United States v. Mohammed Upchurch ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4674
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOHAMMED HAKIM UPCHURCH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00006-FL-1)
Submitted: December 28, 2022 Decided: June 23, 2023
Before GREGORY, Chief Judge, and WILKINSON and RUSHING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Andrew DeSimone, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, Lucy Partain
Brown, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Mohammed Hakim Upchurch pled guilty, without a written plea agreement, to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). 1 The district court sentenced Upchurch to 60 months’ imprisonment followed
by 3 years of supervised release. Upchurch appealed, and we granted the Government’s
unopposed motion to vacate the district court’s judgment and remand Upchurch’s case to
the district court for resentencing in light of United States v. Rogers, 961 F.3d 291 (4th Cir.
2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021). United States v.
Upchurch, No. 20-4014 (4th Cir. Aug. 12, 2021) (unpublished order). The district court
resentenced Upchurch to 57 months’ imprisonment and 3 years of supervised release, and
Upchurch now appeals the amended judgment.
In the instant appeal, Upchurch argues that the district court erred by pronouncing
at resentencing the special condition of supervised release that he submit to certain searches
by probation or law enforcement upon reasonable suspicion, which differs from the written
amended judgment’s special condition requiring him to consent to suspicionless searches.
The Government argues that the reasonable suspicion requirement orally imposed by the
district court does not apply to searches by any probation officer in the lawful discharge of
1
Section 924(a)(2) was amended and no longer provides the penalty for § 922(g)
convictions; the new penalty provision in 18 U.S.C. § 924(a)(8) sets forth a statutory
maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer
Communities Act, Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). The 15-
year statutory maximum does not apply in this case, however, because Upchurch’s offense
was committed before the June 25, 2022, amendment to the statute.
2
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the officer’s supervision functions, which matches the language in the written amended
judgment. We vacate Upchurch’s sentence and remand to the district court for a second
resentencing.
We review de novo whether the sentence imposed in the written judgment is
consistent with the district court’s oral pronouncement of the sentence. See United States
v. Cisson, 33 F.4th 185, 193 (4th Cir. 2022). Based on the inconsistency between the oral
pronouncement and written amended judgment, the district court did not comply with the
rule that “all non-mandatory conditions of supervised release must be announced at a
defendant’s sentencing hearing.” Rogers, 961 F.3d at 296 (holding that district court has a
“duty to orally pronounce any discretionary conditions [of supervised release] included as
part of a defendant’s sentence”).
Regarding the Government’s explanation of the inconsistency, although part of the
district court’s oral pronouncement of the special condition matches the written condition
in the amended judgment, the district court’s reasonable suspicion requirement for searches
“concerning a violation of a condition of supervised release or unlawful conduct” is absent
from the amended judgment. (J.A. 80). 2 Rather, the amended judgment does not require
reasonable suspicion for any search of Upchurch, his location, or his belongings by a
probation or law enforcement officer during Upchurch’s supervised release. Compare J.A.
80 with J.A. 90. Where, as here, the district court’s oral pronouncement is inconsistent
with a discretionary condition of supervised release that is later included in the written
2
“J.A.” refers to the joint appendix.
3
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judgment, the sentence constitutes reversible Rogers error, and the defendant’s sentence
must be vacated in its entirety and the case remanded for resentencing. See Singletary, 984
F.3d at 346 & n.4; cf. Cisson, 33 F.4th at 194 n.6 (noting where government failed to offer
explanation of alleged inconsistency between district court’s oral pronouncement of
discretionary condition and written condition in judgment required vacating sentence and
remanding for resentencing). 3
Accordingly, we vacate Upchurch’s sentence and remand for a second resentencing
in accordance with Rogers and Singletary. In light of the impending conclusion of
Upchurch’s term of incarceration, the mandate shall issue forthwith so the district court
may proceed with resentencing without delay. 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
3
This Court recently decided United States v. Locklear, No. 21-4161, 2023 WL
2300394 (4th Cir. Mar. 1, 2023), and held that, in the context of an unobjected to
discrepancy between the written judgment and oral pronouncement of a condition of
supervised release, a limited remedy of remand to correct the judgment is appropriate, id.
at *2. Unlike in Locklear, here, the Government attempts to explain the inconsistency
between the district court’s oral pronouncement and written amended judgment, and
Upchurch counters the Government’s explanation. Therefore, the facts of this case do not
support the application of a limited remand remedy.
4