United States v. Rogers

• Decision Date: 02 June 2020
• Docket Number: No. 19-4366,19-4366
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Cortez Lamar ROGERS, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

961 F.3d 291

UNITED STATES of America, Plaintiff - Appellee,

v.Cortez Lamar ROGERS, Defendant - Appellant.

No. 19-4366

United States Court of Appeals, Fourth Circuit.

Submitted: March 26, 2020

Decided: June 2, 2020

Anthony Martinez, Federal Public Defender, Melissa S. Baldwin, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge Quattlebaum joined.

PAMELA HARRIS, Circuit Judge:

While serving the supervised-release portion of a federal sentence, Cortez Lamar Rogers eluded arrest for a drug offense by leading police officers on a high-speed car chase. After a hearing, the district court revoked Rogers's supervised release and imposed a revocation sentence that included 12 months of supervised release. Only later, when the written judgment issued, did the district court identify 26 conditions on Rogers's new term of supervised release.

On appeal, Rogers argues that a subset of those conditions – the 22 that were not mandated by statute, but instead imposed at the discretion of the court – are inconsistent with his oral sentence and therefore void. We agree. The district court was required to impose any discretionary conditions of supervised release orally, at Rogers's sentencing, but failed to do so. Accordingly, we vacate Rogers's sentence and remand for resentencing.

I.

The events that give rise to this appeal began several years ago, when Rogers pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to a term of imprisonment followed by three years of supervised release. As a condition of that supervised release, Rogers was prohibited from committing another federal, state, or local crime.

Rogers violated that condition in 2017, approximately a month after his supervised release began, when deputies of the Catawba County Sheriff's Office in North Carolina attempted a controlled buy of heroin. Attempting to evade arrest, Rogers fled the scene and led police on a dramatic high-speed car chase, which ended only when "spike strips" were used to blow out the tires on Rogers's car. Rogers was charged with offenses including fleeing and eluding arrest – for which he later was convicted and sentenced in state court – and a federal probation officer petitioned the district court to revoke Rogers's supervised release.

The district court held a supervised-release revocation hearing to consider that petition. At the hearing, Rogers admitted to violating the condition of his supervised release that prohibited him from committing a new criminal offense, and he and the government jointly recommended a revocation sentence of 24 months’ imprisonment. The government also asked that another term of supervised release follow Rogers's imprisonment. Rogers objected on the ground that supervised release would be duplicative of supervision imposed as part of his state sentence.

After hearing the parties’ arguments, the district court pronounced its sentence. With respect to imprisonment, it noted Rogers's criminal history, his involvement in an "undercover drug deal gone bad," and the dangerous nature of the car chase, and concluded that the 24-month sentence recommended by the parties was "very reasonable." J.A. 33. Then, turning to supervised release, the court concluded that "additional supervision [was] appropriate," in part because of Rogers's "serious criminal history" and in part because only federal, as opposed to state, supervision would give the court continued jurisdiction over Rogers. J.A. 34.

The district court then summarized the sentence it was contemplating: "Termination of supervision; commitment to custodial authorities for a term of 24 months; and then an additional term of supervision of 12 months." J.A. 34–35. After checking to see whether Rogers would require drug or mental-health treatment – which both Rogers and the government deemed unnecessary – the court officially pronounced its sentence: "[T]he sentence as proposed is hereby ordered imposed." J.A. 39. At no point did the court specify or refer to any conditions that would apply to Rogers's new term of supervised release.

Weeks later, and after Rogers had filed a motion asking it to reconsider its decision to impose supervised release, the district court entered a written judgment memorializing its sentence. In addition to specifying the length of Rogers's terms of imprisonment and supervised release, the written judgment lists 26 conditions on Rogers's supervised release. Four are labeled "mandatory conditions," J.A. 51, and are required by the supervised-release statute, 18 U.S.C. § 3583(d) : that Rogers not commit new crimes, not possess controlled substances, cooperate in DNA collection, and submit to drug testing. See 18 U.S.C. § 3583(d) (enumerating conditions that "[t]he court shall order"). The remaining 22 conditions are non-mandatory and may be imposed at the district court's discretion. See id. (the court "may order ... any other condition it considers to be appropriate" after consideration of certain factors). The judgment identifies these 22 discretionary conditions as "standard conditions ... adopted by this court," J.A. 51, apparently in reference to a Western District of North Carolina standing order that governs supervised release and lists the same 22 conditions. See Standard Conditions of Probation and Supervised Release, No. 3:16-mc-00221 (W.D.N.C. Dec. 8, 2016) ("Standing Order").

After the district court denied his motion to reconsider, Rogers noted this timely appeal, challenging the 22 "standard conditions" listed in the written judgment as inconsistent with the oral sentence pronounced at his sentencing hearing.

II.

This is an unusual sentencing appeal. Rogers's argument is not that his supervised-release sentence is procedurally or substantively unreasonable. Instead, he makes a more elementary contention: that the written judgment's 22 "standard" conditions are not part of his sentence because the district court did not pronounce them orally at his sentencing hearing. Given the conflict between his oral sentence and the written judgment, Rogers argues, the oral sentence prevails, rendering the challenged conditions nullities and necessitating a remand for resentencing.

The government argues that we may review this claim for plain error only, as Rogers did not object to the challenged conditions before the district court. We disagree. The plain-error standard applies only if a defendant has an opportunity to object in the trial court. See Fed. R. Crim. P. 51(b) ("If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice the party."). Here, nothing occurred at sentencing that would have alerted Rogers to the possibility that his written judgment might include unmentioned conditions of supervised release. Instead, Rogers's claim – that the written judgment is inconsistent with his oral sentence – arose, almost by definition, only after his sentencing hearing and after the judgment was entered and final. In such cases, we – like other courts of appeals – allow a defendant to appeal the allegedly inconsistent judgment without an objection in the district court. See, e.g. , United States v. Miller , 341 F. App'x 931, 932 (4th Cir. 2009) (applying plain-error review only "[t]o the extent the contested ... condition[s] w[ere] imposed" at sentencing); United States v. Sepulveda-Contreras , 466 F.3d 166, 171 (1st Cir. 2006) (declining to apply plain-error review to an inconsistent-judgment claim).

Accordingly, we review the consistency of Rogers's oral sentence and the written judgment de novo, "comparing the sentencing transcript with the written judgment to determine whether an error occurred as a matter of law." United States v. Johnson , 765 F.3d 702, 710 (7th Cir. 2014).

A.

We begin with the threshold question of whether the district court was required to orally pronounce the 22 "standard" but discretionary conditions of Rogers's supervised release at sentencing. In accord with the Fifth and Seventh Circuits, we conclude that it was, and that all non-mandatory conditions of supervised release must be announced at a defendant's sentencing hearing. See United States v. Anstice , 930 F.3d 907, 910 (7th Cir. 2019) ; United States v. Diggles , 957 F.3d 551, 559 (5th Cir. 2020) (en banc).

This conclusion flows naturally from a fundamental precept: A defendant has the right to be present when he is sentenced. See Fed. R. Crim. P. 43(a)(3) ("[T]he defendant must be present at ... sentencing."). In order to protect that right, we require a district court to orally pronounce a defendant's sentence in the defendant's physical presence. See United States v. Lawrence , 248 F.3d 300, 303–04 (4th Cir. 2001). And because a defendant is "present at the announcement of the sentence, but not when the judgment is later entered," United States v. Handakas , 329 F.3d 115, 117 (2d Cir. 2003), it follows that if a conflict arises between the orally pronounced sentence and the written judgment, then the oral sentence controls. See Diggles , 957 F.3d at 555 ; see also id. at 557 ("Including a sentence in the written judgment that the judge never mentioned when the defendant was in the courtroom is tantamount to sentencing the defendant in absentia ." (internal quotation omitted)). The primacy of the oral sentence over the written judgment is well established, in our circuit and others, and no party to this case disputes it. See , e.g. , United States v. Morse , 344 F.2d 27, 29 n.1 (4th Cir. 1965) ("To the extent of any conflict between [a] written...