United States v. Gabriel Crivello


PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, PASCO M. BOWMAN and BOBBY E. SHEPHERD (UNPUBLISHED); Granting [3762009-2] motion to withdraw as counsel filed by Mr. B. John Burns, III. [3830750] [11-1227]

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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-1227 ___________ United States of America, Appellee, v. Gabriel Crivello, Appellant. * * * * Appeal from the United States * District Court for the Southern * District of Iowa. * * [UNPUBLISHED] * ___________ Submitted: September 20, 2011 Filed: September 20, 2011 ___________ Before MELLOY, BOWMAN, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. Gabriel Crivello appeals from the district court’s1 denial of his motion to withdraw his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). His counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), and has moved to withdraw. 1 The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa. Appellate Case: 11-1227 Page: 1 Date Filed: 09/20/2011 Entry ID: 3830750 We conclude the district court did not abuse its discretion in denying Crivello’s motion to withdraw his guilty plea, because Crivello did not present a fair and just reason for withdrawing his plea. See United States v. Alvarado, 615 F.3d 916, 920 (8th Cir. 2010) (standard of review; after court accepts guilty plea, defendant may still withdraw plea before sentence is imposed if defendant can show fair and just reason for requesting withdrawal); United States v. Bahena, 223 F.3d 797, 806-07 (8th Cir. 2000) (when defendant stated at plea hearing that he understood, his later conclusory claim that he did not understand rings hollow); United States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992) (“When a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, ‘the occasion for setting aside a guilty plea should seldom arise.’” (citation omitted)). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we affirm. ______________________________ -2- Appellate Case: 11-1227 Page: 2 Date Filed: 09/20/2011 Entry ID: 3830750

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