                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16–4013


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOSEPH K. NEWBOLD,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, District Judge. (1:05-cr-00262-TDS-1)


Argued: January 24, 2017                                         Decided: April 25, 2017


Before GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which
Judge King and Senior Judge Davis joined.


ARGUED: Matthew Cloutier, James Lathrop, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Kaitlin M. Price, Third-
Year Law Student, Mackenzie M. Salenger, Third-Year Law Student, Appellate
Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant. Ripley Rand, United States Attorney, Elissa Hachmeister,
Third-Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
GREGORY, Chief Judge:

       In September 2005, Joseph Newbold pleaded guilty to one count of dealing a

controlled substance analogue. After a series of post-conviction proceedings, he received

a resentencing hearing and new sentence on December 14, 2015.

       Newbold now appeals the sentence he received. He contends that his sentence is

substantively unreasonable, and that the sentencing court failed to take into consideration

his post-conviction conduct and medical needs. He also contends for the first time on

appeal that his conviction should be vacated because, based on an intervening Supreme

Court case, United States v. McFadden, 135 S. Ct. 2298 (2015), the indictment, plea

colloquy, and factual basis for the plea agreement failed to establish that he satisfied the

knowledge element of the crime.

       For the reasons below, we affirm Newbold’s conviction and sentence.



                                             I.

       In July 2005, Newbold was indicted for, among other crimes, one count of

distributing a controlled substance analogue. He pleaded guilty in September 2005 to the

distribution charge, as well as money laundering and being a felon in possession of a

firearm. At Newbold’s plea colloquy, the district judge asked Newbold if he understood

that the government had to prove the following: that Newbold “willfully, knowingly, and

intentionally distributed 5.3 grams of a mixture containing a detectable amount of 5-

MeO-AMT, which is a controlled substance, and with the intent for human consumption;

and that [he] knew that what [he] w[as] distributing was some kind of controlled


                                             3
substance.” J.A. 53. The prosecutor then clarified, and the judge accepted, that 5-MeO-

AMT was a controlled substance analogue. Newbold then stipulated that there were

enough facts for the court to determine that he fulfilled each of the crime’s elements.

J.A. 60. The district judge also read aloud the plea agreement’s written factual basis,

which stated that Newbold sold “fifty gel capsules containing a substance represented to

be like ‘Ecstasy.’” J.A. 32.

       Under then-binding precedent, United States v. Harp, 406 F.3d 242 (4th Cir.

2005), Newbold qualified for a sentencing enhancement on his firearm-possession charge

under the Armed Career Criminal Act, and was sentenced to 225 months.                  He

unsuccessfully appealed his sentence and then challenged his sentencing enhancement in

protracted habeas proceedings.     During the course of Newbold’s proceedings, we

overruled Harp in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). In

March 2015, applying Simmons retroactively, see Miller v. United States, 735 F.3d 141

(4th Cir. 2013), we held that Newbold did not qualify for the armed-career-criminal

sentencing enhancement, and we remanded his case for resentencing.

       In June 2015, the Supreme Court issued McFadden, which clarified the knowledge

element for the crime of distributing a controlled substance analogue. At the time of

Newbold’s conviction, the government could satisfy this element by showing only that

Newbold intended for the substance to be consumed by humans.            United States v.

Klecker, 348 F.3d 69, 71 (4th Cir. 2003). The McFadden Court, however, rejected that

standard. It held that, to convict someone of dealing a controlled substance analogue, the

government must also show that “the defendant knew that the substance was controlled


                                            4
under the [Controlled Substances Act] or the Analogue Act, even if he did not know its

identity.” 135 S. Ct. at 2302.

       Newbold’s resentencing hearing occurred on December 14, 2015. The parties

agreed that the proper Sentencing Guidelines range was 151 to 188 months. Newbold

neither challenged his underlying conviction nor raised McFadden at his hearing.

Instead, he requested only a downward variance to 143 months because of his chronic

Hepatitis C and his post-conviction conduct. His statement included attachments from

his physician indicating that he was nonresponsive to the treatment he received,

Newbold’s request for a different treatment that he believed would be more effective, the

prison’s denial of his request, a certificate from the prison’s law library for his work, and

Newbold’s request that the judge increase his time at a Residential Recovery Center so he

could receive medical treatment more quickly.

       In support of his request for a downward variance, Newbold also emphasized his

exemplary behavior while incarcerated. During the 10.5 years of his incarceration, he

worked in the law library for seven years, receiving a commendation; had not failed a

single alcohol or drug test; attended church, Bible, and music groups; played piano for

eight years; was approved for minimum security; and had a stable home environment,

including a wife, mother, and adult son to return to. The prosecutor, on the other hand,

emphasized an infraction Newbold had received while incarcerated and the fact that

Newbold’s current offense was his seventeenth drug conviction.

       The judge ultimately denied the request for a downward variance and sentenced

Newbold to 165 months, the middle of the applicable range. The judge considered


                                             5
Newbold’s Hepatitis C, including its severity, Newbold’s ability to receive his requested

medication, and whether Newbold had exhausted the internal appeals process for

requesting the medication. The judge also emphasized the seriousness of Newbold’s

crimes and criminal history, and noted that he wanted the sentence to reflect the offense’s

seriousness, promote respect for the law, and protect the public from potential future drug

offenses. The judge stated the following:

              [W]hy would somebody with your talents and abilities have
              even done this in the first place, and what have you learned,
              and why won’t you do it again? I still have some concern
              about that, and I hope that your sentence . . . has caused you
              to appreciate the need to protect the public from polluting
              other people with these drugs that you are or were
              distributing.

J.A. 141. And lastly, the judge concluded, “I appreciate the problem with your Hepatitis

C, and I hope that it holds off long enough so that when you are released, you can get

whatever treatment you wish to get.” J.A. 146.

       Newbold timely appeals his sentence and challenges his underlying conviction for

the first time on appeal.



                                            II.

       We first examine Newbold’s challenge to his conviction, and then turn to his

sentencing appeal.

                                            A.

       Relying on McFadden, Newbold argues that the indictment, plea colloquy, and

factual basis for his plea agreement fail to show that he had sufficient knowledge of the


                                            6
elements of his crime to be convicted for dealing a controlled substance analogue. We

first examine whether we are procedurally barred from reviewing Newbold’s claims.

Finding no such barrier, we next determine whether the plea colloquy or factual basis for

his plea agreement demonstrate sufficient knowledge to support his guilty plea. Under

plain-error review, we hold Newbold’s guilty plea, as informed by the plea colloquy, was

knowing and intelligent, and therefore valid. Because his guilty plea was valid, we are

procedurally barred from examining the indictment.

                                             1.

         The government highlights two procedural barriers that we review in turn: law-of-

the-case doctrine and waiver.

         Law-of-the-case doctrine ensures that “when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the same

case.”     United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)). As a result,

once an appellate court establishes a decision of law either explicitly or implicitly, see

United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), the decision “must be followed in all

subsequent proceedings in the same case in the trial court or on a later appeal,” Aramony,

166 F.3d at 661 (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir.

1988)).     Here, law-of-the-case doctrine does not bar Newbold’s challenge to his

conviction because no prior appellate decision implicitly or explicitly resolved the issue.

         When Newbold appealed his sentence in 2007, he challenged the sentencing

enhancements he received as a career offender and armed career criminal, and he argued


                                             7
that his sentence violated his confrontation and jury-trial rights.        United States v.

Newbold, 215 F. App’x. 289, 291 (4th Cir. Jan. 31, 2007) (unpublished). We affirmed

his sentence on all counts. In his subsequent habeas petition, Newbold argued, among

other claims, that the indictment failed to allege a proper offense “because it did not state

what Schedule I substance 5-MeO-AMT is associated with as an analogue.” Newbold v.

United States, 2009 WL 2243642, at *11 (M.D.N.C. July 27, 2009) (unpublished). The

district court decided that this claim failed.     Id.   We then granted a certificate of

appealability on only Newbold’s challenge to his sentencing enhancement, which we

affirmed. And the Supreme Court vacated that decision and remanded the case to us in

light of then-recent circuit precedent, i.e., Simmons and Miller. Newbold v. United States,

134 S. Ct. 897 (Jan. 13, 2014) (mem.). In sum, no appellate court has decided whether,

under McFadden or Klecker, Newbold’s indictment, plea colloquy, or factual basis for

his plea agreement established that he had sufficient knowledge of the elements of his

crime. Thus, no prior decision of law now binds our examination of this question. *

       We next turn to waiver. We are barred from reviewing waived claims, but we

may review forfeited claims. “[F]orfeiture is the failure to make the timely assertion of a

right, [while] waiver is the ‘intentional relinquishment or abandonment of a known

right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst,


       *
          Even if a prior appellate decision had found that Newbold demonstrated
sufficient knowledge under Klecker, law-of-the-case doctrine does not apply when
controlling authority has changed on a decision of law applicable to the issue. TFWS,
Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009). As a result, Newbold’s claim likely
still would not have been barred.


                                             8
304 U.S. 458, 464 (1938)). Although the term “waiver” is often used broadly, it applies

only in a narrow set of instances: when a party “identifies an issue, and then explicitly

withdraws it.” United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014).

       Here, Newbold neither challenged his underlying conviction at his resentencing

hearing nor brought McFadden to the sentencing court’s attention. He did not waive his

claim; he forfeited it by failing to raise it in a timely manner. Thus, we may review his

challenge for plain error. See Olano, 507 U.S. 733–34.

                                             2.

       Before turning to the substance of Newbold’s claim, we briefly address

retroactivity. As a new rule of statutory interpretation, McFadden applies to Newbold’s

case because “a new rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct review or not yet final.”

Griffith v. Kentucky, 479 U.S. 314, 328 (1987). A case is final only when “a judgment of

conviction has been rendered, the availability of appeal exhausted, and the time for a

petition for certiorari elapsed or a petition for certiorari finally denied.” Id. at 321 n.6.

“[A] final judgment of conviction includes both the adjudication of guilt (or ‘conviction’)

and the sentence.” In re Gray, 850 F.3d 139, 141 (4th Cir. 2017). Here, Newbold’s

sentence is not yet final, as his direct appeal from his sentence is before us. As a result,

his judgment is not final, and McFadden is retroactively applicable to his case.

       We now consider whether Newbold’s guilty plea and plea colloquy demonstrated

sufficient knowledge of the elements of the crime. Under plain-error review, Newbold

must establish that (1) an error occurred, (2) the error is plain, and (3) the error affected


                                             9
his substantial rights. Olano, 507 U.S. at 732. And even if Newbold satisfies these three

requirements, the Court should correct the error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.      Id. (quoting United States v.

Young, 470 U.S. 1, 15 (1985)).

       A guilty plea is constitutionally valid “only to the extent it is ‘voluntary’ and

‘intelligent.’” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v.

United States, 397 U.S. 742, 748 (1970). The defendant making the plea must have

“sufficient awareness of the relevant circumstances and likely consequences.” United

States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Bradshaw v. Stumpf, 545

U.S. 175, 183 (2005)). To intelligently make a guilty plea, the defendant must be advised

by competent counsel, aware of the nature of the charge against him, and in control of his

mental faculties. Brady v. United States, 397 U.S. 742, 756 (1970).

       In McFadden, the Supreme Court held that when a defendant is charged with

dealing a controlled substance analogue, the government must show that “the defendant

knew that the substance was controlled under the [Controlled Substances Act] or the

Analogue Act, even if he did not know its identity.” McFadden, 135 S. Ct. at 2302. The

Court noted two ways by which the government can satisfy this knowledge element: (1)

evidence that a defendant knew the substance he was dealing was or was treated like a

controlled substance; or (2) evidence that the defendant knew the substance had a

chemical structure similar to a controlled substance, and either (a) had a stimulant,

depressant, or hallucinogenic effect on the central nervous system similar to a controlled




                                             10
substance, or (b) was represented or intended to have such an effect on a person. Id. at

2305.

        Here, the factual basis for Newbold’s plea states that he sold “fifty gel capsules

containing a substance represented to be like ‘Ecstasy.’” J.A. 32. The judge read this

factual basis aloud during Newbold’s plea colloquy. Also at the plea colloquy, the

district court asked Newbold if he understood that the government had to prove the

following: that Newbold “willfully, knowingly, and intentionally distributed 5.3 grams

of a mixture containing a detectable amount of 5-MeO-AMT, which is a controlled

substance, and with the intent for human consumption; and that [he] knew that what [he

was] distributing was some kind of controlled substance.” J.A. 53. Newbold admitted

that he was guilty of this crime. J.A. 57. The government’s attorney clarified, and the

judge accepted, that 5-MeO-AMT was a controlled substance analogue. J.A. 58-59. And

then Newbold stipulated that the factual basis for his plea had enough information for the

district court to make a determination of guilt based on these elements. J.A. 60.

        Newbold argues that his plea colloquy and the factual basis for his plea agreement

fail to show that he knew that 5-MeO-AMT was chemically similar to a controlled

substance.     In so doing, Newbold fixates on McFadden’s second method of

demonstrating sufficient knowledge. Had McFadden identified only this second method,

Newbold’s likelihood of success might have been higher; at least in the plea colloquy and

factual basis for his plea agreement, the evidence displaying Newbold’s knowledge of 5-

MeO-AMT’s chemical structure was anemic.             But Newbold fails to address the

McFadden Court’s first method of demonstrating sufficient knowledge:                proffering


                                            11
evidence that the defendant knew the substance he was dealing was or was treated like a

controlled substance. And here, the facts recited above adequately demonstrate evidence

of such knowledge. The government’s clarification that 5-MeO-AMT was a controlled

substance analogue does not change the fact that Newbold knew that what he was

distributing was or was treated like a controlled substance. And Newbold does not argue

that his counsel advised him incompetently or that he lacked control of his mental

faculties when he made these admissions.

       Newbold’s plea is not unintelligently made or otherwise invalid solely because,

after his guilty plea was entered, the law changed in a way that would have modified

Newbold’s assessment of the government’s case and his decision to plead guilty. In

Brady v. United States, Brady asserted that his guilty plea was involuntary because he felt

coerced to take it by his fear of facing the death penalty, a punishment the Supreme Court

later invalidated for his crime. 397 U.S. at 743-46. The Supreme Court rejected this

argument. “[A]bsent misrepresentations or other impermissible conduct by state agents,

a voluntary plea of guilty intelligently made in the light of the then applicable law does

not become vulnerable because later judicial decisions indicate that the plea rested on a

faulty premise.” Id. at 757. There, where counsel competently advised Brady based on

the law applicable when he pleaded guilty, a later change in the law that would have

modified Brady’s assessment did not render the plea vulnerable to attack.

       Similarly, McFadden’s clarification of the crime’s knowledge element does not

render Newbold’s guilty plea invalid. Like in Brady, Newbold’s lawyer competently

advised Newbold of the law applicable at the time he pleaded guilty. Newbold might


                                            12
believe that the government would have been less likely to obtain a conviction against

him at trial under the new standard of proving knowledge than under the old standard.

But like in Brady, this minor modification in Newbold’s assessment of the government’s

likelihood of success at trial does not render his plea invalid. Because Newbold’s lawyer

adequately advised him of the law applicable at the time he pleaded guilty, and because--

for the reasons stated supra--the clarification of the knowledge element would not have

changed Newbold’s likely outcome, we cannot conclude that an error, let alone a plain

error, occurred. As a result, his guilty plea was valid and his conviction is affirmed.

       Newbold also alleges that the underlying indictment lacked sufficient facts

demonstrating knowledge to support his charged offense.             But an intelligent and

voluntary guilty plea waives arguments regarding defects in the indictment. See United

States v. Cotton, 535 U.S. 625, 631 (2002) (stating that defects in indictment are not

jurisdictional); Tollett v. Henderson, 411 U.S. 258, 266 (1973) (finding that valid guilty

plea waives nonjurisdictional errors). Because Newbold’s guilty plea was valid, he has

waived any challenge to defects in the indictment.

                                             B.

       Lastly, we consider Newbold’s challenge to the substantive reasonableness of his

sentence. We review a district court’s sentence for substantive reasonableness under an

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007); United

States v. Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). A sentence’s reasonableness

“largely depend[s] upon the specific facts of each case and the district court’s

consideration and application of the [18 U.S.C.] § 3553(a) factors to those facts.” United


                                             13
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). A within-Guidelines sentence is

presumptively reasonable. United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).

      Newbold contends that his 165-month sentence is substantively unreasonable

because it fails to take into consideration his exemplary post-conviction conduct and his

medical needs. But examining the totality of the circumstances, especially under a

deferential standard of review, reveals that Newbold cannot overcome the presumption

that his within-Guidelines sentence is reasonable. The judge considered both Newbold’s

post-conviction record and Hepatitis C. Yet the judge also explained that, despite these

mitigating factors, he was concerned with Newbold’s prior criminal history, and with the

need for Newbold’s sentence to reflect the seriousness of the offense, promote respect of

the law, provide punishment, and protect the public from future crime. See 18 U.S.C.

§ 3553(a).

      It is unfortunate that, under the Bureau of Prisons’ policy, Newbold’s Hepatitis C

is not serious enough to warrant the treatment he requests.        But it would be an

unwarranted expansion of our role to undertake an appraisal of the Bureau of Prisons’

policy on Hepatitis C treatment in the context of a challenge to the reasonableness of a

sentence. Without improperly second-guessing responsible executive branch officials,

we express confidence that Newbold will receive all appropriate medical treatment based

on his condition and in keeping with the applicable standards of care, under both medical

practice norms and, equally important, the Eighth Amendment. But as his claim stands,

we cannot say that the district court imposed a sentence that was substantively

unreasonable when it considered the full facts of Newbold’s situation, including his


                                           14
mitigating and aggravating circumstances, and concluded that a within-Guidelines

sentence was reasonable.



                                          III.

      For these reasons, Newbold’s conviction and the district court’s sentence are

                                                                            AFFIRMED.




                                          15
