The 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NOT FOR PUBLICATION FILED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
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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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