UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL N. KEMP, SR., Defendant - Appellant.
No. 21-4185
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
December 13, 2023
PUBLISHED
Argued: September 19, 2023 Decided: December 13, 2023
Before HARRIS and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Harris wrote the majority opinion, in
ARGUED: Daniel Baker McIntyre, III, Charlotte, North Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:
Defendant Daniel N. Kemp, Sr., was charged with nine counts of sexually abusing his adopted children. Pursuant to an agreement with the government, he pleaded guilty to one count of aggravated sexual abuse, and the remaining charges were dismissed. The district court sentenced Kemp to life imprisonment - a term within the Sentencing Guidelines range adopted by the court - and to a lifetime term of supervised release.
Kemp appealed, and his appointed counsel filed an Anders brief raising two issues but concluding that the appeal was without merit. See Anders v. California, 386 U.S. 738 (1967). After this court ordered supplemental briefing to address additional issues regarding Kemp‘s conviction and sentence, the government asked that we dismiss Kemp‘s appeal as untimely. We conclude, however, that the government has forfeited the timeliness issue and we therefore reach the merits of Kemp‘s appeal. For the reasons given below, we affirm Kemp‘s conviction. But because Kemp‘s written judgment includes discretionary conditions of supervised release that were not orally pronounced at sentencing, we follow our usual practice, see United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), vacating Kemp‘s sentence and remanding for resentencing.
I.
A.
As the district court emphasized at sentencing, this case arises from very disturbing facts. While Daniel Kemp was serving in the United States Army in New York, he and his wife adopted six children. Years later, with Kemp now stationed in North Carolina, it was revealed that Kemp had been forcing his adopted children to engage in sexual acts at their home. The investigation began when one of Kemp‘s children told her teacher and other school officials of the sexual abuse; after that, several of Kemp‘s children reported their own abuse to government investigators, sometimes in graphic terms. Investigators also seized incriminating materials from Kemp‘s electronic devices and uncovered DNA evidence corroborating the children‘s reports of sexual assaults and abuse.
Kemp was charged with nine criminal counts related to the sexual abuse of his children. He entered into a plea agreement with the government under which he pleaded guilty to one count of aggravated sexual abuse in violation of
Kemp‘s plea agreement set out the statutory sentencing range for his
At sentencing, the district court adopted an advisory Sentencing Guidelines range of 360 months to life, as calculated by Kemp‘s Presentence Report. After hearing Kemp‘s allocution and six victim-impact statements and considering the sentencing factors set out in
B.
Under
This court appointed counsel for Kemp and issued a briefing order. That order set deadlines for Kemp‘s opening brief, the government‘s response brief, and Kemp‘s reply brief. And it expressly warned the government that failure to file a “motion to dismiss within the time allowed for filing a response brief[] may result in waiver of defenses.” ECF No. 10 at 2. In connection with that notice, it cited our Local Rule 27(f), which provides that motions to dismiss on procedural grounds “should be filed within the time allowed for the filing of the response brief.” 4th Cir. R. 27(f)(2). The order then described additional procedures that apply to the filing of a defendant‘s brief under Anders v. California, 386 U.S. 738 (1967), none of which bear on the filing of motions to dismiss.
Kemp‘s appointed counsel timely filed an Anders brief stating that there were no meritorious grounds for appeal but identifying as issues the district court‘s calculation of Kemp‘s Sentencing Guidelines range and whether Kemp‘s counsel provided effective assistance before the district court. The government elected not to file a response brief. But on the day a response would have been due, consistent with the briefing order and Local Rule 27(f)(2), the government filed a motion to dismiss. In that motion, the government sought dismissal on one and only one procedural ground, arguing that Kemp‘s appeal was barred in part by his appeal waiver.2
II.
A.
We begin with the government‘s request that we dismiss Kemp‘s appeal on timeliness grounds. As explained below, we conclude that the government forfeited its right to invoke Rule 4(b)‘s deadline when, in response to Kemp‘s opening brief, it filed a motion to dismiss for one procedural reason - Kemp‘s appeal waiver - but not another - timeliness - that was equally apparent from the record.
Much of the background here is common ground. It is undisputed that Kemp filed his notice of appeal outside the 14 days allowed by
What the parties dispute is whether the government “wait[ed] too long” here by failing to invoke Rule 4(b) within the time for filing a response to Kemp‘s opening brief. After our decisions in Hyman and Oliver, this court revised Local Rule 27(f) to provide that motions to dismiss on procedural grounds “should be filed within the time allowed for the filing of the response brief.” 4th Cir. R. 27(f)(2). And as noted above, our initial briefing order set a deadline for a response brief and tied that deadline to the requirements of our local rule, notifying the government that failure to file a “motion to dismiss within the time allowed for filing a response brief[] may result in waiver of defenses.” ECF No. 10 at 2. From that, Kemp argues, it was clear that any motion to dismiss under Rule 4(b) should have been filed within the time for responding to his Anders brief, and the government‘s failure to meet that deadline forfeited its right to invoke Rule 4(b) now. See United States v. Turner, No. 19-4529, 2020 U.S. App. LEXIS 19407, at *1-2 (4th Cir. June 22, 2020) (unpublished order adopting this position and denying government‘s motion to dismiss under Rule 4(b) for failure to timely move in response to defendant‘s Anders brief).
We need not resolve here how Local Rule 27(f)(2) generally will apply in the Anders context. Because while it is true that the government may sit out an Anders brief, “do[ing] nothing” in response, see Poindexter, 492 F.3d at 271, that is not what happened here. Instead, the government did respond to the Anders brief, and it did so with the motion to dismiss on procedural grounds contemplated by Local Rule 27(f)(2), filed within the time for the response brief set out in the original scheduling order. The only thing it did not do was include in that motion, which rested exclusively on the defendant‘s appeal waiver, the different procedural ground - timeliness - on which it now asks us to dismiss this appeal. The government has provided no justification for this omission, and we can think of none; at the time the government filed its motion to dismiss, the timeliness issue would have been just as apparent from the record as the appeal-waiver problem. Under these circumstances, we conclude, the government has forfeited its right to invoke Rule 4(b) and to press its timeliness objection now. See Oliver, 878 F.3d at 123 (explaining that the government forfeits a Rule 4(b) claim when it fails to object on that ground “in either its merits brief or an earlier motion to dismiss“).
We held in Oliver that when the government does not promptly object to an untimely appeal, we must “assume that the [g]overnment wishes the court to decide the case on the merits.” See id. at 128. Our court made precisely that assumption here when the government filed its motion to dismiss on one procedural ground without raising the timeliness objection that was also apparent on the record. As a result, this court performed its own required independent review under Anders, devoting substantial time to identifying and ordering supplemental briefing on potential issues that fell outside the scope of Kemp‘s appeal waiver. Permitting the government to invoke Rule 4(b) now would do a disservice to the efforts of this court and defense counsel, who justifiably assumed that the government‘s motion to dismiss included all then-applicable procedural grounds on which the government wished to rely. Because we find that the government forfeited its right to invoke Rule 4(b) by failing to raise it in its earlier motion to dismiss, we move on to the merits of Kemp‘s appeal.
B.
1.
We begin with Kemp‘s conviction. Kemp first argues that the district court‘s plea colloquy failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in multiple respects, and that the cumulative effect of those errors was sufficient to undermine the validity of his guilty plea.
Rule 11 outlines the requirements for a district court plea colloquy, designed to ensure that a defendant “understands the law of his crime in relation to the facts of his case, as well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62 (2002); see
There are other errors, though, of more potential significance. Perhaps most notably, the district court failed to discuss its authority to order restitution, as required by
As noted above, however, our review here is limited to plain error. Under that standard, Kemp can prevail and withdraw his plea only if he demonstrates an obvious or “plain” error that “affected his substantial rights.” Lockhart, 947 F.3d at 191. In evaluating whether Rule 11 omissions affected a defendant‘s substantial rights, we consider whether the defendant had independent notice of the omitted information, as from a plea agreement. United States v. General, 278 F.3d 389, 394-95 (4th Cir. 2002) (noting that the written plea agreement provided the Rule 11 information omitted in the plea colloquy). And here, Kemp‘s signed plea agreement did make him aware of much of the information missing from his plea colloquy, including his obligation to pay restitution to all his victims and the actual terms of his appeal waiver.
Moreover, to establish an effect on his substantial rights in this context, Kemp bears the burden of establishing “a reasonable probability that, but for the error, he would not have entered the plea.” Lockhart, 947 F.3d at 192 (internal quotation marks omitted). Kemp has not even attempted to make that showing, offering no account of how these omissions or errors, even in the aggregate, led him to accept a plea agreement he otherwise would have declined. Instead, the record evidence suggests the contrary, with Kemp‘s counsel explaining at sentencing that Kemp chose to plead guilty in part to spare his children the further pain of a trial. See United States v. Kim, 71 F.4th 155, 167 (4th Cir. 2023) (considering as part of its substantial rights analysis the defendant‘s “deep shame” and noting that proceeding to trial would invite more public attention). Viewing the record in its entirety, we conclude that Kemp has failed to meet his burden of demonstrating that the errors and omissions in his colloquy, assuming they qualify as “plain,” affected his substantial rights, as required for relief under plain error review.
2.
We turn finally to Kemp‘s sentence. It is undisputed that the district court failed to orally pronounce at sentencing multiple discretionary conditions of supervised release that it subsequently imposed in Kemp‘s written judgment. As the government concedes, that constitutes error under United States v. Rogers, 961 F.3d 291, 300 (4th Cir. 2020), violating the defendant‘s right to be present at sentencing.
The only dispute in this case is over remedy. We have identified a “clear rule” for remedying Rogers errors. See Singletary, 984 F.3d at 344. When a district court fails to orally pronounce discretionary conditions of supervised release, we do not simply strike the unpronounced conditions from the judgment. See id. at 346 (rejecting defendant‘s request that unpronounced conditions be stricken from his judgment). Instead, we vacate the entire sentence and remand for the district court to resentence the defendant. Id. A full resentencing is generally appropriate, we have explained, because “custodial and supervised release terms [are] components of one unified sentence.” Id. at 346 n.4 (quoting United States v. Ketter, 908 F.3d 61, 65 (4th Cir. 2018)); see United States v. Singletary, 75 F.4th 416, 427 n.7 (4th Cir. 2023) (”Singletary II“) (recognizing that defendant may elect a more limited remand).
Nevertheless, the government asks for precisely the remedy we ruled out in Singletary: in lieu of vacating Kemp‘s sentence and remanding for resentencing, it urges we should vacate only the unpronounced conditions in Kemp‘s judgment. According to the government, a remand for resentencing would be no more than an empty formality, because the district court would undoubtedly resentence Kemp to life imprisonment. For support, the government points to our unpublished decision in United States v. Calderon, No. 19-4907, 2022 WL 898012, at *1 (Mar. 28, 2022) (per curiam), in which we indeed remedied a Rogers error - in the sentencing of a defendant subject to a mandatory life term of imprisonment - by vacating the unpronounced conditions without a remand.
We decline to depart here from our ordinary rule that the remedy for Rogers error “is not . . . simply to strike the [unpronounced] conditions from the written judgment.” Singletary, 984 F.3d at 346. The government‘s argument - that a full remand for resentencing is pointless in Kemp‘s case because the district court would likely reimpose the same sentence - could be pressed in virtually any case; an exception that broad would swallow the Singletary rule altogether. In Calderon, the defendant‘s life sentence was mandatory, so it at least was certain that his term of imprisonment would not change on remand. But here, Kemp was sentenced to a discretionary life sentence, at the top of his Sentencing Guidelines range, so a full resentencing could affect his term of incarceration.3
III.
For the reasons stated, we affirm Kemp‘s judgment of conviction. We vacate Kemp‘s sentence and remand for resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
QUATTLEBAUM, Circuit Judge, concurring:
I concur in the majority‘s opinion. It properly applies our precedent to this appeal. But I write separately to address my concerns about what might be called our Rogers-Singletary jurisprudence. To me, the internal reasoning of Rogers and Singletary is inconsistent and conflicts with our precedent concerning errors in a written judgment. In addition, while our stated remedy for Rogers-Singletary errors is a full resentencing, we do not consistently employ it. Last, I am also concerned that requiring a full resentencing is unnecessary to adequately remedy Rogers-Singletary errors and out of step with how other courts of appeals address these issues. To explain my concerns, I will start by explaining the development and current approach we take toward Rogers-Singletary errors. I will then discuss some of the problems stemming from that approach. Lastly, I will prescribe what, in my view, would be the better approach to remedies.1
I.
How did we get here? A criminal defendant has the right to be present at his sentencing. That right is rooted in the Fifth Amendment‘s Due Process Clause. See United States v. Gagnon, 470 U.S. 522, 526 (1985). In practice, this right is reflected in
A Rule 43(a)(3) problem occurs when the district court‘s oral sentencing pronouncement differs from the later written judgment. When the oral and written sentences diverge, the parties may justifiably wonder what the defendant‘s actual sentence is. But this is not a new problem. A long line of cases establishes a general rule that if a criminal defendant‘s eventual written judgment conflicts with the oral pronouncement
A few years ago, our court addressed this issue in the context of discretionary conditions of supervised release not announced at sentencing but that appear in the written judgment. In United States v. Rogers, we held “that all non-mandatory conditions of supervised release must be announced at a defendant‘s sentencing hearing.” 961 F.3d 291, 296 (4th Cir. 2020). In that case, a criminal defendant‘s written judgment included 22 non-mandatory or “discretionary” terms of supervised release that were not pronounced orally at sentencing. Id. at 295. We first analyzed whether “a condition that was not pronounced orally at sentencing may be included in a later-filed written judgment without creating a conflict that will nullify the condition.” Id. at 296. Because discretionary terms, unlike mandatory ones, cannot be imposed without a district court‘s “individualized assessment that they are justified in light of the statutory factors,” id. at 297, we held that those terms must be orally pronounced2 to protect a criminal defendant‘s rights under Rule 43(a). Id.
Requiring oral pronouncement of discretionary conditions, we reasoned, primarily protects a criminal defendant‘s ability to object and “contest whether a discretionary condition is appropriate under all the relevant circumstances.” Id. at 298. Additionally, “the requirement that discretionary conditions be orally pronounced at sentencing brings the pronouncement rule into line with the requirement that discretionary conditions be adequately explained.” Id. (citing United States v. McMiller, 954 F.3d 670, 676 (4th Cir. 2020)).
In Rogers, we also prescribed a unique remedy for this situation. We accepted the defendant‘s argument that “the oral sentence prevails, rendering the challenged conditions nullities,” id. at 295-96. But we then vacated the defendant‘s entire sentence and remanded to the district court for a full resentencing, id. at 301. We suggested, however, that a different error potentially required this remedy. “Many of the discretionary conditions listed in Rogers’ written judgment are recommended by the Guidelines only under circumstances not present in this case or are not recommended by the Guidelines at all.” Id. at 301 n.3. So, we then claimed “that we would be required to vacate Rogers’ sentence no matter what rule we adopted.” Id. (emphasis added). In other words, we vacated for a full resentencing in Rogers not because of any problematic discretionary conditions, but because another error necessitated it. But the remedy of a full sentencing stuck.
Notably, Singletary doubled down on Rogers’ remedy - vacating and remanding for a full sentencing. We rejected the defendant‘s argument to take a blue pencil to the judgment, vacating any unannounced additional discretionary conditions. See id. at 346 (“Under Rogers, the remedy for this error is not, as Singletary suggests, simply to strike the financial conditions from the written judgment.“).
But we also rejected the government‘s request to limit vacatur and resentencing to the conditions at issue, grounding that idea in a criminal defendant‘s “unified sentence.” Id. at 364 n.4. Instead, Singletary required a full resentencing because ”Rogers drew no distinction between the defendant‘s supervised release sentence and his custodial sentence; instead, it simply vacated his entire sentence and remanded for resentencing.” Id. We also said in dicta that a full resentencing “appears to be the proper approach, given that ‘custodial and supervised release terms [are] components of one unified sentence.‘” Id. (quoting United States v. Ketter, 908 F.3d 61, 65 (4th Cir. 2018)). Under that approach, “[t]reating custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” Ketter, 908 F.3d at 65. Because terms of incarceration and discretionary conditions of supervised release are “complementary tools employed by judges when crafting an appropriate sentence,” and because of the “reciprocal relationship between a prison sentence and a term of supervised release,” id. at 65-66, Singletary suggests that a full resentencing is the proper way to remedy a violation of a defendant‘s right to be present.
II.
What‘s wrong with this? Three things. One, the internal reasoning of our approach to Rogers-Singletary errors is inconsistent. Two, we have not been consistent in how we remedy errors in written judgments generally and Rogers-Singletary errors specifically. Three, our stated remedy for Rogers-Singletary errors - full resentencing - is unnecessary to remedy Rogers-Singletary errors and at odds with how other courts of appeal address the same issue.
First, the description of any unannounced conditions as “nullities” in Rogers and Singletary is both inconsistent with the remedy those decisions require and departs from our prior precedent. By describing a condition detailed in the written judgment but unannounced at sentencing as a “nullity,” one might naturally assume that we would remedy the problem by ordering that this condition simply is not part of the judgment. Indeed, Singletary‘s
We are also beginning to see the uneven consequences of labeling unannounced supervised release conditions nullities. We reasoned in Singletary that referring to at-issue conditions as nullities moves these types of errors outside the scope of a typical appeal waiver. See 984 F.3d at 345. But we also recently explained in United States v. Brantley that calling something a nullity “does not make the written judgment entered [by a district court] invalid.” No. 22-4166, 2023 WL 8215209, at *3 (4th Cir. Nov. 28, 2023). And because those judgments, “no matter how assertedly incorrect, are presumptively valid and binding,” defendants cannot use the “nullity” language to avoid our appellate deadlines. Id.
Second, our approach to these errors inconsistently characterizes the right to be present as procedural at times and as substantive at others. In Rogers, we explained the “chief” reason for the requirement that a criminal defendant be present at sentencing was to preserve the ability to object and “contest whether a discretionary condition is appropriate under all the relevant circumstances.” 961 F.3d at 298. This language sounds procedural. But we have also used substantive language to defend the remedy. See Singletary, 984 F.3d at 346 n.4 (“[C]ustodial and supervised release terms [are] components of one unified sentence.“) (quoting Ketter, 908 F.3d at 65). Indeed, declaring a portion of a judgment as a “nullity” changes the substance of a criminal defendant‘s sentence. And the majority‘s holding here that defendants are entitled to a full resentencing for Rogers-Singletary errors “if they so request,” Maj. Op. at 15, suggests the right might be substantive.
The inconsistency in classifying the right to be present as sometimes substantive, sometimes procedural, has also led us to prescribe vastly different remedies for similar types of errors. While Rogers and Singletary require a full sentencing for unannounced conditions that show up in the later written judgment, we do not always require that. In some cases, when there is a slight difference between what was said at sentencing and what ends up in the written judgment, we have allowed for a limited remand to fix the written judgment rather than remanding for a full resentencing. See United States v. Locklear, No. 21-4161, 2023 WL 2300394 (4th Cir. Mar. 1, 2023). In Locklear, the district court orally pronounced that the defendant would support his “children,” but the written judgment stated that he would support his “dependent.” Id. at *1. We held that “the remedy for a conflict of this nature is to remand to the district court to correct the written judgment so that it conforms with the sentencing court‘s oral pronouncements.” Id. (internal quotations omitted).
But we‘ve also looked to the written judgment itself to resolve discrepancies.
As noted by the majority, Maj. Op. 14-15 & n.3, where we confront a criminal defendant with a mandatory life sentence, we have forgone resentencing altogether. In United States v. Calderon, the defendant alleged a Rogers error because the court did not announce two financial-related conditions of supervised release at his sentencing hearing that later appeared on his written judgment. No. 19-4907, 2022 WL 898012 at *1 (4th Cir. Mar. 28, 2022). We held that “[i]n these circumstances, we vacate the discretionary conditions of supervised release.” Id. But we declined a full resentencing “[g]iven Calderon‘s mandatory life sentence” and simply blue penciled away the at-issue conditions. Id. From these cases, it is not even clear that we have a preferred remedy for Rogers-Singletary errors.
Third, our approach of vacating for a full sentencing is an outlier among other circuits. Indeed, at the same time Rogers announced that we were “following the Fifth and Seventh Circuits” in recognizing this error, 961 F.3d at 297, neither circuit appears to require a full resentencing as the remedy. In United States v. Diggles, on which Rogers relies, the Fifth Circuit affirmed a decision that simply vacated unannounced conditions as the remedy. See United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc). And in the Seventh Circuit‘s decision in United States v. Anstice, the court “vacate[d] the non-mandatory additional conditions provided in the written judgment, and remand[ed] to allow the district court to modify and reconsider Anstice‘s sentence with respect to the two non-mandatory conditions of supervised release.” 930 F.3d 907, 910 (7th Cir. 2019). Other circuits take a similar tack. See, e.g., United States v. Handakas, 329 F.3d 115, 119 (2d Cir. 2003) (“[R]emand[ing] for reconsideration of the condition of supervised release restricting the Defendant‘s employment.“); United States v. Montoya, 82 F.4th 640, 656 (9th Cir. 2023) (en banc) (“[R]emand[ing] to the district court for the limited purpose of reconsidering the supervised release conditions we have vacated herein.” (internal quotation marks omitted)). As far as I can tell, we are the only circuit to require a full resentencing to remedy a violation of the right to be present.
To summarize, the full resentencing remedy mandated by Rogers and Singletary seems inconsistent with declaring unannounced supervised release conditions nullities and with Morse‘s directive to conform written judgments to oral sentences. What‘s more, we do not always follow what we seem to require in Rogers and Singletary. Finally, we do not have much company in our full-resentencing approach.
III.
Where do we go from here? Should we stick with what we said in Rogers and Singletary and stop the deviations? Should we reiterate that a full resentencing is generally the appropriate remedy for Rogers-Singletary
To answer these questions, we should first be clear on what we are trying to accomplish. Our goal should be to correct the procedural error - the defendant needs to be physically present when any discretionary conditions are announced so that he can object to the conditions if necessary. A second goal should be to resolve any ambiguity between the oral pronouncement and the written judgment by determining the district court‘s intent. And those goals point toward a more targeted remedy than a full resentencing. I see no reason to require a full resentencing. Our approach so far seems to be like using a sledgehammer to swat a fly. Instead, I suggest that for a mismatch between a district court‘s oral pronouncement and written judgment, we should follow the Second Circuit‘s approach in Handakas, 329 F.3d at 119, and remand for a limited resentencing - giving district courts the choice of whether to vacate problematic conditions or to orally pronounce any unannounced condition. Under the Second Circuit‘s approach, when there is a mismatch between the oral pronouncement and written judgment, the court remands for the limited purpose of allowing the district court to reconsider imposition of the at-issue condition, which also affords the defendant an opportunity to be present. See id. In practice, that gives the district court a choice. “On remand, if the district court intends to impose a [discretionary condition], it must give [the defendant] an opportunity to object and, if any such objections are overruled, orally announce the [condition] and again include [it] in a new written judgment. If the district court determines not to impose [the condition] on remand, an amended judgment must be issued deleting [it].” United States v. Grebinger, No. 20-1025-CR, 2021 WL 5142709, at *4 (2d Cir. Nov. 5, 2021).
This approach would remedy the violation of a defendant‘s procedural right to be present under Rule 43. And it would also be the best way to clarify the intent of a sentencing judge: “What was driving this judge‘s decision to impose this sentence for this defendant?” United States v. Griffin, No. 21-50294, 2022 WL 17175592, at *6-8 (5th Cir. Nov. 23, 2022) (Oldham, J., dissenting). After all, “a sentencing judge is the world‘s leading expert on his own thought process.” Id.
Of lesser importance is drawing a line that prioritizes oral over written or written over oral.3 Why do we need to pick a winner? Doing so may be what has led to our inconsistency in remedying Rogers-Singletary errors. Instead, why not just recognize that we have an ambiguity between the announced sentence and the written judgment and attempt to clear it up in a way that complies with Rule 43? Whether it be an unannounced condition
Finally, adopting a limited remand approach would bring us in line with the remedy we provide for similar errors. For example, in United States v. McMiller, 954 F.3d 670 (4th Cir. Cir. 2020), we addressed supervised release special conditions that were not explained. After concluding that the two special conditions imposed on the criminal defendant were “procedurally unreasonable,” we remanded to the district court for further explanation. Id. at 677. We did not blue pencil the conditions away. We did not order a full sentencing. Instead, we cured a procedural error with a proportionate remedy.
In my view, it is time to rethink our approach to the remedy for Rogers-Singletary errors. A limited remand would provide flexibility to the district court judge while fully protecting the defendant‘s right to be present.