UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4396
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER CONLEY, f/k/a Chris Conley,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Clarksburg. Thomas S. Kleeh, District Judge. (1:18-cr-00047-TSK-MJA-14)
Submitted: January 10, 2022 Decided: January 20, 2022
Before GREGORY, Chief Judge, and KING and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Charles T. Berry, Kingmont, West Virginia, for Appellant. Zelda Elizabeth Wesley,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Conley appeals his conviction and 14-month sentence imposed
following his guilty plea to unlawful possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(3), 924(a)(2). Conley’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but
questioning whether: (1) Conley’s trial counsel rendered ineffective assistance; (2) the
Government committed prosecutorial misconduct; and (3) the district court imposed an
unreasonable sentence. Conley was notified of his right to file a pro se supplemental brief
but has not done so. The Government has declined to file a response brief. We affirm
Conley’s conviction, vacate his sentence, and remand for resentencing. 1
Counsel first questions whether Conley’s trial counsel rendered ineffective
assistance by advising him to accept a plea agreement with nonbinding sentencing
stipulations and failing to negotiate a sentencing agreement that would be binding on the
district court. Generally, to succeed on an ineffective assistance of counsel claim, a
“defendant must show that counsel’s performance was [constitutionally] deficient” and
“that the deficient performance prejudiced the defense.” Strickland v. Washington,
1
We previously held this case in abeyance pending our decision in No. 18-4831,
United States v. Sitton, which we anticipated would provide further guidance on the impact
of the Supreme Court’s intervening decision in Rehaif v. United States, 139 S. Ct. 2191
(2019), on Conley’s guilty plea. We recently decided Sitton without addressing Rehaif.
See United States v. Sitton, No. 18-4831, __F.3d__, 2022 WL 53827, at *1 (4th Cir. Jan.
6, 2022). Nevertheless, in light of Greer v. United States, 141 S. Ct. 2090, 2100 (2021),
and United States v. Moody, 2 F.4th 180, 197-98 (4th Cir. 2021), our review of the record
reveals no nonfrivolous Rehaif challenge to Conley’s conviction.
2
466 U.S. 668, 687 (1984); see Lee v. United States, 137 S. Ct. 1958, 1965 (2017)
(discussing prejudice in guilty plea context). However, this Court does not consider
ineffective assistance claims on direct appeal “[u]nless an attorney’s ineffectiveness
conclusively appears on the face of the record.” United States v. Faulls, 821 F.3d 502, 507
(4th Cir. 2016). Because no conclusive evidence of counsel’s ineffectiveness appears on
the face of the record before us, we conclude that the “claim should be raised, if at all, in a
28 U.S.C. § 2255 [(2012)] motion.” Id.at 508.
Counsel next questions whether the Government committed prosecutorial
misconduct by failing to advocate at sentencing for: (1) a base offense level of 14; or (2) a
sentence at the low end of the Sentencing Guidelines range. To succeed on a prosecutorial
misconduct claim, Conley must demonstrate that the prosecutor’s conduct was improper
and that the improper conduct prejudicially affected Conley’s substantial rights. United
States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010). The relevant inquiry is whether “the
[G]overnment’s improper conduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” United States v. Chavez, 894 F.3d 593, 602
(4th Cir. 2018) (internal quotation marks omitted). Because Conley did not object to the
purported misconduct in the district court, we review for plain error. United States v.
Woods, 710 F.3d 195, 202 (4th Cir. 2013); see Henderson v. United States, 568 U.S. 266,
272 (2013) (describing standard).
Our review of the record demonstrates that the Government’s sentencing argument,
although minimal, complied with its express obligations under the plea agreement. See
United States v. Tate, 845 F.3d 571, 575 (4th Cir. 2017) (“[I]n enforcing plea agreements,
3
the [G]overnment is held only to those promises that it actually made to the defendant.”
(internal quotation marks omitted)). And, even assuming, without deciding, that the
Government’s statements regarding the applicable base offense level did not fulfill the
letter of its obligations under the plea agreement, we conclude that Conley cannot
demonstrate that any such error affected his substantial rights. See United States v. Knight,
606 F.3d 171, 178 (4th Cir. 2010) (describing requirements for plain error in sentencing
context).
Turning to Conley’s sentence, we observe that, in imposing Conley’s supervised
release conditions, the district court included in the written judgment 19 “standard”
conditions of supervision that it did not orally announce at sentencing. We have held that
“all non-mandatory conditions of supervised release must be announced at a defendant’s
sentencing hearing.” United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020). A district
court “may satisfy its obligation to orally pronounce discretionary conditions through
incorporation” by reference, for example, to the standard conditions recommended by the
Sentencing Guidelines. Id. at 299. Here, however, the district court neither explicitly
pronounced nor incorporated by reference the standard conditions listed in the written
judgment. When the court commits such Rogers error, 2 the remedy is to vacate the
sentence and remand for a full resentencing. See United States v. Singletary, 984 F.3d 341,
346 & n.4 (4th Cir. 2021).
2
We recognize that the district court did not have the benefit of our decision in
Rogers at the time it sentenced Conley.
4
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal. 3 We therefore affirm Conley’s conviction,
vacate his sentence, and remand for resentencing.
This court requires that counsel inform Conley, in writing, of the right to petition
the Supreme Court of the United States for further review. If Conley requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Conley.
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 IN PART,
VACATED IN PART,
AND REMANDED
3
Because the sentence was not properly imposed, we do not address at this juncture
any additional issues related to Conley’s sentence. See Singletary, 984 F.3d at 346-47
(declining to consider additional challenges to original sentence in light of Rogers error).
5