United States v. Alvin Pickett ( 2021 )

ON PETITON FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4844
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN MARION PICKETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cr-00143-D-1)
Submitted: November 18, 2021 Decided: December 3, 2021
Before THACKER and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit
Judge.
Dismissed in part, affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alvin Marion Pickett pled guilty, pursuant to a written plea agreement, to two counts
of brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c). The district court imposed a 246-month sentence, to be followed by 5 years of
supervised release. On appeal, Pickett’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Pickett filed a supplemental pro se brief. The
Government moved to dismiss the appeal as barred by the appellate waiver included in
Pickett’s plea agreement. We dismissed in part and affirmed in part. See United States v.
Pickett, 833 F. App’x 392 (4th Cir. 2021) (No. 18-4844).
Pickett now petitions this court for panel rehearing in light of United States v.
Rogers, 961 F.3d 291, 296-300 (4th Cir. 2020) (holding that district court must announce
all nonmandatory conditions of supervised release at sentencing hearing in order to “give[]
defendants a chance to object to conditions that are not tailored to their individual
circumstances”), and United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021)
(explaining that a Rogers challenge falls outside scope of plea waiver because “the heart
of a Rogers claim is that discretionary conditions appearing for the first time in a written
judgment . . . have not been ‘imposed’ on the defendant”). Pickett’s written criminal
judgment contained “mandatory” and “standard” conditions of supervised release, as well
as “additional standard conditions of supervision.” The district court did not announce two
of the additional standard conditions—requiring that Pickett “shall not incur new credit
charges or open additional lines of credit without approval of the probation office” and that
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he “shall provide the probation office with access to any requested financial
information”—at sentencing.
Because these two financial conditions were not orally pronounced or otherwise
incorporated at sentencing but rather “appear for the first time in a subsequent written
judgment,” Pickett “has not been sentenced to those conditions, and a remand for
resentencing is required.” Singletary, 984 F.3d at 344. We therefore grant Pickett’s
petition for panel rehearing. We grant the Government’s motion to dismiss in part and
dismiss the appeal as to all issues within the scope of Pickett’s valid appellate waiver, and
we otherwise affirm Pickett’s convictions. However, we vacate his sentence and remand
for resentencing.
This court requires that counsel inform Pickett, in writing, of the right to petition
the Supreme Court of the United States for further review. If Pickett requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Pickett. 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.
DISMISSED IN PART,
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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