US v. John Polhill

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00012-REP-1 Copies to all parties and the district court/agency. [1000044181].. [16-4419]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4419

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN POLHILL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:15-cr-00012-REP-1)

Submitted:

March 7, 2017

Decided:

March 17, 2017

Before MOTZ, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Frances H. Pratt,
Valencia
D.
Roberts,
Assistant
Federal
Public
Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Richard D. Cooke, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In accordance with a written plea agreement, John Polhill
pled

guilty

robbery,

18

to

bank

U.S.C.

robbery

and

§§ 2113(a),

aiding

2

(2012)

and

abetting

(Count

bank

One),

and

possession and discharge of a firearm in furtherance of a crime
of

violence

and

aiding

and

abetting

§§ 924(c), 2 (2012) (Count Two).

the

same,

18

U.S.C.

Six months after entering his

plea, Polhill moved to withdraw it, claiming that bank robbery
was not a crime of violence upon which a § 924(c) conviction
could be predicated.

The district court applied the six-factor

test set forth in United States v. Moore, 931 F.2d 245, 248 (4th
Cir.

1991),

and

denied

the

motion.

aggregate sentence of 207 months.

Polhill

received

an

He now appeals, claiming that

the district court erred when it denied his motion to withdraw
the guilty plea.

We affirm.

We review a district court’s denial of a motion to withdraw
a

guilty

plea

for

abuse

of

discretion.

United

Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).

States

v.

To withdraw a

guilty plea before sentencing, a defendant must “show a fair and
just reason for requesting the withdrawal.”
11(d)(2)(B).
that

Fed. R. Crim. P.

“The defendant bears the burden of demonstrating

withdrawal

should

be

granted.”

United

States

v.

Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009) (alteration
and internal quotation marks omitted).
2

Where the district court

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substantially

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complied

with

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the

Rule

11

requirements,

the

defendant must overcome a strong presumption that his guilty
plea is final and binding.

United States v. Lambey, 974 F.2d

1389, 1394 (4th Cir. 1992) (en banc).
In

deciding

a

motion

to

withdraw

a

guilty

plea,

the

district court typically considers the following six factors:
(1)
whether
the
defendant
has
offered
credible
evidence that his plea was not knowing or not
voluntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between the entering of the plea and the
filing of the motion to withdraw the plea; (4) whether
the defendant had the close assistance of competent
counsel; (5) whether withdrawal will cause prejudice
to the government; and (6) whether [withdrawal] will
inconvenience the court and waste judicial resources.
Moore, 931 F.2d at 248.
Of the six Moore factors, Polhill’s brief addresses only
the

second.

firearm

He

argues

predicate

conviction
crime

of

that

because
violence

he

bank
for

is

legally

robbery
a

innocent

cannot

§ 924(c)

of

serve

as

conviction.

the
a
We

recently held that a conviction under 18 U.S.C. § 2113(a) is a
crime of violence under the force clause of § 924(c)(3).

United

States v. McNeal, 818 F.3d 141, 151-57 & n.8 (4th Cir. 2016).
Thus, Polhill’s bank robbery conviction qualified as a predicate
crime of violence for his § 924(c) conviction.
We

hold

that

the

district

court

did

not

abuse

its

discretion in denying Polhill’s motion to withdraw his guilty

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plea.

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We therefore affirm.

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We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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