United States v. Stephan Bullis
U.S. Court of Appeals for the Fourth Circuit
United States v. Stephan Bullis
Opinion
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4184
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEPHAN M. BULLIS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:95-cr-00142-FL-1)
Argued: September 25, 2024 Decided: November 26, 2024
Before KING, BENJAMIN, and BERNER, Circuit Judges.
Vacated and remanded by published opinion. Judge Berner wrote the opinion, in which
Judge King and Judge Benjamin joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Katherine Simpson Englander, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United
States Attorney, 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.
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BERNER, Circuit Judge:
Following a nine-day trial, Stephen Bullis was convicted of six federal crimes,
including two counts of using a firearm during and in relation to other crimes, in violation
of 18 U.S.C. § 924(c). After Bullis had served twenty-three years in prison, the United
States Supreme Court struck down the “residual clause” of 18 U.S.C. § 924(c) as
unconstitutional. That ruling resulted in the district court setting aside Bullis’s two Section
924(c) convictions and resentencing him on the remaining four counts. Bullis contends that
the resentencing on the four remaining counts violated his rights under the Double Jeopardy
Clause of the United States Constitution because he had fully served his sentence on these
counts at the time of the resentencing.
Bullis’s challenge requires us to determine whether two of this court’s prior
opinions, United States v. Silvers, 90 F.3d 95 (4th Cir. 1996), and United States v. Smith,
115 F.3d 241 (4th Cir. 1997), can be read in accord with one another. Both address the
question of when a criminal sentence should be deemed “fully served” for purposes of
double jeopardy analysis. We conclude that Silvers and Smith do not conflict and further
hold that Bullis’s resentencing did not violate the Double Jeopardy Clause.
Bullis also challenges his resentencing as having been in violation of the
fundamental precept that criminal defendants have a right to be present for their sentencing.
Bullis contends that the district court erred by imposing a special condition of supervised
release that differed materially from the court’s oral pronouncement. Bullis also contends
that the district court erred because it failed to incorporate clearly the Standard Conditions
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of Supervision as adopted in the Eastern District of North Carolina. We agree with both
contentions, and therefore we vacate and remand for resentencing.
I. Background
A.
After doubling the payout on his then-wife’s life insurance policy, Bullis built and
mailed two improvised explosive packages to her office. Only one of the packages reached
its intended destination. 1 Bullis’s then-wife opened that package in her office. The resulting
explosion caused her severe and permanent harm. The explosion also substantially
damaged the building and caused physical and emotional trauma to several other people in
the office.
In June 1996, Bullis was tried and convicted on six separate counts:
Count 1: mailing nonmailable matter, in violation of 18 U.S.C. § 1716;
Count 2: damaging a building used in interstate commerce via explosives and
causing personal injury, in violation of 18 U.S.C. § 844(a);
Count 3: using a firearm 2 during and in relation to Counts 1 and 2, in violation of
18 U.S.C. § 924(c);
Count 4: placing nonmailable matter into the mail, in violation of
18 U.S.C. § 1716;
1
Bullis placed the second package in a mail collection bin that was not in use.
Fortunately, that package was subsequently located by a mail carrier and disarmed by law
enforcement without detonating.
2
The term “firearm” includes, for purposes of 18 U.S.C. § 924(c), “any destructive
device,” including in this case an explosive package. See 18 U.S.C. § 921(a)(3).
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Count 5: attempting to damage a building used in interstate commerce in violation
of 18 U.S.C. § 844(i); and
Count 6: using a firearm during and in relation to Count 5 in violation of
18 U.S.C. § 924(c).
The district court sentenced Bullis to 235 months of imprisonment on each of
Counts 1, 2, 4, and 5, all to run concurrently. On Count 3, the district court sentenced Bullis
to 360 months to run consecutive to the 235-month concurrent sentences on Counts 1, 2,
4, and 5. On Count 6, the district court imposed a lifetime sentence, also to run consecutive
to the 235-month concurrent sentences on Counts 1, 2, 4, and 5.
B.
Twenty-three years after Bullis was convicted, this court, sitting en banc, held that
the “residual clause” of 18 U.S.C. § 924(c) was unconstitutionally void for vagueness. See
United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc). The Supreme Court then
confirmed that holding in United States v. Davis, 588 U.S. 445 (2019). After these rulings,
Bullis filed a motion to vacate his two Section 924(c) convictions. The district court granted
that motion, setting aside Counts 3 and 6 of his conviction. The district court then
resentenced Bullis on the four remaining counts.
At the time of the resentencing, Bullis had served 331 months in prison. Following
a hearing, the district court imposed a revised sentence of 450-months’ imprisonment on
Count 2 and 240 months on Counts 1, 3, and 5, all to run concurrently. The resentencing
thus left Bullis with approximately 119 months remaining to serve on Count 2.
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The district court concluded the resentencing hearing by imposing five years of
supervised release and orally pronouncing the terms of release. Those terms included a
special condition of supervised release that required Bullis to consent to warrantless
searches. The district court’s oral pronouncement of the special condition was as follows:
In order to effectively supervise you, you’re going to have to consent to
warrantless searches of your computer, your phone, any data storage or
collection device, your car, your house, your person, by law enforcement or
by the probation office; but, Mr. Bullis, that’s only if there’s a reasonable
suspicion that you’re breaking the law or violating supervised release, or if
your officer needs to search you in the lawful discharge of the officer’s
duties. You’ll agree to that without a warrant.
J.A. 579-80. After the resentencing hearing, the district court issued a written judgment.
The written judgment included a term that had not been part of the court’s oral
pronouncement. It added a term that required Bullis to submit to searches of his “effects”
in addition to the terms previously listed during the hearing. The written judgment required
Bullis to:
[S]ubmit to a search, at any time, with or without a warrant, and by any law
enforcement or probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, or other electronic
communication or data storage devices or media, and effects upon reasonable
suspicion concerning a violation of a condition of supervised release or
unlawful conduct by the defendant, or by any probation officer in the lawful
discharge of the officer’s supervision function.
J.A. 289 (emphasis added).
The district court also pronounced orally during the resentencing hearing what it
deemed to be “standard conditions” of release. Importantly, the Eastern District of North
Carolina has a standing order that, if incorporated into an oral pronouncement, sets the
standard conditions of supervised release. Standing Order 21-SO-5 (effective May 6, 2021)
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(Standard Conditions of Supervision as adopted in the Eastern District of North Carolina).
When orally imposing the terms of Bullis’s supervised release, the district court stated as
follows:
There are standard conditions in this district, and I tell defendants when I
explain that these are things you should be doing anyway: Don’t lie to your
probation officer. Sometimes I see people not because, per se, what they did
wrong under supervised release, but because when questioned, they lied
about it. You can’t effectively supervise a liar. So if there’s lying going on,
you’re going to see the Court, and that’s going to be a real issue. Things like
you can’t live any place that hasn’t been preapproved. You can’t associate
with convicted felons unless you have permission in advance. People can
change. You can’t be around people who are breaking the law. Open the door
when your probation officer comes to visit you, wherever the probation
officer comes to visit you. Standard conditions you’ll comply with.
J.A. 579.
II. Standard of Review
We review this appeal under two standards. Because Bullis did not argue before the
district court that the resentencing violated the Double Jeopardy Clause, we review that
claim for plain error. Fed. R. Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725,
731-32 (1993). Plain-error review requires that a defendant establish (1) an error; (2) that
is plain; and (3) that affects his substantial rights. Olano, 507 U.S. at 732. “Only if a
defendant establishes these three elements can we grant discretionary relief.” United States
v. Collins, 982 F.3d 236, 241 (4th Cir. 2020).
We review “the consistency of [an] oral sentence and the written judgment de novo,
comparing the sentencing transcript with the written judgment to determine whether an
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error occurred as a matter of law.” United States v. Rogers, 961 F.3d 291, 296 (4th Cir.
2020) (internal quotations omitted).
III. Double Jeopardy Clause
The Fifth Amendment of the United States Constitution establishes that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. This Double Jeopardy Clause guarantee consists of three separate
constitutional protections: “It protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.” North
Carolina v. Pearce, 395 U.S. 711, 717 (1969). It is the last of these protections—the
protection against multiple punishments for the same offense—that Bullis contends the
district court violated when it resentenced him on Counts 1, 2, 4, and 5.
A criminal sentence is not afforded the finality and conclusiveness afforded to an
acquittal. United States v. DiFrancesco, 449 U.S. 117, 133 (1980). Accordingly, to
determine if an increased sentence for the same conviction violates the Double Jeopardy
Clause, we consider “whether the defendant had a legitimate expectation of finality in his
sentence.” United States v. Silvers, 90 F.3d 95, 101 (4th Cir. 1996). “Although an
expectation of finality does not legitimately accrue by the mere commencement of the
sentence, once a defendant fully serves a sentence for a particular crime, the Double
Jeopardy Clause’s bar on multiple punishments prevents any attempt to increase thereafter
a sentence for that crime.” Id.(citing Ex Parte Lange,85 U.S. (18 Wall.) 163
(1873)).
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This court has considered when a sentence is “fully served” for purposes of the
Double Jeopardy Clause in two prior cases: United States v. Silvers, 90 F.3d 95, and United
States v. Smith, 115 F.3d 241 (4th Cir. 1997). Although the parties agree that these cases
control our inquiry, Bullis argues that Silvers and Smith are in direct conflict and cannot be
reconciled. Appellant Reply Br. at 5. He correctly notes that when two of this court’s panel
opinions conflict, we are bound to follow the earlier-decided case. See McMellon v. United
States, 387 F.3d 329, 332-33 (4th Cir. 2004) (en banc). Because Silvers was decided earlier,
Bullis argues that we are bound to follow its holding.
Bullis contends that Silvers requires us to hold that he had fully served his sentences
on Counts 1, 2, 4, and 5 at the time of his resentencing. Thus, Bullis claims that his
resentencing on these counts violated the Double Jeopardy Clause. Bullis’s arguments
would require us to conclude that the holding in Smith conflicts with the holding in Silvers
and must not be followed.
We find no such conflict in this court’s prior decisions. Instead, we conclude that
Silvers and Smith are fully in accord, and Smith controls our inquiry here.
A.
We begin our analysis with this court’s earlier decision, United States v. Silvers.
Silvers was convicted of the following crimes: one count of supervising a continuing
criminal enterprise (CCE), in violation of 21 U.S.C. § 848; three counts of possession with
intent to distribute cocaine, in violation of 21 U.S.C. § 841; two counts of interstate travel
in aid of racketeering, in violation of 18 U.S.C. § 1952; and one count of conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371. Silvers,90 F.3d at 97
.
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Silvers was originally sentenced to 420 months’ imprisonment on the CCE count,
180 months on each of the three possession-with-intent-to-distribute counts, and 60 months
on each of the two counts of interstate travel in aid of racketeering and the conspiracy-to-
defraud count. Id.Each sentence was imposed to run concurrently.Id.
After several years of imprisonment, Silvers successfully argued that his 420-month
sentence for the CCE count had to be vacated because it had been procured through
perjured testimony. Id. The district court vacated the CCE conviction and held a
resentencing hearing on the remaining counts. Id. At the time of the resentencing, Silvers
had served approximately 84 months’ imprisonment. Id. at 101.
At the resentencing hearing, the district court attempted to revise Silvers’s sentences
on the remaining counts to impose a term of imprisonment similar to the original sentence.
Id. at 97-98. The district court first reimposed the three concurrent 180-month sentences
on each of the possession-with-intent-to-distribute counts. Id. at 98. The district court then
imposed two concurrent 60-month sentences for the interstate-travel-in-aid-of-racketeering
counts, to run consecutive to the possession-with-intent-to-distribute sentences. Id. Finally,
the district court imposed one 60-month term for the conspiracy-to-defraud count, to run
consecutive to the possession-with-intent-to-distribute and interstate-travel-in-aid-of-
racketeering sentences. Id. In all, the district court’s revised sentence totaled 300 months’
imprisonment.
Silvers challenged the resentencing under the Double Jeopardy Clause. Because he
had already served 84 months, Silvers argued that his 60-month sentences for both counts
of interstate travel in aid of racketeering and the one count of conspiracy to defraud the
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United States had been fully served. Id. at 101. This court agreed, holding that the
reimposition of those sentences to run consecutive to the three possession-with-intent-to-
distribute counts violated the Double Jeopardy Clause. Id. This court explained that the
sentences had been fully served because “[a]ll of these sentences were imposed concurrent
to each other and to [Silvers’s] original [420-month] CCE conviction.” Id. (emphasis
added).
B.
Less than a year after the ruling in Silvers, this court decided a similar Double
Jeopardy Clause challenge to a resentencing. In United States v. Smith, Smith had been
convicted of the following crimes: one count of conspiracy with intent to distribute, in
violation of 21 U.S.C. § 846; one count of possession with intent to distribute, in violation
of 21 U.S.C. § 841(a)(1); and one count of using a firearm during a felony drug offense, in
violation of 18 U.S.C. § 924(c).115 F.3d at 243
. Smith was sentenced to 37 months of
imprisonment for the two consolidated intent-to-distribute counts and 60 months for the
firearm offense. Id. The sentence for the firearm offense was imposed to run consecutive
to the sentence for the intent-to-distribute counts, for a total sentence of 97 months. Id.
After the Supreme Court ruled in Bailey v. United States, 516 U.S. 137 (1995), that
“active employment” of a firearm is required to support an 18 U.S.C. § 924(c)(1)
conviction, Smith successfully moved to vacate his 60-month firearm sentence. Smith, 115
F.3d at 243. After vacating that count, the district court held a resentencing hearing on
Smith’s two remaining convictions for intent to distribute. Id. At the time of the
resentencing hearing, Smith had completed slightly more than 37 months of imprisonment.
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Id. The district court resentenced Smith to 89 months’ imprisonment for the intent-to-
distribute counts. Id. at 243-44.
Smith challenged the resentencing as a violation of his right against double
jeopardy. The Smith court recognized that Silvers held that “if a defendant has fully
discharged his sentence pertaining to certain counts, he may not be resentenced on those
counts.” Id. at 246. Silvers did not, however, resolve the question of “whether Smith
[had] fully discharged his sentence.” Id. (emphasis in original).
Smith based his double jeopardy claim “on the premise that the sentences on the
drug related counts were separate and distinct from the sentence on the [gun
related] count.” Id. at 247. Unlike Silvers’s concurrent sentences, however, Smith’s 97-
month sentence was “one unified term of imprisonment” made up of multiple sentences to
run consecutively. Id. In other words, when sentences are imposed consecutively, those
sentences are deemed a “package.” Id. This has come to be known as the sentence package
theory. Because Smith’s 97-month sentence—which included consecutive sentences for
the two consolidated intent-to-distribute counts and the firearm offense—was “one
aggregate sentence,” this court held that his sentence package had not been fully served at
the time of the resentencing. Id. Thus, Smith’s revised sentence for the intent-to-distribute
counts was not in violation of the Double Jeopardy Clause.
C.
We begin our application of Silvers and Smith in this case with the principle that we
must endeavor to harmonize the holdings of our prior opinions whenever possible. See,
e.g., United States v. Hansen, 929 F.3d 1238, 1254 (10th Cir. 2019). Finding harmony in
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Silvers and Smith does not prove difficult. The critical distinction between these cases that
allows us to reconcile their holdings is that Silvers’s sentences ran concurrently whereas
Smith’s ran consecutively.
The district court in Silvers originally imposed four sentences that all ran concurrent
with one another. 90 F.3d at 97. Because they ran concurrently, each sentence was distinct
from and independent to every other sentence. Thus, at the time of Silvers’s resentencing,
he had fully served the sentences for the two counts of interstate travel in aid of racketeering
and the conspiracy-to-defraud count. This graph depicts Silvers’s sentences at the time of
his resentencing:
At the time of Silvers’s resentencing, only the three 180-month sentences for intent-
to-distribute had not been fully served. These were thus the only sentences that the district
court could revise without running afoul of the Double Jeopardy Clause. Reimposing the
sentences for the two counts of interstate travel in aid of racketeering and the conspiracy-
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to-defraud count amounted to “reimposition of sentence on counts upon which Silvers had
fully satisfied his sentence.” Silvers, 90 F.3d at 101.
Smith, by contrast, was sentenced to a consolidated term of 37 months for the drug-
related crimes and a consecutive firearms sentence of 60 months, for a total sentence of 97
months. Smith, 115 F.3d at 243. At the time he was resentenced, Smith had yet to serve the
entire 97-month package of consecutively imposed sentences. Id. at 247. This graph depicts
Smith’s sentences at the time of his resentencing:
Because Smith had yet to serve fully his sentences for intent to distribute, the district
court’s reimposition of sentences for those crimes did not run afoul of the Double Jeopardy
Clause.
The rule from Silvers and Smith can be summarized succinctly: reimposition of a
sentence fully served violates the Double Jeopardy Clause, but any component sentence of
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a consecutive sentence package is not fully served until the aggregate sentence package
has been fully served.
D.
Our double jeopardy inquiry here is straightforward when we apply the sentence
package rule. Bullis was originally sentenced to 235 months on Counts 1, 2, 4, and 5, each
to run concurrently with one another. The district court imposed a 360-month sentence for
Count 3 and a life sentence for Count 6, both consecutive to the 235-month sentences for
Counts 1, 2, 4, and 5. Thus, the district court imposed two sentence “packages”: a 595-
month sentence for Counts 1, 2, 3, 4, and 5, and a life sentence plus 235 months for Counts
1, 2, 4, 5, and 6. This graph depicts Bullis’s sentences at the time of his resentencing:
Because Bullis had served 331 months at the time of resentencing, he had yet to
complete either of the aggregate sentence packages. As a result, the district court could
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resentence Bullis on Counts 1, 2, 4, and 5 without violating his double jeopardy rights. We
find that the district court did not err in resentencing Bullis on these counts, and therefore
our plain error review ends on the first prong.
IV. Rogers Analysis
We next turn to the conditions of supervised release imposed by the district court at
Bullis’s resentencing. Bullis raises two challenges, both grounded in this court’s ruling in
United States v. Rogers, 961 F.3d 291 (4th Cir. 2020). Bullis first contends that the district
court’s oral pronouncement of the special search condition was not a sufficient match to
the written condition. The Rogers court recognized that a material discrepancy between
written and orally articulated discretionary conditions of supervision violates a criminal
defendant’s right to be present for sentencing. 961 F.3d at 296 (citing Fed. R. Crim. P.
43(a)(3)).
Bullis also argues that the district court erred when it failed to incorporate expressly
the Standard Conditions of Supervision as adopted in the Eastern District of North
Carolina. In addition to requiring a match between a district court’s oral and written
sentencing pronouncements, Rogers also held that “all non-mandatory conditions of
supervised release must be announced at a defendant’s sentencing hearing.” Id. This
requirement emanates from the same fundamental precept that a criminal defendant has a
right to be present when he is sentenced. Id.
In our circuit, such errors have come to be known as Rogers errors. United States v.
Cisson, 33 F.4th 185, 191 (4th Cir. 2022). The remedy for Rogers errors “is to vacate the
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sentence and remand to the district court for resentencing.” Id. We evaluate each of Bullis’s
Rogers arguments independently.
A.
There is no dispute that the district court did not include the phrase “and effects” in
the special search condition when it orally pronounced Bullis’s sentence. Compare
J.A. 579-80 with J.A. 289. The Government contends that the failure to include this phrase
did not create a mismatch between the written judgment and the oral pronouncement. The
Government makes two arguments in support of its contention.
The Government first argues that Bullis’s presentence report contained a
recommendation for a special search condition that included the phrase “and effects” and
Bullis did not object to that condition. Gov’t Br. at 19-20. The Government contends that
the district court intended to impose the presentence report’s special search condition. Id.
This court has made clear, however, that “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.” Cisson, 33 F.4th at 193
(emphasis in original). The district court neither adopted nor incorporated the
recommendations in Bullis’s presentence report at the resentencing hearing. See Rogers,
961 F.3d at 300 (describing oral incorporation of written conditions). Thus, the presentence
report search condition was nothing more than a nonbinding recommendation and Bullis
would have had no reason to object to its contents.
The Government next argues that the oral pronouncement and the written judgment
do not differ substantively. According to the Government, the addition of the phrase “and
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effects” has no meaning because “effects” was intended to refer only to Bullis’s personal
belongings “within the locations already named” by the special condition. Gov’t Br. at 20.
We disagree. The plain meaning of the word “effects” extends far further than the
Government suggests. Even the Government concedes that Black’s Law Dictionary defines
“effects” to include “[m]ovable property; goods.” Id. The district court’s oral
pronouncement was narrower than a condition that would include all of Bullis’s movable
property. The district court specified only Bullis’s computer, phone, data storage or
collection devices, car, house, and person as proper subjects of search. Nothing more.
Because the district court’s written judgment contains a search category that is substantially
broader than its oral pronouncement, the two materially differ. The addition of the phrase
“and effects” to the written judgment was, therefore, reversible Rogers error.
B.
We last turn to Bullis’s second claim of Rogers error. Bullis claims that the district
court failed to incorporate expressly the Standard Conditions of Supervision as adopted in
the Eastern District of North Carolina at the resentencing hearing, yet those conditions were
included in the court’s written judgment. If a written judgment includes conditions not
imposed orally, then the proper remedy is to remand for full resentencing. United States v.
Singletary, 984 F.3d 341, 346 & n.4 (4th Cir. 2021).
“[A] district court may satisfy its obligation to orally pronounce discretionary
conditions through incorporation” by “expressly incorporating a written list of proposed
conditions.” Rogers, 961 F.3d at 299. This includes “a court-wide standing order that lists
certain conditions of supervised release.” Id. The Eastern District of North Carolina has
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such a standing order. Standing Order 21-SO-5 enumerates discretionary conditions of
supervised release. It also clearly specifies that “any reference in the pronouncement of a
sentence to the ‘Standard Conditions of Supervision as adopted in the Eastern District of
North Carolina’ shall be deemed to refer to and incorporate” its standard conditions.
Standing Order 21-SO-5 at 1.
Here we must determine whether the district court’s oral pronouncement expressly
incorporated the Standard Conditions of Supervision as adopted in the Eastern District of
North Carolina. “[T]he requirement that a district court expressly adopt a written list of
proposed conditions is ‘not a meaningless formality.’” Rogers, 961 F.3d at 300 (quoting
United States v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020)) (emphasis added). Clarity of
the criminal sentence being imposed is paramount. Not only is it a critical part of the
defendant’s right to be present at sentencing, “[e]xpress incorporation also provides us, as
a reviewing 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.” Id.
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Unlike the oral incorporations favorably cited in Rogers, 3 here the district court
failed to make sufficiently clear its intention to incorporate the Eastern District of North
Carolina’s standard conditions. Instead of incorporating the Eastern District of North
Carolina’s standard conditions by their name, the district court referenced generally
“standard conditions in this district.” J.A. 579. The district court then admonished Bullis
not to engage in a series of vaguely described activities. After conveying this series of
admonishments, the district court then stated: “Standard conditions you’ll comply with.”
J.A. 579.
The district court’s oral pronouncement was ambiguous. Did the district court mean
to impose as specific conditions the series of admonishments it pronounced orally to Bullis
or the Standard Conditions of Supervision as adopted in the Eastern District of North
Carolina? Because the right to hear the entirety of one’s sentence is “fundamental,” Rogers,
961 F.3d at 296, district courts must be clear when orally incorporating a written list of
proposed terms. That did not happen here. The district court’s oral pronouncement did not
suffice to incorporate expressly the Standard Conditions of Supervision as adopted in the
3
Rogers cited favorably the oral pronouncements in two sentencing hearings in our
circuit. 961 F.3d at 300. In United States v. Ferebee, the district court orally pronounced
that the defendant “shall comply with the standard conditions of supervised release that
have been adopted by the Court in the Western District of North Carolina.” No. 18-4266,
Joint Appendix at 142-43 (4th Cir. 2020). Similarly, in United States v. McMiller, the
district court orally pronounced that the defendant “shall comply with the standard
conditions of supervised release, and the standard sex offender conditions of supervised
release that have been adopted by the Court in the Western District of North Carolina.” No.
18-4744, Joint Appendix at 70 (4th Cir. 2020). Both of these pronouncements satisfy this
court’s requirement that oral pronouncements of sentencing expressly incorporate written
conditions.
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Eastern District of North Carolina. The failure to do so constituted a second reversible
Rogers error.
V. Conclusion
Bullis’s resentencing did not violate the Double Jeopardy Clause. Bullis had not
fully served his sentences on Counts 1, 2, 4, and 5. Thus, the district court could reimpose
sentences on those counts. The district court’s oral pronouncement of Bullis’s terms of
supervised release was, however, inconsistent with the written judgment imposed.
Accordingly, we vacate and remand for resentencing consistent with this opinion.
VACATED AND REMANDED
20
Reference
- Status
- Published