South Carolina Lawyers Weekly
Even if a district court erred by increasing a defendant’s offense level based on the possession of a firearm “in connection with” another felony offense, the error is harmless where the court would have reached the same result had it sided with the defendant on the sentencing guideline issue, the 4th U.S. Circuit Court of Appeals has ruled.
Robert Cisson pleaded guilty in the U.S. District Court for the District of South Carolina to the possession of a firearm and ammunition by a convicted felon after he used counterfeit bills to purchase a 9mm pistol in October 2016. Upon his plea, prosecutors dismissed a charge of passing counterfeit money.
Cisson was sentenced to 100 months in prison and three years’ supervised release. He appealed the sentence to the 4th Circuit on an issue not considered here, and on remand to district court a probation officer applied in his amended presentence report a sentencing enhancement advising the district court to increase, pursuant to United States Sentencing Guidelines, Cisson’s offense level by four if he “used or possessed any firearm or ammunition in connection with another felony offense.”
The officer calculated a total offense level of 21 and a criminal history category of V. Cisson objected to the district court at his resentencing hearing, arguing that the court should not apply the enhancement because the pistol was not used “in connection with” the crime of passing counterfeit money. The court overruled the objection but granted two others, decreasing his category from V to IV and lowering his sentencing range to 57 to 71 months in prison. It resentenced Cisson to 62 months in prison and three years’ supervised release.
Cisson appealed, asserting that the court erred in applying the enhancement.
“In connection with” irrelevant here
Cisson did not dispute that he possessed the firearm or ammunition, nor that he committed another felony offense. But he argued that possession of the firearm was not “in connection with” the offense of passing counterfeit money.
The 4th Circuit explained that it is not especially burdensome to the government to satisfy the “in connection with” requirement but that despite the strengths or weaknesses of each side’s arguments regarding the enhancement, the court ultimately would not need to decide the question if it determined that the error was harmless. One prong of that analysis would be whether the district court would have reached the same result if it had decided the Guidelines issue (the “in connection with” issue) the other way.
District Judge J. Michelle Childs indicated that it would have, Motz noted.
“First, under binding circuit precedent, we have held that we know a district court would have reached the same result when it tells us that it would have done so and explains why, and here the district court did just that,” Motz wrote.
No grounds for Roger error
Cisson also alleged that the district court committed two Rogers errors—each requiring that his sentence be vacated and remanded for resentencing—by 1) orally describing a condition specifying the district to which he should report after his release that differed from the description of that condition in the court’s written judgment, and 2) orally announcing merely that Cisson would be subject to the “mandatory standard conditions” of supervised release, thereby failing to adequately announce the discretionary conditions that it later imposed in its written judgment.
After Cisson’s conviction, the 4th Circuit decided in U.S. v. Rogers that a district court must announce discretionary conditions of supervised release at sentencing hearings. Subsequently, in State v. Singletary, the court emphasized that the proper remedy for a Rogers error is to vacate the sentence and remand for resentencing. Finally, in U.S. v. Jenkins, the court noted that where the description of a condition in an oral sentence did not match the description of that condition in the written judgment, the error alone is a reversible Rogers error.
In his first Rogers claim, Cisson claims not a failure to announce a discretionary condition but an inconsistency between descriptions in his oral sentence and written judgment. The court told Cisson that within 72 hours of release from prison, he was to report to the probation office in the district to which he was released, whereas the written judgment directed him to report to the district where he was authorized to reside.
The government argued that there is no inconsistency because the district in which a defendant is released is the district in which the government has authorized him to reside. The court noted that while different interpretations are possible (e.g., a defendant is released to a district where a prison physically sits rather than where he or she will live), Cisson waived his possible response to the government’s explanation when he failed to respond to it.
“For this reason, we must hold that there is no inconsistency between the descriptions of the condition in the oral sentence and written judgment, and thus no Rogers error,” Motz wrote.
Cisson’s second Rogers claim “fares no better,” the court held, rejecting his contention that the district court failed to adequately announce his discretionary conditions of supervised release by merely stating that it would impose the “mandatory standard” conditions of release. An audio review of the sentencing revealed that the court said that it would impose the “mandatory and standard conditions.”
Either way, Motz noted that the court made clear in Rogers that a court may satisfy its requirement to announce discretionary conditions by incorporating all Guidelines “standard” conditions when it announces a supervised release sentence.
“The District of South Carolina has no standing order listing its own ‘standard’ conditions that differs from the Guidelines list of standard conditions found at U.S.S.G. § 5D1.3(c),” Motz wrote. “Thus, there is no other set of ‘standard’ 17 conditions to which the court could have been referring other than the Guidelines ‘standard’ conditions.”
Circuit Judges G. Steven Agee and James Wynn Jr. concurred in the opinion.
Erica Soderdahl of the Office of the Federal Public Defender in Greenville represented Cisson. Benjamin Garner of the Office of the U.S. Attorney in Columbia represented the government.
The 17-page decision is U.S. v. Cisson (Lawyers Weekly No. 001-072-22). The full text of the opinion is available online at sclawyersweekly.com.
