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United States v. Mark Lembo, 17-2861 (2018)

Court: Court of Appeals for the Eighth Circuit Number: 17-2861 Visitors: 48
Filed: May 01, 2018
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-2861 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Mark Allan Lembo lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Northern District of Iowa - Dubuque _ Submitted: April 18, 2018 Filed: May 1, 2018 [Unpublished] _ Before GRUENDER, MURPHY, and BENTON, Circuit Judges. _ PER CURIAM. Mark Lembo appeals after he pleaded guilty to a drug offense and the district 1 c
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                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2861
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Mark Allan Lembo

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Dubuque
                                 ____________

                             Submitted: April 18, 2018
                               Filed: May 1, 2018
                                 [Unpublished]
                                 ____________

Before GRUENDER, MURPHY, and BENTON, Circuit Judges.
                         ____________

PER CURIAM.

      Mark Lembo appeals after he pleaded guilty to a drug offense and the district
     1
court sentenced him to 216 months in prison. His appellate counsel has moved for

         1
        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
leave to withdraw and has filed a brief under Anders v. California, 
386 U.S. 738
(1967), suggesting that—as a result of trial counsel’s ineffective assistance—Lembo’s
guilty plea was not knowing and voluntary.

       We decline to consider any ineffective-assistance claim on direct appeal. See
United States v. Ramirez-Hernandez, 
449 F.3d 824
, 826-27 (8th Cir. 2006) (stating
that ineffective-assistance claims are usually best litigated in collateral proceedings,
where the record can be properly developed). We also conclude that any direct
challenge to Lembo’s guilty plea, as not knowing and voluntary, is not cognizable on
direct appeal because Lembo did not move in the district court to withdraw his guilty
plea. See United States v. Foy, 
617 F.3d 1029
, 1033-34 (8th Cir. 2010) (noting that,
to the extent the defendant presented an argument to establish that his plea was
unknowing or involuntary, such a claim would not be cognizable on direct appeal
where he failed to move in the district court to withdraw his guilty plea). In addition,
having independently reviewed the record pursuant to Penson v. Ohio, 
488 U.S. 75
(1988), we find no nonfrivolous issues for appeal. Accordingly, we grant counsel
leave to withdraw, and we affirm.
                        ______________________________




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Source:  CourtListener

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