United States v. James Bonnette ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ROBERT BONNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:19-cr-00004-D-1)
Submitted: June 24, 2021 Decided: August 18, 2021
Before GREGORY, Chief Judge, NIEMEYER, and HARRIS, Circuit Judges.
Dismissed in part, affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Joshua L. Rogers,
Assistant United States Attorney, Banumathi Rangarajan, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Robert Bonnette pled guilty, pursuant to a written plea agreement, to one
count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and was
sentenced to 188 months’ imprisonment, to be followed by a lifetime term of supervised
release. In announcing the conditions of supervised release at sentencing, the district court
stated that Bonnette would be expected to “comply with the mandatory and standard
conditions as well as” certain “additional conditions” of supervised release. The written
criminal judgment contained “mandatory” and “standard” conditions, as well as
“additional standard conditions of supervision.” The additional standard conditions
included the terms of release announced by the district court at sentencing and two
additional terms requiring that Bonnette “shall not incur new credit charges or open
additional lines of credit without approval of the probation office” and that he “shall
provide the probation office with access to any requested financial information.” *
Bonnette’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal but arguing that Bonnette’s
sentence is substantively unreasonable. Although informed of his right to file a
supplemental pro se brief, Bonnette has not done so. The Government moves to dismiss
*
The Eastern District of North Carolina has adopted a standing order specifying
standard conditions of supervised release that includes these two conditions. See In re
Mandatory and Standard Conditions of Probation and Supervised Release, 20-SO-8
(E.D.N.C. June 25, 2020), available at
http://www.nced.uscourts.gov/data/StandingOrders/20-SO-8.pdf. However, this standing
order had not yet been adopted at the time of Bonnette’s November 25, 2019, sentencing.
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the appeal as barred by the appellate waiver included in Bonnette’s plea agreement. We
grant the Government’s motion to dismiss, in part, affirm Bonnette’s conviction, vacate his
sentence, and remand for resentencing.
We review the validity of an appellate waiver de novo and “will enforce the waiver
if it is valid and the issue appealed is within the scope of the waiver.” United States v.
Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is “knowing and
voluntary.” Id. To determine whether a waiver is knowing and voluntary, “we consider
the totality of the circumstances, including the experience and conduct of the defendant,
his educational background, and his knowledge of the plea agreement and its terms.”
United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal quotation marks
omitted). “Generally . . . , if a district court questions a defendant regarding the waiver of
appellate rights during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the
defendant understood the full significance of the waiver, the waiver is valid.” Id. (internal
quotation marks omitted). Our review of the record confirms that Bonnette knowingly and
voluntarily waived his right to appeal, with limited exceptions not applicable here. We
therefore conclude that the waiver is valid, and we grant the Government’s motion to
dismiss in part and dismiss the appeal as to all issues within the waiver’s scope.
In imposing Bonnette’s supervised release conditions, the district court failed to
announce two discretionary conditions of supervised release that it ultimately included in
the written judgment. A district court must announce all nonmandatory conditions of
supervised release at the sentencing hearing. United States v. Rogers, 961 F.3d 291, 296-
99 (4th Cir. 2020). This “requirement . . . gives defendants a chance to object to conditions
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that are not tailored to their individual circumstances and ensures that they will be imposed
only after consideration of the factors set out in [18 U.S.C.] § 3583(d).” Id. at 300. In
United States v. Singletary, we explained that a challenge to discretionary supervised
release terms that were not orally pronounced at sentencing falls outside the scope of a plea
waiver because “the heart of a Rogers claim is that discretionary conditions appearing for
the first time in a written judgment . . . have not been ‘imposed’ on the defendant.” 984
F.3d 341, 345 (4th Cir. 2021). In situations such as Bonnette’s, where the district court
fails to announce or otherwise incorporate the discretionary conditions of supervised
release, the appropriate remedy is to vacate the sentence and remand for a full resentencing
hearing. See id. at 346 & n.4.
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal. We therefore dismiss the appeal as to all
issues within the waiver’s scope and affirm Bonnette’s conviction, but we vacate his
sentence and remand for resentencing. Because we vacate the sentence, we do not address
at this juncture any potential issues related to Bonnette’s sentence. See Singletary, 984
F.3d at 346-47 (declining to consider additional challenges to original sentence). This court
requires that counsel inform Bonnette, in writing, of the right to petition the Supreme Court
of the United States for further review. If Bonnette requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion must state that a copy
thereof was served on Bonnette.
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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 IN PART,
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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