United States v. Steven Nowell

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 2, 2023
• Docket: 18-4801
• Status: Unpublished

Opinion

USCA4 Appeal: 18-4801 Doc: 27 Filed: 02/02/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4801

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVEN WILLIAM NOWELL, a/k/a Shoota,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:18-cr-00015-D-1)

Submitted: December 22, 2022 Decided: February 2, 2023

Before KING and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Jennifer P. May-Parker, 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Unpublished opinions are not binding precedent in this circuit.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: 18-4801 Doc: 27 Filed: 02/02/2023 Pg: 2 of 4

PER CURIAM:

Steven William Nowell pled guilty, pursuant to a written plea agreement, to

distributing and possessing with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), and possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).

The district court sentenced Nowell within the Sentencing Guidelines range to 180 months’

imprisonment followed by 3 years’ supervised release. On appeal, Nowell’s attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are

no meritorious grounds for appeal but questioning whether the district court erred in

classifying Nowell as a career offender and whether his sentence was substantively

reasonable. Although informed of his right to do so, Nowell has not filed a pro se

supplemental brief. The Government moved to dismiss Nowell’s appeal as barred by the

appeal waiver contained in his plea agreement. We deny the Government’s motion to

dismiss, affirm Nowell’s convictions, vacate his sentence, and remand for resentencing. 1

In imposing Nowell’s supervised release conditions, the district court failed to

announce two discretionary conditions of supervised release that it ultimately included in

the written judgment. The district court stated that Nowell would be expected to “comply

1 We previously held this case in abeyance pending our decision in No. 18-4831, United States v. Sitton, which we anticipated would provide further guidance on the impact of the Supreme Court’s intervening decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), on Nowell’s guilty plea. We recently decided Sitton without addressing Rehaif. See United States v. Sitton, 21 F.4th 873 (4th Cir. 2022). Nevertheless, in light of Greer v. United States, 141 S. Ct. 2090, 2100 (2021), and United States v. Moody, 2 F.4th 180, 197- 98 (4th Cir. 2021), our review of the record reveals no nonfrivolous Rehaif challenge to Nowell’s § 922(g) conviction.

2 USCA4 Appeal: 18-4801 Doc: 27 Filed: 02/02/2023 Pg: 3 of 4

with the standard conditions” as well as certain “additional conditions” of supervised

release. However, the district court did not announce two additional terms providing that

Nowell “shall not incur new credit charges or open additional lines of credit without

approval of the probation office” and that he “shall provide the probation office with access

to any requested financial information.” 2

A district court must announce all nonmandatory conditions of supervised release

at the sentencing hearing. United States v. Rogers, 961 F.3d 291, 296-99 (4th Cir. 2020).

This “requirement . . . gives defendants a chance to object to conditions that are not tailored

to their individual circumstances and ensures that they will be imposed only after

consideration of the factors set out in [18 U.S.C.] § 3583(d).” Id. at 300. 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 an appeal 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 Nowell’s, where the district court fails to

announce or otherwise incorporate the discretionary conditions of supervised release, the

appropriate remedy is to vacate the entire sentence and remand for a full resentencing

2 The Eastern District of North Carolina adopted a standing order specifying standard conditions of supervised release that included these two conditions. See In re Mandatory and Standard Conditions of Probation and Supervised Release, 20-SO-8 (E.D.N.C. June 25, 2020), available at http://www.nced.uscourts.gov/data/StandingOrders/20-SO-8.pdf. However, that order had not yet been adopted at the time of Nowell’s October 16, 2018, sentencing.

3 USCA4 Appeal: 18-4801 Doc: 27 Filed: 02/02/2023 Pg: 4 of 4

hearing. See id. at 346 & n.4. Thus, we deny the Government’s motion to dismiss, and we

vacate and remand for resentencing.

In accordance with Anders, we have reviewed the entire record in this case and have

found no other meritorious grounds for appeal. We affirm Nowell’s convictions, but we

vacate his sentence and remand for resentencing. This court requires that counsel inform

Nowell, in writing, of the right to petition the Supreme Court of the United States for further

review. If Nowell 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 Nowell.

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