USCA4 Appeal: 21-4003 Doc: 36 Filed: 01/12/2022 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4003

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TOVORRIS D. JENKINS,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Beaufort. David C. Norton, District Judge. (9:19-cr-00438-DCN-1)

Submitted: December 20, 2021 Decided: January 12, 2022

Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. M. Rhett DeHart, Acting United States Attorney, Brook Bowers Andrews, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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PER CURIAM:

Tovorris D. Jenkins appeals from his sentence imposed pursuant to his guilty plea

to possession of a firearm by a convicted felon and possession with intent to distribute

cocaine and cocaine base. Jenkins was sentenced to 151 months to be followed by 3 years

of supervised release. On appeal, Jenkins asserts that the district court included in his

written judgment discretionary conditions of supervised release that were not imposed

orally at sentencing. We vacate and remand for resentencing. 1

Prior to sentencing, the probation officer prepared a Presentence Investigation

Report (“PSR”), listing 7 “mandatory conditions of supervision,” as well as 13 “standard

conditions of supervision.” (J.A. 131-32). Standard condition 1 provided that Tovorris

must “report to the probation office in the federal judicial district where you are authorized

to reside within 72 hours of your release from imprisonment.” (J.A. 131). Standard

condition 12 provided that, “[i]f the probation officer determines that you pose a risk to

another person (including an organization), the probation officer may require you to notify

the person about the risk and you must comply with that instruction.” (J.A. 132).

Jenkins objected to standard condition 12, arguing that, by ceding discretion to the

probation officer to determine which persons may be at “risk,” this condition effected an

unconstitutional delegation of Article III authority from the court to the probation officer.

At the sentencing hearing, the district court granted the objection and agreed to modify

1 Jenkins also raised claims challenging his custodial sentence. As discussed below, because we remand for resentencing, we do not reach Jenkins’ other claims.

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condition number 12, so as to require the probation officer to seek court approval before

exercising any authority under the condition.

After ruling on Jenkins’ other objections, the district court sentenced Jenkins to 151

months’ imprisonment. The district court then discussed Jenkins’ supervised release and

explained that “while on supervised release, the mandatory standard conditions of

supervision” would apply. (J.A. 96). The court informed Jenkins that “[w]ithin 72 hours

of release, he shall report in person to the probation officer in the district to which he’s

released.” (J.A. 95-96). Last, the district court commented, “I think we’ve gone over the

general conditions, number 12” and referred back to Jenkins’ objection and the court’s

subsequent revision to the condition. (J.A. 96).

Jenkins’ judgment order included the agreed-upon revisions to standard condition

12. Standard condition 1 required Jenkins to report to the probation office in the “judicial

district where you are authorized to reside,” in accordance with the PSR but at odds with

the court’s statements at sentencing. (J.A. 101). The remainder of the standard conditions

matched the conditions listed in the PSR.

This court “review[s] the consistency of [a defendant’s] oral sentence and the

written judgment de novo, comparing the sentencing transcript with the written judgment

to determine whether an error occurred as a matter of law.” United States v. Rogers,

(4th Cir. 2020) (internal quotation marks omitted). 2 In Rogers, we held that

2 The Government argues that, because Jenkins had the opportunity to (and in fact did) object to the standard conditions listed in the PSR, his claim should be reviewed for plain error. However, the opportunity to object to the actual imposition of the conditions

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a district court must announce all nonmandatory conditions of supervised release at the

sentencing hearing.

. “[A] district court may satisfy its obligation to orally

pronounce discretionary conditions 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.”

. “Express

incorporation” is not only “a critical part of the defendant’s right to be present at

sentencing” but “also provides [the court] with the crucial objective indication that a district

court has undertaken the necessary individualized assessment and made a considered

determination, at the time of sentencing, that an identifiable set of discretionary conditions

should be imposed on a defendant’s supervised release.”

(internal quotation

marks omitted). “[S]o long as the defendant is informed orally that a certain set of

conditions will be imposed,” “a later-issued written judgment that details those conditions

may be construed fairly as a clarification of an otherwise vague oral pronouncement.”

(internal quotation marks omitted). The remedy for a Rogers error “is to vacate the

sentence and remand for the district court to resentence” the defendant anew. United

States v. Singletary,

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

of supervised release “exists when the court notifies the defendant at sentencing that conditions are being imposed.” United States v. Diggles,

(5th Cir. 2020) (noting that an objection at sentencing alerts “the district court of a possible need to make a more detailed recitation of the discretionary conditions and justify them”); see also Rogers,

(noting that, even when a defendant fails to object to the district court’s violation of the oral-pronouncement rule, this court reviews the claim de novo).

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Here, the district court orally announced conditions corresponding with standard

conditions 1 and 12. The court did not announce the imposition of any of the other standard

conditions. 3 Nor did the court state that it was adopting the PSR in full or otherwise infer

that all the standard conditions were being imposed. In any event, the court’s oral

description of condition 1 does not match the written judgment order with regard to whom

Jenkins is required to report. This error alone is reversible Rogers error.

We therefore determine that the district court’s failure to orally pronounce all

discretionary conditions warrants vacatur and remand for resentencing. See

. A

full resentencing is warranted “given that custodial and supervised release terms are

components of one unified sentence.”

at 346 n.4 (alteration and internal quotation

marks omitted). As such, there is no need to examine Jenkins’ remaining claims because

the Rogers error, “[b]y itself, . . . requires that [the court] vacate [Jenkins’] sentence and

remand for the district court to conduct the sentencing anew.”

.

Accordingly, we vacate Jenkins’ sentence and remand for resentencing. We

dispense with oral argument because the facts and legal contentions are adequately

3 The Government argues that, when the district court noted that the “mandatory standard conditions of supervision” would apply, the court meant (or actually said) that the “mandatory and standard conditions of supervision” would apply. However, this is mere speculation, and the Government has not moved to correct the transcript. In addition, several sentences later, the district court referenced “general conditions” of supervised release stating that they had been “gone over” and explicitly noted that there had been objections to number 12. (J.A. 96). Thus, it appears that the district court referenced the standard “general conditions” separately from the “mandatory standard conditions.”

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presented in the materials before this court and argument would not aid the decisional

process.

VACATED AND REMANDED

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