UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4569

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARK ANTHONY CRUDUP, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:18-cr-00417-D-1)

Submitted: October 19, 2021 Decided: October 25, 2021

Before KING and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Elisa C. Salmon, SALMON LAW FIRM, LLP, Lillington, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

In April 2019, Mark Anthony Crudup, Jr., pled guilty, without the benefit of a

written plea agreement, to two counts of being a felon in possession of a firearm, in

violation of

(g), 924; possession with intent to distribute unspecified

quantities of heroin, marijuana, and fentanyl, in violation of

(a)(1); and use

of a firearm in furtherance of a drug trafficking offense, in violation of

(c)(1)(A)(i). Crudup’s counsel has filed a brief pursuant to Anders v. California,

(1967), asserting that there are no meritorious grounds for appeal, but asking us

to review whether Crudup’s guilty plea was knowing and voluntary and questioning the

reasonableness of Crudup’s aggregate 192-month sentence. Although notified of his right

to do so, Crudup did not file a pro se supplemental brief. For the reasons that follow, we

affirm Crudup’s convictions, but vacate his sentence and remand for resentencing.

We turn first to the validity of Crudup’s guilty plea. Prior to accepting a guilty plea,

the district court must conduct a plea colloquy in which it informs the defendant of, and

determines that the defendant understands, the nature of the charges to which he is pleading

guilty, any applicable mandatory minimum sentence, the maximum possible penalty he

faces, and the various rights he relinquishes by pleading guilty. Fed. R. Crim. P. 11(b)(1);

United States v. DeFusco,

(4th Cir. 1991). The court also must ensure

that the defendant’s plea is voluntary, supported by a sufficient factual basis, and not the

result of force, threats, or extrinsic promises. Fed. R. Crim. P. 11(b)(2), (3); DeFusco,

.

2 Because Crudup did not move to withdraw his guilty plea or otherwise preserve any

allegation of Rule 11 error in the district court, we review the plea colloquy for plain error.

United States v. Sanya,

(4th Cir. 2014). Under this rigorous standard,

we “will correct an unpreserved error if (1) an error was made; (2) the error is plain; (3) the

error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Harris,

(4th

Cir. 2018) (internal quotation marks omitted). In the guilty plea context, a defendant

establishes that an error affected his substantial rights by demonstrating a reasonable

probability that, but for the error, he would not have pled guilty. United States v. Davila,

(2013). Here, the record reveals that, to the extent that there were Rule

11 errors, they did not affect Crudup’s substantial rights. Accordingly, we hold that

Crudup’s guilty plea is valid and that Crudup entered it with full knowledge of the attendant

consequences.

We turn next to Crudup’s sentence. As to this issue, plenary review identifies one

reversible error. Specifically, when announcing the terms of supervised release during the

sentencing hearing, the district court did not orally pronounce all the discretionary

conditions of supervision. 1 However, in its written judgment, the court included the

statutorily imposed mandatory conditions, 13 standard conditions, and 6 special conditions.

1 In United States v. Rogers, we explained the different categories of conditions of supervised release:

[18 U.S.C. §] 3583(d) divides supervised-release conditions into two and only two categories: mandatory conditions . . . , which must be imposed in (Continued) 3 While a district court need not orally pronounce all mandatory conditions, “all non-

mandatory conditions of supervised release must be announced at a defendant’s sentencing

hearing.” Rogers, 961 F.3d at 296. The court “may satisfy its obligation to orally

pronounce discretionary conditions through incorporation” by reference to, for example,

the standard conditions recommended by the Sentencing Guidelines. Id. at 299. But the

court in this case did not state that it was incorporating the standard conditions of

supervision detailed in the Guidelines, and it included additional discretionary conditions

in the written judgment that were not orally announced at sentencing. When the court fails

to announce discretionary conditions of supervised release that are later included in the

written judgment, the remedy is to vacate the sentence and remand for resentencing. 2 See

United States v. Singletary,

, 346 & n.4 (4th Cir. 2021).

every case; and discretionary conditions, which include everything else. . . . The Sentencing Guidelines further subcategorize discretionary conditions, listing standard conditions that are recommended for all terms of supervised release, special conditions that are recommended only in certain circumstances, and additional conditions that may be appropriate on a case- by-case basis.

(4th Cir. 2020) (citations and internal quotation marks omitted). 2 We note that the district court did not have the benefit of our decisions in Rogers and Singletary when it sentenced Crudup.

4 In accordance with Anders, we have reviewed the record in this case and have found

no other meritorious grounds for appeal. 3 We therefore affirm Crudup’s convictions,

vacate his sentence, and remand for resentencing.

This court requires that counsel inform Crudup, in writing, of the right to petition

the Supreme Court of the United States for further review. If Crudup requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel

may move in this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Crudup. 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 IN PART, VACATED IN PART, AND REMANDED

3 Because the sentence was not properly imposed, we do not address any other potential issues related to Crudup’s sentence at this juncture. See Singletary,

(declining to consider additional challenges to original sentence). 5