USCA4 Appeal: 16-4250 Doc: 25 Filed: 11/14/2022 Pg: 1 of 6

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4250

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HATRATICO GAZZAR BENJAMIN SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen Lipton Hollander, Senior District Judge. (1:12-cr-00528-ELH-1)

Submitted: October 31, 2022 Decided: November 14, 2022

Before WYNN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Sicilia C. Englert, LAW OFFICE OF SICILIA C. ENGLERT, LLC, Alexandria, Virginia, for Appellant. Michael Clayton Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 16-4250 Doc: 25 Filed: 11/14/2022 Pg: 2 of 6

PER CURIAM:

Hatratico Gazzar Benjamin Smith pled guilty, pursuant to a plea agreement and an

incorporated statement of facts, to conspiracy to commit Hobbs Act robbery, in violation

of

(count 1), and possessing, brandishing, and discharging a firearm in

furtherance of the crimes of violence of conspiracy to commit Hobbs Act robbery and

Hobbs Act robbery, in violation of

, 924(c) (count 46). The parties stipulated

in the agreement that a 180-month prison term on count 1 and a consecutive 120-month

prison term on count 46 were the appropriate dispositions in the case, see Fed. R. Crim. P.

11(c)(1)(C), and the district court sentenced Smith to 180 months’ imprisonment on count

1, a consecutive term of 120 months’ imprisonment on count 46, and concurrent supervised

release terms of three and five years.

In this appeal from the initial and amended criminal judgments, Smith’s counsel has

filed a brief pursuant to Anders v. California,

(1967), stating that there are no

meritorious issues for appeal but questioning whether Smith’s conviction on count 46 is

infirm because it is based on the invalid predicate of Hobbs Act conspiracy. Smith was

informed of his right to file a pro se supplemental brief, but he has not done so. The

Government did not file a brief and does not seek to enforce the appeal waiver in Smith’s

plea agreement. 1 We affirm in part, vacate in part, and remand for resentencing.

1 Because the Government fails to assert the waiver as a bar to this appeal, we consider the issue raised by counsel and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter,

(4th Cir. 2007).

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We review counsel’s challenge to Smith’s conviction for plain error. See United

States v. Lockhart,

(4th Cir. 2020) (en banc). To succeed under plain

error review, Smith must show that (1) an error occurred; (2) the error was plain; and (3)

the error affected his substantial rights.

“We retain the discretion to correct such an

error but will do so only if the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.”

(internal quotation marks omitted).

Section 924(c) provides that a person who “uses or carries” a firearm “during and

in relation to any crime of violence,” or who “possesses” a firearm “in furtherance of any

such crime,” may be convicted of both the underlying crime of violence and the use,

carrying, or possession of that firearm.

(c)(1)(A); see United States v.

Bryant,

(4th Cir. 2020). A “crime of violence” is defined for such

purposes as “an offense that is a felony” and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(c)(3). “Courts refer to § 924(c)(3)(A) as the force clause and to

§ 924(c)(3)(B) as the (now-invalid) residual clause.” Bryant,

(internal

quotation marks omitted); see United States v. Davis,

(2019)

(holding § 924(c) residual clause is unconstitutionally vague following Johnson v. United

States,

(2015) (holding residual clause of Armed Career Criminal Act,

(e)(2)(B)(ii), is unconstitutionally vague)).

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When Smith pled guilty in 2013, conspiracy to commit Hobbs Act robbery qualified

as a crime of violence under the residual clause at § 924(c)(3)(B). In the wake of the

Supreme Court’s 2015 decision in Johnson and its progeny, this court determined that

conspiracy to commit Hobbs Act robbery-one of the predicates undergirding count 46-is

not categorically a crime of violence and thus cannot serve as a valid predicate for a

§ 924(c) charge. See United States v. Ali,

(4th Cir.), cert. denied,

(2021). The other predicate undergirding count 46-substantive Hobbs Act

robbery-continues, however, to qualify as a valid § 924(c) predicate. Id.

In United States v. Crawley – for which this appeal was held in abeyance – this court

held that, if a defendant’s § 924(c) conviction resulting from his guilty plea is “expressly

based on [a] valid and invalid predicate,” then it “remains sound following Johnson and its

progeny.”

(4th Cir. 2021), cert. denied,

(2022). In other

words, we will uphold a § 924(c) conviction if it is “expressly predicated” on at least one

offense that categorically qualifies as a crime of violence. Id. To determine which

predicate offenses underlie a § 924(c) conviction obtained by a guilty plea, we look to “the

critical record documents,” id. at 267, which include the indictment, the plea agreement,

the statement of facts, and the plea colloquy, id. at 263-64. At bottom, the inquiry centers

on whether “the conduct to which the defendant admits is in fact an offense under the

statutory provision under which he is pleading guilty,” id. at 265 (internal quotation marks

omitted), and, if so, whether that offense is a valid predicate, id. at 263.

The superseding indictment identified the valid predicate of Hobbs Act robbery and

the now-invalid predicate of conspiracy to commit Hobbs Act robbery as the crimes of

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violence undergirding count 46. Smith admitted in the statement of facts that the

Government would prove he committed a gunpoint robbery of a restaurant and confirmed

at the guilty plea hearing he had agreed to the statement of facts and was pleading guilty to

count 46 because he had committed that offense. Based on the critical record documents

in this case, we are satisfied that Smith’s conviction on count 46 was expressly based on a

valid predicate and an invalid predicate. Under Crawley, that is enough to sustain the

conviction. 2

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

no meritorious issues remaining as to Smith’s convictions. Reviewing the transcript of the

sentencing hearing and the non-mandatory conditions of supervised release appearing in

the written judgments pursuant to Anders, we note that, since the time of Smith’s

sentencing, this court has issued additional guidance as to what is necessary to sentence a

defendant to a non-mandatory condition of supervised release.

“[I]n order to sentence a defendant to a non-mandatory 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 United States v. Rogers,

(4th Cir. 2020)). This

directive applies to “any set of discretionary conditions—even those categorized as

2 We reject as without merit counsel’s assertion that count 46 is infirm because, by signing the plea agreement, Smith agreed only that, if the case proceeded to a trial, the Government would prove information set forth in the statement of facts. It is undercut by Smith’s admissions at the guilty plea hearing and foreclosed by Crawley. See

.

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‘standard’ by the [Sentencing] Guidelines.” Rogers,

. After reviewing

the record, we conclude that the district court—which did not have the benefit of these

decisions when it sentenced Smith—did not comply with this directive with respect to

non-mandatory conditions of supervision appearing in the judgments. Thus, Smith was

not sentenced to those conditions, and a remand for resentencing is required.

See Singletary,

; see also United States v. Jenkins, No. 21-4003,

, at *1-2 (4th Cir. Jan. 12, 2022) (concluding that lack of “match” between

oral pronouncement that defendant report to probation officer in district “to which he’s

released” and written direction in judgment that defendant report to probation office in

judicial district where he was “authorized to reside” qualified as “reversible Rogers error”).

We therefore affirm Smith’s convictions, vacate his sentence, and remand for

resentencing. We deny Smith’s motion to place this appeal in abeyance for No. 17-4269,

United States v. Pyos. This court requires that counsel inform Smith, in writing, of the

right to petition the Supreme Court of the United States for further review. If Smith

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 Smith.

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

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