United States v. Antonio Spencer

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 18, 2023
• Docket: 21-4081
• Status: Unpublished

Opinion

USCA4 Appeal: 21-4081 Doc: 41 Filed: 01/18/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4081

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO BLAKE SPENCER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:19-cr-00092-FL-1)

Submitted: December 30, 2022 Decided: January 18, 2023

Before DIAZ and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

ON BRIEF: G. Alan Dubois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, David G. Beraka, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4081 Doc: 41 Filed: 01/18/2023 Pg: 2 of 3

PER CURIAM:

Antonio Blake Spencer appeals the 99-month sentence and three-year term of

supervised release imposed following his guilty plea, pursuant to a written plea agreement,

to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). On appeal, Spencer argues that the district court erred by inadequately

explaining its rationale for imposing two discretionary supervised release conditions. The

Government has filed a motion to dismiss the appeal as barred by Spencer’s waiver of the

right to appeal included in the plea agreement. We grant the Government’s motion to

dismiss. *

“When the government seeks to enforce an appeal waiver and has not breached the

plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls

within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.

2021) (internal quotation marks omitted). “We review the validity of an appellate waiver

de novo.” United States v. Soloff, 993 F.3d 240, 243 (4th Cir. 2021). “A waiver is valid if

* In Spencer’s response to the Government’s motion to dismiss, he posits for the first time that the district court did not orally pronounce at sentencing these two discretionary conditions of supervised release, in violation of United States v. Rogers, 961 F.3d 291 (4th Cir. 2020). In its reply, the Government correctly notes that Spencer did not raise his Rogers argument in his opening brief. Typically, “contentions not raised in the argument section of the opening brief are abandoned.” Suarez-Valenzuela v. Holder, 714 F.3d 241, 249 (4th Cir. 2013) (cleaned up); see also United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) (recognizing that issue not raised in opening brief is waived). Although on rare occasion, we may choose to “overlook” this rule if “a miscarriage of justice would otherwise result,” Suarez-Valenzuela, 714 F.3d at 249 (internal quotation marks omitted), we conclude that such circumstances are not present here and decline to consider Spencer’s claim of Rogers error.

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the defendant knowingly and intelligently agreed to waive the right to appeal.” Id. (internal

quotation marks omitted). “When a district court questions a defendant during a [Fed. R.

Crim. P.] 11 hearing regarding an appeal waiver and the record shows that the defendant

understood the import of his concessions, we generally will hold that the waiver is valid.”

Boutcher, 998 F.3d at 608.

Spencer does not assert on appeal that the appellate waiver was not knowing or

intelligent or that his agreement to the waiver was in any way involuntary. Our review of

the plea hearing transcript confirms that Spencer was competent to plead guilty and that he

understood the terms of the plea agreement, including the appellate waiver. Therefore, the

waiver is valid and enforceable. Moreover, Spencer’s challenge to the district court’s

explanation for imposing certain supervised release conditions falls within the waiver’s

scope. See United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (recognizing that

claim “that the district court erred in the process by which it sentenced [a defendant] to the

financial conditions on his supervised release . . . would be covered by the appeal waiver”).

Accordingly, we grant the Government’s motion to dismiss. 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