United States v. Joel W. Clark ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2687
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Joel W. Clark, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 19, 2001
Filed: December 27, 2001
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Before BOWMAN, LOKEN, and BYE, Circuit Judges.
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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.
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