UNPUBLISHED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remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 
3

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 
4

from considering his sentencing arguments on appeal. We 

therefore dismiss Powell’s appeal as it relates to his sixtythree-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 courtappointed attorneys’ fees. Moore, 666 F.3d at 323. As the 

Government acknowledges, the district court therefore failed to 
5

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.