                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4235


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOHN EDWARD HAYES,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:14-cr-00577-RDB-1)


Submitted: March 7, 2018                                          Decided: March 12, 2018


Before KING, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth E. McPherson, KENNETH E. MCPHERSON, CHTD., Riverdale, Maryland, for
Appellant. Paul Michael Cunningham, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       John Edward Hayes appeals from his convictions and the 209-month sentence

imposed after he pled guilty pursuant to a plea agreement to armed bank robbery, in

violation of 18 U.S.C. § 2113(a), (d); using, carrying, and brandishing a firearm in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Hayes’s attorney filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether the

district court erred when it denied Hayes’s motion to suppress and motion to dismiss the

§ 924(c)(1)(A) charge. Hayes has not filed a pro se supplemental brief, despite receiving

notice of his right to do so.

       We asked the parties to file supplemental briefs addressing whether the district court

committed plain error in failing to consider Hayes’s financial resources and assets before

ordering Hayes to pay restitution immediately. The Government agreed that the district

court erred and filed an unopposed motion to remand so the district court could issue a

restitution order supported by the factual record. We granted the motion, vacated the

restitution order, and remanded the case to allow the district court to consider Hayes’s

financial resources and assets. The case has been returned to us for further consideration.

Finding no reversible error, we affirm.

       In the Anders brief, counsel questions whether the district court erred in denying

Hayes’s motion to suppress statements Hayes made during police interrogation and while

he was under the influence of medication. We review the factual findings underlying a

motion to suppress for clear error and review the legal determinations de novo. See United

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States v. Clarke, 842 F.3d 288, 293 (4th Cir. 2016). After reviewing a video recording of

Hayes’s interrogation and considering the testimony presented at the suppression hearing,

the district court determined that Hayes was sober, alert, and coherent during the

interrogation. We agree with the district court and find no error in its decision to deny

Hayes’s motion to suppress. See, e.g., United States v. Palmer, 820 F.3d 640, 653 (4th Cir.

2016) (“When reviewing factual findings for clear error, we particularly defer to a district

court’s credibility determinations, for it is the role of the district court to observe witnesses

and weigh their credibility during a pre-trial motion to suppress.” (internal quotation marks

and brackets omitted)).

       Counsel also asserts that, in denying Hayes’s motion to dismiss, the district court

erred by finding that armed bank robbery under § 2113 is a crime of violence necessary to

support Hayes’s § 924(c)(1)(A) conviction. We review for clear error the district court’s

factual findings on a motion to dismiss an indictment, but we review its legal conclusions

de novo. See United States v. Hosford, 843 F.3d 161, 163 (4th Cir. 2016). We recently

held that bank robbery under § 2113(a) and armed bank robbery under § 2113(d) both

qualify as crimes of violence under the force clause in 18 U.S.C. § 924(c)(3). See United

States v. McNeal, 818 F.3d 141, 151–53, 157 (4th Cir. 2016). We thus discern no error in

the district court’s decision.

       We also find no error in the restitution order the district court issued on remand.

Before ordering restitution, the district court had a duty to consider Hayes’s economic

circumstances to determine “the manner in which, and the schedule according to which,

the restitution is to be paid.” 18 U.S.C. § 3664(f)(2); see id. §§ 3664(a), 3664A(d). Thus,

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the court was required to consider Hayes’s assets, projected earnings, other sources of

income, and any financial obligations, including obligations to dependents.           See id.

§ 3664(f)(2). After considering Hayes’s economic circumstances, the district court was

also required to fashion a restitution order consistent with Hayes’s ability to pay. See id.

§ 3664(f)(3)(A). We have reviewed the district court’s order granting the parties’ joint

motion to amend judgment, as well as its January 12, 2018 amended judgment, and

conclude that the district court satisfied the requirements set forth in § 3664.

       In accordance with Anders, we have reviewed the record in this case and have found

no meritorious issues for appeal. We therefore affirm the district court’s January 12, 2018

amended judgment. This court requires counsel to inform Hayes, in writing, of the right

to petition the Supreme Court of the United States for further review. If Hayes requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then

counsel may move in this court to withdraw from representation. Counsel’s motion must

state that a copy of the motion was served on Hayes. We dispense with oral argument

because the facts and legal arguments are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                   AFFIRMED




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