                             UNPUBLISHED

                    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remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            John Webb Powell pled guilty, pursuant to a written

plea agreement, 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

appeal, 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    Manual       (“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       challenges       are    barred         by    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 right 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 of

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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         memorandum          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 appeal “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

sentencing 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        challenges       fall    within    the       scope    of    the

waiver provision in his plea agreement, this court is precluded

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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

appointed 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    court      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 right 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 to




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comply with the statutory mandate of 18 U.S.C. § 3006A(f) in

light of Moore. ∗

           Accordingly,       while     we   dismiss   Powell’s    challenge     to

all other aspects of his sentence, we vacate the portion of the

district     court’s    judgment      relating    to   the     reimbursement    of

attorneys’ fees and remand to the district court for proceedings

consistent    with     our   decision    in   Moore.      We    affirm    Powell’s

conviction, which he does not challenge on 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.



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