USCA4 Appeal: 21-4003 Doc: 36 Filed: 01/12/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOVORRIS D. JENKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
David C. Norton, District Judge. (9:19-cr-00438-DCN-1)
Submitted: December 20, 2021 Decided: January 12, 2022
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. M. Rhett DeHart, Acting
United States Attorney, Brook Bowers Andrews, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tovorris D. Jenkins appeals from his sentence imposed pursuant to his guilty plea
to possession of a firearm by a convicted felon and possession with intent to distribute
cocaine and cocaine base. Jenkins was sentenced to 151 months to be followed by 3 years
of supervised release. On appeal, Jenkins asserts that the district court included in his
written judgment discretionary conditions of supervised release that were not imposed
orally at sentencing. We vacate and remand for resentencing. 1
Prior to sentencing, the probation officer prepared a Presentence Investigation
Report (“PSR”), listing 7 “mandatory conditions of supervision,” as well as 13 “standard
conditions of supervision.” (J.A. 131-32). Standard condition 1 provided that Tovorris
must “report to the probation office in the federal judicial district where you are authorized
to reside within 72 hours of your release from imprisonment.” (J.A. 131). Standard
condition 12 provided that, “[i]f the probation officer determines that you pose a risk to
another person (including an organization), the probation officer may require you to notify
the person about the risk and you must comply with that instruction.” (J.A. 132).
Jenkins objected to standard condition 12, arguing that, by ceding discretion to the
probation officer to determine which persons may be at “risk,” this condition effected an
unconstitutional delegation of Article III authority from the court to the probation officer.
At the sentencing hearing, the district court granted the objection and agreed to modify
1
Jenkins also raised claims challenging his custodial sentence. As discussed below,
because we remand for resentencing, we do not reach Jenkins’ other claims.
2
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condition number 12, so as to require the probation officer to seek court approval before
exercising any authority under the condition.
After ruling on Jenkins’ other objections, the district court sentenced Jenkins to 151
months’ imprisonment. The district court then discussed Jenkins’ supervised release and
explained that “while on supervised release, the mandatory standard conditions of
supervision” would apply. (J.A. 96). The court informed Jenkins that “[w]ithin 72 hours
of release, he shall report in person to the probation officer in the district to which he’s
released.” (J.A. 95-96). Last, the district court commented, “I think we’ve gone over the
general conditions, number 12” and referred back to Jenkins’ objection and the court’s
subsequent revision to the condition. (J.A. 96).
Jenkins’ judgment order included the agreed-upon revisions to standard condition
12. Standard condition 1 required Jenkins to report to the probation office in the “judicial
district where you are authorized to reside,” in accordance with the PSR but at odds with
the court’s statements at sentencing. (J.A. 101). The remainder of the standard conditions
matched the conditions listed in the PSR.
This court “review[s] the consistency of [a defendant’s] oral sentence and the
written judgment de novo, comparing the sentencing transcript with the written judgment
to determine whether an error occurred as a matter of law.” United States v. Rogers, 961
F.3d 291, 296 (4th Cir. 2020) (internal quotation marks omitted). 2 In Rogers, we held that
2
The Government argues that, because Jenkins had the opportunity to (and in fact
did) object to the standard conditions listed in the PSR, his claim should be reviewed for
plain error. However, the opportunity to object to the actual imposition of the conditions
3
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a district court must announce all nonmandatory conditions of supervised release at the
sentencing hearing. Id. at 296-99. “[A] district court may satisfy its obligation to orally
pronounce discretionary conditions through incorporation—by incorporating, for instance,
all Guidelines ‘standard’ conditions when it pronounces a supervised-release sentence, and
then detailing those conditions in the written judgment.” Id. at 299. “Express
incorporation” is not only “a critical part of the defendant’s right to be present at
sentencing” but “also provides [the 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. at 300 (internal quotation
marks omitted). “[S]o long as the defendant is informed orally that a certain set of
conditions will be imposed,” “a later-issued written judgment that details those conditions
may be construed fairly as a clarification of an otherwise vague oral pronouncement.” Id.
at 299 (internal quotation marks omitted). The remedy for a Rogers error “is to vacate the
sentence and remand for the district court to resentence” the defendant anew. United
States v. Singletary, 984 F.3d 341, 346 & n.4 (4th Cir. 2021).
of supervised release “exists when the court notifies the defendant at sentencing that
conditions are being imposed.” United States v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020)
(noting that an objection at sentencing alerts “the district court of a possible need to make
a more detailed recitation of the discretionary conditions and justify them”); see also
Rogers, 961 F.3d at 295-96 (noting that, even when a defendant fails to object to the district
court’s violation of the oral-pronouncement rule, this court reviews the claim de novo).
4
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Here, the district court orally announced conditions corresponding with standard
conditions 1 and 12. The court did not announce the imposition of any of the other standard
conditions. 3 Nor did the court state that it was adopting the PSR in full or otherwise infer
that all the standard conditions were being imposed. In any event, the court’s oral
description of condition 1 does not match the written judgment order with regard to whom
Jenkins is required to report. This error alone is reversible Rogers error.
We therefore determine that the district court’s failure to orally pronounce all
discretionary conditions warrants vacatur and remand for resentencing. See id. at 346. A
full resentencing is warranted “given that custodial and supervised release terms are
components of one unified sentence.” Id. at 346 n.4 (alteration and internal quotation
marks omitted). As such, there is no need to examine Jenkins’ remaining claims because
the Rogers error, “[b]y itself, . . . requires that [the court] vacate [Jenkins’] sentence and
remand for the district court to conduct the sentencing anew.” Id. at 344.
Accordingly, we vacate Jenkins’ sentence and remand for resentencing. We
dispense with oral argument because the facts and legal contentions are adequately
3
The Government argues that, when the district court noted that the “mandatory
standard conditions of supervision” would apply, the court meant (or actually said) that the
“mandatory and standard conditions of supervision” would apply. However, this is mere
speculation, and the Government has not moved to correct the transcript. In addition,
several sentences later, the district court referenced “general conditions” of supervised
release stating that they had been “gone over” and explicitly noted that there had been
objections to number 12. (J.A. 96). Thus, it appears that the district court referenced the
standard “general conditions” separately from the “mandatory standard conditions.”
5
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presented in the materials before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
6