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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4018

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARTREY ANTWAIN NEWBY, a/k/a Trey,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:07-cr-00051-FL-1)

Argued: September 22, 2023 Decided: January 19, 2024

Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Sentence vacated and remanded for resentencing by published opinion. Judge Heytens wrote the opinion, in which Judge Wynn joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Kevin James Barber, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Acting Deputy Assistant Attorney General, Joel S. Johnson, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, David A. USCA4 Appeal: 21-4018 Doc: 49 Filed: 01/19/2024 Pg: 2 of 12

Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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TOBY HEYTENS, Circuit Judge:

Martrey Newby has been incarcerated for more than a decade and is scheduled to

be released in 2028. When initially sentencing Newby, the district court included

discretionary conditions of supervised release in its written judgment that were not orally

announced during the sentencing hearing. That was error. See United States v. Rogers,

(4th Cir. 2020). Years later, the district court modified Newby’s sentence

under the First Step Act of 2018, and the court’s amended judgment purported to “carr[y]

forward” those same conditions. JA 171. Newby appeals, urging this Court to remand for

another round of sentencing. We conclude that, in the specific posture of this case, Newby’s

challenges are properly before us. On the merits, we vacate Newby’s sentence and remand

for a full resentencing.

I.

In 2008, Newby was convicted of six non-violent drug crimes. On top of 425 months

of imprisonment, his sentence included a 10-year term of supervised release.

During the post-trial sentencing hearing, the district court announced various

discretionary conditions of supervised release. In its written judgment memorializing that

sentence, however, the court purported to add several more such conditions. Newby

appealed his sentence on grounds unrelated to this proceeding, which were rejected in an

unpublished per curiam opinion. See United States v. Newby,

(4th Cir.

2010).

Almost a decade later, Newby filed a pro se motion seeking a sentence reduction

under the First Step Act,

,

. The district court

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appointed counsel and ordered a revised presentence investigation report.

Newby objected to the new report’s advisory Guidelines range, identifying an error

in how the original judgment described one of his offenses of conviction. The district court

concluded the “appropriate remedy” was to correct the clerical error under Federal Rule of

Criminal Procedure 36. JA 169. After doing so, the court—applying the First Step Act—

adjusted Newby’s Guidelines range and reduced his sentence to 294 months in prison and

four years of supervised release. The court’s resentencing order concluded: “Except as

expressly modified herein, the amended judgment carries forward all terms of ” the

previous one. JA 171. The amended judgment contains the same discretionary conditions

of supervised release that were not announced orally at Newby’s sentencing hearing.

Newby appeals, arguing that those conditions are improper and that we should vacate and

remand for resentencing.

II.

This case presents a recurring question in a unique posture. In United States v.

Rogers,

(4th Cir. 2020), this Court held a district court may not impose

discretionary conditions of supervised release in a written judgment if the court did not

announce those conditions during the sentencing hearing. This rule, we explained, stems

from a criminal defendant’s “right to be present when he is sentenced” and the principle

that “if a conflict arises between the orally pronounced sentence and the written judgment,

then the oral sentence controls.”

. Under this Court’s precedent, discretionary

conditions announced for the first time in a written judgment are legal “nullities” to which

the defendant “has never been sentenced.” United States v. Singletary,

, 344–

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45 (4th Cir. 2021) (quotation marks removed).

Were this an appeal from the initial sentencing decision, this case would be easy.

The government never denies the district court violated the rule announced in Rogers—

which, to be fair, was decided more than a decade after Newby’s original sentencing. Nor

would Newby’s failure to raise this issue before the district court pose a problem were this

an appeal from the original judgment. See United States v. Cisson,

, 192–93

(4th Cir. 2022) (rejecting application of plain-error standard in that context); Rogers,

961 F.3d at 295–96 (same). In that situation, our path would be clear: We would vacate

Newby’s sentence and remand for resentencing. See Singletary,

; Rogers,

961 F.3d at 300–01.

The problem, of course, is that this is not an appeal from Newby’s original sentence.

That appeal has been taken and lost, see

(4th Cir. 2010), and Newby

identifies no basis for reopening it. Cf. United States v. Brantley, No. 22-4166,

, at *1 (4th Cir. Nov. 28, 2023) (“defendants who raise Rogers errors are” not

“excused from the usual timeliness rules for filing a notice of appeal”). Nor, as Newby

conceded at oral argument, is there any freestanding right to ask an appellate court to

correct even the most obvious Rogers error. See Oral Arg. 14:14–14:41; accord Brantley,

, at *3 (emphasizing that “[a] judgment with a Rogers error, just as any

other judgment, is valid until corrected on appeal or amended by the district court”). For

those reasons, our hands are tied unless Newby has a procedurally appropriate mechanism

for raising the issue now. Fortunately for him, we believe he does.

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The order from which Newby currently appeals did two things: It corrected a clerical

error in the original judgment and modified Newby’s sentence under the First Step Act. All

parties agree we have jurisdiction to review that order. See Manrique v. United States,

, 121–22 (2017) (emphasizing that an amended criminal judgment is a

separate appealable order). Exercising that jurisdiction here, we vacate and remand for

resentencing because the district court’s amended judgment remains infected by the initial

Rogers error.

True, this Court’s holding in Rogers was based in part on Federal Rule of Criminal

Procedure 43. And true, that provision specifically excludes from its ambit “proceeding[s]

involv[ing] the . . . reduction of [a] sentence under . . .

(c),” the statutory

provision under which First Step Act resentencing occurs. Fed. R. Crim. P. 43(b)(4);

see United States v. Chambers,

(4th Cir. 2020) (describing First Step

Act motions as “fall[ing] under § 3582(c)(1)(B)). But that only matters if the First Step Act

authorizes district courts to impose new discretionary conditions of supervised release.

It does not. Under this Court’s precedent, the terms of Newby’s supervised release

are part of his “one unified sentence.” Singletary,

n.4 (quotation marks

removed). And the only type of modified “sentence” the First Step Act authorizes a district

court to impose is a “reduced” one,

,

. For that

reason, the district court could not have imposed any new discretionary conditions of

supervised release in Newby’s First Step Act proceeding.

From there, we return to the place we began: Rogers. Newby is a criminal defendant

who has timely appealed his current sentence to this Court. Cf. Brantley,

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8215209, at *1 (dismissing appeal from a Rogers error where the notice of appeal was filed

after the relevant deadline). The written judgment from which Newby appeals provides

that, following his release from incarceration, Newby will be subject to discretionary

conditions of supervised release never announced in his presence. That is the very defect

identified in Rogers. Under this Court’s precedent, such conditions are “nullities” to which

Newby “has never been sentenced.” Singletary, 984 F.3d at 344–45. And because the

conditions were “never imposed” in the first place (id. at 346) they could not be “carrie[d]

forward” (JA 171) through the district court’s amended judgment. We thus vacate the

amended judgment and remand for resentencing. See United States v. Kemp, No. 21-485,

slip op. at 13 (4th Cir. 2023) (noting this Court has “identified a clear rule for remedying

Rogers errors” and does “not simply strike the unpronounced conditions” (quotation marks

removed)). *

* * *

As both sides put it at oral argument, this case may well be a unicorn. Not only is

our holding based on the “unusual” nature of Rogers errors, see Singletary,

(quotation marks removed), it also depends on the unique posture of an appeal from a First

Step Act resentencing—itself an increasingly uncommon occurrence. Under these

* We need not resolve whether Newby’s current claim should have been reviewed only for plain error because he never raised it before the district court in connection with the First Step Act proceedings. By making no such argument in its brief, the government has forfeited any such forfeiture argument. See Jordan v. Large,

, 312 n.4 (4th Cir. 2022) (“[T]he waiver itself has been waived.”); accord Solomon v. Vilsack,

(D.C. Cir. 2014) (explaining parties can “forfeit[ ] forfeiture arguments.”). 7 USCA4 Appeal: 21-4018 Doc: 49 Filed: 01/19/2024 Pg: 8 of 12

circumstances, we conclude Newby is entitled to the remedy our decisions provide. We

thus vacate Newby’s sentence and remand for resentencing.

SO ORDERED

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QUATTLEBAUM, Circuit Judge, dissenting:

Our peculiar approach to Rogers-Singletary 1 errors continues. Fifteen years ago,

Newby was sentenced for various drug crimes. His original judgment contained two

discretionary supervised release conditions that were not mentioned at his sentencing—

what we now sometimes call a Rogers-Singletary error. But this is not a new error. At the

time of Newby’s sentencing, our circuit had long concluded that in the event of a

discrepancy between the written judgment and the sentencing court’s oral pronouncement,

the oral pronouncement prevails. See United States v. Morse,

, 31 n.1 (4th Cir.

1965) (“To the extent of any conflict between this written order and the oral sentence, the

latter is controlling.”). And we determined that in such a situation, the district court should

conform the written judgment to the oral pronouncement.

Despite that longstanding

precedent, Newby did not object before the district court or raise this issue on direct appeal.

Instead, he appealed on other grounds and we affirmed the district court’s judgment. See

United States v. Newby,

(4th Cir. 2010).

Almost a decade later, Newby sought to decrease his sentence under the First Step

Act. In his First Step Act motion, he only sought to reduce the length of his imprisonment

and supervised release. He said nothing about any discrepancy between his written

supervised release conditions and those announced at his original sentencing. Consistent

with that, the district court, in addition to correcting an unrelated clerical error on the listed

conviction, reduced his prison and supervised release terms.

1 United States v. Rogers,

(4th Cir. 2020); United States v. Singletary,

(4th Cir. 2021). 9 USCA4 Appeal: 21-4018 Doc: 49 Filed: 01/19/2024 Pg: 10 of 12

Newby appealed the judgment resulting from his successful First Step Act motion.

But he did not challenge any of the district court’s rulings on his motion. Instead, he raised

for the very first time the discrepancy between the oral pronouncement at his original

sentencing hearing and the written judgment’s supervised release conditions, which dated

back to his original sentence fifteen years ago and were merely carried forward in the

amended judgment. Newby claims he can challenge that discrepancy because, although not

new, the unannounced terms of his supervised release are restated in the amended

judgment.

But I don’t see the procedural basis for the appeal. The deadline for appealing

Newby’s original judgment—where the Rogers-Singletary error first appeared—passed

decades ago. And whether under the law of the case doctrine, the mandate rule or waiver

principles, a party generally cannot use a second appeal to challenge issues that were

available but not raised in an initial appeal. See Doe v. Chao,

, 465 (4th Cir.

2007); Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc.,

, 505–

06 (4th Cir. 1992). What’s more, as the majority and Newby note, there is no free-standing

right to ask an appellate court to correct Rogers-Singletary errors. True, if the error here

were clerical in nature, Federal Rule of Criminal Procedure 36 generally permits the

correction of such errors at any time. However, the majority rightfully does not frame the

Rogers-Singletary error as clerical. 2

2 Federal Rule of Criminal Procedure 35(a) may provide a way to address a Rogers- Singletary problem. It permits a district the court to correct a “clear error.” Fed. R. Crim. P. 35(a). But that rule has a 14-day deadline.

Newby did not invoke Rule 35(a) before the district court. 10 USCA4 Appeal: 21-4018 Doc: 49 Filed: 01/19/2024 Pg: 11 of 12

The majority permits the appeal under the unique circumstances presented here.

Those unique circumstances, according to the majority, are that we have jurisdiction to

review the district court’s recent order on Newby’s First Step Act motion and that the

amended judgment resulting from that motion carried forward the unannounced supervised

release conditions first included in the 2008 written judgment. But even considering those

circumstances, there are only two possible ways I see to reach this result. One, we could

adopt a rule that any aspect of a judgment resulting from a First Step Act motion can be

appealed, even if that aspect was not the subject of the motion and had been in place for

years. That, however, would be a dramatic afront to the finality of judgments. See Calderon

v. Thompson,

(1998) (recognizing an enduring respect for finality of

convictions and that “[f]inality is essential to both the retributive and the deterrent functions

of criminal law”); see also Telcy v. United States,

(11th Cir. 2021)

(recognizing that a sentence reduction under the First Step Act does not constitute a new

judgment for purposes of the Antiterrorism and Effective Death Penalty Act of 1996’s bar

on second or successive habeas petitions). For good reason, the majority does not even

suggest that should be our rule.

Two, we could decide that Rogers-Singletary errors, for some reason, require a

special rule that permits appellate review whenever the error is raised by a criminal

defendant. Recently, I described my concerns about our Rogers-Singletary jurisprudence.

United States v. Kemp, No. 21-4185,

, at *6 (4th Cir. Dec. 13, 2023)

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(Quattlebaum, J., concurring). 3 Adopting such a special rule for this type of error would

only add to the concerns mentioned there. But fortunately, the majority doesn’t seem to

adopt that approach either.

So, if we are not going to adopt either of those two rules—and I agree that we

shouldn’t—I am left wondering how we can consider this appeal. Since I can find no proper

basis to do so, with respect for my colleagues in the majority, I would dismiss the appeal.

3 Also, as I recently explained in Kemp, a full resentencing is ill-advised. A more appropriate approach, in my view, would be to “remand for a limited resentencing—giving district courts the choice of whether to vacate problematic conditions or to orally pronounce any unannounced condition.”

. But I agree with the majority that Rogers, Singletary and other cases compel a full resentencing. So, despite my disagreement, I am bound on this point.

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