USCA4 Appeal: 21-4254 Doc: 47 Filed: 12/29/2022 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4254

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FERMIN GOMEZ-JIMENEZ,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:17-cr-00589-JKB-3)

Submitted: October 5, 2022 Decided: December 29, 2022

Before WYNN and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Brent E. Newton, Gaithersburg, Maryland, for Appellant. Erek L. Barron, United States Attorney, Zachary B. Stendig, Assistant United States Attorney, John J. Truex Chung, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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PER CURIAM:

Fermin Gomez-Jimenez pled guilty to conspiracy to participate in a racketeering

enterprise and using a firearm during and in relation to a crime of violence. At sentencing,

the district court imposed a total of 456 months’ imprisonment, along with a five-year term

of supervised release, $4,700 in restitution, and a $200 special assessment. On appeal,

Gomez-Jimenez argues that the court’s oral sentence and written judgment are inconsistent

with respect to the imposition of $4,700 in restitution. Finding no reversible error, we

affirm.

I.

In September 2019, pursuant to a written plea agreement, Gomez-Jimenez pled

guilty to one count of conspiracy to participate in a racketeering enterprise in violation of

(d) and one count of using a firearm during and in relation to a crime of

violence in violation of

(c). His plea agreement included a standard appeal

waiver in which he waived, among other things, the right to “appeal whatever sentence . . .

imposed (including any term of imprisonment, fine, term of supervised release, or order of

restitution) for any reason.” J.A. 56.

At the May 18, 2021, sentencing hearing, the district court sentenced Gomez-

Jimenez to 456 months of imprisonment and five years of supervised release. It then

incorporated the mandatory (or “statutory”) conditions of supervised release, as well as the

standard conditions of supervised release as set out in the presentence report and the court’s

standing order. It also pronounced two special conditions of supervised release relating to

Gomez-Jimenez’s immigration status. The court then stated it would impose no fine and

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that “[r]estitution is in order, [and] the government has asked for $4,700, jointly and

severally with other defendants in the case.” J.A. 149. Prior to the end of the hearing, the

district court briefly revisited the restitution issue, setting a payment plan whereby Gomez-

Jimenez would “pay restitution in the amount of $50 per month upon his release from

incarceration . . . and the commencement of his supervised release term.” J.A. 154–55.

Neither Gomez-Jimenez nor his counsel objected to the restitution order or the payment

plan for restitution.

On May 20, 2021, the district court issued its written judgment. That judgment

included the terms of imprisonment and supervised release, as well as the two special

conditions of supervised release related to Gomez-Jimenez’s immigration status,

announced at sentencing. The court inserted the restitution requirements in the section on

“Supervised Release Additional Conditions,” alongside the two other special conditions,

stating that Gomez-Jimenez “must pay restitution in the amount of $4,700.00, in equal

monthly installments of $50.00, joint and several with co-defendants.” J.A. 171. In the

next section on “Criminal Monetary Penalties,” the judgment again noted Gomez-

Jimenez’s restitution obligation and set forth the schedule of payments. J.A. 172–73.

Gomez-Jimenez timely appealed from the judgment, challenging only the

imposition of $4,700 in restitution.

II.

In United States v. Rogers, we held that “all non-mandatory conditions of supervised

release must be announced at a defendant’s sentencing hearing.”

, 296 (4th

Cir. 2020). Therefore, when a discretionary condition of supervised release appears for the

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first time in a subsequent written judgment, the defendant has not been actually sentenced

to that condition, the condition is a nullity, and the proper remedy is to remand for

resentencing. United States v. Singletary,

, 344 (4th Cir. 2021) (citing Rogers,

961 F.3d at 295, 300–01). Gomez-Jimenez claims that the district court committed Rogers

error when, at sentencing, it failed to designate restitution and the payment plan expressly

as discretionary conditions of supervised release.

A.

As an initial matter, the Government argues that Gomez-Jimenez’s appeal waiver

bars his claim on appeal. The parties do not dispute that the appeal waiver is valid, but as

we have previously held, a Rogers claim typically falls outside the scope of a valid appeal

waiver. Singletary, 984 F.3d at 345. This case is no different. As in Singletary, the

relevant portion of the appeal waiver here applies only to “whatever sentence is imposed.”

J.A. 56. But “the heart of a Rogers claim is that discretionary conditions appearing for the

first time in a written judgment in fact have not been ‘imposed.’” Singletary, 984 F.3d at

345 (emphasis in original). Thus, if Gomez-Jimenez prevails on the merits of his Rogers

claim, he has not been sentenced to the restitution condition of supervised release at all.

Because such a claim falls outside the scope of his appeal waiver, we conclude that the

appeal waiver does not bar his claim.

B.

We turn to the merits of Gomez-Jimenez’s Rogers claim. In doing so, we review

“the consistency of [Gomez-Jimenez’s] oral sentence and the written judgment de novo,

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comparing the sentencing transcript with the written judgment to determine whether an

error occurred as a matter of law.” Rogers, 961 F.3d at 296 (quotation omitted).

The transcript is clear that the district court discussed restitution several times at

sentencing. Read in context, moreover, the district court’s statement that restitution and

the payment plan “will be paid upon . . . the commencement of [Gomez-Jimenez’s]

supervised release term” indicates that these would be conditions of supervised release.

J.A. 155. The animating purpose of the Rogers rule is to afford the defendant the

opportunity to object to the condition in open court, flowing from the right to be present at

sentencing. Rogers, 961 F.3d at 298. Here, Gomez-Jimenez and his counsel had ample

opportunity to object given they were on notice that the district court would be announcing

restitution and the payment plan as conditions of supervised release. Because the district

court announced restitution and the associated payment plan as part of the sentence, there

is no Rogers error warranting remand in this case. Moreover, given that Gomez-Jimenez

acknowledges that the appeal waiver in his plea agreement precludes a challenge to the

restitution order itself, we do not reach issues arising from the restitution order.

III.

For the foregoing reasons, we affirm Gomez-Jimenez’s sentence. 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

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