United States v. McLeod

• Decision Date: 27 August 2020
• Docket Number: No. 18-6423,18-6423
• Citation: 972 F.3d 637
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. George MCLEOD, III, a/k/a Pimp Stick Quezzy, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

972 F.3d 637

UNITED STATES of America, Plaintiff - Appellee,

v.George MCLEOD, III, a/k/a Pimp Stick Quezzy, Defendant - Appellant.

No. 18-6423

United States Court of Appeals, Fourth Circuit.

Submitted: May 29, 2020

Decided: August 27, 2020

Maya M. Eckstein, Joshua Hanbury, Richmond, Virginia, Nicholas D. Stellakis, HUNTON ANDREWS KURTH LLP, Boston, Massachusetts, for Appellant. Sherri A. Lydon, United States Attorney, T. DeWayne Pearson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Dismissed by published opinion. Judge Motz wrote the opinion, in which Chief Judge Gregory joined. Judge Agee wrote an opinion concurring in the judgment.

DIANA GRIBBON MOTZ, Circuit Judge:

George McLeod III pleaded guilty to two counts related to his role in a commercial sex operation and received a sentence of 70 months’ imprisonment and five years’ supervised release. As a condition of supervised release, the district court required that he register as a sex offender. McLeod did not appeal any portion of his sentence. Upon completion of his term of imprisonment, McLeod moved, pursuant to 18 U.S.C. § 3583(e)(2), to modify the conditions of his supervised release, contending that the sex offender registration condition was illegal as applied to his offense of conviction. When the district court denied the motion, he noted this appeal. For the reasons that follow, we dismiss the appeal.

I.

In 2013, the Government charged McLeod in a multicount second superseding indictment, alleging that he operated an escort service that offered women for commercial sex and, as part of his activities, recruited a minor to cross state lines to work for him. McLeod assertedly obtained false identification for the minor to facilitate her employment at a strip club, where she solicited clients for sex.

Pursuant to a written agreement, McLeod pleaded guilty to one count of interstate transportation for the purpose of prostitution (Count 7) and one count of aggravated identity theft (Count 6).¹ The plea agreement made no reference to a requirement that McLeod register as a sex offender.

During the plea colloquy, the Government noted that McLeod's plea "to Count Seven [interstate transportation for the purpose of prostitution] may require registry on the sex offender registry." The district court then confirmed that McLeod understood that "it is possible that if you plead guilty, you may have to register as a sex offender" pursuant to the Sex Offender Registration and Notification Act (SORNA).

At sentencing, the court noted that McLeod "had indicated earlier you might want to challenge the applicability of that particular sex offender registration and supervised release period." It recognized that, at the plea colloquy, it had not correctly advised McLeod of either the length of supervised release or properly counseled him that he would be required to register as a sex offender. The court further stated that, after the presentence report disseminated the correct information, the court notified counsel of these issues. Upon explaining the sex offender registration requirement, the court addressed McLeod directly:

So, let me ask you, Mr. McLeod, those two issues that weren't correctly stated at the time of your guilty plea — one was that that supervised release period range is from a minimum of five years to a maximum of life, and [the other] that the sex offender registration applies to this conviction, you have now been told that, is it your wish to go forward and affirm your guilty plea, or do you wish to withdraw your guilty plea?

McLeod answered that he wished to affirm the guilty plea and verified he had spoken with counsel about the matter. The district court then sentenced McLeod to 70 months’ imprisonment and five years’ supervised release. As a condition of supervised release, the court required that McLeod register as a sex offender.

In 2018, after being released from prison but while still on supervised release, McLeod filed a pro se motion pursuant to 18 U.S.C. § 3583(e)(2) asking the district court to eliminate the requirement that he register as a sex offender because, he argued, the offense for which he was convicted did not qualify as a sex offense as defined by SORNA. The district court denied the motion on the merits. Agreeing with McLeod that his conviction on Count 7 (interstate transportation for the purpose of prostitution) was not a sex offense requiring registration because it involved consenting adults, the court explained that McLeod nonetheless was required to register based on his conviction on Count 6 (aggravated identity theft), because that crime constituted a "specified offense against a minor." 34 U.S.C. § 20911(5)(A)(ii) (defining "sex offense" to include "a criminal offense that is a specified offense against a minor"). McLeod timely noted this appeal.

II.

McLeod's plea agreement contains a provision waiving "the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceedings under 28 U.S.C. § 2255." The Government contends this waiver bars our consideration of this appeal. Whether a defendant's waiver is enforceable presents a question of law we review de novo. United States v. Manigan , 592 F.3d 621, 626 (4th Cir. 2010).

We generally enforce an appeal waiver if the Government timely seeks enforcement of a waiver that it has not breached, the waiver is valid (that is, the waiver is the result of a knowing and intelligent decision to forgo the right to appeal), and the challenge is within the scope of the waiver. See United States v. Blick , 408 F.3d 162, 168–69 (4th Cir. 2005) ; see also United States v. Attar , 38 F.3d 727, 731–33 (4th Cir. 1994).

McLeod argues that his challenge is not within the scope of the waiver because it assertedly does not encompass motions under 18 U.S.C. § 3583(e)(2). The Government argues that McLeod's challenge clearly is within the scope of McLeod's broad waiver of his right to "contest either the conviction or the sentence in any direct appeal or other postconviction action" (emphases added).

Even assuming McLeod's challenge lies within in the scope of the waiver, however, we cannot enforce it. This is so because even "[a]n express knowing waiver will not bar appeal of a sentence when the sentence was ... imposed in excess of the maximum penalty provided by law." United States v. Brown , 232 F.3d 399, 403 (4th Cir. 2000) ; see also United States v. Beck , 957 F.3d 440, 445 (4th Cir. 2020) ; United States v. Marin , 961 F.2d 493, 496 (4th Cir. 1992).

Thus, in United States v. Broughton-Jones , 71 F.3d 1143 (4th Cir. 1995), we refused to enforce a waiver when the defendant challenged her restitution order, imposed pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3663 – 64 (VWPA), on the ground that the VWPA did not permit restitution for her offense of conviction. We held, "[b]ecause a restitution order imposed when it is not authorized by the [underlying statute] is no less ‘illegal’ than a sentence of imprisonment that exceeds the statutory maximum, appeals challenging the legality of restitution orders are similarly outside the scope of a defendant's otherwise valid appeal waiver." Id. at 1147. A restitution order, like supervised release, is a part of a defendant's criminal sentence. See United States v. Grant , 715 F.3d 552, 554 (4th Cir. 2013).

Here, McLeod maintains that the district court exceeded its authority under SORNA by requiring registration based on his offense, just as Broughton-Jones asserted that the district court exceeded its authority under the VWPA in imposing a restitution order based on her offense. We can see no difference for these purposes between a restitution order that is allegedly unauthorized by statute and a registration requirement that is allegedly unauthorized by statute. We so held in an unpublished opinion. See United States v. Sims , 410 F. App'x 666, 669–70 (4th Cir. 2011) (refusing to enforce an appeal waiver where a defendant alleged that requiring him to register as a sex offender was not authorized by law given his offense). As in that case, Broughton-Jones controls. Thus, we cannot enforce the appeal waiver.

III.

We turn to the Government's contention that we must dismiss McLeod's appeal because a motion pursuant to 18 U.S.C. § 3583(e)(2) cannot be used to challenge the terms or conditions of supervised release on the ground that they are unlawful.

A.

Section 3583 concerns supervised release, a post-incarceration program intended "to assist individuals in their transition to community life." United States v. Johnson , 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). When a sentencing court considers whether to impose a term of supervised release, and the duration and conditions of that release, § 3583(c) instructs the court to employ a slightly modified version of the general "framework for sentencing decisions" established by § 3553(a). United States v. Burden , 860 F.3d 45, 56 (2d Cir. 2017). Section 3583(c) specifies that the court must consider the factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). When a district court considers whether to modify or revoke a condition of supervised release, § 3583(e) authorizes the court to consider the same § 3553(a) factors enumerated in § 3583(c).

These factors are: the circumstances of the crime; the history and characteristics of the defendant; the need for deterrence; protection of the public; provision of educational or vocational training, medical care, or other treatment; the kinds of sentence and the sentencing range established by the Sentencing Commission and Congress; the relevant policy statements of the U.S. Sentencing Commission; the need to avoid disparities among defendants with similar records and similar conduct of...