United States v. Donta Oliver ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4500
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONTA MONTRICE OLIVER,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:19−cr−00188−FDW−DSC−1)
Argued: December 7, 2021 Decided: April 26, 2022
Before DIAZ and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion. Senior Judge Traxler wrote an
opinion concurring in the result.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Donta Oliver pleaded guilty to unlawful possession of a firearm. Over Oliver’s
objection, the district court enhanced his sentence because he possessed the firearm in
connection with two other felonies—assault with a deadly weapon and discharging a
weapon into occupied property. The court sentenced Oliver to 70 months’ imprisonment
and three years’ supervised release, imposing the district court’s standard conditions.
On appeal, Oliver challenges the enhancement and four of the supervised-release
conditions. For the enhancement, he argues the court erred in two ways: first by shifting
the burden of proof on self-defense, and second by finding no evidence that others at the
scene had firearms, thus rejecting his self-defense claim. As to the conditions, he asserts
that the court failed to adequately explain its reasons for imposing them.
We vacate the judgment and remand for resentencing.
I.
A.
Oliver and his girlfriend, LaToya Stone, visited a nightclub on Halloween. While
at the club, Kurt Hendrix, a gang member, repeatedly approached Stone (whom Hendrix
had once dated) and touched her. Stone told Hendrix that she was with her boyfriend, but
Hendrix continued his advances. At one point, Hendrix touched Stone while she was
sitting alone at the bar. As she walked to Oliver, Hendrix left. He returned soon after and
began shouting at Oliver.
3
A security guard got between Hendrix and Oliver and told Hendrix to calm down.
He refused. The guard then escorted Hendrix and Oliver to the front door. As they exited,
three members of Hendrix’s gang attacked the security guard. A brawl ensued. When one
of the attackers, Akim Smith, pulled a gun, the guard fled. Acting on the club owner’s
advice, Oliver escaped through the back door. Hendrix and his gang, apparently unaware
that Oliver had left, waited for him out front.
When Stone discovered that Oliver was no longer at the club, she left through the
front door. After Hendrix cursed at her, she drove off in her car and called Oliver. The
two agreed to rendezvous at a nearby parking lot. Smith and one other gang member
pursued Stone by car. Hendrix, meanwhile, followed on foot.
As Oliver got into Stone’s car, he saw Hendrix walking down the street—a beer
bottle in hand—and Smith’s car following them. Oliver grabbed a gun from the car.
Footage from a nearby security camera depicts him getting out of Stone’s car and running
around an adjacent building. A different camera’s footage shows a puff of smoke from a
gunshot. 1 Oliver fired five shots at Smith’s car, striking Smith in the thigh. Oliver then
ran back to Stone’s car, and the pair drove off. 2
1
That footage also shows two streaks of light moving rapidly toward Oliver. Def.’s
Ex. 1 at 2:45.
Officers later recovered the firearm, a CZ75B 9-millimeter pistol, from Oliver’s
2
home. They also recovered five 9-millimeter shell casings from the scene.
4
B.
A grand jury in the Western District of North Carolina indicted Oliver for possession
of a firearm by a felon. He pleaded guilty.
The presentence investigation report calculated Oliver’s total offense level as 23.
The report started with a base offense level of 20 because of Oliver’s prior felony
conviction. It then applied a 2-level enhancement because the offense involved a stolen
firearm, a 4-level enhancement because Oliver possessed a firearm in connection with
another felony offense, and a 3-level reduction because he accepted responsibility.
Oliver objected to the 4-level enhancement, which listed assault with a deadly
weapon and discharging a weapon into occupied property as the connected felonies. He
said those cross-references were inappropriate because he acted in self-defense.
Supporting his assertion of self-defense, Oliver claimed that the gang members were
“armed with bottles, armed with knives, and armed with at least two firearms.” J.A. 337.
He described the event as “a shootout.” J.A. 337. And he said that the puff of smoke
visible on the security footage came from a gang member’s gun, not his own.
Rejecting Oliver’s claim of self-defense, the district court applied the enhancement.
After denying several departure motions, the court calculated Oliver’s Guidelines range
using a criminal history category of IV and a total offense level of 23. That yielded a
sentencing range of 70–87 months in prison. Considering the 18 U.S.C. § 3553(a) factors,
the court highlighted the nature and circumstances of the offense and the need for
deterrence. But noting Oliver’s cooperation, it sentenced him to 70 months in prison and
three years of supervised release.
5
The district court then addressed the conditions of Oliver’s supervised release. On
top of five mandatory conditions, the court imposed twenty-four “standard” conditions.
Four (Conditions 5, 8, 12, and 16), are relevant here. They state:
5. The defendant shall live at a place approved by the probation officer. The
probation officer shall be notified in advance of any change in living
arrangements (such as location and the people with whom the defendant
lives). . . .
8. The defendant shall not communicate or interact with any persons engaged
in criminal activity, and shall not communicate or interact with any person
convicted of a felony unless granted permission to do so by the probation
officer. . . .
12. If the probation officer determines that the defendant poses a risk to
another person (including an organization), the probation officer may require
the defendant to notify the person about the risk. The probation officer may
contact the person and make such notifications or confirm that the defendant
has notified the person about the risk. . . .
16. The defendant shall submit his/her person, property, house, residence,
vehicle, papers, computers[,] . . . or other electronic communications or data
storage devices or media, or office, to a search conducted by a United States
Probation Officer and such other law enforcement personnel as the probation
officer may deem advisable, without a warrant. The defendant shall warn
any other occupants that such premises may be subject to searches pursuant
to this condition.
J.A. 188.
Oliver asked the court to explain why the standard conditions were appropriate for
his case. The court declined, and counsel objected to seven of the conditions—including
Conditions 5, 8, 12, and 16.
The court adopted Condition 5, noting there was no “constitutional or [] statutory
problem with that one” and that “the probation office does need to know exactly where
defendants are living.” J.A. 381.
6
As for Condition 8, the discussion split into two parts—the criminal-activity clause
and the felon-interaction clause. First, Oliver objected that he shouldn’t be restricted from
interacting with felons. He argued that “convicted felons are people who have served their
time and paid their penalty.” J.A. 381. And he said the felon-interaction clause “speaks
too broadly,” emphasizing that another judge in the district (Judge Bell) narrows the
condition to “known felons.” J.A. 381–82.
For the criminal-activity clause, Oliver argued that the restriction should be limited
only to those who Oliver “knows to be engaged in criminal activity.” J.A. 381. Once
again, he stressed that Judge Bell had amended the condition to require knowledge.
The court responded that “you’re never supposed to be engaged with someone in
criminal activity.” J.A. 382. But it agreed that limiting the condition to those whom “the
defendant knows [are] engaged in criminal activity” was appropriate. J.A. 382. Oliver
then said, “If you’re curious how Judge Bell words it, ‘with any person he/she knows to be
engaged in criminal activity.’” J.A. 382. The court accepted that adjustment, but the
written judgment doesn’t reflect the change.
Oliver next requested the following change to the felon-interaction clause, also
endorsed by Judge Bell: Oliver “[s]hall not communicate or interact with any person he/she
knows to be a convicted felon unless granted [permission] to do so by the probation
officer.” J.A. 382. Again, the court modified the condition to mirror that adopted by Judge
Bell.
As for Condition 12, Oliver objected that the condition was “too vague” and an
improper delegation of the court’s authority. J.A. 383. The court asked only one question:
7
“What did Judge Bell and/or Judge Conrad do?” J.A. 383. After hearing that both judges
imposed the condition without change, the court overruled Oliver’s objection.
The conversation about Condition 16 also centered on Judge Bell’s decisions.
Defense counsel argued that it should apply only to sex offenders. Invoking Supreme Court
authority, the district court said that it would allow the search condition so long as it
required reasonable suspicion. Then the prosecutor mentioned “that Judge Bell left
probation with th[e] discretion [to conduct warrantless searches] if they’re not involving a
law enforcement agency.” J.A. 387. The court said that it “would like to adopt what Judge
Bell has adopted.” J.A. 388. Ultimately, the court specified that the revised condition
would “limit[] the search to probation officer needs [] unless there are safety issues, [in
which case] law enforcement [may] accompany the probation officer at the initial entry.”
J.A. 388.
Thus, the court adopted Conditions 5 and 12 as written but modified Conditions 8
and 16. This appeal followed. 3
3
The district court has since revised (and renumbered) its standard conditions of
supervised release. See Misc. Order No. 3:21-MC-0003 (W.D.N.C. Sept. 30, 2021) (Doc.
No. 4). Condition 5 (now 9) contains another clause: “If advance notification is not
possible due to unanticipated circumstances, the defendant shall notify the probation
officer within 72 hours of becoming aware of a change or expected change.” Id. at 2.
Condition 8’s (now 12’s) criminal-activity and felon-interaction clauses require the
defendant know of the third party’s criminal or felon status. Id. at 3. Condition 16 (now
19) requires that probation officers have reasonable suspicion before searching. Id. at 4.
And the previous Condition 12 is no longer standard.
8
II.
Oliver first argues that the 4-level sentencing enhancement for possessing a firearm
in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B) was
inappropriate. He asserts that the district court incorrectly placed the burden on Oliver to
prove he acted in self-defense and that it erred when it found that Oliver alone fired his
weapon. We vacate the judgment and remand for the district court to reconsider the
enhancement.
Oliver’s presentence investigation report recommended that the district court apply
a 4-level sentencing enhancement because used “used or possessed [a] firearm or
ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The
report listed assault with a deadly weapon and discharging a weapon into occupied property
as the connected felony offenses. See N.C. Gen. Stat. §§ 14-32(b), 14-34.1.
But in North Carolina, a defendant can’t be convicted of those charges if he or she
reasonably believed that the use of force was “necessary to prevent imminent death or great
bodily harm” to themselves—i.e., when they acted in self-defense. See N.C. Gen. Stat.
§ 14-51.3(a)(1). At sentencing, Oliver made this precise argument. In his telling, Oliver
was fleeing from the gangs’ continuing pursuit of him and his girlfriend after they left the
club. And Oliver says that he fired the shots because he feared for his life. Oliver also
argued that a puff of smoke, visible in one of the videos, was evidence of a shot being fired
at him. The government responded (and the district court found) that Oliver could not
claim self-defense because he (1) chose to continue the hostilities, and (2) was the only one
who fired a weapon.
9
But after reviewing the video, we conclude that the parties and the court may have
overlooked a relevant fact. The security video shows two streaks of light rapidly moving
through the frame in Oliver’s direction. Def.’s Ex. 1 at 2:45. One of those streaks appears
in the frame at about the same time as the puff of smoke. It doesn’t appear that the parties
or the district court noticed the streaks of light when considering the enhancement; no one
mentioned them.
To be clear, we do not know what those streaks represent. And even if we did, it
would be improper for us to comment on the significance of this evidence in the first
instance. See United States v. Buster, 26 F.4th 627, 636 n.3 (4th Cir. 2022) (“[W]e are a
court of review, not of first view.” (cleaned up)). But given that the enhancement’s
application depends on whether Oliver acted in self-defense, we decline to let the evidence
go unaddressed. Thus, we vacate Oliver’s sentence and remand to the district court for it
to consider the evidence in the first instance. 4
III.
Oliver also contends that the district court abused its discretion by imposing
Conditions 5, 8, 12, and 16. He claims the court procedurally erred by failing to adequately
explain why he should be subject to those conditions while on supervised release.
4
Oliver also complains that the district court incorrectly placed the burden of
proving self-defense on him. We decline to address this issue. Rather, we leave it to the
district court on remand to properly allocate the burden of proof.
10
Although we’re vacating Oliver’s sentence, we address this issue, as it’s likely to
arise on remand. United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d
394, 406 (4th Cir. 2012) (“[O]ur precedent is clear that we may address issues that are
likely to recur on remand.”).
“District courts have broad latitude to impose conditions on supervised release, and
so we review such conditions only for abuse of discretion.” United States v. Armel, 585
F.3d 182, 186 (4th Cir. 2009) (cleaned up). “We do not expect district courts to robotically
tick through individual explanations for every condition imposed,” “but [they] must
adequately explain [their] decision.” United States v. Boyd, 5 F.4th 550, 557 (4th Cir.
2021) (cleaned up); United States v. Worley, 685 F.3d 404, 407 (4th Cir. 2012). “The more
onerous the term of supervised release . . . the greater the justification required.” Boyd, 5
F.4th at 557 (cleaned up). “Failure to provide such an explanation constitutes procedural
error.” United States v. McMiller, 954 F.3d 670, 676 (4th Cir. 2020).
In determining whether the district court adequately explained the conditions of
supervised release, we can look to the court’s analysis of the § 3553(a) factors supporting
the term of imprisonment. See United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th
Cir. 2015) (“A court’s sentencing rationale . . . can support both imprisonment and
supervised release.”). “[W]e have never required that a district court conduct two
§ 3553(a) analyses, one related to the term of imprisonment and a second related to the
term of supervised release.” Id. (quoting United States v. Clark, 726 F.3d 496, 501 (3d
Cir. 2013)).
11
After the court told Oliver that he would be subject to the district court’s standard
conditions, his counsel requested an explanation for why they were appropriate. The court
declined, and counsel objected to several of them, including Conditions 8, 12, and 16.
Condition 8 provides: “The defendant shall not communicate or interact with any
persons engaged in criminal activity, and shall not communicate or interact with any person
convicted of a felony unless granted permission to do so by the probation officer.” J.A.
188. The court addressed the criminal-activity clause first. It said, “you’re never supposed
to be engaged with someone in criminal activity.” J.A. 382. And it modified the condition
to require Oliver have actual knowledge of the third party’s criminal activity.
That explanation is brief but sufficient. The bar on association is limited to those
actively participating in criminal activity. And its relation to Oliver’s status as a felon is
obvious. 5
The court’s explanation for the felon-interaction clause, on the other hand, falls
short of the mark. Although the district court modified the condition (based on how another
judge limited it application), the court didn’t justify imposing the condition in the first
place. There’s no indication, for example, that Stone—the person Oliver was with when
he committed the offenses—was a felon. So it’s not self-evident that this broad restriction
on Oliver’s right to association is appropriate. See Boyd, 5 F.4th at 559 (explaining that “a
5
The court’s written judgment conflicts with the court’s oral pronouncement of the
condition. As Oliver correctly notes, the clause should require his actual knowledge.
We’ve held that “if a conflict arises between the orally pronounced sentence and the written
judgment, then the oral sentence controls.” United States v. Rogers, 961 F.3d 291, 296
(4th Cir. 2020). Because we are vacating the sentence on other grounds, the district court
can correct the mistake on remand.
12
sentence-as-a-whole explanation can suffice” when “the reasons for a given condition are
self-evident” (cleaned up)).
As we made clear in Boyd, the “duty to explain cannot be satisfied or circumvented
through the adoption of a standing order purporting to impose special conditions of
supervised release across broad categories of cases or defendants.” 5 F.4th at 557 (cleaned
up). That’s because courts must make “individualized assessments based on the facts
before them and explain sentences in a way that allows for meaningful appellate review.”
Id. And if a standing order can’t provide the necessary individualized assessment, neither
can the explanations offered by judges in other cases. Rather, the court must give the
defendant before it a specific explanation.
The same is true for Conditions 12 and 16. For Condition 12, the district court only
discussed how other judges apply the condition. 6 And for Condition 16, the court
mentioned how it applied the condition in prior cases. But it never explained why either
condition was appropriate in Oliver’s case.
In short, just like the court in Boyd, the district court here didn’t “offer enough of
an explanation to satisfy us that it has . . . a reasoned basis for exercising its own legal
decision-making authority.” Id. at 559. In neither case did the court relate the standard
conditions to the characteristics of the defendant or his crimes. And we’ve never endorsed
6
We have suggested that imposing this condition without giving the probation
officer meaningful guidance in applying it may be an improper delegation of judicial
power. Boyd, 5 F.4th at 558, citing United States v. Cabral, 926 F.3d 687, 698–99 (10th
Cir. 2019).
13
“a court’s wholesale adoption of a menu of standard conditions” without some explanation.
Id. at 560.
Nor does the court’s discussion of the § 3553(a) factors adequately explain the need
for Conditions 12, 16, or Condition 8’s felon-interaction clause. When the court discussed
§ 3553(a), it highlighted the nature and circumstances of the offense, the need for
deterrence, and Oliver’s cooperation, finding those factors “particularly important.” J.A.
369. While those factors may be sufficient to justify the conditions at issue as a general
matter, there isn’t a sufficiently clear nexus “to allow for meaningful appellate review.”
Gall v. United States, 552 U.S. 38, 50 (2007).
Nothing about the circumstances of Oliver’s offense or principles of deterrence
relate to the requirement that Oliver refrain from associating with felons (Condition 8),
report the risks he poses to others (Condition 12), or submit himself to warrantless searches
(Condition 16). So we lack a foundation on which to determine whether the district court
appropriately exercised its discretion in imposing these conditions.
We therefore direct the district court on remand to consider anew the need for these
conditions. If the court elects to impose some or all of them, it should offer an explanation
sufficient to allow for appellate review.
VACATED AND REMANDED
14
TRAXLER, Senior Circuit Judge, concurring in the result:
I readily agree with my colleagues that a remand is in order to give the district court
and the parties the opportunity in the first instance to consider the origin and significance
of the streaks of light seen on the puff-of-smoke video. The district court should take this
opportunity to verify its understanding that the government has the burden of proof on the
enhancement and on the issue of self-defense. See United States v. Raglin, 500 F.3d 675,
677 (8th Cir. 2007). In making these decisions the district court in my view must consider
all the relevant circumstances of the entire evening and explain its reasoning, particularly
if it discounts any uncontradicted evidence of significance. See, e.g., United States v.
Francis, 686 F.3d 265, 273 (4th Cir. 2012) (“A court commits clear error when it makes
findings without properly taking into account substantial evidence to the contrary.”)
(cleaned up).
I therefore concur in the results reached by my colleagues.
15