US v. Robert Allen Miller
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00305-WO-1 Copies to all parties and the district court/agency. .. [15-4076]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
ROBERT ALLEN MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00305-WO-1)
October 29, 2015
January 7, 2016
Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.
Ripley Rand, United States
Attorney, Kyle D. Pousson, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Robert Allen Miller pled guilty to carrying and using, by
brandishing, a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (2012), and was sentenced to the
On appeal, Miller asserts that the district court
erred when it failed to authorize the withdrawal of his guilty
plea under Fed. R. Crim. P. 11(d)(2)(B). *
We review the denial of a motion to withdraw a guilty plea
for abuse of discretion.
United States v. Nicholson, 676 F.3d
376, 383 (4th Cir. 2012).
However, in the instant case, Miller
never moved to withdraw his guilty plea and never challenged the
Accordingly, we review the issue for plain error only.
United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir.
To the extent that Miller also seeks to challenge the
district court’s denial of his motion to substitute counsel, we
find that he failed to adequately raise the issue for appellate
See Fed. R. App. P. 28(a)(8)(A) (requiring argument
section of brief to contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of
the record on which the appellant relies”).
See also Eriline
Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006)
(finding single, conclusory sentence in brief “insufficient to
raise on appeal any merits-based challenge to the district
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(1) there is an error; (2) the error is plain;
Moreover, even if all three of these elements are satisfied, we
will not act to cure the error unless it “seriously affects the
(internal quotation marks omitted).
A defendant does not have an absolute right to withdraw a
United States v. Bowman, 348 F.3d 408, 413 (4th
Cir. 2003); United States v. Moore, 931 F.2d 245, 248 (4th Cir.
sentencing, a defendant may withdraw his guilty plea if he “can
Fed. R. Crim. P. 11(d).
The burden of “showing a fair and just
reason” for withdrawal of the plea rests with the defendant.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
We have developed a nonexclusive list of issues to consider in
determining whether a defendant has met his burden, Moore, 931
F.2d at 248, the most important of which is “an evaluation of
the Rule 11 colloquy,” Bowman, 348 F.3d at 414.
scrutinize the Rule 11 colloquy and, if the Rule 11 proceeding
was properly conducted, “a strong presumption that the plea is
Rule 11 . . . colloquy leaves a defendant with a very limited
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basis upon which to have his plea withdrawn.”
Bowman, 348 F.3d
conclude that Miller has failed to establish plain error.
We dispense with oral argument because the
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