UNPUBLISHED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 in part, and
remanded by unpublished per curiam opinion.
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Webb Powell pled guilty, pursuant to a written
plea agreement, to possession of materials involving the sexual
exploitation of minors, in violation of 18 U.S.C.
§ 2256(a)(4)(B) (2006). The district court sentenced Powell to
sixty-three months’ imprisonment, followed by supervised release
for life. The court also directed that Powell reimburse the
United 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 Manual (“USSG”) § 2G2.2(b) (2010). In addition,
Powell argues that the order requiring him to reimburse the
government for his court-appointed attorneys’ fees was
erroneous.
In response, the Government argues that Powell’s
sentencing challenges are barred by the appellate waiver
provision in his plea agreement, which precludes 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). United States v. Wiggins, 905 F.2d 51,
53 (4th Cir. 1990). An appellate waiver must be “the result of
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a knowing and intelligent decision to forgo the right to
appeal.” 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. Although Powell objected to the sentencing
enhancements set forth in the presentence report 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 sentencing challenges fall within the scope of the
waiver provision in his plea agreement, this court is precluded
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from considering his sentencing arguments on appeal. We
therefore dismiss Powell’s appeal as it relates to his sixty-
three-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). In United States v. Moore, 666
F.3d 313, 322 (4th Cir. 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 the reimbursement of
Powell’s court-appointed attorneys’ fees. Instead, as in Moore,
the court found that Powell did not have the ability to pay a
fine or interest, but ordered Powell to pay for his court-
appointed attorneys’ fees. Moore, 666 F.3d at 323. As 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 Powell’s
conviction, which he does not challenge on appeal. 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 IN PART,
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
∗
We note that Moore had not yet issued as of the date of
Powell’s sentencing.
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