United States v. Antreal Henderson ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4282
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTREAL HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:20-cr-00334-BO-2)
Submitted: December 30, 2021 Decided: January 13, 2022
Before MOTZ, WYNN, and HARRIS, Circuit Judges.
Affirmed in part, vacated and remanded in part by unpublished per curiam opinion.
Matthew Nis Leerberg, Raleigh, North Carolina, Renee Sheyko, FOX ROTHSCHILD
LLP, Denver, Colorado, for Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Joshua L. Rogers, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antreal Henderson appeals the 27-month sentence imposed following his guilty plea
to conspiracy to commit bank fraud, and bank fraud and aiding and abetting, in violation
of 18 U.S.C. §§ 2, 1344, 1349. Specifically, Henderson argues that the district court erred
in failing to rule on his objection to the application of an enhancement under the Sentencing
Guidelines based on the number of victims of the offense, in failing to adequately explain
the chosen sentence, and in failing to sufficiently consider the 18 U.S.C. § 3553(a) factors
in imposing the sentence. Henderson also asserts that the court failed to orally pronounce
all discretionary conditions of supervised release that were included in the written
judgment. The Government, conceding that the sentencing court erred by failing to
pronounce all discretionary conditions of supervised release that were included in the
written judgment, has moved to vacate Henderson’s sentence and remand for resentencing
pursuant to United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) and United States v.
Singletary, 984 F.3d 341 (4th Cir. 2021).
We review de novo whether the sentence imposed in the written judgment is
consistent with the district court’s oral pronouncement of the sentence. Rogers, 961 F.3d
at 296. Here, the parties agree that the district court’s failure to orally pronounce the
discretionary conditions of supervised release was error, as “all non-mandatory conditions
of supervised release must be announced at a defendant’s sentencing hearing,” either
directly or through express incorporation by reference. Id. at 296, 299-300. We therefore
agree that Henderson’s sentence must be vacated and the case remanded for resentencing,
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regardless of the appellate waiver included in his plea agreement. See Singletary, 984 F.3d
at 344-46.
Henderson has requested that we reassign this case on remand to a different district
court judge, but he has alleged no express bias by the sitting judge. Reassignment is only
warranted in “unusual circumstances,” none of which exist here. United States v. North
Carolina, 180 F.3d 574, 582-83 (4th Cir. 1999) (internal quotation marks omitted). We
have examined the record and found no express bias, nor have we seen any indication that
the district court judge would jeopardize the appearance of justice or fundamental fairness
of any continued proceedings in this case. See United States v. Nicholson, 611 F.3d 191,
217 (4th Cir. 2010). Accordingly, we decline to reassign the case on remand.
We therefore affirm Henderson’s convictions, deny the Government’s motion to
dismiss the appeal based on the appeal waiver, vacate Henderson’s sentence, and grant the
Government’s motion to remand for resentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED AND REMANDED IN PART
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