United States v. Alan Andersen ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4148
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALAN SIGFRED ANDERSEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Terrence W. Boyle, District Judge. (2:19-cr-00001-BO-1)
Submitted: January 25, 2021 Decided: February 2, 2021
Before WILKINSON and MOTZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.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. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, 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Unpublished opinions are not binding precedent in this circuit.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:
Alan Sigfried Andersen pled guilty, pursuant to a written plea agreement, to
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). * The district
court sentenced Andersen to 120 months’ imprisonment to be followed by a supervised
release term of life. On appeal, Andersen raises several challenges to the terms of his
supervised release. The Government has moved to dismiss the appeal as barred by the
waiver of appellate rights provision in Andersen’s plea agreement. For the reasons that
follow, we deny the Government’s motion to dismiss the appeal, vacate Andersen’s
sentence, and remand for resentencing.
In its written criminal judgment, the district court added several nonmandatory
conditions of supervised release that it had not pronounced at the sentencing hearing. In
United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), we held “that all non-mandatory
conditions of supervised release must be [orally] announced at a defendant’s sentencing
hearing.” Id. at 296. 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 [18 U.S.C.] § 3583(d).” Id. at
300. Because the court failed to impose the nonmandatory conditions at sentencing, we
conclude that the court erred by including them in the written criminal judgment.
*
We bring to the district court’s attention an error in the criminal judgment, which
incorrectly lists the statute of conviction as 18 U.S.C. § 2252(a)(4), (b)(2).
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In addition, we reject the Government’s contention that Andersen’s waiver of the
right to appeal his sentence forecloses his challenge to the nonmandatory conditions of
supervised release. Because the district court did not properly impose the contested
conditions, they were never part of Andersen’s sentence; consequently, his appeal waiver
is inapplicable. See United States v. Singletary, __ F.3d __, __, No. 19-4381, 2021 WL
97218, at *3-4 (4th Cir. Jan. 12, 2021).
Where, as here, a district court fails to include in its oral pronouncement at the
sentencing hearing nonmandatory conditions of supervised release that it subsequently
includes in the written judgment, “the remedy . . . is to vacate the sentence and remand for
the district court to resentence the defendant.” Id. at *4. Thus, “[w]e need not and should
not proceed to further reach [Andersen’s] additional arguments about his prior sentencing
or the validity of [nonmandatory conditions of supervised release] to which he was never
sentenced.” Id. at *3.
Accordingly, we deny the Government’s motion to dismiss, vacate Andersen’s
sentence, and remand for further proceedings in light of Rogers and Singletary. 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.
VACATED AND REMANDED
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