United States v. Kymberly Starr

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2025
• Docket: 24-4239
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4239

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KYMBERLY STARR,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:20-cr-00231-TDC-1)

Submitted: July 8, 2025 Decided: July 29, 2025

Before GREGORY and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: Ruth J. Vernet, RUTH J VERNET, ESQ, LLC, Rockville, Maryland, for Appellant. Karen E. Kelly, Acting Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Katie Bagley, Joseph B. Syverson, Todd A. Ellinwood, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Kelly O. Hayes, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

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PER CURIAM:

Kymberly Starr appeals her conviction and the 15-month sentence imposed after

she pled guilty pursuant to a plea agreement to a sole count of aiding and assisting in the

preparation of false tax returns, in violation of 26 U.S.C. § 7206(2). Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no

nonfrivolous issues for appeal but questioning whether the voluntariness of Starr’s plea

was influenced by ineffective assistance of counsel and whether Starr’s sentence is

reasonable. Starr filed a pro se supplemental brief in which she also asserts that plea

counsel’s ineffectiveness rendered her plea involuntary. The Government did not file a

response brief.

We identified two potentially meritorious issues and ordered the parties to submit

supplemental briefs on whether (1) the differences between the district court’s oral

pronouncement of the special supervised release conditions and their articulation in the

written judgment amount to reversible error under United States v. Rogers, 961 F.3d 291

(4th Cir. 2020); and (2) the district court adequately explained the reasons for the special

supervised release conditions it imposed. We affirm in part and vacate in part.

I. Starr’s Conviction

Prior to accepting a guilty plea, a trial court, through colloquy with the defendant,

must inform the defendant of, and determine that the defendant understands the nature of

the charges to which the plea is offered, any mandatory minimum penalty, the maximum

possible penalty she faces, and the various rights she is relinquishing by pleading guilty.

Fed. R. Crim. P. 11(b). “In reviewing the adequacy of compliance with Rule 11, this [c]ourt

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should accord deference to the trial court’s decision as to how best to conduct the mandated

colloquy with the defendant.” United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Because Starr did not move the district court to withdraw her guilty plea, any errors

in the Rule 11 hearing are reviewed for plain error. United States v. Martinez, 277 F.3d

517, 525-26 (4th Cir. 2002). “To establish plain error, the appealing party must show that

an error (1) was made, (2) is plain, and (3) affects substantial rights.” United States v.

Miller, 41 F.4th 302, 310 (4th Cir. 2022) (citation modified). An “error affects substantial

rights if it was ‘prejudicial,’ meaning it affected the outcome of the district court

proceedings.” Id. at 311 (internal quotation marks omitted). “Even if an appellant makes

this three-part showing, an appellate court may exercise its discretion to correct the error

only if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citation modified).

A review of the record confirms that the district court fully complied with Rule 11

in accepting Starr’s plea. See Fed. R. Crim. P. 11(b)(1) (outlining several items that a

district “court must inform the defendant of, and determine that the defendant

understands,” before ‘the court accepts a plea of guilty”). The transcript also confirms that

Starr agreed that her plea was knowing and voluntary, and she assured the district court

that she fully understood the proceedings against her, she admitted her guilt, and she

informed the court that she was pleading guilty without threat of force or coercion. We

therefore conclude that Starr’s guilty plea was properly accepted by the district court and

it will not be disturbed on appeal.

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Despite the foregoing, both Starr and her counsel suggest that the voluntariness of

Starr’s plea may have been tainted by counsel’s ineffectiveness. “[T]o establish a Sixth

Amendment claim for ineffective assistance of counsel a defendant must show (1)

objectively unreasonable performance and (2) prejudice stemming from that performance.”

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). “Ineffective assistance claims

are generally not cognizable on direct appeal, however, unless it conclusively appears from

the record that defense counsel did not provide effective representation.” Id. (internal

quotation marks omitted).

After thoroughly reviewing the record and fully considering counsel’s and Starr’s

arguments in this court, we conclude that the record does not conclusively establish that

plea counsel was ineffective. This is especially true since, during the Rule 11 plea

colloquy, Starr stated under oath that she had thoroughly reviewed the case with her

attorneys, was satisfied with them, and had not been pressured to plead guilty. See United

States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (“A defendant’s solemn declarations

in open court affirming a plea agreement carry a strong presumption of verity because

courts must be able to rely on the defendant’s statements made under oath during a properly

conducted Rule 11 plea colloquy.” (citation modified)). As it does not conclusively appear

from the record that plea counsel was ineffective, or that Starr’s decision to plead guilty

was not knowingly, voluntarily and intelligently made, any ineffective assistance claim

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would be more appropriately raised by Starr in a 28 U.S.C. § 2255 motion. 1 See DeFusco,

949 F.2d at 120 (“[I]t would be unfair to adjudicate [an ineffective assistance claim]

without any statement from counsel on the record.”).

We therefore affirm Starr’s conviction.

II. Starr’s Sentence

We review a sentence for “reasonableness” by applying the “deferential abuse-of-

discretion standard.” United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020) (internal

quotation marks omitted). In doing so, “[o]ur inquiry proceeds in two steps.” United States

v. Friend, 2 F.4th 369, 379 (4th Cir. 2021). First, we must “ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the [Sentencing] Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Id. (internal

“Only if we determine that the sentence is procedurally reasonable do we then

proceed to substantive reasonableness.” Id. In considering the substantive reasonableness

of a sentence, this court “takes into account the totality of the circumstances to determine

whether the sentencing court abused its discretion in concluding that the sentence it chose

satisfied the standards set forth in § 3553(a).” United States v. Nance, 957 F.3d 204, 212

1 We express no opinion as to the merits of Starr’s ineffective assistance of counsel claims.

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(4th Cir. 2020) (internal quotation marks omitted). “[A]ny sentence that is within or below

a properly calculated Guidelines range is presumptively reasonable.” United States v.

Gillespie, 27 F.4th 934, 945 (4th Cir. 2022) (internal quotation marks omitted). Indeed, a

defendant can only rebut that presumption “by showing that the sentence is unreasonable

when measured against the . . . § 3553(a) factors.” United States v. Bennett, 986 F.3d 389,

401 (4th Cir. 2021) (internal quotation marks omitted).

After reviewing the record in this case, we conclude that the district court correctly

calculated Starr’s Guidelines range of 18 to 24 months in prison. Moreover, the district

court at sentencing (1) properly treated the Guidelines as nonmandatory; (2) gave the

parties an opportunity to argue for an appropriate sentence; (3) adequately explained its

reasons for imposing the within-Guidelines range sentence; and (4) fully discussed the

§ 3553(a) factors it deemed relevant. See Friend, 2 F.4th at 379.

However, a district court is also required to orally pronounce at sentencing all non-

mandatory conditions of supervised release. Rogers, 961 F.3d at 296; see also United

States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (“[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.”). Indeed,

“the heart of a Rogers claim is that discretionary conditions appearing for the first time in

a written judgment in fact have not been imposed on the defendant.” Singletary, 984 F.3d

at 345 (citation modified). We review such claims de novo, United States v. Smith, 117

F.4th 584, 604 (4th Cir. 2024), cert. denied sub nom. Alcorn v. United States, 145 S. Ct.

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1340 (2025), and the usual remedy for a Rogers error is to vacate the sentence and remand

for a full resentencing, see Singletary, 984 F.3d at 346 & n.4.

One type of Rogers error occurs when there is improper incorporation. In this

regard, a sentencing court may satisfy the oral pronouncement requirement by

“incorporat[ing] . . . a written list of discretionary conditions of supervised release, such

as the recommendations of conditions of release that have been spelled out in the

defendant’s PSR, or those established by a court-wide standing order.” Smith, 117 F.4th

at 604. Failure to properly incorporate conditions by reference is reversible error. Id.

Another type of Rogers error occurs when there is “a material discrepancy between

a discretionary condition as pronounced and as detailed in a written judgment.” United

States v. Mathis, 103 F.4th 193, 197 (4th Cir. 2024) (internal quotation marks omitted); see

also United States v. Cisson, 33 F.4th 185, 191 (4th Cir. 2022) (recognizing that lack of a

match between oral and written sentences may constitute reversible Rogers error). Not all

inconsistencies amount to reversible error—for example, when the written judgment serves

to clarify the court’s ambiguous oral pronouncement of a condition, or “when the

government has offered an explanation for the alleged inconsistency” between the oral

pronouncement and written judgment “to which the defendant has not responded.” Mathis,

103 F.4th at 197.

A district court must also adequately explain any special conditions imposed. See

United States v. Van Donk, 961 F.3d 314, 322-23 (4th Cir. 2020), and such conditions must

comply with the requirements of 18 U.S.C. § 3583(d), see United States v. Ellis, 984 F.3d

1092, 1098 (4th Cir. 2021). To adequately explain imposed special conditions, a district

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court must provide an “individualized explanation” for why a special condition is

appropriate considering the § 3583(d) factors. Van Donk, 961 F.3d at 322. Under

§ 3583(d), a special condition must be “(1) reasonably related to the statutory goals of

deterrence, protection of the public, and rehabilitation; (2) no greater a deprivation of

liberty than is reasonably necessary to achieve those statutory goals; and (3) consistent with

any relevant policy statements issued by the Sentencing Commission.” United States v.

McMiller, 954 F.3d 670, 676 (4th Cir. 2020) (citation modified).

“Unless a district court explains why particular special conditions are being

imposed, we have no basis for determining whether they are reasonably related to these

factors.” Id. (citation modified). And where a district court refers only to the imposed

prison term when discussing the § 3553(a) factors, “and ma[kes] no attempt to link its

explanation for [the] term of confinement with the term or conditions of supervised

release,” this court “cannot glean the district court’s reasons for imposing the challenged

conditions by examining the rationale for the sentence as a whole.” Id. (internal quotation

marks omitted). “Under our precedent, the district court’s failure to give an explanation

for the special conditions of supervised release is reversible plain error.” Id.

Our independent review of the record has revealed material discrepancies between

the district court’s oral pronouncement of the special conditions applicable to Starr’s

supervised release term and the written criminal judgment. In particular, during the portion

of Starr’s sentencing hearing when the district court identified the special conditions that

would apply to Starr’s supervised release, the district court orally imposed seven special

conditions of supervised release. However, the written criminal judgment that followed

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included nine special conditions. Those included in the written judgment that were not

orally pronounced at sentencing require that Starr (1) participate in a mental health

treatment program; and (2) pay a special assessment of $100.

And although Starr’s PSR included all nine recommended special conditions of

supervised release that were later included in the written judgment, at no time during Starr’s

sentencing hearing did the district court expressly incorporate the special conditions of

release recommended in the PSR. Cf. Smith, 117 F.4th at 606 (holding that, “although the

sentencing court stated that it had ‘read,’ ‘considered,’ and ‘resolved all objections’ to

[defendant’s] PSR, it did not expressly adopt the PSR before orally pronouncing

[defendant’s] sentence”). We therefore conclude that the two special conditions that were

omitted from Starr’s criminal “judgment in fact have not been imposed on [Starr].” 2

Singletary, 984 F.3d at 345 (citation modified); see Rogers, 961 F.3d at 300 (“[T]he

requirement that a district court expressly adopt a written list of proposed conditions is not

a meaningless formality: It is a critical part of the defendant’s right to be present at

sentencing.” (internal quotation marks omitted)).

It is well established that “defendants who succeed on Rogers claims are entitled to

a full vacatur of their sentences and remand for resentencing if they so request.” United

States v. Kemp, 88 F.4th 539, 547 (4th Cir. 2023) (internal quotation marks omitted). And

2 We reject counsel’s argument that the district court also violated Rogers when it imposed restitution as a special condition of Starr’s supervised release. Contrarily, we conclude that the supervised release portion of the written criminal judgment mirrors the court’s discussion on the matter.

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since the Rogers errors discussed above requires that we vacate the entirety of Starr’s

sentence, “we need not and should not proceed further to reach [her] additional arguments

about [her] prior sentencing.” Id. at 547 n.4 (internal quotation marks omitted).

Having reviewed the record in this case in accordance with our obligations under

Anders and finding two possibly meritorious issues for review, we affirm Starr’s

conviction, but vacate her sentence and remand to the district court for further proceedings

consistent with this opinion. 3 This court requires that counsel inform Starr in writing of

her right to petition the Supreme Court of the United States for further review. If Starr

requests that a petition be filed, but counsel believes that such a petition would be frivolous,

then counsel may motion this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Starr. 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

We remind the district court of its obligation to explain during Starr’s resentencing 3

why the imposed special supervised release conditions are “appropriate in light of the § 3583(d) factors.” Van Donk, 961 F.3d at 322.