UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4722

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RICHARD OMAR MCCORMICK,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:18-cr-00100-BO-2)

Argued: September 24, 2021 Decided: October 25, 2021

Before WILKINSON, WYNN, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ARGUED: Steven Paul Hanna, Richmond, Virginia, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, 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Unpublished opinions are not binding precedent in this circuit.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:

Richard Omar McCormick was charged by indictment with multiple offenses

related to firearms and drug distribution. Pursuant to a written plea agreement, McCormick

pled guilty on two counts: conspiracy to distribute and possess with intent to distribute

280 grams or more of cocaine base and a quantity of cocaine, in violation of

(b)(1)(A), (b)(1)(C), 846; and possession with intent to distribute a quantity of cocaine

in violation of

(a), (b)(1)(C).

McCormick’s presentence report (“PSR”) recommended a Sentencing Guidelines

range of 188 to 235 months’ imprisonment. But the government and McCormick’s counsel

agreed to a downward variance to 135 months’ imprisonment, which they jointly

recommended at sentencing. Without explanation, the district court accepted that

recommendation and imposed a 135-month sentence.

The district court also sentenced McCormick to five- and three-year terms of

supervised release on his two convictions. At sentencing, and again without explanation,

the district court orally imposed several conditions of supervised release: McCormick shall

not “violate any federal, state, or local law”; shall not “use or associate with any controlled

substance or dangerous weapon”; shall “remain gainfully employed”; and shall “support

any dependents.” J.A. 41.

The written judgment, however, listed multiple additional conditions of supervised

release, some standard and some special. The special conditions prohibited McCormick

from incurring “new credit charges or open[ing] additional lines of credit without approval

of the probation office” and required him to provide the probation office with “access to

2 any requested financial information,” consent to warrantless searches “to determine

compliance” with his supervised release conditions, and, in addition to supporting

dependents, “meet other family responsibilities.” J.A. 46–47. The written judgment also

ordered McCormick to forfeit certain property.

McCormick noticed a timely appeal, and his counsel filed a brief pursuant to Anders

v. California,

(1967), stating that there were no meritorious grounds for

appeal but questioning whether the district court procedurally erred by accepting the PSR’s

Guidelines calculation of 188 to 235 months’ imprisonment. After independently

reviewing the record under Anders,

, this court identified additional

questions regarding the validity of McCormick’s guilty plea and certain aspects of his

sentence and directed counsel to provide supplemental briefing.

We turn first to McCormick’s guilty plea. Counsel briefed the validity of

McCormick’s plea at our request, but, crucially, McCormick has made no representation

to counsel, to this court, or to the government that he wishes to withdraw his plea. In this

posture, that is enough to dispose of the issue. Because McCormick did not move in the

district court to withdraw his plea or otherwise object to the plea hearing, our review is for

plain error only. United States v. Sanya,

, 815–16 (4th Cir. 2014). Under that

standard, McCormick would be required to show that any error related to his plea affected

his substantial rights because there is “a reasonable probability that, but for the error, he

would not have pleaded guilty.”

(internal quotation marks omitted). In the

absence of any indication that McCormick has reconsidered his decision to plead guilty,

that standard cannot be met.

3 We next consider McCormick’s sentence. Upon our request, counsel briefed several

sentencing issues, including whether the district court adequately explained its sentence

and whether its forfeiture order was procedurally proper. We need address only one of

those issues here, however. As the government concedes, the district court erred by

imposing discretionary conditions of supervised release in its written judgment that were

not orally pronounced at sentencing. See United States v. Singletary,

(4th Cir. 2021); United States v. Rogers,

, 297–98 (4th Cir. 2020). As the

government also recognizes, because discretionary conditions that appear for the first time

in a written judgment are “nullities,” this issue falls outside the appeal waiver in

McCormick’s plea agreement. See Singletary,

. The proper remedy

is to vacate McCormick’s sentence in its entirety and remand for resentencing. See

, 346 n.4. Given this determination, we have no occasion to consider additional

arguments about McCormick’s now-vacated sentence or whether they are barred by his

appeal waiver. See

.

For the foregoing reasons, we affirm McCormick’s convictions, vacate his sentence,

and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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