United States v. Troy Powell ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4409
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY LAMONT POWELL, a/k/a Gutter,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Dever III, District Judge. (4:18-cr-00073-D-1)
Submitted: April 27, 2023 Decided: May 19, 2023
Before AGEE and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed in part, affirmed in part, and remanded by unpublished per curiam opinion.
ON BRIEF: Sharon Leigh Smith, UNTI & SMITH, Raleigh, North Carolina, for
Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Troy Lamont Powell pled guilty, pursuant to a written plea agreement, to assault of
a government official using a deadly weapon causing bodily injury, in violation of 18
U.S.C. § 111(a)(1), (b), and possession of a prohibited object by an inmate, in violation of
18 U.S.C. § 1791(a)(2), (b)(3). The district court sentenced Powell to 210 months’
imprisonment and three years of supervised release. On appeal, Powell’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether the district court erred in imposing
an offense level enhancement under U.S. Sentencing Guidelines Manual § 2A2.2(b)(1)
(2018). Powell was notified of his right to file a pro se supplemental brief but has not done
so. The Government has moved to dismiss Powell’s appeal as barred by the appeal waiver
contained in his plea agreement. We dismiss in part, affirm in part, and remand with
instructions.
Before accepting a guilty plea, the district court must conduct a plea colloquy during
which it must inform the defendant of, and determine that the defendant understands, the
rights he is relinquishing by pleading guilty, the charges to which he is pleading, and the
maximum and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1). The
court also must ensure that the plea was voluntary and not the result of threats, force, or
promises not contained in the plea agreement, Fed. R. Crim. P. 11(b)(2), and that a factual
basis supports the plea, Fed. R. Crim. P. 11(b)(3). Because Powell did not seek to withdraw
his guilty plea, we review the adequacy of the Fed. R. Crim. P. 11 hearing for plain error.
United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). “Under the plain error
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standard, [we] will correct an unpreserved error if (1) an error was made; (2) the error is
plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Harris, 890 F.3d
480, 491 (4th Cir. 2018) (internal quotation marks omitted). “In the Rule 11 context, this
inquiry means that [the defendant] must demonstrate a reasonable probability that, but for
the error, he would not have pleaded guilty.” United States v. Sanya, 774 F.3d 812, 816
(4th Cir. 2014) (internal quotation marks omitted). Here, the record reveals that the district
court substantially complied with the Rule 11 requirements and that any errors or omissions
did not affect Powell’s substantial rights. Further, we conclude that Powell entered his plea
knowingly and voluntarily and that a factual basis supported the plea. Accordingly, we
conclude that Powell’s guilty plea is valid.
Turning to Powell’s appeal waiver, we review its validity 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 Rule 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 Powell knowingly and voluntarily
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waived his right to appeal his convictions and sentence, with limited exceptions not
applicable here. We therefore conclude that the waiver is valid and enforceable and that
the sentencing issue raised by counsel falls squarely within the scope of the waiver.
However, in imposing Powell’s supervised release conditions at sentencing, the
district court ordered Powell to support his children, while the written judgment required
Powell to support his dependents. 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 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. A defendant’s challenge to discretionary supervised release
conditions that were not orally pronounced at sentencing falls outside the scope of an
appeal 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.” United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021).
An inconsistency between the descriptions of a condition of supervision announced
at sentencing and in the written judgment may be reversible Rogers error where the
government fails to explain the alleged inconsistency. See United States v. Cisson, 33 F.4th
185, 193-94 (4th Cir. 2022); see also United States v. Jenkins, No. 21-4003, 2022 WL
112069, at *2 (4th Cir. Jan. 12, 2022). However, in the context of this record, which
reflects no dependents other than Powell’s children, it is clear the district court’s intention
was to require Powell to support his children. “The proper remedy is for the [d]istrict
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[c]ourt to correct the written judgment so that it conforms with the sentencing court’s oral
pronouncements.” United States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore grant the Government’s motion to
dismiss in part, affirm in part, and remand to the district court with instructions to correct
the written judgment to conform with the district court’s oral pronouncement that Powell
support his children, leaving the sentence, including the remaining conditions of supervised
release, undisturbed. This court requires that counsel inform Powell, in writing, of the right
to petition the Supreme Court of the United States for further review. If Powell 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 Powell.
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,
AND REMANDED
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