US v. John Polhill
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00012-REP-1 Copies to all parties and the district court/agency. .. [16-4419]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
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)
March 7, 2017
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Affirmed by unpublished per curiam opinion.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,
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Unpublished opinions are not binding precedent in this circuit.
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In accordance with a written plea agreement, John Polhill
possession and discharge of a firearm in furtherance of a crime
§§ 924(c), 2 (2012) (Count Two).
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
aggregate sentence of 207 months.
He now appeals, claiming that
the district court erred when it denied his motion to withdraw
the guilty plea.
We review a district court’s denial of a motion to withdraw
Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).
To withdraw a
guilty plea before sentencing, a defendant must “show a fair and
just reason for requesting the withdrawal.”
Fed. R. Crim. P.
“The defendant bears the burden of demonstrating
Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009) (alteration
and internal quotation marks omitted).
Where the district court
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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).
district court typically considers the following six factors:
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
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).
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.
discretion in denying Polhill’s motion to withdraw his guilty
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
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