USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4031

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT CHRISTOPHER CISSON,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. J. Michelle Childs, District Judge. (8:17-cr-00326-JMC-1)

Argued: January 25, 2022 Decided: May 5, 2022

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Agee and Judge Wynn joined.

ARGUED: Erica Marie Soderdahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Benjamin T. Stepp, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Maxwell B. Cauthen, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 2 of 17

DIANA GRIBBON MOTZ, Circuit Judge:

Robert Christopher Cisson, a convicted felon, pled guilty to possessing a firearm

and ammunition in violation of

(g)(1). In his original appellate briefing,

Cisson raised only one claim: that the district court erred in applying an enhancement to

his sentence under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines. For the

reasons that follow, we hold that any such error would be harmless.

Four days prior to oral argument before us, Cisson filed a Rule 28(j) letter 1 raising

a new claim: that the district court had also committed two errors contrary to United States

v. Rogers,

(4th Cir. 2020). We requested and received supplemental briefs

from the parties on whether we should reach those late-raised claims and if so, whether the

district court committed Rogers errors. We hold that we may reach the merits of these

claims; but in doing so, we conclude that the court committed no Rogers errors.

Accordingly, we affirm the judgment of the district court.

I.

On or around October 8, 2016, Cisson — a convicted felon — used counterfeit

twenty-dollar bills to purchase a Ruger 9mm pistol and ammunition. A federal grand jury

subsequently indicted him on two counts: (1) possession of a firearm and ammunition by

a convicted felon, in violation of

(g)(1); and (2) passing counterfeit money,

1 Under Federal Rule of Appellate Procedure 28(j), “[i]f pertinent and significant authorities come to a party’s attention after the party’s brief has been filed — or after oral argument but before decision — a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations.” Fed. R. App. P. 28(j). 2 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 3 of 17

in violation of

. Cisson pled guilty to the first count; the Government

dismissed the second.

The district court sentenced Cisson to 100 months’ imprisonment and three years’

supervised release. Cisson appealed the sentence to this Court, and we remanded for

resentencing on a basis not at issue here. On remand, the probation officer prepared an

amended presentence report. In doing so, the probation officer applied a sentencing

enhancement under § 2K2.1(b)(6)(B) of the Sentencing Guidelines, which advises district

courts to increase a defendant’s offense level by four if he “used or possessed any firearm

or ammunition in connection with another felony offense.” Applying this enhancement,

the probation officer calculated a total offense level of twenty-one and a criminal history

category of V, resulting in a proposed Guidelines range of seventy to eighty-seven months’

imprisonment.

The district court held a resentencing hearing, at which Cisson raised three

objections to the probation officer’s Guidelines calculation. The court granted Cisson’s

first two objections, neither of which is at issue in this appeal. As his third objection,

Cisson argued that the district court should not apply the § 2K2.1(b)(6)(B) enhancement

because he had not used the pistol “in connection with” the crime of passing counterfeit

money. The court overruled this objection and applied the enhancement.

Because the district court granted Cisson’s first two objections, Cisson’s criminal

history category decreased from V to IV, which lowered his corresponding Guidelines

range to fifty-seven to seventy-one months’ imprisonment. The court then sentenced

Cisson to a within-Guidelines sentence of sixty-two months’ imprisonment and three years’

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supervised release. Cisson noted a timely appeal of the sentence, raising only one claim:

that the district court erred in applying the § 2K2.1(b)(6)(B) enhancement.

On January 21, 2022 — four days prior to oral argument in this appeal — Cisson

filed a Rule 28(j) letter raising an additional claim: that the district court committed two

Rogers errors that independently require that we vacate his sentence and remand for

resentencing. See Suppl. Authorities, United States v. Cisson, No. 19-4031 (4th Cir. Jan.

21, 2022) (ECF No. 54). According to Cisson, the district court committed Rogers errors

by: (1) orally describing a condition specifying the district to which Cisson should report

after his release in a way that differed from the description of that condition in the court’s

written judgment; and (2) orally announcing merely that Cisson would be subject to the

“mandatory standard conditions” of supervised release and thereby failing to adequately

announce the discretionary conditions that it later imposed in its written judgment. Id. In

his Rule 28(j) letter, Cisson correctly noted that we decided Rogers and its progeny after

he and the Government had completed briefing in his appeal.

Three days later (the day before oral argument), the Government filed a response

letter. See Suppl. Authorities, Cisson, No. 19-4031 (4th Cir. Jan. 24, 2022) (ECF No. 55–

1). In its letter, the Government argued not only that the district court had not committed

Rogers errors but also that Cisson had waived any Rogers claims by raising them for the

first time in a Rule 28(j) letter. 2 See id.

2 The Government also argued that one of Cisson’s Rogers claims was moot because Cisson had already been released to complete his sentence on home detention. See Suppl. Authorities at 2, Cisson, No. 19-4031 (ECF No. 55–1). But the Government has since (Continued) 4 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 5 of 17

After oral argument, we directed the parties to file supplemental briefs addressing:

(1) whether we should reach Cisson’s Rogers claims even though he raised them for the

first time in a Rule 28(j) letter; and if so, (2) whether the district court in fact committed

any Rogers errors. See Order, Cisson, No. 19-4031 (4th Cir. Jan. 27, 2022) (ECF No. 57).

II.

We first turn to Cisson’s original claim: that the district court erred in applying the

§ 2K2.1(b)(6)(B) sentencing enhancement. When deciding whether a district court erred

in applying a sentencing enhancement, we review the court’s legal conclusions de novo

and factual findings for clear error. United States v. Allen,

(4th Cir.

2006). Here, the district court orally overruled Cisson’s objection without making any

factual findings. Our analysis is thus strictly legal. 3 Accordingly, we review the district

court’s application of the enhancement de novo.

A.

Section 2K2.1(b)(6)(B) of the United States Sentencing Guidelines states that a

district court may increase a defendant’s offense level by four if the defendant “used or

conceded that the claim is not moot. That concession was wise — Cisson still faces three years of supervised release, and “a defendant serving a term of supervised release has a ‘legally cognizable interest in the outcome’ of a challenge to his sentence.” United States v. Ketter,

(4th Cir. 2018) (quoting Already, LLC v. Nike, Inc.,

(2013)). 3 That distinguishes this case from United States v. Jenkins,

(4th Cir. 2009), where we reviewed a district court’s application of the same sentencing enhancement for clear error. In Jenkins, the district court specifically found that “the gun ha[d] the potential of facilitating the possession of crack cocaine,” which we held was “a factual determination based on the specific circumstances of [that] case and, as such, [was] subject to a clearly erroneous standard of review.”

. 5 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 6 of 17

possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6)(B). Cisson does not dispute that he “possessed [a] firearm or ammunition.”

Nor does he dispute that he committed “another felony offense” by using counterfeit

money. Cisson’s sole challenge to the enhancement is that his possession of the firearm

was not “in connection with” the counterfeit money offense.

“The Government bears the burden of proving that [a] defendant possessed a firearm

‘in connection with another felony offense.’” United States v. Blount,

(4th Cir. 2003). The commentary to the Guidelines provides that a defendant possesses a

firearm “in connection with” another felony offense if the firearm “facilitated, or had the

potential of facilitating,” the other offense. U.S.S.G. § 2K2.1 cmt. n.14(A) (emphasis

added). We have explained that satisfying the “in connection with” requirement “is not

especially burdensome.” United States v. Bolden,

(4th Cir. 2020). But

the Government cannot meet this burden “if the firearm was present due to mere ‘accident

or coincidence.’” United States v. Jenkins,

(4th Cir. 2009) (quoting

Blount,

). Rather, the firearm must have “‘ha[d] some purpose or effect’

with respect to the other offense.” Id. at 162 (alteration in original) (quoting Blount,

).

Often, the Government proves that a firearm had a “purpose or effect” with respect

to another offense by showing that “the firearm ‘was present for protection or to

embolden’” the defendant.

(quoting United States v. Lipford,

(4th

Cir. 2000)). To do so in the context of a burglary, for example, the Government may

demonstrate “that the defendant actually used the stolen weapon to intimidate occupants of

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the home, or that he prepared for this contingency by keeping the firearm close at hand.”

Blount,

. To be sure, we have also stated in an unpublished opinion that

“the phrase ‘in connection with’ [is] not narrowly construed to encompass only those

circumstances where a firearm emboldens an individual or is used for protection” and that

the phrase is instead “expansive.” United States v. Larrimore,

(4th

Cir. 2014) (per curiam) (unpublished) (emphasis added). But we have also explicitly

recognized that “[t]he purpose of this enhancement is to ensure that a defendant receives

more severe punishment if . . . he commits a separate felony offense that is rendered more

dangerous by the presence of a firearm.” Blount,

(emphasis added).

One more point of law bears mentioning. Despite the strengths or weaknesses of

the parties’ arguments about applying the enhancement provision, we ultimately “need not

decide” that question if we determine the error was harmless. United States v. Kobito,

(4th Cir. 2021). Rather, “we may ‘assume that a sentencing error occurred

and proceed to examine whether the error affected the sentence imposed.’”

(quoting

United States v. Hargrove,

(4th Cir. 2012)). We have held that the

erroneous application of a Guidelines sentencing enhancement “is harmless and does not

warrant vacating the defendant’s sentence if the record shows that (1) the district court

would have reached the same result even if it had decided the [G]uidelines issue the other

way, and (2) the sentence would be reasonable even if the [G]uidelines issue had been

decided in the defendant’s favor.” United States v. Mills,

(4th Cir. 2019)

(internal quotation marks omitted) (alterations in original) (quoting United States v.

Gomez-Jimenez,

(4th Cir. 2014)).

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With these principles in mind, we turn to their application to Cisson’s sentence.

B.

The Government offers two arguments to explain how Cisson used the pistol “in

connection with” his use of counterfeit money. First, the Government argues that “the

firearm — once in Cisson’s hands — gave an additional measure of protection that he

would complete his crime.” Second, the Government argues that “without the gun[,]

Cisson could not have passed the counterfeit money.” Cisson rejects both arguments,

insisting that he had already handed over the counterfeit money before he received the

pistol and that the pistol thus could not have facilitated the commission of the counterfeit

money offense. We ultimately need not reach the merits of any of these arguments. Even

if the district court erred in applying the § 2K2.1(b)(6)(B) enhancement, any such error

would be harmless.

As indicated above, we have held that an error is harmless if “(1) the district court

would have reached the same result even if it had decided the [G]uidelines issue the other

way, and (2) the sentence would be reasonable even if the [G]uidelines issue had been

decided in the defendant’s favor.” Mills,

(internal quotation marks

omitted) (alterations in original) (quoting Gomez-Jimenez,

). First, under

binding circuit precedent, we have held that we know a district court would have reached

the same result when it tells us that it would have done so and explains why, see id. at 331,

and here the district court did just that. And second, Cisson offers no argument as to why

his sentence would be unreasonable if the enhancement provision issue had been decided

in his favor, merely asserting at the end of his brief that his sentence was “unreasonable

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based on the failure of the district court to adequately explain its sentence and its relation

to the factors in § 3553(a).” That blanket assertion is insufficient to avoid waiving the

argument. See Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017). And

in any event, the district court did adequately explain the sentence and its relation to the

§ 3553(a) factors.

III.

Our rejection of Cisson’s challenge to his sentencing enhancement does not end this

appeal; we must still address the late-raised Rogers claims. First, we must decide whether

we may reach the Rogers claims even though Cisson raised them for the first time in a

Rule 28(j) letter. Concluding that we can, we then consider what standard of review to

apply to the Rogers claims and whether the district court in fact committed any Rogers

errors. We address these questions in turn.

A.

As an initial matter, we must decide whether we may reach Cisson’s Rogers claims

even though he raised them for the first time in a Rule 28(j) letter. Under the facts of this

case, we hold that we may.

In this circuit, litigants ordinarily waive claims by raising them for the first time in

a Rule 28(j) letter. United States v. Jones,

, 427 n.1 (4th Cir. 2002); see also

United States v. Ashford,

(4th Cir. 2013). That is so because

“considering an argument advanced for the first time in a Rule 28(j) filing is not only unfair

to the appellee, it also creates the risk of an improvident or ill-advised opinion being issued

on an unbriefed issue.” United States v. Leeson,

, 638 n.4 (4th Cir. 2006).

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However, we may “deviate from this rule in appropriate circumstances.” United

States v. White,

(4th Cir. 2016), abrogated on other grounds by United

States v. Stitt,

(2018). 4 One of those circumstances occurs “when an

intervening decision of this Court or the Supreme Court affects precedent relevant to a case

pending on direct appeal.”

Under such a circumstance, an appellant “may timely raise

a new argument, case theory, or claim based on that decision while his appeal is

pending.”

. And of course, where we ask the parties to file supplemental briefs

addressing the effect of that intervening decision (as we did here), such briefs obviate “the

risk of an improvident or ill-advised opinion being issued on an unbriefed issue.” Leeson,

n.4.

Cisson bases his new claims on three cases: Rogers,

; United States v.

Singletary,

(4th Cir. 2021); and United States v. Jenkins, No. 21-4003,

(4th Cir. Jan. 12, 2022) (per curiam) (unpublished). In Rogers, we held that

district courts must announce all discretionary conditions of supervised release at a

defendant’s sentencing hearing.

. We subsequently emphasized in

Singletary that the proper remedy for a Rogers error is to vacate the sentence and remand

to the district court for resentencing.

. And in Jenkins, we noted that where

the description of a condition in an oral sentence did not match the description of that

4 White considered whether a party waives an argument by raising it for the first time in supplemental briefing, but the same logic applies to raising an argument for the first time in a Rule 28(j) letter. See Leeson,

n.4 (holding that a defendant waived an argument by raising it for the first time in a Rule 28(j) letter in part because the case on which he based his new argument “was readily available at the time [he] filed his opening brief”). 10 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 11 of 17

condition in the written judgment, that “error alone is reversible Rogers error.”

, at *2.

We did not decide Rogers, Singletary, and Jenkins until after Cisson and the

Government had already completed their original briefing in this appeal. In White,

, we held that a defendant “can only ‘abandon’ an argument that was actually

available to him,” and so Cisson could not have abandoned his Rogers claims by failing to

raise them in his original briefing.

Of course, the Government does not dispute that we did not decide Rogers and its

progeny until after the parties completed their original briefing. The Government argues,

however, that even before we decided Rogers, Cisson could have tried to break new ground

by arguing exactly what the defendant in Rogers did: that district courts must announce

discretionary conditions of supervised release at sentencing hearings. The Government

reasons that, before we decided Rogers, no precedent directly prevented Cisson from

making that argument, and so a Rogers claim must have always been available to him.

The Government is surely correct that, before we decided Rogers, Cisson could have

tried to break new ground by raising the same argument as did the defendant in Rogers.

But it would blink at reality to say that the argument was just as available to Cisson before

we decided Rogers as it is now. Prior to Rogers, no precedent in this circuit clearly

established that district courts must announce discretionary conditions of supervised

release at sentencing hearings. Rogers established a bright-line rule mandating just that,

and we have since quite often summarily vacated and remanded sentences based on district

courts’ failures to do so. See, e.g., United States v. Whiteside, No. 19-4089,

USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 12 of 17

898588, at *1 (4th Cir. Mar. 28, 2022) (per curiam) (unpublished); United States v. Sims,

No. 20-4192,

, at *1 (4th Cir. Mar. 14, 2022) (per curiam) (unpublished);

United States v. King,

, 752–53 (4th Cir. 2021) (per curiam)

(unpublished).

We cannot expect litigants, like fortune tellers peering into their crystal balls, to

predict what we might hold in future cases. And so when the Supreme Court or this Court

decides a case that affects precedent relevant to a case pending on direct appeal, we cannot

hold that a litigant has waived an argument based on that new case merely because he

previously failed to argue for the holding of that case himself. Contrary to the

Government’s assertion, that is so even if the new case does not “upend” existing precedent

that had explicitly foreclosed such an argument. To hold otherwise would be to force

litigants to continuously offer all possible arguments in a desperate attempt to avoid

waiving a potential future argument. It would also unnecessarily require appellate briefs

and opinions to be even longer and more labyrinthine than they are now.

B.

Having resolved that we may reach Cisson’s Rogers claims, we must next determine

what standard of review applies to them. Cisson argues that we should review the claims

de novo. The Government, in contrast, argues that we should apply plain error review.

Cisson, of course, did not raise a Rogers objection in the district court. And when

a defendant fails to object in the district court, we ordinarily review for plain error. See,

e.g., United States v. McMiller,

(4th Cir. 2020). But Rogers claims are

different by nature. A defendant who raises a Rogers claim argues that his “written

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judgment is inconsistent with his oral sentence.”

. A district court does

not enter a defendant’s written judgment until after it orally pronounces his sentence. So

at the time of his sentencing hearing, a defendant would have no way to know that the

court’s oral pronouncement of his sentence might differ from the written judgment the

court will later enter. As a result, we explained in Rogers that we “review the consistency

of [the] oral sentence and the written judgment de novo.”

.

The Government nonetheless argues that, although we applied de novo review in

Rogers, we should not similarly apply de novo review to Cisson’s Rogers claims. The

Government reasons that we applied de novo review in Rogers because in that case,

“nothing occurred at sentencing that would have alerted Rogers to the possibility that his

written judgment might include unmentioned conditions of supervised release.”

.

Here, the Government maintains that something did occur at Cisson’s sentencing to alert

him to that possibility: his presentence report recommended that the district court impose

discretionary conditions.

We agree with the Government that Cisson’s presentence report put him on notice

that his sentence might include discretionary conditions of supervised release. But

presentence reports do not have the force of law. Unless and until a district court adopts a

presentence report’s recommendations, those recommendations remain just that:

nonbinding recommendations. And in any event, even when a district court adopts the

recommendations of a presentence report at a sentencing hearing, the report’s contents have

at that point only become part of the court’s oral sentence. A court could still subsequently

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enter a written judgment that differs from that oral sentence, including by adding other

discretionary conditions that were not mentioned in the presentence report.

We thus reemphasize today what we held in Rogers: when 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.”

. 5

C.

We now turn to the merits of Cisson’s Rogers claims.

i.

Cisson bases his first Rogers claim not on a complete failure to announce a

discretionary condition but rather on an alleged inconsistency between the descriptions of

a condition in his oral sentence and in his written judgment. At his sentencing hearing, the

district court told Cisson that “within 72 hours of being released from the Bureau of Prisons

you’ll report to Probation in the district to which you are released.” (emphasis added).

But the court’s subsequently entered written judgment directed Cisson to “report to the

probation office in the federal judicial district where you are authorized to reside within

72 hours of your release.” (emphasis added). According to Cisson, this inconsistency

5 The Government also points to one of our recent unpublished decisions, United States v. Pollack, as support for its argument that we should review Cisson’s Rogers claims for plain error. No. 21-4221,

(4th Cir. Feb. 10, 2022) (per curiam) (unpublished). But Pollack offers no such support. In Pollack, when reviewing the reasonableness of a sentence, we noted that the court had not committed a Rogers error and then held that the court did not “otherwise plainly err in imposing those discretionary conditions.”

(emphasis added). Although we understand why the Government reads Pollack to support its position, in context it is clear that our reference did not pertain to a possible Rogers issue being plain error, but rather to other possible challenges to the imposition of the discretionary conditions as being reviewed under the plain error standard. 14 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 15 of 17

constitutes a Rogers error that requires vacating his sentence and remanding for

resentencing.

In response, the Government contends that there is in fact no inconsistency.

According to the Government, the district to which a defendant is released is the district in

which he is authorized to reside. In other words, when the Government releases a

defendant from prison, it releases the defendant “to” a district where it has determined he

is allowed to live. Cisson fails to respond in any way to this proffered explanation.

The Government may well be correct that the district to which a defendant is

released and the district in which he is authorized to reside are one and the same. There

are, however, other possible interpretations, including that the district “to which a

defendant is released” refers to the district that a defendant is physically in when he first

leaves prison (i.e., the district in which his prison is located). But Cisson has waived any

possible response to the Government’s proffered explanation. For this reason, we must

hold that there is no inconsistency between the descriptions of the condition in the oral

sentence and written judgment, and thus no Rogers error. 6

6 Cisson relies heavily on one of our recent unpublished opinions, Jenkins, as support for his argument that this inconsistency constitutes a Rogers error.

. In Jenkins, as here, the court stated at the defendant’s oral sentencing that “[w]ithin 72 hours of release, he shall report in person to the probation officer in the district to which he’s released.”

(alteration in original) (emphasis added). And as here, the defendant’s written judgment subsequently stated that he must “report to the probation office in the ‘judicial district where you are authorized to reside.’”

(emphasis added). We vacated the sentence and remanded for resentencing on the basis of that inconsistency.

. But in Jenkins, the Government failed to offer any explanation of that alleged inconsistency, let alone the one it provides here: that the district to which a defendant is released is the district in which he is authorized to reside. See Br. of Appellee at 9–18, Jenkins, No. 21-4003 (Sept. 24, 2021) (ECF No. 30). 15 USCA4 Appeal: 19-4031 Doc: 66 Filed: 05/05/2022 Pg: 16 of 17

ii.

Cisson’s second Rogers claim fares no better. In his Rule 28(j) letter, Cisson

initially argued that the district court failed to adequately announce his discretionary

conditions of supervised release because the court merely stated that it would impose the

“mandatory standard” conditions of supervised release. But that is not what the court

actually said. In his supplemental briefing, Cisson notes that his counsel and Government

counsel have since listened to the audio recording of his sentencing hearing and agree that

the court actually stated that it would impose the “mandatory and standard conditions” of

supervised release. (emphasis added). The transcript seems to have inadvertently omitted

the word “and.”

Despite acknowledging that the district court stated it would impose the “mandatory

and standard conditions” of supervised release, Cisson nevertheless maintains that the

court failed to adequately announce his discretionary conditions. But we made clear in

Rogers that a court may satisfy its requirement to announce discretionary conditions “by

incorporating . . . all Guidelines ‘standard’ conditions when it pronounces a supervised-

release sentence.”

. That is exactly what the district court did here by

stating that it would impose the “standard” conditions of supervised release. The District

of South Carolina has no standing order listing its own “standard” conditions that differs

from the Guidelines list of standard conditions found at U.S.S.G. § 5D1.3(c). Cf. id. at 295

(noting that the Western District of North Carolina has a standing order that governs

supervised release and lists “standard” conditions). Thus, there is no other set of “standard”

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conditions to which the court could have been referring other than the Guidelines

“standard” conditions. 7

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

7 Cisson also briefly argues that the district court failed to adequately explain why it imposed the discretionary conditions. But Cisson did not raise this argument in his original briefing or even in his Rule 28(j) letter, and he devotes only two sentences to the argument in his supplemental opening brief. He has thus waived the argument. See Grayson O Co.,

. 17