**UN PUBLISHED** 
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 un published 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Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: John Webb Powell pled guilty, pursuant to a written plea agreemen t, to possession of materials involving the sexual exploitation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
appe al, 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 Manu al (“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 challenge s are barred b y 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 ri g ht 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 of3 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 memor andum 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 a ppeal “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

se ntencing 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 challenge s fall within the scope of the waiver provi sion in his plea agreement, this court is precluded4 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 appoint ed 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 c ourt 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 r ight 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 to5 comply with the statutory mandate of 18 U.S.C. § 300 6A(f) in light of Moore . ∗ Accordingly, while we dismiss Powell’s challenge to all other aspects o f his sentenc e, we vacate the portion of the district court’s judgment relating to the reimbursement of attorneys’ fees and remand to the district court for pr oceedings consistent with our decision in Moore . We affirm Powell’s conviction, which he does not challenge o n 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.