United States v. Justin Pellak ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN ERVIN PELLAK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Richard E. Myers, II, Chief District Judge. (7:20-cr-00118-M-1)
Submitted: August 19, 2021 Decided: August 24, 2021
Before GREGORY, Chief Judge, FLOYD, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. G. Norman Acker, III, Acting United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, David A. Bragdon, 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Unpublished opinions are not binding precedent in this circuit.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:
Justin Ervin Pellak pled guilty, without a plea agreement, to conspiracy to distribute
and possess with intent to distribute 50 grams or more of methamphetamine and a quantity
of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; possession with intent to
distribute 50 grams or more of methamphetamine and a quantity of heroin, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
sentenced Pellak to a total term of 248 months’ imprisonment, followed by 5 years of
supervised release.
In announcing the conditions that would govern Pellak’s term of supervised release,
the district court stated that “after careful consideration of the provisions of [18 U.S.C.
§] 3583(d) and the sentencing factors outlined in [18 U.S.C. §] 3553(a), the defendant shall
comply with the mandatory and standard conditions of supervision as adopted in the
Eastern District of North Carolina . . . . ” (J.A. 104). 1 The written criminal judgment
included two “additional standard conditions of supervision,” which required that Pellak
“not incur new credit charges or open additional lines of credit without approval of the
probation office” and that he “provide the probation office with access to any requested
financial information.” (J.A. 12).
1
“J.A.” refers to the joint appendix filed by the parties in this appeal.
2
On appeal, Pellak argues that his sentence must be vacated because the district court
did not pronounce the two financial “additional standard conditions of supervision” at
sentencing. A district court must announce all nonmandatory conditions of supervised
release at the sentencing hearing. United States v. Rogers, 961 F.3d 291, 296-99 (4th Cir.
2020). This “requirement . . . gives defendants a chance to object to conditions that are not
tailored to their individual circumstances and ensures that they will be imposed only after
consideration of the factors set out in § 3583(d).” Id. at 300. However, as the Government
emphasizes, a court may satisfy this obligation “through incorporation–by incorporating,
for instance, all Guidelines ‘standard’ conditions when it pronounces a supervised-release
sentence, and then detailing those conditions in the written judgment.” Id. at 299; see
United States v. Singletary, 984 F.3d 341, 345-46 (4th Cir. 2021) (acknowledging
incorporation but noting that sentencing court’s reference to “standard conditions” did not
include the same financial conditions challenged because the conditions were not included
in the Sentencing Guidelines’ standard conditions, which is not the case here).
Here, unlike in Rogers and Singletary, the district court announced that Pellak
would be expected to comply with the “standard conditions of supervision as adopted in
the Eastern District of North Carolina.” At the time of Pellak’s sentencing hearing in
January 2021, the Eastern District of North Carolina had adopted a standing order
establishing that “any reference in the pronouncement of a sentence to the ‘Standard
Conditions of Supervision as adopted in the Eastern District of North Carolina’ shall be
deemed to refer to and incorporate” certain conditions of supervised release, including:
3
You must not incur new credit charges or open additional lines of credit
without the approval of the probation officer. You must provide the
probation officer with access to any requested financial information.
In re Mandatory and Standard Conditions of Probation and Supervised Release, 20-SO-8
(E.D.N.C. June 25, 2020). 2 Thus, the district court “compl[ied] with the pronouncement
requirement by expressly incorporating . . . a court-wide standing order that lists certain
conditions of supervised release,” and the “later-issued written judgment that detail[ed]
those conditions may be construed fairly as a ‘clarification’ of an otherwise ‘vague’ oral
pronouncement.” Rogers, 961 F.3d at 299.
Accordingly, we find that the district court did not err in including the two
challenged financial conditions of supervised release in the written judgment. We therefore
affirm the district court’s judgment. 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
2
The Eastern District of North Carolina adopted a new standing order in May 2021,
which supersedes 20-SO-8 and omits the two challenged conditions. See In re Mandatory
and Standard Conditions of Probation and Supervised Release, 21-SO-5 (E.D.N.C. May
6, 2021). However, at the time the district court imposed Pellak’s sentence, it incorporated
the then-operative standing order, including the two challenged conditions, by reference.
4