United States v. John Polhill

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4419

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

In accordance with a written plea agreement, John Polhill

pled guilty to bank robbery and aiding and abetting bank

robbery, 18 U.S.C. §§ 2113(a), 2 (2012) (Count One), and

possession and discharge of a firearm in furtherance of a crime

of violence and aiding and abetting the same, 18 U.S.C.

§§ 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

Cir. 1991), and denied the motion. Polhill received an

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 affirm.

We review a district court’s 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). To withdraw a

guilty plea before sentencing, a defendant must “show a fair and

just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). “The defendant bears the burden of demonstrating

that withdrawal should be granted.” United States v.

Thompson-Riviere, 561 F.3d 345, 348 (4th Cir. 2009) (alteration

and internal quotation marks omitted). Where the district court

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substantially complied with 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. He argues that he is legally innocent of the

firearm conviction because bank robbery cannot serve as a

predicate crime of violence for a § 924(c) conviction. 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. We therefore affirm. 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