USCA4 Appeal: 21-4526 Doc: 49 Filed: 12/07/2023 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4526

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY KONG MENG VANG,

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-00105-KDB-DCK-1)

Submitted: August 18, 2023 Decided: December 7, 2023

Before RUSHING and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed in part, affirmed in part, and remanded in part with instructions by unpublished per curiam opinion.

ON BRIEF: Eric J. Foster, Asheville, North Carolina, for Appellant. Anthony Joseph Enright, Assistant United States Attorney, Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Johnny Kong Meng Vang pled guilty pursuant to a plea agreement to receiving and

attempting to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B),

(b)(1). The district court sentenced Vang to 168 months’ imprisonment and a supervised

release term of life. The court also imposed a $35,000 assessment on Vang. Vang’s

counsel initially filed a brief pursuant to Anders v. California,

(1967), stating

that there are no meritorious grounds for appeal but raising as an issue whether the

168-month prison term is substantively unreasonable. Vang filed a pro se supplemental

brief in which he suggests that the prosecuting attorney engaged in misconduct at the

sentencing hearing and that his sentence is unreasonable. 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,

(4th Cir. 2020), and United States v. Singletary,

(4th Cir. 2021),

and whether the district court reversibly erred in imposing the $35,000 assessment. In his

supplemental brief, Vang’s counsel argues that the district court erred in imposing the

$35,000 assessment because—contrary to the requirements of 18 U.S.C. § 2259A(c) and

18 U.S.C. § 3572—it failed to consider the amount of restitution it ordered and to identify

sentencing factors supporting imposition of an assessment at the statutory maximum.

Counsel also argues that the district court erred in imposing on him several discretionary

conditions of supervised release because it failed to provide a sufficient explanation for

them. Invoking the appeal waiver in Vang’s plea agreement, the Government has moved

to dismiss the appeal. Vang’s counsel has filed a response opposing the motion.

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Pursuant to a plea agreement, a defendant may waive his appellate rights. United

States v. Archie,

(4th Cir. 2014). Where, as here, the Government seeks

enforcement of an appeal waiver and there is no claim that it breached its obligations under

the plea agreement, we will enforce the waiver to preclude an appeal of a specific issue if

the waiver is valid and the issue falls within the scope of the waiver. United States v. Soloff,

(4th Cir. 2021). Whether a defendant validly waived his right to appeal

is a question of law we review de novo.

The validity of an appeal waiver depends on

whether the defendant knowingly and voluntarily waived his right to appeal. United

States v. McCoy,

(4th Cir. 2018). To determine whether a waiver is

valid, we examine “the totality of the circumstances, including the experience and conduct

of the defendant, his educational background, and his knowledge of the plea agreement and

its terms.”

(internal quotation marks omitted). “Generally . . . if a district court

questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.]

11 colloquy and the record indicates that the defendant understood the full significance of

the waiver,” the waiver is both valid and enforceable.

(internal quotation marks

omitted).

We have thoroughly reviewed the record and conclude that Vang knowingly and

voluntary waived his rights to appeal his conviction and sentence, except based on claims

of ineffective assistance of counsel and prosecutorial misconduct. We therefore conclude

that the waiver is valid and enforceable and that the sentencing issues raised by counsel in

the Anders and supplemental briefs and Vang in the pro se brief fall squarely within the

scope of the waiver.

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Turning to Vang’s claims of prosecutorial misconduct, we review them for plain

error because Vang did not raise claims of prosecutorial misconduct in the district court.

United States v. Alerre,

(4th Cir. 2005). To succeed on a claim of

prosecutorial misconduct, the defendant bears the burden of showing that the prosecution

engaged in misconduct and that such conduct “prejudiced the defendant’s substantial rights

so as to deny the defendant a fair trial.”

We have reviewed the record and find no

improper conduct on the part of the prosecution that prejudiced Vang. We thus discern no

plain error warranting correction in this regard.

Next, 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,

(4th Cir. 2022). A district court must announce all nonmandatory

conditions of supervised release at the sentencing hearing. Rogers,

.

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 Singletary,

this court explained that a challenge to discretionary supervised release conditions 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.”

.

An inconsistency between the description of a condition of supervision announced

at sentencing and in the written judgment may be reversible Rogers error where the

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Government fails to explain the alleged inconsistency. See Cisson,

. In

imposing Vang’s supervised release conditions at sentencing, the district court ordered as

to discretionary condition 11 that he “work full time, at least 30 hours per week[,] at lawful

employment, actively seek such gainful employment, or be enrolled in a full-time

educational or vocational program unless excused by the probation officer” and “notify the

probation officer within 72 hours of any change regarding employment or education.” The

written judgment, by contrast, directs Vang to “work full time (at least 30 hours per week)

at lawful employment unless excused by the probation officer” and “notify the probation

officer within 72 hours of any change regarding employment.” In the context of this record,

however, it is clear the district court’s intention was to require that Vang work at lawful

employment, seek gainful employment, or be enrolled in an educational or vocational

program during the period of his supervised release. “The proper remedy is for the [d]istrict

[c]ourt to correct the written judgment so that it conforms with the sentencing court’s oral

pronouncements.” United States v. Morse,

, 29 n.1 (4th Cir. 1965).

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

have found no meritorious grounds for appeal. We therefore grant the Government’s

motion to dismiss the appeal in part, affirm in part, and remand in part to the district court

with instructions to correct the written judgment to conform with the court’s oral

pronouncement of discretionary condition 11, leaving the remainder of Vang’s sentence

undisturbed. This court requires that counsel inform Vang, in writing, of the right to

petition the Supreme Court of the United States for further review. If Vang requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel

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may move in this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Vang.

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.

DISMISSED IN PART, AFFIRMED IN PART, AND REMANDED IN PART WITH INSTRUCTIONS

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