges it may have been error for the District Court to rely on
the Government’s recitation of the maximum penalty, but also correctly points out that
later in the hearing, the Court repeated this information to Cantatore. See Gov’t Br. 9 n.5;
App. 42 (Government recites maximum penalties); App. 50 (Court acknowledges
Date Filed: 08/25/2017
those Guidelines, and (5) the Government’s recitation of the facts and the criminal
conduct she was admitting.13 Thus, Cantatore’s guilty plea complied with Rule 11, and an
appeal on this basis would be frivolous.
Finally, the District Court’s within-guidelines sentence of 162 months was
procedurally and substantively reasonable.14 The sentencing Guidelines range was
correctly calculated and the Court meaningfully considered the sentencing factors
enumerated in 18 U.S.C. § 3553(a). The Court considered Cantatore’s arguments in
mitigation and justified its decision to sentence at the top of the range.15 Consequently, an
appeal on this basis would be meritless.
Counsel’s brief satisfies the requirements of Anders, and properly finds there is no
reasonable basis on which Cantatore can appeal. Accordingly, we will grant counsel’s
motion to withdraw and affirm the order of the District Court.16
We review sentences for abuse of discretion. United States v. Grober, 624 F.3d 592,
599 (3d Cir. 2010).
The Court considered factors including Cantatore’s childhood and difficult life
experiences, mental condition, addictions, long criminal history, her use of a modified
weapon, and the trauma sustained by her bank teller victims.
Cantatore is hereby advised that under the Criminal Justice Act, counsel is not
obligated to file a petition for rehearing in this Court or a petition for writ of certiorari in
the United States Supreme Court. See also L.A.R. 35.4; 109.2(b). If Cantatore wishes to
pursue these avenues, she must do so pro se. Cantatore should note that a petition for
rehearing en banc must be filed within 14 days of the entry of judgment; if that time has
passed, Cantatore may promptly file a motion to enlarge the time for such filing. Counsel
shall timely send a copy of this Opinion to Cantatore.
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