US v. John Powell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00050-MR-1 Copies to all parties and the district court/agency. [998885752].. [11-5135]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5135

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WEBB POWELL,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00050-MR-1)

Submitted:

June 20, 2012

Decided:

June 29, 2012

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, dismissed in part, vacated
remanded by unpublished per curiam opinion.

in

part,

and

J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard L. Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Webb Powell pled guilty, pursuant to a written
plea agreement, to possession of materials involving the sexual
exploitation

of

minors,

§ 2256(a)(4)(B) (2006).

in

violation

of

18

U.S.C.

The district court sentenced Powell to

sixty-three months’ imprisonment, followed by supervised release
for life.
United

The court also directed that Powell reimburse the

States

for

the

costs

of

his

appointed

counsel.

On

appeal, Powell argues that the district court erred by applying
a two-level sentencing enhancement for possession of material
involving

prepubescent

minors

and

a

two-level

sentencing

enhancement for using a computer, pursuant to U.S. Sentencing
Guidelines
Powell

Manual

argues

government

(“USSG”)

that

for

the

his

§ 2G2.2(b)

order

(2010).

requiring

court-appointed

him

In

to

addition,

reimburse

attorneys’

fees

the
was

erroneous.
In
sentencing
provision

response,
challenges

in

his

plea

the
are

Government
barred

agreement,

by
which

argues
the

that

Powell’s

appellate

precludes

waiver

appeal

of

“whatever sentence is imposed,” except on grounds of ineffective
assistance of counsel or prosecutorial misconduct.

A defendant

may, in a valid plea agreement, waive the right to appeal under
18 U.S.C. § 3742 (2006).
53 (4th Cir. 1990).

United States v. Wiggins, 905 F.2d 51,

An appellate waiver must be “the result of
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appeal.”

and

intelligent

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decision

to

forgo

the

right

to

United States v. Broughton-Jones, 71 F.3d 1143, 1146

(4th Cir. 1995) (internal quotation marks and citation omitted).
We review de novo whether a defendant has effectively waived his
right to appeal.

United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992).
Powell

does

not

question

whether

he

knowingly

and

intelligently waived his right to appeal his sentence; instead,
he challenges the scope of his appellate waiver, arguing that he
did not waive the right to appeal the sentencing enhancements at
issue,

as

he

filed

a

sentencing

memorandum

contesting

the

enhancements prior to sentencing, which the court had not yet
considered when it accepted his guilty plea.

However, Powell

miscomprehends the scope of the waiver provision.

In the plea

agreement, Powell agreed to waive his right to appeal “whatever
sentence is imposed,” reserving the right to appeal solely on
grounds of ineffective assistance of counsel or prosecutorial
misconduct.
enhancements

Although
set

forth

Powell

objected

in

presentence

the

to

the
report

sentencing
prior

to

sentencing and the court had not yet considered his arguments
when it accepted his guilty plea, this does not alter the fact
that Powell entered a valid and enforceable waiver.

Because

Powell’s

of

sentencing

challenges

fall

within

the

scope

the

waiver provision in his plea agreement, this court is precluded
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considering

his

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sentencing

arguments

on

appeal.

We

therefore dismiss Powell’s appeal as it relates to his sixtythree-month sentence of imprisonment.
Turning to Powell’s challenge to the district court’s
order

directing

reimbursement

of

court-appointed

attorneys’

fees, courts are authorized to require repayment of funds for
appointed counsel upon a finding that “funds are available for
payment from or on behalf of a person furnished representation.”
18 U.S.C. § 3006A(f) (2006).
F.3d

313,

322

(4th

Cir.

In United States v. Moore, 666

2012),

this

court

ruled

that

“the

district court must base the reimbursement order on a finding
that there are specific funds, assets, or asset streams (or the
fixed right to those funds, assets or asset streams) that are
(1) identified by the court and (2) available to the defendant
for the repayment of the court-appointed attorneys’ fees.”
In this case, the district court made no finding as to
the

availability

of

funds

to

pay

for

Powell’s court-appointed attorneys’ fees.

the

reimbursement

of

Instead, as in Moore,

the court found that Powell did not have the ability to pay a
fine

or

interest,

but

ordered

appointed attorneys’ fees.

Powell

to

pay

for

his

Moore, 666 F.3d at 323.

courtAs the

Government acknowledges, the district court therefore failed to

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comply with the statutory mandate of 18 U.S.C. § 3006A(f) in
light of Moore. ∗
Accordingly,

while

we

dismiss

Powell’s

challenge

to

all other aspects of his sentence, we vacate the portion of the
district

court’s

judgment

relating

to

the

reimbursement

of

attorneys’ fees and remand to the district court for proceedings
consistent

with

our

decision

in

Moore.

We

affirm

conviction, which he does not challenge on appeal.

Powell’s

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
DISMISSED
VACATED
AND

∗

IN PART,
IN PART,
IN PART,
REMANDED

We note that Moore had not yet issued as of the date of
Powell’s sentencing.

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