United States v. Joel W. Clark

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 27, 2001
• Docket: 01-2687
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 01-2687 ___________

United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of Nebraska. * Joel W. Clark, * [UNPUBLISHED] * Appellant. * ___________

Submitted: December 19, 2001 Filed: December 27, 2001 ___________

Before BOWMAN, LOKEN, and BYE, Circuit Judges. ___________

PER CURIAM.

Joel W. Clark pleaded guilty to possessing three or more matters containing visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), and to criminal forfeiture under 18 U.S.C. § 2253. The district court1 sentenced him to 27 months imprisonment and 2 years supervised release, and that sentence is the subject of this appeal. Counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Clark has filed a supplemental pro se brief.

1 The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska. We reject the arguments Clark and his counsel have raised. First, the district court’s denial of Clark’s downward-departure motion is unreviewable because the court’s decision not to depart was an exercise of discretion. See United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998). Second, Clark’s claim of ineffective assistance of counsel is not properly raised in this direct criminal appeal. See United States v. Martin, 59 F.3d 767, 771 (8th Cir. 1995) (claim of ineffective assistance of counsel should normally be raised in proceeding under 28 U.S.C. § 2255, rather than direct criminal appeal).

Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion to withdraw.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-2-