Opinion
21-4717
06-07-2023
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TROY MCFARLAND, a/k/a Troy Goodlife, a/k/a Nathaniel Hom, Defendant-Appellant.
James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. David McLean Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
UNPUBLISHED
Submitted: November 30, 2022.
Amended: June 7, 2023.
Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry E. Hudson, Senior District Judge. (4:20-cr-00044-HEH-DEM-1).
ON BRIEF:
James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant.
David McLean Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
Before DIAZ and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Dismissed in part, affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy McFarland pled guilty, pursuant to a written plea agreement, to conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1349, 1343; wire fraud, in violation of 18 U.S.C. §§ 1343, 2; and aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1), 2. The district court sentenced McFarland to concurrent terms of 72 months' imprisonment on the wire fraud and conspiracy counts, to be followed by a 24-month term on the aggravated identity theft count, for a total sentence of 96 months' imprisonment. McFarland timely appealed.
McFarland's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), conceding that there are no meritorious issues for appeal, but questioning whether McFarland's guilty plea was knowing and voluntary, challenging the procedural and substantive reasonableness of the sentence, and asserting that the written criminal judgment is not consistent with the court's oral pronouncement at sentencing. McFarland filed a pro se supplemental brief also challenging his guilty plea and contesting the Sentencing Guidelines calculations. The Government moves to dismiss McFarland's appeal in light of the appeal waiver in McFarland's plea agreement. We grant the motion to dismiss in part, dismiss the appeal as to all issues within the scope of the appeal waiver, and affirm McFarland's convictions; however, as explained below, we vacate McFarland's sentence and remand for resentencing.
We grant McFarland's motion to file his pro se supplemental brief out of time.
We review the validity of an appeal waiver de novo and "will enforce the waiver if it is valid and the issue[s] appealed [are] within the scope of the waiver." United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016). Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during a plea colloquy performed in accordance with Fed. R. Crim. P. 11, and the record shows that the defendant understood the waiver's significance, the waiver is both valid and enforceable. United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). McFarland's appellate waiver does not preclude our review of the validity of his guilty plea. United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). Our review of the record confirms that McFarland's guilty plea was knowing and voluntary and that he knowingly and intelligently waived his right to appeal. We therefore hold that the waiver is valid and enforceable, grant in part the Government's motion to dismiss, and dismiss the appeal as to all issues within the scope of the appeal waiver.
We also review de novo whether the sentence imposed in the written judgment is consistent with the district court's oral pronouncement of the sentence. United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020). While a district court need not orally pronounce all mandatory conditions at the sentencing hearing, "all non-mandatory conditions of supervised release must be announced at a defendant's sentencing hearing." Id.
In pronouncing the terms of McFarland's supervised release at sentencing, the district court announced several special conditions of supervised release. However, as McFarland points out, in the written judgment, the district court included a special condition of supervised release that had not been orally pronounced at sentencing. 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 the one presented here, where the 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. Because we vacate McFarland's sentence, we do not consider any other issues related to the sentence. See id. at 346-47 (declining to consider additional challenges to original sentence).
This special condition requires that, if so directed by the probation officer, McFarland must participate in a program for financial counseling approved by the United States Probation Office and is responsible for the cost of the program.
In accordance with Anders, we have reviewed the entire record and have found no other meritorious grounds for appeal. We therefore grant the Government's motion to dismiss as to all issues within the scope of the appeal waiver and affirm McFarland's convictions, vacate McFarland's sentence, and remand for resentencing. This court requires that counsel inform McFarland, in writing, of the right to petition the Supreme Court of the United States for further review. If McFarland 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 McFarland. 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.