Malik Eli Davis pleaded guilty to possession with intent to distribute cocaine and possession of a firearm by a convicted felon. The district court sentenced him to 180 months in prison and three years of supervised release, imposing various mandatory and discretionary conditions. On appeal, Davis argued that the district court failed to orally pronounce all discretionary conditions and did not sufficiently incorporate the standard conditions adopted by the Western District of North Carolina. The dispute centered on a timing issue: on the day of Davis's sentencing, the district judges signed a Revised Standing Order that replaced the Original Standing Order with less onerous conditions. However, the Revised Order was not set to take effect until after Davis's sentencing hearing. The district court orally announced that Davis would be subject to standard conditions but made ambiguous remarks suggesting the conditions might change to his favor, leaving it unclear whether the Original or Revised Standing Order was intended to apply.
The Fourth Circuit applied the rule established in United States v. Rogers, which requires district courts to orally pronounce all discretionary conditions of supervised release. This requirement is a critical component of a defendant's right to be present at sentencing, ensuring they have an opportunity to avoid unwarranted conditions. The court noted that a reversible Rogers error occurs not only when conditions are omitted from the oral pronouncement but also when there is a material discrepancy between the oral pronouncement and the written judgment. While not all inconsistencies are reversible, a discrepancy is material if the written judgment imposes a new condition or additional obligation that was not clearly clarified by the oral pronouncement. In this case, the district court's statements alluding to the more favorable Revised Standing Order, which was not yet in effect, created ambiguity. The court could not determine whether the judge intended to incorporate the Original Standing Order or the Revised Standing Order. Because the oral pronouncement failed to sufficiently incorporate by reference either standing order, the court found a reversible Rogers error.
Davis's sentence is vacated, and the case is remanded to the district court for resentencing. The district court must now clearly orally pronounce the specific discretionary conditions of supervised release, ensuring no ambiguity exists regarding which standing order applies. This decision reinforces that judges must be precise when referencing standing orders, particularly when new orders are pending implementation, to avoid violating the defendant's right to be present at sentencing.