United States v. Tony Covington

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 11, 2023
• Docket: 21-4630
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4630

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY LEE COVINGTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:19-cr-00421-MGL-1)

Submitted: April 3, 2023 Decided: April 11, 2023

Before HARRIS and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Corey F. Ellis, United States Attorney, Columbia, South Carolina, Amy F. Bower, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

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PER CURIAM:

Tony Lee Covington pled guilty, pursuant to a written plea agreement, to conspiracy

to commit wire fraud, in violation of 18 U.S.C. § 1349. The district court sentenced him

to 51 months’ imprisonment and a three-year term of supervised release. On appeal,

Covington asserts that one of the discretionary conditions of supervised release in his

written judgment is inconsistent with the district court’s oral pronouncement of that

condition at sentencing. For the reasons that follow, we affirm.

“[A] district court must orally pronounce all non-mandatory conditions of

supervised release at the sentencing hearing.” United States v. Singletary, 984 F.3d 341,

344 (4th Cir. 2021). “Discretionary conditions that appear for the first time in a subsequent

written judgment . . . are nullities; the defendant has not been sentenced to those conditions,

and a remand for resentencing is required.” Id. (citing United States v. Rogers, 961 F.3d

291, 300-01 (4th Cir. 2020)). To “satisfy its obligation to orally pronounce discretionary

conditions,” a district court may do so “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.” Rogers, 961 F.3d

at 299. “We review the consistency of [a defendant’s] oral sentence and the written

judgment de novo.” Id. at 296; see United States v. Cisson, 33 F.4th 185, 192-93 (4th Cir.

2022).

When imposing the conditions of supervised release at sentencing, the district court

stated, “Within 72 hours of release from the custody of the Bureau of Prisons, the defendant

shall report in person to the probation office in the district to which the defendant is

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released.” (J.A. 56). * Immediately thereafter, the district court ordered Covington to

“comply with the mandatory and standard conditions of supervision outlined in 18 U.S.C.

[§] 3583(d) and [U.S. Sentencing Guidelines Manual §] 5D1.3(c).” (J.A. 56). The district

court’s subsequent written judgment included the 13 standard conditions of supervised

release in USSG § 5D1.3(c), p.s., including the following condition: “You 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, unless the probation officer instructs you to

report to a different probation office or within a different time frame.” (J.A. 63).

On appeal, Covington argues that the district court committed Rogers error because

the description of the reporting condition in the written judgment materially differed from

the court’s oral pronouncement of that condition at sentencing. To be sure, a material

discrepancy between a discretionary condition as pronounced and as detailed in the written

judgment may constitute Rogers error. See Cisson, 33 F.4th at 194 & n.6. However,

Covington fails to demonstrate a reversible inconsistency between the oral sentence and

the written judgment amounting to Rogers error. Although the district court at sentencing

ordered Covington to report to the district in which he was released, the court also

incorporated the reporting condition in USSG § 5D1.3(c), p.s., leaving ambiguous where

Covington was required to report upon his release from prison. “[W]here the precise

contours of an oral sentence are ambiguous, we may look to the written judgment to clarify

the district court’s intent. Rogers, 961 F.3d at 299 (citing United States v. Osborne, 345

* “J.A.” refers to the joint appendix filed by the parties in this appeal.

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F.3d 281, 283 n.1 (4th Cir. 2003)). We are satisfied that the written judgment’s inclusion

of the reporting condition in USSG § 5D1.3(c)(1), p.s., dispels the ambiguity in the district

court’s oral pronouncement and confirms the court’s intent to require Covington to report

to the probation office in the district where he is authorized to reside.

Accordingly, we affirm the criminal judgment. 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