The judges published their thoughts Thursday with an order denying en banc review of an opinion issued last month in a cocaine possession case — not dissenting but opining that the court should rethink over 60 years of Fourth Circuit precedent on the weight given to oral statements made at sentencing.
"In sum, our case law transforms a defendant's right to be present at sentencing into a tangled web of inconsistencies that calls into question heaps of otherwise-valid judgments," U.S. Circuit Judge Julius N. Richardson wrote in a "statement respecting the denial of rehearing en banc."
"Rather than continuing to follow our earlier (unwise) suggestion that the oral sentencing pronouncement controls over the written judgment, we should recognize the centrality of the written judgment," Judge Richardson wrote.
Seven circuit court judges joined Judge Richardson in his statement that Fourth Circuit precedent has become confusing with respect to whether written sentences are controlling. While the judges declined to review the opinion issued last month, they still said that the law underlying it is inconsistent.
The statement observes that as sentencing essentially occurs in two stages, there are sometimes discrepancies between the oral and the written pronouncement. Judges typically provide oral sentencing, an in-person hearing at which the defendant is present, and a later written statement published after the hearing.
When a judge hands down an oral statement, sometimes certain elements are excluded such probation terms that would apply to every criminal defendant. When these discrepancies occur, appeals courts are required to evaluate which sentence should be considered controlling, according to the statement.
Defendants have a constitutional right to be present at sentencing, and Fourth Circuit precedent has long held that because of that, oral sentencing is binding when a discrepancy exists. The statement points to cases as far back as 1962 supporting the theory that oral pronouncements control.
The statement says that case law on the pronouncements has evolved following decisions in the 2020 case of United States v. Rogers
and the 2021 case of United States v. Singletary . The circuit court again held in Rogers that oral pronouncements control, and subsequently found in Singletary that if a written order differs from the in-person hearing, those conditions are void, and require resentencing, according to the statement.The "Rogers-Singletary doctrine" caused a flood of cases from defendants seeking to vacate sentences because of discrepancies between the oral and written sentences. The result is that "otherwise-valid sentences" are now subject to re-sentencing, according to the statement.
The underlying panel decision was issued last month in a case involving John McLaurin, who was convicted to 120 months in prison for cocaine possession. McLaurin appealed a revocation of his parole because a trial judge did not orally indicate he was subject to standard release conditions during his sentencing.
The panel in McLaurin's case ordered that under Rogers, he should see his old sentence vacated and be given a new sentence. Thursday's statement from Judge Richardson said cases like this are exactly why the doctrine should be reconsidered to prevent even minor discrepancies from resulting in a new sentence.
U.S. Circuit Judge James Andrew Wynn, who also voted to deny a rehearing, attached a separate statement pointing out that the other judges had the power to fix the precedent. Judge Wynn said that by granting review the judges could review whether the precedent should remain in place.
"Yet they collectively identify a serious and compelling concern, one that lies well within this Court's power to correct by granting such review," Judge Wynn said. "That inconsistency — articulating a forceful basis for en banc review while simultaneously voting to deny it — is one I find difficult to reconcile."
An attorney for McLaurin and a spokesperson for the U.S. Attorney's Office for the District of Maryland declined to comment.
The government is represented by Clinton Jacob Fuchs and Jason Daniel Medinger by the U.S. Attorney's Office for the District of Maryland
McLaurin is represented by the Sedira S. Banan, Paresh S. Patel and Cullen Oakes Macbeth of the Federal Defender's Office of Maryland.
The case is United States v. John McLaurin, case number 24-4261, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Amy French.
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