United States v. Christopher Conley

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 20, 2022
• Docket: 19-4396
• Status: Unpublished

Opinion

UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).