UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4939
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY GROSS, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00132-RDB)
Submitted: September 16, 2008 Decided: September 18, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. Rod J. Rosenstein,
United States Attorney, Bonnie S. Greenberg, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy Gross, Sr., pled guilty pursuant to a written plea
agreement to one count of armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d), and (f) (2000) (Count One), and two counts
of using a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c) (2000) (Counts Two and Five).
The district court sentenced Gross to 262 months’ imprisonment as
to Count One, 84 months’ imprisonment as to Count Two to run
consecutive with Count One, and 300 months’ imprisonment as to
Count Five to run consecutively to Counts One and Two, for a total
term of 646 months’ imprisonment.
Gross challenges his conviction and sentence, asserting
on appeal that the district court erred in denying his motion to
withdraw his guilty plea. Gross contends that his plea was not
knowing and voluntary because he was “confused” as to his maximum
imprisonment exposure. He claims he did not know that the
Government’s filing of the notice pursuant to 18 U.S.C. § 3559
would have required that the district court impose a life sentence
if it found Gross’s prior convictions to be valid and appropriate
predicate offenses under § 3559. As the mandatory life
imprisonment requirement under § 3559 was Gross’s only basis for
challenging the validity of the Fed. R. Crim. P. 11 colloquy, the
Government moved to withdraw its notification to seek enhanced
penalties, and the court granted the Government’s motion. In its
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discretion, the district court then declined to impose a life
sentence upon Gross, instead sentencing him as set forth above.
We review for abuse of discretion the district court’s
denial of a motion to withdraw a guilty plea. United States v.
Ubakamma, 215 F.3d 421, 424 (4th Cir. 2000). Our review of the
record discloses that the district court properly determined that
once the Government withdrew its § 3559 notice, there was no basis
for Gross’s motion to withdraw his plea, because the only reason
Gross proffered to support his motion was his apparent
misunderstanding about whether a sentence of life imprisonment
would be mandatory. The record reflects that Gross clearly was
made aware that, following the Government’s withdrawal of its
§ 3559 notice, it remained within the district court’s discretion
to sentence him to life imprisonment at the time he pled guilty.
In denying Gross’s motion to withdraw his plea, the
district court considered the factors set forth in United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991), as well as the
requirements of Rule 11, and properly determined that the sole
basis for Gross’s motion to withdraw was removed when the
Government withdrew its § 3559 notice. Hence, we find that Gross
failed to meet his burden of demonstrating that a “fair and just
reason” supported his request to withdraw his plea. Id.
Accordingly, we affirm the district court’s denial of
Gross’s motion to withdraw his plea, and affirm Gross’s conviction
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and sentence. 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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