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Fourth Circuit: Appeal Waiver Does Not Bar Challenge to Special Conditions Not Orally Pronounced in Open Court

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit held that a challenge to non-mandatory conditions of supervised release that were not orally pronounced in open court with the defendant present is not barred by an appeal waiver in a plea agreement.

When the U.S. District Court for the Eastern District of North Carolina sentenced Christopher Singletary to 13 years in prison plus several supervised release conditions, it failed to pronounce in open court with Singletary present two special conditions that were later in the written judgment. Singletary appealed, arguing that he was never actually sentenced to the special conditions because the district court failed to pronounce them orally in open court in Singletary’s presence, as required by law.

The first hurdle that Singletary had to overcome was his appeal waiver agreeing that he wouldn’t appeal his sentence. The Government admitted that the special conditions at issue were not announced in open court at sentencing but still sought to enforce the waiver because the special conditions were part of Singletary’s overall sentence. Singletary, however, disagreed and argued that those conditions were never “imposed” and thus were not subject to the appeal waiver.

In United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), the Fourth Circuit held that any sentence not pronounced orally in open court, with the defendant present, was not truly “imposed” on the defendant. The reason for this, as the Court explained, is because a defendant has the right to be present at sentencing, so a “sentence” must be announced in open court with the defendant present. Any part of the sentence that’s in the written judgment but not announced in court would be a “nullity,” requiring resentencing.

As an initial matter, the Court found that Rogers means that the special conditions not orally pronounced were not actually imposed as part of the sentence, and as a result, Singletary’s challenge was therefore not barred by the waiver. But before it remanded for resentencing, the Court took a moment to address the Government’s argument that the district court would simply orally pronounce the conditions on remand, so the Court should address Singletary’s other issue while on appeal (despite the fact it had just argued that the waiver barred any appeal).

The Court, however, rejected the Government’s assumption. “The requirement that a district court orally pronounce all non-mandatory conditions of supervised release is not a meaningless formality, but a critical part of the defendant’s right to be present at sentencing,” the Court chided. “If a condition is imposed in open court and in the defendant’s presence, then the defendant will have the opportunity to object.... And that opportunity is critical, because it allows defendants to explain why particular discretionary conditions—which may not be imposed unless an individualized assessment indicates that they are justified in light of the statutory factors—are not sufficiently tailored to their individual circumstances,” explained the Court.

The Court noted that with Singletary present in the court during sentencing and able to object, the district court may determine that the special conditions don’t apply to him. The Court stated that at least one of the conditions likely could not apply under the Guidelines, unless the court finds that it does “for some non-Guidelines reason.”

Accordingly, the Court vacated Singletary’s sentence and remanded for resentencing. See: United States v. Singletary, 984 F.3d 341 (4th Cir. 2021).

Writer’s note: There have been dozens of sentences vacated and remanded for resentencing in light of Rogers and Singletary in the Fourth Circuit. This is interesting because the rule in the Fourth Circuit for decades has been that the sentence imposed orally is the one that controls, but only when it conflicts with the written judgment. Most circuits have this same rule. Hopefully, other circuits to adopt the reasoning of these two cases and require that an imposed sentence is one pronounced in court with the defendant present. 

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Related legal case

United States v. Singletary



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