United States v. Cody Locklear

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 1, 2023
• Docket: 21-4161
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4161

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CODY ZACHARY LOCKLEAR,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:20-cr-00089-D-1)

Submitted: January 20, 2023 Decided: March 1, 2023

Before NIEMEYER and WYNN, Circuit Judges, and James K. BREDAR, Chief United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part and remanded in part with instructions by unpublished per curiam opinion.

ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, United States Attorney, David A. Bragdon, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Cody Locklear pleaded guilty to possession with intent to distribute cocaine base

and cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One) and possession of a firearm

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Two).

The district court sentenced Locklear to a total of 144 months’ incarceration and two

concurrent five-year terms of supervised release. During sentencing, the district court

announced several special conditions of supervised release. Among those conditions

announced at sentencing was that Locklear “support [his] children” during his term of

supervised release. The written judgment requires that Locklear “support his

dependent(s)” during his term of supervised release.

On appeal, Locklear’s counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), concluding that counsel had not identified any meritorious grounds for

appeal, but questioning whether Locklear’s sentence is substantively reasonable. Locklear

was notified of his right to file a pro se supplemental brief but did not file one. The

Government moved to dismiss the appeal. After reviewing the record pursuant to Anders,

we identified a potentially meritorious issue, and accordingly directed the parties to provide

supplemental briefing addressing whether there is error under United States v. Rogers, 961

F.3d 291 (4th Cir. 2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021). *

* We also asked the parties to provide supplemental briefing regarding whether any portion of the appeal is barred by waiver. As the parties agree, the waiver in Locklear’s plea agreement was knowing and voluntary, it bars any claim that the sentence was substantively unreasonable, and it does not bar Locklear’s claim discussed below. The record reflects that Locklear’s waiver was knowing and voluntary, and it is therefore (Continued) 2 USCA4 Appeal: 21-4161 Doc: 61 Filed: 03/01/2023 Pg: 3 of 4

See Rogers, 961 F.3d at 296 (holding that “all non-mandatory conditions of supervised

release must be announced at a defendant’s sentencing hearing”).

Locklear argues that he is entitled to a vacatur of his sentence and a remand for

resentencing pursuant to Rogers because the condition of supervised release in his written

judgment requiring him to “support his “dependent(s)” differs from the term as announced

by the district court at sentencing that he “support [his] children.” He argues that the

difference between the terms children and dependents is meaningful, as the latter could

encompass a broader class of individuals. The Government argues that this Court should

affirm the district court or, alternatively, should remand only for correction of the written

judgment to conform with the district court’s oral pronouncement.

This difference can be resolved without the need for a full resentencing, the remedy

required under Rogers. See Rogers, 961 F.3d at 300–01 (vacating sentence and remanding

to the district court for resentencing where district court failed to announce discretionary

conditions of supervised release during sentencing). Rather, 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.” United States v. Morse, 344

F.2d 27, 31 n.1 (4th Cir. 1965). “To the extent of any conflict between [the] written order

enforceable. See United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). Further, Locklear agreed to waive “the right to appeal the conviction and whatever sentence is imposed on any ground[.]” This waiver encompasses Locklear’s initial challenge to the substantive reasonableness of his sentence. However, the waiver does not encompass Locklear’s potential Rogers claim. See Singletary, 984 F.3d at 345 (holding that an appeal waiver does not bar a Rogers claim).

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and the oral sentence, the latter is controlling.” Id. In such cases, the court “should carry

out the true intention of the sentencing judge as this may be gathered from what he said at

the time of sentencing.” Id. at 30. Here, the relevant condition of supervised release was

announced at sentencing, but there was an incongruence between that condition as

announced and as included in the written judgment. In the context of this record, which

reflects no dependents other than Locklear’s children, the district court’s intention was

clearly to require Locklear to support his children. We will therefore remand with

instructions to conform the written judgment with the oral pronouncement.

Accordingly, we deny the Government’s motion to dismiss, affirm Locklear’s

sentence, and remand to the district court with instructions to correct the written judgment

to conform with the district court’s oral pronouncement that Locklear “support [his]

children[,]” leaving the sentence, including the remaining conditions of supervised release,

undisturbed. 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 AND REMANDED IN PART WITH INSTRUCTIONS