Case Number: 22-7081

Judge: Before HARRIS and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Plaintiff's Attorney: Thomas Ernest Booth

Defendant's Attorney: Daniel Baker McIntyre, III

Description: Defendant Daniel N. Kemp, Sr., was charged with nine counts of sexually abusing his adopted children. Pursuant to an agreement with the government, he pleaded guilty to one count of aggravated sexual abuse, and the remaining charges were dismissed. The district court sentenced Kemp to life imprisonment – a term within the Sentencing Guidelines range adopted by the court – and to a lifetime term of supervised release. Kemp appealed, and his appointed counsel filed an Anders brief raising two issues but concluding that the appeal was without merit. See Anders v. California, 386 U.S. 738 (1967). After this court ordered supplemental briefing to address additional issues regarding Kemp’s conviction and sentence, the government asked that we dismiss Kemp’s appeal as untimely. We conclude, however, that the government has forfeited the timeliness issue and we therefore reach the merits of Kemp’s appeal. For the reasons given below, we affirm Kemp’s conviction. But because Kemp’s written judgment includes discretionary conditions of supervised release that were not orally pronounced at sentencing, we follow our usual practice, see United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), vacating Kemp’s sentence and remanding for resentencing. I. A. As the district court emphasized at sentencing, this case arises from very disturbing facts. While Daniel Kemp was serving in the United States Army in New York, he and his wife adopted six children. Years later, with Kemp now stationed in North Carolina, it was 4 revealed that Kemp had been forcing his adopted children to engage in sexual acts at their home. The investigation began when one of Kemp’s children told her teacher and other school officials of the sexual abuse; after that, several of Kemp’s children reported their own abuse to government investigators, sometimes in graphic terms. Investigators also seized incriminating materials from Kemp’s electronic devices and uncovered DNA evidence corroborating the children’s reports of sexual assaults and abuse. Kemp was charged with nine criminal counts related to the sexual abuse of his children. He entered into a plea agreement with the government under which he pleaded guilty to one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 7, 2241(a), stemming from occasions when Kemp forced his youngest child to perform sex acts in the basement of their house and the child’s bedroom. In exchange, the government dismissed the other eight counts against Kemp. Kemp’s plea agreement set out the statutory sentencing range for his § 2241(a) conviction, specifying that the offense carried a maximum prison term of life and no minimum term. The agreement also put Kemp on notice of a maximum supervised release term of life, a maximum fine of $250,000, and an obligation to pay restitution to all his victims, including those related to the dismissed charges. Finally, the agreement included a broad appeal waiver under which Kemp waived his right to appeal his conviction and sentence on any ground, reserving only the right to challenge a sentence that exceeded the advisory Sentencing Guidelines range as established at sentencing or to seek relief for ineffective assistance of counsel or prosecutorial misconduct. 5 The district court conducted a plea colloquy with Kemp, see Fed. R. Crim. P. 11, advising him of his rights and the charges against him and confirming that Kemp was pleading guilty to one count of aggravated sexual abuse pursuant to a plea agreement with the government. After the prosecutor described the factual basis for the plea – the forcible sexual abuse of Kemp’s youngest child – the district court found that Kemp’s plea was voluntary and had the necessary factual basis, and it entered a judgment of guilty on the § 2241(a) charge. At sentencing, the district court adopted an advisory Sentencing Guidelines range of 360 months to life, as calculated by Kemp’s Presentence Report. After hearing Kemp’s allocution and six victim-impact statements and considering the sentencing factors set out in 18 U.S.C. § 3553(a), the court denied a requested downward departure and sentenced Kemp to life imtprisonment. The court also imposed a lifetime term of supervised release. Relevant here, the court did not orally pronounce the multiple discretionary conditions of supervised release that were included in Kemp’s written judgment. After a continuation to determine appropriate restitution, the judgment was amended to include $6,008,797 in restitution. B. Under Rule 4(b) of the Federal Rules of Appellate Procedure, a defendant in a criminal case must file a notice of appeal within 14 days of the entry of judgment. Fed. R. 6 App. P. 4(b)(1)(A)(i). Kemp’s amended judgment was entered on January 8, 2021. Kemp filed his notice of appeal on April 16, 2021, well outside that statutory period.1 This court appointed counsel for Kemp and issued a briefing order. That order set deadlines for Kemp’s opening brief, the government’s response brief, and Kemp’s reply brief. And it expressly warned the government that failure to file a “motion to dismiss within the time allowed for filing a response brief[] may result in waiver of defenses.” ECF No. 10 at 2. In connection with that notice, it cited our Local Rule 27(f), which provides that motions to dismiss on procedural grounds “should be filed within the time allowed for the filing of the response brief.” 4th Cir. R. 27(f)(2). The order then described additional procedures that apply to the filing of a defendant’s brief under Anders v. California, 386 U.S. 738 (1967), none of which bear on the filing of motions to dismiss. Kemp’s appointed counsel timely filed an Anders brief stating that there were no meritorious grounds for appeal but identifying as issues the district court’s calculation of Kemp’s Sentencing Guidelines range and whether Kemp’s counsel provided effective assistance before the district court. The government elected not to file a response brief. But on the day a response would have been due, consistent with the briefing order and Local Rule 27(f)(2), the government filed a motion to dismiss. In that motion, the 1 On March 22, 2021, Kemp filed with the district court a self-styled “Appeal Extension Request,” seeking an extension of time to file any motions. The district court denied the motion without prejudice. Because Kemp’s request was submitted more than two months after entry of judgment, outside the maximum 30-day extension permitted under the Federal Rules, see Fed. R. App. P. 4(b)(4), it does not affect the timeliness of Kemp’s appeal. 7 government sought dismissal on one and only one procedural ground, arguing that Kemp’s appeal was barred in part by his appeal waiver.2 After conducting an independent Anders review, this court ordered supplemental briefing on two issues outside the scope of Kemp’s appeal waiver: whether errors and omissions during Kemp’s plea colloquy cumulatively undermined the validity of his guilty plea; and whether the court’s failure to orally pronounce the discretionary conditions of Kemp’s supervised release constituted reversible error, see United States v. Singletary, 984 F.3d 341, 344–45 (4th Cir. 2021) (holding that such claims are not barred by a general waiver of appellate rights). Kemp timely filed a supplemental brief. The government then filed its response brief, addressing the identified claims on the merits and also asking, for the first time, that we dismiss Kemp’s appeal as untimely. II. A. We begin with the government’s request that we dismiss Kemp’s appeal on timeliness grounds. As explained below, we conclude that the government forfeited its right to invoke Rule 4(b)’s deadline when, in response to Kemp’s opening brief, it filed a 2 The government did not argue that Kemp’s appeal waiver foreclosed a Sixth Amendment ineffective assistance of counsel claim. But an appeal regarding the calculation of the Sentencing Guidelines range, the government argued, was precluded by the waiver. 8 motion to dismiss for one procedural reason – Kemp’s appeal waiver – but not another – timeliness – that was equally apparent from the record. Much of the background here is common ground. It is undisputed that Kemp filed his notice of appeal outside the 14 days allowed by Rule 4(b) of the Federal Rules of Appellate Procedure. The parties also agree that Rule 4(b) is not jurisdictional but is instead a “mandatory claim-processing rule.” United States v. Hyman, 884 F.3d 496, 498 (4th Cir. 2018). That makes Rule 4(b) “inflexible,” in that we must “strictly apply” the 14- day period if it is “timely raised.” Id. at 498–99. But it also means that Rule 4(b) is subject to waiver and forfeiture, and we will deem an invocation of Rule 4(b) “forfeited if the party asserting the rule waits too long to raise the point.” Id. at 498 (internal quotation marks omitted); see United States v. Oliver, 878 F.3d 120, 123–24 (4th Cir. 2017) (explaining that the government’s “fail[ure] to object promptly to an appeal’s untimeliness” generally constitutes forfeiture). What the parties dispute is whether the government “wait[ed] too long” here by failing to invoke Rule 4(b) within the time for filing a response to Kemp’s opening brief. After our decisions in Hyman and Oliver, this court revised Local Rule 27(f) to provide that motions to dismiss on procedural grounds “should be filed within the time allowed for the filing of the response brief.” 4th Cir. R. 27(f)(2). And as noted above, our initial briefing order set a deadline for a response brief and tied that deadline to the requirements of our local rule, notifying the government that failure to file a “motion to dismiss within the time allowed for filing a response brief[] may result in waiver of defenses.” ECF No. 10 at 2. From that, Kemp argues, it was clear that any motion to dismiss under Rule 4(b) 9 should have been filed within the time for responding to his Anders brief, and the government’s failure to meet that deadline forfeited its right to invoke Rule 4(b) now. See United States v. Turner, No. 19-4529, 2020 U.S. App. LEXIS 19407, at *1–2 (4th Cir. June 22, 2020) (unpublished order adopting this position and denying government’s motion to dismiss under Rule 4(b) for failure to timely move in response to defendant’s Anders brief). The government disagrees. In its view, expanded upon at oral argument, the Anders context for this case is critical. When an Anders brief is filed, the government may but need not file a response brief; if it chooses, it can “do nothing, allowing this court to perform the required Anders review” itself. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007). That is what happened here, the government says, and as a result, the deadline for a response brief in our initial briefing order – a response brief never filed – should not be treated as controlling under Local Rule 27(f)(2). Instead, what matters is that the government sought dismissal under Rule 4(b) in the only response brief it did file, and that it did so within the “time allowed for the filing of [that] response brief,” see 4th Cir. R. 27(f)(2), in our supplemental briefing order. We need not resolve here how Local Rule 27(f)(2) generally will apply in the Anders context. Because while it is true that the government may sit out an Anders brief, “do[ing] nothing” in response, see Poindexter, 492 F.3d at 271, that is not what happened here. Instead, the government did respond to the Anders brief, and it did so with the motion to dismiss on procedural grounds contemplated by Local Rule 27(f)(2), filed within the time for the response brief set out in the original scheduling order. The only thing it did not do was include in that motion, which rested exclusively on the defendant’s appeal waiver, the 10 different procedural ground – timeliness – on which it now asks us to dismiss this appeal. The government has provided no justification for this omission, and we can think of none; at the time the government filed its motion to dismiss, the timeliness issue would have been just as apparent from the record as the appeal-waiver problem. Under these circumstances, we conclude, the government has forfeited its right to invoke Rule 4(b) and to press its timeliness objection now. See Oliver, 878 F.3d at 123 (explaining that the government forfeits a Rule 4(b) claim when it fails to object on that ground “in either its merits brief or an earlier motion to dismiss”). We held in Oliverthat when the government does not promptly object to an untimely appeal, we must “assume that the [g]overnment wishes the court to decide the case on the merits.” See id. at 128. Our court made precisely that assumption here when the government filed its motion to dismiss on one procedural ground without raising the timeliness objection that was also apparent on the record. As a result, this court performed its own required independent review under Anders, devoting substantial time to identifying and ordering supplemental briefing on potential issues that fell outside the scope of Kemp’s appeal waiver. Permitting the government to invoke Rule 4(b) now would do a disservice to the efforts of this court and defense counsel, who justifiably assumed that the government’s motion to dismiss included all then-applicable procedural grounds on which the government wished to rely. Because we find that the government forfeited its right to invoke Rule 4(b) by failing to raise it in its earlier motion to dismiss, we move on to the merits of Kemp’s appeal. 11 B. 1. We begin with Kemp’s conviction. Kemp first argues that the district court’s plea colloquy failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in multiple respects, and that the cumulative effect of those errors was sufficient to undermine the validity of his guilty plea. Because Kemp “did not attempt to withdraw his guilty plea in the district court,” we review this claim for plain error only, see United States v. Lockhart, 947 F.3d 187, 191 (4th Cir. 2020) (en banc), and find no reversible error. Rule 11 outlines the requirements for a district court plea colloquy, designed to ensure that a defendant “understands the law of his crime in relation to the facts of his case, as well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62 (2002); see Fed. R. Crim. P. 11(b)(1). We agree with Kemp that this colloquy fell short in multiple respects. The court skipped over certain advisements of rights.

Outcome: For the reasons stated, we affirm Kemp’s judgment of conviction. We vacate Kemp’s sentence and remand for resentencing consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED After concluding that the two special conditions imposed on the criminal defendant were “procedurally unreasonable,” we remanded to the district court for further explanation. Id. at 677. We did not blue pencil the conditions away. We did not order a full sentencing. Instead, we cured a procedural error with a proportionate remedy. In my view, it is time to rethink our approach to the remedy for Rogers-Singletary errors. A limited remand would provide flexibility to the district court judge while fully protecting the defendant’s right to be present.

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