US v. Robert Allen Miller

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00305-WO-1 Copies to all parties and the district court/agency. [999731572].. [15-4076]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4076

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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)

Submitted:

October 29, 2015

Decided:

January 7, 2016

Before FLOYD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
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
statutory

mandatory

imprisonment.

minimum

sentence

of

seven

years’

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 affirm.

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
district

court’s

sentencing

interpretation

hearing

as

a

of

motion

his
to

statements
substitute

at

the

counsel.

Accordingly, we review the issue for plain error only.

See

United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir.
2015).

To

satisfy

plain

error

*

review,

the

defendant

must

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
review.
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
court’s ruling”).

2

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establish that:
and

(3)

the

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(1) there is an error; (2) the error is plain;
error

affects

his

substantial

rights.

Id.

Moreover, even if all three of these elements are satisfied, we
will not act to cure the error unless it “seriously affects the
fairness,

integrity

proceedings.”

Id.

or

public

reputation

of

judicial

(internal quotation marks omitted).

A defendant does not have an absolute right to withdraw a
guilty plea.

United States v. Bowman, 348 F.3d 408, 413 (4th

Cir. 2003); United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991).

After

the

court

accepts

a

guilty

plea,

but

before

sentencing, a defendant may withdraw his guilty plea if he “can
show

a

fair

and

just

Fed. R. Crim. P. 11(d).

reason

for

requesting

the

withdrawal.”

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.

We closely

scrutinize the Rule 11 colloquy and, if the Rule 11 proceeding
was properly conducted, “a strong presumption that the plea is
final

and

(internal

binding”
quotation

attaches.
marks

Nicholson,

omitted).

“[A]

676

F.3d

properly

at

384

conducted

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

at 414.
With
transcript

these
of

standards
the

in

properly

mind,

and

conducted

having
Rule

11

reviewed
hearing,

conclude that Miller has failed to establish plain error.
accordingly affirm.
facts

and

materials

legal
before

the
we
We

We dispense with oral argument because the

arguments
this

court

are
and

adequately
argument

presented
would

not

in

the

aid

the

decisional process.
AFFIRMED

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