United States v. Levi Martinez Molina

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2024
• Docket: 23-4652
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4652

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEVI MARTINEZ MOLINA, a/k/a Levi Martinez-Molina, a/k/a Levi Josue Martinez Molina, a/k/a Levi Molina Martinez, a/k/a Levi Josue Martinez, a/k/a Levi Martinez, a/k/a Levie Martinez-Molina, a/k/a Levi Martinez-Godina,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:20-cr-00487-WO-1)

Submitted: June 27, 2024 Decided: July 29, 2024

Before NIEMEYER and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III, Rockingham, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

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PER CURIAM:

Levi Martinez Molina pleaded guilty pursuant to a written plea agreement to

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846;

possession of a firearm by a felon and illegal alien, in violation of 18 U.S.C.

§§ 922(g)(1), (g)(5), 924(a)(2); and reentering the United States without authorization

following his removal as an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2).

The district court sentenced Martinez Molina to 168 months’ imprisonment followed by

five years’ supervised release. On appeal, we granted the Government’s motion to dismiss

in part, affirmed the convictions, but vacated the sentence and remanded for resentencing.

See United States v. Molina, No. 22-4403, 2023 WL 3863099 (4th Cir. June 7, 2023)

(unpublished) (Molina I) (citing United States v. Singletary, 984 F.3d 341, 345

(4th Cir. 2021) and United States v. Rogers, 961 F.3d 291, 296-99 (4th Cir. 2020)).

Martinez Molina has been resentenced and he now appeals.

Martinez Molina’s counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning

whether the sentence imposed is substantively reasonable. Although informed of his right

to do so, Martinez Molina has not filed a pro se supplemental brief. The Government has

moved to dismiss Martinez Molina’s appeal based on the plea agreement’s appeal waiver.

We grant the Government’s motion to dismiss in part, deny it in part, and vacate the

sentence and remand for resentencing. In Martinez I, we concluded that the appeal waiver

in Martinez Molina’s plea agreement was valid and enforceable and his guilty plea was

knowingly and voluntarily made. We will not revisit those issues. See United States v.

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Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (noting that when a court decides a question

of law, that decision governs subsequent stages of the same case).

Martinez Molina’s criminal judgment listed several special conditions of

supervision, nearly all of which were announced by the district court at resentencing and

listed in the Probation Office’s recommendations for supervised release. It is well settled

that the district court must announce or incorporate by reference all nonmandatory

conditions of supervised release at the sentencing hearing. Rogers, 961 F.3d at 296-99.

This “requirement . . . gives defendants a chance to object to conditions that are not tailored

to their individual circumstances and ensures that they will be imposed only after

consideration of the factors set out in [18 U.S.C.] § 3583(d).” Id. at 300. “A prototypical

Rogers-Singletary error involves a discretionary condition in the written judgment that was

not mentioned at all during sentencing.” United States v. Mathis, 103 F.4th 193, 197

(4th Cir. 2024). In Singletary, we explained that a challenge to discretionary supervised

release terms that were not orally pronounced at sentencing falls outside the scope of an

appeal waiver because “the heart of a Rogers claim is that discretionary conditions

appearing for the first time in a written judgment . . . have not been imposed on the

defendant.” 984 F.3d at 345 (internal quotation marks omitted).

At resentencing, the district court announced as a special condition of supervised

release that Martinez Molina “shall abstain from the use of alcoholic beverages, shall not

associate with individuals consuming alcoholic beverages, and shall not use any

medication containing alcohol without the permission of the probation officer or a

prescription from a licensed physician. The Defendant shall submit to any form of alcohol

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testing as directed by the probation officer.” (J.A. 89). ∗ But the written criminal judgement

added an additional obligation by instructing Martinez Molina that he “shall not frequent

business establishments whose primary product to the consumer is alcoholic beverages.”

(J.A. 97). This particular obligation was not mentioned by the district court or included in

the Probation Office’s proposed list of special conditions of supervision.

In situations where the district court fails to announce or otherwise incorporate the

discretionary conditions of supervised release, the appropriate remedy is to vacate the

entire sentence and remand for a full resentencing hearing. See Singletary, 984 F.3d at 346

& n.4; see also Mathis, 103 F.4th at 195, 197-98 (noting that “under our Rogers-Singletary

jurisprudence, one rotten apple spoils the whole barrel”). Because a Rogers-Singletary

error falls outside the scope of an appeal waiver, we vacate Martinez Molina’s sentence

and remand for resentencing.

In accordance with Anders, we have reviewed the entire record in this case and have

found no other meritorious grounds for appeal. We thus grant the Government’s motion

to dismiss the appeal as to any issues falling within the scope of the appeal waiver, but

vacate Martinez Molina’s sentence and remand for resentencing. This court requires that

counsel inform Martinez Molina, in writing, of the right to petition the Supreme Court of

the United States for further review. If Martinez Molina 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

∗ References are to the joint appendix.

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thereof was served on Martinez Molina. 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.

DISMISSED IN PART, VACATED IN PART, AND REMANDED