United States v. Kortney Crews ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KORTNEY DONNELL CREWS, a/k/a Homicide, a/k/a P,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Malcolm J. Howard, Senior District Judge. (7:19-cr-00062-H-1)
Submitted: February 10, 2021 Decided: March 24, 2021
Before GREGORY, Chief Judge, and KEENAN and RUSHING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Kristine L. Fritz, Assistant United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kortney Donnell Crews pled guilty, pursuant to a plea agreement, to interstate
transportation for prostitution, in violation of 18 U.S.C. § 2421(a). The district court
sentenced Crews to 120 months’ imprisonment, imposed a 5-year term of supervised
release, and ordered Crews to comply with the mandatory and standard conditions of
supervised release and several special conditions. The written judgment also included
discretionary conditions that were not announced at sentencing—specifically, that Crews
may not incur new credit charges or open additional lines of credit without approval of the
probation office and must provide the probation office with access to any requested
financial information (“financial conditions”).
On appeal, Crews challenges the district court’s imposition of the financial
conditions, arguing that the court improperly included them in the written judgment
because it did not announce them during the sentencing hearing and that the financial
condition prohibiting him from incurring new charges or lines of credit without the
approval of the probation office is an impermissible delegation of judicial authority. Crews
also disputes the calculation of his Sentencing Guidelines range. The Government has
moved to dismiss the appeal as barred by the appellate waiver in Crews’ plea agreement.
Based on our recent decisions in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and
United States v. Singletary, 984 F.3d 341 (4th Cir. 2021), we deny the Government’s
motion to dismiss, vacate Crews’ sentence, and remand for resentencing.
In Rogers, we held “that all non-mandatory conditions of supervised release must
be announced at a defendant’s sentencing hearing.” 961 F.3d at 296. “The requirement
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that discretionary conditions be pronounced in open court 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. Thus, pursuant to Rogers, the district court improperly included
the financial conditions in the written judgment because the court did not announce those
conditions at sentencing. And, pursuant to Singletary, Crews’ Rogers claim is not barred
by his appellate waiver. See Singletary, 984 F.3d at 344-45 (holding that Rogers claim was
not barred by appellate waiver because waiver precludes challenges to sentence actually
imposed on defendant and discretionary conditions not announced at sentencing are not
part of sentence).
The Government has withdrawn its motion to dismiss Crews’ challenges to the
financial conditions in light of Singletary; it maintains, however, that Crews has waived
the right to dispute his custodial sentence. The Government observes that Singletary
involved supervised release conditions only, whereas Crews challenges both his supervised
release conditions and his custodial sentence. But Singletary expressly rejected this
distinction, stating that a full resentencing was warranted “given that custodial and
supervised release terms are components of one unified sentence.” Id. at 346 n.4 (alteration
and internal quotation marks omitted). And, as in Singletary, there is no need for us to
examine Crews’ remaining claims because the Rogers error, “[b]y itself, . . . requires that
we vacate [Crews’] sentence and remand for the district court to conduct the sentencing
anew.” Id. at 344.
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Accordingly, we deny the Government’s motion to dismiss, vacate Crews’ sentence,
and remand for resentencing. 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.
VACATED AND REMANDED
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