USCA4 Appeal: 21-4081 Doc: 41 Filed: 01/18/2023 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO BLAKE SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:19-cr-00092-FL-1)
Submitted: December 30, 2022 Decided: January 18, 2023
Before DIAZ and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
ON BRIEF: G. Alan Dubois, Federal Public Defender, Stephen C. Gordon, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A.
Bragdon, Assistant United States Attorney, David G. Beraka, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4081 Doc: 41 Filed: 01/18/2023 Pg: 2 of 3
PER CURIAM:
Antonio Blake Spencer appeals the 99-month sentence and three-year term of
supervised release imposed following his guilty plea, pursuant to a written plea agreement,
to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). On appeal, Spencer argues that the district court erred by inadequately
explaining its rationale for imposing two discretionary supervised release conditions. The
Government has filed a motion to dismiss the appeal as barred by Spencer’s waiver of the
right to appeal included in the plea agreement. We grant the Government’s motion to
dismiss. *
“When the government seeks to enforce an appeal waiver and has not breached the
plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). “We review the validity of an appellate waiver
de novo.” United States v. Soloff, 993 F.3d 240, 243 (4th Cir. 2021). “A waiver is valid if
*
In Spencer’s response to the Government’s motion to dismiss, he posits for the
first time that the district court did not orally pronounce at sentencing these two
discretionary conditions of supervised release, in violation of United States v. Rogers, 961
F.3d 291 (4th Cir. 2020). In its reply, the Government correctly notes that Spencer did not
raise his Rogers argument in his opening brief. Typically, “contentions not raised in the
argument section of the opening brief are abandoned.” Suarez-Valenzuela v. Holder, 714
F.3d 241, 249 (4th Cir. 2013) (cleaned up); see also United States v. Bartko, 728 F.3d 327,
335 (4th Cir. 2013) (recognizing that issue not raised in opening brief is waived). Although
on rare occasion, we may choose to “overlook” this rule if “a miscarriage of justice would
otherwise result,” Suarez-Valenzuela, 714 F.3d at 249 (internal quotation marks omitted),
we conclude that such circumstances are not present here and decline to consider Spencer’s
claim of Rogers error.
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the defendant knowingly and intelligently agreed to waive the right to appeal.” Id. (internal
quotation marks omitted). “When a district court questions a defendant during a [Fed. R.
Crim. P.] 11 hearing regarding an appeal waiver and the record shows that the defendant
understood the import of his concessions, we generally will hold that the waiver is valid.”
Boutcher, 998 F.3d at 608.
Spencer does not assert on appeal that the appellate waiver was not knowing or
intelligent or that his agreement to the waiver was in any way involuntary. Our review of
the plea hearing transcript confirms that Spencer was competent to plead guilty and that he
understood the terms of the plea agreement, including the appellate waiver. Therefore, the
waiver is valid and enforceable. Moreover, Spencer’s challenge to the district court’s
explanation for imposing certain supervised release conditions falls within the waiver’s
scope. See United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (recognizing that
claim “that the district court erred in the process by which it sentenced [a defendant] to the
financial conditions on his supervised release . . . would be covered by the appeal waiver”).
Accordingly, we grant the Government’s motion to dismiss. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
DISMISSED
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