                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4035


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHELLE V. MALLARD, a/k/a Michelle V. Crawford,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:11-cr-00374-FDW-1)


Submitted:   September 14, 2015           Decided:   October 6, 2015


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lee Ann Anderson, Amanda F. Davidoff, SULLIVAN & CROMWELL LLP,
Washington, D.C., for Appellant. Jill Westmoreland Rose, Acting
United States Attorney, Maria Kathleen Vento, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A    federal    grand    jury    charged    Michelle     V.    Mallard,     in    a

multi-defendant, multi-count second superseding indictment, with

conspiracy to commit mortgage fraud, in violation of 18 U.S.C.

§ 1349     (2012)    (Count    1),     conspiracy      to    launder    money,        in

violation of 18 U.S.C. § 1956(h) (2012) (Count 3), and wire

fraud, in violation of 18 U.S.C. § 1343 (2012) (Count 4).                             In

July 2013, after the second day of trial, Mallard pled guilty,

without a plea agreement, to all three charges.

     Sentencing       was    scheduled    for    October      28,     2014.      That

morning,      defense       counsel      moved    to        withdraw     based        on

“irreconcilable conflict.”            Following an ex parte hearing, where

the court determined that Mallard sought to withdraw her guilty

plea, the district court granted counsel’s motion to withdraw

and scheduled an evidentiary hearing on the motion to withdraw

the guilty plea. 1        The court subsequently denied Mallard’s motion

to withdraw her guilty plea and sentenced her to a downward

variance sentence of concurrent 120-month prison terms on each

count.

     Mallard appeals, claiming that the district court erred in

finding    that     her   arguments     for   withdrawing       her    guilty    plea



     1 After the ex parte hearing, Mallard filed a pro se motion
to withdraw her guilty plea.



                                          2
waived the attorney-client privilege, and, consequently, Mallard

asserts,       the    district      court       improperly       considered      privileged

information in denying her motion to withdraw.                           For the reasons

that follow, we affirm.

       “We     review       evidentiary          rulings,       including       rulings     on

privilege, for abuse of discretion, . . . factual findings as to

whether a privilege applies for clear error, and the application

of legal principles de novo.”                        United States v. Hamilton, 701

F.3d 404, 407 (4th Cir. 2012) (citations omitted).                               Violations

of the attorney-client privilege are subject to harmless error

review.       United States v. Nelson, 732 F.3d 504, 519 (5th Cir.

2013), cert. denied, 134 S. Ct. 2682 (2014); cf. United States

v. Cole, 631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will

not be overturned on account of an erroneous evidentiary ruling

when that error is deemed harmless within the meaning of Federal

Rule of Criminal Procedure 52(a).”).                        We will find a district

court’s      error    harmless      if     we    can    “say,    with    fair    assurance,

after     pondering         all     that        happened       without    stripping         the

erroneous      action       from    the    whole,       that     the   judgment       was   not

substantially swayed by the error.”                     United States v. Byers, 649

F.3d    197,    211     (4th      Cir.    2011)       (quoting    Kotteakos      v.    United

States,      328     U.S.   750,    765     (1946))      (internal       quotation      marks

omitted).



                                                 3
      Mallard argues that the district court erred by finding

that she had waived the attorney-client privilege and that the

court’s consideration of her privileged communications with her

attorney tainted the court’s denial of her motion to withdraw

her guilty plea, as well as subsequent proceedings.                  We need not

decide    whether    the    district     court      erred   by   concluding    that

Mallard     waived    the        attorney-client      privilege,     because     we

conclude that any violation of the attorney-client privilege was

harmless.

      Turning first to the denial of Mallard’s motion to withdraw

her   guilty   plea,       the    district    court     considered    the     well-

established factors in United States v. Moore, 931 F.2d 245 (4th

Cir. 1991):

      (1)   whether  the  defendant  has   offered  credible
      evidence that [her] plea was not knowing or not
      voluntary, (2) whether the defendant has credibly
      asserted [her] legal innocence, (3) whether there has
      been a delay between the entering of the plea and the
      filing of the motion, (4) whether defendant has had
      close assistance of competent counsel, (5) whether
      withdrawal will cause prejudice to the government, and
      (6) whether it will inconvenience the court and waste
      judicial resources.

Id. at 248.     In considering the Moore factors and denying the

motion to withdraw, the district court overwhelmingly relied on

nonprivileged information.

      The   court    found       that   all   six    factors     weighed    against

granting the motion to withdraw.              In determining that Mallard’s


                                          4
guilty    plea      was    knowing    and     voluntary,         the    court      found     that

Mallard’s communications with counsel reflected her desire to

hold open the option of withdrawing her guilty plea and her

knowledge      and    understanding          of    the    Sentencing          Guidelines      and

sentencing       proceedings.             However,       the    court    also       considered

Mallard’s      statements         under     oath    at    the    Fed.    R.     Crim.    P.     11

hearing    where      she    admitted        her     guilt      and     her    status      as    a

formerly    licensed        attorney,        in    concluding         that     there    was     no

credible evidence that her plea was not knowing and voluntary.

Regarding the fourth Moore factor, it is possible that the court

considered Mallard’s communications with her attorney in finding

that she had close assistance of competent counsel.

       For the remaining four factors, the district court did not

consider any attorney-client communications.                             The court found

that   Mallard       did    not    credibly        assert      her    legal     innocence       in

light of her inconsistent testimony regarding the various real

estate    transactions,           which     the     court      found    contradicted          the

trial testimony of credible Government witnesses.                                   The court

found that the 15-month delay between her guilty plea and her

motion    to     withdraw         weighed    against        granting         the    motion      to

withdraw,      as    did     its     conclusion          that    allowing          Mallard      to

withdraw her plea would prejudice the Government, inconvenience

the court, and waste judicial resources.



                                              5
     In weighing the six factors and finding that none supported

permitting Mallard to withdraw her guilty plea, therefore, the

court considered nonprivileged information for all six factors

and considered attorney-client communications with regard to no

more than two.      Thus, the court’s decision to deny Mallard’s

motion   to   withdraw    her   guilty     plea   was   not    “substantially

swayed” by consideration of information that may have violated

the attorney-client privilege. 2       Byers, 649 F.3d at 211.

     Accordingly, we affirm the criminal judgment.                   We dispense

with oral argument because the facts and legal conclusions are

adequately    presented   in    the   materials   before      this    court   and

argument would not aid the decisional process.

                                                                        AFFIRMED




     2 Mallard did not include a challenge to her sentence in the
“Statement of the Issues” section of her opening brief.
However, at the end of the discussion section of her brief, she
alleged that the district court’s erroneous finding of waiver
tainted all subsequent proceedings.        To the extent that
Mallard’s claim that her sentence was tainted by consideration
of privileged information is properly before us, we similarly
conclude that any error is harmless because the court was not
substantially swayed by any privileged information.



                                       6
