USCA4 Appeal: 21-4066 Doc: 42 Filed: 04/20/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA WAYNE CLEMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00015-KDB-DCK-1)
Submitted: March 27, 2023 Decided: April 20, 2023
Before AGEE and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4066 Doc: 42 Filed: 04/20/2023 Pg: 2 of 7
PER CURIAM:
Joshua Wayne Clemons pled guilty to distribution and attempted distribution of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1), and possession of
child pornography involving a prepubescent minor and minor who had not attained the age
of 12, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court calculated
Clemons’ advisory imprisonment range under the U.S. Sentencing Guidelines Manual at
292 to 365 months and sentenced him to 300 months’ imprisonment on the distribution
count and a concurrent term of 240 months’ imprisonment on the possession count
followed by concurrent lifetime terms of supervised release. The court also imposed
assessments of $17,000 and $35,000 pursuant to 18 U.S.C. § 2259A(a).
Clemons’ counsel initially filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating there are no meritorious grounds for appeal but questioning whether
Clemons’ prison sentence is reasonable. Clemons filed a pro se supplemental brief
challenging his prison sentence and the assessments the district court imposed. The
Government did not file a response brief. After conducting review pursuant to Anders, this
court ordered supplemental briefing to address the potentially meritorious issues of whether
there is reversible error in this case under United States v. Rogers, 961 F.3d 291 (4th Cir.
2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021), and whether the
district court reversibly erred in imposing the $52,000 in assessments without considering
or explaining the 18 U.S.C. § 3553(a) and 18 U.S.C. § 3572(a) factors. The parties filed
supplemental briefs addressing these issues. We affirm in part, vacate in part, and remand.
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Turning to Clemons’ prison sentence, we review “all sentences—whether inside,
just outside, or significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard,” United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir.
2020) (internal quotation marks omitted), for procedural and substantive reasonableness,
United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020). In evaluating procedural
reasonableness, we consider whether the district court properly calculated the defendant’s
Guidelines range, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected
sentence. Id. When rendering a sentence, the district court must make an individualized
assessment based on the facts presented, state in open court the reasons supporting its
chosen sentence, address the parties’ nonfrivolous arguments in favor of a particular
sentence and, if it rejects them, explain why in a manner allowing for meaningful appellate
review. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019). If there are no
procedural errors, we then consider the substantive reasonableness of the sentence,
evaluating “the totality of the circumstances to determine whether the sentencing court
abused its discretion in concluding that the sentence it chose satisfied the standards set forth
in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation
marks omitted). “A sentence that is within or below a properly calculated Guidelines range
is presumptively [substantively] reasonable.” United States v. Bennett, 986 F.3d 389, 401
(4th Cir. 2021) (internal quotation marks omitted). “On appeal, such a presumption can
only be rebutted by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” Id. (cleaned up).
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We conclude that the district court did not reversibly err in calculating Clemons’
Guidelines imprisonment range. Contrary to Clemons’ arguments made in the Anders and
pro se briefs, the district court did not reversibly err in enhancing his base offense level
under USSG § 2G2.2(b)(4) and (5). We also discern no reversible error in the district
court’s remaining calculations relative to the Guidelines imprisonment range. The district
court afforded counsel adequate opportunities to argue for an appropriate sentence and
properly heard allocution from Clemons. After hearing argument and allocution and
considering the advisory Guidelines range and the 18 U.S.C. § 3553(a) factors, the district
court sentenced Clemons to concurrent terms of 300 and 240 months’ imprisonment,
addressing Clemons’ arguments and explaining that such sentences were warranted in light
of the nature and circumstances of his offense conduct, his history and characteristics, and
the needs for the sentence imposed to reflect the seriousness of Clemons’ offenses and to
avoid unwarranted sentencing disparities among similarly situated defendants, 18 U.S.C.
§ 3553(a)(1), (2)(A), (6). The district court’s explanation was sufficient to support the
imposition of these terms. As to substantive reasonableness, Clemons does not overcome
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USCA4 Appeal: 21-4066 Doc: 42 Filed: 04/20/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA WAYNE CLEMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00015-KDB-DCK-1)
Submitted: March 27, 2023 Decided: April 20, 2023
Before AGEE and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4066 Doc: 42 Filed: 04/20/2023 Pg: 2 of 7
PER CURIAM:
Joshua Wayne Clemons pled guilty to distribution and attempted distribution of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1), and possession of
child pornography involving a prepubescent minor and minor who had not attained the age
of 12, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court calculated
Clemons’ advisory imprisonment range under the U.S. Sentencing Guidelines Manual at
292 to 365 months and sentenced him to 300 months’ imprisonment on the distribution
count and a concurrent term of 240 months’ imprisonment on the possession count
followed by concurrent lifetime terms of supervised release. The court also imposed
assessments of $17,000 and $35,000 pursuant to 18 U.S.C. § 2259A(a).
Clemons’ counsel initially filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating there are no meritorious grounds for appeal but questioning whether
Clemons’ prison sentence is reasonable. Clemons filed a pro se supplemental brief
challenging his prison sentence and the assessments the district court imposed. The
Government did not file a response brief. After conducting review pursuant to Anders, this
court ordered supplemental briefing to address the potentially meritorious issues of whether
there is reversible error in this case under United States v. Rogers, 961 F.3d 291 (4th Cir.
2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021), and whether the
district court reversibly erred in imposing the $52,000 in assessments without considering
or explaining the 18 U.S.C. § 3553(a) and 18 U.S.C. § 3572(a) factors. The parties filed
supplemental briefs addressing these issues. We affirm in part, vacate in part, and remand.
2 USCA4 Appeal: 21-4066 Doc: 42 Filed: 04/20/2023 Pg: 3 of 7
Turning to Clemons’ prison sentence, we review “all sentences—whether inside,
just outside, or significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard,” United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir.
2020) (internal quotation marks omitted), for procedural and substantive reasonableness,
United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020). In evaluating procedural
reasonableness, we consider whether the district court properly calculated the defendant’s
Guidelines range, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected
sentence. Id. When rendering a sentence, the district court must make an individualized
assessment based on the facts presented, state in open court the reasons supporting its
chosen sentence, address the parties’ nonfrivolous arguments in favor of a particular
sentence and, if it rejects them, explain why in a manner allowing for meaningful appellate
review. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019). If there are no
procedural errors, we then consider the substantive reasonableness of the sentence,
evaluating “the totality of the circumstances to determine whether the sentencing court
abused its discretion in concluding that the sentence it chose satisfied the standards set forth
in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation
marks omitted). “A sentence that is within or below a properly calculated Guidelines range
is presumptively [substantively] reasonable.” United States v. Bennett, 986 F.3d 389, 401
(4th Cir. 2021) (internal quotation marks omitted). “On appeal, such a presumption can
only be rebutted by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” Id. (cleaned up).
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We conclude that the district court did not reversibly err in calculating Clemons’
Guidelines imprisonment range. Contrary to Clemons’ arguments made in the Anders and
pro se briefs, the district court did not reversibly err in enhancing his base offense level
under USSG § 2G2.2(b)(4) and (5). We also discern no reversible error in the district
court’s remaining calculations relative to the Guidelines imprisonment range. The district
court afforded counsel adequate opportunities to argue for an appropriate sentence and
properly heard allocution from Clemons. After hearing argument and allocution and
considering the advisory Guidelines range and the 18 U.S.C. § 3553(a) factors, the district
court sentenced Clemons to concurrent terms of 300 and 240 months’ imprisonment,
addressing Clemons’ arguments and explaining that such sentences were warranted in light
of the nature and circumstances of his offense conduct, his history and characteristics, and
the needs for the sentence imposed to reflect the seriousness of Clemons’ offenses and to
avoid unwarranted sentencing disparities among similarly situated defendants, 18 U.S.C.
§ 3553(a)(1), (2)(A), (6). The district court’s explanation was sufficient to support the
imposition of these terms. As to substantive reasonableness, Clemons does not overcome
the presumption of reasonableness afforded to his below-Guidelines and within-Guidelines
prison terms. We thus discern no abuse of discretion in the district court’s imposition of
Clemons’ prison sentence.
Turning to the parties’ supplemental briefs, whether there is reversible error under
Rogers with respect to discretionary conditions of supervised release is a matter we review
de novo. United States v. Cisson, 33 F.4th 185, 193 (4th Cir. 2022). Any supervised
release conditions that are not “mandatory” under 18 U.S.C. § 3583(d) cannot be imposed
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“without an exercise of the district court’s discretion, based on its individualized
assessment of the defendant and the statutory factors.” Rogers, 961 F.3d at 297 (cleaned
up). Accordingly, “in order to sentence a defendant to a non-mandatory condition of
supervised release, the sentencing court must include that condition in its oral
pronouncement of a defendant’s sentence in open court.” Singletary, 984 F.3d at 345. A
district court “may satisfy its obligation to orally pronounce discretionary conditions
through incorporation” of the Guidelines or a standing order of the court. Rogers, 961 F.3d
at 299. Discretionary conditions of supervised release that appear for the first time in a
written judgment, however, are nullities; a defendant has not been sentenced to those
conditions, mandating the remedy of vacatur and a remand for resentencing. Singletary,
984 F.3d at 344, 346 & n.4.
The criminal judgment sets forth the concurrent lifetime terms of supervised release
the district court ordered Clemons to serve, 4 mandatory conditions of supervised release
required by 18 U.S.C. § 3583(d), 23 discretionary additional conditions of supervised
release, and 13 discretionary sex-offender conditions of supervised release. The district
court orally ordered that Clemons comply with the four mandatory conditions required by
§ 3583(d). We conclude after review of the record and the parties’ briefs that the court
also satisfied its obligation to orally pronounce the discretionary additional and
discretionary sex-offender conditions of supervised release that appear in the criminal
judgment through incorporation of the court’s previously adopted standing orders listing
these conditions. Clemons has not identified in his supplemental brief any discretionary
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supervised release conditions appearing in the judgment that were not orally incorporated
at the sentencing hearing.
We turn next to the $52,000 in assessments the district court imposed. Under 18
U.S.C. § 2259A(a), “[i]n addition to any other criminal penalty, restitution, or special
assessment authorized by law,” the district court “shall assess . . . not more than $17,000”
on any person convicted of an offense under 18 U.S.C. § 2252A(a)(5) and “not more than
$35,000” on any person convicted of any other offense for trafficking in child pornography.
In imposing such assessments, a district court “shall consider” the factors set forth in 18
U.S.C. § 3553(a) and 18 U.S.C. § 3572 (listing factors governing imposition of fines).
18 U.S.C. § 2259A(c). Section 3572(a) requires a district court to consider—in addition
to the § 3553(a) sentencing factors—whether restitution is ordered and, if so, the amount
of restitution before imposing a fine and to make specific findings on these factors. 18
U.S.C. § 3572(a); United States v. Taylor, 984 F.2d 618, 621 (4th Cir. 1993) (concluding
that, under § 3572(a), district court must consider factors before imposing fine and must
make specific factual findings on these factors); see United States v. Madrid, 978 F.3d 201,
206 (5th Cir. 2020) (comparing assessments under § 2259A to fines and explaining
similarities).
After Clemons noted his appeal, the district court—which had deferred action on
ordering restitution at the end of the sentencing hearing—granted the Government’s
unopposed request and ordered Clemons to pay $26,000 as restitution to victims. The
district court never considered or made any factual findings about Clemons’ restitution
obligation before imposing the assessments. The district court also did not consider the
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§ 3553(a) or § 3572(a) factors or make specific findings on these factors before imposing
the assessments. In imposing the assessments as it did, the district court reversibly erred.
See Fowler, 948 F.3d at 668; Provance, 944 F.3d at 219-20 (concluding-in case where
district court failed to explain how § 3553(a) factors supported sentence or to provide
sentencing rationale-that sentence was procedurally unreasonable and vacating sentence).
In accordance with Anders, we also have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm Clemons’ convictions
and all portions of his sentence other than the $52,000 in special assessments. We vacate
the $52,000 in special assessments and remand to the district court for resentencing.
This court requires that counsel inform Clemons, in writing, of the right to petition
the Supreme Court of the United States for further review. If Clemons 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 Clemons. 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.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED