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Fourth Circuit Announces Discretionary Conditions of Supervision Must Be Orally Pronounced at Sentencing

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded for resentencing a case because the U.S. District Court for the Western District of North Carolina imposed 26 conditions of supervision as part of its written order, but had made no mention of supervision conditions at sentencing.

Cortez Lamar Rogers was one month into his term of post-release supervision in 2017 when he was busted during a controlled drug buy. He led officers on a dramatic high-speed chase, which ended after officers deployed spike strips to stop his vehicle.

In addition to his state charges, which included fleeing and eluding arrest, Rogers had his supervision revoked by the district court. He admitted to violating his supervision by committing a new crime, and he and the Government agreed on 24 months’ imprisonment at his sentencing for the violation.

The court then stated it would impose an “additional term of supervision of 12 months.” There was a brief discussion about whether Rogers needed drug or mental health treatment – both parties agreed he did not – and then the court ordered the proposed sentence imposed.

At no time during this hearing did the court mention any conditions of supervision, yet a full 26 conditions appeared in the written order of sentencing. Rogers appealed, claiming these conditions should be nullified because they were in conflict with the sentence orally pronounced at his sentencing hearing, and the oral sentence should be controlling.

The Fourth Circuit largely agreed, though it delivered an opinion that distinguished between “mandatory” and “non-mandatory” conditions and nullified only the latter.

The Court noted that 18 U.S.C. § 3583(d) enumerates four conditions “the court shall order” as part of any term of supervision. The Court stated that these are mandatory, apply to all offenders, and are noticed as part of the statute. The Court said there can be no error where the district court fails to mention these conditions because they are required whether they are pronounced orally or not.

The remaining 22 conditions, however, appear to be from the district court’s standing order that governs supervised release and are not mandatory under the law.

The Court first noted that the standard for review is de novo, not the plain error standard that usually applies where defendants fail to object to an error. The Court found that Rogers had no opportunity to know that these conditions would be applied, and thus he had no opportunity to object to their application. Fed. R. Crim. 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.”).

A defendant has the right to be present when he is sentenced. Fed. R. Crim. P. 43(a)(3). District courts in the Fourth Circuit uphold this right by oral pronouncement at a sentencing hearing. United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001). Since defendants are not present when the written judgment is entered, the oral pronouncement is controlling. United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc).

The Fourth Circuit announced that district courts are required to either read the conditions aloud at sentencing or incorporate them from an earlier document made available to the defense prior to sentencing. This will give defendants an opportunity to object to any condition the defense believes is not derived from the court’s “individualized assessment of the defendant and the [statutory] factors.” Quoting United States v. Wroblewski, 781 Fed. App’x. 158 (4th Cir. 2019).

Indeed, the Court noted it would have been required to vacate Rogers’ sentence regardless of how it instructed courts to proceed because, “Many of the discretionary conditions listed in Rogers’ written judgement are recommended by the Guidelines only under circumstances not present in this case or are not recommended by the Guidelines at all.”

Accordingly, the Court reversed Rogers’ sentence and remanded to the district court for resentencing in accordance with its ruling. See: United States v. Rogers, 961 F.3d 291(4th Cir. 2020).

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Related legal case

United States v. Rogers



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