UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4398
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE MCKINNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:19-cr-00375-D-1)
Submitted: May 27, 2021 Decided: June 8, 2021
Before GREGORY, Chief Judge, KING, Circuit Judge, and TRAXLER, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee McKinney pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced McKinney to
78 months’ imprisonment and a 3-year term of supervised release. On appeal, McKinney
challenges the district court’s calculation of the advisory Sentencing Guidelines range and
the court’s imposition of discretionary conditions of supervised release in the written
judgment that were not orally pronounced at sentencing. For the reasons that follow, we
vacate McKinney’s sentence and remand for resentencing.
“[I]n order to sentence a defendant to a non-mandatory condition of supervised
release, the sentencing court must include that condition in its oral pronouncement of a
defendant’s sentence in open court.” United States v. Singletary, 984 F.3d 341, 345 (4th
Cir. 2021); see United States v. Rogers, 961 F.3d 291, 296-98 (4th Cir. 2020). We have
reviewed the record and conclude that the district court did not pronounce at McKinney’s
sentencing hearing several of the discretionary conditions of supervised release that were
included in the written judgment. Further, “while a district court may incorporate by
reference a condition or set of conditions during a hearing,” that did not occur here.
Singletary, 984 F.3d at 346. As several conditions of McKinney’s supervised release were
not orally pronounced at sentencing and “appear for the first time in a subsequent written
judgment,” McKinney “has not been sentenced to those conditions, and a remand for
resentencing is required.” Id. at 344.
2
We therefore vacate McKinney’s sentence and remand for resentencing. * 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.
VACATED AND REMANDED
*
Because we vacate the sentence, we do not address at this juncture McKinney’s
remaining challenges to his sentence. See Singletary, 984 F.3d at 347 (vacating sentence
for failure to pronounce discretionary conditions and declining to analyze any other
challenges to the original sentence because “there [was] no justification for assuming” that
court would impose the same sentence “on remand”).
3