United States v. Andrew Chance, III

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW CHANCE, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:18-cr-00445-TLW-1)
Submitted: March 27, 2023 Decided: April 5, 2023
Before AGEE and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
ON BRIEF: Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Corey F.
Ellis, United States Attorney, Katherine Hollingsworth Flynn, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andrew Chance, III, appeals the sentence imposed by the district court following
his guilty plea to being a felon in possession of firearms and ammunition, in violation of
18 U.S.C. § 922(g)(1), 924(a)(2) (2018). The district court sentenced Chance to 96
months’ imprisonment, followed by three years of supervised release. On appeal, Chance
asserts that one of the discretionary conditions of supervised release in his amended
criminal judgment is inconsistent with the court’s oral pronouncement of that condition at
sentencing and that the court failed to orally pronounce all of the discretionary supervised
release conditions that appear in the amended judgment. We affirm but remand for
correction of a clerical error.
“[A] district court must orally pronounce all non-mandatory conditions of
supervised release at the sentencing hearing.” United States v. Singletary, 984 F.3d 341,
344 (4th Cir. 2021). “Discretionary conditions that appear for the first time in a subsequent
written judgment . . . are nullities; the defendant has not been sentenced to those conditions,
and a remand for resentencing is required.” Id. (citing United States v. Rogers, 961 F.3d
291, 300-01 (4th Cir. 2020)). To “satisfy its obligation to orally pronounce discretionary
conditions,” a district court may do so “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.” Rogers, 961 F.3d
at 299. When, as here, “a defendant claims that a district court committed a Rogers error,
we review the consistency of the defendant’s oral sentence and the written judgment de
novo.” United States v. Cisson, 33 F.4th 185, 193 (4th Cir. 2022) (cleaned up).
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On appeal, Chance contends that the district court failed to orally announce or
incorporate the 13 standard conditions of supervised release listed in the amended criminal
judgment. Here, the district court ordered Chance to “comply with the mandatory and
standard conditions of supervision outlined at [18 U.S.C. § 3583(d)].” (J.A. 290-91). *
Chance argues that, because § 3583(d) does not list standard conditions, and instead only
describes the criteria for imposing discretionary conditions, the district court could not have
imposed the 13 standard conditions listed in the amended judgment by reference to
§ 3583(d). Although Chance is correct that § 3583(d) does not list standard conditions,
Cisson forecloses his claim. In Cisson, the district court stated at sentencing “that it would
impose the ‘mandatory and standard conditions’ of supervised release.” 33 F.4th at 194
(emphasis omitted). We observed that the District of South Carolina has no standing order
listing supervised release conditions that differ from the standard conditions in the
Guidelines. Id.; see U.S. Sentencing Guidelines Manual § 5D1.3(c), p.s. (2018). “Thus,
there [was] no other set of ‘standard’ conditions to which the [district] court could have
been referring other than the Guidelines ‘standard’ conditions.” Cisson, 33 F.4th at 194.
Because there were no other standard conditions of supervision to which district court
could have been referring in this case, the district court sufficiently pronounced through
incorporation the standard conditions in the Guidelines. See id.
Chance also argues the district court committed Rogers error because the description
of the first condition in the amended judgment materially differed from the court’s oral
*
“J.A.” refers to the Joint Appendix filed by the parties in this appeal.
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pronouncement of that condition at sentencing. At sentencing, the district court ordered
that, upon his release from custody, Chance report to the probation office in the federal
judicial “district to which [he] is released.” (J.A. 290). The amended judgment, however,
instructed that, upon his release, Chance report to the probation office in the “district where
[he is] authorized to reside.” (J.A. 331). Chance asserts that this facial discrepancy
constituted Rogers error.
To be sure, a material discrepancy between a discretionary condition as pronounced
and as detailed in a written judgment may constitute Rogers error. See Cisson, 33 F.4th at
194 & n.6. However, Chance fails to demonstrate a reversible inconsistency under Rogers.
The district court at the sentencing hearing not only orally pronounced through
incorporation the standard conditions in USSG § 5D1.3(c), p.s., which included the
condition that Chance report to the probation office in the district where he is authorized
to reside, but also ordered Chance to report to the district in which he is released. Thus,
the district court’s oral pronouncement itself was inconsistent as it left ambiguous where
Chance must report upon his release from custody. “[W]here the precise contours of an
oral sentence are ambiguous, we may look to the written judgment to clarify the district
court’s intent.” Rogers, 961 F.3d at 299 (citing United States v. Osborne, 345 F.3d 281,
283 n.1 (4th Cir. 2003)). We are satisfied that the written judgment’s inclusion of the
reporting condition in USSG § 5D1.3(c)(1), p.s., dispels the ambiguity in the district
court’s oral pronouncement and confirms the court’s intent to require Chance to report to
the probation office in the district where he is authorized to reside.
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Accordingly, we affirm the amended judgment. We remand, however, for the
district court to correct a clerical error. See Fed. R. Crim. P. 36. Although the amended
judgment references 18 U.S.C. § 924(e), the district court did not sentence Chance as an
armed career criminal; we remand for correction to delete the errant reference. 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 AND
REMANDED
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