UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK WAYNE BALLARD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:10-cr-00019-MR-DLH-1)
Submitted: July 26, 2012 Decided: August 8, 2012
Before KING, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, P.A.,
Raleigh, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Wayne Ballard appeals his sentence of 118 months
of imprisonment and a life term of supervised release following
his plea of guilty to one count of aggravated sexual abuse
within the territorial jurisdiction of the United States, in
violation of 18 U.S.C. §§ 1153(a), 2241(a) (2006). On appeal,
Ballard challenges the propriety of his term of supervised
release and its attendant conditions, as well as the district
court’s order that he reimburse the cost of his court-appointed
attorney’s fee. The Government concedes that the district court
failed to comply with the statutory mandate of 18 U.S.C. § 3006A
(2006), and thus erred in imposing on Ballard the obligation to
shoulder the cost of counsel. It thus agrees that this court
should vacate the relevant portion of the district court’s
judgment and remand. The Government has moved to dismiss the
remainder of Ballard’s appeal pursuant to the terms of the
waiver of appellate rights contained in Ballard’s plea
agreement. We grant the Government’s motion, dismiss in part,
vacate in part, and remand.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver. United States v. Blick, 408
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F.3d 162, 168 (4th Cir. 2005). The validity of an appellate
waiver is a question of law that we review de novo. Id.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. This determination, often made
based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances. Id. These circumstances include all of “the
particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.” Id. (internal quotation marks omitted).
Here, the court fully complied with Fed. R. Crim. P.
11 when accepting Ballard’s plea, ensuring that Ballard
understood the rights he was relinquishing by pleading guilty
and the sentence he faced, that he committed the offense to
which he was pleading, and that he was aware of the limits his
plea would place on his appellate rights. Given no suggestion
to the contrary, we find that Ballard’s appellate waiver is
valid and enforceable.
Ballard concedes that his appellate claims questioning
the district court’s reasoning and explanation supporting
imposition of his term of supervised release and its attendant
conditions fall within the scope of his appellate waiver.
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Ballard contends, however, that the remainder of his claims,
which raise statutory and constitutional challenges to various
conditions of supervised release, are excepted from the waiver.
For the following reasons, we find Ballard’s assertions
unavailing.
First, there is no merit to Ballard’s argument that
various conditions of his supervised release exceed the
statutory maximum applicable to 18 U.S.C.A. § 3583(d) (West
Supp. 2012), thus rendering his sentence illegal and subject to
appeal despite his appellate waiver. See United States v.
Nguyen, 618 F.3d 72, 76 (1st Cir. 2010); United States v.
Goodson, 544 F.3d 529, 537 (3d Cir. 2008); United States v.
Sandoval, 477 F.3d 1204, 1206-09 (10th Cir. 2007); United States
v. Andis, 333 F.3d 886, 892-94 (8th Cir. 2003) (en banc).
Accordingly, Ballard’s claims on appeal asserting an abuse of
the district court’s discretion under 18 U.S.C. § 3583(d) are
dismissed as waived.
Turning to Ballard’s claims contesting the substantive
constitutionality of various conditions of his supervised
release, we have recently reiterated that an appellant’s claim
that his sentence is “illegal” is not sufficient, on its own, to
except his appeal from an otherwise valid appellate waiver. See
United States v. Thornsbury, 670 F.3d 532, 537-40 (4th Cir.
2012), petition for cert. filed, __ U.S.L.W. __ (U.S. May 31,
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2012) (No. 11-10690). Instead, charges of illegality in
sentencing that fall outside the scope of an appellate waiver
are generally limited to claims that (1) a district court
exceeded its authority, (2) a sentence was based on a
constitutionally impermissible factor such as race, or (3) a
post-plea violation of the right to counsel. See id. at 539-40.
Ballard’s allegations of unconstitutionality with
respect to certain conditions of his supervised release do not
assert any such circumstances. Instead, Ballard was sentenced
in exactly the manner to which he agreed; his real dispute is
simply with the outcome of that process. United States v.
Blick, 408 F.3d 162, 169-73 (4th Cir. 2005). Further, the fact
that Ballard did not contemplate the exact terms and conditions
that would be imposed as part of his sentence is of no moment to
the enforceability or scope of his appellate waiver, and
therefore his claims alleging numerous violations of his
constitutional rights are properly dismissed as well. Cf.
United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005).
Finally, we agree that the district court erred in
ordering Ballard to reimburse the cost of his court-appointed
attorney without first “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
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court-appointed attorneys’ fees.” United States v. Moore, 666
F.3d 313, 322 (4th Cir. 2012); see 18 U.S.C. § 3006A(f) (2006).
Accordingly, we vacate the relevant portion of the district
court’s judgment and remand for reconsideration in light of
Moore.
Based on the foregoing, the Government’s motion to
dismiss is granted, Ballard’s appeal of his term of supervised
release and its conditions is dismissed, the portion of the
district court’s judgment directing that Ballard reimburse the
cost of his court-appointed attorney is vacated, and we remand
for the limited purpose of permitting the district court to
reassess whether, in light of Moore, Ballard may be ordered to
reimburse the government for the costs of his appointed counsel.
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.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
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