United States v. Brown

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 23 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-5757 D.C. No. Plaintiff - Appellee, 9:24-cr-00049-DLC-1 v. MEMORANDUM* MALLORY NEHEMIAH BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted June 10, 2026 Portland, Oregon

Before: CHRISTEN, HURWITZ, and BADE, Circuit Judges.

Mallory Brown pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s denial of his

motion to withdraw his guilty plea and its determination that his previous conviction

for bank robbery in violation of 18 U.S.C. § 2113(a) was a crime of violence under

United States Sentencing Guideline § 2K2.1(a)(4).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction under 28 U.S.C. § 1291. We review a denial of a motion

to withdraw a guilty plea for abuse of discretion, United States v. Rios-Ortiz, 830

F.2d 1067, 1069 (9th Cir. 1987), and review de novo whether a conviction

constitutes a crime of violence, United States v. Villavicencio-Burruel, 608 F.3d 556,

561 n.3 (9th Cir. 2010). We affirm.

1. The district court did not abuse its discretion by denying Brown’s motion

to withdraw his guilty plea after the government produced police reports and FBI

phone recordings showing that Brown had asked law enforcement to collect his

firearms. To withdraw his guilty plea, Brown must show that he subjectively did not

know of the “new reason to withdraw his plea,” that he objectively “could not have

known about or foreseen” it, and that the reason “could at least plausibly have

motivated [him] not to have pled guilty.” United States v. Hernandez, 105 F.4th

1234, 1239-40 (9th Cir. 2024) (cleaned up).

Brown failed to show that he “could not have known about or foreseen this

new material basis for withdrawal at the time of his plea.” Id. at 1240 (cleaned up).

As the district court noted, Brown “himself made the phone calls that resulted in the

recordings.” Brown could have reasonably foreseen that the police and FBI would

have recorded or otherwise documented a phone call from a person seeking to

surrender firearms.

Moreover, the district court did not abuse its discretion by finding that it could

2 25-5757 not assess whether the new evidence was exculpatory—and therefore “could at least

plausibly have motivated the defendant not to have pled guilty”—because Brown

never submitted the evidence to the court. Id. at 1239 (cleaned up). Brown had the

“burden to show a fair and just reason for withdrawal of a plea,” United States v.

Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003), and admitted below that the new

evidence “cuts both ways.” Brown’s own description of the evidence suggests that

he owned the firearms, contrary to his initial denial of ownership upon arrest. At

most, the evidence shows mitigating circumstances, and Brown was able to so argue

at sentencing.

2. Brown acknowledges that United States v. Watson, 881 F.3d 782, 786 (9th

Cir. 2018) (per curiam), forecloses his argument that 18 U.S.C. § 2113(a), which

outlaws both bank robbery and bank extortion, is indivisible and that bank robbery

is therefore not categorically a crime of violence. He raises the issue only to preserve

it for possible en banc consideration.

AFFIRMED.

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