                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5014


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARK WAYNE BALLARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.         Martin K.
Reidinger, District Judge. (2:10-cr-00019-MR-DLH-1)


Submitted:   July 26, 2012                 Decided:   August 8, 2012


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished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


Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, P.A.,
Raleigh, North Carolina, for Appellant.      Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Mark Wayne Ballard appeals his sentence of 118 months

of imprisonment and a life term of supervised release following

his   plea    of    guilty     to   one   count     of    aggravated            sexual     abuse

within the territorial jurisdiction of the United States, in

violation of 18 U.S.C. §§ 1153(a), 2241(a) (2006).                                  On appeal,

Ballard      challenges      the    propriety       of    his          term    of   supervised

release and its attendant conditions, as well as the district

court’s order that he reimburse the cost of his court-appointed

attorney’s fee.         The Government concedes that the district court

failed to comply with the statutory mandate of 18 U.S.C. § 3006A

(2006), and thus erred in imposing on Ballard the obligation to

shoulder the cost of counsel.                    It thus agrees that this court

should    vacate      the    relevant     portion        of       the    district       court’s

judgment and remand.             The Government has moved to dismiss the

remainder      of    Ballard’s      appeal       pursuant         to    the    terms    of   the

waiver    of        appellate       rights       contained         in         Ballard’s      plea

agreement.         We grant the Government’s motion, dismiss in part,

vacate in part, and remand.

              Pursuant to a plea agreement, a defendant may waive

his   appellate       rights    under     18     U.S.C.       §    3742       (2006).     United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                                   A valid

waiver will preclude appeal of a given issue if the issue is

within the scope of the waiver.                     United States v. Blick, 408

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F.3d 162, 168 (4th Cir. 2005).                   The validity of an appellate

waiver is a question of law that we review de novo.                        Id.

             “The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.” Id. at 169.                   This determination, often made

based on the sufficiency of the plea colloquy and whether the

district court questioned the defendant about the appeal waiver,

ultimately     turns    on     an     evaluation        of    the    totality      of    the

circumstances.         Id.     These circumstances include all of “the

particular     facts     and     circumstances           surrounding       [the]        case,

including     the     background,         experience,          and    conduct    of      the

accused.”     Id. (internal quotation marks omitted).

             Here, the court fully complied with Fed. R. Crim. P.

11    when    accepting      Ballard’s          plea,        ensuring    that      Ballard

understood the rights he was relinquishing by pleading guilty

and the sentence he faced, that he committed the offense to

which he was pleading, and that he was aware of the limits his

plea would place on his appellate rights.                          Given no suggestion

to    the   contrary,   we     find    that     Ballard’s       appellate    waiver       is

valid and enforceable.

             Ballard concedes that his appellate claims questioning

the    district     court’s      reasoning         and       explanation     supporting

imposition of his term of supervised release and its attendant

conditions     fall     within      the    scope    of       his     appellate     waiver.

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Ballard contends, however, that the remainder of his claims,

which raise statutory and constitutional challenges to various

conditions of supervised release, are excepted from the waiver.

For    the     following        reasons,          we     find    Ballard’s        assertions

unavailing.

               First, there is no merit to Ballard’s argument that

various      conditions         of        his   supervised        release        exceed     the

statutory      maximum       applicable         to     18    U.S.C.A.    § 3583(d)        (West

Supp. 2012), thus rendering his sentence illegal and subject to

appeal    despite      his    appellate           waiver.        See    United    States    v.

Nguyen,      618   F.3d    72,       76    (1st       Cir.   2010);     United    States    v.

Goodson, 544 F.3d 529, 537 (3d Cir. 2008); United States v.

Sandoval, 477 F.3d 1204, 1206-09 (10th Cir. 2007); United States

v.    Andis,    333    F.3d     886,       892-94      (8th     Cir.    2003)    (en   banc).

Accordingly, Ballard’s claims on appeal asserting an abuse of

the district court’s discretion under 18 U.S.C. § 3583(d) are

dismissed as waived.

               Turning to Ballard’s claims contesting the substantive

constitutionality          of    various          conditions       of     his     supervised

release, we have recently reiterated that an appellant’s claim

that his sentence is “illegal” is not sufficient, on its own, to

except his appeal from an otherwise valid appellate waiver.                                See

United    States      v.   Thornsbury,          670     F.3d    532,    537-40    (4th    Cir.

2012), petition for cert. filed, __ U.S.L.W. __ (U.S. May 31,

                                                  4
2012)    (No.    11-10690).             Instead,            charges    of    illegality         in

sentencing that fall outside the scope of an appellate waiver

are   generally       limited     to     claims         that    (1)    a     district         court

exceeded     its      authority,         (2)       a    sentence       was       based    on     a

constitutionally impermissible factor such as race, or (3) a

post-plea violation of the right to counsel.                          See id. at 539-40.

            Ballard’s        allegations               of    unconstitutionality              with

respect to certain conditions of his supervised release do not

assert any such circumstances.                     Instead, Ballard was sentenced

in exactly the manner to which he agreed; his real dispute is

simply    with     the    outcome       of   that       process.        United     States       v.

Blick, 408 F.3d 162, 169-73 (4th Cir. 2005).                            Further, the fact

that Ballard did not contemplate the exact terms and conditions

that would be imposed as part of his sentence is of no moment to

the     enforceability       or     scope      of       his     appellate        waiver,       and

therefore       his      claims    alleging            numerous       violations         of    his

constitutional        rights      are    properly           dismissed       as   well.         Cf.

United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005).

            Finally, we agree that the district court erred in

ordering Ballard to reimburse the cost of his court-appointed

attorney without first “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

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court-appointed attorneys’ fees.”                     United States v. Moore, 666

F.3d 313, 322 (4th Cir. 2012); see 18 U.S.C. § 3006A(f) (2006).

Accordingly,      we    vacate      the   relevant       portion       of   the    district

court’s     judgment     and    remand     for       reconsideration        in    light      of

Moore.

             Based      on    the   foregoing,        the   Government’s          motion     to

dismiss is granted, Ballard’s appeal of his term of supervised

release     and   its    conditions       is       dismissed,    the     portion       of   the

district court’s judgment directing that Ballard reimburse the

cost of his court-appointed attorney is vacated, and we remand

for   the   limited      purpose     of   permitting          the     district     court    to

reassess whether, in light of Moore, Ballard may be ordered to

reimburse the government for the costs of his appointed counsel.

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.



                                                                      DISMISSED IN PART,
                                                                        VACATED IN PART,
                                                                            AND REMANDED




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