United States v. Lamb ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-16-2002
    USA v. Lamb
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 01-4073
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    Recommended Citation
    "USA v. Lamb" (2002). 2002 Decisions. Paper 656.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/656
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _________________
    Nos. 01-4073, 01-4178 & 01-4266
    _________________
    UNITED STATES OF AMERICA
    v.
    GEORGE LAMB,
    Appellant
    _______________________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal No. 00-cr-00119
    (Honorable Marvin Katz)
    ___________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    September 19, 2002
    Before:   SCIRICA, ALITO and McKEE, Circuit Judges
    (Filed October 16, 2002)
    __________________
    OPINION OF THE COURT
    __________________
    SCIRICA, Circuit Judge.
    On May 7, 2001, George Lamb pleaded guilty to attempted possession of Phenyl-
    2-Propane ("P2P") with intent to manufacture methamphetamine in violation of 21 U.S.C.
    846. On October 15, 2001, Lamb moved to withdraw his guilty plea. After an
    evidentiary hearing, the District Court denied his motion, and sentenced Lamb to eighty-
    seven months’ imprisonment, three years’ supervised release, a $15,000 fine and a $100
    special assessment. For the following reasons, we will affirm the District Court’s denial
    of Lamb’s motion to withdraw his guilty plea and the judgment of sentence.
    I.
    Lamb asserts his guilty plea should be invalidated. We disagree. Because issues
    of both law and fact are presented, "we review the district court’s legal conclusions on a
    de novo basis and its factual findings under the clearly erroneous standard." United States
    v. Joseph, 
    996 F.2d 36
    , 39 (3d Cir. 1993) (citations omitted).
    Federal Rule of Criminal Procedure 32(d) provides in part: "If a motion to
    withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the
    court may permit the plea to be withdrawn if the defendant shows any fair and just
    reason." Nevertheless, a criminal defendant does not enjoy an absolute right to withdraw
    a guilty plea under Rule 32(d). United States v. Martinez, 
    785 F.2d 111
    , 113 (3d Cir.
    1986); Government of Virgin Islands v. Berry, 
    631 F.2d 214
    , 219-20 (3d Cir. 1980).
    There are three factors to consider when determining whether to grant a motion to
    withdraw a guilty plea: "(1) whether the defendant asserts his innocence; (2) whether the
    government would be prejudiced by withdrawal; and (3) the strength of the defendant’s
    reasons for moving to withdraw." 
    Martinez, 785 F.2d at 114
    (citations omitted).
    Lamb argues that his guilty plea should be invalidated under Brady v. Maryland,
    
    373 U.S. 83
    (1963), and Giglio v. United States, 
    405 U.S. 150
    (1972), because the
    government failed to disclose impeachment evidence relating to the mental health
    background of its chief witness, Steven Lertzman. But Lamb never asserted this claim
    before the District Court. Accordingly, we will not consider it on appeal. See Royce v.
    Hahn, 
    151 F.3d 116
    , 125 (3d Cir. 1998) (providing "we will not consider on appeal issues
    which were not presented to the district court"). Thus, the District Court’s denial of
    Lamb’s motion will be affirmed.
    II.
    Lamb also argues he deserves a downward departure for aberrant behavior
    pursuant to U.S.S.G. 5K2.20. Again, we disagree.     Lamb never presented the issue of
    downward departure for aberrant behavior under U.S.S.G. 5K2.20 to the District Court.
    Therefore, in accordance with Royce, we will not consider this issue on appeal. The
    District Court properly considered and denied Lamb’s motion to depart downward for
    extraordinary post defense rehabilitation under U.S.S.G. 5K2.0.
    For the foregoing reasons we will affirm the District Court’s denial of Lamb’s
    motion to withdraw his plea of guilty, and affirm the judgment of conviction and
    sentence.
    TO THE CLERK:
    Please file the foregoing opinion.
    /s/ Anthony J. Scirica
    Circuit Judge
    DATED:   October 16, 2002