USCA4 Appeal: 21-4626 Doc: 30 Filed: 12/22/2022 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4626

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DENNARD JEMAL FRAZIER, a/k/a DJ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00484-FL-1)

Submitted: December 20, 2022 Decided: December 22, 2022

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Robert J. Parrott Jr., PARROTT LAW P.L.L.C., Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4626 Doc: 30 Filed: 12/22/2022 Pg: 2 of 4

PER CURIAM:

Dennard Jemal Frazier pleaded guilty, pursuant to a written plea agreement, to

possession with intent to distribute a quantity of cocaine, heroin, and marijuana, in

violation of

(a)(1), (b)(1)(C), and possession of a firearm as a convicted

felon, in violation of

(g). The district court sentenced Frazier to 49 months’

imprisonment and Frazier timely appealed. On appeal, counsel has filed a brief pursuant

to Anders v. California,

(1967), stating that there are no meritorious grounds

for appeal but questioning whether Frazier’s sentence is reasonable and whether counsel

provided ineffective assistance at sentencing. In a pro se brief, Frazier contests the

procedural reasonableness of his sentence. The Government has moved to dismiss the

appeal pursuant to the appeal waiver contained in the plea agreement; Frazier opposes the

motion. For the reasons that follow, we affirm the conviction, vacate Frazier’s sentence

and remand for resentencing, and deny as moot the Government’s motion to dismiss.

First, upon a review of the record, we conclude that Frazier’s guilty plea was

knowing, voluntary, and supported by a sufficient factual basis and that he knowingly and

voluntarily waived his right to appeal. However, in accordance with Anders, we have

found a meritorious issue that falls outside the scope of Frazier’s appeal waiver and

requires us to vacate his sentence and remand for resentencing. * Specifically, some of the

* Because we vacate Frazier’s sentence, we do not consider any other issues related to the sentence, including his claim that he received ineffective assistance of counsel at sentencing. See United States v. Singletary,

(4th Cir. 2021) (declining to consider additional challenges to original sentence).

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non-mandatory conditions of supervised release included in the written criminal judgment

were not orally pronounced at sentencing.

We review de novo whether the sentence imposed in the written judgment is

consistent with the district court’s oral pronouncement of the sentence. United States v.

Rogers,

(4th Cir. 2020). While a district court need not orally pronounce

all mandatory conditions at the sentencing hearing, “all non-mandatory conditions of

supervised release must be announced at a defendant’s sentencing hearing,” either by

separately announcing each discretionary condition or by “expressly incorporating a

written list of proposed conditions.”

.

In pronouncing the terms of Frazier’s supervised release at sentencing, the district

court did not orally impose the standard conditions of supervised release. In United States

v. Singletary, we explained that a challenge to discretionary supervised release terms that

were not orally pronounced at sentencing falls outside the scope of an appeal waiver

because “the heart of a Rogers claim is that discretionary conditions appearing for the first

time in a written judgment . . . have not been ‘imposed’ on the defendant.”

(emphasis omitted). Where, as here, the court fails to announce non-mandatory conditions

of supervised release that are later included in the written judgment, the remedy is to vacate

the sentence and remand for a full resentencing hearing.

at 346 & n.4.

In accordance with Anders, we have reviewed the record in its entirety, and we have

found no other meritorious issues for appeal outside the scope of the waiver. Accordingly,

we affirm Frazier’s conviction, vacate his sentence, and remand for resentencing. We deny

as moot the Government’s motion to dismiss.

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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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