UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4575

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN PATRICK DILLON,

Defendant - Appellant.

No. 19-4576

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN PATRICK DILLON,

Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Deborah K. Chasanow, Senior District Judge. (1:18-cr-00308-DKC-1; 1:18-cr-00309- DKC-1)

Submitted: October 19, 2021 Decided: October 21, 2021 Before GREGORY, Chief Judge, AGEE, Circuit Judge, and SHEDD, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Cullen Macbeth, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Jonathan F. Lenzner, Acting United States Attorney, Judson T. Mihok, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

John Patrick Dillon pleaded guilty to transportation of child pornography, in

violation of

(a)(1), 2256, possession of child pornography, in violation

of 18 U.S.C. §§ 2252A(a)(5)(B), 2256, and possession of a firearm as a convicted felon, in

violation of

(g)(1). The district court sentenced Dillon to concurrent terms

of 216 months’ imprisonment and lifetime terms of supervised release for the child

pornography convictions, plus a concurrent term of 120 months’ imprisonment and 3 years

of supervised release for the firearm conviction. On appeal, Dillon argues that he is entitled

to a vacatur of his sentence and a remand for resentencing because the district court

imposed 13 discretionary conditions of supervised release in the written judgments that

were not announced during the sentencing hearing, in contravention of United States v.

Rogers,

(4th Cir. 2020). The Government opposes Dillon’s request

for a vacatur and remand. For the reasons explained below, we vacate Dillon’s sentence

and remand for resentencing.

Pursuant to our Rogers decision, in order to sentence a defendant to a discretionary

condition of supervised release, “the sentencing court must include that condition in its oral

pronouncement of a defendant’s sentence in open court.” United States v. Singletary,

(4th Cir. 2021) (citing Rogers,

). We have reviewed the

record and conclude that the district court did not pronounce at Dillon’s sentencing hearing

13 discretionary conditions of supervised release that were included in the written

judgments. The remedy for that error “is to vacate the sentence and remand for the district

court to resentence [the defendant].”

.

3 The Government resists a vacatur and remand, however, and argues that we should

not recognize and remedy the Rogers error in these proceedings for three reasons. First,

the Government contends that Dillon should be judicially estopped from prevailing on his

Rogers argument because, before filing his opening brief, he filed two abeyance motions

in this court in which he represented that the sole argument he planned to pursue on appeal

was that his firearm conviction is infirm after Rehaif v. United States,

(2019). But because Rogers was decided after Dillon filed both abeyance motions, we are

satisfied that Dillon has not acted in bad faith. And as we have explained, “[w]ithout bad

faith, there can be no judicial estoppel.” Zinkand v. Brown,

(4th Cir.

2007). We thus reject the Government’s judicial estoppel contention.

Second, the Government asserts that Dillon has waived any Rogers argument

through the representations made in his abeyance motions. We again disagree. Contrary

to the Government’s assertion, we conclude that Dillon has never intentionally relinquished

or abandoned any Rogers argument in this court. See United States v. Boyd,

(4th Cir. 2021).

Third, and finally, the Government argues that Dillon waived his Rogers argument

because Dillon’s trial counsel relied on certain discretionary supervised release conditions

recommended in the presentence report when making arguments for an appropriate

sentence before the district court. However, the 13 discretionary conditions that were not

orally pronounced during the sentencing hearing are different than the specific conditions

on which Dillon’s counsel’s sentencing arguments relied. The Government has thus not

convinced us to ignore the Rogers error here.

4 Accordingly, we recognize the Rogers error in these proceedings, vacate Dillon’s

sentence, and remand for resentencing. 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

5