                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                    NOT PRECEDENTIAL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
